                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          April 5, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
    WASHINGTON STATE DEPARTMENT OF                                     No. 46776-3-II
    SOCIAL AND HEALTH SERVICES,

                                   Respondent,

           v.

    RICHARD D. SEVERSON,                                           UNPUBLISHED OPINION

                                   Appellant.

          WORSWICK, P.J. — Richard Severson appeals a board of appeals (BOA) order affirming a

finding by the Department of Social and Health Services (DSHS) that he neglected or maltreated

his son. After DSHS investigated Severson’s son’s injury, it made a founded finding of neglect

or maltreatment. Several appeals ultimately culminated in a superior court decision affirming the

founded finding. In this appeal, Severson makes several procedural and substantive claims; in

essence, he argues that the finding of neglect or maltreatment is unsupported by substantial

evidence and that errors, which he broadly characterizes as procedural errors, deprived him of

due process. We affirm the BOA order affirming the finding.

                                                 FACTS

          Severson and Cary Floyd had a 10-month-old son, “C.”1 On December 21, 2010, C

sustained a bruised forehead. Floyd sought treatment at a hospital, and a social worker

interviewed her there. Floyd told the social worker that Severson initiated a physical fight with



1
    We refer to the minor by his initial to protect his privacy.
No. 46776-3-II


her, and while Severson was holding C, Severson repeatedly knocked Floyd’s head into a gate.

Floyd thought C sustained a bruised forehead while Severson was assaulting Floyd and holding

C. C had a “bruise on the crown area [of his head] that was purple and red in color and about a

half-dollar size.” Clerk’s Papers (CP) at 251.

       DSHS initiated an investigation of whether Severson negligently treated or maltreated C.

This investigation involved multiple interviews with Floyd, examining medical records and a

police report, and interviewing Severson in jail where he was being held for assaulting Floyd.

During this investigation, Floyd revealed that she obtained a seven-inch gash on her shoulder,

some scrapes, and a swollen hand during the incident. C’s bruise was still visible during the

investigation. When CPS interviewed Severson in jail, he volunteered that he knew C had a

bruise and he pointed to the bruise’s location on his own forehead. He told the CPS worker that

he pulled Floyd down by the string on her coat hood while he was holding C.

       On February 4, 2011, DSHS wrote a letter to Severson notifying him of its findings. It

wrote that the allegation that Severson neglected or maltreated C was founded2 because “by your

own admission you were holding [C] while you perpetrated a physical incident on Cary Floyd,

pulling Ms. Floyd down by her jacket string, ultimately causing [C] to hit his forehead on the

ground, and as a result [C] sustained a contusion/hematoma on his forehead.” CP at 63. It

concluded that these actions showed a “serious disregard to the consequences for [C] to such a

magnitude that it created a clear and present danger to the child’s health, welfare, and safety.”

CP at 63.


2
 A “founded” finding is one that DSHS determines is more likely than not to be true. RCW
26.44.020(11).



                                                 2
No. 46776-3-II


         Severson requested an internal DSHS review of the founded finding, and DSHS upheld

its finding after the review. Severson then requested an administrative hearing at the Office of

Administrative Hearings (OAH). Severson chose to be assisted by paralegal Jacquie Darby at

the hearing; Darby acted in the role of Severson’s counsel. The DSHS investigator and Severson

testified at the hearing. The OAH administrative law judge (ALJ) found that much of the

evidence of Severson’s conduct, including the statements Floyd made to DSHS investigators,

and the police report, was inadmissible hearsay. She found that admitting these statements

would unjustifiably prejudice Severson’s rights. Therefore, without the corroboration of Floyd’s

hearsay statements and the police report, the ALJ reversed the finding of negligent treatment or

maltreatment for lacking sufficient evidence.

         DSHS petitioned for review before a review judge at the BOA. After reviewing the

record, the BOA review judge reinstated the founded finding of negligent treatment or

maltreatment. The review judge concluded that sufficient evidence corroborated the hearsay

statements, allowing the hearsay statements to be admitted under Administrative Procedure Act3

(APA) standards. He also found that Floyd’s statements to the social worker fell under the

hearsay exception for statements for the purpose of medical treatment or diagnosis. Finally, he

found that there was sufficient evidence to sustain the founded finding even if all of Floyd’s

statements were inadmissible hearsay. Therefore, the BOA review judge found by a

preponderance of the evidence that Severson attacked Floyd while he was holding C, and in the

course of this attack Severson dropped C.




3
    Ch. 34.05 RCW.


                                                 3
No. 46776-3-II


        Severson petitioned for judicial review in the superior court. After reviewing the record

and hearing oral argument, the superior court held that the BOA review judge did not make any

errors of law and that his findings of fact were supported by substantial evidence. Severson

appeals.

                                               ANALYSIS

                                         I. DISCRETIONARY REVIEW

        As a preliminary matter, DSHS argues that we should reject Severson’s appeal because it

does not meet the criteria of RAP 2.3, which governs discretionary review. DSHS argues that

Severson already received his appeal as a matter of right in the superior court. We disagree

because Severson has the right to appeal the superior court’s determination under RAP 2.2.

        RAP 2.2(a) lists the superior court decisions from which a party may appeal as a matter

of right. It states, in relevant part:

        [E]xcept as provided in sections (b) and (c), a party may appeal from only the
        following superior court decisions:

                (1) Final Judgment. The final judgment entered in any action or
        proceeding, regardless of whether the judgment reserves for future determination
        an award of attorney fees or costs.
                ....
                (3) Decision Determining Action. Any written decision affecting a
        substantial right in a civil case that in effect determines the action and prevents a
        final judgment or discontinues the action.

Thus, a party may directly appeal a final judgment or written decision determining the action.

RAP 2.2(c) provides that a superior court decision on review of a court of limited jurisdiction is

not appealable as a matter of right.

        DSHS appears to argue that the administrative hearing and review process is essentially

trial in a court of limited jurisdiction, and, therefore, is not appealable as a matter of right under


                                                   4
No. 46776-3-II


RAP 2.2(c), but this is incorrect. A court of limited jurisdiction is a court organized under Titles

3, 35, or 35A RCW. RCW 3.02.010. Neither the OAH nor the BOA is a court organized under

any of those titles; thus, neither is a court of limited jurisdiction. Therefore, the superior court’s

denial of Severson’s petition for review is a final order appealable as a matter of right under RAP

2.2. ABC Holdings, Inc. v. Kittitas County, 187 Wn. App. 275, 282, 348 P.3d 1222, review

denied, 184 Wn.2d 1014 (2015).

                                      II. FINDING OF NEGLECT

       Severson makes over 20 arguments claiming that we should reverse the finding of neglect

or maltreatment. Broadly, he argues that the finding (1) is not supported by substantial evidence

and (2) should be reversed due to many errors he broadly characterizes as procedural. We

disagree.

A.     Statutory and Regulatory Framework

       Chapter 26.44 RCW, addressing abuse of children, permits DSHS to investigate reports

of child abuse or neglect. RCW 26.44.030. DSHS is required to complete such investigations

within 90 days from the date of receipt of the report, subject to certain exceptions. RCW

26.44.030(12)(a). At the end of the investigation, DSHS finds whether the report of child abuse

or neglect is founded or unfounded. RCW 26.44.030(12)(a). “Founded” means that it is more

likely than not that the reported child abuse or neglect occurred. RCW 26.44.020(11). Relevant

to Severson’s case, negligent treatment or maltreatment of a child means an act or omission 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.” RCW 26.44.020(16).




                                                   5
No. 46776-3-II


       DSHS must notify the alleged perpetrator of child abuse or neglect that a founded report

exists, and of its legal consequences. RCW 26.44.100(2). The alleged perpetrator may request

that DSHS review the finding. RCW 26.44.125(2). DSHS management must then review the

finding, and may amend the finding if appropriate. RCW 26.44.125(4). If the report remains

founded after agency review, the alleged perpetrator may request an adjudicative hearing to

contest the finding, which hearing is governed by the APA. RCW 26.44.125(5).

B.     Standard of Review

       We sit in the same position as the superior court when reviewing an agency action under

the APA. Tapper v. Emp’t Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). We apply the

standards of the APA directly to the record before the agency. 122 Wn.2d at 402. RCW

34.05.570(3) allows us to reverse an agency’s adjudicative decision in several circumstances,

only four of which apply here: (1) the order violates constitutional provisions on its face or as

applied, (2) the agency engaged in an unlawful procedure or decision-making process or failed to

follow a prescribed procedure, (3) substantial evidence does not support the order, or (4) the

order is arbitrary or capricious. Furthermore, we will grant relief only if we determine that the

agency’s actions have substantially prejudiced a person seeking judicial relief. RCW

34.05.570(1)(d). Severson has the burden of demonstrating the invalidity of the final order. See

RCW 34.05.570(1)(a).

       We review findings of fact for substantial evidence in light of the whole record. RCW

34.05.570(3)(e). Substantial evidence is evidence that is sufficient to persuade a fair-minded

person of the truth or correctness of the matter. King County v. Cent. Puget Sound Growth

Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). We do not “substitute our



                                                 6
No. 46776-3-II


judgment for that of the agency regarding witness credibility or the weight of evidence.”

Affordable Cabs, Inc. v. Dep’t of Employment Sec., 124 Wn. App. 361, 367, 101 P.3d 440

(2004). 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 v. E. Washington Growth

Mgmt. Hearings Bd., 176 Wn. App. 555, 565, 309 P.3d 673 (2013). Under RCW 34.05.464, we

review the review judge’s findings of fact to the extent that they modify or replace the ALJ’s

findings.4 Tapper, 122 Wn.2d at 405-06.

C.     Substantial Evidence

       Severson alleges a broad variety of errors, which we address below. He does not clearly

argue that substantial evidence does not support the BOA’s decision, but he appears to disagree

with the factual findings. We treat these statements as a challenge to the substantial evidence

supporting the BOA’s decision affirming the founded finding of neglect. We hold that

substantial evidence supports the finding of neglect.

       Administrative courts should not rely exclusively on hearsay evidence if doing so would

unduly abridge the parties’ opportunities to confront witnesses and rebut evidence. WAC 388-

02-0475(3). “Hearsay” is an out-of-court statement offered to prove the truth of the matter

asserted. ER 801(c). Hearsay evidence is admissible in an administrative hearing if it is “the

kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of

their affairs.” RCW 34.05.452(1).




4
 Severson makes several arguments specifically about the procedure before the ALJ. We
generally review the BOA review judge’s findings and conclusions, but in this opinion we
address the ALJ’s actions when Severson contests them specifically.


                                                 7
No. 46776-3-II


       Here, the BOA review judge altered the credibility determinations of the ALJ and found

that Floyd’s non-hearsay statements to the social worker at the hospital, the injuries to Floyd and

C, and the fact that Severson was not injured were sufficient to corroborate Floyd’s hearsay

statements to police and DSHS. The review judge further found that, even if all of Floyd’s

statements were hearsay, the ALJ erred by finding that they were not corroborated by the

police’s observations of injuries and the hospital records. Based on this record, Severson fails to

demonstrate that the findings are not supported by substantial evidence that Severson was

neglectful of C when he held him while attacking Floyd.

       Nor does Severson demonstrate error in the BOA review judge’s conclusions of law. The

reviewing judge’s findings that Severson chose to physically fight with Floyd while holding C

supports the DSHS founded finding that Severson’s actions rise to the level of negligent

treatment or maltreatment. Thus, we hold that substantial evidence supports the order affirming

the founded finding of neglect.

D.     Due Process Challenges

       The remainder of Severson’s arguments challenge various procedures, claiming that they

violated his due process rights. We have the authority to reverse DSHS’s decision if Severson

shows that one of the conditions in RCW 34.05.570(3) is met. Among those criteria, three are

relevant here: whether DSHS failed to follow a prescribed procedure; whether its ruling is

arbitrary or capricious; or whether the order, statute, or rule on which the order is based violates

constitutional provisions. RCW 34.05.570(3). Moreover, the agency action Severson complains

of must have substantially prejudiced him. RCW 34.05.570(1)(d). We hold that Severson fails

to show any reversible error.



                                                  8
No. 46776-3-II


       1. Impartiality

       Severson argues that the BOA review judge, as a DSHS employee, cannot be an impartial

judge and, therefore, Severson’s due process rights were violated. The APA permits DSHS to

render final agency decisions. Under 34.05.425(1) of the APA, the presiding officer in an

administrative hearing is required to be either the head of the agency or one or more members of

the agency head, some other person designated by the agency head, or an administrative law

judge. Severson cites no authority that RCW 34.05.425(1) results in a due process violation

merely because the final decision is rendered by a DSHS employee.

       Nor is the fact that the review judge is a DSHS employee a basis for disqualification.

The APA provides that an employee will be “disqualifi[ed] for bias, prejudice, interest, or any

other cause provided in this chapter or for which a judge is disqualified.” RCW 34.05.425(3).

We assume that an adjudicator is impartial, and the party claiming bias must make an affirmative

showing that bias exists. Nationscapital Mortg. Corp. v. Dep’t of Fin. Insts., 133 Wn. App. 723,

766, 137 P.3d 78 (2006). The combination of investigative, prosecutorial, and adjudicative

functions within an agency does not violate due process. Nationscapital Mortg. Corp., 133 Wn.

App. at 766.

       Here, Severson has not provided any direct or circumstantial evidence that the BOA

review judge was biased. He provides no authority that would allow us to infer bias from the

sole fact that DSHS employed the review judge. See Hardee v. Dep’t of Soc. & Health Servs.,

152 Wn. App. 48, 57-58, 215 P.3d 214 (2009) (rejecting a similar argument). And our Supreme

Court has held that there is “no inherent unfairness in the mere combination of investigative and




                                                9
No. 46776-3-II


adjudicative functions.” Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 479, 663 P.2d 457

(1983); see also Hardee, 152 Wn. App. at 58. Severson’s claim fails.

       2. Timeliness

       Severson argues that DSHS violated his constitutional due process rights by exceeding

the 90-day time limit for investigations. Because Severson provides no argument or authority

supporting this due process argument, we do not consider it. Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

       Severson also argues that DSHS untimely filed its exhibits and witness list. Under a

prehearing order, a hearing was set for September 10, 2012. The order required DSHS to mail its

proposed exhibits and final witness list to Severson by July 31, 2012. The administrative record

contains a handwritten annotation by Severson averring that DSHS did not mail the exhibits or

the witness list until August 20. But even taking this allegation as true, Severson fails to show

that the untimely mailing substantially prejudiced him as is required by RCW 34.05.570(1)(d).

Thus, this claim fails.

       3. Order About Allegations

       Severson argues that the DSHS violated an order that it would argue only that Floyd was

holding C. He argues that the sixth prehearing order (preparing for the hearing before the ALJ)

contains this order, and that DSHS later violated it by arguing that Severson was holding C. This

allegation refers to the “ISSUES” section of the prehearing order, in which the ALJ wrote:

       The Department alleges that on December 21, 2010, Mr. Severson assaulted the
       mother of the child [C] (born February 2, 2010) when she was holding the child,
       resulting in injury to the child and to the mother. The Department contends these
       actions constituted negligent treatment or maltreatment of a child by Mr. Severson.
       The bases for the Department’s action are specified in the Department’s



                                                10
No. 46776-3-II


       notification letter dated February 4, 2011. The hearing in this matter will be
       limited to those allegations.

CP at 147 (emphasis added) (boldface omitted). The order clearly provides that the hearing will

be limited to the allegations listed in DSHS’s notification letter dated February 4. In the

February 4 letter, DSHS alleged that Severson was holding C. Thus, DSHS did not violate this

order by alleging that Severson was holding C.

       4. Evidentiary Rules

       Severson argues that the evidentiary rules apply to these proceedings and that DSHS

somehow violated his due process rights. This argument fails to articulate the basis of the

challenge; Severson does not say whether he is contesting evidence that was admitted or arguing

that other evidence was wrongly excluded. Nor does he state which evidence is at issue.

Because he does not adequately explain the nature of his argument, we do not consider it. See

RAP 10.3(a)(6).

       5. Lawyer-Client Conflict

       Severson argues that his “hired help” stipulated away a valuable right of her client,

Severson, by allowing the DSHS exhibits into the record against his wishes and without

consulting Severson. This challenge fails.

       First, Severson chose for Darby to assist him and act as his representative at the hearing;5

thus, he chose for Darby to advocate in his place. Second, the record does not show that

Severson specifically objected to parts of the record; it shows instead that he attempted to speak



5
  Under WAC XXX-XX-XXXX, a party may be represented at a DSHS hearing at OAH by anyone,
including a paralegal.



                                                 11
No. 46776-3-II


to represent himself at the hearing, and the ALJ did not let him represent himself because he

chose to use Darby as a spokesperson. Thus, any claim about specific exhibits Severson

personally objected to is outside our record.

       6. Right To Speak

       Severson argues that his constitutional right to speak and participate in the hearing was

violated. This challenge also fails.

       First, Severson fails to establish that there is a constitutional right to speak at an

administrative hearing. Second, this claim is factually unsupported. There is no transcript of the

September 10, 2012 hearing, thus Severson has failed to carry his burden of showing that he was

disallowed from speaking there.

       Severson also argues that he was not allowed to participate in the October 1, 2012

hearing, but he testified at that hearing. Because he elected to be represented, the ALJ ruled that

Severson could not speak in a self-representing capacity. Thus, it is incorrect for Severson to

argue that he was not allowed to speak at the October 1 hearing; he did testify, and he chose to

be represented by Darby rather than to represent himself.

       7. Review of Record

       Severson argues that the BOA review judge failed to review the entire record. It appears

Severson is arguing that the review judge should have contemplated Floyd’s medical records

which showed that she had a scratch on the day of the incident and which did not mention a

“gash.” Br. of Appellant at 36. But these medical records were not in the administrative record;

thus, the review judge did not fail to review the record by failing to review these extraneous




                                                  12
No. 46776-3-II


documents. See RCW 34.05.558, .562(1); Okamoto v. Employment Sec. Dep’t, 107 Wn. App.

490, 494-95, 27 P.3d 1203 (2001).

       Similarly, Severson argues that those medical documents showed that Floyd had a

“scratch” rather than a gash. Br. of Appellant at 36 (citing CP at 907). Weighing the credibility

of the evidence was within the authority of the BOA review judge, and we do not substitute our

judgment for that of the agency regarding the credibility or weight of evidence. Affordable

Cabs, Inc., 124 Wn. App. at 367.

       8. Confrontation

       Severson appears to argue that his right to confront witnesses was violated. However,

this right is unique to criminal law. See U.S. CONST. amend VI; WASH. CONST. art. I, § 22;

RCW 10.52.060. Thus, the claim fails.

       9. Legal Standard

       Severson argues that the appropriate standard for findings of neglect should be clear and

convincing evidence, not a preponderance of the evidence, because the risk of loss of liberty is

great. Under RCW 26.44.020(11), the evidentiary standard for a finding of neglect is

preponderance of the evidence. We have already rejected the argument that due process requires

a higher standard of proof when DSHS makes a finding of neglect of an adult. Raven v. Dep’t of

Soc. & Health Servs., 167 Wn. App. 446, 471, 273 P.3d 1017 (2012), rev’d on other grounds,

177 Wn.2d 804, 306 P.3d 920 (2013). Similarly here, due process does not require a higher

standard of proof for a finding of neglect of a child.




                                                 13
No. 46776-3-II


       10. Stricken Argument

       Severson argues that the ALJ wrongly struck Severson’s written argument about DSHS’s

evidence because DSHS did not have an opportunity to respond. We disagree.

       Severson moved to dismiss the case. DSHS filed a response to this motion, and Severson

filed “additional argument and documents” in support of the motion to dismiss on the date his

reply to DSHS’s response was due. CP at 381. The ALJ concluded that this additional argument

and documents were not a reply to the response, but were instead “additional arguments to which

the Department did not have an opportunity to respond.” CP at 383. Thus, the ALJ struck them.

       The ALJ has broad discretion to govern hearing procedures. See WAC 10-08-200(1), (4),

(8), (9), (11). Severson cites no authority to establish that he had a right to present additional

argument and documents, rather than reply to DSHS’s response. Thus, he fails to carry his

burden of showing that the ALJ erred by exercising her discretion and refusing to let him do so.

RCW 34.05.570(a). Nor does he show that the ALJ’s decision to strike Severson’s argument

substantially prejudiced him. RCW 34.05.570(1)(d). Thus, this is not a basis for reversing the

finding.

       11. Superior Court

       Severson argues that the superior court erred by affirming the DSHS review. But we

look to the agency’s decision, not the superior court’s. Tapper, 122 Wn.2d at 402.

       12. Contempt

       Severson argues that DSHS is in contempt of court for improperly reviewing the

evidence and for failing to provide the complete record. There was never an order compelling




                                                 14
No. 46776-3-II


DSHS to add to the record or review the record differently; thus, DSHS is not in contempt for

violating any such order.

       13. Self-Defense

       Severson appears to argue that he should have obtained judicial review on the issue of

whether he appropriately used self-defense, apparently against Floyd. But the question in this

case was whether Severson neglected or maltreated C, not whether any force he exerted against

Floyd was permissible. Thus, any self-defense argument was irrelevant to the proceeding.

       14. Other Arguments

       Severson lists 13 arguments at the end of his brief, which are labeled “Short Summary.”6

Br. of Appellant at 42. Some of them are restatements of arguments we address above. To the

extent Severson attempts to make new arguments in this summary, he fails because he cites

neither legal authority nor the record. See RAP 10.3(a)(6). Severson also raises several new

arguments for the first time in his reply brief; we do not consider them. RAP 10.3(c).

                                       ATTORNEY FEES

       Severson requests attorney fees in the amount of $15,000, citing RCW 9A.16.110. RCW

9A.16.110(2) allows an award of attorney fees to a person acquitted of a violent crime by reason



6
 They are that (1) DSHS does not cite a legal authority in its finding; (2) “The DSHS evidence is
not lawfully submitted into the record;” (3) DSHS did not appear for the September 10, 2012
hearing, and was therefore in default; (4) DSHS provided only hearsay evidence; (5) DSHS
made “many false statements of fact;” (6) the DSHS review judge is a DSHS employee; (7)
DSHS maintains the record; (8) the DSHS review judge failed to review whole record; (9) the
DSHS review judge reversed the finding based on a nonexistent 7-inch gash; (10) Severson
could not defend himself by speaking at the hearing; (11) “The appellant loses many
constitutional rights if the finding stands;” (12) Severson did not have the benefit of a jury, the
ability to defend himself, or an impartial tribunal; and (13) Severson is indigent, so this
proceeding has been prejudicial. Br. of Appellant at 42-43.


                                                15
No. 46776-3-II


of self-defense; it is inapplicable to this case. Moreover, Severson cites no authority for a pro se

litigant to receive attorney fees. He is therefore not entitled to them. RAP 18.1.

       In conclusion, we affirm BOA’s order affirming the finding of neglect. We deny

Severson’s request for attorney fees.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                     Worswick, P.J.
 We concur:



 Johanson, J.




 Lee, J.




                                                 16
