Babysalome T. Gamble v. Dshs

FILED
ED
COURT OF APPEALS
DIVISION 11
20J5 ?AUG 1 2 12 : 1 4 9
.
IN THE COURT OF APPEALS OF THE STATE OF WASHIN
DIVISION II
BABYSALOME T. GAMBLE, No. 44743- 6- 11
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
SOCIAL AND HEALTH SERVICES,
Respondent.
MELNICK, J. — Babysalome Gamble appeals the trial court' s dismissal of her
administrative appeal challenging the Department of Social and Health Services' s ( Department)
finding that she neglected her daughter, a vulnerable adult. The agency review judge applied
collateral estoppel and determined that the trial court' s neglect finding in a previous protection
order proceeding involving Ms. Gamble and her daughter bound the agency. Ms. Gamble
appealed to the trial court, which affirmed. She argues on appeal to this court that ( 1) collateral
estoppel should not apply and ( 2) the agency' s order is not supported by substantial evidence.
Because Ms. Gamble had an incentive to vigorously litigate the issue of neglect at the protection
order proceeding, and in fact did so, we hold that collateral estoppel applies. Additionally, even
without applying collateral estoppel, the agency' s order is supported by substantial evidence of
neglect. We affirm.
FACTS
Ms. Gamble is the caretaker for her adult daughter, JTR. In 2004, Ms. Gamble' s
husband,' JTR' s stepfather, was accused of raping JTR. As a result of those accusations, JTR' s
stepfather pleaded guilty to assaulting JTR. The court issued a no contact order prohibiting
1
At the time, Ms. Gamble was not yet married to JTR' s stepfather.
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contact between JTR and her stepfather. The court rescinded the order in 2006. In 2007, Ms.
Gamble and JTR' s stepfather bought a house where they lived together with JTR and her
younger sister.
In September 2010, the Department received a report alleging more abuse by JTR' s
stepfather on JTR. The report also alleged that Ms. Gamble was neglecting JTR by allowing
JTR to be alone with her stepfather. The Department investigated the allegations and obtained a
vulnerable adult protection order on JTR' s behalf in superior court. The protection order
included a finding that Ms. Gamble had neglected JTR. It restrained her from having
unsupervised contact with JTR. Ms. Gamble objected to the court' s finding that she had
neglected JTR. She appealed this issue to our court. In re Ramos, noted at 162 Wn. App. 1038,
2011 WL 2639940. We affirmed the protection order, including the neglect finding. Ramos,
2011 WL 2639940, at * 2.
The Department also made an administrative finding that Ms. Gamble had neglected
JTR.2 This finding was based on Ms. Gamble' s failure to supervise JTR in JTR' s stepfather' s
presence. Ms. Gamble requested a hearing to contest the finding. After a hearing, the
Administrative Law Judge ( ALJ) affirmed the Department' s neglect finding. Ms. Gamble
appealed to a review judge.
The review judge determined that collateral estoppel applied because the trial court had
already determined during the protection order proceedings that Ms. Gamble had neglected JTR.
The judge therefore concluded that the trial court' s neglect findings were binding and affirmed
the ALJ' s order.
2
This is a separate proceeding from the protection order. Under chapter 74.34 RCW, the
Department must investigate allegations of abuse or neglect and determine whether they are
substantiated.
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Ms. Gamble sought review of the review judge' s order in superior court. The
Department moved for summary judgment, arguing that collateral estoppel applied. The trial
court granted the Department' s motion and dismissed the case. Ms. Gamble appeals.
ANALYSIS
I. STANDARD OF REVIEW
The Administrative Procedure Act ( APA), chapter 34. 05 RCW, governs our review of
agency orders. WAC 388 -02 -0640; Lynn v. Dep' t of Soc. & Health Servs., 170 Wn. App. 535,
543 -44, 285 P. 3d 178 ( 2012). A court may grant relief from an order if it determines that the
agency erroneously interpreted the law or the agency' s decision is not supported by substantial
evidence. RCW 34. 05. 570( 3)( d), ( e). The party asserting the invalidity of an order has the
burden of demonstrating the invalidity. RCW 34. 05. 570( 1)( a). We sit in the same position as
the superior court, applying the APA standards directly to the administrative record. Hardee v.
Dep' t of Soc. & Health Servs., 152 Wn. App. 48, 54, 215 P. 3d 214 ( 2009).
We review legal conclusions de novo to determine whether the review judge correctly
applied the law and whether the findings support the conclusions. Hardee, 152 Wn. App. at 55.
Whether collateral estoppel applies is an issue of law we review de novo. Christensen v. Grant
County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 ( 2004).
Where a party asserts that the agency' s decision is not supported by substantial evidence,
we determine whether there is "`` a sufficient quantity of evidence to persuade a fair- minded
person of the truth or correctness of the order.'" Kittitas County v. Kittitas County Conservation
Coal., 176 Wn. App. 38, 47 -48, 308 P. 3d 745 ( 2013) ( quoting City of Redmond v. Cent. Puget
Sound Growth Mgmt Hearings Bd., 136 Wn.2d 38, 46, 959 P. 2d 1091 ( 1998)). We view the
evidence in the light .most favorable to ' the party who prevailed in the highest forum that
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exercised fact -finding authority.'" Kittitas County, 176 Wn. App. at 48 ( quoting City of Univ.
Place v. McGuire, 144 Wn.2d 640, 652, 30 P. 3d 453 ( 2001)).
II. COLLATERAL ESTOPPEL
First, Ms. Gamble argues that collateral estoppel does not apply in this instance.3
Because the protection order proceedings involved full litigation of Ms. Gamble' s neglect of
JTR, we affirm.
Initially, Ms. Gamble contends that the Department improperly raised this issue for the
first time on appeal. For support, she cites RCW 34. 05. 554, which states that issues not raised
before the agency may not be raised on appeal, and RCW 34.05. 558, which states that judicial
review of a disputed issue of fact must be confined to the agency record for judicial review. But
the review judge ruled on collateral estoppel during the administrative proceedings and Ms.
Gamble does not identify any issues of fact necessary for deciding this appeal that were not
raised in the agency record. Ms. Gamble further argues that the review judge should not have
raised the question of collateral estoppel sua sponte. She fails to cite any authority in support of
this contention. See RAP 10. 3( a)( 6); State v. Young, 89 Wn.2d 613, 625, 574 P. 2d 1171 ( 1978)
quoting DeHeer v. Intelligencer, 60 Wn.2d 122, 126, 372 P. 2d 193 ( 1962) (
Seattle Post - courts
may assume that where no authority is cited, counsel has found none)).
3 Ms. Gamble also argues that summary judgment is an improper procedure for resolving an
administrative appeal. CR 81( a) states, " Except where inconsistent with rules or statutes
applicable to special proceedings, these rules shall govern all civil proceedings." Judicial review
of the Department' s orders is governed by the APA. WAC 388 -02 -0640. The APA does not
state whether summary judgment proceedings are appropriate. See RCW 34. 05. 510 -.598. Thus,
summary judgment under CR 56 is not inconsistent with the APA.
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Collateral estoppel prohibits parties from relitigating issues in a subsequent proceeding.
Christensen, 152 Wn.2d at 306 ( quoting Rains v. State, 100 Wn.2d 660, 665, 674 P. 2d 1651983)). The party seeking to apply collateral estoppel must show that ( 1) the earlier proceeding
decided the identical issue presented in the later proceeding, ( 2) the earlier proceeding ended in a
judgment on the merits, ( 3) the earlier proceeding involved the party against whom collateral
estoppel is asserted, and ( 4) no injustice occurs by the application of collateral estoppel.
Christensen, 152 Wn.2d at 307. Ms. Gamble alleges that none of the requirements was met in
this case.
Ms. Gamble first argues that the issues in each proceeding were different. She asserts
that the issue in the protection order proceeding was whether a protection order was necessary
and the issue in the second proceeding was whether the neglect allegation was founded.
However, the trial court in the first proceeding decided Ms. Gamble neglected JTR. Ramos,
2011 WL 2639940, at * 2. This issue is central to the current administrative proceedings.
Accordingly, the first element is met.
The second and third elements are also met. The protection order proceedings ended in a
final judgment on the merits. Ramos, 2011 WL 2639940, at * 1. Ms. Gamble was a party to both
the protection order proceedings and these administrative proceedings.
Finally, Ms. Gamble contends that applying collateral estoppel would work an injustice.
She argues that she did not have an incentive to vigorously litigate the issues in the protection
order proceedings. But Ms. Gamble had similar incentives to litigate the issues in both the
protection order and the administrative proceedings. In both cases, a neglect finding would
result in Ms. Gamble losing her status as JTR' s caretaker. WAC 388 -825 -385 ( providing that
the Department may terminate a caretaker' s contract under circumstances indicating, among
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other things, neglect); RCW 74. 34. 130 ( providing that the court may prohibit contact with the
vulnerable adult).
The record indicates that Ms. Gamble contested the neglect finding throughout the
protection order proceedings. At the protection order hearing, Ms. Gamble was represented by
counsel and had an opportunity to testify. Her attorney argued that Ms. Gamble had not
neglected JTR and objected to the court making a neglect finding. When the trial court made the
neglect finding over her objections, Ms. Gamble appealed to this court. See Ramos, 2011 WL
2639940, at * 1.
This situation is unlike the cases Ms. Gamble cites in her brief, Hadley v. Maxwell, 144
Wn.2d 306, 27 P. 3d 600 ( 2001), and State v. Valdez, 148 Wn.2d 303, 59 P. 3d 648 ( 2002). In
those cases, our Supreme Court held that it was unjust to apply collateral estoppel to bar
relitigation of issues decided in administrative proceedings. Hadley, 144 Wn.2d at 315; Vasquez,
148 Wn.2d at 317 -18. In Hadley, the defendant faced more serious consequences in the
subsequent trial court proceedings compared to the consequences in the administrative
proceedings. 144 Wn.2d at 310, 315. And in Vasquez, the purposes of the prior and subsequent
proceedings were fundamentally different. 148 Wn. 2d at 317 -18. Accordingly, the parties had
less incentive to vigorously litigate the issues in the earlier administrative proceedings. Hadley,
144 Wn.2d at 315; Vasquez, 148 Wn.2d at 317 -18.
By contrast, here, during the prior protection order proceeding, Ms. Gamble risked losing
not only her status as JTR' s caretaker, but her ability to contact her daughter without supervision.
Thus, she had an incentive to vigorously litigate the issue and in fact did so. The review judge
did not err by concluding that collateral estoppel applied.
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IV. FINDING OF FACT 58
Ms. Gamble next argues that finding of fact 58 is not based on substantial evidence.
Finding of fact 58 states that the ALJ and review judge did not find Ms. Gamble credible when
she testified that she did not believe JTR' s stepfather assaulted JTR. This involves a credibility
determination. We will not disturb credibility determinations on appeal. Griffith v. Seattle Sch.
Dist. No. 1, 165 Wn. App. 663, 672, 266 P. 3d 932 ( 2011).
V. SUBSTANTIAL EVIDENCE
Finally, Ms. Gamble argues that the agency' s order is not supported by substantial
evidence. Because the agency record as a whole, taken in the light most favorable to the
Department, establishes that Ms. Gamble neglected JTR by not adequately protecting her from
her stepfather, we disagree.
Neglect" means
a) a pattern of conduct or inaction by a person or entity with a duty of care that
fails to provide the goods and services that maintain physical or mental health of a
vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain
to a vulnerable adult; or (b) an act or omission by a person or entity with a duty of
care that demonstrates a serious disregard of consequences of such a magnitude as
to constitute a clear and present danger to the vulnerable adult's health, welfare, or
safety, including but not limited to conduct prohibited under RCW 9A.42. 100.
RCW 74. 34. 020( 12). Here, even without relying on the trial court' s neglect finding in the
protection order proceedings, there is substantial evidence to support the agency' s order.
The review judge found that Ms. Gamble, JTR' s caretaker, knew that for JTR' s safety
and because of her disabilities, JTR needed protection and a caregiver' s supervision. The
review judge also found that Ms. Gamble knew of the accusations that JTR' s stepfather sexually
assaulted JTR in 2004 and that he had a conviction for assaulting JTR. Despite these facts, in
2007, JTR and Ms. Gamble moved in with JTR' s stepfather and younger sister. During that
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time, Ms. Gamble left JTR in her stepfather' s presence without adult supervision. Ms. Gamble
testified that, between 2007 and 2008, JTR' s stepfather and younger sister picked JTR up from
school once or twice a month. Ms. Gamble failed to sufficiently address the alleged abuse with
JTR or question her directly about her interactions with her stepfather. Thus, there is substantial
evidence that Ms. Gamble knew of the risk of harm to JTR and failed to prevent physical or
mental harm or pain to JTR. See RCW 74. 34. 020( 12). We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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