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Appeals court allows family to reinstate lawsuit over death of Susan Powell's sons

SALT LAKE CITY — The grandparents of young Charlie and Braden Powell — who were murdered in 2012 during a visit with their father, the prime suspect in their mother's disappearance — have a renewed chance to sue the Washington state agency that was supervising them.

Under a decision handed down Thursday in the 9th Circuit Court of Appeals, the children's grandparents will be allowed to proceed with a previously dismissed lawsuit against Washington's Department of Social and Health Services. The family has claimed the agency failed to protect the boys and inadequately trained its representatives.

Chuck Cox, father of the long missing Susan Powell, who is presumed to have been murdered by her husband Josh Powell, said Thursday he has held firm to his belief since his grandsons were killed that the agency's policies should be changed to prevent similar tragedies.

With the lawsuit back on, he wonders what will happen now.

"How long is it going to take to get it through the court system, and what is DSHS willing to change in how it does business? That's what our whole goal is, is to make it so the children are protected more."

Charlie, 7, and Braden, 5, were the sons of Susan and Josh Powell, who were living in West Valley City when Susan vanished in December 2009. While her body was never found and her husband was never arrested, police have long believed Josh Powell murdered his wife.

The boys had been taken from their father's custody in August 2011 when investigators looking into their mother's disappearance found evidence of child pornography in the Washington home where they were living with Josh Powell's father, Steven Powell. Steven Powell was later convicted and imprisoned for voyeurism for taking pictures of two young neighbor girls, ages 8 and 10. He died of a heart attack in July.

After they were removed from Josh Powell's care, Charlie and Braden were allowed to live with their grandparents, Chuck and Judy Cox, and visit their father along with a supervisor from the Department of Social and Health Services.

On a Feb. 5, 2012 visit, the children ran into the home their father was renting moments before Josh Powell locked the supervisor outside. He then killed the boys and killed himself by setting the home on fire.

The Coxes' lawsuit claims that in moving the visits out of a secure location and failing to investigate risks posed by the boys' father before allowing the fatal visit in his home, the Washington Department of Social and Health Services put Charlie and Braden in harm's way. It also claims the agency didn't properly train the supervisor, who had not previously conducted a residential visit and waited nearly 10 minutes to call 911 after being locked out of the home.

In October 2015, a U.S. District judge in Washington dismissed the lawsuit, saying the agency had no way of knowing Josh Powell was going to kill his sons. The Coxes appealed their case to the 9th Circuit Court of Appeals, which in Thursday's decision reversed the lower court's ruling.

The opinion handed down Thursday found the agency had a responsibility to protect the boys and that, contrary to the lower court's 2015 decision, questions remain as to whether it met that obligation.

"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," Thursday's opinion states. "Given the information DSHS possessed regarding Joshua, we cannot say that DSHS's decision to move visitations to Joshua's home and increase duration of visitations was reasonable as a matter of law."

The court's opinion, however, upheld the ruling that the individual social workers named in the Cox lawsuit are protected by qualified immunity.

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In a statement Thursday, Debra Johnson, director of communications for Washington's Department of Children, Youth, and Families, said: "The court affirmed the trial court's dismissal of civil rights violations against the individual social workers. That was our goal in removing the case to federal court. The issue regarding negligence will be addressed once the case is remanded."

Cox said he appreciates that the decision, written by Judge Leslie E. Kobayashi, acknowledges the fears he and other family members raised before the children were killed.

"We told them the kids were in danger and they said, 'Oh, well, you know, we've heard that before.' Turns out we were correct," Cox said.

While it has been nine years since his daughter disappeared and nearly six years since his grandsons were killed, Cox said he remains determined to pursue the case against the Washington agency that he believes could have protected the children.

"They seem to like to delay things until you give up and go away, but we're not giving up or going away. We're going make sure things get changed," Cox said.

In a statement Thursday evening, attorneys Anne Bremner and Ted Buck, who represent the Cox family, said "two little boys deserved this decision."

The mystery surrounding Susan Powell's disappearance has seen a resurgence of interest since the launch of the KSL podcast "Cold."

Contributing: Alex Cabrero, KSL TV