Pathfinder House Adult Family Home v. State

PATHFINDER HOUSE ADULT FAMILY HOME; NANCY MEYER; TIMOTHY MEYER; and KERRI BROOKS, Appellants, v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 72435-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 24, 2014

UNPUBLISHED

COX, J. — Pathfinder House Adult Family Home, Nancy Meyer, Tim Meyer, and Kerri Brooks (collectively "Pathfinder House") appeals the superior court's order on judicial review. The order affirms the Review Decision and Final Order of March 30, 2012 of the Department of Social and Health Services Board of Appeals. That review decision and final order reverses the initial decision of the administrative law judge and affirms the decisions of DSHS to issue its Summary Suspension, License Revocation, and Stop Placement Order Prohibiting Admissions regarding Pathfinder House Adult Family Home and to issue findings of neglect and abuse against the Meyers and Brooks individually. Because Pathfinder House fails in its burden to show that the review decision and final order is invalid, we affirm.

In 2005, Nancy Meyer obtained a license to operate Pathfinder House Adult Family Home in Bow, Washington. She lived in the home with her husband Tim Meyer and their adult son Tommy. Tommy has Down syndrome.

In February 2009, five developmentally disabled residents lived at the home, including one resident named Tyler. The residents lived in the basement, and the Meyers and Kerri Brooks, a caregiver at the home, lived upstairs.

On February 23, the incident at the center of this case took place. One resident came upstairs from the basement and told Brooks that something inappropriate was or had been going on downstairs between Tyler and Tommy. Specifically, Tyler had allegedly rubbed his private parts against Tommy either while they were dancing or under other circumstances, in a manner that could be described as "dry humping" or mock intercourse. The contact did not appear to involve any touching with the hands or any skin-to-skin contact.

Neither Tim Meyer nor Brooks reported this incident to DSHS's hotline, to anyone who worked either for DSHS or with the residents, or to law enforcement. Nancy Meyer, who had been out of town, learned of the incident when she returned on February 27. She did not report the incident to the DSHS hotline, to Adult Protective Services (APS), or to law enforcement at that time. Instead, she responded by keeping Tommy upstairs when Tyler was home and by scheduling an appointment for Tyler with a community mental health agency.

Following Tyler's appointment at the agency, a therapist reported the incident to APS, which forwarded the report to DSHS Residential Care Services. Law enforcement began an investigation, and Residential Care Servicesconducted an adult family home licensing investigation. DSHS found violations of four adult family home licensing regulations as a result of its investigation.

On May 7, DSHS served Nancy Meyer with a Notice of Summary Suspension, License Revocation, and Stop Placement Order Prohibiting Admissions. Nancy Meyer requested an administrative hearing to contest the enforcement action.

Additionally, after reports of verbal abuse and neglect, DSHS's Resident and Client Protection Program began its own investigation of the individuals working at Pathfinder House Adult Family Home. On October 1, DSHS issued Notice of Preliminary Finding letters to Nancy Meyer, Tim Meyer, and Kerri Brooks based on this investigation. DSHS found that that each of them had neglected vulnerable adults, and it also found that Brooks had abused vulnerable adults. They each requested an administrative hearing to contest DSHS's findings against them.

An ALJ consolidated the enforcement matter with the three resident and client protection matters. These consolidated matters were heard over the course of nine days in 2010. In the Initial Order dated February 4, 2011, the ALJ reversed the revocation of the adult home license and also overturned the findings of neglect and abuse.

DSHS petitioned for review of the initial order. Pathfinder House did not seek cross-review. The Board of Appeals review judge reversed the initial order in the review decision and final order. The review judge affirmed the revocation of the adult home license and reinstated the findings of abuse and neglect.

Pathfinder House petitioned for review by the superior court. The superior court affirmed the review decision and final order.

Pathfinder House appeals.

SCOPE OF REVIEW

As an initial matter, DSHS argues that this court should disregard most of Pathfinder House's assignments of error. Because Pathfinder House failed to raise in the trial court most of the 190 assignments of error it makes in this appeal, we limit our review to assignments of error 180 to 190. We decline to address the other assignments.

Under RAP 2.5(a), an "appellate court may refuse to review any claim of error which was not raised in the trial court," subject to certain limited exceptions that do not apply here. "The rule reflects a policy of encouraging the efficient use of judicial resources."¹ It provides an opportunity to the lower tribunal to correct errors and avoid an appeal.²

Here, the superior court expressly determined that, while findings of fact 60 and 61 of the review decision and final order were implicitly challenged, "No other findings were challenged."³ Our review of the record confirms that determination.

Here, only assignments of error 180 to 190 in Pathfinder House's opening brief in this appeal relate to findings of fact 60 and 61 of the review decision andfinal order. The remaining assignments of error, 1 to 179, relate to findings of fact that were not challenged below. Thus, they are not properly before this court.

Pathfinder House argues that there are "no rules that apply to judicial appeals from administrative orders" and that the cases cited by DSHS "are inapplicable because they are not cases of appeal to superior court." But Pathfinder House fails to provide any authority that this difference in the procedural posture matters. Moreover, although the superior court was sitting in an appellate capacity, the principle of RAP 2.5 is the same. It promotes judicial economy. For these reasons, we reject this argument.

Pathfinder House also argues that it did object to these findings of fact at the superior court. For support, it cites to its reply brief in the superior court. This misses the mark for two reasons. First, in this reply brief, Pathfinder House expressly conceded that its opening trial brief did "not identify specifically challenged findings of fact."⁴ Second, the objections made in the reply brief were both too late and unsupported by argument. Pathfinder House merely attached a list of challenged findings and stated that "virtually all of [them] flow from the reviewing officer's credibility determination in FF 60-61 ."⁵ For these reasons, we also reject this argument.

RCW 34.05.570—JUDICIAL REVIEW

Pathfinder House argues that the review decision and final order is invalid. Because Pathfinder House fails in its burden to show that the review decision and final order is invalid for any reason, we disagree.

This court's review of an agency action is governed by the Administrative Procedure Act (APA), chapter 34.05 RCW.⁶ This court reviews the review judge's final order, not the ALJ's decision or the superior court's order.⁷ We review the record before the agency.⁸

This court reviews de novo conclusions of law.⁹ We review factual determinations from a final administrative decision under the substantial evidence standard.¹⁰ Unchallenged findings are verities on appeal.¹¹

RCW 34.05.570(3) provides the specific grounds for which a reviewing court may reverse an administrative decision. The party seeking relief bears the burden of demonstrating the invalidity of the agency action.¹²

We note that Pathfinder House fails, with a limited exception in its reply brief, to specify in its briefing to this court which of the subsections of RCW 34.05.570(3) are at issue. It sought to cure this defect in response to questioning at oral argument. Specifically, it identified subsections (c), (d), (e), and (i) as the legal bases for its arguments. Moreover, it admitted that its arguments overlap in these subsections. With these clarifications in mind, we address these overlapping arguments.

RCW 34.05.570(3)(d) - Erroneous Interpretation of the Law

Pathfinder House argues that relief is warranted because the review judge "confuse[d] the standard under which the initial order [was] to be reviewed" and because the review judge "improperly limited the scope of her review." We disagree with both arguments.

Under RCW 34.05.570(3)(d), the court shall grant relief from an agency order if the agency has erroneously interpreted or applied the law.

First, Pathfinder House argues that the review judge confused the standard of review. Specifically, it contends that the review judge relied on a former version of WAC 388-02-0600 and did not conduct a de novo review.

WAC 388-02-0600(1) and RCW 34.05.464(4) discuss the authority of the review judge.

WAC 388-02-0600(1) provides:

The review judge has the same decision-making authority as the ALJ. The review judge considers the entire record and decides the case de novo (anew). In reviewing findings of fact, the review judge must give due regard to the ALJ's opportunity to observe witnesses.

RCW 34.05.464(4) provides:

The reviewing officer shall exercise all the decision-making power that the reviewing officer would have had to decide and enter the final order had the reviewing officer presided over the hearing, except to the extent that the issues subject to review are limited by a provision of law or by the reviewing officer upon notice to all the parties. In reviewing findings of fact by presiding officers, the reviewing officers shall give due regard to the presiding officer's opportunity to observe the witnesses.

Here, the review...