Ashley Brown v. Dept. of Social & Health Services, CPS

1 FILED
OCTOBER 8, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

ASHLEY BROWN, )
) No. 32761-2-111
Appellant, )
)
V. )
)
DEPARTMENT OF SOCIAL AND ) PUBLISHED OPINION
HEALTH SERVICES, CHILD )
PROTECTIVE SERVICES, )
)

I FEARING, J. -
Respondent.

The Department of Social and Health Services (DSHS) found

Ashley Brown to have "neglected" her son John, within the meaning ofRCW

26.44.020(16), because she did not immediately seek treatment for John when he suffered

bums while in the care of Brown's boyfriend. John is a fictitious name we give the son.

Brown cared for the wound on her own for ten days by applying cream. She later sought

treatment at a local hospital emergency room when the bum bled. Because the record

does not establish that Brown's conduct constituted a serious disregard of consequences

of such magnitude as to constitute a clear and present danger to her child's health, we

reverse DSHS' finding and dismiss the allegation of neglect against Brown. In so
I
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holding, we emphasize the lack of evidence that taking John for medical care at an earlier

date would have resulted in different treatment of the burn.

FACTS

This statement of facts relies on testimony of witnesses at an administrative

hearing, while heavily borrowing from the administrative law judge's findings of fact

based on the hearing. Ashley Brown, Brown's boyfriend Joshua Brink, and Brown's

two-year-old son, John, resided in a trailer in Elk, a rural community in Spokane County.

Brown enjoys working with children and wishes to help children who lived in an abusive

home.

On the evening of November 27,2012, while Ashley Brown worked and Joshua

Brink cared for John, John suffered burns on his scrotum and buttocks. Brink claimed

that John sustained the burns when John opened the flow of water from the hot water

faucet while sitting in the tub. Brink had left the bathroom to answer the home's front

door.

According to Joshua Brink, his co-worker, Alexa Groce, knocked on the home's

door and he answered the knock. While Brink and Groce chatted, the two heard John

scream, and both ran to the bathroom. Brink found John sitting on his butt with his knees

bent so his feet were against the wall of the tub. John used the walls of the tub to balance

himself as the tub filled with scalding water. Only a little water was inside the tub.

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The water burned John's bottom and scrotum. Joshua Brink immediately removed

John from the tub and placed him in cold water for ten to fifteen minutes. The record

contains a conflict as to whether Brink saw John's skin peel after removing the young

boy from the cold water. Neither Brink nor Alexa Groce deemed it necessary to transport

John to the emergency room.

After tending to John, Joshua Brink called Ashley Brown, who worked as the

manager for a Subway restaurant. Brink informed Brown that John suffered bums in the

bathtub. Brown immediately came home to care for John. When Brown arrived at home,

John was not crying and was sitting down.

Upon returning home on the evening of November 27, Ashley Brown examined

the bum. She later described the wound as red, white and "wrinkly," and similar to a

sunburn. Clerk's Papers (CP) at 241. Brown researched child bum care on the Internet

and learned to apply cream or ointment and to continue observation of the bum.

According to the Internet, if the child's condition did not improve in seven days, the

parent should take the child to the hospital.

On the night of November 27, Ashley Brown drove to Wal-Mart. She purchased

bum cream, returned home, and applied the cream to John's bum. That night both Joshua

Brink and Brown spoke with their respective mothers on the phone about nursing the

bum. Brink's mother formerly worked as a pharmacist at Spokane's Holy Family

Hospital. She advised the couple to keep John's diaper dry and to take the boy to the

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hospital on any sign of infection. Brown observed John during the nights of November

27 -28 and changed his diaper as soon as he soiled it.

On November 28,2012, Joshua Brink took John with him to work at Groce

Logging as he normally did. Ashley Brown had obtained a domestic violence restraining

order against John's biological father, Curtis Diaz, preventing Diaz from contacting John

and her. Diaz threatened to remove John from daycare while Brown worked, so Brink

took John to work, where Alexa Groce watched the toddler.

On November 28, Joshua Brink asked his boss, Robert Groce, a logger certified in

first aid, to examine the bum, which Groce did. Groce had earlier played with John and

did not notice John suffering from any ailment. Groce later described the bum, as it

appeared on November 28, as "a perfect, round little circle." CP at 168. He did not

recommend any medical treatment. Groce, who saw John nearly every day for the next

ten days, noticed no change in John's behavior during the week and one-half. John did

not scream or cry.

Beginning on November 28,2012, Ashley Brown treated John's bum with cream

and by frequently changing John's diaper. On November 29, Brown returned to Wal-

Mart and spoke with a pharmacist. The pharmacist recommended continued application

of bum cream and giving John children's Tylenol for pain. Brown also applied bum

ointment from her work's first aid kit. Until either December 3 or 4, John actively played

and suffered no fever. He sat down without discomfort and ate at the table. The bum

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appeared to heal.

On either December 3 or 4,2012, John appeared weary and lacked an appetite.

On December 7, Joshua Brink noticed bleeding of the burn, and he took John to Ashley

Brown. Brown took John to Providence Holy Family Hospital.

On December 7,2012, Dr. Michael Sicilia examined John at Providence Holy

Family Hospital. Dr. Sicilia observed John as "active and playful" and in good health,

except for the burn. Administrative Record CAR) at 222. John had no fever. Sicilia

found no blistering and diagnosed John with "burn cellulitis." AR at 224.

At Providence Holy Family Hospital, Michael Sicilia drew John's blood. John

had a slightly elevated white blood cell count. Ashley Brown testified that Providence

Holy Family told her that the blood test showed that John suffered a severe infection that

reached his bloodstream. Medical records and other testimony do not confirm a severe

infection or an infection that reached the bloodstream. Holy Family Hospital placed John

on an intravenous antibiotic drip and transferred him to Spokane's Sacred Heart Hospital

by ambulance. Holy Family arranged the transfer because it did not admit children under

the age of six years old.

On December 7, Sacred Heart Hospital's Dr. Michelle Messer evaluated John. Dr.

Messer specializes in child abuse and neglect and is recognized in Spokane as a child

abuse expert. Messer observed that John was alert and cooperative. Messer did not find

John in pain, although he was uncomfortable. John whimpered and said "ouie" when

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Messer removed his diaper. AR at 228. Messer noted that John had:

an extensive bum to the buttocks bilaterally with involvement as
well of the perianal area and the ventral side of the scrotum and shaft of the
penis along the median raphe. These burned areas are a mixture of bright
red bums with some edge to the periphery of the bum and areas within the
burned skin that are yellow in color. There are areas of new vascular
structure being present. Of note, there are no bums elsewhere on the body
whatsoever.

ARat228.

Michelle Messer found John's wounds troubling and inconsistent with the story

Ashley Brown told her concerning the origin and cause of John's bums. Dr. Messer

concluded that the bums were "abusive in nature." AR at 229. She took photos of the

bums. Messer treated John's wound with bum cream and instructed a wound care nurse

to monitor John for future treatment. Messer diagnosed John with second and possibly

third degree bums and opined that John must suffer from considerable pain. Messer was

uncertain as to whether John garnered a blood infection. Assuming the bum was

infected, there was no septic infection since bacteria had not overwhelmed the

bloodstream. Messer found no other injuries or ailments to John other than the bum.

Dr. Messer asked Ashley Brown why Brown had not driven John to a physician or

hospital on the day of the bums. Brown replied that John did not act as ifin pain and the

bum did not look as bad as the day that Messer observed the bum.

On December 7, Dr. Michelle Messer contacted Child Protective Services (CPS),

placed a hospital administrative hold on John, and requested that law enforcement

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interview Ashley Brown. Sacred Heart Hospital admitted John and gave him Ibuprofen

during the day and Oxycodone in the evening for pain. John was active at the hospital.

The hospital administered John Oxycodone against Brown's wishes, because Brown, in

part, did not want John awakened at night for purposes of administering the drug.

Due to CPS' administrative hold, John remained in the hospital from December 7

to December 12. Sacred Heart would have otherwise released John by December 9.

During an investigation of Ashley Brown, CPS reviewed all of John's medical

records. The records showed that Brown previously took John to the emergency room

ten times for minor ailments such as the flu, croup, diarrhea, and an ear infection.

CPS initiated a dependency for John and scheduled a shelter care hearing for

December 12,2012. CPS allowed Ashley Brown to stay with John in the hospital while

awaiting the shelter care hearing. At the shelter care hearing, Brown stipulated to a six-

month dependency. CPS then released John into Brown's grandmother's care. John

could not return to Brown's home because CPS forbade contact between Joshua Brink,

and John and Brown had lived with Brink. Brown temporarily lived with her

grandmother in order to care for John. Brown participated in all services recommended

by CPS, and a judge subsequently dismissed the dependency action.

PROCEDURE

Separate from the dependency action and on December 14, 2012, DSHS served

Ashley Brown a notice of a finding that she engaged in neglect by reason of negligent

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Brown v. Dep't a/Soc. & Health Servs.

treatment or maltreatment of John, when failing to seek immediate medical treatment for

the bum. This finding is the subject of this appeal. DSHS never alleged that Brown

caused the bum or neglected John by leaving him in the care of Joshua Brink. On

January 9, 2013, Brown requested review ofDSHS' finding. On January 10,2013,

DSHS' Division of Child and Family Services affirmed the finding. On March 11,2013,

Brown requested an administrative hearing.

On August 28, 2013, an administrative law judge (ALJ) conducted a hearing on

Ashley Brown's appeal. Jackie Brown, the mother of Ashley Brown, Robert Groce, and

Brown testified for Brown. Dr. Michelle Messer and social worker Nadean Roper

testified for DSHS. The ALJ recognized Messer as an expert in child abuse and neglect

and in the general medical field.

At the administrative hearing, Dr. Michelle Messer testified that she disbelieved

Joshua Brink's story about the origin and cause of the bum. Messer testified that, if

scalding bath water caused the bum, John's bottom would not have burned because of his

buttocks being in direct contact with the cold tub. Instead the scalding water would have

burned the tops of John's feet, the lower portion of his leg, and the top of his genitals if

the water splashed. Messer based her opinion on Joshua Brink's statement that John did

not hold himself over the water, but remained sitting while the water pooled around him.

Messer also believed that John suffered pain beyond that described by Joshua Brink and

Ashley Brown. Nevertheless, Messer conceded that if John's bums were "that bad" he

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would have periodically screamed or cried in the days following the injury. CP at 118.

During her testimony, Dr. Messer did not recall what treatment Sacred Heart gave to John

for the bum.

At the hearing, DSHS' counsel asked Michelle Messer if Ashley Brown was

"either abusive or negligent in her treatment of [John]?" CP at 88. Dr. Messer declared

that a reasonable person, confronted with the wounds of John on the night of November

27, would have immediately called a physician's office or an insurance company's nurse

or transported the child to a hospital emergency room. According to Messer, a

reasonable person would not treat a child with John's burns by speaking to a pharmacist

at a Walmart. Messer did not clarifY whether her testimony only applied to a Walmart

pharmacist or all pharmacists. Messer characterized Ashley Brown's conduct as

"medical neglect." CP at 11. Dr. Messer conceded that John's bum may have looked

differently the day of the injury from the day Messer saw John. Dr. Messer did not know

whether debridement would have been a prescribed treatment for John had he been seen

earlier.

John's treating pediatrician, Dr. Samir Keblawi, provided a declaration in support

of Ashley Brown. Keblawi has treated John since John's birth. He treats scalding bums

on children multiple times each year. Dr. Keblawi examined John's medical records,

including the photographs taken by Dr. Messer of John's wound. He first saw John for

the bums on December 19.

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Samir Keblawi determined that John's injury was consistent with Ashley Brown's

description of how the bum occurred and her subsequent treatment of the bum. Keblawi

also stated an ordinary parent would begin medical treatment for bums at home. He

further declared that even a second-degree burn remains pink in nature for several days

and any signs of infection, such as redness and swelling, do not appear until several days

after the bum. Dr. Keblawi noted the slightly elevated white blood cell count at Holy

Family Hospital. Dr. Keblawi testified that any infection had only recently developed

and that Ashley Brown's timing in seeking professional care was proper.

During the administrative hearing, Ashley Brown's counsel directed Dr. Michelle

Messer to Dr. Samir Keblawi's opinion that the ordinary parent would begin medical

treatment at home. Counsel then asked: if two physicians disagree as to whether the child

should be taken immediately to a health care provider, how is it fair for you to testifY that

Ashley Brown violated a reasonable standard of care? Messer did not answer the

question, but instead replied:

I disagree with Dr. Keblawi even suggesting that this area of bum
should have waited until the redness increased and the swelling increased.

CP at 104. Messer added that she was "willing to bet" that Dr. Keblawi "might not have

realized" what he was saying. CP at 105.

Ashley Brown's counsel asked Michelle Messer for her source of what steps a

reasonable person would take. Without waiting for a response, counsel added: "[o]r is

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that something specific to the medical profession?" CP at 106. Messer responded: "I

don't even know how to answer that." CP at 106.

At the administrative hearing, the CPS investigator testified that Samir Keblawi's

nurse told her that Ashley Brown failed to bring John to several scheduled appointments.

The record does not indicate that any of the scheduled appointments concerned the bum

to the buttocks and scrotum. The investigator, in later testimony, conceded that she did

not know if the purported missed appointments related to John's care and treatment or to

a study in which John participated at Keblawi's office.

On October 15,2013, the ALJ issued an initial order that upheld DSHS' finding of

neglect. Ashley Brown filed a petition for review with the DSHS Board of Appeals on

November 5, 2013. On January 2, 2014, a DSHS review judge issued a review decision

and final order affirming the ALl's initial order and adopting the ALI's findings. In

upholding the finding of neglect, the review judge affirmed the ALI's decision to give

greater weight to Dr. Messer's testimony than to the declaration from Dr. Keblawi. The

review judge concluded: "The challenged credibility determinations were neither made

arbitrarily nor capriciously and do not constitute an abuse of discretion by the ALI. They

cannot be reversed on review." AR at 11-12.

In the DSHS final order, the review judge wrote:

The undersigned recognizes the advantage of viewing the entire
factual record in "hindsight," an advantage not available to the Appellant
[Ashley Brown] the evening she left work to return home to tend to her

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injured son. However, it was the lack of medical knowledge on the part of
the Appellant at the time as to the possible consequences of the burn injury,
that should have compelled the Appellant to seek immediate medical
attention for her child. This lack of medical knowledge, coupled with the
large area of the burn relative to the child's small size and the sensitive area
of the burn, all indicate that immediate medical attention should have been
sought for the child. A failure to take the "safe rather than sorry" route or
to exercise the most cautious conduct will not always support a finding of
negligent treatment or maltreatment. However, in some cases such actions
or omissions do warrant such a finding. A review of the entire record in
this case supports the ALJ's finding that any reasonable person would have
sought medical care for the child right away.

The fact that the Appellant took some action in response to the
injury does not necessarily create a successful defense to the finding of
neglect. Further, in a case of neglect, the Department does not need to
prove that the Appellant intended to neglect or otherwise harm the child.
The Department needs only to prove that the actions taken by the Appellant
that constitute neglect were not accidental. The Appellant's decision to
seek only the advice of laypersons who mayor may not have observed the
injury or from persons with some medical knowledge, such as the
pharmacist, without actually presenting the child for observation was not
accidental. The Appellant's action in failing to immediately take her son to
the hospital or doctor after the burn incident was a conscious act. Based on
the Appellant's own lack of medical knowledge; her uncertainty as to what
actually occurred due to her not being there when the injury occurred; the
reported screaming of her son upon being scalded by hot water; the
evidence that a burn had occurred; the extensiveness of the injured area; the
sensitive nature of the area injured; and the potential inability by a
layperson to perceive eventual consequences caused by scalding, all dictate
that the Appellant should have sought immediate medical attention for her
toddler son. For these reasons, the Appellant'sfailure to immediately seek
medical aide showed a serious disregard ofthe consequences to her son of
such a magnitude that it did create a clear and present danger to [John's]
health, welfare, and safety, as was borne out by the horrendous subsequent
symptoms of the injury including excessive blistering, bleeding, and the
onset of infection.

CP at 19-20 (emphasis added).

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DSHS entered the following findings in support of its final order:

[Finding of fact] 14: ... The substantial area affected by the bum,
the distribution of the bum including the genitalia, and the severity of the
bum would have caused any reasonable person to seek medical care for the
child right away.
[Finding of fact] 15: ... Further, she [Dr. Messer] opined that the
pain experienced by the child would have been far worse than any sunburn,
the pain would have been "pretty bad." Dr. Messer opined that the failure
to obtain medical treatment for the serious bum injury sustained by
Kameron was medical neglect. Bums on the genitalia are especially serious
and can lead to scarring, infection, or disability. In Dr. Messer's opinion,
based on what she observed, it would have been apparent at the time of the
incident that the bum needed medical attention.

CP at 11 (footnote omitted).

Ashley Brown filed, with the superior court, a petition for review of the agency

order. In her petition for review, Brown alleged that DSHS' final order misinterpreted

the standard of neglect and placed an impossible standard on parents when determining

when to obtain medical care for their children. Brown also asserted that the order

erroneously interprets and applies WAC 388-15, WAC 388-02, RCW 34.05 and RCW

26.44. The superior court upheld DSHS' decision.

During oral argument before this appeals court, the court asked DSHS counsel:

what could have or would have been done at the emergency room the day of the injury

that was not done by Ashley Brown? Counsel responded: "I do not know." Wash. Court

of Appeals oral argument, Brown v. Dep't ofSoc. & Health Servs., No. 32761-2-III (June

11,2015), at 15 min., 48 sec. to 16 min., 30 sec. (on file with court). Later counsel added

r
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that, if John received medical treatment earlier, he could have gained some relief from

pain. Wash. Court of Appeals oral argument, supra, at 15 min., 48 sec. to 16 min., 30

sec. The court also asked DSHS counsel: Is it critical that the court know that the

hospital would have acted differently from Ashley Brown? Counsel answered: "I do not

know." Wash. Court ofAppeals oral argument, supra, at 16 min., 50 sec. to 17 min., 10

sec. Finally, the court questioned counsel: Did Dr. Messer testify as to what the hospital

would have done if John was taken there the first day? Counsel replied: "I cannot

remember, but probably not." Wash. Court of Appeals oral argument, supra, at 17 min.,

10 sec. to 17 min., 33 sec.

LA W AND ANALYSIS

Ashley Brown contends before this court that: (1) DSHS erroneously interpreted

and applied RCW 26.44.020(16) and WAC 388-15-009(5), (2) substantial evidence does

not support the finding that her conduct amounted to child neglect, (3) the DSHS review

judge erroneously concluded that he could not reweigh the evidence, and (4) DSHS'

finding of neglect was arbitrary and capricious. We only address assignments of error

one and two. Brown also seeks attorney fees and costs under the Equal Access to Justice

Act, RCW 4.84.350, and RAP 18.1.

Abuse of Children Act

DSHS imposed a finding of neglect on Ashley Brown pursuant to chapter 26.44

RCW, the abuse of children act. Under the scheme devised by chapter 26.44 RCW,

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health care providers and other mandatory reporters must inform a law enforcement

agency or DSHS when he or she "has reasonable cause to believe that a child has suffered

abuse or neglect." RCW 26.44.030(1 )(b). If contacted, DSHS must investigate the

allegation against the alleged perpetrator, and the agency may take the child into custody.

RCW 26.44.050.

Once DSHS completes its investigation, the agency must notifY the alleged

perpetrator of its finding. RCW 26.44.100(2). The alleged perpetrator may ask for

review of the finding by DSHS. RCW 26.44.100(2)(d), .125(1). DSHS must then review

the initial finding and amend it as appropriate. RCW 26.44.125(4).

If, following agency review, DSHS sustains the finding of neglect, the alleged

perpetrator may request an adjudicative hearing to contest the finding. RCW

26.44.125(5). The Washington Administrative Procedure Act (APA), chapter 34.05

RCW, governs the adjudicative proceeding. RCW 26.44.125(5).

If the finding of neglect stands, DSHS may use the finding in any subsequent

investigation or proceeding related to child protection or child custody. RCW

26.44.1 00(2)(b). The finding may disqualifY the perpetrator from being licensed as a

child care provider, being employed by a licensed child care provider, or being

authorized by DSHS to care for children. RCW 26.44.100(2)(c), .l25(2)(e). The finding

prevents the perpetrator from volunteering in his or her child's school or accompanying

the child on school field trips. WAC XXX-XX-XXXX(4)(a).

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Ashley Brown appealed to the superior court and to this court pursuant to the

APA, and requests relief from DSHS' finding of neglect against her. RCW 34.05.570

controls judicial review of an agency action. The statute reads, in part:

(1) Generally. Except to the extent that this chapter or another
statute provides otherwise:
(a) The burden of demonstrating the invalidity of agency action is on
the party asserting invalidity;

(d) The court shall grant relief only if it determines that a person
seeking judicial relief has been substantially prejudiced by the action
complained of.

DSHS does not dispute that its decision substantially prejudiced Ashley Brown.

RCW 34.05.570(3) covers challenges to agency adjudicative proceedings and lists

nine grounds on which a court may grant relief from an agency order. Ashley Brown

relies on two of the nine grounds:

(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial when
viewed in light of the whole record before the court ....

When reviewing an agency decision, we apply the standards of chapter 34.05 RCW

directly to the agency's record without regard to the superior court decision. Goldsmith

v. Dep't o/Soc. & Health Servs., 169 Wn. App. 573, 584, 280 P.3d 1173 (2012);

Burnham v. Dep't o/Soc. & Health Servs., 115 Wn. App. 435, 438,63 P.3d 816 (2003).

We hold that the DSHS Board of Appeals erroneously interpreted and applied

RCW 26.44.020 by incorporating a "reasonable person" standard into the legal standard

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Brown v. Dep 't ofSoc. & Health Servs.

required to uphold a finding of neglect or abuse against a parent. We apply the correct

standard, as provided in the plain language of the statute, and hold that DSHS' finding of

neglect against Ashley Brown is not supported by substantial evidence.

Issues on Appeal

As a preliminary matter, DSHS contends that Ashley Brown did not preserve,

before the superior court, her contention that DSHS wrongly interpreted the law, and thus

DSHS argues that she may not raise this contention before this court. We read the record

otherwise. In her petition for review filed with the superior court, Brown alleged that

DSHS' final order misinterpreted the standard of neglect and placed an impossible

standard on parents when determining when to obtain medical care for their children.

Brown also asserted that the order erroneously interpreted and applied WAC 388-15,

WAC 388-02, RCW 34.05 and RCW 26.44. DSHS forwards no information that Ashley

Brown abandoned these arguments before the superior court.

Standard for Finding Abuse or Neglect

We first address the DSHS Board of Appeals' interpretation and application of

RCW 26.44.020 in upholding DSHS' finding of neglect against Ashley Brown.

This court's duty in statutory interpretation is to discern and implement the

legislature's intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012).

When this court interprets a statute or regulation, it gives the words in that statue or

regulation their plain and ordinary meaning. Tesoro Ref & Mktg. Co. v. Dep't of

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Revenue, 164 Wn.2d 310, 322, 190 P.3d 28 (2008); Stevens v. Brink's Home Sec., Inc.,

162 Wn.2d 42,47, 169 P.3d 473 (2007). We decipher a statute in such a way as to give

effect to aU language used, rendering no part superfluous. In re Det. ofAmbers, 160

Wn.2d 543, 552, 158 P.3d 1144 (2007); State v. Young, 125 Wn.2d 688,696,888 P.2d

142 (1995). This court may look to related statutes when interpreting a regulation.

Mader v. Health Care Auth., 149 Wn.2d 458, 473, 70 P.3d 931 (2003). Questions of

statutory or regulatory interpretation are reviewed de novo. Tesoro, 164 Wn.2d at 316.

"Abuse" and "neglect" are indeterminate words that could benefit from

circumscription. RCW 26.44.020(1) defines "abuse or neglect" as:

sexual abuse, sexual exploitation, or injury of a child by any person
under circumstances which cause harm to the child's health, welfare, or
safety, excluding conduct permitted under RCW 9A.16.1 00; or the
negligent treatment or maltreatment ofa child by a person responsible for
or providing care to the child.

(Emphasis added.) In tum, RCW 26.44.020(16) reads, in pertinent part:

(16) "Negligent treatment or maltreatment" means an act or a failure
to act, or the cumulative effects of a pattern of conduct, behavior, or
inaction, that evidences a serious disregard ofconsequences ofsuch
magnitude as to constitute a clear and present danger to a child's health,
welfare, or safety, including but not limited to conduct prohibited under
RCW 9A.42.100.

(Emphasis added.) WAC 388-15-009(5), a DSHS regulation, expands the definition of

"negligent treatment or maltreatment" by listing some examples:

Negligent treatment or maltreatment includes, but is not limited to:

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(a) Failure to provide adequate food, shelter, clothing, supervision,
or health care necessary for a child's health, welfare, or safety. Poverty
and/or homelessness do not constitute negligent treatment or maltreatment
in and of themselves;
(b) Actions, failures to act, or omissions that result in injury to or
which create a substantial risk of injury to the physical, emotional, and/or
cognitive development of a child; or
(c) The cumulative effects of a pattern of conduct, behavior or
inaction by a parent or guardian in providing for the physical, emotional
and developmental needs of a child's, or the effects of chronic failure on
the part of a parent or guardian to perform basic parental functions,
obligations, and duties, when the result is to cause injury or create a
substantial risk of injury to the physical, emotional, and/or cognitive
development of a child.

We glean from the regulation and the two definitions found in RCW 26.44.020

that Ashley Brown's conduct comprises "abuse or neglect" if she failed to provide

adequate health care, which failure showed a serious disregard of the consequences to

John of such magnitude that it created a clear and present danger to the child's health.

Contradictions within the language engraved in RCW 26.44.020 complicate our

interpretation of the statute. The word "negligent" creates dissonance when compared to

the definition of "negligent treatment or maltreatment" found in subsection 16 of the

statute. The phrase in subsection 16, "a serious disregard of the consequences of such

magnitude ... [that it created] a clear and present danger to the child's health," does not

correspond with the common law definition of "negligence." The juxtaposition of words

conflicts with the meaning assigned those terms in the law.

"Negligence" is the failure to exercise such care as a reasonable person would

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exercise under the same or similar circumstances. Schwartz v. Elerding, 166 Wn. App.

608,615,270 P.3d 630 (2012). Nevertheless, RCW 26.44.020's definition of "negligent

treatment" references "a serious disregard of the consequences," which is more analogous

to the "utter disregard" for another's safety test applied to claims of wanton misconduct.

Wanton misconduct, and by extension "utter disregard," are in no way connected with

negligence. Crowley v. Barto, 59 Wn.2d 280,285,367 P.2d 828 (1962). In the setting

of child neglect, the State must show "serious disregard." "Utter disregard" may be more

serious than "serious disregard." But "serious disregard" implies greater blame than want

of reasonable care or negligence.

An actor's conduct is in "reckless disregard" of the safety of another if he or she

intentionally does an act or fails to do an act which it is his or her duty to the other to do,

knowing or having reason to know of facts that would lead a reasonable person to realize

that the actor's conduct not only creates an unreasonable risk of bodily harm to the other

but also involves a high degree of probability that substantial harm will result to him or

her. Adkisson v. City ofSeattle, 42 Wn.2d 676,685,258 P.2d 461 (1953). We see no

difference between "serious disregard" and "reckless disregard." Reckless and serious

disregard signifies a higher degree of culpability than acting unreasonably or affording

"negligent treatment."

Under RCW 26.44.020(16), Ashley Brown's conduct must be "a serious disregard

of consequences of such magnitude." The word "magnitude" is defined in part as

No. 32761-2-III

Brown v. Dep 't ofSoc. & Health Servs.

"greatness of size or extent." WEBSTER~S THIRD NEW INTERNATIONAL DICTIONARY

1360 (1993). The legislature~s use of the word "magnitude" implies Brown's misconduct

must be of a greater level of fault than negligence.

Finally, Ashley Brown's conduct must constitute "a clear and present danger" to

John's health. The origin of the expression "clear and present danger" lies in Justice

Oliver Wendell Holmes' decision in Schenck v. United States, 249 U.S. 47,52,39 S. Ct.

247,63 L. Ed. 470 (1919) wherein the United States Supreme Court determined when

government may place limits on First Amendment freedoms of speech, press, and

assembly. Under Washington law, speech will be protected unless shown likely to

produce a clear and present danger of a serious substantive evil that rises far above public

inconvenience, annoyance, or unrest. City ofBellevue v. Lorang, 140 Wn.2d 19,27,992

P.2d 496 (2000). Therefore, use of the idiom "clear and present danger" in RCW

26.44.020(16) further suggests more serious misconduct than mere negligence.

We must decide whether to uphold a reasonable person standard because of use of

the statutory phrase "negligent treatment" or to require a higher standard because of the

lengthy language that defines "negligent treatment." We adopt the lengthy language in

part because it is lengthier than the shorthand use ofthe term "negligent treatment." The

length of the later phrase shows more thought on behalf of the legislature and suggests

that the legislature wanted the concept of "serious disregard of the consequences" to

assume priority. The extensive clause "serious disregard of the consequences to the child

I
t
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Brown v. Dep't 0/ Soc. & Health Servs.

of such magnitude that it creates a clear and present danger to the child's health" is more

specific than the expression "negligent treatment." When we face an inescapable conflict

between a statute's general and specific terms, the specific terms prevail. City a/Spokane

v. Taxpayers a/the City a/Spokane, 111 Wn.2d 91, 102, 758 P.2d 480 (1988); State v.

Stately, 152 Wn. App. 604,609,216 P.3d 1102 (2009).

RCW 26.44 is not a licensing scheme, but a finding of neglect can preclude one

from obtaining a child care license. RCW 26.44.l00(2)(c), .125(2)(e). Licensing statutes

are in derogation of the common law and must be strictly construed. Kilthau v. Covelli,

17 Wn. App. 460, 463,563 P.2d 1305 (1977); Hendrick's Elec., Inc. v. Plumley, 18 Wn.

App. 440,442,569 P.2d 73 (1977). Strict construction ofRCW 26.44.020 demands the

imposition of a standard higher than negligence.

Two Washington decisions address RCW 26.44.020(16), and further support this

court's strict application of the definition of "negligent treatment." In Marcum v.

Department a/Social and Health Services, 172 Wn. App. 546,290 P.3d 1045 (2012), this

court vacated a finding of neglect DSHS entered against Melinda Marcum, a daycare

provider, who mistakenly left a child alone for ten minutes. DSHS, on the basis of WAC

388-15-009(5), found that Marcum committed per se neglect because she left the child

unattended, regardless of whether her conduct created a clear and present danger to the

child's safety.

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Brown v. Dep't 0/ Soc. & Health Servs.

This court found WAC 388-15-009(5) beyond DSHS' authority to the extent the

regulation did not require a finding of clear and present danger. It held that "DSHS lacks

authority to promulgate and interpret a rule that fundamentally shifts the standard

required to make a neglect finding." Marcum, 172 Wn. App. at 559. The court reasoned

that it could not "as a matter of law, conclude that DSHS has the legislative authority to

implement a strict liability regime for the negligent treatment of children." Marcum, 172

Wn. App. at 559.

In Morgan v. Department a/Social and Health Services, 99 Wn. App. 148,992

P.2d 1023 (2000), this court affirmed a finding of "negligent treatment or maltreatment"

against June Morgan, a licensed foster care provider, whose provider license DSHS

revoked. Among other conduct, Morgan called the children "bitches" and used profanity

in their presence. She pulled the children's ears. Morgan left a 14-year-old

developmentally delayed child at a skating rink without adult supervision. The child then

suffered a seizure and lost consciousness. This court employed a strict application of the

definition of "negligent treatment" when adjudicating Morgan's appeal.

In short, although the legislature employed the term "negligent treatment" in RCW

26.44.020(16), a reading of the full statute shows a desire by the legislature not to

sanction a parent for simple negligence. Good reason exists to reject a negligence

benchmark. A negligence standard could place every Washington parent in jeopardy

because what is "reasonable" under a negligence regime varies depending on the situation

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Brown v. Dep 't o/Soc. & Health Servs.

and actors involved. Such a standard might also implicate a parent's fundamental liberty

interest in the care and custody of her children. See U.S. CONST. AMENDS. V, XIV;

WASH. CONST., art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,71 L.

Ed. 2d 599 (1982); In re Custody o/Smith, 137 Wn.2d 1,27,969 P.2d 21 (1998).

Accordingly, we hold that DSHS erred in applying a "reasonable person" standard to its

finding of neglect against Ashley Brown.

Substantial Evidence

DSHS found that Ashley Brown was guilty of "serious disregard of the

consequences to [the child] of such magnitude that it ... create [s] a clear and present

danger to the child's health." CP at 20. Brown argues that substantial evidence does not

support the finding. We agree.

Challenges brought under the Administrative Procedure Act are reviewed for

substantial evidence when viewed in the light of the entire record. RCW 34.05.570(3)(e);

William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403,

411,914 P.2d 750 (1996). This court determines whether sufficient evidence exists to

persuade a fair-minded person of the truth or correctness of the order. Spokane County v.

E. Wash. Growth Mgmt. Hr 'gs Bd., 176 Wn. App. 555, 565, 309 P.3d 673 (2013), review

denied, 179 Wn.2d 1015,318 P.3d 279 (2014). 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 Wn. App. at 565. Doing so necessarily entails accepting

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Brown v. Dep 't ofSoc. & Health Servs.

the factfinder's views regarding the credibility of witnesses and the weight to be given

reasonable but competing inferences. Spokane County, 176 Wn. App. at 565. DSHS

found Michelle Messer more credible than Samir Keblawi, but did not discount the

testimony of Ashley Brown's lay witnesses. To the contrary, DSHS incorporated

testimony of those witnesses into its findings of fact.

The record as a whole and when viewing the evidence in favor of DSHS shows

that Ashley Brown immediately returned home from work when informed by her

boyfriend of the burn injury to John. Brown suffered no delay to attend to her son.

Brown examined John on her arrival home. Michelle Messer opines that John was in

more pain than Brown believed, but no evidence contradicts that Brown noticed a burn

similar to a sunburn and John did not cry. Brown researched child burn care on the

Internet and learned to apply cream or ointment and to continue observation of the burn.

Brown drove to Walmart and purchased burn cream. She returned home and applied the

cream to her son.

On the night of November 27, Ashley Brown took other precautions by phoning

her mom. Joshua Brink also called his mother, a pharmacist, who advised the couple to

keep John's diaper dry and take the boy to the hospital on any sign ofinfection. Brown

followed the instructions.

On November 28,2012, Robert Groce, certified in first aid, played with John and

noticed no abnormality in the boy's condition or activities. At Joshua Brink's request,

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Brown v. Dep't ofSoc. & Health Servs.

Groce examined the bum. Groce did not recommend any medical treatment. Groce, who

saw John nearly every day for the next ten days, noticed no change in John's behavior

during the week and one-half. John did not scream or cry.

On November 29, Ashley Brown returned to Wal-Mart and spoke with a

pharmacist. The pharmacist recommended continued application of bum cream and

giving John children's Tylenol for pain. Brown followed the instructions. In the days

following the bum, John actively played and displayed no discomfort. The bum

appeared to heal.

John later appeared weary and lacked an appetite. On December 7, Joshua Brink

noticed bleeding of the bum, and he took John to Ashley Brown. Brown took John for

medical care. Even at the hospitals, John was active and playful. None of Ashley

Brown's conduct shows a serious disregard for the health of her son such that it is of a

magnitude constituting a clear and present danger.

Critical to our decision is evidence that the hospitals may have engaged in more

tests and may have given stronger pain medication to John, but the hospitals essentially

continued with the same care given earlier by Ashley Brown. More importantly, DSHS

provided no evidence that, if Brown had taken John to a physician or clinic before

December 7, a health care provider would have prescribed any different treatment from

that given by Brown.

DSHS emphasizes that, on other occasions, Ashley Brown quickly shuttled John

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Brown v. Dep 't ofSoc. & Health Servs.

to medical care. DSHS may suggest that Brown's failure to deliver John to a clinic on

this one occasion shows she was irresponsible. Another reasonable inference, however,

is that Brown was an attentive mother who on this one occasion did not consider medical

care needed. DSHS may wish to suggest that Brown responded contrarily on this one

occasion because she sought to hide abuse meted on John by Joshua Brink. Nevertheless,

although the DSHS decision notes that Michelle Messer concluded abuse occurred, no

finding of fact confirms any abuse by Brink. More importantly, DSHS did not find that

Brown sought to protect Joshua Brink from charges of abuse.

DSHS premises its finding of neglect on the testimony of Dr. Messer that Ashley

Brown did not respond to the bum as would a reasonable parent. Finding of fact 14

incorporates a reasonable parent standard. Nevertheless, we have already determined that

the reasonable person or reasonable parent standard does not control.

DSHS notes Ashley Brown's lack of qualifications in health care and then argues

that such lack of qualifications should have led her to take extra precautions. This

argument ignores that John was not in distress on November 27. The argument also

employs hindsight that is unbecoming even for a negligence standard. Under negligence

law, courts will not view a party's acts with the clarity of hindsight. Lee v. Javitch, Block

& Rathbone, LLP, 601 F.3d 654,659 (6th Cir. 2010); Yates v. Shackelford, 336 Ill. App.

3d 796, 784 N.E.2d 330,338,271 Ill. Dec. 112 (2002); Mitchell v. Allstate Ins. Co., 36

Colo. App. 71, 534 P.2d 1235,1237 (1975); Feely v. Morton, 149 Me. 119,99 A.2d 285,

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Brown v. Dep't ofSoc. & Health Servs.

288 (1953).

Michelle Messer's testimony is problematic. During the administrative hearing,

Ashley Brown's counsel directed Dr. Michelle Messer to Dr. Samir Keblawi's opinion

that the ordinary parent would begin medical treatment at home. Counsel then asked: if

two physicians disagree as to whether the child should be taken immediately to a health

care provider, how is it fair for you to testify that Ashley Brown violated a reasonable

standard of care? Messer did not answer the question, but instead repeated her

disagreement with Keblawi. Ashley Brown's counsel asked Michelle Messer for her

source of what steps a reasonable person would take or is that something specific to the

medical profession? Messer responded: "I don't even know how to answer that." CP at

106.

A physician is qualified to opine what a reasonable physician would do under

certain circumstances, but we question whether a physician is qualified to testify to how a

reasonable parent would act. There is no testimony that Michelle Messer is a parent.

Ashley Brown's pointed questioning of Messer suggests that Messer's view of the

conduct of a reasonable parent was overcome by her opinions as a well qualified

physician.

We have read many decisions that relate physician testimony on the standard of

care of a "reasonable parent." Only one opinion, however, answers whether such opinion

testimony is appropriate. In Applebrook Country Dayschool, Inc. v. Thurman, 264 Ga.

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Brown v. Dep't 0/ Soc. & Health Servs.

App. 591, 591 S.E.2d 406 (2003), the Georgia Court of Appeals reversed a jury verdict

after ruling that a physician's testimony regarding an "average parent" standard of care

was inadmissible. The Georgia Supreme Court reversed on the basis that the physician

had only testified about literature regarding positioning an infant when the baby sleeps.

Thurman v. Applebrook Country Dayschool, Inc., 278 Ga. 784, 604 S.E.2d 832 (2004).

Despite being asked, the physician had never mentioned a standard of care. We reserve

for another day or another court the issue of whether a physician is qualified to testify to

the standard of care of a reasonable parent, but mention this issue in passing so that our

decision is not read to support a rule that such testimony is permissible.

Attorney Fees and Costs

Ashley Brown requests appellate fees and costs under Washington's equal access

to justice act, RCW 4.84.350(1). Under RCW 4.84.350(1):

a court shall award a qualified party that prevails in a judicial review
of an agency action fees and other expenses, including reasonable
attorneys' fees, unless the court finds that the agency action was
substantially justified or that circumstances make an award unjust.

(Emphasis added.) A "qualified person" is one with a net worth of$1 million or less.

RCW 4.84.340(5). "Substantially justified" means justified to a degree that would satisfy

a reasonable person. Raven v. Dep 't o/Soc. & Health Servs., 177 Wn.2d 804, 832,306

P.3d 920 (2013); Silverstreak, Inc. v. Dep't o/Labor & Indus., 159 Wn.2d 868,892,154

P.3d 891 (2007). An action is substantially justified if it had a reasonable basis in law

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Brown v. Dep 't ofSoc. & Health Servs.

and in fact. Raven, 177 Wn.2d at 832; Aponte v. Dep 't ofSoc. & Health Servs., 92 Wn.

App. 604, 623, 965 P.2d 626 (1998). The action need not be correct, only reasonable.

Raven, 177 Wn.2d at 832. RCW 4.84.350(1) contemplates that an agency action may be

substantially justified, even when the agency's action is ultimately determined to be

unfounded. Raven, 177 Wn.2d at 832.

A trial court's award of attorney fees under the equal access to justice act is

reviewed for abuse of discretion. Raven, 177 Wn.2d at 833; Plum Creek Timber Co. v.

Wash. State Forest Practices Appeals Bd., 99 Wn. App. 579,595,993 P.2d 287 (2000).

A trial court abuses its discretion when it makes a decision that is manifestly

unreasonable, based on untenable grounds, or based on untenable reasons. Moreman v.

Butcher, 126 Wn.2d 36, 40,891 P.2d 725 (1995).

Since DSHS prevailed below, the trial court did not address an award of attorney

fees for Ashley Brown. The equal access to justice act and case law contemplates that

the trial court, not this court, should initially exercise discretion when determining if an

action is substantially justified and what, if any, fees should be awarded. Therefore, we

remand to the trial court for a determination of whether fees should be awarded Brown

under RCW 4.84.350, and, ifso, the amount of the award.

CONCLUSION

We reverse the trial court and vacate DSHS's finding of neglect against Ashley

Brown. We remand the case to the superior court for a determination of whether Ashley

No. 32761-2-III

Brown v. Dep '( ofSoc. & Health Servs.

Brown should be awarded attorney fees and costs against DSHS under RCW 4.84.350. If

so, the superior court should exercise its discretion when determining the amount of the

award.

WE CONCUR:

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