Babysalome T. Gamble, Appellant V. Dshs, Respondent (Majority)

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FILED ED COURT OF APPEALS DIVISION 11 20J5 ?AUG 1 2 IN THE COURT OF APPEALS OF THE STATE OF WASHIN DIVISION II No. 44743- 6- 11 BABYSALOME T. GAMBLE, Appellant, v. UNPUBLISHED OPINION WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. Babysalome Gamble appeals the trial court' s dismissal J. MELNICK, of her administrative appeal challenging the Department of Social and Health Services' s ( Department) finding that she neglected her daughter, a vulnerable adult. The agency review judge applied collateral estoppel and determined that the trial court' s neglect finding in a previous protection order proceeding involving appealed to the trial Ms. Gamble court, which affirmed. and her daughter bound the agency. Ms. Gamble She argues on appeal to this court that ( 1) collateral estoppel should not apply and ( 2) the agency' s order is not supported by substantial evidence. Because Ms. Gamble had an incentive to vigorously litigate the issue of neglect at the protection order proceeding, and in fact did so, we hold that collateral estoppel applies. Additionally, even without applying collateral estoppel, the agency' s order is supported by substantial evidence of neglect. We affirm. FACTS Ms. Gamble is the caretaker for her adult daughter, JTR. In 2004, Ms. Gamble' s husband,' JTR' s stepfather, was accused of raping JTR. As a result of those accusations, JTR' s stepfather pleaded 1 guilty to assaulting JTR. At the time, Ms. Gamble was not yet married The court issued a no contact order prohibiting to JTR' s stepfather. 12 : 1 4 9 . 44743 -6 -II contact between JTR and her stepfather. The court rescinded the order in 2006. In 2007, Ms. Gamble and JTR' s stepfather bought a house where they lived together with JTR and her younger sister. In September 2010, the Department received a report alleging more abuse by JTR' s JTR. stepfather on JTR to be adult a that contact JTR. The Department investigated the allegations and obtained a stepfather. protection finding unsupervised neglected her alone with vulnerable included The report also alleged that Ms. Gamble was neglecting JTR by allowing order Ms. with on Gamble JTR. JTR' s behalf in had superior JTR. neglected court. The protection order It restrained her from having Ms. Gamble objected to the court' s finding that she had She appealed this issue to our court. In re Ramos, noted at 162 Wn. App. 1038, 2011 WL 2639940. We affirmed the protection order, including the neglect finding. Ramos, 2011 WL 2639940, at * 2. The Department also made an administrative finding that Ms. Gamble had neglected JTR.2 This finding was based on Ms. Gamble' s failure to supervise JTR in JTR' s stepfather' s Ms. Gamble presence. requested Administrative Law Judge ( ALJ) a hearing affirmed to contest the the Department' s finding. neglect After a hearing, the finding. Ms. Gamble appealed to a review judge. The review judge determined that collateral estoppel applied because the trial court had already determined during the protection order proceedings that Ms. Gamble had neglected JTR. The judge therefore concluded that the trial court' s neglect findings were binding and affirmed the ALJ' s order. 2 This is a separate proceeding from the protection order. Under chapter 74.34 RCW, the Department must investigate allegations of abuse or neglect and determine whether they are substantiated. 44743 -6 -II Ms. Department Gamble moved sought review the of judge' review for summary judgment, arguing that s order collateral in superior court. estoppel applied. The The trial court granted the Department' s motion and dismissed the case. Ms. Gamble appeals. ANALYSIS STANDARD OF REVIEW I. The Administrative Procedure Act ( APA), chapter 34. 05 RCW, governs our review of agency WAC 388 -02 -0640; Lynn orders. 543 -44, 285 P. 3d 178 ( 2012). v. Dep' t of Soc. & Health Servs., 170 Wn. App. 535, A court may grant relief from an order if it determines that the agency erroneously interpreted the law or the agency' s decision is not supported by substantial RCW 34. 05. 570( 3)( d), ( evidence. burden the of demonstrating superior court, the RCW 34. 05. 570( 1)( invalidity. applying the APA Health Servs., Dep' t of Soc. & The party asserting the invalidity of an order has the e). standards directly a). to the We sit in the same position as administrative record. Hardee v. 152 Wn. App. 48, 54, 215 P. 3d 214 ( 2009). We review legal conclusions de novo to determine whether the review judge correctly applied the law Whether and whether the findings collateral estoppel applies is an support the issue law of conclusions. we review Hardee, 152 Wn. App. at 55. de novo. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 ( 2004). Where a party asserts that the agency' s decision is not supported by substantial evidence, we determine person of whether the truth Coal., 176 Wn. there is "` a sufficient quantity of evidence to persuade a fair- minded or correctness of App. the Kittitas County v. Kittitas County Conservation order.'" 38, 47 -48, 308 P. 3d 745 ( 2013) ( quoting City of Redmond v. Cent. Puget Sound Growth Mgmt Hearings Bd., 136 Wn.2d 38, 46, 959 P. 2d 1091 ( 1998)). evidence in the light .most favorable to ' We view the the party who prevailed in the highest forum that 3 44743 -6 -II exercised Kittitas County, 176 Wn. App. at 48 ( quoting City of Univ. fact -finding authority.'" Place v. McGuire, 144 Wn.2d 640, 652, 30 P. 3d 453 ( 2001)). COLLATERAL ESTOPPEL II. First, Ms. Gamble argues that collateral estoppel does not apply in this instance.3 Because the protection order proceedings involved full litigation of Ms. Gamble' s neglect of JTR, we affirm. Initially, Ms. Gamble contends that the Department improperly raised this issue for the first time For support, she cites RCW 34. 05. 554, which states that issues not raised on appeal. before the agency may not be raised on appeal, and RCW 34.05. 558, which states that judicial review of a disputed issue of fact must be confined to the agency record for judicial review. But the review judge ruled on collateral estoppel during the administrative proceedings and Ms. Gamble does not identify any issues of fact necessary for deciding this appeal that were not raised in the agency raised the this record. Ms. Gamble further argues that the review judge should not have question of collateral estoppel sua sponte. See RAP 10. 3( contention. quoting DeHeer v. a)( 6); State v. She fails to cite any authority in support of Young, 89 Wn.2d 613, 625, 574 P. 2d 1171 ( 1978) Intelligencer, 60 Wn.2d 122, 126, 372 P. 2d 193 ( 1962) ( Seattle Post - courts may assume that where no authority is cited, counsel has found none)). 3 Ms. Gamble also argues that summary judgment is an improper procedure for resolving an administrative applicable of to appeal. a) special proceedings, the Department' s state whether CR 81( orders is states, " these rules shall govern all civil proceedings." governed summary judgment Except where inconsistent with rules or statutes by the APA. WAC 388 -02 -0640. proceedings are appropriate. The APA does not See RCW 34. 05. 510 -.598. Thus, summary judgment under CR 56 is not inconsistent with the APA. 4 Judicial review 44743 -6 -II Collateral estoppel prohibits parties from relitigating issues in a subsequent proceeding. Christensen, 152 Wn.2d at 306 ( quoting Rains v. State, 100 Wn.2d 660, 665, 674 P. 2d 165 The party seeking to apply collateral estoppel must show that ( 1) the earlier proceeding 1983)). in the later proceeding, ( 2) the earlier proceeding ended in a decided the identical issue presented judgment 3) the earlier proceeding involved the party against whom collateral estoppel on is the merits, ( asserted, and ( Christensen, 152 Wn.2d at 4) no injustice occurs by the application of collateral estoppel. 307. Ms. Gamble alleges that none of the requirements was met in this case. Ms. Gamble first argues that the issues in each proceeding were different. She asserts that the issue in the protection order proceeding was whether a protection order was necessary and the issue in the second proceeding was whether the neglect allegation was founded. However, the trial court 2011 WL 2639940, at * in the first proceeding decided Ms. Gamble 2. neglected JTR. Ramos, This issue is central to the current administrative proceedings. Accordingly, the first element is met. The second and third elements are also met. The protection order proceedings ended in a final judgment on the merits. Ramos, 2011 WL 2639940, at * 1. Ms. Gamble was a party to both the protection order proceedings and these administrative proceedings. Finally, Ms. Gamble contends that applying collateral estoppel would work an injustice. She argues that she did not have an incentive to vigorously litigate the issues in the protection order proceedings. protection order and But Ms. Gamble had similar incentives to litigate the issues in both the the administrative result in Ms. Gamble losing her proceedings. status as JTR' s In both cases, a neglect finding would caretaker. WAC 388 -825 -385 ( providing that the Department may terminate a caretaker' s contract under circumstances indicating, among 5 44743 -6 -II other things, neglect); RCW 74. 34. 130 ( providing that the court may prohibit contact with the vulnerable adult). The record indicates that Ms. Gamble contested the neglect finding throughout the protection order proceedings. counsel and had an At the protection order hearing, Ms. Gamble was represented by Her attorney argued that Ms. Gamble had not opportunity to testify. neglected JTR and objected to the court making a neglect finding. When the trial court made the neglect finding over her objections, Ms. Gamble appealed to this court. See Ramos, 2011 WL 2639940, at * 1. This situation is unlike the cases Ms. Gamble cites in her brief, Hadley v. Maxwell, 144 Wn.2d 306, 27 P. 3d 600 ( 2001), and State v. Valdez, 148 Wn.2d 303, 59 P. 3d 648 ( 2002). In those cases, our Supreme Court held that it was unjust to apply collateral estoppel to bar relitigation of issues decided in administrative proceedings. Hadley, 144 Wn.2d at 315; Vasquez, 148 Wn.2d at 317 -18. In Hadley, the defendant faced more serious consequences in the subsequent trial court proceedings compared to the consequences in the administrative proceedings. 144 Wn.2d proceedings were at 310, 315. fundamentally And in Vasquez, the purposes of the prior and subsequent different. 148 Wn. 2d less incentive to vigorously litigate the issues in the at 317 -18. Accordingly, the parties had earlier administrative proceedings. Hadley, 144 Wn.2d at 315; Vasquez, 148 Wn.2d at 317 -18. By contrast, here, during the prior protection order proceeding, Ms. Gamble risked losing not only her status as JTR' s caretaker, but her ability to contact her daughter without supervision. Thus, she had an incentive to vigorously litigate the issue did not err by concluding that collateral estoppel applied. 6 and in fact did so. The review judge 44743 -6 -II IV. FINDING OF FACT 58 Ms. Gamble next argues that finding of fact 58 is not based on substantial evidence. Finding of fact 58 states that the ALJ and review judge did not find Ms. Gamble credible when she testified that she determination. We did not will not believe JTR' s stepfather assaulted disturb credibility determinations JTR. This involves a credibility on appeal. Griffith v. Seattle Sch. Dist. No. 1, 165 Wn. App. 663, 672, 266 P. 3d 932 ( 2011). V. SUBSTANTIAL EVIDENCE Finally, Ms. Gamble argues that the agency' s order is not supported by substantial Because the agency record as a whole, taken in the light most favorable to the evidence. Department, establishes that Ms. Gamble neglected JTR by not adequately protecting her from her stepfather, we disagree. Neglect" means a) a pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult; or (b) an act or omission by a person or entity with a duty of care that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety, including but not limited to conduct prohibited under RCW 9A.42. 100. RCW 74. 34. 020( 12). Here, even without relying on the trial court' s neglect finding in the protection order proceedings, there is substantial evidence to support the agency' s order. The review judge found that Ms. Gamble, JTR' s caretaker, knew that for JTR' s safety and because of her disabilities, JTR needed protection and a caregiver' s supervision. The review judge also found that Ms. Gamble knew of the accusations that JTR' s stepfather sexually assaulted JTR in 2004 2007, JTR and and that Ms. Gamble he had moved in a conviction with JTR' s 7 for assaulting JTR. stepfather Despite these facts, in and younger sister. During that 44743 -6 -II time, Ms. Gamble left JTR in her stepfather' s presence without adult supervision. Ms. Gamble testified that, between 2007 and 2008, JTR' s stepfather and younger sister picked JTR up from school once or JTR twice or question her a month. directly Ms. Gamble failed to sufficiently address the alleged abuse with about her interactions with her stepfather. Thus, there is substantial evidence that Ms. Gamble knew of the risk of harm to JTR and failed to prevent physical or mental harm or pain to JTR. See RCW 74. 34. 020( 12). We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 8

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