Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garcia v. Department of Social and Health Services

Court of Appeals of Washington, Division 1

September 3, 2019

ANA LIZA GARCIA; CARMEN PACHECO-JONES; AND NATALYA SEMENENKO, Appellants,
v.
DEPARTMENT OF SOCIAL AND HEALTH SERVICES, STATE OF WASHINGTON, Respondent, CHRISTINE NIXON, Plaintiff, SECRETARY OF THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, AND SECRETARY OF STATE, Defendants.

          ANDRUS, J.

         Ana Liza Garcia, Carmen Pacheco-Jones, and Natalya Semenenko (Appellants) contend the Department of Social and Health Services (DSHS) unfairly denied them the ability to work as caregivers to vulnerable adults. Under RCW 74.39A.056, these women are prohibited from being employed as long-term care workers because each has a disqualifying finding of child abuse or neglect. We therefore affirm the dismissal of their claims.

         I. BACKGROUND OF DISPUTE

         A. DSHS

         DSHS is the Washington state agency responsible for coordinating the care of individuals who, because of their economic, social, or health condition, require financial assistance, institutional care, rehabilitation services, or other social and health services. RCW 43.20A.010. It provides services to "functionally disabled" persons-defined as individuals who, because of a recognized chronic physical or mental condition or disease, are "dependent upon others for direct care, support, supervision, or monitoring to perform activities of daily living," including bathing, toileting, and dressing. RCW74.39A.240, .009(23). DSHS administers programs for older adults through the Aging and Long-Term Support Administration (ALTSA), and for individuals with developmental disabilities through the Developmental Disabilities Administration (DDA). ALTSA and DDA hire people to provide intimate care for these vulnerable individuals, and there is little supervision or state oversight.

         In 1997, the legislature passed the Long-Term Care Reorganization and Standards of Care Reform Act, which banned individuals who committed the abuse or neglect of minors or vulnerable adults from employment in positions with unsupervised access to vulnerable adults:

No provider or staff, or prospective provider or staff, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry finding him or her guilty of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.

Laws of 1997, ch. 392, § 209(8) (initially codified at former RCW 74.39A.050).

         In November 2011, the voters of Washington passed Initiative Measure No. 1163, requiring criminal background checks for all long-term care workers.[1] Laws OF2012, ch.1. Initiative 1163 required DSHS to perform background checks of all prospective "individual providers."[2] RCW 74.39A.261. It also retained the employment ban instituted in 1997. Laws of 2012, ch.1, § 106 (recodified as former RCW 74.39A.051). Then, in March 2012, the legislature amended and relocated the employment ban into what is now RCW 74.39A.056(2), with slightly modified language:

No provider, or its staff, or long-term care worker, or prospective provider or long-term care worker, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority or a court of law or entered into a state registry with a final substantiated finding of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.

         Laws of 2012, ch. 164, § 503(2); see also Laws of 2012, ch. 164, § 701. The legislature added a provision requiring DSHS to establish by rule a state registry containing identifying information about long-term care workers who have abused or neglected a vulnerable adult. RCW 74.39A.056(3). The legislature authorized DSHS to adopt rules'to implement all provisions of this statute. RCW 74.39A.056(4).

         B. Child Abuse and Neglect Investigations

         At all times relevant to this appeal, DSHS was also responsible, through the Children's Administration and Child Protective Services (CPS), for investigating reports of child abuse or neglect under RCW 26.44.050.[3] When DSHS receives a report of alleged child abuse or neglect, it screens the report to determine if it is credible. RCW 26.44.030(11), .020(22). A credible report is considered "screened in," at which time, DSHS then decides whether to conduct a "family assessment"[4]or a formal investigation. RCW 26.44.030(11).

         If DSHS chooses to respond with a family assessment, it will not make a finding as to whether child abuse or neglect occurred. RCW 26.44.030(17)(b). If, however, DSHS conducts an investigation, it assigns an investigator from CPS to determine whether a report of child abuse or neglect is "unfounded" or "founded." RCW 26.44.030(12)(a). An "unfounded" finding means that available information indicates that, more likely than not, child abuse or neglect did not occur, or that there is insufficient evidence for DSHS to determine whether the alleged child abuse did or did not occur. RCW 26.44.020(26). A "founded" finding is a determination that, based on available information, it is more likely than not that child abuse or neglect did occur. RCW 26.44.020(12).

         DSHS is statutorily mandated to notify any parent of allegations of child abuse or neglect and of the agency's finding at the conclusion of its investigation. RCW 26.44.100(2). DSHS must also notify the parent that founded reports of child abuse and neglect may be considered in determining whether the parent is disqualified from being licensed to provide childcare, employed by a licensed childcare agency, or authorized by DSHS to care for children. RCW 26.44.100(2)(c). Finally, it must notify the parent of his or her right to seek review of the finding. RCW 26.44.100(2)(d).

         Before Congress passed the Child Abuse Prevention and Treatment Act[5](CAPTA) in 1997, there was no mechanism for challenging a CPS finding of child abuse or neglect. CAPTA conditioned federal funding for child welfare systems on, among other things, improving the evidentiary and investigatory standards applicable to child abuse and neglect findings. CAPTA also required states to implement laws to allow individuals to appeal any founded finding. 42 U.S.C. § 5106a(b)(2)(B)(xv)(II). Washington complied with CAPTA by October 1, 1998.

         Since then, under RCW 26.44.125, any person named as an alleged perpetrator of child abuse or neglect after October 1, 1998, has the right to request agency review within 30 days of notification of a founded finding. If the alleged perpetrator fails to request review, he or she "may not further challenge the finding and shall have no right to agency review or to an adjudicative hearing or judicial review of the finding," unless DSHS failed to comply with the statutory notice requirements. RCW 26.44.125(3). If an individual requests a review, DSHS will assign a management level staff member to conduct the review and notify the person in writing of the agency's determination. RCW 26.44.125(4). If the agency affirms the finding, the individual may seek an adjudicative hearing. RCW 26.44.125(5). Failing to request a hearing constitutes a waiver of the right to further agency or judicial review, id, and makes the finding "final," RCW 43.43.830(4).

         If DSHS determines a parent has abused or neglected his or her child, it may choose to offer services to him or her to address the effects of any mistreatment or neglect. RCW 26.44.195(1). Alternatively, DSHS may initiate dependency proceedings in superior court under chapter 13.34 RCW. RCW 26.44.195(4). A dependency proceeding could result in a final court order in which the parent is found to have committed child abuse or neglect. See RCW 13.34.110 (court shall hold hearing and find, by preponderance of evidence, if child is dependent within meaning of RCW 13.34.030); RCW 13.34.030(6) ("dependent child" includes child who has been abused or neglected as defined in chapter 26.44 RCW). If a court finds by a preponderance of the evidence that a person has abused or neglected a child, DSHS "shall adopt the finding in its investigation." RCW 26.44.030(12)(b).

         Under former RCW 26.44.070, DSHS maintained reported cases of child abuse in a "central registry," which was accessible by persons "directly responsible for the care and treatment of children . . . pursuant to chapter 74.15 RCW; . . . ." Dunning v. Paccerelli, 63 Wn.App. 232, 234 & n.1, 818 P.2d 34 (1991) (alterations in original); see also Fettig v. Dep't of Soc, & Health Servs., 49 Wn. App.s 466, 467 n.1, 744 P.2d 349 (1987) (department maintained central registry of child abuse pursuant to RCW 26.44.070). This central registry was confidential and privileged; information in it could be released only by court order, except for certain statutorily identified agencies and for specific purposes. See Laws of 1984, ch. 97, § 6.

         The legislature repealed the central registry provision in 1987. Laws of 1987, ch. 486, § 16. But the current statutory framework nevertheless contemplates the maintenance of a database of founded child abuse findings. RCW 26.44.030(17)(a) provides that DSHS "shall maintain investigation records" of all founded cases of abuse and neglect and maintain a log of "screened-out nonabusive cases." Under RCW 26.44.030(17)(b), if DSHS chooses to conduct a family assessment, rather than an investigation, "[n]o one shall be named as a perpetrator and no investigative finding shall be entered in the department's child abuse or neglect database." See also RCW 26.44.020(11) (under a family assessment response, "no investigative finding is entered in the record").

         C. DSHS Background Checks

         In 1987, the legislature enacted RCW 43.43.832, requiring the Washington State Patrol (WSP) to collect and disclose to prospective employers providing services to vulnerable adults information relating to any job applicant's[6] convictions, "adjudications of child abuse in a civil action, "[7] and "disciplinary board final decisions." Laws of 1987, ch. 486, § 2(1).

         In 2005, the legislature amended RCW 43.43.832 to require DSHS (rather than the WSP) to "establish rules" and "set standards" for considering conviction information and administrative or court findings of abuse when licensing facilities, contracting, and paying individual providers, for the care of children, developmentally disabled persons, and vulnerable adults. See Laws of 2005, ch. 421, §2(4).

         To assist with this statutory requirement and fulfill its background check requirements under RCW 74.39A.261, DSHS performs background checks through its Background Check Central Unit (BCCU). WAC 388-06-0700. BCCU is responsible for compiling background check information from external and internal sources, determining whether the applicant's background check information matches to the appropriate department's list of disqualifying crimes and "negative actions, "[8] and providing the information to the entity requesting the background check. WAC 388-06-0700(2).

         By statute, any business or organization requesting a BCCU background check must require each applicant to disclose whether the applicant has been convicted of any crime or "has had findings made against him or her in any civil adjudicative proceeding as defined in RCW 43.43.830." RCW 43.43.834(2)(b). As a result, the background check authorization form asks each applicant if "a court or state agency ever issued you an order or other final notification stating that you have sexually abused, physically abused, neglected, abandoned, or exploited a child, juvenile, or vulnerable adult?" The applicant must respond "yes" or "no." If an applicant self-discloses criminal history or a CPS founded finding, BCCU staff enters that information into BCCU's database.

         BCCU then checks its own "repository" or "criminal history system" database. BCCU's database contains information on individuals from various sources, including the WSP, the Administrative Office of the Courts, the Department of Health, and DSHS's electronic database, FamLink, which contains records relating to founded findings of child abuse and neglect.

         BCCU began retaining founded abuse and neglect findings in its database in January 2006. Once BCCU enters or uploads that information into its database, it remains there for any future background checks. The record does not reveal how long BCCU retains this information in its repository.

         The record is also unclear whether BCCU automatically receives all founded findings from FamLink as a routine matter or whether it only receives this information in response to a specific background check request. The Centralized Services Administrator for DSHS, testified that BCCU sends an inquiry to FamLink which then sends information on any individuals whose name matches that of the applicant. But according to BCCU's manager, BCCU receives a nightly upload from FamLink that includes the name and date of birth of every individual whose founded child abuse finding has become final. Regardless, BCCU receives and retains any founded findings of child abuse it receives from FamLink. DSHS provides BCCU only with founded findings made after January 1, 1999, to comply with CAPTA.[9]

         DSHS promulgated three regulations at issue in this case. WAC 388-71-0540(d) provides that DSHS will deny payment for the services of any individual provider or home care agency provider when he or she has a founded finding of abuse or neglect of a child under RCW 26.44.020 that is:

(i) Listed on the . . . [BCCU] report; or
(ii) Disclosed by the individual, except for findings made before December 1998. Findings made before December 1998 require a character, competence, and suitability determination.

         WAC 388-825-640 similarly provides:

(2) The following negative actions will automatically disqualify an individual from having unsupervised access to individuals with a development disability:
(a)A final finding of abuse, neglect, financial exploitation or abandonment of a vulnerable adult, unless the finding was made by Adult Protective Services prior to October 2003.
(b)A final finding of abuse or neglect by [CPS], unless the finding was made prior to October 1, 1998.

         And under WAC 388-825-645, if the CPS finding predates October 1, 1998, the person is not automatically disqualified from employment with developmentally disabled individuals if he or she successfully completes a character, competence, and suitability review.[10]

         Both DDA and ALTSA consider founded child abuse or neglect findings as a part of the background check process required by RCW 74.39A.261. These agencies will not contract for personal in-home care of a child or vulnerable adult with anyone who has a founded finding of child abuse or neglect. A former DDA program manager testified that because of the nature of the care DDA provides to its clients, DDA's "rules would prevent [a] contract [with someone with a founded finding of child abuse or neglect] from moving forward, period, for the protection of all vulnerable people involved." Because there is little oversight of the care providers, DDA errs on the side of protecting the State's "most vulnerable citizens" by never contracting with persons with founded abuse or neglect findings. ALTSA similarly disqualifies all applicants with founded child abuse or neglect findings.

         Additionally, DSHS uses founded child abuse findings to assess individuals who seek to become licensed foster parents or to have unsupervised access to children in DSHS's care, custody, or control. It also retains the records for case management and safety planning purposes. If DSHS works with the same family over time, it uses past investigative findings of child abuse when making child safety assessments or conducting future investigations. Because DSHS has a statutory obligation to keep families united, see RCW 74.15.010(2), it has discretion to allow family members with founded findings to have unsupervised access to a child in the family. Unlike DDA and ALTSA, DSHS also has more opportunities to observe the child on a frequent basis. A DSHS caseworker assesses a child's health and safety every 30 days, and the child is often observed by other persons who must report possible child abuse or neglect, such as persons in the school system. Even with the discretion and increased opportunities for observation, DSHS often disqualifies individuals with founded findings from having children placed with them or from having unsupervised access to the children.

         D. Records Retention Schedules

         RCW 26.44.031(2) provides that DSHS must destroy "screened-out" reports of child abuse or neglect within three years, and it must destroy "unfounded" or "inconclusive" reports within six years of completing an investigation. The statute authorizes DSHS to keep records "concerning founded reports of child abuse or neglect as the department determines by rule." RCW 26.44.031(3). DSHS rules provide that it "shall retain records relating to founded reports of child abuse and neglect as required by DSHS records retention policies." WAC 110-30-0210(5).

         All government agencies must have record retention schedules for public records. RCW 40.14.060. By law, the minimum retention period for any public record is six years. RCW 40.14.060(1). The entity authorized to approve, modify, or disapprove recommendations on retention schedules and to act on any request to destroy public records is the state records committee. RCW 40.14.050.

         In 2008 and 2009, in preparing to implement FamLink, DSHS sought to harmonize its records retention policies. DSHS representatives requested that the records committee approve an extension of the records retention schedule for investigative files leading to founded abuse or neglect findings from the minimum of 6 years to 35 years. It articulated three reasons for this change. First, DSHS wanted to make the retention schedule the same as the schedule for records relating to the revocation of foster care licenses. Without the proposed extension, if DSHS revoked a foster care license based on a founded child abuse finding but the records relating to that investigation were destroyed after only six years, DSHS would be unable to determine why a license revocation occurred. Second, DSHS representatives considered it necessary to keep the investigative records for longer than six years to defend against tort claims with long statutes of limitation. Finally, DSHS wanted to preserve records relating to persons in its system as children who might want access to their abuse and neglect history years later.

         The state records committee approved the request, and effective February 4, 2009, all CPS case files with a founded child abuse finding-including law enforcement reports, medical reports, court reports, court orders, child interview notes, and correspondence-are now retained for 35 years from the date of case closure.

         E. Appellant Ana Liza Garcia

         In August 2009, CPS investigated a report that Garcia had been arrested for driving while under the influence with her 14-year-old wheelchair-bound son in her car. DSHS determined that the allegation of negligent treatment was founded. Although DSHS purported to notify Garcia of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.