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Covid-19 delays continue in Susan Powell family lawsuit

Charles Cox reviews legal papers with his attorneys, Ted Buck (center), Evan Bariault (left) and Anne Bremner in Pierce County Superior Court on Feb. 18, 2020. Photo: Dave Cawley, KSL

TACOMA — A jury trial over the civil suit filed by the parents of missing Utah woman Susan Powell accusing Washington’s state child welfare agency of negligence will remain on hold due to the Covid-19 pandemic.

On Thursday, Washington Supreme Court Deputy Commissioner Walter Burton granted a request from the Washington Attorney General’s Office seeking a stay of Pierce County Superior Court Judge Stanley Rumbaugh’s plan to resume proceedings in the civil trial starting Monday, June 15.

The jury trial had commenced in February and was into its fifth week when, on March 17, Judge Rumbaugh placed the proceedings on hold due to the public health crisis. On May 19, the judge issued an order scheduling the trial to recommence on June 8, stating proper protections were then in place to continue the trial while also protecting the health of the jurors, witnesses, attorneys and court staff.

Attorneys representing the state pushed back and asked Judge Rumbaugh to delay. He did so, but only by one week. The state attorneys then filed a request for discretionary review to the Washington Supreme Court.

“With the department’s motion for discretionary review scheduled for consideration by this court on July 9, 2020, failing to stay proceedings could render the motion moot,” Burton wrote in his order granting the stay.

However, Burton also conceded the ongoing delay could cause problems.

“I acknowledge the superior court’s and respondents’ legitimate concern with the need to resume trial before the jurors’ memories of prior proceedings fade to the point that a mistrial may be required,” Burton wrote. “But in the balance between the interest in completing this trial and the need to protect human life and health, it is plain which side carries the greater weight.”

The lawsuit revolves around claims of negligence rising from the Feb. 5, 2012 deaths of Susan Powell’s sons, Charlie and Braden Powell, at the hands of their father. Josh Powell killed the boys and himself during a court-authorized visitation at a home he had rented in the town of Graham, Wash.

At the time of the murder-suicide, Josh Powell was the sole suspect in the suspected murder of his wife. However, he had never been arrested or charged with a crime related to Susan Powell’s disappearance.

The couple’s children were at that time in the protective custody of the Washington Department of Social and Health Services, having been removed from Josh Powell after police served an Aug. 25, 2011 search warrant at the home of his father, Steve Powell. During service of the warrant, investigators had located pornographic voyeur videos created and kept by Steve Powell. As a result, a judge had raised questions about Josh Powell’s fitness as a father and placed the boys with Susan’s parents, Chuck and Judy Cox, while sorting out whether or not Powell could safely regain custody.

In their lawsuit, the Coxes contend the actions of state social workers directly contributed to the deaths of their grandsons. They argue the social workers failed to conduct required domestic violence screening on Josh Powell and showed “reunification bias” in their efforts to allow him visitation at his rental home, instead of at a secure third-party facility.

The stay is just the latest in a long string of detours and delays for the case, which the Coxes first filed in 2013.

The suit was previously transferred from Pierce County Superior Court to the U.S. District Court, where a judge ruled against the Coxes. They appealed to the 9th U.S. Circuit Court of Appeals, which in January of 2019 partially overturned the lower court’s decision. The appellate court justices agreed the individual social workers were immune from the lawsuit’s claims, but reinstated the claims against the state agency.

Attorneys for the Coxes then moved to have the case moved back into the state court, where it ultimately went to trial in February.