Tanjia Davis v. Dept Of Social & Health Services ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TANJIA DAVIS, )
) No. 75422-0-1
Appellant, )
) DIVISION ONE
v. )
)
STATE OF WASHINGTON, DEPARTMENT ) UNPUBLISHED OPINION
OF SOCIAL AND HEALTH SERVICES, )
)
Respondents. ) FILED: October 2, 2017
)
SPEARMAN, J. — Tanjia Davis permitted the three grandchildren in her
custody to spend the night with unauthorized caregivers and then delayed contacting
the Department of Social and Health Services (Department) or law enforcement upon
learning that the children's mentally ill mother had abducted them. Because the
record supports the determination that Davis's actions constituted a serious disregard
of the consequences to the children of such magnitude that it created a clear and
present danger to the children's health, welfare or safety, we affirm the Department's
finding of negligent treatment.
FACTS
Davis has not assigned error to any of the Department's findings of fact. The
findings are therefore verities on appeal and establish the following sequence of
events. See Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 244, 350 P.3d 647(2015).
On March 23, 2012, the Department filed a dependency petition on behalf of
Constance Ford's three children, who were approximately three, eight and ten.
No. 75422-0-1/2
Appellant Tanjia Davis is Ford's mother. Ford was suffering from "severe, non-
medicated mental illness, as well as chronic substance abuse. . ." Davis informed
Child Protective Services(CPS)that Ford had recently assaulted several family
members, stopped taking her medication, and was using drugs and alcohol. Davis
and her other daughter, Kiera Davis, also alleged that Ford had slapped the children
at times. After the shelter care hearing on March 26, 2012, the Department placed
the three children with Davis.
On May 7, 2012, the Department served Davis with a finding of negligent
treatment or maltreatment of her grandchildren. The finding was based on evidence
that Davis left the children in the care of relatives who lacked the requisite
background checks and then delayed reporting that Ford had abducted the children.
An internal Department review affirmed the finding.
Davis requested a hearing to challenge the neglect finding. After the hearing
on February 25, 2015, the Administrative Law Judge(AU)issued an initial order
upholding the Department's finding of negligent treatment. On April 7, 2015, a
Department review judge issued a review decision and final order affirming the All's
initial order and adopting, in pertinent part, the AL's findings of fact and credibility
assessments. The superior court denied Davis's petition for judicial review.
The order of dependency permitted only supervised contact between Ford and
her children. When discussing the placement of the three grandchildren, Sabrina
Eldridge, the assigned CPS social worker, informed Davis that anyone who had
unsupervised contact with the children must first complete a background check.
'Findings of Fact(FF) 3, Certified Appeal Board Record (CABR)at 17.
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Eldridge expressly told Davis that this meant no relative, including Davis's other
daughter, could babysit or keep the children overnight without a background check.
Eldridge handed Davis the background check forms for each relative present
at a late March 2012 meeting. Each person living with Davis, including Davis's
husband, 17 year old son, and daughter Kiera, had completed a background check at
the time the Department placed the children with her. Davis had already completed a
background check to become a licensed adult family home care provider.
Davis reported that shortly after the Department placed the children with her,
she saw Ford "'stalking the neighborhood," wearing a mask, and "'singing Jesus
songs in the street."2 On April 6, 2012, during a supervised visit with the children,
Ford assaulted Davis. Davis then obtained a domestic violence no contact order
against Ford.
On Saturday, April 14, 2012, Davis permitted the three children to attend an
overnight birthday party at a paternal relative's residence. Ford showed up during the
party and absconded with the children. Federal marshals found the children several
weeks later and returned them to the Department's custody. None of the relatives
present at the party had completed background checks.
At the AUJ hearing, Davis testified that she called social worker Eldridge
several days before the party and that Eldridge said it was "'ok'"3 for the children to
attend as long as Ford was not present. Davis also claimed that she informed Regina
Hawkins, the children's paternal aunt and a sponsor of the birthday party, that Ford
could have no contact with the children. According to Davis, Hawkins assured her
2 FF 11, CABR at 19.
3 FF 15, CABR at 21.
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that Ford was not invited to the party and that no one had told Ford about the party.
But a cousin apparently told Ford about the party and when she appeared, the
relatives allowed her in.
Davis testified that she and Kiera dropped the children off for the party at
about 4:00 p.m. on Saturday. Davis maintained that the initial plan was for Kiera to
pick the children up after work at about 7:30 p.m. Davis then claimed that on
Saturday evening, one of the relatives called to say the party was running late. At the
relative's request, Davis gave her approval for the children to spend the night.
Kiera Davis, however, testified that she arrived after work at about 11:00 p.m.
on Saturday to pick up the children. Kiera rang the bell and called the relatives, but
no one opened the door. At this point, Kiera decided "they were all in bed, and the
children would just spend the night."4 Upon arriving home, Kiera assured her mother
that the children were sleeping and "that we'll go back first thing in the morning.'"5
On Sunday, both Davis and Kiera were admittedly very worried about the
children. They claimed that they were unable to reach any of the relatives by phone,
and Kiera testified that she returned to the home twice on Sunday, but no one
answered the door. Kiera also telephoned other relatives throughout the day on
Sunday, attempting to find the children. Kiera acknowledged that lwje were up all
[Sunday] night trying to figure something out, calling out people, and sending out
messages.. .."
4 FF 17, CABR 21.
5 Clerk's Papers(CP) at 156.
6 CP at 166.
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On Monday morning, Davis called Eldridge and told her the children were
supposed to be at a paternal relative's home, but could not be found. Davis said she
had not yet called the police earlier because she first wanted to give her daughter
"the benefit of the doubt"7 to return the children on her own. At Eldridge's direction,
Davis immediately reported the abduction to the police. When federal marshals found
the children on May 2, 2012, they did not appear to be abused or visibly harmed.
At the AU hearing, Davis insisted that she did not learn of the kidnapping until
Monday morning and then promptly notified Eldridge. The review judge adopted the
AL's assessment that this claim was not credible in light of the significant
discrepancies between Davis's account of providing permission on Saturday for the
children to spend the night and Kiera's attempts to pick the children up late Saturday
night, the acknowledged concern and attempts of both Davis and Kiera to find the
children on Sunday, and Davis's account when she reported the abduction to the
police on Monday:
The Appellant's story that she approved an overnight stay on
Saturday is, more likely than not, an attempt to cover the fact
that she knew the children were missing, or were not where
they should be, on Saturday night by around 11 p.m.8
The review judge found that the paternal relatives had informed Davis that the
children were missing no later than Sunday. The review judge also rejected Davis's
assertion that Eldridge had given her permission for the children to attend the
birthday party, noting that Eldridge's extensive and detailed case notes provided no
support for this claim.
7 FF 25, CABR at 24.
8 FF 21, CABR at 23.
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Ford also testified at the administrative hearing. She asserted that she arrived
at the party on Saturday afternoon and then spent Saturday night and all day Sunday
at the home before leaving with the children at about 3:00 a.m. on Monday. The
review judge found Ford's account not credible in light of the evidence that Davis and
Kiera discovered the abduction no later than Sunday.
The review judge concluded that Davis's failure to contact the Department
immediately upon learning that Ford had abducted the children, as well as her
actions in permitting the children to be supervised by persons who had not completed
a background check, constituted negligent treatment or maltreatment of the children.
Davis appeals.
DISCUSSION
The Washington Administrative Procedure Act(APA), chapter 34.05 RCW,
governs judicial review of agency actions. Postema v. Pollution Control FIrgs Bd.,
142 Wn.2d 68, 76-77, 11 P.3d 726(2000). We review an agency order in
adjudicative proceedings under RCW 34.05.570(3), which provides, in part, that we
will grant relief only if the agency has erroneously interpreted or applied the law, or if
the order is unconstitutional, is outside the statutory authority of the agency, is not
supported by substantial evidence, or is arbitrary or capricious. Our review is limited
to the Department's final order, not the AL's initial order or the superior court's order.
See Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 403-04, 858 P.2d 494(1993).
We review findings of fact to determine whether, considering the record as a
whole, the evidence is sufficient to persuade a fair minded person of the matter.
Mowat Const. Co. v. Department of Labor and Industries, 148 Wn. App. 920, 925,
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201 P.3d 407(2009). As indicated, because Davis has not assigned error to the
agency's findings of fact, the findings are verities on appea1.9
We review questions of law, and the agency's application of the law to the
facts, de novo, but we afford "great weight" to the agency's interpretation of law
"where the statute is within the agency's special expertise." Cornelius v. Dep't of
Ecology, 182 Wn.2d 574, 585, 344 P.3d 199(2015). We do not weigh witness
credibility or substitute our judgment for the agency's findings of fact. Port of Seattle
v. Pollution Control FIrps Bd., 151 Wn. 2d 568, 588, 90 P.3d 659(2004)."The burden
of demonstrating the invalidity of agency action is on the party asserting invalidity."
RCW 34.05.570(1)(a).
Under RCW 26.44.020(1), the definition of abuse or neglect includes, among
other things, "the negligent treatment or maltreatment of a child by a person
responsible for or providing care to the child." Negligent treatment or maltreatment
includes:
[A]n act or a failure to act, or the cumulative effects of a pattern
of conduct, behavior, or inaction that evidences a serious
disregard of consequences of such magnitude as to constitute
a clear and present danger to a child's health, welfare, or
safety, including but not limited to conduct prohibited under
RCW 9A.42.100.
RCW 26.44.020(16).
The Department has also adopted a regulation defining "negligent treatment or
maltreatment":
(5) Negligent treatment or maltreatment means an act or a
failure to act, or the cumulative effects of a pattern of conduct,
behavior, or inaction, on the part of a child's parent, legal custodian,
9 In any event, substantial evidence supports the relevant findings.
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guardian, or caregiver that shows a serious disregard of the
consequences to the child of such magnitude that it creates a clear
and present danger to the child's health, welfare, or safety. A child
does not have to suffer actual damage or physical or emotional
harm to be in circumstances which create a clear and present
danger to the child's health, welfare, or safety. Negligent treatment
or maltreatment includes, but is not limited, to:
(a) Failure to provide adequate food, shelter, clothing,
supervision, or health care necessary for a child's health, welfare, or
safety. Poverty and/or homelessness do not constitute negligent
treatment or maltreatment in and of themselves;
(b) Actions, failures to act, or omissions that result in injury to
or which create a substantial risk of injury to the physical,
emotional, and/or cognitive development of a child; or
(c) The cumulative effects of a pattern of conduct, behavior
or inaction by a parent or guardian in providing for the physical,
emotional and developmental needs of a child's, or the effects of
chronic failure on the part of a parent or guardian to perform basic
parental functions, obligations, and duties, when the result is to
cause injury or create a substantial risk of injury to the physical,
emotional, and/or cognitive development of a child.
WAC 388-15-009(5). In order to satisfy the statutory definition of negligent treatment
in RCW 26.44.020(16), the Department must establish more serious misconduct than
simple negligence. Brown v. Dep't of Soc. & Health Servs., 190 Wn. App. 572, 593,
360 P.3d 875(2015)(Department erred in incorporating "reasonable person"
standard into finding of neglect).
On appeal, Davis argues that allowing her grandchildren to attend the birthday
party at a relative's home did not amount to ordinary negligence, much less satisfy
the heightened statutory standard of negligent treatment. To support this argument,
Davis points to the fact that she had no notice that any "unanticipated event" might
pose a risk of harm to the children, that she "took the precautionary step"1° of
obtaining Eldridge's permission before allowing the children to attend, and that the
10 Brief (Br.) of App. at 2.
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relative holding the party assured her that she would not let Ford attend. Davis claims
that under the circumstances, she was "engaged in what would be the same child
raising practices we all would engage in."
But Davis's arguments rest on an incomplete, conclusory factual account that
the review judge rejected in pertinent part as not credible. Contrary to Davis's
assertions, the review judge found that she did not contact Eldridge before the party.
The unchallenged findings also establish that Davis allowed the children to spend the
night with caregivers who had not completed background checks, contrary to the
Department's express instructions.
Moreover, Davis was aware that Ford was prohibited from having any
unsupervised contact with the children. Davis was also well aware of Ford's severe
mental health issues, chronic substance abuse, and recent erratic and assaultive
behavior. Yet when she learned no later than Sunday that Ford had abducted the
children, Davis failed to notify the Department or the police in an effort to give Ford
"the benefit of the doubt" to return the children. Davis acknowledged the serious risk
of harm to the children in her comments to the police. The concern was also reflected
in her frantic efforts, along with Kiera, to contact or find the children on Sunday,
efforts that continued all through Sunday night. About a week after the abduction,
Davis called and left a message for Eldridge demanding that the Department locate
the children because she "did not want to be burying" her grandchildren.12
"Br. of App. at 3.
12 CP at 126.
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Viewed together, Davis's actions and failure to act evidenced a serious
disregard of consequences "of such magnitude as to constitute a clear and present
danger" to the children's health, welfare, or safety and were therefore sufficient to
satisfy the statutory definition of negligent treatment or maltreatment.
Davis's reliance on Brown, 190 Wn. App. 572, Marcum v. Dep't of Soc. and
Health Servs., 172 Wn. App. 546, 290 P.3d 1045 (2012), and In re Dependency of
M.S.D., 144 Wn. App. 466, 182 P.3d 978 (2008), is misplaced. In Brown, the court
held that the Department had erred in applying a "reasonable person" standard to the
finding of neglect. The court concluded that the statutory definition of "negligent
treatment" in RCW 26.44.020(16) required a higher standard of misconduct than
simple negligence. In Marcum, the court vacated the Department's finding that
neglect had occurred under WAC 388-15-009(5) regardless of whether the conduct
created a clear and present danger to the child's safety. Here, unlike Brown and
Marcum, the Department's finding of negligent treatment was based on the
application of the proper standard. The review judge expressly noted that the
statutory and regulatory definitions did not "relieve the Department of having to show
that a particular action or failure to act constituted a serious disregard of the
consequences to a child of such magnitude as to create a clear and present danger
to that child's health, welfare, or safety.
In M.S.D., the court reversed a dependency based on a finding that the mother
negligently failed to protect her daughter from the risk posed by the mother's
boyfriend. The court concluded that under the circumstances, the evidence failed to
13 CABR at 34, n.64.
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establish that the boyfriend's ten year old conviction constituted a risk to the child's
safety. Here, however, the evidence was sufficient to establish that Davis's actions
and failure to act created a clear and present danger to the children's health, safety
or welfare.
In her reply brief, Davis argues for the first time that the Department's
requirement that "the people throwing the party" complete background checks "in
such a situation ... is an arbitrary and capricious demand on the part of the
respondent."14 Because this argument is raised for the first time in the reply brief, we
decline to consider it. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,
809, 828 P.2d 549(1992)("An issue raised and argued for the first time in a reply
brief is too late to warrant consideration.").
Affirmed.
WE CONCUR:
14 Reply Br. at 3.
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