Ryan v. State

• Decision Date: 25 October 2012
• Docket Number: No. 30458–2–III.,30458–2–III.
• Court: Washington Court of Appeals
• Parties: Kathryn RYAN, Appellant, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

171 Wash.App. 454

287 P.3d 629

Kathryn RYAN, Appellant,

v.STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 30458–2–III.

Court of Appeals of Washington, Division 3.

Oct. 25, 2012.

Jacquelyn M. High–Edward, Spokane, WA, Kelly Ann Owen, Northwest Justice Project, Bellingham, WA, for Appellant.

Shannon Clare Thomas, Attorney General's Office, Spokane, WA, for Respondent.

SIDDOWAY, A.C.J.

¶ 1 The adult protective services division of the Department of Social and Health Services investigated a complaint that Kathryn Ryan had verbally abused her mother. The investigator arrived at a substantiated finding of mental abuse. After Ms. Ryan failed to respond to notice of her right to a hearing, her name was added to a state registry of persons found to have abandoned, abused, financially exploited, or neglected a vulnerable adult. Upon learning many months later that her name was in the registry, Ms. Ryan requested a hearing, claiming she never received notice of the investigation or finding. Her attempted appeal was dismissed as untimely.

¶ 2 We hold that where, as here, the department knows that its residence address for an accused is incorrect, it does not satisfy the requirements of its notice regulations by mailing notice of its finding and appeal rights to that address. We reverse and remand to the board of appeals with directions to provide Ms. Ryan with a hearing.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Under the abuse of vulnerable adults act, chapter 74.34 RCW, the Department of Social and Health Services is required to investigate allegations of abandonment, abuse, exploitation, and neglect of vulnerable adults. RCW 74.34.063–.068.

¶ 4 In October 2009, the department received a report that Ms. Ryan had mentally abused her mother. An investigation by one of the department's adult protective services investigators produced evidence that Ms. Ryan had called her mother a “ ‘Bitch’ ” and threatened her by saying “ ‘something bad is going to happen to you’ ” after an argument. Administrative Record (AR) at 69.

¶ 5 In speaking with Ms. Ryan's mother in late October, the investigator learned that Ms. Ryan had lived with her mother for a long time but had moved out after the event that led to the report of abuse. Ms. Ryan's mother did not know where Ms. Ryan was living. When the investigator spoke with Ms. Ryan's mother again two days later, the mother still did not know where Ms. Ryan was living and did not know how to reach her. She did inform the investigator that Ms. Ryan was employed by Addus Healthcare, Inc. Following this second conversation, the investigator called a community health case manager for the mother, who reported that she, too, did not know where Ms. Ryan was, or how to reach her.

¶ 6 The investigator then called Addus. The investigator's notes, which were the evidence relied upon below for the department's further efforts to locate Ms. Ryan, include the following entries, suggesting that two telephone calls were made and one message was left in an effort to contact Ms. Ryan at her place of employment:

T/C [telephone call] to Addus where AP [alleged perpetrator] is employed.

Joyce reports no phone number on file to contact AP.

Joyce Bush, Assist Director, will call AP at the Ct's [client's] home where she is working and ask AP to call this writer.

Nessie from Addus called this writer to say she has a message phone number for AP [telephone number omitted].

This writer left AP a V/M [voicemail] on this number requesting a call back.

AR at 70.

¶ 7 In late November 2009, the department mailed a letter to inform Ms. Ryan of its substantiated finding that she had mentally abused a vulnerable adult. It addressed the letter to Ms. Ryan's mother's address, where it knew she was not living. It sent two copies of its notification letter—one by certified mail/return receipt requested and the other by regular mail. The letter stated that Ms. Ryan had 30 days to appeal the department's finding by requesting a hearing with the Office of Administrative Hearings.

¶ 8 The letter sent by certified mail was returned to the department in mid-December after the United States Postal Service made three unsuccessful attempts to deliver it. The envelope was marked “return to sender—unclaimed—unable to forward.” AR at 85. The letter sent by regular mail was not returned. The department made no further attempt to provide Ms. Ryan with notice of its finding.

¶ 9 Under department regulations, if an alleged perpetrator fails to respond to a finding of substantiated abuse, the finding becomes final. The principal consequence of finality under the regulations is that the perpetrator's name is added to a registry of final findings. The department may disclose the names of persons included in the registry to anyone, upon request. WAC 388–71–01280. Once final, inclusion in the registry is permanent. SeeWAC 388–71–01275(4) (a final finding “will remain as substantiated in the department's records unless the final finding is reversed after judicial review”). For someone like Ms. Ryan, who had worked as a caregiver for nine years, inclusion in the registry can result in the loss of employment and ineligibility for future employment that includes unsupervised access to vulnerable adults and children. See WACs 388–71–0540 (the department will deny payment for the services of a home care agency if the services are provided by an employee who has abused a vulnerable adult), –0551 (individual provider's contract may be summarily suspended for abuse, neglect, abandonment, or exploitation of a minor child or vulnerable adult).

¶ 10 Ms. Ryan claims that she did not find out about the department's finding until her employer learned she was on the registry nine months after her name was added, and suspended her as a result. She requested a hearing on August 23, 2010—approximately two weeks after she claims to have learned of the finding, but long after the department mailed the notice. The department responded with a motion to dismiss her attempted appeal for lack of subject matter jurisdiction, on the basis that her request for a hearing was untimely.

¶ 11 In what would prove a puzzling wrinkle, the return address that Ms. Ryan used in requesting a hearing was her mother's mailing address. While it was undisputed that Ms. Ryan was not living and could not be personally contacted at that address during the period when the department mailed notice of its finding, she testified in proceedings below that she had a key to her mother's mailbox, retained it after moving out, and regularly stopped by her mother's mailbox to pick up any mail to her that had been addressed to that location. She described the mailboxes for the mobile home park where her mother lived as located in a central location close to the road, away from the individual residences.

¶ 12 Ms. Ryan represented herself pro se in the administrative proceeding. In seeking relief from the department's finding, she did not contend that her mother's address was not a mailing address for her. She principally argued, by way of justification for her late request for a hearing, that it was an unreliable address, because mail to residents of the mobile home park was frequently delivered to the wrong mail boxes. She supported her contention with her own testimony and a letter that a neighbor of her mother had written to the United States Postal Service, complaining about misdelivery of mail at the mobile home park. She swore that she did not receive the mailed notice and claimed she would have timely responded if she had. The department's reply to Ms. Ryan's attempted justification was that “there is no good cause exception[,] if that's what Ms. Ryan is attempting to argue[,] for failing to adhere to the time limit.” Clerk's Papers at 17.

¶ 13 The Administrative Law Judge (ALJ) noted during the hearing that Ms. Ryan's written submissions pointed out that the investigator knew she was not living with her mother at the time the department mailed notice to her mother's address. The ALJ nonetheless concluded that the department had complied with regulatory notice requirements by making a reasonable, good faith effort to contact her. Finding Ms. Ryan's request for a hearing untimely, it dismissed her appeal. It did not address her evidence seeking to show good cause for her late request.

¶ 14 Ms. Ryan appealed the ALJ's initial order to the department's board of appeals. Continuing to represent herself pro se, she contested the dismissal in part on grounds that the department did not make a good faith effort to find her residential address. The board affirmed the ALJ's conclusion that the department demonstrated a reasonable good faith effort to locate Ms. Ryan. It also concluded that the 30–day time limit was jurisdictional and that it was powerless to entertain her evidence of excusable delay.

¶ 15 Ms. Ryan obtained counsel and petitioned for judicial review. The superior court affirmed. Ms. Ryan timely appealed.

ANALYSIS

¶ 16 Ms. Ryan identifies a number of alternative bases on which she contends we should reverse the judgment of the board. The department partially concedes one, agreeing on appeal that an alleged perpetrator's delay in requesting a hearing can be excused by the ALJ for good cause. SeeWAC 388–02–0020 (providing guidance on substantial reasons or legal justifications for failing to appear, act, or respond to an action).¹ We need not address that ground for reversal, however, because we find others to be dispositive. Given our construction of the department's regulations, the department did not present substantial evidence of compliance with the notice requirements of WAC 388–71–01210.

Standard of Review

¶ 17 The Washington Administrative Procedure Act, chapter 34.05 RCW, governs judicial review of agency action. Postema v. Pollution Control Hearings Bd., 142 Wash.2d 68, 76–77, 11 P.3d 726 (2000). We sit in the same position as the superior...