Ana Liza Garcia v. Wa State Dshs ( 2019 )

FILED
10/21/2019
Court of Appeals
DMsion I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ANA LIZA GARCIA; CARMEN No. 79647-0-I
PACHECO-JONES; AND NATALYA
SEMENENKO,
DIVISION ONE
Appellants,
CHRISTINE NIXON, ORDER WITHDRAWING AND
SUBSTITUTING OPINION
Plaintiff,
V.
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, STATE OF
WASHINGTON,
Respondent,
SECRETARYOFTHE
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES, AND
• SECRETARY OF STATE,
Defend ants.
The panel has determined that the opinion filed on September 3, 2019,
should be withdrawn and a substitute opinion filed. Now, therefore, it is hereby
No. 79647-0-1/2
ORDERED that the opinion filed on September 3, 2019, shall be withdrawn
and a substitute published opinion shall be filed.
714 ~
FILED
10/21/2019
Court of Appeals
Division I
State of Washington
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ANA LIZA GARCIA; CARMEN ) No. 79647-0-I
PACHECO-JONES; AND NATALYA )
SEMENENKO,
)
Appellants, ) DIVISION ONE
CHRISTINE NIXON,
)
Plaintiff,
v.
)
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, STATE OF ) PUBLISHED OPINION
WASHINGTON, )
)
Respondent, )
)
SECRETARY OF THE DEPARTMENT OF )
SOCIAL AND HEALTH SERVICES, AND )
SECRETARY OF STATE, )
Defendants. ) FILED: October 21, 2019
)
ANDRUS, J. — Ana Liza Garcia, Carmen Pacheco-Jones, and Natalya
Semenenko (Appellants) contend the Department of Social and Health Services
(DSHS) unfairly denied them the ability to work as caregivers to vulneiable adults.
Under RCW 74.39A.056, these women are prohibited from being employed as
long-term care workers because each has a disqualifying finding of child abuse or
neglect. We therefore affirm the dismissal of their claims.
No. 79647-0-1/2
I. BACKGROUND OF DISPUTE
A. DSHS
DSHS is the Washington state agency responsible for coordinating the care
of individuals who, because of their economic, social, or health condition, require
financial assistance, institutional care, rehabilitation services, or other social and
health services. RCW 43.20A.01 0. It provides services to “functionally disabled”
persons—defined as individuals who, because of a recognized chronic physical or
mental condition or disease, are “dependent upon others for direct care, support,
supervision, or monitoring to perform activities of daily living,” including bathing,
toileting, and dressing. RCW 74.39A.240, .009(23). DSHS administers programs
for older adults through the Aging and Long-Term Support Administration (ALTSA),
and for individuals with developmental disabilities through the Developmental
Disabilities Administration (DDA). ALTSA and DDA hire people to provide intimate
care for these vulnerable individuals, and there is little supervision or state
oversight.
In 1997, the legislature passed the “Long-Term Care Reorganization and
Standards of Care Reform Act,” which banned individuals who committed the
abuse or neglect of minors or vulnerable adults from employment in positions with
unsupervised access to vulnerable adults:
No provider or staff, or prospective provider or staff, with a stipulated
finding of fact, conclusion of law, an agreed order, or finding of fact,
conclusion of law, or final order issued by a disciplining authority, a
court of law, or entered into a state registry finding him or her guilty
of abuse, neglect, exploitation, or abandonment of a minor or a
vulnerable adult as defined in chapter 74.34 RCW shall be employed
in the care of and have unsupervised access to vulnerable adults.
LAWS OF 1997, ch. 392, § 209(8) (initially codified at former RCW 74.39A.050).
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No. 79647-0-1/3
In November 2011, the voters of Washington passed Initiative Measure
1163, requiring criminal background checks for all long-term care workers.1 LAws
OF 2012, ch. 1. Initiative 1163 required DSHSto perform background checks of all
prospective “individual providers.”2 RCW 74.39A.261. It also retained the
employment ban instituted in 1997. LAWS OF 2012, ch. 1, § 106 (recodified as
former ROW 74.39A.051). Then, in March 2012, the legislature amended and
relocated the employment ban into what is now ROW 74.39A.056(2), with slightly
modified language:
No provider, or its staff, or long-term care worker, or prospective
provider or long-term care worker, with a stipulated finding of fact,
conclusion of law, an agreed order, or finding of fact, conclusion of
law, or final order issued by a disciplining authority or a court of law
or entered into a state registry with a final substantiated finding of
abuse, neglect, exploitation, or abandonment of a minor or a
vulnerable adult as defined in chapter 74.34 RCW shall be employed
in the care of and have unsupervised access to vulnerable adults.
LAWS OF 2012, ch. 164, § 503(2): see also LAWS OF 2012, ch. 164, § 701. The
legislature added a provision requiring DSHS to establish by rule a state registry
contain ing identifying information about long-term care workers who have abused
or neglected a vulnerable adult. ROW 74.39A.056(3). The legislature authorized
DSHS to adopt rules to implement all provisions of this statute. RCW
74.39A.056(4).
1 “Long-term care workers” include any person who provides paid, hands-on personal care
services for the elderly or persons with disabilities. RCW 74.39A.009(20)(a).
2 An ‘individual provider” is a person who—either through a DSHS contract or through
direct employment with the person receiving services—provides personal care or respite care to
persons who are functionally disabled or otherwise eligible to receive Medicaid or similar state
funded in-home care services. RCW 74.39A.240.
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B. Child Abuse and Neglect Investigations
At all times relevant to this appeal, DSHS was also responsible, through the
Children’s Administration and Child Protective Services (CPS), for investigating
reports of child abuse or neglect under RCW 26.44.O5O.~ When DSHS receives a
report of alleged child abuse or neglect, it screens the report to determine if it is
credible. RCW 26.44.030(12), .020(24). A credible report is considered “screened
in,” at which time, DSHS then decides whether to conduct a “family assessment”4
or a formal investigation. RCW 26.44.030(1 2).
If DSHS chooses to respond with a family assessment, it will not make a
finding as to whether child abuse or neglect occurred. RCW 26.44.030(1 8)(b). If,
however, DSHS conducts an investigation, it assigns an investigator from CPS to
determine whether a report of child abuse or neglect is “unfounded” or “founded.”
RCW 26.44.030(13)(a). An “unfounded” finding means that available information
indicates that, more likely than not, child abuse or neglect did not occur, or that
there is insufficient evidence for DSHS to determine whether the alleged child
abuse did or did not occur. RCW 26.44.020(28). A “founded” finding is a
~ Effective July 1, 2018, the legislature created a new department, the Department of
Children, Youth, and Families (DCYF), see LAws OF 2017, 3d Spec. Sess., ch. 6, to take over the
duties formerly performed by Children’s Administration. DCYF now responds to reports of child
abuse or neglect. LAWS OF 2017, 3d Spec. Sess., ch. 6, §~ 32 1-327; RCW 26.44.030(12); RCW
74.13.031(3). Although DSHS and DCYF are now different state agencies, child abuse
investigation procedures and the method of appealing agency findings of abuse or neglect remain
the same. For clarity, this opinion refers only to DSHS as the agency at issue as it was the agency
that determined that Appellants are ineligible to work as long-term care providers.
~ A “family assessment response” means a way of responding to certain reports of child
abuse or neglect using a “differential response approach to child protective services.” RCW
26.44.020(12).
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No. 79647-0-115
determination that, based on available information, it is more likely than not that
child abuse or neglect did occur. RCW 26.44.020(13).
DSHS is statutorily mandated to notify any parent of allegations of child
abuse or neglect and of the agency’s finding at the conclusion of its investigation.
RCW 26.44.100(2). DSHS must also notify the parent that founded reports of child
abuse and neglect may be considered in determining whether the parent is
disqualified from being licensed to provide childcare, employed by a licensed
childcare agency, or authorized by DSHS to care for children. RCW
26.44.100(2)(c). Finally, it must notify the parent of his or her right to seek review
of the finding. RCW 26.44.1 00(2)(d).
Before Congress passed the Child Abuse Prevention and Treatment Act5
(CAPTA) in 1997, there was no mechanism for challenging a CPS finding of child
abuse or neglect. CAPTA conditioned federal funding for child welfare systems
on, among other things, improving the evidentiary and investigatory standards
applicable to child abuse and neglect findings. CAPTA also required states to
implement laws to allow individuals to appeal any founded finding. 42 U.S.C.
§ 5106a(b)(2)(B)(xv)(ll). Washington complied with CAPTA by October 1, 1998.
Since then, under RCW 26.44.125, any person named as an alleged
perpetrator of child abuse or neglect after October 1, 1998, has the right to request
agency review within 30 days of notification of a founded finding. If the alleged
perpetrator fails to request review, he or she “may not further challenge the finding
and shall have no right to agency review or to an adjudicative hearing or judicial
~ See generally 42 U.S.C. § 5106a.
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No. 79647-0-116
review of the finding,” unless DSHS failed to comply with the statutory notice
requirements. RCW 26.44.125(3). If an individual requests a review, DSHS will
assign a management level staff member to conduct the review and notify the
person in writing of the agency’s determination. RCW26.44.125(4). If the agency
affirms the finding, the individual may seek an adjudicative hearing. RCW
26.44.125(5). Failing to request a hearing constitutes a waiver of the right to further
agency or judicial review, ki., and makes the finding “final,” RCW 43.43.830(4).
If DSHS determines a parent has abused or neglected his or her child, it
may choose to offer services to him or her to address the effects of any
mistreatment or neglect. RCW 26.44.195(1). Alternatively, DSHS may initiate
dependency proceedings in superior court under chapter 13.34 RCW. RCW
26.44.195(4). A dependency proceeding could result in a final court order in which
the parent is found to have committed child abuse or neglect. ~ RCW 13.34.110
(court shall hold hearing and find, by preponderance of evidence, if child is
dependent within meaning of RCW 13.34.030), .030(6) (“dependent child” includes
child who has been abused or neglected as defined in chapter 26.44 RCW). If a
court finds by a preponderance of the evidence that a person has abused or
neglected a child, DSHS “shall adopt the finding in its investigation.” RCW
26.44.030(1 3)(b).
Under former RCW 26.44.070 (1987), DSHS maintained reported cases of
child abuse in a “central registry,” which was accessible by persons “directly
responsible for the care and treatment of children . . . pursuant to chapter 74.15
RCW;. . . .“ Dunninci v. Paccerelli, 63 Wash. App. 232, 234 & n.1, 818 P.2d 34
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No. 79647-0-1/7
(1991) (alterations in original); see also Fettig v. Dep’t of Soc. & Health Servs., 49
Wash. App. 466, 467 n.1, 744 P.2d 349 (1987) (department maintained central
registry of child abuse pursuant to former RCW 26.44.070). This central registry
was confidential and privileged; information in it could be released only by court
order, except for certain statutorily identified agencies and for specific purposes.
See LAWS OF 1984, ch. 97, § 6.
The legislature repealed the central registry provision in 1987. LAws OF
1987, ch. 486, § 16. But the current statutory framework nevertheless
contemplates the maintenance of a database of founded child abuse findings.
RCW 26.44.030(18)(a) provides that DSHS “shall maintain investigation records”
of all founded cases of abuse and neglect and maintain a log of “screened-out
nonabusive cases.” Under RCW 26.44.030(1 8)(b), if DSHS chooses to conduct a
family assessment, rather than an investigation, “[njo one shall be named as a
perpetrator and no investigative finding shall be entered in the department’s child
abuse or neglect database.” See also RCW 26.44.020(12) (under a family
assessment response, “no investigative finding is entered in the record”).
C. DSHS Backciround Checks
In 1987, the legislature enacted RCW 43.43.832, requiring the Washington
State Patrol (WSP) to collect and disclose to prospective employers providing
services to vulnerable adults information relating to any job applicant’s6
6 ~ 43.43.830(2)(a) defines an applicant” as “[a]ny prospective employee who will or
may have unsupervised access to children under sixteen years of age or developmentally disabled
persons or vulnerable adults during the course of his or her employment or involvement with the
business or organization.”
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No. 79647-0-1/8
convictions, “adjudications of child abuse in a civil action,”7 and “disciplinary board
final decisions.” LAWS OF 1987, ch. 486, § 2(1).
In 2005, the legislature amended RCW 43.43.832 to require DSHS (rather
than the WSP) to “establish rules” and “set standards” for considering conviction
information and administrative or court findings of abuse when licensing facilities,
contracting, and paying individual providers for the care of children,
developmentally disabled persons, and vulnerable adults. See LAWS OF 2005, ch.
421, § 2(4).
To assist with this statutory requirement and fulfill its background check
requirements under RCW 74.39A.261, DSHS performs background checks
through its Background Check Central Unit (BCCU). WAC XXX-XX-XXXX. BCCU
is responsible for compiling background check information from external and
internal sources, determining whether the applicant’s background check
information matches to the appropriate department’s list of disqualifying crimes
and “negative actions,”8 and providing the information to the entity requesting the
background check. WAC XXX-XX-XXXX(2).
~ A ‘civil adjudication proceeding” is “a judicial or administrative adjudicative proceeding
that results in a finding of, or upholds an agency finding of, domestic violence, abuse, sexual abuse,
neglect, abandonment, violation of a professional licensing standard regarding a child or vulnerable
adult, or exploitation or financial exploitation of a child or vulnerable adult under any provision of
~law, including but not limited to chapter 13.34, 26.44, or 74.34 RCW. . . RCW 43.43.830(4). It
.“
also includes any judicial or administrative finding that becomes final when the alleged perpetrator
does not exercise the right to administratively challenge the findings. J.~L
8 A “negative action” is defined by regulations and is a disqualifying finding or action that is
not a disqualifying conviction or a pending charge for a disqualifying crime. WAC 388-1 13-0030.
A negative action automatically disqualifies an individual from having unsupervised access to
vulnerable adults or minors receiving care under specific DSHS programs. WAC 388-1 13-0005.
Each program identifies its automatically disqualifying negative actions in its rules. See, e.g., ch.
388-78A WAC (licensed assisted living facilities); ch. 388-97 WAC (licensed nursing homes); WAC
XXX-XX-XXXX(1)(c)(i) (home and community services programs defining negative action” as
including “the denial, suspension, revocation, or termination of a license, certification, or contract
for the care of children, as defined in RCW 26.44.020, or vulnerable adults, as defined in RCW
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No. 79647-0-1/9
By statute, any business or organization requesting a BCCU background
check must require each applicant to disclose whether the applicant has been
convicted of any crime or “[h]as had findings made against him or her in any civil
adjudicative proceeding as defined in RCW 43.43.830.” RCW 43.43.834(2)(b). As
a result, the background check authorization form asks each applicant if ‘a court
or state agency ever issued you an order or other final notification stating that you
have sexually abused, physically abused, neglected, abandoned, or exploited a
child, juvenile, or vulnerable adult?” The applicant must respond yes or no. If an
applicant self-discloses criminal history or a CPS founded finding, BCCU staff
enters that information into BCCU’s database.
BCCU then checks its own “repository” or “criminal history system”
database. BCCU’s database contains information on individuals from various
sources, including the WSP; the Administrative Office of the Courts; the
Department of Health; and DSHS’s electronic database, FamLink, which contains
records relating to founded findings of child abuse and neglect.
BCCU began retaining founded abuse and neglect findings in its database
in January 2006. Once BCCU enters or uploads that information into its database,
it remains there for any future background checks. The record does not reveal
how long BCCU retains this information in its repository.
The record is also unclear whether BCCU automatically receives all
founded findings from FamLink as a routine matter or whether it receives this
74.34.020, for noncompliance with any state or federal regulation”); WAC 388-825-335 (DDA
programs referring to WA~ XXX-XX-XXXX for negative action definition). Exceptions to automatic
disqualification are listed in WAC 388-113-0020.
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No. 79647-0-1/10
information only in response to a specific background check request. The
centralized services administrator for DSHS testified that BCCU sends an inquiry
to FamLink, which then sends information on any individuals whose name matches
that of the applicant. But according to BCCU’s manager, BCCU receives a nightly
upload from FamLink that includes the name and date of birth of every individual
whose founded child abuse finding has become final. Regardless, BCCU receives
and retains any founded findings of child abuse it receives from FamLink. DSHS
provides BCCU only with founded findings made after January 1, 1999, to comply
with CAPTA.9
DSHS promulgated three regulations at issue in this case. WAC 388-71-
0540(5)(d) provides that DSHS will deny payment for the services of any individual
provider or home care agency provider when he or she has a founded finding of
abuse or neglect of a child under RCW 26.44.020 that is
(i) Listed on the. . . [BCCU] report; or
(ii) Disclosed by the individual, except for findings made
before December, 1998. Findings made before December
1998 require a character, competence, and suitability
determination.
WAC 388-825-640 similarly provides:
(2) The following negative actions will automatically disqualify
an individual from having unsupervised access to individuals
with a development disability:
(a) A final finding of abuse, neglect, financial exploitation or
abandonment of a vulnerable adult, unless the finding was
made by Adult Protective Services prior to October 2003.
~ Pre-cAPTA founded findings are not supplied to BCCU because persons with those
founded findings have not had the opportunity for agency or judicial review.
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No. 79647-0-Ill 1
(b) A final finding of abuse or neglect by [CPS], unless the
finding was made prior to October 1, 1998.
And under WAC 388-825-645, if the CPS finding predates October 1, 1998, the
person is not automatically disqualified from employment with developmentally
disabled individuals if he or she successfully completes a character, competence,
and suitability review.10
Both DDA and ALTSA consider founded child abuse or neglect findings as
a part of the background check process required by RCW 74.39A.261. These
agencies will not contract for personal in-home care of a child or vulnerable adult
with anyone who has a founded finding of child abuse or neglect. A former DDA
program manager testified that because of the nature of the care DDA provides to
its clients, DDA’s “rules would prevent [a] contract [with someone with a founded
finding of child abuse or neglect] from moving forward, period, for the protection of
all vulnerable people involved.” Because there is little oversight of the care
providers, DDA errs on the side of protecting the State’s “most vulnerable citizens”
by never contracting with persons with founded abuse or neglect findings. ALTSA
similarly disqualifies all applicants with founded child abuse or neglect findings.
Additionally, DSHS uses founded child abuse findings to assess individuals
who seek to become licensed foster parents or to have unsupervised access to
children in DSHS’s care, custody, or control, It also retains the records for case
management and safety planning purposes. If DSHS works with the same family
over time, it uses past investigative findings of child abuse when making child
~ reviews are conducted by the entity with which the person is seeking employment.
WAC 388-825-650.
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No. 79647-0-1/12
safety assessments or conducting future investigations. Because DSHS has a
statutory obligation to keep families united, see RCW 74.15.010(2), it has
discretion to allow family members with founded findings to have unsupervised
access to a child in the family. Unlike DDA and ALTSA, DSHS also has more
opportunities to observe the child on a frequent basis. A DSHS caseworker
assesses a child’s health and safety every 30 days, and the child is often observed
by other persons who must report possible child abuse or neglect, such as persons
in the school system. Even with the discretion and increased opportunities for
observation, DSHS often disqualifies individuals with founded findings from having
children placed with them or from having unsupervised access to the children.
D. Records Retention Schedules
RCW 26.44.031(2) provides that DSHS must destroy “screened-out”
reports of child abuse or neglect within three years, and it must destroy
‘unfounded” or “inconclusive” reports within six years of completing an
investigation. The statute authorizes DSHS to keep records “concerning founded
reports of child abuse or neglect as the department determines by rule.” RCW
26.44.031(3). DSHS rules provide that it “shall retain records relating to founded
reports of child abuse and neglect as required by DSHS records retention policies.”
WAC XXX-XX-XXXX(5).
All government agencies must have record retention schedules for public
records. RCW 40.14.060. By law, the minimum retention period for any public
record is six years. RCW4O.14.060(1). The entity authorized to approve, modify,
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No. 79647-0-1/13
or disapprove recommendations on retention schedules and to act on any request
to destroy public records is the state records committee. RCW 40.14.050.
In 2008 and 2009, in preparing to implement FamLink, DSHS sought to
harmonize its records retention policies. DSHS representatives requested that the
records committee approve an extension of the records retention schedule for
investigative files leading to founded abuse or neglect findings from the minimum
of 6 years to 35 years. It articulated three reasons for this change. First, DSHS
wanted to make the retention schedule the same as the schedule for records
relating to the revocation of foster care licenses. Without the proposed extension,
if DSHS revoked a foster care license based on a founded child abuse finding but
the records relating to that investigation were destroyed after only 6 years, DSHS
would be unable to determine why a license revocation occurred. Second, DSHS
representatives considered it necessary to keep the investigative records for
longer than 6 years to defend against tort claims with long statutes of limitation.
Finally, DSHS wanted to preserve records relating to persons in its system as
children who might want access to their abuse and neglect history years later.
The state records committee approved the request, and effective February
4, 2009, all CPS case files with a founded child abuse finding—including law
enforcement reports, medical reports, court reports, court orders, child interview
notes, and correspondence—are now retained for 35 years from the date of case
closure.
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E. Appellant Ana Liza Garcia
In August 2009, CPS investigated a report that Garcia had been arrested
for driving while under the influence (DUI) with her 14-year-old wheelchair-bound
son in her car. DSHS determined that the allegation of negligent treatment was
founded. Although DSHS purported to notify Garcia of her right to seek a review
of this finding, Garcia did not receive it.1~
In March 2010, Garcia entered into a deferred prosecution for DUI and
reckless endangerment in Lynnwood Municipal Court relating to the incident that
formed the basis for the founded child abuse finding. Garcia testified she complied
with the terms of her plea agreement, and the court dismissed the criminal charge
in March 2015.
In August 2012, Garcia applied to become a Medicaid personal care
provider for her son. She underwent a BCCU background check as a part of this
application process. BCCU notified DSHS that Garcia had a “substantiated finding
of abuse and/or neglect of a child.” Based on this report, DSHS informed Garcia
that she was disqualified from being employed in any position giving her
unsupervised access to vulnerable adults or individuals with developmental
disabilities.
Garcia was unaware of the CPS finding until she received this letter, despite
having worked with DSHS to obtain voluntary family services after the 2009 CPS
investigation. In September 2012, at Garcia’s request, a Children’s Administration
11DSHS sent the notice via certified mail, and after two attempts to deliver, it was returned,
unclaimed.
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No. 79647-0-1/15
area administrator reviewed and upheld the CPS finding. Children’s Administration
notified Garcia in writing of her right to receive an administrative hearing to
challenge the finding.
Garcia requested a hearing, and an administrative law judge (AU) found
her appeal untimely. Garcia appealed to Thurston County Superior Court,12 which
concluded that DSHS had failed to comply with RCW 26.44.100 by not providing
oral notice13 to Garcia of its adverse CPS finding when it was practicable to do so.
The superior court remanded Garcia’s case to DSHS for an administrative hearing.
In April 2015, after an evidentiary hearing, an AU found that in July 2009,
Garcia had consumed a sufficient quantity of alcohol to render her unable to safely
drive and thereafter drove in a manner likely to cause serious harm to her disabled
son. The AU also found that her actions evidenced “a serious disregard of
consequences of such magnitude as to constitute a clear and present danger to
[her son’s] health, welfare, and safety, and therefore [her actions] constitute[d]
negligent treatment or maltreatment as defined by both statute and regulation.”
The AU affirmed the founded finding. Garcia did not appeal this administrative
order.
DSHS stated in discovery in this lawsuit that the founded CPS finding from
2009, affirmed by the AU in 2015, renders Garcia “ineligible for specific DSHS
12 Garcia v. Dep’t of Soc. & Health Servs., No. 14-2-00100-0.
13 While the statute does not require oral notice, the trial court concluded that because
DSHS knew that Garcia did not receive the notice, due process required that the agency take
additional reasonable steps, if feasible, to inform her of the finding. And because CPS was
physically present in Garcia’s home providing services after the certified mail notice had been
returned, unclaimed, the court concluded it was feasible and practicable for DSHS to have orally
notified Garcia of the finding.
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No. 79647-0-1/16
regulated positions that involve supervision of children and vulnerable adults for
35 years from the date she received her founded finding.”
F. AjD~Jellant Carmen Pacheco-Jones
DSHS found that Pacheco-Jones engaged in child abuse or neglect in June
1999. Pacheco-Jones did not seek review of this finding at the time it was entered.
A January 2009 BCCU background check disclosed that Pacheco-Jones
had five felony convictions for possession of controlled substances, forgery, and
theft. On March 13, 2009, Catholic Charities notified Pacheco-Jones it could not
employ her because her DSHS background check reported a crime that
disqualified her from employment with that agency.
On March 27, 2009, Pacheco-Jones asked DSHS to review the 1999
founded finding, claiming that in 1999 the agency had removed her children from
her care because of drug use but, she argued, she had successfully completed
treatment and regained custody of her children in 2001. On March 30, 2009, a
DSHS area administrator refused to review the finding, citing the passage of over
nine years since DSHS had mailed notice of the finding to Pacheco-Jones. And
the DSHS deputy regional administrator affirmed this decision shortly thereafter.
It is unclear whether Pacheco-Jones’s prior felony convictions remain a
disqualifying event for DSHS employment, but DSHS has indicated in this lawsuit
that “due to [Appellant] Pacheco-Jones’s founded finding, she is ineligible for
specific DSHS-regulated positions that involve supervision of children and
vulnerable adults for 35 years from the date she received her founded finding.”
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G. Appellant Natalya Semenenko
In April 2010, DSHS found it more probable than not that Semenenko had
engaged in the physical abuse of her child. The finding was based on an incident
that occurred in November 2009 when Semenenko took her teenage daughter to
a facility for drug treatment. When the daughter resisted being admitted into the
facility, a physical struggle ensued, during which Semenenko was observed
pushing and kicking her daughter. Semenenko v. Dept of Soc. & Health Servs.,
No. 70354-4-I, slip op. at I (Wash. Ct. App. Aug. 11, 2014) (unpublished),
http://www.courts.wa.gov/opinions/pdf/703544.pdf. DSHS initiated an
investigation through CPS, and in April 2010, Semenenko received a letter
informing her of the founded finding. ki. at 2.
In November 2010, Semenenko lost her job as a caregiver for the elderly
when her employer performed a routine background check and discovered her
name in the DSHS database with a founded finding of child abuse. Id. at 3.
Semenenko requested a review of the finding in March 2011. kI. at 4. DSHS
notified her that her request was beyond the deadline for seeking agency review
and advised her she could challenge that decision by requesting a hearing with the
Office of Administrative Hearings. kI.
Semenenko requested a hearing two months later. ~ The AU dismissed
the case, concluding that she had not requested review of the child abuse finding
within the then-20-day deadline. ki. This court affirmed the decision on appeal,
rejecting Semenenko’s contention that DSHS had not complied with the notice
requirements of RCW 26.44.100. j~ at 13-14.
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No. 79647-0-1/18
As in the cases of Garcia and Pacheco-Jones, DSHS has indicated that
“due to [Appellant] Semenenko’s founded finding, she is ineligible for specific
DSHS-regulated positions that involve supervision of children and vulnerable
adults for 35 years form the date she received her founded finding.”
H. Procedural History
In 2015, Appellants filed a petition for declaratory judgment under RCW
34.05.570(2)(a) and a complaint for declaratory and injunctive relief under 42
U.S.C. § 1983 in Thurston County Superior Court. They alleged that RCW
74.39A.056(2) bars their employment as long-term care workers only for the
duration of time DSHS chooses to retain records of their founded abuse or neglect
findings. They contended that DSHS’s decision to change its records retention
policy from 6 to 35 years effectively denies them the right to the occupation of their
choice. They alleged DSHS failed to follow the Administrative Procedure Act14
(APA) rule-making procedures when it modified its records retention policy, and
they claimed that the 35-year policy was arbitrary and capricious.
In addition to challenging the 35-year retention period, Appellants alleged
that DSHS should be required to give them individualized character, competence,
and suitability reviews and that the rule extending such reviews only to people with
pre-October 1998 findings of child abuse was arbitrary and capricious and violated
the equal protection clauses and privileges and immunities clause of the
Fourteenth Amendment to the United States Constitution and article I, sections 3
and 12 of the Washington State Constitution.
14 Ch. 34.05 RCW.
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No. 79647-0-1/19
DSHS moved for partial summary judgment, arguing that Appellants failed
to plead a viable § 1983 claim or that the claim was time barred. The superior
court dismissed the § 1983 claim but permitted Appellants to proceed with their
APA and constitutional challenges to WAC 388-71 -0540(5)(d), 388-825-640(2)(b),
and 388-825-645 and with their APA rule-making challenge to DSHS’s
recommendation for a 35-year records retention schedule.15
I. Trial Court’s Findings of Fact and Conclusions of Law
The trial court authorized the parties to supplement the administrative
record with additional evidence as allowed under RCW 34.05.558, RCW
34.05.562, and RCW 34.05.570(4). After considering deposition testimony,
answers to interrogatories, and records produced by DSHS, Children’s
Administration, and BCCU, the trial court issued its ruling.
The trial court found that each Appellant applied for employment as long-
term care workers as defined in RCW 74.39A.009, positions that would give her
unsupervised access to vulnerable persons. Each also had founded findings of
child abuse or neglect, issued after Washington came into compliance with
CAPTA. These findings were available from Children’s Administration and were
sent to BCCU when BCCU reviewed Appellants’ backgrounds. After BCCU
reviewed records available to it, including the Appellants’ founded child abuse or
neglect findings, DSHS denied authorization for each Appellant to work in long
term care positions that required unsupervised access to vulnerable persons.
15The trial court expressly dismissed Appellants’ APA challenge to the validity of the
records retention schedule promulgated by the state records committee. They do not appeal this
ruling.
-19-
No. 79647-0-1/20
Next, the trial court concluded that RCW 74.39A.056, and not the
regulations Appellants challenged, precluded them from being employed in the
positions they sought. It determined that the records BCCU used to complete its
background check “constitute a state registry” within the meaning of that term in
ROW 74.39A.056(2). It also decided the statute’s employment ban is permanent
and not contingent on any records retention schedule.
The trial court further concluded that DSHS’s recommendation to the state
records committee that its records retention policy for founded child abuse or
neglect findings be changed from 6 to 35 years was not a rule subject to the APA
rule-making provisions. And it held that the records retention policy violated
neither the equal protection clauses nor the privileges and immunities provisions
of the federal or state constitution.
Finally, the trial court decided that DSHS rules treating individuals with pre
October 1998 findings differently than individuals with post-October 1998 findings
were neither arbitrary nor capricious because the date was tied to the State’s
compliance with CAPTA, after which it afforded individuals notice and opportunity
to challenge child abuse or neglect findings against them. It dismissed the claims
with prejudice.
This appeal followed. Legal Voice filed a separate amicus brief supporting
Appellants and raising new issues.16
16 While we are grateful for amicus’s assistance, we decline to reach the issues that only it
raised. See State v. Shale, 182 Wash. 2d 882, 886 n.4, 345 P.3d 776 (2015).
- 20 -
No. 79647-0-1/21
II. ANALYSIS
Appellants argue the trial court erred in concluding that RCW 74.39A.056(2)
mandates a permanent ban on their employment as long-term care workers. They
contend that DSHS has the statutory discretion to set the duration of any
employment ban and effectively set the ban at 35 years without going through the
APA rule-making process. Appellants also argue the trial court’s conclusion that
DSHS’s FamLink database is a “registry” under RCW 74.39A.056 is not supported
by substantial evidence. They next argue that DSHS’s regulations—enforcing the
employment ban in RCW 74.39A.056 only against persons with post-October 1,
1998 abuse or neglect findings—have no basis in the text of that statute or any
other law, and the decision not to afford Appellants an individualized assessment
of their character, competence, and suitability to work as long-term care workers
is unconstitutional. Finally, they assert the trial court erred in dismissing their claim
for relief under42 U.S.C. § 1983.
A. Standards of Review
We review the trial court’s interpretation of RCW 74.39A.056(2) de novo.
Dep’t of Ecology v. Camlbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4 (2002).
Our review of the validity of DSHS rules is governed by the APA standard set out
in RCW 34.05.570(2)17 We review Appellants’ allegation that DSHS failed to
follow the rule-making procedures of the APA under RCW 34.05.570(4).18 Rios v.
17 “In a proceeding involving review of a rule, the court shall declare the rule invalid only if
it finds that: The rule violates constitutional provisions; the rule exceeds the statutory authority of
the agency; the rule was adopted without compliance with statutory rule-making procedures; or the
rule is arbitrary and capricious.” RcW 34.05.570(2)(c).
18 The trial court appears to have determined that RCW 34.05.570(2) governed this claim,
rejecting DSHS’s argument that Appellants’ claim was an untimely challenge to the agency’s failure
-21-
No. 79647-0-1/22
Dep’t of Labor & Indus., 145 Wash. 2d 483, 491-92, 39 P.3d 961 (2002). The
standard applicable to an agency’s alleged “failure to perform” is similar to the
standard of review governing the challenge to that agency’s rules. ki. at 492.
Compare RCW 34.05.570(4)(c), with RCW 34.05.570(2)(c). Accordingly, we may
grant relief if we determine that an agency action is unconstitutional, outside the
agency’s statutory authority, or arbitrary or capricious. Rios, 145 Wash. 2d at 492.
The APA places “[t}he burden of demonstrating the invalidity of agency
action . . . on the party asserting invalidity.” RCW 34.05.570(1)(a); see also Rios,
145 Wash. 2d at 491.
In an APA declaratory judgment action, judicial review of disputed facts is
conducted by the trial court without a jury and is confined to the agency record,
unless the court authorizes the parties to supplement the record with additional
evidence. RCW 34.05.558. If, after a bench trial, the trial court issues findings of
fact and conclusions of law, ordinary rules of appellate procedure apply. See
Simrson Tacoma Kraft Co. v. De~’t of Ecology, 119 Wash. 2d 640, 646, 835 P.2d
1030 (1992); Nollette v. Christianson, 115 Wash. 2d 594, 599, 800 P.2d 359 (1990).
This court reviews the trial court’s findings and conclusions as it would do in any
other declaratory judgment action—the trial court findings of fact supported by
substantial evidence will not be disturbed on appeal, and conclusions of law are
reviewed de novo. Nollette, 115 Wash. 2d at 599-600.
to promulgate a rule under RCW 34.05.570(4). Although we believe the trial court erred in applying
ROW 34.05.570(2) to Appellants’ APA rule-making procedures claim, the error was harmless
because ultimately the standard of review under both statutory provisions is similar.
- 22 -
No. 79647-0-1/23
As to the summary judgment dismissal of their § 1983 claim, an appellate
court engages in the same inquiry as the trial court. New Cingular Wireless PCS,
LLC v. City of Clyde Hill, 187 Wash. App. 210, 215, 349 P.3d 53 (2015), affd, 185
Wash. 2d 594, 374 P.3d 151 (2016). Thus, we review the dismissal of Appellants’
§ 1983 claim de novo. Robinson v. City of Seattle, 119 Wash. 2d 34, 57, 830 P.2d
318 (1992).
B. Statutory Bar to Employment as Long-Term Care Workers
The main issue on appeal is whether the trial court erred in concluding that
RCW 74.39A.056(2) mandates a permanent ban on Appellants’ employment as
long-term care workers.
The court’s fundamental objective in determining the meaning of a statute
is to ascertain and carry out the legislature’s intent. Campbell & Gwinn, 146 Wash. 2d
at 9. When possible, the court derives legislative intent from the plain language of
the statute, considering the text in question, the context in which the provision is
found, related provisions, amendments to the provision, and the statutory scheme
as a whole. j4~ at 10-11. We give words their usual and ordinary meaning. Lake
v. Woodcreek Homeowners Ass’n, 169 Wash. 2d 516, 526, 243 P.3d 1283 (2010).
And while it is not always necessary to strictly adhere to technical grammatical
rules in interpreting statutory provisions, Fraternal Order of Eagles, Tenino Aerie
No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash. 2d 224, 242, 59 P.3d
655 (2002), we give weight to these rules and try to construe language in
accordance with those rules, rather than contrary to them, Duke v. Johnson, 123
Wash. 43, 49, 211 P. 710 (1923). We also presume the legislature does not intend
-23-
No. 79647-0-1/24
absurd results, and we avoid any reading that produces such a result. Tinqey v.
Haisch, 159 Wash. 2d 652, 664, 152 P.3d 1020 (2007).
Appellants start from the premise that RCW 74.39A.056(2) prohibits their
employment only if their names appear in “a state registry.” We’ disagree with this
reading as inconsistent with the text. Because the grammar of RCW
74.39A.056(2) is somewhat complex, the statute makes sense only if we
deconstruct its provisions in the following manner:
Clause #1 No provider, or its staff, or long-term care worker, or prospective
provider or long-term care worker,
Clause #2 with a stipulated finding of fact, conclusion of law, an agreed
order, or finding of fact, conclusion of law, or final order
issued by a disciplining authority or a court of law
Clause #3 entered into a state registry
Clause #4 with a final substantiated finding of abuse, neglect, exploitation, or
abandonment of a minor or a vulnerable adult as defined in chapter
74.34 RCW
Clause #5 shall be employed in the care of and have unsupervised access to
vulnerable adults.
The word “or” before the phrase “entered into a state registry” is significant.
The word “or” is most commonly used in the disjunctive and employed to indicate
an alternative. Black v. Nat’l Merit Ins. Co., 154 Wash. App. 674, 688, 226 P.3d 175
(2010). Following this basic grammatical rule, the most reasonable interpretation
is that RCW 74.39A.056(2) prohibits employment as a long-term care worker in
two distinct situations—either when a disciplining authority or court has found that
an individual committed child abuse or when DSHS has found that an individual
committed child abuse or neglect and entered his or her name into a state registry.
- 24 -
No. 79647-0-1/25
Following these rules of statutory construction, we must reject Appellants’ premise
that only individuals who appear in “a state registry” are barred from employment
as long-term care workers to vulnerable adults.
This statutory construction undermines Appellants’ contention that RCW
74.39A.056(2) gives DSHS the discretion to decide who will be disqualified from
work as long-term care workers by deciding how long to retain records of child
abuse findings. If a court, rather than DSHS, has found that a person has
committed child abuse, DSHS does not have the discretion to allow that person to
work with vulnerable adults, even if DSHS could delete the person’s name from its
records. The court’s finding will remain in court records independent of any
database DSHS may maintain. And if RCW 74.39A.056(2) imposes a permanent
ban on employment for individuals found by a court to have committed child abuse,
it makes no sense to conclude the statute does not require the same result for
individuals found by DSHS to have done so.
Next, Appellants argue that the phrase “entered into a state registry” is
ambiguous because there is no “central registry” for child abuse findings. In
interpreting statutes, we refer to dictionaries to determine the plain meaning of an
undefined statutory term. Nissen v. Pierce County, 183 Wash. 2d 863, 881, 357 P.3d
45 (2015). “Enter” means to “make a record of” or “to put on record.” WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 756 (2002); see also BLACK’S LAW
DICTIONARY 672 (11th ed. 2019) (“[tb put formally before a court oron the record”).
A “registry” is the place where a “register” is kept. WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY at 1912. And a “register” is “a written record containing
- 25 -
No. 79647-0-1/26
regular entries of items or details: an official or formal enumeration, description, or
record of particulars.” j~; see also BLAcK’S LAW DICTIONARY at 1535-36. Based on
these definitions, the phrase “entered into a state registry” in the statute is
unambiguous: it is the governmental act of making an official written record of the
names of individuals found by DSHS to have engaged in child abuse or neglect.
Appellants argue that DSHS cannot ban their employment as long-term
care workers because DSHS admits that it does not maintain a “central registry”
of child abuse perpetrators. We do not find this argument persuasive. First, the
statute references a “state registry,” not a “central registry.” Thus, no central
registry is required. Second, the legislature understood that DSHS compiles
information from child abuse investigations because, in 2012, when it added former
RCW 26.44.030(17)(b), recodified as RCW 26.44.030(18)(b), to the child abuse
statute, it explicitly referred to the agency’s “child abuse or neglect database.” See
LAWS OF 2012, ch. 259, § 3(17)(b). A “database” is a “comprehensive collection of
related data organized for convenient access, generally in a computer.”
WEBSTER’S UNABRIDGED DICTIONARY 508 (2d ed. 2001); see also BLACK’S LAW
DICTIONARY at 495 (“[a] compilation of information arranged in a systematic way”).
We see no distinction between a “state registry” of individuals found to have
committed child abuse and a state-created and state-maintained “database”
containing the same information.
Furthermore, the trial court concluded that “the records used by the BCCU
constitute a state registry as that term is used in RCW 74.39A.056(2).” What
constitutes a “state registry” is a mixed question of law and fact. ~ Henry Indus.,
- 26 -
No. 79647-0-1127
Inc. v. Dep’t of Labor & Indus., 195 Wash. App. 593, 601, 381 P.3d 172 (2016)
(whether drivers meet statutory definition of “worker” under Industrial Insurance
Act is a mixed question of law and fact). The court engages in a de novo review
of mixed questions of law and fact, applying facts as determined by the trier of fact.
See Franklin County Sheriff’s Office v. Sellers, 97 Wash. 2d 317, 330, 646 P.2d 113
(1982). Because Appellants did not assign error to any of the trial court’s findings
of fact, we accept them as true on appeal. Robel v. Roundup Corp., 148 Wn.2d
35,42,59 P.3d 611 (2002).
The trial court found that BCCU received information from DSHS about
Appellants’ founded child abuse findings while conducting background checks.
BCCU uploaded this information from the FamLink database into its own database.
The trial court also found that Appellants were required by law “to attest under
penalty of perjury as to whether they have any prior founded findings of child abuse
or neglect.” Importantly, RCW 43.43.834(2)(b) mandates such disclosures. BCCU
staff entered this self-disclosed information into its database. Finally, BCCU
conducted a search of court records and Department of Health records to look for
final court findings or disciplinary findings of child abuse or neglect. BCCU entered
this information, if it existed, into its database as well. BCCU’s repository of
background information is a state-created and state-maintained database. Thus,
we conclude there is substantial evidence in the record to support the trial court’s
conclusion that BCCU’s database constitutes “a state registry” under RCW
74.39A.056(2).
- 27 -
No. 79647-0-1/28
Appellants next argue that if DSHS chose to delete a person’s founded
finding from FamLink and BCCU’s database, the finding would no longer be
“entered into a state registry” and could not disqualify that person from long-term
care work. They contend that RCW 43.43.832(2) gives DSHS the discretion to
determine who should be deleted from any child abuse “state registry” and that
RCW 26.44.031 gives DSHS the discretion to determine how long a person will
remain listed. They read these three statutes together to mean that DSHS has the
legal authority to set—by rule—the duration of RCW 74.39A.056(2)’s employment
ban.
There are several problems with this argument. First, the phrase “entered
into a state registry” does not modify “with a final substantiated finding of abuse”;
it modifies “prospective provider or long-term care worker.” Under the last
antecedent rule, qualifying or modifying words or phrases refer to the last
antecedent. State v. Bunker, 169 Wash. 2d 571, 578, 238 P.3d 487 (2010). The
registry is thus a database of names, not the underlying investigative materials.
DSHS’s records retention policy addresses only the retention of child abuse case
files; it does not mandate the deletion of the names of individuals found to have
committed child abuse. According to DSHS’s records officer, DSHS has never
deleted any individual’s name from its database since implementing FamLink. And
the record contains no evidence that BCCU has ever deleted this information
either.19
19 The evidence also indicates that DSHS treats the records retention policy as setting the
minimum, rather than maximum, period of time it retains the founded case file materials. According
to the statewide administrator for the Division of License Resources within Children’s
Administration, DSHS is not required to destroy any documents at the end of a retention period.
- 28 -
No. 79647-0-1129
Second, destroying records at the end of a preset retention period is not
synonymous with vacating or “expunging” a founded finding of child abuse, as
Appellants suggest. The former is merely the administrative act of physically
destroying a document, whereas the latter constitutes the legal process of
nullifying or voiding a finding, as if it had never occurred. We can find nothing in
RCW 74.39A.056(2), or the background check statute, RCW 43.43.832(2), or the
records retention statute, RCW 26.44.031, to indicate a legislative intent to grant
to DSHS the authority to vacate or expunge a final substantiated finding of child
abuse.
Appellants cite Howell v. Dejartment of Social & Health Services, 7 Wn.
App. 2d 899, 436 P.3d 368 (2019), to support their argument that RCW 74.39A.056
is not a categorical employment bar. But Howell involved different legal claims
and a different procedural posture. In that case, a certified nursing assistant (CNA)
student alleged that DSHS’s rules and policies of retaining records of founded child
abuse findings violated Washington’s Law Against Discrimination20 (WLAD)
because those rules and policies disparately impact Native Americans like herself
who seek work as a CNA. ki. at 902. Division Three of this court reversed a CR
12(c) dismissal of her claim, holding that Howell pleaded a prima facie case of
disparate impact discrimination. Id. at 907, 910, 921.
The court rejected DSHS’s argument that RCW 74.39A.056 barred Howell’s
WLAD claim. ki. at 917. Division Three held that RCW 74.39A.056 did not present
a complete bar to Howell’s employment as a CNA because the statute, by its terms,
20 ~ 49.60 RCW.
- 29 -
No. 79647-0-1/30
only applies to “long-term care workers” with unsupervised access to vulnerable
adults and “[n}ot all [CNAJ employment would require Ms. Howell to provide care,
with unsupervised access, to vulnerable adults.” Id. at 917-18. It thus rejected
DSHS’s argument that ROW 74.39A.056(2) prevented it from employing Howell as
a CNA. But because none of the Appellants sought work as CNAs, this holding
from Howell is unhelpful.
Additionally, Howell did not challenge ROW 74.39A.056’s employment ban.
Id. at 907. Instead, she challenged DSHS’s dissemination of child abuse findings
without a method to avoid racial disparity. Id. Appellants, unlike Howell, have not
alleged they are the victims of disparate impact discrimination in violation of the
WLAD. Moreover, Howell came to the court on review of a CR 12(c) motion to
dismiss, not the post trial dismissal of a petition for declaratory relief under the
APA. For these reasons, we conclude Howell is legally and factually
distinguishable.
While we agree with Appellants that the employment ban in RCW
74.39A.056(2) is harsh and that there are legitimate policy reasons for the
legislature to reconsider whether such a ban should be permanent, we cannot
rewrite or modify the language of a statute under the guise of statutory
interpretation or construction. Graham Thrift Grii, Inc. v. Pierce County, 75 Wn.
App. 263, 267, 877 P.2d 228 (1994). We must give full effect to the plain language
of the statute, even when the results may seem unduly harsh. Geschwind v.
Flanagan, 121 Wash. 2d 833, 841, 854 P.2d 1061 (1993).
- 30 -
No; 79647-0-1/31
We conclude that because Appellants’ names have been entered into
BCCU’s database because of final substantiated findings of child abuse, RCW
74.39A.056(2) prohibits them from being employed to care for vulnerable adults.21
C. Validity of DSHS Pre-CAPTA and Post-CAPTA Regulations
Next, Appellants argue that DSHS regulations granting individualized
suitability reviews to people with pre-October 1, 1998 findings, but denying them
to people found to have committed child abuse after October 1, 1998, have no
basis in the text of RCW 74.39A.056 and are arbitrary and capricious. We disagree
because abuse findings made prior to October 1, 1998 are not “final” findings, and
the automatic employment ban does not apply.
RCW 74.39A.056(2) applies only to “final substantiated” findings of abuse.
According to Dee Wilson,22 Appellants’ child welfare expert, a “founded” finding of
child abuse is the same as a “substantiated” finding. A founded finding becomes
“final” either when an alleged perpetrator fails to exercise the right to challenge the
finding or after a court or administrative law judge upholds the agency finding.
RCW 43.43.830(4); WAC XXX-XX-XXXX. Only individuals named as alleged
perpetrators of child abuse and neglect after October 1, 1998 have the right to
seek review of a founded finding. RCW 26.44.125. When these statutes are read
21 DSHS’s recommended extension of its records retention policy, whether promulgated by
rule or approved by the state records committee, would not change this outcome. We therefore
decline to reach the claim that DSHS violated the APA by recommending a change to this policy.
22 The trial court considered Wilson’s declaration in making its findings of fact and
conclusions of law, despite DSHS’s objection. While DSHS references the trial court’s
consideration of the declaration, DSHS does not challenge it. As we are not considering Wilson’s
declaration for information directly relevant to any of the issues on appeal, we see no harm to DSHS
in considering the declaration for this small point of clarification.
- 31 -
No. 79647-0-1/32
in context with one another, the statutory employment ban cannot by its own terms
apply to individuals with findings of abuse predating October 1, 1998.
Because DSHS does not consider pre-CAPTA findings of child abuse to be
substantiated or final under RCW 74.39A.056(2), DSHS allows anyone with such
a finding to be considered for employment with vulnerable adults—but only after
they undergo a character, competence, and suitability review. These reviews thus
serve the function for pre-CAPTA findings that the administrative and judicial
reviews serve for post-CAPTA findings. Furthermore, the legislature granted
DSHS the discretion to set rules for considering such findings in RCW
43.43.832(2). Thus, the regulations treating individuals with pre-CAPTA and post
CAPTA findings of abuse differently are clearly statutorily authorized.
Nor can we conclude the regulations are arbitrary or capricious. A
regulation is arbitrary and capricious only if it is willful, unreasoning, and taken
without regard to the attending facts or circumstances. Ass’n of Wash. Spirits &
Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wash. 2d 342, 358, 340 P.3d
849 (2015). Where there is room for two opinions, an action taken after due
consideration is not arbitrary and capricious even though a reviewing court may
believe it to be erroneous. jç~ The scope of review under the arbitrary and
capricious standard is very narrow, and the party asserting it carries a heavy
burden. Pierce County Sheriff v. Civil Serv. Comm’n, 98 Wash. 2d 690, 695, 658 P.2d
648 (1983).
DSHS’s reason for allowing character reviews for individuals with pre
CAPTA findings and disallowing similar reviews for Appellants is not unreasoning
- 32 -
No. 79647-0-1/33
or taken without regard to the facts and circumstances. DSHS has provided a
previously lacking legal mechanism to challenge the factual basis for CPS findings.
In doing so, DSHS avoids due process concerns that arise from any CPS finding
that could result in the denial of employment. See Fields v. Dep’t of Early Learning,
193 Wash. 2d 36, 50-52, 434 P.3d 999 (2019) (due process violation to disqualify
employee from working in licensed childcare facility without individualized
suitability review when department regulation made prior robbery conviction
automatically disqualifying fact and employee precluded from challenging
regulation at administrative level).
Under the post-CAPTA regulatory framework, any person named as an
alleged perpetrator in a founded CPS report may challenge that finding. WAC 110-
30-0220. Garcia exercised her right to raise such a challenge, and the AU
affirmed the founded finding after an evidentiary hearing. Semenenko similarly
sought to challenge the adverse finding, but this court held her appeal was
untimely. Appellants availed themselves of the review mechanisms available for
post-CAPTA findings. The DSHS regulations take into consideration both the due
process concerns of the pre-CAPTA period and the mandatory language of the
employment ban in RCW 74.39A.056(2) for individuals with a post-CAPTA final
finding of abuse. The regulations thus are neither arbitrary nor capricious.
D. Constitutional Challenge to DSHS Regulations
Appellants next argue DSHS’s rules limiting suitability reviews to individuals
with pre-October 1998 abuse findings deny them equal protection under the law
required by the Fourteenth Amendment and the privileges and immunities clause
- 33 -
No. 79647-0-1/34
of article I, section 12 of the Washington Constitution.23 These provisions require
that all persons similarly situated be treated alike. Am. Legion Post No. 149 v.
Dept of Health, 164 Wash. 2d 570, 608, 192 P.3d 306 (2008). Appellants argue that
DSHS regulations classify individuals found to have committed child abuse after
October 1, 1998 differently from those found to have done so before that date,
without any rational justification for doing so.
The appropriate level of scrutiny under an equal protection challenge
depends on the nature of the classification or rights involved. j4~ In Amunrud v.
Board of Appeals, 158 Wash. 2d 208, 220-21, 143 P.3d 571 (2006), our Supreme
Court acknowledged that rational basis review is the appropriate standard for
evaluating regulations affecting one’s ability to work either in a governmental
position or in an occupation of one’s choosing. See also Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 313-14, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (no
fundamental right to government employment); Nebbia v. New York, 291 U.S. 502,
527-28, 54 5. Ct. 505, 78 L. Ed. 940 (1934) (the right to work in a particular
profession or trade subject to rational regulation).
We apply a three step process under the rational basis test. First, we ask
whether the classification applies alike to all members within the designated class.
Yakima County Deputy Sheriff’s Ass’n v. Bd. of Comm’rs, 92 Wash. 2d 831, 835, 601
P.2d 936 (1979). Second, we determine whether there is some basis in reality for
reasonably distinguishing between those within and outside the class. j~. Finally,
23 The right to equal protection guaranteed under the Fourteenth Amendment and by the
privileges and immunities clause of the Washington Constitution is substantially identical and
considered as one issue. State v. Smith, 117 Wash. 2d 263, 281, 814 P.2d 652 (1991).
- 34 -
No. 79647-0-1/35
we consider whether the classification has any rational relation to the purposes of
the challenged regulations. ~ at 836. Challengers must do more than merely
question the wisdom of the regulations; they must show conclusively that the
classification is contrary to the legislation’s purpose. ~
First, DSHS regulations do not treat two similarly situated classes of people
unequally. While the regulations do not permit Appellants to obtain a suitability
review and explicitly allow such reviews for individuals with pre-CAPTA findings,
these two classes of individuals seeking jobs with vulnerable adults are not
similarly situated because the Appellants’ class had an administrative process to
challenge their CPS finding as unsubstantiated or false; but those with pre-CAPTA
findings had no such opportunity. Where persons of different classes are treated
differently, there is no equal protection violation. Forbes v. City of Seattle, 113
Wash. 2d 929, 943, 785 P.2d 431 (1990).
Second, there is a basis in reality for distinguishing between Appellants and
individuals with pre-CAPTA abuse findings. A classification does not violate equal
protection if it is not arbitrary or capricious. kc~. at 944. As indicated above, drawing
a distinction between these two groups is not arbitrary or capricious in light of the
change in the law after Congress passed CAPTA.
Finally, DSHS’s decision to grant a suitability review to individuals with pre
CAPTA findings but to deny them to Appellants has a rational relation to the
purpose of the challenged regulations. As DSHS notes, the regulations give
meaning to the term “final” in RCW 74.39A.056(2). Because individuals who were
the subject of a CPS investigation before CAPTA had no notice or opportunity to
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No. 79647-0-1/36
challenge an abuse finding, that finding did not legally become “final,” and they are
not subject to the automatic employment ban.24
Appellants rely on Fields to support their request for an individualized
assessment of their suitability to work with vulnerable adults. In that case, the
employee of a licensed childcare facility appealed a decision of the Department of
Early Learning (DEL) that disqualified her to work at the facility based on a prior
attempted robbery conviction. 193 Wash. 2d at 38-39. Fields contended a DEL
regulation that precluded anyone with a robbery conviction from having
unsupervised access to children violated her right to due process. ki. at 40-41.
As the Supreme Court noted, DEL is required to run background checks on
anyone who wants to work in a childcare facility. ki. at 43. Furthermore, the statute
at issue in Fields, former RCW43.215.215(1) (2011), required DEL to determine
whether any individual seeking such employment “is of appropriate character,
suitability, and competence to provide child care and early learning services to
children.” j.ç~ DEL promulgated a regulation providing that any individual with a
listed conviction25 was “permanently disqualified from providing licensed child
care, caring for children or having unsupervised access to children in child care.”
ki. (quoting former WAC XXX-XX-XXXX(1), recodified as WAC XXX-XX-XXXX). It also
promulgated a regulation that prohibited a person with a disqualifying conviction
from challenging this regulation at the administrative level.
24 We decline to address Appellants’ contention that DSHS’s recommendation to the state
records committee for a 35-year records retention policy violates equal protection or the privileges
and immunities clause of article I, section 12. Because we conclude that the statutory provision,
and not the records retention policy, imposes the employment ban, we need not reach this issue.
25 The list includes 50 types of permanently disqualifying convictions. j~j. at 43; see also
former WAC XXX-XX-XXXX, recodified asWAC XXX-XX-XXXX.
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No. 79647-0-1/37
In analyzing Fields’ procedural due process challenge, the Supreme Court
held that the DEL regulation, as applied to Fields, created an unusually high risk
of arbitrary interference by the State and, as a result, an erroneous deprivation of
the right to pursue a lawful career of her choice. Id. at 51. It held that Fields was
entitled to an individualized assessment of her criminal history and other
qualifications at the administrative level. j~ at 52.
Appellants have raised neither a substantive nor a procedural due process
challenge to the employment ban in RCW 74.39A.056(2) or to the challenged
regulations. And the statute at issue in Fields differs significantly from RCW
74.39A.056(2). Former RCW 43.215.215(1), recodified as RCW 43.216.270(1),
provides:
In determining whether an individual is of appropriate character,
suitability, and competence to provide child care and early
learning services to children, the department[26] may consider the
history of past involvement of child protective services or law
enforcement agencies with the individual for the purpose of
establishing a pattern of conduct, behavior, or inaction with
regard to the health, safety, or welfare of a child. No report of
child abuse or neglect that has been destroyed or expunged
under RCW 26.44.031 may be used for such purposes. No
unfounded or inconclusive allegation of child abuse or neglect as
defined in RCW 26.44.020 may be disclosed to a provider
licensed under this chapter.
The statute differs from RCW 74.39A.056(2) in that (a) it gives the department the
discretion to assess the character, suitability, and competence of anyone seeking
a childcare position before disqualifying them from that work and (b) it specifically
precludes the department from considering child abuse reports that have been
26 Effective July 1, 2018, DEL became a part of DcYF. Fields, 193 Wash. 2d at 42. The
reference to “the department” in the statute referred to DEL at the time of Fields’ disqualification
but now refers to DCYF.
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No. 79647-0-1/38
destroyed or expunged under RCW 26.44.031. Because there are such significant
differences between RCW74.39A.056(2) and RCW43.216.270(1), the holding in
Fields does not apply in this case.
E. Dismissal of 42 U.S.C. ~ 1983 Claim on Summary Judgment
Finally, Appellants ask this court to reverse the dismissal of their claim for
injunctive relief under 42 U.S.C. § 1983. Their claim under this statute was based
on the assertion that the secretary of DSHS violated their right “to equal protection
of the law by creating an irrational classification that denies [them] the ability to
work in a field of their choosing.” Because Appellants have not demonstrated that
DSHS created an irrational classification in its regulations, and because it was the
legislature, and not DSHS, that denied Appellants the opportunity to work as long-
term care workers, we affirm the dismissal of their § 1983 claim.
Because we affirm the trial court’s dismissal of Appellants’ petition, they are
not the prevailing party and, as a result, are not entitled to an award of attorney
fees on appeal under RCW 4.84.350.
Affirmed.
WE CONCUR:
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