Garcia v. Dep't of Soc. & Health Servs.
| Decision Date | 21 October 2019 |
| Docket Number | No. 79647-0-I,79647-0-I |
| Citation | 451 P.3d 1107 |
| Court | Washington Court of Appeals |
| Parties | Ana Liza GARCIA; Carmen Pacheco-Jones; and Natalya Semenenko, Appellants, Christine Nixon, Plaintiff, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, State of Washington, Respondent, Secretary of the Department of Social and Health Services, and Secretary of State, Defendants. |
Scott Crain, Northwest Justice Project, 401 2nd Ave. S., Ste. 407, Seattle, WA, 98104-3811, Meagan J. Mackenzie, Northwest Justice Project, 711 Capitol Way S., Ste. 704, Olympia, WA, 98501-1237, Jeffrey Keddie, Northwest Justice Project, 1338 Commerce Ave., Ste. 210, Longview, WA, 98632-3726, for Appellants.
Lauren Reaves Kirigin, WA State Office of the Attorney General, Po Box 40100, Olympia, WA, 98504-0100, Andrew Daniel Pugsley, Office of the Attorney General, 7141 Cleanwater Drive SW, Olympia, WA, 98504-0121, Charles M. McDonald, McDonald & Malone, P.o. Box 1672, Waco, TX, 76703-1672, for Respondent.
Sara Lyle Ainsworth, SIA Legal Team, 1517 12th Ave., Ste. 101, Seattle, WA, 98122-3956, Andrew J.D. Kashyap, Attorney at Law, 907 Pine St., Suite 500, Seattle, WA, 98101-1818, Elizabeth Simson Weinstein, Matthew Aaron Carvalho, Yarmuth LLP, 1420 5th Ave., Ste. 1400, Seattle, WA, 98101-3336, for Amicus Curiae on behalf of Legal Voice.
PUBLISHED OPINION
¶ 1 Ana Liza Garcia, Carmen Pacheco-Jones, and Natalya Semenenko (Appellants) contend the Department of Social and Health Services (DSHS) unfairly denied them the ability to work as caregivers to vulnerable adults. Under RCW 74.39A.056, these women are prohibited from being employed as long-term care workers because each has a disqualifying finding of child abuse or neglect. We therefore affirm the dismissal of their claims.
¶ 2 DSHS is the Washington state agency responsible for coordinating the care of individuals who, because of their economic, social, or health condition, require financial assistance, institutional care, rehabilitation services, or other social and health services. RCW 43.20A.010. It provides services to "functionally disabled" persons—defined as individuals who, because of a recognized chronic physical or mental condition or disease, are "dependent upon others for direct care, support, supervision, or monitoring to perform activities of daily living," including bathing, toileting, and dressing. RCW 74.39A.240, .009(23). DSHS administers programs for older adults through the Aging and Long-Term Support Administration (ALTSA), and for individuals with developmental disabilities through the Developmental Disabilities Administration (DDA). ALTSA and DDA hire people to provide intimate care for these vulnerable individuals, and there is little supervision or state oversight.
¶ 3 In 1997, the legislature passed the "Long-Term Care Reorganization and Standards of Care Reform Act," which banned individuals who committed the abuse or neglect of minors or vulnerable adults from employment in positions with unsupervised access to vulnerable adults:
No provider or staff, or prospective provider or staff, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry finding him or her guilty of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.
LAWS OF 1997, ch. 392, § 209(8) ().
¶ 4 In November 2011, the voters of Washington passed Initiative Measure 1163, requiring criminal background checks for all long-term care workers.1 LAWS OF 2012, ch. 1. Initiative 1163 required DSHS to perform background checks of all prospective "individual providers."2 RCW 74.39A.261. It also retained the employment ban instituted in 1997. LAWS OF 2012, ch. 1, § 106 (recodified as former RCW 74.39A.051 ). Then, in March 2012, the legislature amended and relocated the employment ban into what is now RCW 74.39A.056(2), with slightly modified language:
No provider, or its staff, or long-term care worker, or prospective provider or long-term care worker, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority or a court of law or entered into a state registry with a final substantiated finding of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.
LAWS OF 2012, ch. 164, § 503(2); see also LAWS OF 2012, ch. 164, § 701. The legislature added a provision requiring DSHS to establish by rule a state registry containing identifying information about long-term care workers who have abused or neglected a vulnerable adult. RCW 74.39A.056(3). The legislature authorized DSHS to adopt rules to implement all provisions of this statute. RCW 74.39A.056(4).
¶ 5 At all times relevant to this appeal, DSHS was also responsible, through the Children’s Administration and Child Protective Services (CPS), for investigating reports of child abuse or neglect under RCW 26.44.050.3 When DSHS receives a report of alleged child abuse or neglect, it screens the report to determine if it is credible. RCW 26.44.030(12), .020(24). A credible report is considered "screened in," at which time, DSHS then decides whether to conduct a "family assessment"4 or a formal investigation. RCW 26.44.030(12).
¶ 6 If DSHS chooses to respond with a family assessment, it will not make a finding as to whether child abuse or neglect occurred. RCW 26.44.030(18)(b). If, however, DSHS conducts an investigation, it assigns an investigator from CPS to determine whether a report of child abuse or neglect is "unfounded" or "founded." RCW 26.44.030(13)(a). An "unfounded" finding means that available information indicates that, more likely than not, child abuse or neglect did not occur, or that there is insufficient evidence for DSHS to determine whether the alleged child abuse did or did not occur. RCW 26.44.020(28). A "founded" finding is a determination that, based on available information, it is more likely than not that child abuse or neglect did occur. RCW 26.44.020(13).
¶ 7 DSHS is statutorily mandated to notify any parent of allegations of child abuse or neglect and of the agency’s finding at the conclusion of its investigation. RCW 26.44.100(2). DSHS must also notify the parent that founded reports of child abuse and neglect may be considered in determining whether the parent is disqualified from being licensed to provide childcare, employed by a licensed childcare agency, or authorized by DSHS to care for children. RCW 26.44.100(2)(c). Finally, it must notify the parent of his or her right to seek review of the finding. RCW 26.44.100(2)(d).
¶ 8 Before Congress passed the Child Abuse Prevention and Treatment Act5 (CAPTA) in 1997, there was no mechanism for challenging a CPS finding of child abuse or neglect. CAPTA conditioned federal funding for child welfare systems on, among other things, improving the evidentiary and investigatory standards applicable to child abuse and neglect findings. CAPTA also required states to implement laws to allow individuals to appeal any founded finding. 42 U.S.C. § 5106a(b)(2)(B)(xv)(II). Washington complied with CAPTA by October 1, 1998.
¶ 9 Since then, under RCW 26.44.125, any person named as an alleged perpetrator of child abuse or neglect after October 1, 1998, has the right to request agency review within 30 days of notification of a founded finding. If the alleged perpetrator fails to request review, he or she "may not further challenge the finding and shall have no right to agency review or to an adjudicative hearing or judicial review of the finding," unless DSHS failed to comply with the statutory notice requirements. RCW 26.44.125(3). If an individual requests a review, DSHS will assign a management level staff member to conduct the review and notify the person in writing of the agency’s determination. RCW 26.44.125(4). If the agency affirms the finding, the individual may seek an adjudicative hearing. RCW 26.44.125(5). Failing to request a hearing constitutes a waiver of the right to further agency or judicial review, id., and makes the finding "final," RCW 43.43.830(4).
¶ 10 If DSHS determines a parent has abused or neglected his or her child, it may choose to offer services to him or her to address the effects of any mistreatment or neglect. RCW 26.44.195(1). Alternatively, DSHS may initiate dependency proceedings in superior court under chapter 13.34 RCW. RCW 26.44.195(4). A dependency proceeding could result in a final court order in which the parent is found to have committed child abuse or neglect. See RCW 13.34.110 (), .030(6) ("dependent child" includes child who has been abused or neglected as defined in chapter 26.44 RCW). If a court finds by a preponderance of the evidence that a person has abused or neglected a child, DSHS "shall adopt the finding in its investigation." RCW 26.44.030(13)(b).
¶ 11 Under former RCW 26.44.070 (1987), DSHS maintained reported cases of child abuse in a "central registry," which was accessible by persons "directly responsible for the care and treatment of children ... pursuant to chapter 74.15 RCW; ...." Dunning v. Paccerelli, 63 Wash. App. 232, 234 & n.1, 818 P.2d 34 (1991) (alterations in original); see also Fettig v. Dep’t of Soc. & Health Servs., 49 Wash. App. 466, 467 n.1, 744 P.2d 349 (1987) (). This central registry was confidential...
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