Christelle Cunningham v. State Of Wa., Dshs

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

CHRISTELLE CUNNINGHAM, ) No. 76612-1-I
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
WASHINGTON STATE DEPARTMENT)
OF SOCIAL AND HEALTH SERVICES,)
)
Respondent. ) FILED: December 17, 2018

SCHINDLER, J. — Licensed childcare provider Christelle Cunningham left a four-

year-old child alone at a community center park. The Department of Social and Health

Services(DSHS)found Cunningham engaged in negligent treatment under RCW

26.44.020(17) and former WAC 388-15-009(5). The DSHS Board of Appeals Review

Judge upheld the finding of negligent treatment that evidenced a serious disregard of

consequences of such magnitude as to constitute a clear and present danger to the

child. The superior court affirmed the decision of the DSHS Board of Appeals Review

Judge and the Final Order. Cunningham contends the DSHS Board of Appeals Review

Judge erroneously interpreted and applied the law, substantial evidence does not

support the finding of negligent treatment, and the Final Order is arbitrary and
No. 76612-1-1/2

capricious. Cunningham also contends the superior court erred in denying her motion

to amend the petition for judicial review. We affirm.

Child Protective Services Referral

Christelle Cunningham has been a licensed childcare provider since 2008 and

owned and operated Kids R Us day care. In July 2014, Cunningham hired Tiffany

Jones as a childcare assistant.

On August 1,2014, Cunningham and Jones drove 10 children, including four-

year-old T.J., in a van to the Garfield Community Center playground. They left Garfield

Community Center before noon to drive to the Tukwila Community Center.

Two middle school girls found four-year-old T.J. alone at the playground.

Garfield Community Center staff contacted the police. Seattle Police Officer Vincent

Feuerstein responded and contacted Child Protective Services (CPS). The Division of

Licensed Resources/Child Protective Services investigated, the report of neglect of the

child.

On August 4, CPS investigator Terri Muller interviewed Cunningham and Jones.

Cunningham told Muller that at approximately 11:40 am., she and Jones "started

loading" the children into the van to leave the Garfield Community Center. Cunningham

went to the restroom before leaving. Cunningham said she "did not do a regular head

count of the children" because she "thought[Jones] had" done the head count.

However, Cunningham said she "routinely did seat belt checks." Cunningham said she

and Jones "realized that TJ was missing" about "10 to 15 minutes" later and

"immediately called the Garfield Community Center."

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No. 76612-1-1/3

Jones told Muller she did not "count the children prior to leaving the playground."

Jones said it was"'20 minutes'"before "anyone realized that TJ was missing."

Muller interviewed Garfield Community Center employees Champaine O'Brien

and supervisor Dwayne Jackson. O'Brien told Muller that two 12- or 13-year-old girls

"'found [T.J.] outside by himself'"and brought him into ,the gym at approximately 12:30

p.m. Jackson "attempted to talk to the boy" but T.J. "provided little additional

information except to say that he was four." Jackson said Cunningham called about

T.J. "approximately 45 minutes after the police arrived at the community center."

Muller issued a report finding negligent treatment of four-year-old T.J. The report

states Cunningham disregarded the consequences to the child of such magnitude as to

constitute "a clear and present danger to the child's health, welfare, and safety":

After investigation it is determined, more likely t6an not, that the allegation
of Negligent Treatment or Maltreatment of four year old T.[J]. by Christelle
Cunningham is FOUNDED. There was an act, or failure to act on the part
of Ms. Cunningham that shows a serious disregard of the consequences
to the child of such magnitude that it created a clear and present danger to
the child's health, welfare, and safety.

DSHS notified Cunningham by letter on November 12, 2014 of the finding. On

November 14, the Department of Early Learning (DEL) notified Cunningham she was

disqualified to provide childcare and her license was revoked.

Administrative Appeal

Cunningham appealed the DSHS finding of negligent treatment and the DEL

decision to revoke her childcare license. The Office of Administrative Hearings

consolidated the two appeals for hearing. A number of witnesses testified, including

Cunningham, Jones, Seattle Parks and Recreation Department employees Debra

Khaljani and Jackson, Officer Feuerstein, and CPS investigator Muller.

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No. 76612-1-1/4

Cunningham testified, "[W]e always do a headcount." Cunningham said that

before going to the restroom, she told Jones to " If]inish loading up the kids' "in the van

and "'finish off the headcount and count the seatbelts.'" Cunningham said that when

she returned to the van, it was "already locked up." Cunningham testified she asked

Jones if she did "'all the seatbelt checks'"and Jones said,"'Yes.'"

When Cunningham "realized" she "didn't have" T.J., she "panicked" because "I

didn't know where my kid was. Maybe somebody came and snatched him."

Cunningham admitted it was "a very serious situation" and T.J. "was at risk of harm."

Jones testified that she did not "recall" Cunningham "ask. . . about any

headcounts." Jones said, "[W]e got in the van, and we were like, 'Is everyone here?'

And they're like, 'Yeah.' And we pulled off."

Investigator Muller testified it is "a dangerous situation" for a "very young child to

be alone in . . . any situation unsupervised. . . . [Al four-year-old child requires stringent

supervision. . . . [T]hey're young, they're vulnerable, they're unable to self-protect."

Muller said T.J. was "even more vulnerable" because he was "unable to communicate

. . . or identify his full name."

Muller testified about the circumstances that "posed an imminent risk of harm."

[A]four-year-old child, being alone in a park setting like that with access to
the street and the parking lot that's right there, . . . that poses a risk to me
that there's easy access for someone to, uh, observe that child being
alone, and . . . have contact with that child . ...[T]he child could've. . .
hurt himself or sustained some type of injury. He could've entered into the
parking lot, where people are driving in and out. . . . There's so many
things about it that had the potential for serious harm.

Muller also testified that 19 registered sex offenders lived within "a half a mile" of the

community center.

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No. 76612-1-1/5

The administrative law judge(AU) upheld the DSHS finding of negligent

treatment and the DEL order revoking Cunningham's childcare license. The AUJ issued

an "Initial Order" and extensive findings of fact and conclusions of law. Preliminarily, the

AUJ notes the evidence conflicts "on certain material points" and the decision and

findings reflect "a careful consideration of the record of the case, including the

demeanor and motivations of the parties and witnesses, the reliability and/or other

reasonableness of the testimony and/or exhibits, and the totality of the evidence

presented." The AUJ states, "Findings made in compliance with a particular witness's or

witnesses' testimony and/or other evidence presented indicate the undersigned found

that evidence to be credible over conflicting evidence, considering the burden of proof

and standard of proof." The AUJ also notes,"When possible and reasonable, the

undersigned has harmonized the different recountings of certain events and

occurrences in order to arrive at a determination of the facts surrounding those events

and occurrences."

The AUJ found that Cunningham and Jones left T.J. at Garfield Community

Center "between 11:40 and 11:50 a.m." The All did not find Cunningham's testimony

that a headcount was performed credible. The AUJ found Cunningham and Jones did

not do a headcount of the children despite "assertions to the contrary." The AUJ found

the "two young girls" saw T.J. "playing alone on a slide for about a half hour" and

brought him into the Garfield Community Center gym at approximately 12:20 p.m. The

AUJ found Cunningham did not call Garfield Community Center until "90 minutes after

the child care group left to go to Tukwila."

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No. 76612-1-1/6

The AUJ cites chapter 26.44 RCW,"Abuse of Children," and highlighted the

following pertinent part of WAC 388-15-009(5):1

Negligent treatment or maltreatment means an act or a failure to act, or
the cumulative effects of a pattern of conduct, behavior, or inaction, on the
part of a child's parent, legal custodian, guardian, or caregiver that shows
a serious disregard of the consequences to the child of such magnitude
that it creates a clear and present danger to the child's health, welfare, or
safety. A child does not have to suffer actual damage or physical or
emotional harm to be in circumstances which create a clear and present
danger to the child's health, welfare, or safety. Negligent treatment or
maltreatment includes, but is not limited, to:

(b) Actions, failures to act, or omissions that result in iniurv to or
which create a substantial risk of injury to the physical, emotional, and/or
cognitive development of a child.

The All concluded the preponderance of the evidence supports finding negligent

treatment that constitutes a clear and present danger to a child's welfare and safety.

Conclusion of law 9 states:

The undersigned finds and concludes that a preponderance of the
evidence supports a determination that Appellant Christelle Cunningham
committed acts of neglect as to the child TJ. She neglected him when she
failed to provide proper supervision which resulted in his being left alone
at Garfield Playfield, creating a clear and present danger to TJ's safety
and welfare because her actions or failure to act created a substantial risk
of injury to TJ. The fact that TJ apparently suffered no harm is irrelevant.
The substantial risk of harm (e.g. being injured by traffic, or on the
Playfield, or abducted) was clear, present, and significant.

The Initial Order states Cunningham "did negligently treat the child TJ."

I Effective July 1, 2018, the Department of Children, Youth and Families replaced DSHS and DEL
as the state agency responsible for children and early learning issues. See SECOND ENGROSSED SECOND
SUBSTITUTE H.B. 1661, 65th Leg., 3rd Spec. Sess.(Wash. 2017). Title 388 WAC and Title 170 WAC were
recodified as Title 110 WAC. Wash. State Register(WSR)18-14-078. For purposes of this opinion, we
cite the WAC in effect before the 2018 recodification.

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No. 76612-1-1/7

The All also concluded Cunningham is disqualified from providing childcare and

upheld the decision of DEL to revoke her childcare license:

Based upon the founded finding of neglect made against the Appellant,
she must be disqualified from providing child care or having unsupervised
access to children. . . . Further, the Appellant has numerous additional
child care licensing violations which warrant revocation of her child care
license.[2]

Cunningham appealed the AUJ finding of negligent treatment to the DSHS Board

of Appeals and the decision to revoke her childcare license to a DEL Review Judge.

The DEL Review Judge stayed review of the proceeding "pending issuance of a final

agency decision by the DSHS Board of Appeals."

In the appeal to the DSHS Board of Appeals, Cunningham does not assign error

to any of the findings of fact of the Initial Order on negligent treatment. Cunningham

assigned error to only the conclusion of law on negligent treatment, conclusion of law 9.

Cunningham argued the All found she "did not mean to leave TJ at the park" and

therefore, DSHS did not prove "a serious disregard of ihe:aonsequences to the child"

under WAC 388-15-009(5).

The DSHS Board of Appeals Review Judge considers a finding of negligent

treatment on the record de novo. WAC XXX-XX-XXXX(3). The DSHS Board of Appeals

Review Judge issued a "Review Decision and Final Order"(Final Order) affirming the

Initial Order and finding of negligent treatment. The Final Order adopts the following

2 The AUJ also found that Cunningham violated "numerous additional child care licensing"
requirements between 2008 and 2014, including WAC 170-296-0520(1)(documentation of attendance),
WAC 170-296A-5625(1)(capacity and supervision requirements), WAC 170-296A-5750 (staff-to-child
ratios), WAC 170-296A-2200(1)(911 reporting requirements), WAC 170-296A-2250(1)(reporting to
parent or guardian requirements), WAC 170-296A-2300 (reporting to DSHS requirements), WAC 170-
296A-6475(6)(transportation requirements), WAC 170-296A-1875 (primary staff requirements), WAC
170-296A-1200(3) and (4)(leaving children with an unlicensed individual), and WAC XXX-XX-XXXX
(background clearance requirements).

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No. 76612-1-1/8

unchallenged findings of fact:

Incident of August 1, 2014
11. On August 1, 2014, the Appellant decided to take her child
care children on a field trip off-site from her child care home. One of the
children entrusted to her care on this day (of the 10 total children on the
trip) was TJ, who was then 4 years old. Also on the field trip was Tiffany
Jones, the Appellant's new assistant who had been working at the child
care for less than a month, and who had not been approved to have
unsupervised contact with the children in care because her background
authorization had not yet cleared. August 1, 2014, was described by the
Appellant as a busy day in Seattle due to Seafair celebrations around the
city. ,
12. The first stop the Appellant and Ms. Jones made with the
children was at the playground around the Garfield Community Center.
The playground is on property with a Community Center, and next to a
high school. After being at this playground for a short period of time, the
Appellant decided that Ms. Jones and she should take the children to
another venue in Tukwila.
13. The Appellant testified that she went to the restroom by the
Garfield playground while the van was being loaded with child care
children. Ms. Jones testified that the Appellant went to the restroom
immediately after the van was loaded, before leaving for Tukwila. The
undersigned does not find that a head count of the child care children was
performed despite the Appellant's and Ms. Jones' assertions to the
contrary. The reasons that the undersigned does not believe that a head
count was performed are as follows: (a) had a head count been
performed, the absence of TJ (who was left at Garfield as is more fully
discussed below) should have been known;(b) the Appellant and Ms.
Jones gave contradictory testimony regarding whether the Appellant had
asked Ms. Jones if a head count had been performed;(c) at hearing Ms.
Jones asserted that a head count technique had been used which
involved 10 separate attendance sheets for the 10 children on the field
trip; (d) at hearing the Appellant denied that any written form of head count
was utilized; (e) the Appellant told CPS Investigator Terri Muller on August
4, 2014, that no head count had been performed when leaving Garfield; (f)
Ms. Jones told Ms. Muller that. .. no head count had been performed
before the child care group left Garfield.
14. The Appellant, Ms. Jones, and 9 of the 10 child care children
on the field trip left Garfield to go to Tukwila between approximately 11:40
and 11:50 a.m. TJ was left behind at the Garfield playground.
15. At approximately 12:20 p.m., TJ was brought into the
Garfield Community Center after being observed outside and alone for
approximately 30 minutes. He could not provide any contact information;
he could not identify himself other than to say he was TJ. The area in
which the Garfield Community Center is located is not a safe area for

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No. 76612-1-1/9

young children to be left alone in because it abuts a busy street and
because, at the time, 19 registered sex offenders resided within a one-half
mile radius of the playground. Furthermore, the playground is not a safe
place for unsupervised young children because of the risk of falling or
otherwise getting hurt on slides and other play structures. Seattle Police
were called not by the Appellant but by Ms. Khaljani, who was working at
the Community Center. The police were dispatched to the Community
Center at 12:41 p.m., arriving at 12:51 p.m. Officer Hartsock met TJ, who
told him: "I am TJ and I am 4 years old." TJ stated that he was with "Miss
Christelle." TJ was unaware of his address, parents' names, or how he
ended up at the Garfield Community Center.
16. At some point after arriving at Tukwila, the fact that TJ was
not in the child care van was discovered. The drive to Tukwila from
Garfield would have taken at least 20 minutes and quite possibly longer,
considering the route taken and given the evidence that it was a busy day
in Seattle.
17. Upon discovering TJ missing, the Appellant did the following:
(a)she left Ms. Jones with the 9 child care children that had been
transported to Tukwila;(b)she called 4-1-1 at 1:04 p.m. asking for the
telephone number for the Garfield Community Center;(c) she called the
Community Center and spoke with Officer Hartstock and advised him that
she believed Ms. Jones had custody of TJ and did not realize that he was
missing until a head count was performed once she, Ms. Jones, and the
children arrived in Tukwila and that she called the Community Center as
soon as she realized TJ was missing, which was nearly 90 minutes after
the child care group had left to go to Tukwila;(d) she arrived at the
Community Center at some point after 1:04 p.m. and was unable to
provide the police with requisite parent and child documentation or
evidence of her caretaker role for TJ; and (e)she left the Community
Center to go back to the child care facility in West Seattle to retrieve the
necessary documents while TJ was left in the care of the police.

20. The Appellant told the Seattle Police on August 1, 2014, that
when she and Ms. Jones had "approximately 8 children" and decided to
take the children to the pool in Tukwila previously that morning, she had
assumed Ms. Jones had custody of TJ, and did not realize he was missing
until she conducted a head count at the pool, at which point she called the
Garfield Community Center, nearly 90 minutes after she had left the
Garfield Community Center.

22. Because the August 1, 2014, incident was indicative of
possible child abuse or neglect, CPS was the agency charged with
investigating the allegations. After Seattle Police called in a CPS referral,
the matter was immediately assigned to Terri Muller to investigate. DEL
was also notified of the referral.

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No. 76612-1-1/10

23. As part of her investigation, Ms. Muller reviewed the Seattle
Police Department records regarding the incident of TJ being left at the
Garfield playground. She spoke to numerous persons.

28. On August 6, 2014, Ms. Muller spoke with Champaine
O'Brien, who was working at Garfield Community Center through a youth
employment program. She told Ms. Muller that on August 1, 2014, she
was handing out lunches to children in the gym of the Community Center
building and two young girls, ages 12 or 13, came into the gym with a
young boy (later determined to be TJ) and said they found him outside by
himself. The police were notified.
29. Ms. Muller spoke to Dwayne Jackson on August 6, 2014.
He was also employed at the Garfield Community Center on August 1,
2014. He told her that he arrived at work at approximately 12:30 p.m. and
TJ was there. He went to the gym to help with TJ. He said that the girls
who found TJ told him that they saw TJ playing alone on a slide for about
half an hour, and they walked around the playground to see if they could
find anyone that TJ belonged to, and then finally brought him into the
Community Center because they had to leave. Mr. Jackson told Ms.
Muller that it was approximately 45 minutes after the police arrived that the
Appellant called looking for TJ, and that it then took her about an hour to
get back to the Community Center. Mr. Jackson gave consistent
testimony at the hearing.E3]

The DSH Board of Appeals Review Judge entered the following additional

"Ultimate Fact Findings":

33. Despite the Appellant's and Ms. Jones' assertions to the
contrary, a head count of the day care children was not performed when
the Appellant left the Garfield playground to go to Tukwila. The reasons
for this finding are: (a) if a head count had been performed, the absence
of TJ should have been known;(b) the Appellant and Ms. Jones gave
conflicting testimony regarding whether the Appellant had asked Ms.
Jones if a head count had been done;(c) at hearing, Ms. Jones asserted
that a head count technique had been used that involved 10 separate
attendance sheets for the ten children on the field trip; (d) at hearing the
Appellant denied that any written form of head count was used;(e) the
Appellant told Ms. Muller on August 4, 2014, that no head count had been
performed when leaving Garfield; (f) Ms. Jones told Ms. Muller during the
course of Ms. Muller's investigation of the alleged neglect of TJ that no
head count had been performed before the child care group left Garfield.
34. The Appellant did not mean to leave TJ at the park.

3 Footnotes omitted.

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No. 76612-1-1/11

35. TJ was a four-year-old child left alone on a busy playground.
The Appellant was responsible for supervising him, and did not do so for a
period of at least two hours. Risks to TJ included falling off the slide he
was playing on and getting injured; getting injured by rough play with older
children; being bit by a dog; walking away from the playground into a busy
parking lot or onto a busy street and being hit by a car; being kidnapped or
abused by a stranger; children like to jump on things, they can jump off a
toy and injure themselves; in an emergency, like an earthquake or fire, a
child left alone would have no one to assist him. He walked off the
playground without objection with the two girls who found him alone. He
could have walked off the playground without objection with dangerous
persons.
36. The Appellant exposed TJ to a significant risk of harm
because he was left at a busy playground without adequate adult
supervision for at least an hour, and without her supervision for at least
two hours. The Appellant should have known that he was missing from
the day care group. Her failure to count heads, or use some other simple
means to determine whether she had all of the child care children with her,
evidences a serious disregard of consequences of such magnitude as to
constitute a clear and present danger to TJ's health, welfare, or safety. If
she had, in fact, checked the seat belts, as she claimed to have done, she
would have realized that TJ was not in his seat in the van.

The Final Order cites chapter 26.44 RCW and WAC 388-15-009(5).

8. Chapter 26.44 of the Revised Code of Washington (RCW)is
entitled "Abuse of Children." It establishes a system for reporting
instances of non-accidental injury, neglect, death, abuse, and cruelty to
children. The Legislature's intent in adopting RCW 26.44 is that, as a
result of these reports, protective services will be made available in an
effort to avoid further abuse and to safeguard the general welfare of these
children. The Department investigates reports of child abuse and neglect
and notifies the alleged perpetrator of its investigative findings. A person
so named by the Department as an alleged perpetrator has the right to
request an adjudicative hearing governed by the Administrative Procedure
Act, chapter 34.05, RCW. The Department has implemented chapter
26.44 RCW by adopting chapter 388-15 of the Washington Administrative
Code(WAC)entitled "Child Protective Services."
9. The Department's determination that the Appellant had
abused or neglected a child was based on WAC 388-15-009, which
provides, in pertinent part:

WAC 388-15-009 What is child abuse or neglect? Child
abuse or neglect means the injury, sexual abuse, sexual
exploitation, negligent treatment, or Maltreatment of a child under
circumstances which indicate that the child's health, welfare, and

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No. 76612-1-1/12

safety is harmed. An abused child is a child who has been
subjected to child abuse or neglect as defined in this section.

(5) Negligent treatment or maltreatment means an act or a
failure to act on the part of a child's parent, legal custodian,
guardian, or caregiver that shows a serious disregard of the
consequences to the child of such magnitude that it creates
a clear and present danger to the child's health, welfare, and
safety. A child does not have to suffer actual damage or
physical or emotional harm to be in circumstances which
create a clear and present danger to the child's health,
welfare, and safety. Negligent treatment or maltreatment
includes, but is not limited, to:

(a) Failure to provide adequate food, shelter, clothing,
supervision, or health care necessary for a child's health,
welfare, and 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 consistent inaction or behavior
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.

The Department alleged that the Appellant negligently treated or
maltreated TJ, a child in her care, by leaving this young child alone on a
playground. The Department alleged that definition of negligent treatment
of a child includes failures to act, where that failure shows serious
disregard of a clear and present danger to that child. The Appellant
should have known that TJ was missing from the day care group. The
Appellant did not provide adequate supervision for TJ. Her failure to
supervise shows a serious disregard of the possible consequences to the
child of such magnitude that it created a clear and present danger to TJ's
health, welfare, and safety.[4]

4 Footnotes omitted.

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No. 76612-1-1/13

The DSHS Board of Appeals Review Judge concluded Cunningham "exposed TJ

to a significant risk of harm."

10. TJ was a four-year-old child left alone on a busy playground.
The Appellant was responsible for supervising him, and did not do so for a
period of at least two hours. A young child like TJ does not have a real
awareness of danger and might wander away. This behavior can lead to
being hit by a car due to his short stature, either in the parking lot or in the
street. Other catastrophes that were possible in this case include,
molestation, abduction, and injury, with the possible outcome of death for
this preschool child. Additional risks to TJ included falling off the slide he
was playing on and getting injured; getting injured by rough play with older
children; being bit by a dog; jumping off a toy and injuring himself, and, in
an emergency, like an earthquake or fire, a child left alone would have no
one to assist him. He walked off the playground without objection with the
two girls who found him alone. He could have walked off the playground
without objection with dangerous persons.
11. The Appellant exposed TJ to a significant risk of harm
because he was left at a busy playground without adequate adult
supervision, and the Appellant should have known that he was missing
from the day care group. The fact that TJ was found safe, and was
secured by friendly children and adults, does not detract from the
magnitude of the Appellant's neglect of her duty to keep track of the
children in her care and custody. Her failure to count heads, or use some
other simple means to determine whether she had all of the,child care
children with her, evidences a serious disregard of consequences of such
magnitude as to constitute a clear and present danger to TJ's health,
welfare, or safety. A child does not need to suffer actual harm for a finding
of negligent treatment; exposure to clear and present danger risk is
enough. If the Appellant had made a head count, or had, in fact, checked
the seat belts, as she claimed to have done, she would have realized that
TJ was not in his seat in the van. A preponderance of the evidence
supports a conclusion that the Appellant neglected TJ, a child in her care.

The Final Order affirms the finding of negligent treatment or maltreatment.

Superior Court Appeal

On January 20, 2016, Cunningham filed a petition for judicial review of the DSHS

Board of Appeals Final Order affirming negligent treatment. Cunningham argued (1)

substantial evidence did not support a finding of negligent treatment,(2) her conduct did

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No. 76612-1-1/14

not "constitute child neglect or negligent treatment," and (3) the agency finding was

arbitrary and capricious.

After Cunningham filed the petition, the DEL Review Judge issued a "Final

Order" affirming the DEL order finding Cunningham disqualified from providing childcare

and revoking her childcare license.5 Cunningham filed a CR 15 motion to amend the

petition to add judicial review in superior court of the DEL order. The court denied the

CR 15 motion to amend the petition. The superior court affirmed the DSHS Final Order.

Cunningham appeals.

Standard of Review

The Washington Administrative Procedure Act(APA), chapter 34.05 RCW,

governs review of agency decisions. Postema v. Pollution Control Hr'gs Bd., 142

Wn.2d 68, 76-77, 11 P.3d 726 (2000). Under RCW 34.05.570(3), we will grant relief

from an agency order in an adjudicative proceeding if the order exceeds the statutory

authority of the agency, the agency erroneously interpreted or applied the law,

substantial evidence does not support the order, or the order is arbitrary or capricious.

We review only the Final Order of the DSHS Board of Appeals Review Judge,

not the decision of the AUJ or the superior court. Verizon Nw., Inc. v. Emp't Sec. Dep't,

164 Wn.2d 909, 915, 194 P.3d 255 (2008). The appellant has the burden of

demonstrating the invalidity of agency action. Darkenwald v. Emp't Sec. Dep't, 183

Wn.2d 237, 244, 350 P.3d 647(2015).

We review findings of fact for substantial evidence. Mowat Constr. Co. v. Dep't

of Labor & Indus., 148 Wn. App. 920, 925, 201 P.3d 407(2009). Substantial evidence

5 WAC XXX-XX-XXXX(1) and (3)(a) provides that a person shall be disqualified to "provid[e]
licensed childcare" if her background information "contains a negative action . . . that relates to . ..[a]n
act, finding, determination, decision, or the commission of abuse or neglect of a child."

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No. 76612-1-1/15

is evidence sufficient to persuade a fair-minded person of the truth of the matter.

Mowat, 148 Wn. App. at 925. We do not weigh witness credibility or substitute our

judgment for the agency's findings of fact. Port of Seattle v. Pollution Control Hr'gs Bd.,

151 Wn.2d 568, 588, 90 P.3d 659 (2004). Where, as here, the appellant does not

assign error to any of the findings, the unchallenged findings are verities on appeal.

Darkenwald, 183 Wn.2d at 244.

We review questions of law and the agency's application of the law to the facts

de novo. Cornelius v. Deg't of Ecology, 182 Wn.2d 574, 585, 344 P.3d 199 (2015). But

we afford "great weight" to the agency's interpretation of law "where the statute is within

the agency's special expertise." Cornelius, 182 Wn.2d at 585.

Statutory Authority

RCW 26.44.020(1) defines "neglect" as "the negligent treatment or maltreatment

of a child by a person responsible for or providing care to the child." RCW

26.44.020(17)6 defines "negligent treatment," in pertinent part, as follows:

"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 of consequences of such magnitude as to
constitute a clear and present danger to a child's health, welfare, or safety.

WAC 388-15-009(5) defines "negligent treatment" of a child, in pertinent part, as

follows:

Negligent treatment or maltreatment means an act or a failure to act, or
the cumulative effects of a pattern of conduct, behavior, or inaction, on the
part of a child's parent, legal custodian, guardian, or caregiver that shows
a serious disregard of the consequences to the child of such magnitude
that it creates a clear and present danger to the child's health, welfare, or

6 The legislature renumbered RCW 26.44.020(16) to subsection (17) in 2018. See Reviser's note
(1)("The definitions in this section have been alphabetized pursuant to RCW 1.08.015(2)(k)."). Because
the definition of "negligent treatment" has not changed, we cite the current statute RCW 26.44.020(17)
throughout the opinion.

15
No. 76612-1-1/16

safety. A child does not have to suffer actual damage or physical or
emotional harm to be in circumstances which create a clear and present
danger to the child's health, welfare, or safety. Negligent treatment or
maltreatment includes, but is not limited, to:
(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 or 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.

Cunningham contends the DSHS Board of Appeals exceeded its statutory

authority by relying on the failure to supervise under the WAC 388-15-009(5)(a)

definition of "negligent treatment" without regard to whether DSHS proved serious

disregard of the consequences that created a clear and present danger.

In Marcum v. Department of Social & Health Services, 172 Wn. App. 546, 558-

59, 290 P.3d 1045 (2012), the court held the board exceeded its statutory authority by

treating the failure to provide adequate supervision under WAC 388-15-009(5)(a) as per

se negligent treatment without regard to whether the record established "a serious

disregard of consequences of such magnitude" that created "a clear and present danger

to a child's health, welfare, or safety" as required under RCW 26.44.020(17). The court

held DSHS "lacks the authority to promulgate and interpret a rule that fundamentally

shifts the standard required to make a neglect finding" under RCW 26.44.020(17).

Marcum, 172 Wn. App. at 559. The court vacated the finding of negligent treatment

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No. 76612-1-1/17

under WAC 388-15-009(5). Marcum, 172 Wn. App. at 559. However, the court in

Marcum notes:

Had the Board concluded that [appellant]'s actions "evidence[d] a serious
disregard of consequences of such magnitude as to constitute a clear and
present danger to a child's health, welfare, or safety,". . . we would give
substantial weight to such an interpretation in light of DSHS's expertise in
this field.

Marcum, 172 Wn. App. at 5607 (quoting RCW 26.44.020(17)).

Unlike in Marcum, here, the DSHS Board of Appeals Review Judge did not

disregard the statutory definition of negligent treatment. The extensive unchallenged

findings support the conclusion that leaving four-year-old T.J. alone at the Garfield

Community Center playground for approximately an hour and a half evidences a serious

disregard of consequences of such magnitude as to constitute a clear and present

danger to T.J.'s welfare or safety.

For the first time on appeal, Cunningham claims DSHS exceeded its statutory

authority in promulgating WAC 388-15-009(5)"to the extent it allows the Department to

circumvent the requirements" of RCW 26.44.020. "'[A] party attacking the validity of an

administrative rule has the burden of showing compelling reasons that the rule is in

conflict with the intent and purpose of the legislation.'" State ex rel. Evergreen

Freedom Foundation v. Educ. Ass'n., 140 Wn.2d 615, 635, 999 P.2d 602(2000)8

(quoting Green River Cmtv. Coll. v. Higher Ed. Pers. Bd., 95 Wn.2d 108, 112, 622 P.2d

826 (1980)). Cunningham cannot meet her burden. WAC 388-15-009(5) mirrors the

statutory definition under RCW 26.44.020(17) and DSHS did not exceed its authority by

7 Second alteration in original.
8 Alteration in original.

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No. 76612-1-1/18

listing examples of negligent treatment. See RCW 74.08.090 (general rule making

authority); chapter 26.44 RCW (Children Abuse and Neglect Act).9

RCW 26.44.020

Cunningham contends the DSHS Board of Appeals Review Judge erroneously

interpreted and applied the law by ignoring the "clear intent and plain meaning" of RCW

26.44.020(17).

We review the meaning of a statute de novo. Dep't of Ecoloov v. Campbell &

Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4(2002). Our objective is to discern and

implement the legislature's intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d

1078 (2012). If the statute's meaning is plain on its face, we give effect to that plain

meaning as an expression of legislative intent. Campbell & Gwinn, 146 Wn.2d at 9-10.

We give effect to all language used in a statute, rendering no part superfluous.

HomeStreet, Inc. v. Dep't of Revenue, 166 Wn.2d 444, 452, 210 P.3d 297(2009). The

rules of statutory interpretation apply to administrative rules and regulations. Whatcom

County v. W. Wash. Growth Momt. Hros Bd., 186 Wn.2d 648, 667-68, 381 P.3d 1

(2016).

RCW 26.44.020(17) defines "negligent treatment or maltreatment" as "an act or a

failure to act. . . 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."

Cunningham also argues insufficient evidence supports finding negligent

treatment because the evidence showed she did not "intentionally" leave T.J. at Garfield

9 We note DSHS amended WAC 388-15-009(5) in 2017 to state that negligent treatment "may
include, but is not limited to," the "fflailure to provide adequate food, shelter, clothing, supervision, or
health care necessary" to the child's welfare or safety. WSR 17-22-059 (emphasis in original)(codified at
former WAC 388-15-009(5)(e)(i)(2017)).

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No. 76612-1-1/19

Community Center. Citing Brown v. Department of Social & Health Services, 190 Wn.

App. 572, 360 P.3d 875 (2015), Cunningham asserts the statute requires proof of an

intentional act. Neither Brown nor the plain language of the statute supports her

argument.

In Brown, the court held DSHS erred by using a "reasonable person" standard in

finding neglect under RCW 26.44.020(17) because the statutory definition requires a

"higher standard" than simple negligence. Brown, 190 Wn. App. at 592-93. The court

in Brown also notes "serious disregard" under RCW 26.44.020(17) is analogous to

"reckless disregard," which is defined as an intentional act or failure to act. Brown, 190

Wn. App. at 590.

The plain and unambiguous language of RCW 26.44.020(17) does not require a

showing of negligent treatment. Consistent with Brown, the plain and unambiguous

language of the statute requires proof of a failure to act that evidences a serious

disregard of consequences of such magnitude as to constitute a clear and present

danger to the child's health, welfare, or safety. And unlike in Brown, the DSHS Board of

Appeals Review Judge did not use a reasonable person standard.

Cunningham also claims "clear and present danger" means "actual" danger that

is "unmistakable and free from ambiguity." Cunningham argues "exposure to potential

risks" is insufficient to show "clear and present danger." We disagree. The plain

language of the statute does not require actual harm to show a "clear and present

danger" to a child's health, welfare, or safety. See In re Dependency of H.S., 135 Wn.

App. 223, 233, 144 P.3d 353(2006). A "clear and present" danger must be close in

time to the act or failure to act. See In re Dependency of M.S.D., 144 Wn. App. 468,

19
No. 76612-1-1/20

481, 182 P.3d 978 (2008). The failure to protect a child from significant risk of harm is

sufficient to show "clear and present danger." See, e.g., M.S.D., 144 Wn. App. at 480-

481; In re Dependency of S.M.H., 128 Wn. App. 45, 60, 115 P.3d 990 (2005); In re

Interest of J.F., 109 Wn. App. 718, 731, 37 P.3d 1227 (2001).

The unchallenged findings established that leaving four-year-old T.J. alone at the

Garfield Community Center created a clear and present danger to T.J.'s health, safety,

or welfare. The findings describe a number of risks to T.J., including the location of the

playground near a busy street and parking lot and 19 registered sex offenders living

within a half-mile radius of Garfield Community Center. Cunningham conceded it was a

"very serious situation" and T.J. "was at risk of harm." Cunningham testified that she

was scared "somebody came and snatched" T.J. and she "didn't know if he was

kidnapped."

Arbitrary and Capricious

Cunningham contends the DSHS Board of Appeals Review Judge's

interpretation of WAC 388-15-009(5) was arbitrary and capricious because the Final

Order does not adequately address "whether there was a 'serious disregard' of the

circumstances that created a 'clear and present' danger." The Final Order does not

support her argument.

Agency action is "'arbitrary and capricious if it is willful and unreasoning and

taken without regard to the attending facts or circumstances.'" Rios v. Dep't of Labor &

Indus., 145 Wn.2d 483, 501, 39 P.3d 961 (2002)(quoting Hillis v. Dep't of Ecology, 131

Wn.2d 373, 383, 932 P.2d 139(1997)). Where there is room for two opinions, action

20
No. 76612-1-1/21

taken after due consideration is not arbitrary and capricious even though a reviewing

court may believe it is erroneous. Rios, 145 Wn.2d at 501.

The DSHS Board of Appeals Review Judge considered the facts and

circumstances in finding negligent treatment. The extensive unchallenged findings

support the conclusion that the failure to supervise T.J. evidenced a serious disregard of

consequences of such magnitude as to constitute clear and present danger to T.J. The

Final Order is neither willful and unreasoning nor without consideration or regard of the

facts and circumstances.

CR 15 Motion to Amend

Cunningham claims the court abused its discretion by denying the CR 15 motion

to amend the petition for judicial review.

The All held a consolidated hearing on the DSHS finding of negligent treatment

and the DEL decision disqualifying Cunningham from caring for children and revoking

her childcare license. Cunningham filed separate appeals to the DSHS Board of

Appeals and the DEL Review Judge. The DEL Review Judge stayed the DEL appeal

"pending issuance of a final agency decision" on negligent treatment by the DSHS

Board of Appeals Review Judge.

On December 29, 2015, the DSHS Board of Appeals Review Judge entered a

Final Order upholding the DSHS finding of negligent treatment. On January 20, 2016,

Cunningham filed a petition in King County Superior Court for judicial review of the

DSHS Final Order.

On January 22, the DEL Review Judge lifted the stay and issued a Final Order

revoking Cunningham's childcare license. On February 10, DEL mailed the DEL Final

21
No. 76612-1-1/22

Order to her attorney. The Final Order includes a "Statement of Appeal Rights after

Review Decision and Final Order" and states Cunningham must file a petition for judicial

review within "(30) calendar days from the date of mail."

On April 26, Cunningham filed a CR 15(c) motion to amend the petition filed in

superior court to add review of the DEL Final Order. Cunningham argued the DEL Final

Order "relate[s] back to the original petition" and DEL would not be prejudiced. DSHS

argued the Civil Rules "do not apply to the APA provisions governing judicial review of

agency action" and the petition for judicial review of the DEL order was not timely under

the APA, RCW 34.05.542(2). In reply, Cunningham did not address whether the

petition for judicial review of the DEL Final Order was timely under the APA.

The court denied the motion to amend the petition for judicial review. The court

ruled the "Administrative Procedure Act requires Petitioner to file her appeal within 30

days" and "[c]ase law makes clear that this court has no discretion to grant the Motion to

Amend the Petition."

Cunningham contends the court abused its discretion by denying the CR 15(c)

motion because the DEL Final Order relates back to the DSHS order. Because the

APA establishes the "exclusive means of judicial review for agency action," we

disagree. Diehl v. W. Wash. Growth Momt. Hr'gs Bd., 153 Wn.2d 207, 213, 103 P.3d

193(2004); RCW 34.05.510. "The superior court and the parties are bound by the

statutory mandate of the APA, and it is the statutory procedural requirements which

must be met to invoke subject matter jurisdiction." Diehl, 153 Wn.2d at 217. When

reviewing an administrative decision, "the superior court is acting in its limited appellate

capacity, and all statutory procedural requirements must be met before the court's

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No. 76612-1-1/23

appellate jurisdiction is properly invoked." Seattle v. Pub. Emp't Relations Comm'n, 116

Wn.2d 923, 926, 809 P.2d 1377 (1991).

RCW 34.05.542(2) provides that a petition for judicial review of an agency order

"shall be filed with the court and served on the agency, the office of the attorney

general, and all parties of record within [30] days after service of the final order."

Cunningham filed the motion to amend the petition for judicial review to request review

of the DEL order 76 days after DEL mailed the Final Order. Because Cunningham did

not comply with the requirements of RCW 34.05.542, we conclude the court did not

abuse its discretion by denying the motion to amend the petition for judicial review.

For the first time on appeal, Cunningham cites Devore v. Dep't of Soc. & Health

Servs., 80 Wn. App. 177, 906 P.2d 1016 (1995), to argue her petition for judicial review

of the DEL order was not untimely. Cunningham asserts the 30-day statute of

limitations has not expired because DEL failed to properly serve the order on her under

RCW 34.05.464(9). Devore is distinguishable.

In Devore, the trial court dismissed the petition for judicial review filed 33 days

after DSHS mailed the final order "to the Devores addressed in care of [their attorney]."

Devore, 80 Wn. App. at 180. Because "'the APA requires a reviewing officer to serve

copies of final orders "upon each party,"'" we reversed. Devore, 80 Wn. App. at 181-

83(quoting Union Bay Pres. Coal. v. Cosmos Dev. & Admin. Corp., 127 Wn.2d 614,

618-19, 902 P.2d 1247(1995)(quoting RCW 34.05.464(9))). In Devore, the Devores

"never authorized that service be made in care of their attorney, rather than to th'em

directly." Devore, 80 Wn. App. at 182 n.3. The court held "requirement of service" is

23
No. 76612-1-1/24

not met "by merely addressing the mailing to the party in care of the party's attorney."

Devore, 80 Wn. App. at 182.

Here, unlike in Devore, Cunningham expressly authorized service on her

attorney. In her administrative appeal of the DEL order revoking her license,

Cunningham "requests that all communication go through her attorney, Abigail Jin at

Barokas Martin & Tomlinson 1422 Bellevue Avenue, Seattle, WA 98122, and phone

number(206) 621-1871." In the "Witness and Exhibit List," Cunningham lists her

address as in care of her attorney.

DSHS filed a motion to supplement the record with "Appendix X" under RAP

9.11(a). We grant the motion to supplement the record. Appendix X is a copy of the

February 1, 2016 notice of appearance of Cunningham's attorney. The notice of

appearance states, in pertinent part, "You are further notified that all further pleadings,

notices, documents or other papers herein, exclusive of original process, may be had

upon said Appellant by serving the undersigned attorney at the address below."

Cunningham did not submit a response or oppose the motion.

Because Cunningham expressly authorized service on her attorney rather than to

her directly, DEL properly mailed the DEL Final Order to the attorney, and her petition

for review of the DEL order was untimely.1°

10 For the first time on appeal, Cunningham also cites RCW 34.05.510(2) to argue the Civil Rules
apply because amending the petition for judicial review to include review of the DEL order is an
"[a]ncillary procedural matter[ ]." RCW 34.05.510(2) states, in pertinent part, "Ancillary procedural matters
before the reviewing court, including intervention, class actions, consolidation,[and]joinder.... are
governed, to the extent not inconsistent with this chapter, by court rule." Cunningham does not address
whether the petition for review of the DEL Final Order is an ancillary procedural matter.

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No. 76612-1-1/25

We affirm the DSHS Board of Appeals Final Order affirming the finding of

negligent treatment and the superior court denial of the CR 15(c) motion to amend the

petition for judicial review."

WE CONCUR:

C4.....„

11 Because Cunningham is not the prevailing party, she is not entitled to fees under RAP 18.1 and
Washington's equal access to justice act, RCW 4.84.340 through .360.

25