Lemay v. State, Dep't of Children, Youth, & Families

• Decision Date: 07 February 2023
• Docket Number: 56539-1-II
• Parties: ASHLEY LEMAY, Appellant, v. STATE OF WASHINGTON DEPARTMENT OF CHILDREN, YOUTH, AND FAMILIES. Respondent.
• Court: Washington Court of Appeals

ASHLEY LEMAY, Appellant, v. STATE OF WASHINGTON DEPARTMENT OF CHILDREN, YOUTH, AND FAMILIES. Respondent.

No. 56539-1-II

Court of Appeals of Washington, Division 2

February 7, 2023

UNPUBLISHED OPINION

Price J.

Ashley LeMay appeals an order by the Board of Appeals (Board) for the Department of Children, Youth, & Families (DCYF) affirming founded findings and a conclusion of physical abuse. LeMay argues that the Board committed errors of law. LeMay also argues the Board's order is not based on substantial evidence and is arbitrary or capricious. We affirm the Board's order.

FACTS

I. Background

On the morning of March 17, 2019, LeMay's sons, C.A. and K.A came into her bedroom asking for breakfast. At the time, C.A was eight years old, and K.A. was ten years old. LeMay asked the boys to pick a number between one and 100 to determine who would get breakfast first, and C.A. guessed closer to the correct number. K.A. yelled, went to his room, slammed the door, and threw things.

C.A went downstairs to eat breakfast, and LeMay went into K.A.'s room. LeMay was frustrated and told K.A. not to throw things or slam his door. LeMay was in K.A.'s room for around one minute. From where C.A. was eating breakfast, K.A.'s bedroom upstairs was not visible.

II. C.A.'s and K.A.'s Disclosures

The next day, C.A. went to school. C.A.'s classroom had a "sensory room" where students could go for a break from the classroom. C.A. went to the sensory room, and a volunteer, Carrie Taylor, thought that C.A. seemed nervous and upset.

Taylor asked C.A. what was going on and if he was okay. C.A. told Taylor that his brother, K.A., was sick. C.A. then stated that K.A was not really sick, but just did not want to come to school because he had scratches on his face and did not want to be asked questions or teased.

Taylor immediately reported C.A.'s statements to the school counselor, Jill Smith. Smith called Child Protective Services (CPS) to report C.A.'s statements, and Taylor relayed to CPS over the phone the disclosure made by C.A.

The following day, K.A. and C.A. both went to school. Jessica Chavez, a CPS employee, went to investigate the disclosures at K.A. and C.A.'s school. When Chavez spoke to K.A., she saw marks on K.A.'s face. K.A. told her that he got the marks when he fell out of a tree and into a bush.

Chavez also spoke to C.A. at the school the same day. C.A. said he saw LeMay go into K.A.'s room with a belt on the morning of March 17. C.A. stated that K.A. did not have marks on his face when he went into his bedroom, but had marks after LeMay left his bedroom.

At the school, while being observed by Taylor, K.A. and C.A. were talking together. The boys were sitting across from each other at a table, and Taylor heard K.A. say "You idiot. You idiot. You're not supposed to tell." Clerk's Papers (CP) at 651. As C.A. was crying, K.A. made statements like it was C.A.'s fault, it was "[C.A.] who had said something," and "[K.A.] didn't say anything." CP at 804. Later that day, Chavez took K.A. and C.A. to the CPS office and into protective custody.

At the CPS office, C.A. began recounting to Chavez the details of what happened on March 17 and made statements like "you have to be careful of what you say," "[o]therwise, I'll end up in a situation like this," and he would be "[t]aken away." CP at 807-08. Chavez then spoke to K.A. again. This time, K.A. changed his story and told Chavez that the marks on his face were from LeMay hitting him with a belt. K.A. said LeMay hit him on his head, butt, and feet while he laid in the fetal position, trying to keep from getting hit. K.A. stated that after being hit, he was not able to walk and had ringing in his head.

On March 21, K.A. underwent a forensic interview at a children's hospital. K.A. said LeMay had hit him with a belt, the same version of the story he told Chavez at the CPS office.

III. Administrative Proceedings

One week later, the Department of Social and Health Services issued founded findings that LeMay physically abused K.A. LeMay sought agency review of the founded findings, but the decision was upheld by an area administrator.

LeMay requested an administrative hearing with DCYF. During a prehearing conference, the administrative law judge (ALJ) found that there were compelling reasons for K.A. to testify, but none of the attorneys indicated they intended to call C.A. as a witness.

The administrative hearing took place on October 19, 2020. During the hearing, K.A. testified that he promised to be truthful. K.A. changed his story again, denying that LeMay hit him with a belt and saying he made it up.

C.A. was not called as a witness. However, Taylor and Chavez testified about the events of March 18 through 20, 2019, including recounting C.A.'s disclosures to them that LeMay hit K.A. with a belt.

Family members of K.A. and C.A. testified at the hearing. The family witnesses stated that C.A. was generally truthful but that K.A. had a reputation for not telling the truth.

In December 2020, the ALJ affirmed the founded findings in an initial order. Just over two months later, the DCYF Board's chief review judge agreed with the ALJ's initial order and affirmed the founded findings and conclusions in a review decision and final order (Board's order).

The Board's order included the following findings of fact:

4.22 Afterwards, Ms. Chavez spoke with [K.A.]. She told him to not be worried, and that sometimes kids' parents make mistakes and it is her job to help them find a better way to discipline their children. [K.A.] then disclosed to her a very different version of events than the one he provided at school. The new version of events matched what [C.A.] had shared, with the addition of what happened once his mother reached his room. He stated that he got up early, before his brother, and that his brother usually gets to eat breakfast first. [K.A.] and [C.A.] had to choose a number between 1 and 100, and [C.A.] guessed the closer number. [K.A.] then stomped off to his bedroom and slammed the door. His mother then arrived to his room with a belt in her hand and closed the blinds. [K.A.] went to a corner of his room, and his mother hit him on his head, behind, and feet with the belt loop. [K.A.] said he was curled up on the ground trying to keep from getting hit. He said he wasn't able to walk as well afterward, and he had ringing in his ears.

. . . .

4.24 Like the ALJ, the undersigned Review Judge notes that there does not seem to have been a point from the time the children left the school to the time [K.A.] disclosed abuse to Ms. Chavez, when the children were left alone to consult with each other and make any kind of effort to match their stories.

. . . .

4.38 No party or witness has alleged that [C.A.] has a problem with truthfulness. All parties and witnesses who spoke on the matter seem to find that [C.A.] is generally a truthful child.

. . . .

4.47 This case began, not due to any statement made by [K.A.], but by a statement made by his brother, [C.A.]. [C.A.] has been described by all parties to be truthful and a generally better-behaved child. Additionally, [C.A.] made his disclosure to Ms. Taylor, and not to Ms. Smith, whom the Appellant suspects of having a bias against her. In fact, any decision with regard to the veracity of the events in question that the undersigned Review Judge makes in this matter, is not based upon any statement made by Ms. Smith, who seems to have almost no first-hand knowledge of the statements made by the children or the events in question.

4.48 At no point after the investigation began, does it appear that [C.A.] and [K.A.] had enough time, or any time, to coordinate, or even discuss, their versions of the events in question. Despite this, once removed from the school environment, and from their parents' care, [K.A.]'s story changed to match [C.A.]'s in striking similarity, with the added details of what actually occurred once [K.A.]'s mother entered his room.

. . . .

4.50 Therefore, like the ALJ, the undersigned Review Judge finds that [K.A.]'s statements to Ms. Chavez at the CPS office and during the forensic interview are the most credible statements in this matter, because they most closely match and complement [C.A.]'s statements to Ms. Taylor and later to Ms. Chavez.

CP at 17-18, 21-23 (footnotes omitted).

The Board's order also included the following conclusions of law:

5.4 Hearsay is a statement made outside of the hearing used to prove the truth of what is in the statement. Hearsay evidence is admissible if it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their own affairs. Although findings may be based on such evidence even if it would be inadmissible in a civil trial, the presiding officer shall not base a finding exclusively on such inadmissible evidence unless the presiding officer determines that doing so would not unduly abridge the parties' opportunities to confront the witnesses and rebut the evidence.

5.5 Here, in addition to the exhibits, the parties' witnesses offered live testimony. [K.A.] was also given the opportunity to provide testimony. The Appellant had an opportunity to cross-examine all of the witnesses and present her own evidence in rebuttal. No party requested to have [C.A.] provide testimony, though he made the original allegation.

5.6 Though [C.A.]'s disclosure of the abuse of his brother is, in fact, hearsay, it is the kind of disclosure that reasonably prudent persons are accustomed to rely on in the conduct of their own affairs, in that it was spontaneous and provided to a non-interested third party, and made by a child known to be truthful, and who is, himself, essentially a third party who had no known reason to be untruthful.

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