Opinion
No. 37787-0-II
October 13, 2009
Appeal from the Superior Court, Kitsap County, No. 06-2-02329-5, Leonard W Costello, J., entered April 25, 2008.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Houghton, J.
Annette Atkinson appeals the trial court's rulings (1) affirming administrative findings that there was no credible evidence that a social worker gave her permission to allow her foster child to self-medicate in 2002, and (2) denying her petition for a writ of mandamus directing the Department of Social and Health Services (DSHS) to strike from its records all references to the licensing violation finding DSHS subsequently entered into its records. We affirm.
FACTS
In March 2002, Atkinson, a licensed foster parent through Catholic Community Services (CCS), began to care for seventeen-year-old Tonya. Tonya's foster care team implemented a series of health, safety, and crisis plans that recommended keeping medications locked up as a preventative strategy to protect Tonya from harming herself. Tonya, her therapist, a CCS team member, and Atkinson signed off on these plans.
Atkinson's license with CCS terminated in January 2003. She was also licensed through DSHS for one year in 1992.
As Tonya's eighteenth birthday approached in May, her CCS team and Atkinson discussed the possibility of Tonya remaining in care under a voluntary placement agreement (VPA). Although Tonya did not ultimately enter into a VPA, her team agreed to assist her in practicing independent living skills prior to emancipation. Tonya's social worker, Lynda Miller, testified that she did not recall any discussion giving Atkinson permission to allow Tonya to begin administering her own medications. Miller also testified that, given Tonya's mental health and substance abuse issues at the time, she would not have approved self-medicating.
Atkinson asserts that a health, safety, and crisis plan subsequently presented as evidence that Miller directed her to lock up all medications was "written after the incident and never a directive given to [her]." Appellant's Br. at 32. The record demonstrates, however, that at least two similar plans were drafted and discussed prior to the incident.
Atkinson did not ultimately keep all of Tonya's medications locked up. Instead, she began leaving them on the kitchen counter for Tonya to administer on her own. In May 2002, Tonya told Atkinson that she had overdosed on her anti-depressant medication. Doctors later determined that she had not in fact overdosed.
A subsequent letter written by a CCS licensor explained, "Annette understood that she was following the intentions of Tonya's treatment plan, put in place by her social worker. . . . The plan directed Tonya to be treated as if she had already turned 18 [years] of age . . . [and] also included Tonya being able to administer her own medications." Administrative Record (AR) at 299 (emphasis added).
Atkinson's CCS licensor, Donna Smith, subsequently reviewed and discussed WAC 388-148-0350 with Atkinson after the incident. Smith also instructed Atkinson to lock up all medications in the future. After Smith investigated the incident, she discussed her findings with the State's regional licensor. DSHS determined that Atkinson had violated the minimum licensing requirements for medication management in foster homes and entered a finding in her file. DSHS did not take any further action regarding this incident; it did not formally notify Atkinson of or afford her an opportunity to contest the licensing finding. Smith later testified, however, that she believed that she provided a copy of her letter to DSHS to Atkinson.
Chapter 388-148 WAC addresses licensing requirements for child foster homes, staffed residential homes, group residential facilities, and child-placing agencies. WAC 388-148-0350 outlines the requirements for obtaining consent for medical care for foster children. Atkinson claims that although Smith counseled her about the regulations, she "was not made aware that this issue would be used in [a] future licensing action against her." Appellant's Br. at 10.
Atkinson disputes this, arguing that neither Smith nor anyone else investigated the incident.
In 2005, Atkinson obtained a foster care license through Kitsap Mental Health Services. This license allowed Atkinson to provide therapeutic foster care to at-risk, Bureau of Rehabilitative Services (BRS) children. BRS children are often victims of abuse and neglect and may have juvenile justice histories, mental health issues, and/or previous failures in foster care placement. All licensed foster parents must agree to lock up all medications and may allow foster children to self-medicate only with written permission of the child's social worker. WAC 388-148-0365.
During this time, Atkinson began to care for seventeen-year-old Crissa. Crissa took several medications, including lithium, and did not plan on transitioning to independent living upon her eighteenth birthday. At some point, Atkinson began leaving a day's worth of Crissa's medications on the kitchen counter for Crissa to administer on her own; she locked up the remainder of Crissa's medications. On April 14, 2005, Crissa informed Atkinson that she had taken some of her lithium medication for the next day. Atkinson took Crissa to the emergency room; Crissa subsequently transferred to a group home.
In August 2005, DSHS sent Atkinson a letter notifying her that it made a "founded" finding of negligent treatment of a foster child in her care. Clerk's Papers (CP) at 6. At Atkinson's request, DSHS reviewed the finding and notified her that it would not change the finding.
On September 28, 2005, DSHS sent Atkinson another letter notifying her that it was revoking her foster care license for failing to comply with minimum foster care licensing requirements. In making its decision, DSHS relied in part on the 2002 licensing finding in Atkinson's file. It stated:
The individual who investigated the 2005 incident later testified that she would have reached the conclusion that Atkinson was negligent by leaving Crissa's medications unlocked even if the 2002 incident had not occurred.
[ WAC 388-148-0205] is written this way to prevent situations such as the one involving Crissa where she intended to overdose on her medication[.]
. . . . It is concerning that you were involved in similar circumstances with another 17-year-old, Tonya.
. . . . Donna Smith at CCS placed emphasis on [WAC 388-148-0352] and quoted part of it in a letter supplied for your corrective action in May, 2002 after you failed to lock up the medication when you did foster care for their agency. The letter clearly explains that "Only you or another authorized care provider may give or have access to medications for the child under your care[.]"
Administrative Record (AR) at 229 (emphasis in original).
WAC 388-148-0205 provides that foster parents must keep all medications, including pet medications, vitamins, and herbal remedies, in locked storage. WAC 388-148-0352 outlines general medicine management requirements.
Atkinson timely requested administrative hearings to contest both her license revocation and the finding of negligent treatment, and the matters were consolidated. An administrative law judge (ALJ) affirmed the revocation of Atkinson's license but reversed the negligent treatment finding. Atkinson filed a pro se petition for review to DSHS's Board of Appeals (Board). DSHS cross-petitioned, appealing the ALJ's reversal of the negligent treatment finding.
The ALJ found that Atkinson violated the following regulations: (1) WAC 388-148-0205 (storage of medications); (2) WAC 388-148-0352 (management of medications); (3) WAC 388-148-0365 (requirement for self-medication); (4) WAC 388-148-0100(1)(c) (failure to provide a safe, healthy and nurturing environment); and (5) WAC 388-148-0035(1) (personal characteristics required to provide care).
Atkinson's counsel apparently withdrew after the administrative hearing.
In August 2006, a review judge affirmed the revocation of Atkinson's license and reversed the ALJ's finding that Atkinson had not negligently treated a foster child in her care. The Board denied Atkinson's subsequent motion for reconsideration. In October 2006, Atkinson filed a petition for judicial review, in which she sought to have the negligent treatment finding reversed. She also requested issuance of a writ of mandamus and prohibition requiring DSHS to strike all references to her 2002 licensing violation. Atkinson did not appeal the revocation of her foster care license.
See WAC 388-148-0095(2)(b) (committing child abuse/neglect) and WAC 388-148-0420 (failure to protect from child abuse/neglect).
Atkinson indicates that she again retained her prior counsel at this time. She is proceeding pro se in this appeal. Pro se litigants are bound by the same rules of procedure and substantive law as attorneys. Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997) (citing Patterson v. Superintendent of Pub. Instruction, 76 Wn. App. 666, 671, 887 P.2d 411 (1994)). Although Atkinson fails to cite to the record in some instances, this does not preclude us from reviewing the substantive issues in this case.
The trial court held that substantial evidence supported the ALJ's finding that Atkinson did not abuse or neglect a foster child in 2005 when she allowed Crissa access to her lithium in violation of foster care regulations. It also held that the review judge acted beyond her authority in substituting her judgment for that of the ALJ and reinstated the ALJ's finding. Finally, the trial court denied Atkinson's request for issuance of a writ of mandamus and prohibition and held that she failed to prove the elements of estoppel against the government by clear, cogent, and convincing evidence. Atkinson now appeals.
Although Atkinson assigns error to the ALJ's finding that there was no credible evidence that she "had been directed to allow Tonya to access her medicine," she also appears to argue that the ALJ made a finding that she violated licensing regulations in 2002. Appellant's Br. at 7. The record demonstrates that the ALJ found that DSHS "determined the matter involving Tonya to be `valid,' meaning it determined that Ms. Atkinson had violated a licensing regulation." AR at 99. Neither the ALJ nor the review judge made any independent findings regarding whether the licensing finding was in fact "valid."
ANALYSIS
I. 2002 Licensing Finding
Atkinson first argues that there was substantial evidence that she had permission to allow Tonya access to her medications; therefore, the ALJ's findings regarding this issue were clearly erroneous. The legal standard we apply is more properly framed as whether substantial evidence supports the ALJ's findings regarding the incident and the review decision. We agree with the State that substantial evidence supports the ALJ's findings. We also note, however, the ALJ's findings that the 2002 incident did not demonstrate significant fault on Atkinson's part and was not worthy of consideration as evidence of Atkinson's fault with respect to the 2005 incident.
After hearing testimony, the ALJ found that there was no credible evidence that Tonya's team or her social worker directly discussed or approved a plan in which Tonya would administer her own medications. Furthermore, the ALJ found that there was no credible evidence that Tonya's social worker gave Atkinson written permission to allow Tonya to do so. Atkinson believed that Tonya's plan directed her to treat Tonya as if she were eighteen-years-old, so she left Tonya's anti-depressant medications unlocked. The ALJ found that, following Tonya's subsequent visit to the hospital, Smith "extensively reviewed" the medication-related licensing regulations with Atkinson. AR at 99. Although Atkinson denied this, the ALJ did not find her testimony credible.
Additionally, the ALJ found that although DSHS determined that Atkinson had violated licensing regulations by keeping Tonya's medications unlocked, there were no consequences at that time other than oral discussions with Atkinson. Smith told Atkinson that the incident would be documented in her file and that she should keep medications locked up in the future. DSHS neither provided written notice to Atkinson of the finding nor gave her an opportunity to challenge the finding. The ALJ also found that DSHS did not take any further licensing action in 2002 in part because Atkinson had had her license for less than six months and it believed that she had made a simple error in judgment and could be retrained. Finally, the ALJ found that neither Atkinson nor DSHS had retained all records concerning Tonya.
The ALJ ultimately concluded:
Ms. Atkinson argues that she should have had the protection of WAC 388-148-0365 with respect to Tonya . . . and her sole error was that the permission was only oral and not in writing. Although, on this hearing record, I have found that Ms. Atkinson had not, in fact, been given even oral permission to allow Tonya to administer her own medications, I recognize that [she] had not been given the opportunity to challenge the valid finding back in 2002. There might have been evidence at the time . . . that might not now be available.
AR at 116. Notably, the ALJ also concluded:
This order is not based on conclusions that Ms. Atkinson did anything wrong in her care of Tonya. However, the incident with Tonya is relevant to show that Ms. Atkinson had been made explicitly aware of the rules regarding locking up medications and administering medications herself. She in fact admitted this. The fact that she might have had a defense that she relied on oral permission if there had been adverse licensing action after the Tonya incident is not relevant here.
AR at 116. The review judge upheld the ALJ's findings regarding the 2002 incident in a final agency order.
A. Standard of Review
In reviewing an administrative action, we sit in the same position as the trial court and apply the Administrative Procedure Act (APA) standards directly to the agency's administrative record. Superior Asphalt Concrete Co. v. Dep't of Labor Indus., 112 Wn. App. 291, 296, 49 P.3d 135 (2002) (citing Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993)). Under the APA, the "burden of demonstrating the invalidity of agency action is on the party asserting invalidity[.]" RCW 34.05.570(1)(a).
Under RCW 34.05.570, the reviewing court has authority to reverse an agency's adjudicative decision if: (a) the agency erroneously interpreted or applied the law; (b) substantial evidence does not support the agency's decision; (c) the agency has failed to follow a prescribed procedure; (d) the agency's ruling is arbitrary or capricious; or (e) the order, statute, or rule on which the order is based violates constitutional provisions on its face or as applied. We will grant relief only if we determine that the agency's actions have substantially prejudiced a person seeking judicial relief. RCW 34.05.570(1)(d).
Like the trial court, we review questions of law de novo but accord substantial weight to the agency's interpretation of the statutes it administers. Superior Asphalt Concrete Co., 112 Wn. App. at 296 (citing Everett Concrete Prods., Inc. v. Dep't of Labor Indus., 109 Wn.2d 819, 823, 748 P.2d 1112 (1988)). We review findings of fact for substantial evidence in light of the whole record. RCW 34.05.570(3)(e). Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth or correctness of the matter. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000) (quoting Callecod v. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997)). Under RCW 34.05.464, the review judge's findings of fact, to the extent that they modify or replace the ALJ's findings, are pertinent on appeal. Tapper, 122 Wn.2d at 405-06.
B. Substantial Evidence of Violation
Substantial evidence supports the ALJ's findings in this case. The ALJ heard the testimony of Tonya's social worker, Miller, who explained that she did not recall giving Atkinson either oral or written permission allowing Tonya to begin administering her own medications. Miller also testified that, given Tonya's mental health and substance abuse issues at that time, she would not have approved this. Furthermore, Atkinson failed to present evidence that Miller gave her written permission to do so. WAC 388-148-0365(1)(b) requires the child's social worker's written approval: "You must keep the written approval by the child's social worker in your records." Atkinson subsequently failed to keep all of Tonya's medications locked up, in violation of the WACs. After considering this evidence, the ALJ determined that there was no credible evidence that Atkinson had the required permission to allow Tonya to self-medicate. Substantial evidence supports this conclusion.
Atkinson has not affirmatively demonstrated that she had written permission to permit Tonya to self-medicate. Although DSHS relied in part on the 2002 licensing finding in determining that it would revoke her license, Atkinson has failed to establish that its actions substantially prejudiced her in this case or that she would have retained her license but for DSHS's entry of this licensing finding. After all, neither the ALJ nor the review judge attributed fault to Atkinson in the 2002 incident, only noting that this incident was notice to Atkinson of the need to exercise care with medications.
II. Mandamus
Atkinson next argues that there are "two main elements at play" with respect to the trial court's denial of her petition: (1) the trial court's interpretation of the ALJ's decision as one in which the ALJ "simply ruled against her," and (2) "the lack of justice afforded [to her] throughout this entire process." Appellant's Br. at 34-35. Atkinson claims that DSHS did not initially "investigate her claim of innocence" and did not give her an opportunity "to defend the allegation in a timely manner." Appellant's Br. at 22. The State responds that due process did not require DSHS to grant Atkinson an adjudicative hearing to contest the 2002 licensing finding prior to revoking her license in 2005. Additionally, it contends, the trial court properly denied Atkinson's petition. Again, we agree.
The trial court denied Atkinson's petition for a writ of mandamus and prohibition and found that the ALJ heard evidence concerning the 2002 incident and that Atkinson failed to prove by clear, cogent, and convincing evidence the elements of equitable estoppel against the government. The trial court concluded that Atkinson was able to litigate the 2002 licensing finding during her revocation hearing and that the ALJ "simply ruled against her." CP at 15.
A. Standard of Review
Under RCW 7.16.160 any court, except a district or municipal court, may issue a writ of mandamus to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person. Mandamus is a procedure provided by statute for the enforcement of rights and the redress of wrongs. It contains all of the elements of a civil action. Peterson v. Dep't of Ecology, 92 Wn.2d 306, 311, 596 P.2d 285 (1979). The statutory writs are based on the superior court's constitutional power to issue writs. See Wash. Const. art. 4, § 6.
An applicant must satisfy three elements before a writ will issue: (1) the party subject to the writ is under a clear duty to act under RCW 7.16.160; (2) the applicant has no "plain, speedy and adequate remedy in the ordinary course of law" under RCW 7.16.170; and (3) the applicant is "beneficially interested" under RCW 7.16.170. Eugster v. City of Spokane, 118 Wn. App. 383, 402, 76 P.3d 741 (2003). Mandamus can direct an officer or body to exercise a mandatory discretionary duty, but not the manner of exercising that discretion. Mower v. King County, 130 Wn. App. 707, 719, 125 P.3d 148 (2005). A remedy is not inadequate merely because it is attended with delay, expense, annoyance, or even some hardship. There must be something in the nature of the action that makes it apparent that the litigants' rights will not be protected or full redress will not be afforded without the writ. City of Kirkland v. Ellis, 82 Wn. App. 819, 827, 920 P.2d 206 (1996) (citing State ex rel. O'Brien v. Police Court, 14 Wn.2d 340, 347-48, 128 P.2d 332 (1942)).
Whether a statute specifies a duty that the person must perform is a question of law. River Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). Whether there is a plain, speedy, and adequate remedy in the ordinary course of the law is a question left to the discretion of the court in which the proceeding is instituted. River Park Square, LLC, 143 Wn.2d at 76 (citing State ex rel. Hodde v. Superior Court, 40 Wn.2d 502, 517, 244 P.2d 668 (1952)). Therefore, we will not disturb a decision regarding a plain, speedy, and adequate remedy on review unless the superior court's discretion was manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. River Park Square, LLC, 143 Wn.2d at 76.
B. Due Process Denial of Petition
Atkinson has failed to demonstrate that DSHS had a clear duty to act differently than it did in this case; therefore, we do not address the remedy issue. See River Park Square, LLC, 143 Wn.2d at 76. As DSHS notes, Atkinson has not shown that it was required to afford her an adjudicative hearing to contest the 2002 licensing finding prior to the revocation of her license under statute, relevant case law, or the Fourteenth Amendment. Moreover, she does not now argue that DSHS failed to exercise a mandatory discretionary duty; rather, she appears to dispute the manner in which it exercised its discretion regarding the 2002 incident (i.e. the way in which it investigated/addressed the incident and extent to which it involved Atkinson in this process). Neither the evidence in the record nor legal authority supports her assertions that DSHS failed to adequately investigate the 2002 incident. Finally, it appears that Atkinson had an opportunity to challenge the finding during her revocation hearing. Several actors involved during the 2002 incident, including Atkinson, were permitted to testify and Atkinson's files were admitted into evidence. That the ALJ may not have found her testimony credible does not establish a due process violation. Therefore, mandamus does not appear to be appropriate in this case and we will not disturb the trial court's denial of Atkinson's petition.
RCW 43.20A.205, which governs the denial, suspension, revocation, or modification of one's license does not indicate that DSHS was required to provide Atkinson with a hearing in 2002.
Furthermore, she asserts, without citation to authority, that the license revocation hearing "did not meet the test for due process. . . ." Appellant's Br. at 22.
C. Equitable Estoppel
Additionally, Atkinson appears to argue that DSHS should be equitably estopped from entering findings regarding this incident, as she was merely following the social worker's directive. A claim of equitable estoppel against a government agency requires clear, cogent, and convincing evidence of (1) an admission, statement, or act by the government inconsistent with its later claim; (2) a party acting in reliance on the admission, statement, or act; (3) injury to the relying party if the government were allowed to contradict or repudiate its prior admission, statement, or act; (4) the necessity of estoppel to prevent a manifest injustice; and (5) no impairment of governmental functions if estoppel is applied. Bond v. Dep't of Soc. Health Servs., 111 Wn. App. 566, 575, 45 P.3d 1087 (2002) (citing Kramarevcky v. Dep't of Soc. Health Servs., 122 Wn.2d 738, 743-44, 863 P.2d 535 (1993)). As the law does not favor the application of equitable estoppel against the government, a party asserting the doctrine in such a case must establish that estoppel is necessary to prevent a manifest injustice and that it would not impair governmental functions. State ex rel. Munroe v. City of Poulsbo, 109 Wn. App. 672, 680, 37 P.3d 319 (2002) (citing Kramarevcky, 122 Wn.2d at 743).
The trial court correctly concluded that Atkinson failed to meet her burden of establishing by clear, cogent, and convincing evidence the aforementioned elements. Atkinson has not shown that (1) she had oral or written permission to allow Tonya to self-medicate; (2) DSHS made inconsistent statements or admissions; (3) estoppel is necessary to prevent a manifest injustice; and (4) there will be no impairment of government functions if the court applies estoppel. 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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and HOUGHTON, J., concur.