The 9th U.S. Circuit Court of Appeals handed a victory to the family of missing West Valley City mom Susan Cox Powell, allowing their lawsuit over the deaths of her sons to go to trial.
In a ruling issued Thursday afternoon, the 9th Circuit Court reversed a lower court’s decision dismissing Judy and Chuck Cox’s civil lawsuit against Washington State Department of Social and Health Services over the 2012 deaths of Susan’s children, Charlie and Braden Powell.
“Material issues of fact exist regarding whether DSHS used reasonable care to avoid placing the boys in harm’s way,” wrote Judge Leslie Kobayashi.
Susan Cox Powell vanished in 2009 from her West Valley City home and has never been found. Josh Powell killed himself and their children at a home in Graham, Wash., in 2012 after taking a hatchet to his sons and then blowing up the home.
Josh Powell, who was a suspect in the disappearance and death of his wife, was under scrutiny by Utah and Washington state police. Charlie and Braden were in state protective custody while police investigated voyeurism accusations about Josh’s father, Steven Powell. (He ultimately was convicted, served prison time and died in July.)
After the boys’ deaths, the Cox family sued Washington’s child protective services system, arguing it had responsibility over the children and should have done more to ensure they were safe. The lawsuit made it to the 9th U.S. Circuit Court of Appeals, which put it on hold while it awaited a lawsuit brought by four children in foster care who allege Washington failed to protect them from abuse in the system.
In their ruling, the 9th Circuit judges did give immunity to individual social workers connected to the Powell case. However, the court found there were issues with the children being allowed to visit Josh Powell at a home instead of a neutral location.
“The district court’s reliance on DSHS’s ‘continuing goal of reunification’ and ‘relative success of earlier family visits’ to hold that DSHS’s decision was reasonable as a matter of law ignores the extraordinary safety concerns Joshua presented,” Judge Kobayashi wrote.
The 9th Circuit Court also said information from police detectives who believed Josh was a danger and had concerns for the boys’ safety was also withheld from a lower court.
“DSHS also withheld the opinion of Joshua’s sister, Jennifer Graves, who stated Joshua was ‘unpredictable and volatile’ and expressed concerns for the boys’ well-being while in Joshua’s care. Other information withheld included concerned opinions from the boys’ counselor, and Joshua’s repeated violations of the Dependency Court’s orders,” Judge Kobayashi wrote.
The decision by the 9th Circuit Court means the case will be sent back to a lower court where it could go to trial or end in a settlement. Speaking to FOX 13 on Thursday, Cox family attorney Anne Bremner said it was a good ruling.
“We are very pleased that we’re going to have a day in court for Charlie and Braden and for Chuck and Judy,” she said. “I think a trial is something we would look forward into in terms of achieving justice.”
A spokeswoman for Washington’s Department of Children, Youth, and Families indicated in an email to FOX 13 it was pleased the social workers were given protections in the ruling.
“The Court affirmed the trial court’s dismissal of civil rights violations against the individual social workers,” said Debra Johnson, the agency’s communications director. “That was our goal in removing the case to federal court. The issue regarding negligence will be addressed once the case is remanded.”
Read the 9th Circuit Court’s ruling here (refresh the page if it doesn’t immediately load):