Rios-Garcia v. Wash. State Dep't of Soc. & Health Servs.

493 P.3d 143

Tomas RIOS-GARCIA, an individual, Appellant,

v.WASHINGTON STATE DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondent.

No. 37507-2-III

Court of Appeals of Washington, Division 3.

FILED AUGUST 10, 2021

Kenneth James Miller, Andrew Chase, Miller & Chase, PLLC, Po Box 978, Okanogan, WA, 98840-0978, for Appellant(s).

Tomas S. Caballero, Office of the Attorney General of Washington, 139 S. Worthen St., Ste. 100, Wenatchee, WA, 98801-3890, for Respondent(s).

PUBLISHED OPINION

Siddoway, J. ¶ 1 Tomas Rios-Garcia timely mailed a request that the Department of Social and Health Services internally review its employee's determination that an allegation of child abuse or neglect against him was "Founded." The Department did not receive the mailed request. At issue is whether a 30-day time frame for requesting review provided by RCW 26.44.125 and a differently-worded department regulation require the request to be mailed , or require it to be received , within 30 days.

¶ 2 We hold that the plain language of the statute requires mailing within the time frame, as does a reasonable reading of the ambiguous regulation. We reverse the superior court and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Prefatory note: The respondent on appeal is the Department of Social and Health Services, based on a determination it made weeks before its authority as the "department" responsible under chapter 26.44 RCW was transferred to the Department of Children, Youth and Families. RCW 43.216.906. Because the statutes and regulations we address have continuing application, we use the term "Department" to refer interchangeably to the Department of Social and Health Services as the party at all times to this proceeding and as the department responsible under chapter 26.44 RCW before July 1, 2018, as well as to the Department of Children, Youth and Families as the department responsible under chapter 26.44 RCW after July 1, 2018.

¶ 4 Child Protective Services (CPS) learned in early 2018 that a victim of suspected child abuse or neglect by Tomas Rios-Garcia had recanted and his criminal prosecution had been dismissed. Clerk's Papers (CP) at 15. CPS had received and accepted the original report of abuse and proceeded to complete its own investigation. Despite the alleged victim's recantation, CPS determined that the allegation of abuse was Founded. CP at 104.¹ As required by statute, it sent a letter to Mr. Rios-Garcia by certified mail notifying him of its finding. He received it on April 23, 2018.

¶ 5 The letter provided information about Mr. Rios-Garcia's rights, including his right "to ask for a review by CA of a Founded finding(s) of child abuse or neglect against you." CP at 105. "CA" was identified by the letter as Children's Administration of the Department.²

¶ 6 The letter addressed the procedure for requesting review of CPS's Founded finding. We highlight language that relates to the issues on appeal:

1. You must send a written request for a review to CA. To do this you must:

• Use the form attached to this letter to ask for a review, and

• Send your written request to the address identified on the attached form.

2. CA must receive your written request for a review within 30 calendar days from the date you receive this letter. If CA does not receive the request within 30 calendar days of the date you receive this letter, you will have no further right to challenge the CPS findings.

CP at 105-06 (emphasis added). Given the 30 days within which CA "must receive" the written request according to the letter, it was required to be received by May 23, 2018.

¶ 7 Mr. Rios-Garcia signed the required review request form on May 4, 2018. The office manager for Mr. Rios-Garcia's lawyer's firm placed the request in the mail and faxed it to the Department the same day.

¶ 8 The letter Mr. Rios-Garcia had received informed him that in the event he requested review, "the CA Area Administrator will send you a letter with the results of the review in about 60 days." CP at 106. In late June, when no report of the results had been received, Mr. Rios-Garcia's law firm contacted the Department. Department staff informed the law firm that Mr. Rios-Garcia's case was not eligible for review because the Department had not received a letter requesting review within the 30-day time limit. When e-mail correspondence between the Department and the law firm made clear that Mr. Rios-Garcia contended he had timely requested review, the Department treated the correspondence as a late request. In a letter sent on July 18, 2018, it informed Mr. Rios-Garcia that he had the right to challenge the Department's determination by requesting an administrative hearing.

¶ 9 Mr. Rios-Garcia requested an administrative hearing, disputing the Department's position that he had not timely requested internal review as well as its Founded finding. He submitted declarations from the office manager and a second employee of his lawyer's firm attesting that his request for review was mailed and faxed to the Department on May 4, 2018.

¶ 10 The Department moved to dismiss Mr. Rios-Garcia's administrative appeal for lack of jurisdiction, based on his alleged failure to comply with a statutory and regulatory requirement that he request review within 30 days. In responding to the motion, Mr. Rios-Garcia provided a further declaration from his lawyer, who explained why a recent failure of the fax machine used to fax the request on May 4 made it impossible to produce a record of the transmission.

¶ 11 Following a telephonic hearing on the Department's motion to dismiss, the administrative law judge (ALJ) entered an initial order finding that Mr. Rios-Garcia received the Department's letter notifying him of its Founded finding on April 23, 2018; the letter notified him he could request review of the finding by a request to the Department within 30 days of his receipt of the letter; and, most materially:

4.3 The Appellant through his attorney mailed a request for internal review on May 4, 2018. He also sent a fax to the Department the same day.

4.4 The Department has no record of receiving either the letter mailed or the fax.

CP at 58.

¶ 12 The ALJ found that only one issue was in dispute: "Whether the law requires that the request for appeal be received within 30 days of receipt of the founded finding or if it is sufficient that it was sent by being placed in the mail or faxed within the 30 days." CP at 58.

¶ 13 The ALJ observed that under WAC 388-02-0220, if a Department rule addresses a question presented for administrative review, the ALJ is bound to apply the rule.³ It identified WAC 110-30-0230⁴ as applying and requiring that a request for review be "provided to" the Department within 30 days. CP at 58. It recognized that RCW 26.44.125 did not use the same language and "does not seem to require actual receipt." CP at 58. Nonetheless, the ALJ concluded that WAC 110-30-0230 "appears clearly to require receipt" and Mr. Rios-Garcia presented no evidence of receipt. CP at 59. The ALJ granted the motion to dismiss the appeal, observing that "[i]f the Department exceeded their authority under the RCW by requiring actual receipt in the WAC is for the courts to decide." CP at 59.

¶ 14 Mr. Rios-Garcia petitioned for review by the Department's board of appeals (the Board). In a review decision and final order affirming the initial order, the review judge for the Board determined that the findings of fact in the initial order were insufficient and modified them. The key modified findings state:

4. The Appellant's attorney mailed a request for internal review to the Department on May 4, 2018. The Appellant alleges that his attorney also faxed the request for internal review to the Department the same day.

5. The Department did not receive either the May 4, 2018, mailed request for internal review, or the May 4, 2018, faxed request for internal review.

6. The Department received a request for internal review from the Appellant on July 18, 2018.

CP at 45.

¶ 15 The review judge's conclusions of law pointed out that it, like that ALJ, was required by WAC 388-02-0220 to decide an issue on appeal under Department rules, if they apply. It determined that the conclusions of law in the initial order were sufficient and adopted them, adding that "an alleged perpetrator must provide ... their request for review ... within thirty (30) calendar days after receiving notice of the finding." CP at 48 (citing WAC 388-15-085 ).

¶ 16 Mr. Rios-Garcia sought judicial review. The superior court affirmed the decision of the Board. Mr. Rios-Garcia appeals.

ANALYSIS

Standard of Review

¶ 17 The Administrative Procedure Act (APA), chapter 34.05 RCW, governs judicial review of final agency action. RCW 34.05.510 ; Conway v. Dep't of Soc. & Health Servs. , 131 Wash. App. 406, 414, 120 P.3d 130 (2005). RCW 34.05.570(3) sets forth nine grounds on which relief can be granted from an agency order in an adjudicative proceeding. The assignments of error raised and briefed by Mr. Rios-Garcia amount, in substance, to a claim that "[t]he agency has erroneously interpreted or applied the law," reviewable under RCW 34.05.570(3)(d).⁵ His contention that WAC 110-30-0230 might be invalid is reviewable under RCW 34.05.570(2)(a).

¶ 18 We look to the administrative record, not the superior court's findings or conclusions, when conducting judicial review of an agency decision. Edelman v. State , 160 Wash. App. 294, 303, 248 P.3d 581 (2011). If the reviewing officer modifies or replaces findings of fact made by the ALJ, it is the reviewing officer's findings that are relevant on appeal. Id. (citing Tapper v. Emp't Sec. Dep't , 122 Wash.2d 397, 406, 858 P.2d 494 (1993) ). "The burden of demonstrating the invalidity of agency action is on the party asserting invalidity." RCW 34.05.570(1)(a).

¶ 19 The parties have not challenged the review judge's modified findings that Mr. Rios-Garcia's request for internal review was mailed to the Department on May 4, 2018,...