Lufkin v. Dept. of Human Services , 314 Or. App. 296 ( 2021 )

296
Argued and submitted June 18, 2020, reversed and remanded
September 9, 2021
Ryan LUFKIN
and Erin Fitzgerald,
Petitioners,
v.
DEPARTMENT OF HUMAN SERVICES,
Respondent.
Department of Human Services
890585; A169713
499 P3d 833
Petitioners seek judicial review of a Department of Human Services (DHS)
decision that denied petitioners the right to appeal a Child and Adolescent Needs
and Strengths (CANS) assessment. DHS determined that petitioners waived
their right to appeal the CANS assessment when they entered into an Adoption
Assistance (AA) Agreement with DHS. On judicial review, petitioners argue that
the AA Agreement did not contain a waiver of their statutory right to appeal and
that a waiver secured in this context is unconscionable and therefore unenforce-
able. Held: The statutes and administrative rules governing AA Agreements do
not contemplate a waiver of appeal rights. Although waivers of statutory rights
may be expressed in contracts, such waiver must clearly indicate an intention to
renounce a known right. The specific terms of the AA Agreement did not indicate
any intention to waive appeal rights associated with the CANS assessment.
Reversed and remanded.
Ryan Lufkin argued the cause for petitioners. Also on
the briefs was Erin K. Fitzgerald. Also on the reply and sup-
plemental briefs was Case & Dusterhoff, LLP.
Denise Fjordbeck, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Judy C. Lucas, Assistant Attorney General.
Before Lagesen, Presiding Judge, and James, Judge, and
Powers, Judge.
JAMES, J.
Reversed and remanded.
Cite as 314 Or App 296 (2021) 297
JAMES, J.
This is a petition for judicial review from a
Department of Human Services (DHS) decision that denied
petitioners the right to appeal a Child and Adolescent Needs
and Strengths (CANS) assessment. DHS determined that
petitioners had waived their right to appeal the CANS
assessment upon entering into an Adoptive Assistance
(AA) Agreement. We conclude that petitioners did not waive
the right to appeal the CANS assessment, and accordingly
reverse and remand.
J was a foster child under the authority of DHS,
and petitioners were his foster parents. In March 2017, peti-
tioners started the process of adopting J. To finalize the
adoption, DHS and the adoptive parents had to sign an AA
Agreement that sets the monthly adoption assistance pay-
ment to be received by the adoptive parents. Such payment
has two portions: a level of care portion determined by a
CANS assessment and a negotiated portion.
In October 2017, DHS performed a CANS assess-
ment that concluded that J’s level of care should be reduced
from level 3 to level 1. That change reduced the level of care
payment portion from $850 to $212. The CANS assessment
should have been completed by DHS in June 2017, but DHS
neglected to do so.
On October 26, 2017, DHS sent an email to peti-
tioners informing them of the results of the CANS assess-
ment and petitioners could request a hearing to contest the
results if they felt the results were inaccurate. Petitioners
replied, “well of course it isn’t accurate, but of course we
can’t do anything about it due to the timelines involved” and
asked “how soon after the adoption is final can we have him
reassessed? We can’t appeal this because of the timing, how-
ever we would absolutely appeal if timing was not an issue.”
Petitioners were afraid to lose an adoption tax credit if the
adoption was not finalized before the end of 2017.
On November 3, 2017, DHS mailed petitioners a
Notice of Decision Reducing Level of Care Determination
that provided rights and the process for requesting a hear-
ing to contest the reduction in level of care. On November 8,
298 Lufkin v. Dept. of Human Services
2017, petitioners signed the AA Agreement that provided
that “the amount of monthly adoption assistance shall total
$811.16 and * * * does include a Level of Care payment.”
Petitioners did not receive DHS’s notice containing their
right and process to request a hearing to contest before
signing the AA Agreement, and the AA Agreement did not
contain any explicit waiver clauses of such right.
Shortly after signing the AA Agreement, peti-
tioners received the Notice of Decision Reducing Level of
Care Determination. On November 28, 2017, petitioners
requested a hearing to contest the level of care reduction
within the time frame described in the notice. DHS sent
the matter to the Office of Administrative Hearings (OAH)
on whether petitioners waived the right for a hearing. The
administrative law judge’s proposed order concluded that
petitioners waived the right to a hearing and recommended
that DHS deny the request. On September 12, 2018, DHS
received petitioner’s exceptions to the proposed order. DHS’s
final order was made in accordance with OHA’s recommen-
dation and entered on November 28, 2018, and this appeal
followed.
DHS’s arguments are largely grounded in two ratio-
nales. First, that the structure of AA Agreements, by set-
ting a number that is based, in part, on the CANS assess-
ment, necessarily contemplates a waiver of any appeal of
that same CANS assessment. Second, that this particular
AA Agreement, and the communication between petitioners
and DHS in this case, evidence a waiver of that appellate
right. We disagree on both.
First, DHS supplies us no language in the statutes
or rules that govern AA Agreements, and we are aware of
no language, that explicitly waives a CANS appeal, or even
discusses waiver of such an appeal. Accordingly, if any such
waiver is to be found, it must be found in the unique facts of
this case.
A waiver of a statutory right should be strictly con-
strued. “The general rule in Oregon is that, although waiv-
ers of constitutional and statutory rights may be expressed
through contract terms, those terms must clearly indicate
Cite as 314 Or App 296 (2021) 299
an intention to renounce a known privilege or power.”
Assn. of Oregon Corrections Emp. v. State of Oregon, 353
Or 170, 183, 295 P3d 38 (2013) (internal quotation marks
omitted). Nothing in the specific AA Agreement that DHS
required petitioners to sign spoke to waiver of the appeal
of the CANS assessment. Even assuming the various email
exchanges between petitioners and DHS could create an
ambiguity in the AA Agreement as to waiver, “it is a basic
tenet of contract law that ambiguous language in a contract
is construed against the drafter of the contract.” Berry v.
Lucas, 210 Or App 334, 339, 150 P3d 424 (2006) (emphasis
added). Here, even if some ambiguity existed as to waiver,
it would not be DHS that benefitted from that ambiguity.
In sum, nothing in the AA Agreement petitioners signed
clearly evidenced their intention to renounce their right to
appeal the CANS assessment, and DHS erred in concluding
otherwise.
Reversed and remanded.