Growing Green Panda v. Dep't of Human Servs.

• Decision Date: 20 February 2020
• Docket Number: A164165
• Citation: 302 Or.App. 325,461 P.3d 1026
• Parties: GROWING GREEN PANDA, Petitioner, v. DEPARTMENT OF HUMAN SERVICES, Respondent.
• Court: Oregon Court of Appeals

302 Or.App. 325

461 P.3d 1026

GROWING GREEN PANDA, Petitioner,

v.DEPARTMENT OF HUMAN SERVICES, Respondent.

A164165

Court of Appeals of Oregon.

Submitted February 5, 2018.

February 20, 2020

Kevin O'Connell and Hagen O'Connell & Hval LLP filed the briefs for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.

DEHOOG, P. J.

Petitioner, a child-care provider for low-income families, seeks judicial review of a Department of Human Services (DHS) final order. In its order, DHS terminated petitioner's Employment Related Day Care (ERDC) subsidy payments after determining that petitioner had failed to comply with a condition of eligibility under OAR 461-165-0180 (7)(h)(A) (July 1, 2016).¹ DHS construed that rule to require petitioner to disclose that its principal and owner, Andrea Stephens-Bontemps, had been subject to an "arrest" after she voluntarily appeared in circuit court to be arraigned on an indictment and completed a court-ordered book-and-release process. On judicial review, petitioner argues that DHS misconstrued the term "arrest" as it appeared in the rule. DHS responds that its final order sets forth a plausible interpretation of its own regulation to which we must defer. We conclude that DHS's interpretation of its own rule is plausible. Accordingly, we affirm.

Under the Administrative Procedures Act, ORS 183.310 to 183.690, "[r]eview of a contested case shall be confined to the record, and the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion." ORS 183.482(7). Because, with one notable exception that we address below, petitioner does not dispute that the record supports DHS's factual findings, we accept the facts set out in DHS's final order and state them accordingly.

Stephens-Bontemps was petitioner's principal and owner and personally provided day care for children at petitioner's facility. Petitioner itself was listed as an eligible child-care provider with DHS and received ERDC subsidy payments from the Direct Pay Unit.² Due to her role within the business and her direct involvement with child care at petitioner's day-care center, Stephens-Bontemps qualified as an "individual" subject to certain reporting requirements under OAR 461-165-0180. Specifically, in the event of Stephens-Bontemps's arrest, petitioner would be required to report that arrest to the Direct Pay Unit within five days of its occurrence. See OAR 461-165-0180(7)(h)(A) ("Each provider must *** [r]eport to the [DHS] Direct Pay Unit within five days of occurrence: (A) Any arrest or conviction of any subject individual or individual described in *** this rule.") Stephens-Bontemps was aware of that reporting requirement.

On August 2, 2016, a Multnomah County grand jury indicted Stephens-Bontemps on charges of theft, forgery, conspiracy, and unlawfully obtaining public assistance. Stephens-Bontemps learned of the indictment the next day through one of her employees. In response, Stephens-Bontemps arranged through counsel to voluntarily appear for arraignment on the indictment in Multnomah County Circuit Court. On August 5, 2016, she voluntarily appeared in court as scheduled. At the conclusion of that appearance, Stephens-Bontemps entered into a "Release Order and Agreement," which included preprinted language requiring her to appear at all future hearings, obey all laws and court orders, not leave the State of Oregon without the court's permission, and comply with any other conditions imposed by the court in the agreement. The court added the following additional condition: "book and release TSI [ (Turn Self In) ] per MCSO [ (Multnomah County Sheriff's Office) ]." The book-and-release process required Stephens-Bontemps to be officially photographed and fingerprinted at the sheriff's office.

Following her arraignment, Stephens-Bontemps left the courtroom accompanied only by her husband and walked directly to the sheriff's office, where she notified the receptionist that she was there for booking. Stephens-Bontemps then waited in the lobby until her name was called. After she had been photographed and fingerprinted as directed, Stephens-Bontemps returned home with her husband. At no point was Stephens-Bontemps physically restrained, formally taken into custody, or told that she could not leave the sheriff's office. Instead, she could have left at any time. Stephens-Bontemps did not report to the Direct Pay Unit that she had been arrested.³

On August 31, 2016, DHS issued an amended suspension notice to petitioner through Stephens-Bontemps notifying her that, effective that same day, petitioner's business would no longer be eligible for subsidy payments due to its failure to notify the Direct Pay Unit of her arrest on August 5, 2016.⁴ Petitioner requested a contested hearing, and DHS referred the case to the Office of Administrative Hearings for an Administrative Law Judge (ALJ) to conduct a contested-case hearing.

In its final order, DHS reasoned that the payments should be terminated if the evidence demonstrated that Stephens-Bontemps had been arrested "in the context of the meaning of [that] term in OAR 461-165-0180(7)(h)." The final order provided DHS's understanding of that context:

"[DHS] interprets OAR 461-165-0180 and its use of the term ‘arrest’ in the context of its need to know whether an event has occurred that triggers a weighing test to review whether a provider should remain in approved status for ERDC clients ; in other words, whether a review should occur about the continuation of a provider of child care with public subsidy funds. * * * Not reporting an arrest as required interferes with the ability of [DHS] to promote the safety of children ."

(Emphases added.) DHS thus concluded that the release agreement, specifically the condition that Stephens-Bontemps be booked and released by turning herself in to the sheriff's office, triggered the reporting requirement of OAR 461-165-0180(7)(h)(A) "to assure provider review through the application of the weighing test."

DHS considered, but rejected, petitioner's assertion at the hearing that the definition of "arrest" in ORS 133.005 controlled the agency's analysis and established that Stephens-Bontemps had not been arrested. In that statute, which is part of the criminal code, the legislature has defined "arrest" as "to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense."⁵ ORS 133.005(1) ; see also id . (specifically excluding a "stop," as defined elsewhere, from the definition of arrest). DHS concluded that ORS 133.005 did not control, because that statute specifically provides that the definitions found there apply to the defined terms "[a]s used in ORS 133.005 to 133.400 and 133.410 to 133.450, unless the context requires otherwise." In DHS's view, a definition of "arrest" found in the criminal code could not provide context for its construction of an administrative notification requirement in its own rules, because that requirement was not a matter of criminal procedure. In any event, DHS concluded, even if the definition of "arrest" in ORS 133.005(1) and the case law construing that term somehow controlled, Stephens-Bontemps had been arrested, because the book-and-release process had had the effect of placing her in constructive restraint or custody.

In concluding that the case law supported its interpretation of "arrest," DHS purported to distinguish the facts of petitioner's case from those in various appellate decisions addressing restraint and custody in the criminal law context. For example, DHS acknowledged that, in State v. Davis , 360 Or. 201, 206, 377 P.3d 583 (2016), the Supreme Court defined constructive restraint in the context of ORS 162.145 (third-degree escape from custody) to occur "when an officer lawfully asserts authority to control a person's actions or freedom of movement, even if the officer does not have physical control of the person," which had not occurred in petitioner's case. (Emphasis added.) DHS concluded, however, that the Davis decision was "generally not relevant" to petitioner's case, because Davis involved an alleged escape from custody. DHS also distinguished another case, State v. Ford , 207 Or. App. 407, 410, 412, 142 P.3d 107 (2006), in which we concluded that the defendant—who had not been booked—had not been " ‘released from custody’ " for purposes of a related failure-to-appear charge. (quoting ORS 162.205(1)(a) ). According to DHS, Ford was readily distinguishable because, unlike the defendant in that case, Stephens-Bontemps was booked after her arraignment. The final order thus affirmed the suspension of petitioner's ERDC subsidy payments.

On judicial review, petitioner assigns error to DHS's interpretation of the term "arrest" in the final order. Specifically, petitioner argues that Stephens-Bontemps was not subject to an "arrest" as that term is defined under Oregon law, therefore the failure to report an arrest to the Direct Pay Unit could not have violated the requirements of OAR 461-165-0180.⁶ Petitioner maintains that ORS 133.005(1) sets forth the generally understood meaning of "arrest" under Oregon law, and that our decision in Ford demonstrates that Stephens-Bontemps was not arrested. Therefore, petitioner argues that we should construe OAR 461-165-0180(7)(h)(A) consistently with ORS 133.005(1) and Ford . With the rule correctly interpreted in that way, petitioner contends, there is no basis in law for DHS's conclusion that the rule required petitioner to report that Stephens-Bontemps had been arrested. Stated in terms of our standard of review, DHS's ruling terminating petitioner's ERDC subsidy payments is, petitioner argues, based upon an erroneous interpretation of OAR 461-165-0180, an...