The ruins of Josh Powell's home in Graham, Washington after he murdered his children. Feb. 7, 2012. (Photo: Ravell Call, Deseret News)
SEATTLE — A wrongful-death lawsuit involving the children of Susan and Josh Powell is headed to trial.
The 9th Circuit Court of Appeals has ruled in favor of Susan Powell’s parents in the long-standing dispute over the deaths of their grandsons, Charlie and Braden Powell.
The ruling clears the way for Chuck and Judy Cox’s wrongful death lawsuit against the state of Washington to go to trial.
The Coxes filed the lawsuit in 2013, after Josh Powell killed the boys and himself and caused his rental home to explode in Graham, Washington. The boys were supposed to be visiting their father with supervision from the state, but the supervisor told dispatchers they ran ahead of her and Powell closed the door before she could get in. The Coxes argued the state of Washington failed to protect Braden and Charlie, 5 and 7-years-old.
In the opinion written by Judge Leslie Kobayashi, the 9th Circuit Court of Appeals found there was not enough evidence to show the social workers should have known Josh Powell would hurt his sons.
“While we disagree with the district court’s characterization of the evidence, we recognize how difficult it is for social workers to sift through safety fears and concerns, and to make reasoned and expeditious judgments about the risk of harm,” Kobayashi wrote. “In hindsight, family members’ concerns about Joshua physically harming the two boys were heartbreakingly prescient… The initial visiting plan identified a potential safety issue related to the risk that Joshua might flee with the two boys, but not that he might cause them serious physical harm.”
However, the panel ruled there were enough questions of fact about the Washington Department of Social and Health Services’ execution of its duty to the boys that the case could be sent back to trial.
“Material issues of fact exist regarding whether DSHS used reasonable care to avoid placing the boys in harm’s way, including: (1) determining Joshua’s visitation location; (2) facilitating the February 5, 2012 visitation; and (3) training its social workers to conduct visitations. There also exists material issues of fact as to whether DSHS’s actions proximately caused the boys to be placed in harm’s way,” Kobayashi wrote.
Charlie and Braden were removed from Josh Powell’s care and placed with the Coxes in 2011, after police discovered child pornography and other problematic material at the home of Powell’s father, Steven. The boys initially visited their father under supervision at a DSHS facility, but later on, those visits were allowed to take place at a home Powell rented apart from his father’s home.
Early in 2012, as the custody dispute continued, Powell tried to have the boys placed back with him or with his pastor, but the request was denied and he was ordered to undergo a psychosexual examination. The murder-suicide that resulted in the deaths of Powell and his sons took place on the date of their next supervised visit, Feb. 5, 2012.
The appeals court ruling means the wrongful death lawsuit can now proceed to a trial.
Susan Powell disappeared in Dec. 2009. Her husband, Josh, was identified early on as a person of interest in the case.