Ibaq Mohamed v. Dshs ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IBAQ MOHAMED, No. 77885-4-1
Appellant, DIVISION ONE
V. UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,
Respondent. FILED: March 4, 2019
CHUN, J. — lbaq Mohamed appeals from a superior court ruling upholding
a Board of Appeals decision that she physically abused H.J.,1 a vulnerable adult.
Mohamed contends that the Board of Appeals review judge improperly prejudged
the case based on the superior court's prior entry of a protection order against
her. However, the Board of Appeals review judge followed the superior court's
mandate on remand and deliberately reviewed the evidence without considering
the protection order. And substantial evidence in the record supports the finding
of abuse. We affirm.
BACKGROUND
In January 2014, 79-year old H.J. visited her primary care physician.
Based on concerns about H.J.'s level of stress and her living situation, H.J.'s
doctor referred her to Dr. Anya Zimberoff, who is a doctor of clinical psychology
1 We use the vulnerable adult's initials, H.J., to protect her privacy.
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and a mental health treatment provider. H.J. visited Dr. Zimberoff the same day,
accompanied by her granddaughter. H.J. speaks Somali and she communicated
with Dr. Zimberoff through her granddaughter.
H.J. was living in an apartment and required in-home assistance for daily
tasks. H.J.'s grandson, Gasle,2 had agreed to provide care in exchange for
housing. For this reason, H.J. included him on her Section 8 housing application.
Gasle was involved in a relationship with lbaq Mohamed and they had a child
together.3
H.J. reported to Dr. Zimberoff that she was increasingly "stressed out" by
the behavior and demands of her grandson and Mohamed. H.J. described
several incidents that distressed her. For instance, about 10 months earlier
when the couple argued, H.J. tried to intervene, and Mohamed hit H.J. forcefully
in the chest and caused her to fall to the ground. H.J. said that on another
occasion, Mohamed threatened her with physical violence and told her she might
lose her subsidized housing and end up homeless. According to Dr. Zimberoff,
H.J. appeared to be "anguished" over the situation because she wanted to
protect her family, but at the same time, she felt afraid and betrayed.
Dr. Zimberoff reported her concerns about abuse of a vulnerable adult to Adult
Protective Services (APS), a division of the Department of Social and Health
Services (the Department).
2 Because he shares a last name with H.J., we refer to Gasle by his first name to protect
the victim's privacy.
3 Gasle and Mohamed were married in a religious ceremony, but not legally married.
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APS social worker Marleen Aguon investigated the report. In the course
of her investigation, Aguon interviewed H.J. with the assistance of a Somali
interpreter. She also interviewed Dr. Zimberoff, H.J.'s granddaughter, H.J.'s
neighbor, and Mohamed. She attempted to interview Gasle, but was unable to
reach him. H.J. told Aguon about the incident when Mohamed hit her and
caused her to fall. H.J. reported that the police responded and arrested
Mohamed as a result of the incident and that medics took her to the hospital.
She told Aguon that she experienced pain for several days afterward. H.J.
described another incident when Mohamed yelled at her and blamed her for
causing an argument between her and Gasle. H.J. described a third incident
when Mohamed yelled at her about the Section 8 housing application, threatened
to make a false accusation against her, and told her she would "suffer the
consequences of being homeless." H.J. said she felt "terrorized" in her own
home.
H.J. told Aguon that she had taken some steps to protect herself, including
changing the locks, and asking another relative to stay with her at night in case
Mohamed and Gasle returned. H.J.'s neighbor corroborated some details of her
allegations.
Aguon also reviewed a police report describing the domestic violence
incident involving Gasle, Mohamed, and H.J. According to the report, around
midnight on March 21, 2013, Gasle called 911, claiming that Mohamed assaulted
both him and his mother. Before police officers arrived, Mohamed called 911
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herself. Mohamed said that, in fact, Gasle assaulted her and then told his
grandmother to "fake an injury."
When police officers arrived at the apartment, they first spoke to
Mohamed. Mohamed said she was seven weeks pregnant, she came to H.J.'s
apartment to give Gasle a ride, and he slapped her in the face and then tried to
kick her down the stairs. Gasle informed the officers that Mohamed was upset
because he was not answering her telephone calls. He said that Mohamed
came to the apartment, and when he answered the front door, she struck him in
the face, causing a cut to his lip. Gasle revealed a fresh cut on his upper lip that
was bleeding slightly. Gasle said that H.J. tried to separate him and Mohamed,
and Mohamed struck his grandmother, who fell to the ground. Police officers
were unable to communicate with H.J., but observed her on the floor of the
apartment, asking for "Allah."
Because only Gasle had a visible injury, the officers determined that
Mohamed was the primary aggressor and arrested her. Once Gasle understood
that the officers intended to arrest Mohamed, he objected and refused to provide
a written statement or allow the officers to photograph his injury. Emergency
medical personnel arrived and took H.J. to the hospital for treatment.
In April 2014, at H.J.'s request, Aguon filed a petition for a Vulnerable
Adult Protection Order(VAPO)on her behalf. H.J. dictated a declaration to a
Somali interpreter, and Aguon submitted it to the court in support of the
protection order. In her declaration, H.J. said Mohamed hit her "really hard" and
then she went to the hospital in an ambulance. After a hearing in April 2014, the
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court entered a VAPO. It expired three years later in April 2017. In issuing the
VAPO, the superior court found that Mohamed committed "acts of abandonment,
abuse, neglect, and/or financial exploitation" of a vulnerable adult. The court
further found that Mohamed represented a "credible threat" to H.J.'s physical
safety.
After completing its investigation, APS determined that Mohamed
physically and mentally abused a vulnerable adult. See RCW
74.34.020(2)(b), (c). The Department informed Mohamed of its decision and of
her right to request an administrative hearing. When she received the
Department's letter, Mohamed learned that her name would be placed on a state
registry that would preclude her from employment involving the care of
vulnerable adults or children. Mohamed requested a hearing before an
Administrative Law Judge (AU).
The Department moved to dismiss Mohamed's hearing request, arguing
that the matter of abuse was previously resolved in 2014, when the superior
court entered a VAPO restraining Mohamed and the doctrine of collateral
estoppel barred relitigation. The AUJ denied the motion. Because the VAPO did
not include specific findings setting forth the facts that served as a basis for the
court's order, the AUJ could not conclude that the issues in the two cases were
identical.
Several witnesses testified at the two-day hearing before the AU,
including Dr. Zimberoff, Aguon, a police officer, and Mohamed. According to
Mohamed, on the day of the 2013 domestic violence incident, Gasle repeatedly
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called and harassed her. Eventually, he apologized. But later, when she arrived
at H.J.'s apartment to pick him up, he accused her of infidelity and they continued
to fight. After Mohamed threatened to sell his television and use the proceeds to
pay her rent, Gasle slapped her on the face. Gasle then went into the apartment
and Mohamed followed because she wanted an apology. When H.J. answered
the door, Mohamed told her that Gasle struck her. When Mohamed indicated
that she was going to call the police, Gasle, afraid of going to jail, told his
grandmother,"We have to say she came to our house, she hit me, she hit you,
throw yourself on the floor." H.J. proceeded to throw herself on the floor,
pretended to be injured, and yelled at Mohamed for hitting her.
According to Mohamed, police officers told her Is]omebody has to go to
jail tonight," and they decided to arrest her because Gasle sustained a cut.
Mohamed speculated that Gasle might have bitten himself with his "long teeth."
Mohamed also said she did not challenge the 2014 protection order because she
did not want to see H.J. and felt threatened by her.
In addition to her testimony, Mohamed presented Gasle's July 2014
declaration in her defense. In the declaration, Gasle stated that Mohamed did
not perpetrate "any kind of abuse" toward his grandmother and specifically, did
not hit or push her. Gasle explained that although he initially told police officers
that Mohamed slapped him, he was "confused" because they had been arguing.
The AUJ issued an initial order, reversing the Department's findings of
physical and mental abuse. The Department petitioned for review to the Board of
Appeals (BOA). In its review decision and final order, a BOA review judge
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reversed the AL's initial order and reinstated the Department's findings of
abuse.
Mohamed filed a petition for judicial review and the superior court granted
the petition in part. The court remanded the case to the BOA to apply the
standard of willfulness consistent with a decision issued by Division Three of this
court after the BOA review judge decided the appeal. See Crosswhite v. Dep't of
Soc. & Health Servs., 197 Wash. App. 539, 389 P.3d 731, review denied, 188
Wash. 2d 1009, 394 P.3d 1016 (2017)(redefining the standard willfulness as set
forth in former WAC XXX-XX-XXXX).4
On remand, a different BOA review judge entered a 58-page review
decision and final order, again affirming the Department's findings of abuse. In
particular, applying the standard of willfulness the court articulated in Crosswhite,
the review judge determined that Mohamed committed physical abuse when she
struck H.J.
Based on a review of the entire evidentiary record, it must be
concluded that the Department has proven by a preponderance of
the evidence that the Appellant did intentionally and with willful action
strike H.J. in the chest, causing her to fall to the ground and to
experience pain for several days later. There is no evidence that the
Appellant's actions were unintentional or were mere accidents.
Again, the Appellant knew, [sic] that her actions would cause some
form of harm and injury to H.J.
4 In Crosswhite, the court held that the phrase "knew or should have known" as set forth
in the definition of willful under former WAC XXX-XX-XXXX impermissibly treated knowledge as
negligence and the phrase "negative outcome" was beyond the scope of abuse as defined by
RCW 74.34.020. Crosswhite, 197 Wash. App. at 555-58. The current regulation does not include a
definition of willfulness.
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Mohamed petitioned for judicial review and the superior court denied the petition
as to the finding of physical abuse, but granted the petition as to the finding of
mental abuse. Mohamed appeals.
ANALYSIS
Mohamed raises two primary arguments on appeal. First, she contends
that this court should disregard the BOA's findings and its conclusion of physical
abuse because the review judge believed that a finding of no abuse would
impermissibly conflict with the superior court's prior entry of a VAPO. Second,
she argues that the evidence in the record is insufficient to support the
determination of abuse.5
Washington's Administrative Procedure Act(WAPA), chapter 34.05 RCW
governs Mohamed's appeal of a final agency order. Crosswhite, 197 Wash. App. at
547. When reviewing agency action, this court "sits in the same position as the
superior court, applying the standards of the WAPA directly to the record before
the agency." Tapper v. Emp't Sec. Dep't, 122 Wash. 2d 397, 402, 858 P.2d 494
(1993); Goldsmith v. Dep't of Soc. & Health Servs., 169 Wash. App. 573, 584, 280
P.3d 1173(2012). Appellate review is of the BOA's decision, not the decision of
the superior court. Buechel v. Dep't of Ecology, 125 Wash. 2d 196, 202, 884 P.2d
910 (1994). A court may grant relief from an administrative decision only if the
party challenging the decision shows:(1)the agency erroneously interpreted or
applied the law;(2) the decision is not based on substantial evidence; or (3) the
5 Mohamed assigned error to more than 50 findings of fact and conclusions of law.
However, because her briefing fails to address any findings with specificity, we deem these
assignments abandoned. See Kadoranian v. Bellingham Police Dep't, 119 Wash. 2d 178, 191, 829
P.2d 1061 (1992)(an assignment of error that is "neither argued nor briefed" is waived).
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decision is arbitrary or capricious. RCW 34.05.570(3); Tapper, 122 Wash. 2d at 402;
Premera v. Kreidler, 133 Wash. App. 23, 31, 131 P.3d 930 (2006).
When a party asserts that an agency's decision is not supported by
substantial evidence, we review the entire record to determine whether sufficient
evidence exists to persuade a fair-minded person of the truth or correctness of
the order. Port of Seattle v. Pollution Control 1-Iros Bd., 151 Wash. 2d 568, 588, 90
P.3d 659 (2004); Spokane County v. E. Wash. Growth Mornt. Hr'gs Bd., 176 Wn.
App. 555, 565, 309 P.3d 673(2013). 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, 176 Wash. App. at 565. This court defers to
the BOA's determination of the credibility of witnesses and weight of evidence.
Spokane County, 176 Wash. App. at 565.
In the review decision and final order, the review judge raised concerns
about an administrative proceeding that could theoretically reach a result in direct
conflict with an existing superior court order. Based on this discussion,
Mohamed contends that the BOA review judge was unable to objectively review
the record.
However, regardless of the merits of the concern about the supremacy of
the superior court as a forum, the review judge deliberately and explicitly set
aside that issue and reviewed the sufficiency of the evidence in the record
without regard to the VAPO:
The undersigned recognizes that that the Department had made a
pre-hearing motion for dismissal of the Appellant's hearing request
based on the existence of the VAPO, a motion that was denied and
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No. 77885-4-1/10
not appealed to the BOA prior to the merits hearing being held. The
Department did raise the collateral effect of the VAPO in the petition
for review of the Initial Order. The undersigned also realizes that the
Superior Court has remanded this case to the BOA for another
review under the recent Crosswhite decision without addressing the
effect of the existing VAPO in the order of remand. It is for this later
[sic] reason, the undersigned has decided the case without
consideration of, and prior to addressing, the VAPO in this decision.
However, for ongoing jurisdictional concerns, the issue still must be
addressed in this decision. The appellate courts will eventually have
to address this issue in either this case on judicial review or in some
other case in the future.
Accordingly, before discussing the implication of the VAPO, the review judge
carefully considered and weighed the evidence, made over 100 factual findings,
and entered conclusions. The BOA's findings and conclusions of abuse do not
rest, in whole or in part, on the prior entry of the VAPO. The review judge
followed the superior court's order on remand and reviewed the evidence in light
of the analysis in Crosswhite. The Board's comments anticipate a future case in
which findings entered in the context of an administrative proceeding could be
susceptible to challenge in the face of a contrary superior court order. But this is
not such a case. We decline Mohamed's invitation to reverse the BOA's review
decision and final order based on nothing more than speculation.
There are several aspects of Mohamed's challenge to the sufficiency of
the evidence supporting the BOA's finding of physical abuse. She claims that the
BOA improperly relied solely on hearsay evidence and failed to properly accord
deference to the All's factual determinations.
The WAPA expressly provides that hearsay evidence is admissible in
administrative proceedings if "in the judgment of the presiding officer it is the kind
of evidence on which reasonably prudent persons are accustomed to rely in the
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conduct of their affairs." RCW 34.05.452(1). "Findings may be based on such
evidence even if it would be inadmissible in a civil trial." RCW 34.05.461(4). The
only limitation on findings of fact based on hearsay evidence is that the opposing
party must have an opportunity to confront the evidence and rebut it.
RCW 34.05.461(4).
Also, under the WAPA,the review judge has the same decision-making
authority in entering the final order that the AUJ had while presiding over the
hearing and entering the initial order. RCW 34.05.464(4). This is subject to the
proviso that the review judge must give "due regard" to the AL's "opportunity to
observe the witnesses." RCW 34.05.464(4). Where the AUJ and the review
officer enter contradictory findings, we do not accord the deference to the AUJ
that we would accord to the trier of fact in a nonadministrative matter, because
the review officer has broad decision-making authority and is intended to bring
the agency's expertise to bear. Crosswhite, 197 Wash. App. at 548.
Mohamed largely ignores the BOA's extensive analysis of both of these
issues. She does not acknowledge the BOA's determination that H.J.'s
statements to Dr. Zimberoff were made for the purpose of medical treatment and
therefore exempt from the hearsay rule. The review judge explained in detail the
factors he considered in assessing the reliability of each item of hearsay
evidence and specifically determined that the Department's records and police
reports are "reasonably relied upon by prudent persons in the conduct of their
affairs." And the record demonstrates that Mohamed had the opportunity to
challenge the evidence. Mohamed, who was represented by counsel, had the
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opportunity to cross examine the witnesses, testify to her own version of the
events, call witnesses, and present evidence. She does not dispute that the
Department provided its proposed exhibits to her before the hearing, which
included H.J's declaration and the Department's records. No authority supports
Mohamed's position that the Department was required to present H.J.'s live
testimony.
The BOA review judge also carefully considered the AL's opportunity to
observe the witnesses. But as the review judge noted, the AUJ made no
credibility determination that depended on an assessment of a witness's
demeanor. Rather, the AUJ credited Mohamed's testimony because she was the
only witness with "first-hand knowledge" of the incidents. The BOA review judge
found that in order to credit Mohamed's account, he would have to accept a
number of implausible facts. Namely, if Mohamed's account is true, then it also
would have to be true that H.J. participated in a dramatic scheme to mislead the
police, allowed herself to be taken to the hospital to treat a fake injury, and then
perpetuated the falsehood many months later, when it was no longer necessary
to protect her grandson.
Mohamed also claims that the BOA review judge failed to consider
evidence that was favorable to her. And she offers a number of reasons why the
review judge should have discredited the evidence supporting the Department's
position. But the review judge's comprehensive review decision and final order
took into account the entire record, including those facts favorable to Mohamed.
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And as explained, we defer to the BOA on issues of credibility and
persuasiveness of the evidence. See Spokane County, 176 Wash. App. at 565.
Taking into account the BOA's role as fact finder in assessing the
persuasiveness and credibility of the evidence presented below, we conclude
that substantial evidence in the record supports its finding that Mohamed
engaged in physical abuse. We affirm the BOA's final order.
WE CONCUR:
.F"
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