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In re Dependency of A.P.

Court of Appeals of Washington, Division 3

November 14, 2013

In the Matter of the Dependency of A.P

Appeal from Lincoln County Superior Court. Docket No: 12-7-00005-0. Date filed: 05/18/2012. Judge signing: Honorable John F Strohmaier.

Craig A. Mason (of Mason Law ), for appellant.

Robert W. Ferguson, Attorney General, and Tobin J. Carlson, Assistant, for respondent.

AUTHOR: George B. Fearing, J. WE CONCUR: Kevin M. Korsmo, C.J., Stephen M. Brown, J.

OPINION

Fearing, J.

[177 Wn.App. 872] INTRODUCTION AND RULING

¶ 1 The State of Washington, through the Department of Social and Health Services (DSHS), filed a petition alleging that the child A.P. was a dependent of the State. DSHS asserted that A.P. was abused or neglected, as defined by [177 Wn.App. 873] the dependency statutes, and had no parent capable of caring for her. A.P.'s mother, B.P., successfully opposed the dependency and retained custody of her daughter. Upon a ruling in her favor from the superior court, B.P. sought an award of reasonable attorney fees and costs, under RCW 4.84.350, Washington's equal access to justice act (WEAJA). In short, the WEAJA allows " a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable

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attorneys' fees, unless the court finds that the agency action was substantially justified." RCW 4.84.350. The superior court denied the motion based on its understanding that RCW 4.84.350 provides for attorney fees only on judicial review of rule making and adjudicative proceedings governed by the Administrative Procedure Act (APA), chapter 34.05 RCW. B.P. appeals, arguing that the meaning of " agency action" as used in RCW 4.84.350 extends beyond rule making and agency adjudication. We affirm the superior court on the ground that this dependency action does not constitute " judicial review" of an agency action.

FACTS

¶ 2 This case presents a single question of law for review. As such, the facts of this case are largely irrelevant, although the facts include more than the background to the dependency petition.

¶ 3 A.P., born in 2009, is the daughter of the formerly married couple, B.P. and B.M.P. In 2011, B.M.P. filed for divorce in Lincoln County. Since the parties have separated, B.P. has been the primary caregiver for A.P.

¶4 On December 27, 2011, A.P. suffered a bruise on her face. Confusion exists as to whether the bruise resulted from A.P.'s fall on an icy sidewalk or from a slap by B.P.'s boyfriend. B.P. broke off contact with the boyfriend. She relayed her concerns about the bruise and her possible overreaction to the injury to her counselor, who reported the event to Child Protective Services (CPS).

[177 Wn.App. 874] ¶ 5 On January 10, 2012, CPS gathered a family team decision meeting among a CPS facilitator, B.M.P., B.P., and B.P.'s attorney. CPS encouraged B.P. to place A.P. in the care of B.M.P., but B.P. refused.

¶ 6 On January 12, B.M.P. obtained a temporary restraining order, without notice to B.P. or her counsel, preventing B.P. from contact with A.P., effectively placing custody of the child with B.M.P. In support of the order, B.M.P. averred, " CPS advised me to get emergency protection for my daughter as soon as I could. They are working to give me full custodial rights." Clerk's Papers at 141. B.P. immediately moved to quash the order and a hearing was scheduled for January 17. In opposition to the motion to quash and in support of continuing the restraining order, a CPS ...


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