And the Estate of Koshelnik v. State
| Decision Date | 20 June 2016 |
| Docket Number | No. 75032-1-I,75032-1-I |
| Court | Washington Court of Appeals |
| Parties | DEBRA KOSHELNIK and GLEN TURNER individually and the marital community consisting thereof: and The Estate of EVELYN KOSHELNIK, through DEBRA KOSHELNIK as personal representative thereof, Appellants, v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES (DSHS), SUSAN N. DREYFUS, Secretary of DSHS, LINDA ROLFE, Director, Division of Developmental Disabilities of DSHS; CONNIE WASMUNDT, EVELYN CANTRELL, LOREN JUHNKE, and BARBARA UEHARA, employees of DSHS and unknown supervisors and managers of said employees to be named, Respondents. |
UNPUBLISHED OPINION
APPELWICK, J. — Debra and her husband provided care to three children with Down Syndrome and Debra's elderly mother, Evelyn, and her brother. The Department investigated Debra after first receiving a report that Debra hit one of the children. As a result of this investigation, the Department entered a substantiated finding of abuse against Debra. The Department then later received a report that Debra was not properly caring for Evelyn, a vulnerable adult. A Department investigator interviewed Evelyn. Evelyn had a stroke that same day and subsequently died. Appellants filed a complaint against the Department and its employees, alleging, among other causes of action, negligent investigation, defamation, outrage, conspiracy, and violations of civil rights. The trial court granted the Department summary judgment as to all claims. Appellants either fail to state a claim upon which relief can be granted or fail to provide sufficient evidence to show that there are genuine issues of material fact as to those claims. We affirm.
FACTS
Debra Koshelnik and Glen Turner are married. In 2007, they lived with their two adopted children (Virginia, Morgan), their child through the legal guardianship process (Parker), Debra's1 parents (Edward Koshelnik and Evelyn Koshelnik), and Debra's brother (Daniel Koshelnik). Daniel, Virginia, Morgan, and Parker all have Down Syndrome. Debra has been Daniel's caregiver for many years. Debra chose to adopt the children specifically because she has a calling to provide care to individuals with Down Syndrome. Both Daniel and Parker are clients of the Department of Social and Health Services (Department) Division of DevelopmentalDisabilities (DDD). They receive personal care services from DDD. Their personal care provider was Debra. Debra entered into a client service contract2 with the Department in May 2005.
Both of Debra's parents are deaf. Consequently, she grew up in a deaf household and uses American Sign Language (ASL). Debra is not deaf, is articulate in the English language, and has served as an interpreter between her deaf relatives and other hearing persons.
On February 8, 2007 as Virginia was preparing to go to school, there was an altercation between Virginia and Debra. Virginia, who was "mouthing off" and being sassy, stuck her tongue out at Debra. Debra approached Virginia and cautioned her to stop. When Virginia continued, Debra yelled at her never to do that, poked Virginia's chest with a finger and attempted to "pop" Virginia's tongue with her hand in a "stop" motion. At that time, Virginia turned her head and Debra's hand hit Virginia's cheek.
Turner was waiting at the car and did not see the altercation. When Virginia came to the car, she was crying, rubbing her cheek, and said, "Mom hit me." Virginia then went to school and told an educational assistant that her mom had hit her. Virginia told other people at school about the altercation with Debra. Theassistant principal contacted Adult Protective Services (APS)3 on February 9, 2007. APS is also a division of the Department. See RCW 74.34.067(8).
APS conducted an investigation. APS representative Corinne Wasmundt went to Virginia's school to interview her on February 14, 2007. Evelyn Cantrell, Department Attorney and Legal Benefits Advisor, was also present during the meeting with Virginia. On February 27, 2007, Wasmundt went with Olympia Police Officer, Ed Dawson, to the Koshelnik home. Cantrell was also present as an observer. Wasmundt and Dawson interviewed Debra. According to Wasmundt, during the interview, Debra admitted to slapping Virginia and poking her in the chest. According to Officer Dawson, Debra gave Virginia a gentle pop in the mouth and a gentle poke to the chest. He did not feel that Virginia was ever in danger, but because the facts of the case met the elements for domestic violence, he was required to report the incident to the prosecutor's office. The prosecutor did not press charges.
Debra informed DDD case workers Kris Jorgensen-Dobson and Barbara Uehara that she was being investigated by APS. On February 28, 2007, Jorgensen-Dobson received a phone call from Wasmundt at APS. Wasmundt told Jorgensen-Dobson that she would be substantiating the allegation of domesticviolence. Uehara also made a note in the file indicating that she understood that Debra had admitted to striking a client4 on the face.
On March 14, 2007, Uehara issued a notice to Parker stating that effective March 15, 2007, DDD was terminating payments to his care provider—Debra. The notice stated that DDD was taking that action, because of a reported allegation of abuse or neglect to a vulnerable adult that is under investigation with APS. The notice stated that Parker remained eligible for personal care services, but that he had to choose another qualified provider. The Department sent a similar notice to Daniel.
On April 2, 2007, Daniel and Parker requested a hearing and agreed to consolidate their hearings. Debra continued providing personal care services to Daniel and Parker even though she was not being paid. An administrative hearing was held on May 21, 2007.
After conducting the hearing, the Administrative Law Judge (ALJ) issued a decision on June 1, 2007. ALJ Rebekah Ross concluded that the light smack Debra gave to Virginia did not constitute abuse under the relevant statute and regulations. Consequently, the ALJ concluded that the Department erred in denying Daniel and Parker their choice of care provider and it reversed the Department's decision to deny Debra as their care provider.
Then, on June 4, 2007, APS notified Debra that it had made a substantiated finding that she had physically abused a vulnerable adult. The notice stated that APS specifically determined that Debra willfully physically abused a vulnerable adult when she punched and slapped Virginia. Debra timely appealed, asserting that ALJ Ross already reversed the Department's denial of payment for care services and found that the incident did not fall within the definition of abuse.
On June 6, 2007—five days after ALJ Ross's final order was issued in Parker's and Daniel's appeal, reversing the Department's decision to deny their choice of provider—the Department again notified Parker that it was terminating Debra's client service contract. On June 24, 2007, Parker again appealed the denial.
While Parker's second appeal was pending, ALJ Jamie Moore held a hearing on Debra's appeal in January 2008, considering whether APS's substantiated finding of abuse should be reversed. On March 19, 2008, the ALJ issued an order, concluding that the preponderance of the evidence in the hearing record did not establish that Debra's action, when she attempted to pop Virginia on the tongue and then poke Virginia in the chest, constituted abuse under the relevant statute. Consequently, the ALJ reversed the Department's substantiated finding of abuse.
The Department filed a petition for review of this order on May 14, 2008. While that appeal was pending, Parker's appeal challenging the Department's decision to terminate Debra's client service contract continued. On June 20, 2008,Parker filed a motion for summary judgment, contending that the Department's decision to deny his choice of Debra as his care provider was barred by res judicata. A hearing was held on this matter on July 17, 2008 before ALJ Ross.
On August 18, 2008, ALJ Ross granted Parker's motion for summary judgment. ALJ Ross noted that although the evidence about the February 8, 2007 incident would be the same type of evidence presented in this action, a new significant item of evidence could exist—an APS substantiated finding of abuse against Debra. But, in determining whether the APS substantiated finding of abuse was sufficient new evidence to defeat res judicata, ALJ Ross considered the fact that the APS finding had been reversed after a full administrative hearing. She concluded that the issue of whether Debra abused Virginia had been resolved in Debra's favor in Parker's appeal and collateral estoppel would bar the Department from injecting that issue into the proceedings unless and until ALJ Moore's order was reversed on appeal.
Shortly thereafter, on August 27, 2008, the Department's Board of Appeals affirmed ALJ Moore's initial order reversing the APS's substantiated finding of physical abuse against Debra. APS did not seek further review of this decision.
On January 4, 2010, roughly a year and a half later, APS received a report that Debra was mentally abusing Evelyn. At the time, Evelyn was 85 years old and her husband had recently passed away. The reporter stated that theconditions in the Koshelnik home were filthy, that Evelyn is confined to her room until Debra lets her out, and that Debra yells at Evelyn through sign language.
Consequently, the Department assigned Loren Juhnke to investigate. Juhnke went to the Koshelnik household unannounced with a female interpreter and told Debra that he needed to speak with Evelyn concerning the report of abuse. Debra told Juhnke that Evelyn was in an emotionally and physically fragile state and that any high stress contact would be frightening and dangerous to her. Juhnke informed Debra that he was going to interview Evelyn anyway. And, he did not allow Debra to remain in the room during...
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