Richard Severson v. State Of Washington Dshs ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
April 5, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WASHINGTON STATE DEPARTMENT OF No. 46776-3-II
SOCIAL AND HEALTH SERVICES,
Respondent,
v.
RICHARD D. SEVERSON, UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — Richard Severson appeals a board of appeals (BOA) order affirming a
finding by the Department of Social and Health Services (DSHS) that he neglected or maltreated
his son. After DSHS investigated Severson’s son’s injury, it made a founded finding of neglect
or maltreatment. Several appeals ultimately culminated in a superior court decision affirming the
founded finding. In this appeal, Severson makes several procedural and substantive claims; in
essence, he argues that the finding of neglect or maltreatment is unsupported by substantial
evidence and that errors, which he broadly characterizes as procedural errors, deprived him of
due process. We affirm the BOA order affirming the finding.
FACTS
Severson and Cary Floyd had a 10-month-old son, “C.”1 On December 21, 2010, C
sustained a bruised forehead. Floyd sought treatment at a hospital, and a social worker
interviewed her there. Floyd told the social worker that Severson initiated a physical fight with
1
We refer to the minor by his initial to protect his privacy.
No. 46776-3-II
her, and while Severson was holding C, Severson repeatedly knocked Floyd’s head into a gate.
Floyd thought C sustained a bruised forehead while Severson was assaulting Floyd and holding
C. C had a “bruise on the crown area [of his head] that was purple and red in color and about a
half-dollar size.” Clerk’s Papers (CP) at 251.
DSHS initiated an investigation of whether Severson negligently treated or maltreated C.
This investigation involved multiple interviews with Floyd, examining medical records and a
police report, and interviewing Severson in jail where he was being held for assaulting Floyd.
During this investigation, Floyd revealed that she obtained a seven-inch gash on her shoulder,
some scrapes, and a swollen hand during the incident. C’s bruise was still visible during the
investigation. When CPS interviewed Severson in jail, he volunteered that he knew C had a
bruise and he pointed to the bruise’s location on his own forehead. He told the CPS worker that
he pulled Floyd down by the string on her coat hood while he was holding C.
On February 4, 2011, DSHS wrote a letter to Severson notifying him of its findings. It
wrote that the allegation that Severson neglected or maltreated C was founded2 because “by your
own admission you were holding [C] while you perpetrated a physical incident on Cary Floyd,
pulling Ms. Floyd down by her jacket string, ultimately causing [C] to hit his forehead on the
ground, and as a result [C] sustained a contusion/hematoma on his forehead.” CP at 63. It
concluded that these actions showed a “serious disregard to the consequences for [C] to such a
magnitude that it created a clear and present danger to the child’s health, welfare, and safety.”
CP at 63.
2
A “founded” finding is one that DSHS determines is more likely than not to be true. RCW
26.44.020(11).
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No. 46776-3-II
Severson requested an internal DSHS review of the founded finding, and DSHS upheld
its finding after the review. Severson then requested an administrative hearing at the Office of
Administrative Hearings (OAH). Severson chose to be assisted by paralegal Jacquie Darby at
the hearing; Darby acted in the role of Severson’s counsel. The DSHS investigator and Severson
testified at the hearing. The OAH administrative law judge (ALJ) found that much of the
evidence of Severson’s conduct, including the statements Floyd made to DSHS investigators,
and the police report, was inadmissible hearsay. She found that admitting these statements
would unjustifiably prejudice Severson’s rights. Therefore, without the corroboration of Floyd’s
hearsay statements and the police report, the ALJ reversed the finding of negligent treatment or
maltreatment for lacking sufficient evidence.
DSHS petitioned for review before a review judge at the BOA. After reviewing the
record, the BOA review judge reinstated the founded finding of negligent treatment or
maltreatment. The review judge concluded that sufficient evidence corroborated the hearsay
statements, allowing the hearsay statements to be admitted under Administrative Procedure Act3
(APA) standards. He also found that Floyd’s statements to the social worker fell under the
hearsay exception for statements for the purpose of medical treatment or diagnosis. Finally, he
found that there was sufficient evidence to sustain the founded finding even if all of Floyd’s
statements were inadmissible hearsay. Therefore, the BOA review judge found by a
preponderance of the evidence that Severson attacked Floyd while he was holding C, and in the
course of this attack Severson dropped C.
3
Ch. 34.05 RCW.
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No. 46776-3-II
Severson petitioned for judicial review in the superior court. After reviewing the record
and hearing oral argument, the superior court held that the BOA review judge did not make any
errors of law and that his findings of fact were supported by substantial evidence. Severson
appeals.
ANALYSIS
I. DISCRETIONARY REVIEW
As a preliminary matter, DSHS argues that we should reject Severson’s appeal because it
does not meet the criteria of RAP 2.3, which governs discretionary review. DSHS argues that
Severson already received his appeal as a matter of right in the superior court. We disagree
because Severson has the right to appeal the superior court’s determination under RAP 2.2.
RAP 2.2(a) lists the superior court decisions from which a party may appeal as a matter
of right. It states, in relevant part:
[E]xcept as provided in sections (b) and (c), a party may appeal from only the
following superior court decisions:
(1) Final Judgment. The final judgment entered in any action or
proceeding, regardless of whether the judgment reserves for future determination
an award of attorney fees or costs.
....
(3) Decision Determining Action. Any written decision affecting a
substantial right in a civil case that in effect determines the action and prevents a
final judgment or discontinues the action.
Thus, a party may directly appeal a final judgment or written decision determining the action.
RAP 2.2(c) provides that a superior court decision on review of a court of limited jurisdiction is
not appealable as a matter of right.
DSHS appears to argue that the administrative hearing and review process is essentially
trial in a court of limited jurisdiction, and, therefore, is not appealable as a matter of right under
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No. 46776-3-II
RAP 2.2(c), but this is incorrect. A court of limited jurisdiction is a court organized under Titles
3, 35, or 35A RCW. RCW 3.02.010. Neither the OAH nor the BOA is a court organized under
any of those titles; thus, neither is a court of limited jurisdiction. Therefore, the superior court’s
denial of Severson’s petition for review is a final order appealable as a matter of right under RAP
2.2. ABC Holdings, Inc. v. Kittitas County, 187 Wn. App. 275, 282, 348 P.3d 1222, review
denied, 184 Wn.2d 1014 (2015).
II. FINDING OF NEGLECT
Severson makes over 20 arguments claiming that we should reverse the finding of neglect
or maltreatment. Broadly, he argues that the finding (1) is not supported by substantial evidence
and (2) should be reversed due to many errors he broadly characterizes as procedural. We
disagree.
A. Statutory and Regulatory Framework
Chapter 26.44 RCW, addressing abuse of children, permits DSHS to investigate reports
of child abuse or neglect. RCW 26.44.030. DSHS is required to complete such investigations
within 90 days from the date of receipt of the report, subject to certain exceptions. RCW
26.44.030(12)(a). At the end of the investigation, DSHS finds whether the report of child abuse
or neglect is founded or unfounded. RCW 26.44.030(12)(a). “Founded” means that it is more
likely than not that the reported child abuse or neglect occurred. RCW 26.44.020(11). Relevant
to Severson’s case, negligent treatment or maltreatment of a child means an act or omission that
“evidences a serious disregard of consequences of such magnitude as to constitute a clear and
present danger to a child’s health, welfare, or safety.” RCW 26.44.020(16).
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No. 46776-3-II
DSHS must notify the alleged perpetrator of child abuse or neglect that a founded report
exists, and of its legal consequences. RCW 26.44.100(2). The alleged perpetrator may request
that DSHS review the finding. RCW 26.44.125(2). DSHS management must then review the
finding, and may amend the finding if appropriate. RCW 26.44.125(4). If the report remains
founded after agency review, the alleged perpetrator may request an adjudicative hearing to
contest the finding, which hearing is governed by the APA. RCW 26.44.125(5).
B. Standard of Review
We sit in the same position as the superior court when reviewing an agency action under
the APA. Tapper v. Emp’t Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). We apply the
standards of the APA directly to the record before the agency. 122 Wn.2d at 402. RCW
34.05.570(3) allows us to reverse an agency’s adjudicative decision in several circumstances,
only four of which apply here: (1) the order violates constitutional provisions on its face or as
applied, (2) the agency engaged in an unlawful procedure or decision-making process or failed to
follow a prescribed procedure, (3) substantial evidence does not support the order, or (4) the
order is arbitrary or capricious. Furthermore, 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). Severson has the burden of demonstrating the invalidity of the final order. See
RCW 34.05.570(1)(a).
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). We do not “substitute our
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No. 46776-3-II
judgment for that of the agency regarding witness credibility or the weight of evidence.”
Affordable Cabs, Inc. v. Dep’t of Employment Sec., 124 Wn. App. 361, 367, 101 P.3d 440(2004). We view the evidence in the light most favorable to the party who prevailed in the
highest forum that exercised fact-finding authority. Spokane County v. E. Washington Growth
Mgmt. Hearings Bd., 176 Wn. App. 555, 565, 309 P.3d 673 (2013). Under RCW 34.05.464, we
review the review judge’s findings of fact to the extent that they modify or replace the ALJ’s
findings.4 Tapper, 122 Wn.2d at 405-06.
C. Substantial Evidence
Severson alleges a broad variety of errors, which we address below. He does not clearly
argue that substantial evidence does not support the BOA’s decision, but he appears to disagree
with the factual findings. We treat these statements as a challenge to the substantial evidence
supporting the BOA’s decision affirming the founded finding of neglect. We hold that
substantial evidence supports the finding of neglect.
Administrative courts should not rely exclusively on hearsay evidence if doing so would
unduly abridge the parties’ opportunities to confront witnesses and rebut evidence. WAC 388-
02-0475(3). “Hearsay” is an out-of-court statement offered to prove the truth of the matter
asserted. ER 801(c). Hearsay evidence is admissible in an administrative hearing if it is “the
kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of
their affairs.” RCW 34.05.452(1).
4
Severson makes several arguments specifically about the procedure before the ALJ. We
generally review the BOA review judge’s findings and conclusions, but in this opinion we
address the ALJ’s actions when Severson contests them specifically.
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No. 46776-3-II
Here, the BOA review judge altered the credibility determinations of the ALJ and found
that Floyd’s non-hearsay statements to the social worker at the hospital, the injuries to Floyd and
C, and the fact that Severson was not injured were sufficient to corroborate Floyd’s hearsay
statements to police and DSHS. The review judge further found that, even if all of Floyd’s
statements were hearsay, the ALJ erred by finding that they were not corroborated by the
police’s observations of injuries and the hospital records. Based on this record, Severson fails to
demonstrate that the findings are not supported by substantial evidence that Severson was
neglectful of C when he held him while attacking Floyd.
Nor does Severson demonstrate error in the BOA review judge’s conclusions of law. The
reviewing judge’s findings that Severson chose to physically fight with Floyd while holding C
supports the DSHS founded finding that Severson’s actions rise to the level of negligent
treatment or maltreatment. Thus, we hold that substantial evidence supports the order affirming
the founded finding of neglect.
D. Due Process Challenges
The remainder of Severson’s arguments challenge various procedures, claiming that they
violated his due process rights. We have the authority to reverse DSHS’s decision if Severson
shows that one of the conditions in RCW 34.05.570(3) is met. Among those criteria, three are
relevant here: whether DSHS failed to follow a prescribed procedure; whether its ruling is
arbitrary or capricious; or whether the order, statute, or rule on which the order is based violates
constitutional provisions. RCW 34.05.570(3). Moreover, the agency action Severson complains
of must have substantially prejudiced him. RCW 34.05.570(1)(d). We hold that Severson fails
to show any reversible error.
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No. 46776-3-II
1. Impartiality
Severson argues that the BOA review judge, as a DSHS employee, cannot be an impartial
judge and, therefore, Severson’s due process rights were violated. The APA permits DSHS to
render final agency decisions. Under 34.05.425(1) of the APA, the presiding officer in an
administrative hearing is required to be either the head of the agency or one or more members of
the agency head, some other person designated by the agency head, or an administrative law
judge. Severson cites no authority that RCW 34.05.425(1) results in a due process violation
merely because the final decision is rendered by a DSHS employee.
Nor is the fact that the review judge is a DSHS employee a basis for disqualification.
The APA provides that an employee will be “disqualifi[ed] for bias, prejudice, interest, or any
other cause provided in this chapter or for which a judge is disqualified.” RCW 34.05.425(3).
We assume that an adjudicator is impartial, and the party claiming bias must make an affirmative
showing that bias exists. Nationscapital Mortg. Corp. v. Dep’t of Fin. Insts., 133 Wn. App. 723,
766, 137 P.3d 78 (2006). The combination of investigative, prosecutorial, and adjudicative
functions within an agency does not violate due process. Nationscapital Mortg. Corp., 133 Wn.
App. at 766.
Here, Severson has not provided any direct or circumstantial evidence that the BOA
review judge was biased. He provides no authority that would allow us to infer bias from the
sole fact that DSHS employed the review judge. See Hardee v. Dep’t of Soc. & Health Servs.,
152 Wn. App. 48, 57-58, 215 P.3d 214 (2009) (rejecting a similar argument). And our Supreme
Court has held that there is “no inherent unfairness in the mere combination of investigative and
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No. 46776-3-II
adjudicative functions.” Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 479, 663 P.2d 457(1983); see also Hardee, 152 Wn. App. at 58. Severson’s claim fails.
2. Timeliness
Severson argues that DSHS violated his constitutional due process rights by exceeding
the 90-day time limit for investigations. Because Severson provides no argument or authority
supporting this due process argument, we do not consider it. Cowiche Canyon Conservancy v.
Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Severson also argues that DSHS untimely filed its exhibits and witness list. Under a
prehearing order, a hearing was set for September 10, 2012. The order required DSHS to mail its
proposed exhibits and final witness list to Severson by July 31, 2012. The administrative record
contains a handwritten annotation by Severson averring that DSHS did not mail the exhibits or
the witness list until August 20. But even taking this allegation as true, Severson fails to show
that the untimely mailing substantially prejudiced him as is required by RCW 34.05.570(1)(d).
Thus, this claim fails.
3. Order About Allegations
Severson argues that the DSHS violated an order that it would argue only that Floyd was
holding C. He argues that the sixth prehearing order (preparing for the hearing before the ALJ)
contains this order, and that DSHS later violated it by arguing that Severson was holding C. This
allegation refers to the “ISSUES” section of the prehearing order, in which the ALJ wrote:
The Department alleges that on December 21, 2010, Mr. Severson assaulted the
mother of the child [C] (born February 2, 2010) when she was holding the child,
resulting in injury to the child and to the mother. The Department contends these
actions constituted negligent treatment or maltreatment of a child by Mr. Severson.
The bases for the Department’s action are specified in the Department’s
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No. 46776-3-II
notification letter dated February 4, 2011. The hearing in this matter will be
limited to those allegations.
CP at 147 (emphasis added) (boldface omitted). The order clearly provides that the hearing will
be limited to the allegations listed in DSHS’s notification letter dated February 4. In the
February 4 letter, DSHS alleged that Severson was holding C. Thus, DSHS did not violate this
order by alleging that Severson was holding C.
4. Evidentiary Rules
Severson argues that the evidentiary rules apply to these proceedings and that DSHS
somehow violated his due process rights. This argument fails to articulate the basis of the
challenge; Severson does not say whether he is contesting evidence that was admitted or arguing
that other evidence was wrongly excluded. Nor does he state which evidence is at issue.
Because he does not adequately explain the nature of his argument, we do not consider it. See
RAP 10.3(a)(6).
5. Lawyer-Client Conflict
Severson argues that his “hired help” stipulated away a valuable right of her client,
Severson, by allowing the DSHS exhibits into the record against his wishes and without
consulting Severson. This challenge fails.
First, Severson chose for Darby to assist him and act as his representative at the hearing;5
thus, he chose for Darby to advocate in his place. Second, the record does not show that
Severson specifically objected to parts of the record; it shows instead that he attempted to speak
5
Under WAC XXX-XX-XXXX, a party may be represented at a DSHS hearing at OAH by anyone,
including a paralegal.
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No. 46776-3-II
to represent himself at the hearing, and the ALJ did not let him represent himself because he
chose to use Darby as a spokesperson. Thus, any claim about specific exhibits Severson
personally objected to is outside our record.
6. Right To Speak
Severson argues that his constitutional right to speak and participate in the hearing was
violated. This challenge also fails.
First, Severson fails to establish that there is a constitutional right to speak at an
administrative hearing. Second, this claim is factually unsupported. There is no transcript of the
September 10, 2012 hearing, thus Severson has failed to carry his burden of showing that he was
disallowed from speaking there.
Severson also argues that he was not allowed to participate in the October 1, 2012
hearing, but he testified at that hearing. Because he elected to be represented, the ALJ ruled that
Severson could not speak in a self-representing capacity. Thus, it is incorrect for Severson to
argue that he was not allowed to speak at the October 1 hearing; he did testify, and he chose to
be represented by Darby rather than to represent himself.
7. Review of Record
Severson argues that the BOA review judge failed to review the entire record. It appears
Severson is arguing that the review judge should have contemplated Floyd’s medical records
which showed that she had a scratch on the day of the incident and which did not mention a
“gash.” Br. of Appellant at 36. But these medical records were not in the administrative record;
thus, the review judge did not fail to review the record by failing to review these extraneous
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No. 46776-3-II
documents. See RCW 34.05.558, .562(1); Okamoto v. Employment Sec. Dep’t, 107 Wn. App.
490, 494-95, 27 P.3d 1203 (2001).
Similarly, Severson argues that those medical documents showed that Floyd had a
“scratch” rather than a gash. Br. of Appellant at 36 (citing CP at 907). Weighing the credibility
of the evidence was within the authority of the BOA review judge, and we do not substitute our
judgment for that of the agency regarding the credibility or weight of evidence. Affordable
Cabs, Inc., 124 Wn. App. at 367.
8. Confrontation
Severson appears to argue that his right to confront witnesses was violated. However,
this right is unique to criminal law. See U.S. CONST. amend VI; WASH. CONST. art. I, § 22;
RCW 10.52.060. Thus, the claim fails.
9. Legal Standard
Severson argues that the appropriate standard for findings of neglect should be clear and
convincing evidence, not a preponderance of the evidence, because the risk of loss of liberty is
great. Under RCW 26.44.020(11), the evidentiary standard for a finding of neglect is
preponderance of the evidence. We have already rejected the argument that due process requires
a higher standard of proof when DSHS makes a finding of neglect of an adult. Raven v. Dep’t of
Soc. & Health Servs., 167 Wn. App. 446, 471, 273 P.3d 1017 (2012), rev’d on other grounds,
177 Wn.2d 804, 306 P.3d 920 (2013). Similarly here, due process does not require a higher
standard of proof for a finding of neglect of a child.
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No. 46776-3-II
10. Stricken Argument
Severson argues that the ALJ wrongly struck Severson’s written argument about DSHS’s
evidence because DSHS did not have an opportunity to respond. We disagree.
Severson moved to dismiss the case. DSHS filed a response to this motion, and Severson
filed “additional argument and documents” in support of the motion to dismiss on the date his
reply to DSHS’s response was due. CP at 381. The ALJ concluded that this additional argument
and documents were not a reply to the response, but were instead “additional arguments to which
the Department did not have an opportunity to respond.” CP at 383. Thus, the ALJ struck them.
The ALJ has broad discretion to govern hearing procedures. See WAC 10-08-200(1), (4),
(8), (9), (11). Severson cites no authority to establish that he had a right to present additional
argument and documents, rather than reply to DSHS’s response. Thus, he fails to carry his
burden of showing that the ALJ erred by exercising her discretion and refusing to let him do so.
RCW 34.05.570(a). Nor does he show that the ALJ’s decision to strike Severson’s argument
substantially prejudiced him. RCW 34.05.570(1)(d). Thus, this is not a basis for reversing the
finding.
11. Superior Court
Severson argues that the superior court erred by affirming the DSHS review. But we
look to the agency’s decision, not the superior court’s. Tapper, 122 Wn.2d at 402.
12. Contempt
Severson argues that DSHS is in contempt of court for improperly reviewing the
evidence and for failing to provide the complete record. There was never an order compelling
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No. 46776-3-II
DSHS to add to the record or review the record differently; thus, DSHS is not in contempt for
violating any such order.
13. Self-Defense
Severson appears to argue that he should have obtained judicial review on the issue of
whether he appropriately used self-defense, apparently against Floyd. But the question in this
case was whether Severson neglected or maltreated C, not whether any force he exerted against
Floyd was permissible. Thus, any self-defense argument was irrelevant to the proceeding.
14. Other Arguments
Severson lists 13 arguments at the end of his brief, which are labeled “Short Summary.”6
Br. of Appellant at 42. Some of them are restatements of arguments we address above. To the
extent Severson attempts to make new arguments in this summary, he fails because he cites
neither legal authority nor the record. See RAP 10.3(a)(6). Severson also raises several new
arguments for the first time in his reply brief; we do not consider them. RAP 10.3(c).
ATTORNEY FEES
Severson requests attorney fees in the amount of $15,000, citing RCW 9A.16.110. RCW
9A.16.110(2) allows an award of attorney fees to a person acquitted of a violent crime by reason
6
They are that (1) DSHS does not cite a legal authority in its finding; (2) “The DSHS evidence is
not lawfully submitted into the record;” (3) DSHS did not appear for the September 10, 2012
hearing, and was therefore in default; (4) DSHS provided only hearsay evidence; (5) DSHS
made “many false statements of fact;” (6) the DSHS review judge is a DSHS employee; (7)
DSHS maintains the record; (8) the DSHS review judge failed to review whole record; (9) the
DSHS review judge reversed the finding based on a nonexistent 7-inch gash; (10) Severson
could not defend himself by speaking at the hearing; (11) “The appellant loses many
constitutional rights if the finding stands;” (12) Severson did not have the benefit of a jury, the
ability to defend himself, or an impartial tribunal; and (13) Severson is indigent, so this
proceeding has been prejudicial. Br. of Appellant at 42-43.
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No. 46776-3-II
of self-defense; it is inapplicable to this case. Moreover, Severson cites no authority for a pro se
litigant to receive attorney fees. He is therefore not entitled to them. RAP 18.1.
In conclusion, we affirm BOA’s order affirming the finding of neglect. We deny
Severson’s request for attorney fees.
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.
Worswick, P.J.
We concur:
Johanson, J.
Lee, J.
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