Marcum v. Dep't of Soc. & Health Servs.

• Decision Date: 26 December 2012
• Docket Number: No. 42283–2–II.
• Citation: 290 P.3d 1045,172 Wash.App. 546
• Parties: Melinda MARCUM, Petitioner, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
• Court: Washington Court of Appeals

172 Wash.App. 546

290 P.3d 1045

Melinda MARCUM, Petitioner,

v.DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 42283–2–II.

Court of Appeals of Washington, Division 2.

Dec. 26, 2012.

Alberto Daniel Casas, Northwest Justice Project, Tacoma, WA, for Appellant.

Lucretia Fishburn Greer, Office of the Attorney General–Tacoma, Tacoma, WA, for Respondent.

QUINN–BRINTNALL, J.

¶ 1 On December 10, 2008, Melinda Marcum, the owner-operator of a Tacoma day-care center, accidentally left a two-year old child locked unattended inside her facility for 10 to 20 minutes.A complaint was filed and, following a brief investigation, the Department of Social and Health Services(DSHS) concluded that Marcum's oversight constituted negligent treatment of a child.Marcum unsuccessfully appealed this decision to DSHS for internal review, an administrative law judge (ALJ), DSHS's Board of Appeals(the Board), and Thurston County Superior Court.

¶ 2 Marcum now timely appeals to this court, arguing that (1) DSHS's interpretation of WAC 388–15–009(5) is arbitrary and capricious or falls outside the agency's statutory authority as applied in her case; and (2) the Board's final order affirming the neglect finding falls outside DSHS's authority or jurisdiction in violation of the Administrative Procedures Act(APA), ch. 34.05 RCW.Because the Board erred in failing to determine whether Marcum's actions showed “a serious disregard of consequences of such magnitude” that her actions created a “clear and present danger to [the unattended] child's health, welfare, or safety,” as required by the definition of “negligent treatment” in RCW 26.44.020(14), we vacate the negligence finding and remand to the Board for further proceedings.

FACTS

Background

¶ 3 Marcum owned and operated Prime Time Childcare LLC, a Tacoma day-care center.From 5:30 am to approximately 1:00 pm on December 10, 2008, she was the only person working at the day care.Despite having procedures in place intended to ensure constant supervision of the children in her care—such as using the “buddy system” and conducting frequent head counts—Marcum accidentally left a two-year-old child locked in the day-care facility for approximately 10 minutes that afternoon while she drove a few blocks away to pick up more children from a nearby Head Start program.

¶ 4 While Marcum and the other children were gone, a former employee, Tiffany Forrester, and Forrester's friend, Summer Rhodes, stopped at Prime Time so that Forrester could pick up a paycheck.As Forrester approached the building, she noticed two-year-old “John”¹ sitting just inside the locked door, wearing his winter coat.Forrester looked through the door's full-length glass window and did not see anyone else inside.She returned to her car, retrieved her set of keys to the day care, and told Rhodes that the child appeared to be locked inside alone.Forrester unlocked the door and, once inside, discovered that nobody else was present and that a plate of food had been left on a low table about 20 feet from where John was waiting.About two minutes later, Marcum returned in the van with the other children.

¶ 5 Forrester explained that because she had not been to Prime Time in a few months, the scene was chaotic when the children got out of the van: they ran to greet her and wanted to show her the Christmas tree they had decorated that morning.In the resulting excitement, Forrester forgot to tell Marcum that she had discovered John alone inside the building and Marcum did not realize that she had left him unsupervised until Child Protective Services (CPS) contacted her the next day.²Marcum did not believe the allegations at first but after speaking with Forrester, she accepted that she must have left John unsupervised for at least five minutes.

¶ 6 On December 31, CPS notified Marcum that it had made a founded finding of neglect.In light of this finding, the Department of Early Learning(DEL) concluded that Marcum was disqualified as a child-care worker and revoked Prime Time's child-care license.³After administrative review, DSHS upheld the finding of neglect on February 17, 2009.

Procedure

¶ 7 Marcum requested an administrative hearing on the neglect finding.On September 4, 2009, an ALJ issued an initial order upholding the DSHS neglect finding.Following this, Marcum filed a petition for review with the Board.On February 3, 2010, the Board issued its “Review Decision and Final Order.”After stating that “Marcum testified credibly, and was backed up by parents, that she has had numerous protocols and procedures in place to ensure that children are safe and secure at her facility” and that “[t]here is absolutely no evidence whatsoever that Ms. Marcum would ever mistreat or harm a child intentionally,” the Board affirmed the ALJ's initial order.Clerk's Papers(CP)at 23.The Board concluded that “[w]hen [Marcum] failed to provide adequate supervision necessary for [John's] health, welfare, or safety, [she] engaged in an act that is per se negligent treatment or maltreatment of a child.”CPat 30.

¶ 8 Marcum petitioned Thurston County Superior Court for judicial review of the Board's final order.The superior court affirmed the Board's final order on May 23, 2011.Marcum now timely appeals the neglect finding to this court.

DISCUSSION

Is WAC 388–15–009(5) an Interpretive Rule?

¶ 9 As a preliminary matter, we must decide whether WAC 388–15–009(5) is an interpretive rule or a legislative rule as this determination affects our standard of review.DSHS argues that WAC–388–15–009(5) is an interpretive rule and, accordingly, this court's review “is not into the validity of the rule but its ‘correctness or propriety’—i.e., whether it conflicts with the legislative intent underlying the statute it interprets.”Br. of Resp'tat 11(quotingAss'n of Wash. Bus. v. Dep't of Revenue,155 Wash.2d 430, 446, 120 P.3d 46(2005)).Marcum argues that the rule is legislative, at least as applied in her case, and, accordingly, our review should be de novo.Marcum is correct.We need not decide whether, on its face, WAC–388–15–009(5) is a legislative or interpretive rule.As applied to Marcum, the Board clearly treated the rule as a legislative rule.

¶ 10 The APA defines the terms “interpretive rule” and “significant legislative rule”:

(ii)An “interpretive rule” is a rule, the violation of which does not subject a person to a penalty or sanction, that sets forth the agency's interpretation of statutory provisions it administers.

(iii)A “significant legislative rule” is a rule other than a procedural or interpretive rule that (A) adopts substantive provisions of law pursuant to delegated legislative authority, the violation of which subjects a violator of such rule to a penalty or sanction; (B) establishes, alters, or revokes any qualification or standard for the issuance, suspension, or revocation of a license or permit; or (C) adopts a new, or makes significant amendments to, a policy or regulatory program.

RCW 34.05.328(5)(c).

¶ 11 As the Washington Supreme Court has explained,

Legislative rules must be consistent with the statutes[the administrative agency] is charged with administering and have the ‘same force and effect’ as the statutes themselves.Such rules clearly cannot be merely interpretive, which by definition means nonbinding in the sense that violating the rule does not result in sanctions.

Association of Wash. Bus.,155 Wash.2d at 438–39, 120 P.3d 46.

Technically, interpretive rules are not binding on the public.They serve merely as advance notice of the agency's position should a dispute arise and the matter result in litigation.The public cannot be penalized or sanctioned for breaking them.They are not binding on the courts and are afforded no deference other than the power of persuasion.Accuracy and logic are the only clout interpretive rules wield.If the public violates an interpretive rule that accurately reflects the Underlying statute, the public may be sanctioned and punished, not by authority of the rule, but by authority of the statute.

Ass'n of Wash. Bus.,155 Wash.2d at 447, 120 P.3d 46.

¶ 12 Here, the Washington Legislature has defined “negligent treatment” of a child as

an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child's health, welfare, or safety ..... When considering whether a clear and present danger exists, evidence of a parent's substance abuse, as a contributing factor to negligent treatment or maltreatment shall be given great weight.The fact that siblings share a bedroom is not, in and of itself, negligent treatment or maltreatment.Poverty, homelessness, or exposure to domestic violence ... that is perpetrated against someone other than the child does, not constitute negligent treatment or maltreatment in and of itself.

RCW 26.44.020(14)(emphasis added).

¶ 13 Although some overlap exists, DSHS's rule provides greater specificity:

(5) Negligent treatment or maltreatment means an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, on the part of a child's parent, legal custodian, guardian, or caregiver that shows a serious disregard of the consequences to the child of such magnitude that it creates a clear and present danger to the child's health, welfare, or safety.A child does not have to suffer actual damage or physical or emotional harm to be in circumstances which create a clear and present danger to the child's health, welfare, or safety.Negligent treatment or maltreatment includes, but is not limited, to:

(a) Failure to provide adequate food, shelter, clothing, supervision, or health care necessary for a child's health, welfare, or safety.Poverty and/or homelessness do not constitute negligent treatment or maltreatment in and of themselves;

(b) Actions,...