Crosswhite v. Wash. State Dep't of Soc. & Health Servs.

• Decision Date: 17 January 2017
• Docket Number: No. 33718-9-III,33718-9-III
• Citation: 389 P.3d 731,197 Wash.App. 539
• Court: Washington Court of Appeals
• Parties: Verda Lee CROSSWHITE, Appellant, v. WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

197 Wash.App. 539

389 P.3d 731

Verda Lee CROSSWHITE, Appellant,

v.WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 33718-9-III

Court of Appeals of Washington, Division 3.

January 17, 2017

Elisabeth Michelle Tutsch, Northwest Justice Project, 311 N. 4th St., Ste. 201, Yakima, WA, 98901-2467, Jacquelyn M. High-Edward, Northwest Justice Project, 1702 W. Broadway Ave., Spokane, WA, 99201-1818, for Appellant.

William McGinty, Washington State AGO, P.O. Box 40124, 7141 Cleanwater Dr. S.W., Olympia, WA, 98504-0124, for Respondent.

Siddoway, J.¶1 Verda Crosswhite appeals a final order of the Department of Social and Health Services affirming as "substantiated" a finding that she mentally abused a vulnerable adult. Clerk's Paper's (CP) at 4. A threshold issue is whether a Department regulation asserts broader agency authority to find abuse than was intended by the legislature. We hold that it does, and that the Department has misinterpreted the law and exceeded its authority.

¶2 Ms. Crosswhite also challenges some of the review judge's findings of fact, and because the review judge reached a conclusion opposite of that of the administrative law judge (ALJ), our review is slightly less deferential than it would be otherwise. Properly construed, the statutory definition of "abuse" was not met by the Department's evidence, which failed to demonstrate that Ms. Crosswhite's actions knowingly inflicted injury, unreasonable confinement, intimidation, or punishment. We reverse the Department's finding of abuse.

¶3 We also grant Ms. Crosswhite's motion to strike a statement of additional authorities that cites to an unpublished decision of this court without including what we hold is a needed caveat. We take this opportunity to announce that when citing to unpublished opinions under GR 14.1, either in this court or in the trial court, a party must do more than simply identify the opinion as unpublished. The party must point out that the decision has no precedential value, is not binding on any court, and is cited only for such persuasive value as the court deems appropriate. The party should also cite GR 14.1.

FACTS AND PROCEDURAL BACKGROUND

¶4 In August 2013, the Department of Social and Health Services received a report that Verda Crosswhite, who had worked as a personal caregiver for 26 years, had mentally abused a vulnerable adult. The alleged victim was a woman named Jodi,¹ who had hired Ms. Crosswhite as a personal caregiver about six to eight weeks before the altercation that led to the report. By the time of the report, Jodi had already fired Ms. Crosswhite.

¶5 Unlike most of Ms. Crosswhite's clients, Jodi is not elderly. The record does not reveal how old she is, but Ms. Crosswhite described her as "young" and as "about my age." CP at 72, 94. Jodi was categorized as a vulnerable adult by the Department because she was receiving in home services from a licensed agency. Jodi has diabetes, COPD,² arthritis and a number of related physical limitations. She is confined to a wheelchair, and needs extensive assistance with most of her activities of daily living. Ms. Crosswhite's duties "included meal preparation, shopping, housework, personal hygiene, assisting in bathing, foot care, medication management, and taking Jodi to doctor's appointments." CP at 213.

¶6 Under the "Abuse of Vulnerable Adults Act," chapter 74.34 RCW, the Department is required to investigate reports of abuse of a vulnerable adult. RCW 74.34.063(1), .067. It assigned this investigation to Rebecca Withrow, a social worker with its Adult Protective Services program. If the Department substantiates a report and its "substantiated" finding becomes final, it must place the reported abuser's name on a state registry. WAC 388–71–01280. A final "substantiated" finding may be professionally disqualifying for the abuser, since state law prevents such individuals from being employed in a position or holding a license that involves the care of vulnerable adults or children or from working or volunteering in a position giving them unsupervised access to vulnerable adults or children. RCW 74.39A.056(2) ; WAC 388–76–10120(3) -10180(1) ; RCW 26.44.100(2)(c), .125(2)(e); WAC 388–06A–0110.

¶7 The report of mental abuse by Ms. Crosswhite was that she yelled at Jodi in the waiting room of a doctor's office following an appointment that took place on August 1, 2013. Ms. Crosswhite loudly demanded to know whether Jodi told her doctor about her health-threatening eating habits and abuse of pain medication. The incident was reported by Susi Munoz, who is employed by the Department and is Jodi's case manager. According to Department records, Ms. Munoz reported that both Jodi and Ms. Crosswhite called her on August 1, shortly after the altercation. Both were crying. Jodi initially wanted to fire Ms. Crosswhite but decided to think about it over the weekend. Ms. Crosswhite expressed concern about Jodi's self-neglect and her untruthfulness with her doctors.

¶8 Three employees of the doctor's office confirmed to Ms. Withrow that the altercation took place and that one of the employees, Guille Gonzalez, a medical assistant, told Ms. Crosswhite to stop. The altercation embarrassed and upset Jodi, who was reduced to tears in the waiting room, where patients were present in addition to staff. On leaving the office, Jodi and Ms. Crosswhite remained outside for a while because Jodi wanted to smoke a couple of cigarettes before Ms. Crosswhite took her home. She continued to cry outside. We describe the facts further in discussing Ms. Crosswhite's substantial evidence challenge in section II of our analysis.

¶9 At the conclusion of Ms. Withrow's investigation, she found the report of abuse to be substantiated. Ms. Crosswhite appealed.

¶10 The ALJ who heard the appeal reversed Ms. Withrow's determination, finding that while Ms. Crosswhite acted inappropriately in yelling at Jodi, she did so out of concern for her health, had Jodi's best interest in mind, and that the Department failed to show that Ms. Crosswhite's actions willfully caused injury, unreasonable confinement, intimidation, or punishment, as required to constitute abuse.

¶11 The Department appealed. Following a full review of the record, the review judge affirmed the Department's finding. It dispensed with the ALJ's findings about Ms. Crosswhite's concerns, motives and intent. Applying Department regulations that interpret and reframe certain provisions of the Abuse of Vulnerable Adults Act, the review judge concluded that the ALJ misapplied the law.

¶12 Ms. Crosswhite appeals.

ANALYSIS

¶13 Washington's Administrative Procedure Act, chapter 34.05 RCW (APA) governs judicial review of an agency action. Alpha Kappa Lambda Fraternity v. Wash. State Univ., 152 Wash.App. 401, 413, 216 P.3d 451 (2009). Of nine statutory bases on which an agency order can be reversed, Ms. Crosswhite argues that three apply: (1) the Department's final order is outside its statutory authority because it relies on an improperly broadened definition of the statutory term "abuse", (2) the Department erroneously interpreted and applied that statutory term, and (3) substantial evidence does not support the finding that Ms. Crosswhite's conduct met the statutory definition of abuse. Br. of Appellant at 2; RCW 34.05.570(3)(b), (d) and (e).

¶14 Consistent with RCW 34.05.464, the Department provides by rule that the decision of an ALJ in an appeal from a substantiated finding of abuse of a vulnerable adult is an initial order, subject to review by a reviewing officer. WAC 388–02–0217(3). The APA provides that a reviewing officer generally exercises "all the decision-making power that the reviewing officer would have had to decide and enter the final order [that] the reviewing officer presided over the hearing." RCW 34.05.464(4). This is subject to the proviso that "[i]n reviewing findings of fact by presiding officers, the reviewing officers shall give due regard to the presiding officer's opportunity to observe the witnesses." Id.

¶15 We review the review judge's final order, not the initial order entered by the ALJ. Where the ALJ and the review officer enter contradictory findings, we do not accord the deference to the ALJ that we would accord to the trier of fact in a nonadministrative matter, because the review officer has broad decision-making authority and is intended to bring the agency's expertise to bear. As discussed further below, however, the review judge may commit an error of law if he or she fails to give due regard to findings of the ALJ that are informed by the ALJ's ability to observe the witnesses.

¶16 We review agency action from the same position as the superior court, and review the administrative record rather than the superior court's findings or conclusions. Edelman v. State, 160 Wash.App. 294, 303, 248 P.3d 581 (2011). Findings of fact from the agency's final order are reviewed under the substantial evidence test and will be upheld if supported by a sufficient quantity of evidence to persuade a fair-minded person of the order's truth or correctness. Raven v. Dep't of Soc. & Health Servs., 177 Wash.2d 804, 817, 306 P.3d 920 (2013).

¶17 The APA's directive that we review whether an order is supported "by evidence that is substantial when viewed in light of the whole record before the court" requires us to look beyond whether there is merely some evidence that supports the agency order. RCW 34.05.570(3)(e) (emphasis added). As the United States Supreme Court observed in construing like language in the federal administrative procedure act, "The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement ... [in APA § 706] that courts consider the whole record." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). "[E]vidence in support of an agency finding must be sufficient to...