      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


ANA LIZA GARCIA; CARMEN                      )         No. 79647-0.-I
PACHECO-JONES; AND NATALYA
SEMENENKO,                                   )
                   Appellants,               )         DIVISION ONE

CHRISTINE NIXON,                             )
                                             )
                    Plaintiff,

            v.
                                             )
DEPARTMENT OF SOCIAL AND                     )
HEALTH SERVICES, STATE OF                    )         PUBLISHED OPINION
WASHINGTON,

                    Respondent,              )
SECRETARY OF THE DEPARTMENT OF               )
SOCIAL AND HEALTH SERVICES, AND              )
SECRETARY OF STATE,                          )
                                             )
                   Defendants.               )        FILED: September 3, 2019


      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.
No. 79647-0-1/2

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. RCW 74.39A.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.


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No. 79647-0-1/3

LAWS OF 1 997, 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

OF   2012, ch.1. Initiative 1163 required DSHSto perform background checks of all

prospective “individual providers.”2          ROW 74.39A.261.           It also retained the

employment ban instituted in 1997.            LAws   OF   2012, ch.1,   § 106 (recodified as
former ROW 74.39A.051). Then, in March 2012, the legislature amended and

relocated the employment ban into what is now ROW 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. ROW 74.39A.056(3). The legislature authorized

DSHS to adopt rules to implement all provisions of this statute.                          ROW

74. 39A. 056 (4)


        1 “Long-term care workers” include any person who provides paid, hands-on personal care
services for the elderly or persons with disabilities. RCW 74.39A.009(20)(a).
        2 An “individual provider” is a person who—either through a DSHS contract or through

direct employment with the person receiving services—provides personal care or respite care to
persons who are functionally disabled or otherwise eligible to receive Medicaid or similar state
funded in-home care services. RcW 74.39A.240.


                                             -3-
 No. 79647-0-1/4

     B. Child Abuse and Neqlect 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 ROW 26.44.050.~ When DSHS receives a

report of alleged child abuse or neglect, it screens the report to determine if it is

credible. ROW 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. ROW 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. ROW 26.44.030(17)(b). If,

however, DSHS conducts an investigation, it assigns an investigator from OPS to

determine whether a report of child abuse or neglect is “unfounded” or “founded.”

ROW 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.            ROW 26.44.020(26).           A “founded” finding is a




        ~ Effective July 1, 2018, the legislature created a new department, the Department of
Children, Youth and Families (DCYF), see LAws OF 2017, 3d Spec. Sess., ch. 6, to take over the
duties formerly performed by Children’s Administration. DCYF now responds to reports of child
abuse or neglect. LAWS OF 2017, 3d Spec. Sess., ch. 6, §~ 321-27; RCW 26.44.030(11); RCW
74.13.031(3). Although DSHS and DCYF are now different state agencies, child abuse
investigation procedures and the method of appealing agency findings of abuse or neglect remain
the same. For clarity, this opinion refers only to DSHS as the agency at issue as it was the agency
that determined that Appellants are ineligible to work as long-term care providers.
         ~ A “family assessment response” means a way of responding to certain reports of child
abuse or neglect using a “differential response approach to child protective services.” RCW
26.44.020(11).


                                               -4-
No. 79647-0-1/5

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.

RCW26.44.100(2). DSHS mustalso notifythe parentthatfounded 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 Act5

(CAPTA) in 1 997, 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)(ll). 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

      ~ See generally 42 U.S.C. § 5106a.


                                           -5-
No. 79647-0-1/6

review of the finding,” unless DSHS failed to comply with the statutory notice

requirements. ROW 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. ROW 26.44.125(4). If the agency

affirms the finding, the individual may seek an adjudicative hearing.                 ROW

26.44.125(5). Failing to request a hearing constitutes a waiver of the right to further

agency or judicial review, ~I., and makes the finding “final,” ROW 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. ROW 26.44.195(1). Alternatively, DSHS may initiate

dependency proceedings in superior court under chapter 13.34 ROW.                     ROW

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 ROW 13.34.110

(court shall hold hearing and find, by preponderance of evidence, if child is

dependent within meaning of ROW 13.34.030); ROW 13.34.030(6) (“dependent

child” includes child who has been abused or neglected as defined in chapter 26.44

ROW). 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.”

ROW 26.44.030(12)(b).

       Under former ROW 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 ROW;   .   .   .




Dunning v. Paccerelli, 63 Wn. App. 232, 234 & n.1, 818 P.2d 34(1991) (alterations


                                         -6-
No. 79647-0-1/7

in original); see also Fettici v. Dept of Soc. & Health Servs., 49 Wn. App. 466, 467

ni, 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.

ROW 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 ROW 26.44.030(17)(b), if DSHS chooses to conduct a

family assessment, rather than an investigation, “{njo 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 ROW 26.44.020(11) (under a family

assessment response, “no investigative finding is entered in the record”).

    0. DSHS Background Checks

        In 1987, the legislature enacted ROW 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’s6




       6 ~ 43.43.830(2)(a) defines an “applicant” as “[a]ny prospective employee who will or
may have unsupervised access to children under sixteen years of age or developmentally disabled
persons or vulnerable adults during the course of his or her employment or involvement with the
business or organization.”


                                             -7-
No. 79647-0-1/8

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 XXX-XX-XXXX. 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 XXX-XX-XXXX(2).


         ~ A “civil adjudication proceeding” is ‘a judicial or administrative adjudicative proceeding
that results in a finding of, or upholds an agency finding of, domestic violence, abuse, sexual abuse,
neglect, abandonment, violation of a professional licensing standard regarding a child or vulnerable
adult, or exploitation or financial exploitation of a child or vulnerable adult under any provision of
law, including but not limited to chapter 13.34, 26.44, or 74.34 RCW             RCW 43.43.830(4). It
also includes any judicial or administrative finding that becomes final when the alleged perpetrator
does not exercise the right to administratively challenge the findings. i.cL
         8 A “negative action” is defined by regulations and is a disqualifying finding or action that is

not a disqualifying conviction or a pending charge for a disqualifying crime. WAC 388-1 13-0030.
A negative action automatically disqualifies an individual from having unsupervised access to
vulnerable adults or minors receiving care under specific DSHS programs. wAc 388-113-0005.
Each program identifies its automatically disqualifying negative actions in its rules. See, e.g.,
chapter 388-78A WAC (licensed assisted living facilities); chapter 388-97 WAC (licensed nursing
homes); WAC XXX-XX-XXXX (home and community services programs defining “negative action” as
including “the denial, suspension, revocation, or termination of a license, certification, or contract

                                                  -8-
 No. 79647-0-1/9

        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 RCW43.43.830.” RCW43.43.834(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.




for the care of children, as defined in ROW 26.44.020, or vulnerable adults, as defined in ROW
74.34.020, for noncompliance with any state or federal regulation”): WAC 388-825-335 (DDA
programs referring to WAC XXX-XX-XXXX for negative action definition). Exceptions to automatic
disqualification are listed in WAC 388-113-0020.


                                            -9-
No. 79647-0-1/10

       The record is also unclear whether BCCU automatically receives all

founded findings from Fam Link 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:



       ~ Pre-CAPTA founded findings are not supplied to BCCU because persons with those
founded findings have not had the opportunity for agency or judicial review.


                                              -   10-
No. 79647-0-Ill 1

            (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 ROW 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


        These reviews are conducted by the entity with which the person is seeking employment.
       10

WAC 388-825-650.


                                            -11   -
No. 79647-0-1/12

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.” ROW

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 XXX-XX-XXXX(5).

      All government agencies must have record retention schedules for public

records. ROW 40.14.060. By law, the minimum retention period for any public


                                      -   12-
No. 79647-0-1/13

record is six years. ROW 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. ROW 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.




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No. 79647-0-1/14

    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 her right to seek a review of this

finding, Garcia did not receive it.1~

         In March 2010, Garcia entered into a deferred prosecution for DUI and

reckless endangerment in Lynnwood Municipal Court relating to the incident that

formed the basis for the founded child abuse finding. Garcia testified she complied

with the terms of her plea agreement, and the court dismissed the criminal charge

in March 2015.

        In August 2012, Garcia applied to become a Medicaid personal care

provider for her son. She underwent a BCCU background check as a part of this

application process. BCCU notified DSHS that Garcia had a substantiated finding

of abuse and/or neglect of a child.” Based on this report, DSHS informed Garcia

that she was disqualified from being employed in any position giving her

unsupervised access to vulnerable adults or individuals with developmental

disabilities.

        Garcia was unaware of the CPS finding until she received this letter, despite

having worked with DSHS to obtain voluntary family services after the 2009 CPS

investigation. In September 2012, at Garcia’s request, a Children’s Administration



        11   DSHS sent the notice via certified mail, and after two attempts to deliver, it was returned,
unclaimed.

                                                  -   14   -
 No. 79647-0-1/15

Area Administrator reviewed and upheld the                      CPS finding.          Children’s

Administration notified Garcia in writing of her right to receive an administrative

hearing to challenge the finding.

          Garcia requested a hearing, and an administrative law judge (AU) found

her appeal untimely. Garcia appealed to Thurston County Superior Court,12 which

concluded that DSHS had failed to comply with RCW 26.44.100 by not providing

oral notice13 to Garcia of its adverse CPS finding when it was practicable to do so.

The superior court remanded Garcia’s case to DSHS for an administrative hearing.

         In April 2015, after an evidentiary hearing, an AU found that in July 2009,

Garcia had consumed a sufficient quantity of alcohol to render her unable to safely

drive and thereafter drove in a manner likely to cause serious harm to her disabled

son.     The AU also found that her actions evidenced “a serious disregard of

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

[her son’s] health, welfare, and safety, and therefore [her actions] constitute[d]

negligent treatment or maltreatment as defined by both statute and regulation.”

The AU affirmed the founded finding. Garcia did not appeal this administrative

order.

         DSHS stated in discovery in this lawsuit that the founded CPS finding from

2009, affirmed by the AU in 2015, renders Garcia “ineligible for specific DSHS


         12 Ana Garcia v. Dept of Soc. & Health Servs., No. 14-2-00100-0.
         13 While the statute does not require oral notice, the trial court concluded that because

DSHS knew that Garcia did not receive the notice, due process required that the agency take
additional reasonable steps, if feasible, to inform her of the finding. And because CPS was
physically present in Garcia’s home providing services after the certified mail notice had been
returned, unclaimed, the court concluded it was feasible and practicable for DSHS to have orally
notified Garcia of the finding.

                                             -15-
No. 79647-0-1/16

regulated positions that involve supervision of children and vulnerable adults for

35 years from the date she received her founded finding.”

    F. Appellant Carmen Pacheco-Jones

       DSHS found that Pacheco-Jones engaged in child abuse or neglect in June

1999. Pacheco-Jones did not seek review of this finding at the time it was entered.

       A January 2009 BCCU background check disclosed that Pacheco-Jones

had five felony convictions for possession of controlled substances, forgery, and

theft. On March 13, 2009, Catholic Charities notified Pacheco-Jones it could not

employ her because her DSHS background check reported a crime that

disqualified her from employment with that agency.

       On March 27, 2009, Pacheco-Jones asked DSHS to review the 1999

founded finding, claiming that in 1999 the agency had removed her children from

her care because of drug use but, she argued, she had successfully completed

treatment and regained custody of her children in 2001. On March 30, 2009, a

DSHS Area Administrator refused to review the finding, citing the passage of over

nine years since DSHS had mailed notice of the finding to Pacheco-Jones. And

the DSHS Deputy Regional Administrator affirmed this decision shortly thereafter.

       It is unclear whether Pacheco-Jones’s prior felony convictions remain a

disqualifying event for DSHS employment, but DSHS has indicated in this lawsuit

that “due to [Appellant] Pacheco-Jones’s founded finding, she is ineligible for

specific DSHS-regulated positions that involve supervision of children and

vulnerable adults for 35 years from the date she received her founded finding.”




                                      -   16-
No. 79647-0-1117

   G. AiDpellant Natalya Semenenko

       In April 2010, DSHS found it more probable than not that Semenenko had

engaged in the physical abuse of her child. The finding was based on an incident

that occurred in November 2009 when Semenenko took her teenage daughter to

a facility for drug treatment. When the daughter resisted being admitted into the

facility, a physical struggle ensued, during which Semenenko was observed

pushing and kicking her daughter. Semenenko v. Der’t of Soc. & Health Servs.,

182 Wn. App. 1052, No. 70354-4-I, 2014 WL3936952, at*1 (Wash. Ct. App. Aug.

11, 2014).   DSHS initiated an investigation through CPS, and in April 2010,

Semenenko received a letter informing her of the founded finding. j.çf.

       In November 2010, Semenenko lost her job as a caregiver for the elderly

when her employer performed a routine background check and discovered her

name in the DSHS database with a founded finding of child abuse. Id. at *2.

Semenenko requested a review of the finding in March 2011. DSHS notified her

that her request was beyond the deadline for seeking agency review and advised

her she could challenge that decision by requesting a hearing with the Office of

Administrative Hearings.   icL
      Semenenko requested a hearing two months later. The AU dismissed the

case, concluding that she had not requested review of the child abuse finding

within the then-20-day deadline.   ~4.   This court affirmed the decision on appeal,

rejecting Semenenko’s contention that DSHS had not complied with the notice

requirements of ROW 26.44.100. k~. at *6.




                                         -   17-
No. 79647-0-1/18

         As in the cases of Garcia and Pacheco-Jones, DSHS has indicated that

‘due to [Appellant] Semenenko’s founded finding, she is ineligible for specific

DSHS-regulated positions that involve supervision of children and vulnerable

adults for 35 years form the date she received her founded finding.”

    H. Procedural History

         In 2015, Appellants filed a petition for declaratory judgment under RCW

34.05.570(2)(a) and a complaint for declaratory and injunctive relief under 42

U.S.C.        § 1983 in Thurston County Superior Court. They alleged that RCW
74.39A.056(2) bars their employment as long-term care workers only for the

duration of time DSHS chooses to retain records of their founded abuse or neglect

findings. They contended that DSHS’s decision to change its records retention

policy from 6 to 35 years effectively denies them the right to the occupation of their

choice. They alleged DSHS failed to follow the Administrative Procedure Act14

(APA) rule-making procedures when it modified its records retention policy, and

they claimed that the 35-year policy was arbitrary and capricious.

         In addition to challenging the 35-year retention period, Appellants alleged

that DSHS should be required to give them individualized character, competence,

and suitability reviews and that the rule extending such reviews only to people with

pre-October 1998 findings of child abuse was arbitrary and capricious and violated

the equal protection clauses and privileges and immunities clause of the

Fourteenth Amendment and article I, sections 3 and 12 of the Washington State

Constitution.


         14   Chapter 34.05 RCW.


                                        -18-
No. 79647-0-1/19

        DSHS moved for partial summary judgment, arguing that Appellants failed

to plead a viable    § 1983 claim or that the claim was time-barred. The superior
court dismissed the     § 1983 claim but permitted Appellants to proceed with their
APA and constitutional challenges to WAC XXX-XX-XXXX(5)(d), 388-825-640(2)(b),

and 388-825-645 and with their APA rule-making challenge to DSHS’s

recommendation for a 35-year records retention schedule.15

    I. Trial Court’s Findings of Fact & Conclusions of Law

        The trial court authorized the parties to supplement the administrative

record with additional evidence as allowed under RCW 34.05.558, RCW

34.05.562, and RCW 34.05.570(4).               After considering deposition testimony,

answers to interrogatories, and records produced by DSHS,                          Children’s

Administration, and BCCU, the trial court issued its ruling.

       The trial court found that each Appellant applied for employment as long-

term care workers as defined in RCW 74.39A.009, positions that would give her

unsupervised access to vulnerable persons. Each also had founded findings of

child abuse or neglect, issued after Washington came into compliance with

CAPTA. These findings were available from Children’s Administration and were

sent to BCCU when BCCU reviewed Appellants’ backgrounds.                        After BCCU

reviewed records available to it, including the Appellants’ founded child abuse or

neglect findings, DSHS denied authorization for each Appellant to work in long

term care positions that required unsupervised access to vulnerable persons.


        15 The trial court expressly dismissed Appellants’ APA challenge to the validity of the

records retention schedule promulgated by the state records committee. They do not appeal this
ruling.


                                            -19-
No. 79647-0-1120

         Next, the trial court concluded that RCW 74.39A.056, and not the

regulations Appellants challenged, precluded them from being employed in the

positions they sought. It determined that the records BCCU used to complete its

background check “constitute a state registry” within the meaning of that term in

ROW 74.39A.056(2). It also decided the statute’s employment ban is permanent

and not contingent on any records retention schedule.

        The trial court further concluded that DSHS’s recommendation to the state

records committee that its records retention policy for founded child abuse or

neglect findings be changed from 6 to 35 years was not a rule subject to the APA

rule-making provisions.         And it held that the records retention policy violated

neither the equal protection clauses nor the privileges and immunities provisions

of the federal or state constitutions.

        Finally, the trial court decided that DSHS rules treating individuals with pre

October 1998 findings differently than individuals with post-October 1998 findings

were neither arbitrary nor capricious because the date was tied to the state’s

compliance with CAPTA, after which it afforded individuals notice and opportunity

to challenge child abuse or neglect findings against them. It dismissed the claims

with prejudice.

        This appeal followed. Legal Voice filed a separate amicus brief supporting

Appellants and raising new issues.16




        16While we are grateful for amicus’s assistance, we decline to reach the issues that only it
raised. See State v. Shale, 182 Wn.2d 882, 886 n.4, 345 P.3d 776 (2015).


                                              -   20   -
No. 79647-0-1/21

II. ANALYSIS

         Appellants argue the trial court erred in concluding that RCW 74.39A.056(2)

mandates a permanent ban on their employment as long-term care workers. They

contend that DSHS has the statutory discretion to set the duration of any

employment ban and effectively set the ban at 35 years without going through the

APA rule-making process. Appellants also argue the trial court’s conclusion that

DSHS’s FamLink database is a “registry” under RCW 74.39A.056 is not supported

by substantial evidence. They next argue that DSHS’s regulations, enforcing the

employment ban in ROW 74.39A.056 only against persons with post-October 1,

1998 abuse or neglect findings, have no basis in the text of that statute or any

other law, and the decision not to afford Appellants an individualized assessment

of their character, competence, and suitability to work as long-term care workers

is unconstitutional. Finally, they assert the trial court erred in dismissing their claim

for relief under42 U.S.C.        § 1983.
    A. Standards of Review
        We review the trial court’s interpretation of ROW 74.39A.056(2) de novo.

Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).

Our review of the validity of DSHS rules is governed by the APA standard set out

in RCW 34.05.570(2)17 We review Appellants’ allegation that DSHS failed to

follow the rule-making procedures of the APA under RCW 34.05.570(4)18 Rios v.

          17 “In a proceeding involving review of a rule, the court shall declare the rule invalid only if

it finds that: The rule violates constitutional provisions; the rule exceeds the statutory authority of
the agency; the rule was adopted without compliance with statutory rule-making procedures; or the
rule is arbitrary and capricious.” RCW 34.05.570(2)(c).
          18 The trial court appears to have determined that RCW 34.05.570(2) governed this claim,

rejecting DSHS’s argument that Appellants’ claim was an untimely challenge to the agency’s failure

                                                 -21   -
No. 79647-0-1/22

Dep’t of Labor & Indus., 145 Wn.2d 483, 491-92, 39 P.3d 961 (2002).                          The

standard applicable to an agency’s alleged “failure to perform” is similar to the

standard of review governing the challenge to that agency’s rules. j.çj~ at 492;

compare RCW 34.05.570(4)(c),              wi~th RCW 34.05.570(2)(c).     Accordingly, we may

grant relief if we determine that an agency action is unconstitutional, outside the

agency’s statutory authority, or arbitrary or capricious. Rios, 145 Wn.2d at 492.

The APA places “[t]he burden of demonstrating the invalidity of agency

action   .   .   .   on the party asserting invalidity.” RCW 34.05.570(1)(a); see also Rios,

145 Wn.2d at 491.

         In an APA declaratory judgment action, judicial review of disputed facts is

conducted by the trial court without a jury and is confined to the agency record,

unless the court authorizes the parties to supplement the record with additional

evidence. RCW 34.05.558. If, after a bench trial, the trial court issues findings of

fact and conclusions of law, ordinary rules of appellate procedure apply. See

Simpson Tacoma Kraft Co. v. Dept of Ecology, 119 Wn.2d 640, 646, 835 P.2d

1030 (1992); Nollettev. Christianson, 115 Wn.2d 594, 599, 800 P,2d 359 (1990).

This court reviews the trial court’s findings and conclusions as it would do in any

other declaratory judgment action—the trial court findings of fact supported by

substantial evidence will not be disturbed on appeal, and conclusions of law are

reviewed de novo. Nollette, 115 Wn.2d at 599-600.




to promulgate a rule under ROW 34.05.570(4). Although we believe the trial court erred in applying
ROW 34.05.570(2) to Appellants’ APA rule-making procedures claim, the error was harmless
because ultimately the standard of review under both statutory provisions is similar.


                                                -   22   -
No. 79647-0-1/23

        As to the summary judgment dismissal of their    §   1983 claim, an appellate

court engages in the same inquiry as the trial court. New Cingular Wireless PCS,

LLC v. City of Clyde Hill, 187 Wn. App. 210, 215, 349 P.3d 53 (2015), affd, 185

Wn.2d 594, 374 P.3d 151 (2016). Thus, we review the dismissal of Appellants’

§   1983 claim de novo. Robinson v. City of Seattle, 119 Wn.2d 34, 57, 830 P.2d
318 (1992).

     B. Statutory Bar to Employment as Long-Term Care Workers
        The main issue on appeal is whether the trial court erred in concluding that

RCW 74.39A.056(2) mandates a permanent ban on Appellants’ employment as

long-term care workers.

        The court’s fundamental objective in determining the meaning of a statute

is to ascertain and carry out the legislature’s intent. Dep’t of Ecology, 146 Wn.2d

at 9. When possible, the court derives legislative intent from the plain language of

the statute, considering the text in question, the context in which the provision is

found, related provisions, amendments to the provision, and the statutory scheme

as a whole. jç~ at 10-11. We give words their usual and ordinary meaning. Lake

v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010).

And while it is not always necessary to strictly adhere to technical grammatical

rules in interpreting statutory provisions, Fraternal Order of Eagles, Tenino Aerie

No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 242, 59 P.3d

655 (2002), we give weight to these rules and try to construe language in

accordance with those rules, rather than contrary to them, Duke v. Johnson, 123

Wash. 43, 49, 211 P. 710 (1923). We also presume the legislature does not intend


                                       -   23   -
No. 79647-0-1/24

absurd results, and we avoid any reading that produces such a result. Tingey v.

Haisch, 159 Wn.2d 652, 664, 152 P.3d 1020 (2007).

       Appellants start from the premise that RCW 74.39A.056(2) prohibits their

employment only if their names appear in “a state registry.” We disagree with this

reading as inconsistent with the text.               Because the grammar of RCW

74.39A.056(2) is somewhat complex, the statute makes sense only if we

deconstruct its provisions in the following manner:

 Clause #1     No provider, or its staff, or long-term care worker, or prospective
               provider or long-term care worker,

 Clause #2            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

 Clause #3               entered into a state registry


 Clause #4     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

 Clause #5    shall be employed in the care of and have unsupervised access to
              vulnerable adults.

       The word “or” before the phrase “entered into a state registry” is significant.

The word “or” is most commonly used in the disjunctive and employed to indicate

an alternative. Black v. Nat’l Merit Ins. Co., 154 Wn. App. 674, 688, 226 P.3d 175

(2010). Following this basic grammatical rule, the most reasonable interpretation

is that RCW 74.39A.056(2) prohibits employment as a long-term care worker in

two distinct situations—either when a disciplining authority or court has found that

an individual committed child abuse or when DSHS has found that an individual

committed child abuse or neglect and entered his or her name into a state registry.

                                        -   24   -
No. 79647-0-1/25

Following these rules of statutory construction, we must reject Appellants’ premise

that only individuals who appear in “a state registry” are barred from employment

as long-term care workers to vulnerable adults.

       This statutory construction undermines Appellants’ contention that RCW

74.39A.056(2) gives DSHS the discretion to decide who will be disqualified from

work as long-term care workers by deciding how long to retain records of child

abuse findings.    If a court, rather than DSHS, has found that a person has

committed child abuse, DSHS does not have the discretion to allow that person to

work with vulnerable adults, even if DSHS could delete the person’s name from its

records.   The court’s finding will remain in court records independent of any

database DSHS may maintain. And if RCW 74.39A.056(2) imposes a permanent

ban on employment for individuals found by a court to have committed child abuse,

it makes no sense to conclude the statute does not require the same result for

individuals found by DSHS to have done so.

       Next, Appellants argue that the phrase “entered into a state registry” is

ambiguous because there is no “central registry” for child abuse findings.             In

interpreting statutes, we refer to dictionaries to determine the plain meaning of an

undefined statutory term. Nissen v. Pierce County, 183 Wn.2d 863, 881, 357 P.3d

45 (2015). “Enter” means to “make a record of” or “to put on record.” WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 756 (2002); see also Enter, Black’s Law

Dictionary 672 (11th ed. 2019) (“[t]o put formally before a court or on the record”).

A “registry” is the place where a “register” is kept.             WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 1912 (2002).               And a “register” is “a written record


                                       -   25   -
No. 79647-0-1/26

containing regular entries of items or details: an official or formal enumeration,

description, or record of particulars.” ki.; see also Register, Black’s Law Dictionary

1535-36 (11th ed. 2019). Based on these definitions, the phrase “entered into a

state registry” in the statute is unambiguous: it is the governmental act of making

an official written record of the names of individuals found by DSHS to have

engaged in child abuse or neglect.

       Appellants argue that DSHS cannot ban their employment as long-term

care workers because DSHS admits that it does not maintain a “central registry”

of child abuse perpetrators. We do not find this argument persuasive. First, the

statute references a “state registry,” not a “central registry.” Thus, no central

registry is required.   Second, the legislature understood that DSHS compiles

information from child abuse investigations because, in 2012, when it added RCW

26.44.020(17)(b) to the child abuse statute, it explicitly referred to the agency’s

“child abuse or neglect database.” See LAWS OF 2012, ch. 259,           § 3(17)(b). A
database is a “comprehensive collection of related data organized for convenient

access, generally in a computer.” WEBSTER’S UNABRIDGED DICTIONARY 508 (2d ed.

2001); see also Database, Black’s Law Dictionary 495 (11th ed. 2019) (“[a]

compilation of information arranged in a systematic way”). We see no distinction

between “a state registry” of individuals found to have committed child abuse and

a state-created and maintained “database” containing the same information.

       Furthermore, the trial court concluded that “the records used by the BCCU

constitute a state registry as that term is used in RCW 74.39A.056(2).” What

constitutes a “state registry” is a mixed question of law and fact. ~   Henry Indus.,


                                        -   26   -
No. 79647-0-1127

Inc. v. Dept of Labor & Indus., 195 Wn. App. 593, 601, 381 P.3d 172 (2016)

(whether drivers meet statutory definition of “worker” under Industrial Insurance

Act is a mixed question of law and fact). The court engages in a de novo review

of mixed questions of law and fact, applying facts as determined by the trier of fact.

See Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 330, 646 P.2d 113

(1982). Because Appellants did not assign error to any of the trial court’s findings

of fact, we accept them as true on appeal. Robe! v. Roundup Corp., 148 Wn.2d

35,42,59 P.3d 611 (2002).

       The trial court found that BCCU received information from DSHS about

Appellants’ founded child abuse findings while conducting background checks.

BCCU uploaded this information from the Fam Link database into its own database.

The trial court also found that Appellants were required by law “to att~st under

penalty of perjury as to whether they have any prior founded findings of child abuse

or neglect.” Importantly, RCW 43.43.834(2)(b) mandates such disclosures. BCCU

staff entered this self-disclosed information into its database.      Finally, BCCU

conducted a search of court records and Department of Health records to look for

final court findings or disciplinary findings of child abuse or neglect. BCCU entered

this information, if it existed, into its database as well.   BCCU’s repository of

background information is a state-created and maintained database. Thus, we

conclude there is substantial evidence in the record to support the trial court’s

conclusion that BCCU’s database constitutes “a state registry” under RCW

74. 39A.056(2).




                                       -   27   -
 No. 79647-0-1/28

         Appellants next argue that if DSHS chose to delete a person’s founded

finding from FamLink and BCCU’s database, the finding would no longer be

“entered into a state registry” and could not disqualify that person from long-term

care work. They contend that ROW 43.43.832(2) gives DSHS the discretion to

determine who should be deleted from any child abuse “state registry” and that

RCW 26.44.031 gives DSHS the discretion to determine how long a person will

remain listed. They read these three statutes together to mean that DSHS has the

legal authority to set—by rule—the duration of ROW 74.39A.056(2)’s employment

ban.

         There are several problems with this argument. First, the phrase “entered

into a state registry” does not modify “with a final substantiated finding of abuse”;

it modifies “prospective provider or long-term care worker.”                    Under the last

antecedent rule, qualifying or modifying words or phrases refer to the last

antecedent. State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010). The

registry is thus a database of names, not the underlying investigative materials.

DSHS’s records retention policy addresses only the retention of child abuse case

files; it does not mandate the deletion of the names of individuals found to have

committed child abuse. According to DSHS’s records officer, DSHS has never

deleted any individual’s name from its database since implementing Fam Link. And

the record contains no evidence that BCCU has ever deleted this information

either.1 9



       19 The evidence also indicates that DSHS treats the records retention policy as setting the

minimum, rather than maximum, period of time it retains the founded case file materials. According

                                             -   28   -
 No. 79647-0-1/29

         Second, destroying records at the end of a pre-set retention period is not

synonymous with vacating or “expunging” a founded finding of child abuse, as

Appellants suggest.       The former is merely the administrative act of physically

destroying a document, whereas the latter constitutes the legal process of

nullifying or voiding a finding, as if it had never occurred. We can find nothing in

ROW 74.39A.056(2), or the background check statute, RCW 43.43.832(2), or the

records retention statute, RCW 26.44.031, to indicate a legislative intent to grant

to DSHS the authority to vacate or expunge a final substantiated finding of child

abuse.

         Appellants cite Howell v. Department of Social & Health Services, 7 Wn.

App. 2d 899, 436 P.3d 368 (201 9), to support their argument that RCW 74.39A.056

is not a categorical employment bar. But Howell involved different legal claims

and a different procedural posture. In that case, a certified nursing assistant (CNA)

student alleged that DSHS’s rules and policies of retaining records of founded child

abuse findings violated Washington’s Law Against Discrimination (WLAD)

because those rules and policies disparately impact Native Americans like herself

who seek work as a CNA. ki. at 902. Division Three of this court reversed a OR

12(c) dismissal of her claim, holding that Howell pleaded a prima facie case of

disparate impact discrimination. ki. at 907, 910, 921.

       The court rejected DSHS’s argument that ROW 74.39A.056 barred Howell’s

WLAD claim. ki. at 917. In doing so, the court noted that DSHS has the authority,



to the statewide administrator for the Division of License Resources within Children’s
Administration, DSHS is not required to destroy any documents at the end of a retention period.


                                            -   29   -
No. 79647-0-1/30

under ROW 74.39A.056(3), to establish a state registry, and the authority, under

ROW 74.39A.056(4), to fashion background check requirements permitting people

to expunge child abuse findings after demonstrating their rehabilitation or to reduce

the record retention period on a background check when lacking evidence of future

harm to children. ki. at 916. We note, however, that ROW 74.39A.056(3) does

not apply to child abuse findings. That provision relates only to the state registry

for individuals found to have abused vulnerable adults, not children. To the extent

Division Three held in Howell that ROW 74.39A.056(3) relates to a state registry

of individuals with founded child abuse findings, we disagree.

       Moreover, Division Three alternatively held that ROW 74.39A.056 did not

present a complete bar to Howell’s employment as a nursing assistant because

the statute, by its terms, only applies to “long-term care workers” with unsupervised

access to vulnerable adults and “[njot all [CNA] employment would require Ms.

Howell to provide care, with unsupervised access, to vulnerable adults.” Id. at 917-

18. It thus rejected DSHS’s argument that RCW 74.39A.056(2) prevented it from

employing Howell as a nursing assistant. But because none of the Appellants

sought work as certified nursing assistants, this holding from Howell is unhelpful.

       Finally, Howell did not challenge RCW 74.39A.056’s employment ban. ki.

at 907. Instead, she challenged DSHS’s dissemination of child abuse findings

without a method to avoid racial disparity. ki. Appellants, unlike Howell, have not

alleged they are the victims of disparate impact discrimination in violation of the

WLAD. Moreover, Howell came to the court on review of a CR 12(c) motion to

dismiss, not the post-trial dismissal of a petition for declaratory relief under the


                                       -   30   -
No. 79647-0-1131

APA.         For these reasons, we conclude Howell is legally and factually

distinguishable.

        While we agree with Appellants that the employment ban in RCW

74.39A.056(2) is harsh and that there are legitimate policy reasons for the

legislature to reconsider whether such a ban should be permanent, we cannot

rewrite or modify the language of a statute under the guise of statutory

interpretation or construction. Graham Thrift Group, Inc. v. Pierce County, 75 Wn.

App. 263, 267, 877 P.2d 228 (1994). We must give full effect to the plain language

of the statute, even when the results may seem unduly harsh. Geschwind v.

Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993).

        We conclude that because Appellants’ names have been entered into

BCCU’s database because of final substantiated findings of child abuse, RCW

74.39A.056(2) prohibits them from being employed to care for vulnerable adults.2°

    C. Validity of DSHS Pre-CAPTA and Post-CAPTA Regulations

        Next, Appellants argue that DSHS regulations granting individualized

suitability reviews to people with pre-October 1, 1998 findings, but denying them

to people found to have committed child abuse after October 1, 1998, have no

basis in the text of RCW 74.39A. 056 and are arbitrary and capricious. We disagree

because abuse findings made prior to October 1, 1998 are not ‘final” findings, and

the automatic employment ban does not apply.




       20   DSHS’s recommended extension of its records retention policy, whether promulgated by
rule or approved by the state records committee, would not change this outcome. We therefore
decline to reach the claim that DSHS violated the APA by recommending a change to this policy.


                                             -   31   -
 No. 79647-0-1/32

         RCW 74.39A.056(2) applies only to “final substantiated” findings of abuse.

According to Dee Wilson,21 Appellants’ child welfare expert, a “founded” finding of

child abuse is the same as a “substantiated” finding. A founded finding becomes

“final” either when an alleged perpetrator fails to exercise the right to challenge the

finding or after a court or administrative law judge upholds the agency finding.

ROW 43.43.830(4); WAC XXX-XX-XXXX.                         Only individuals named as alleged

perpetrators of child abuse and neglect after October 1, 1998 have the right to

seek review of a founded finding. ROW 26.44.125. When these statutes are read

in context with one another, the statutory employment ban cannot by its own terms

apply to individuals with findings of abuse pre-dating October 1, 1998.

        Because DSHS does not consider pre-CAPTA findings of child abuse to be

substantiated or final under ROW 74.39A.056(2), DSHS allows anyone with such

a finding to be considered for employment with vulnerable adults—but only after

they undergo a character, competence, and suitability review. These reviews thus

serve the function for pre-CAPTA findings that the administrative and judicial

reviews serve for post-OAPTA findings.                     Furthermore, the legislature granted

DSHS the discretion to set rules for considering such findings in ROW

43.43.832(2). Thus, the regulations treating individuals with pre-OAPTA and post

CAPTA findings of abuse differently are clearly statutorily authorized.




        21  The trial court considered Wilson’s declaration in making its findings of fact and
conclusions of law, despite DSHS’s objection. While DSHS references the trial court’s
consideration of the declaration, DSHS does not challenge it. As we are not considering Wilson’s
declaration for information directly relevant to any of the issues on appeal, we see no harm to DSHS
in considering the declaration for this small point of clarification.


                                              -   32   -
No. 79647-0-1/33

        Nor can we conclude the regulations are arbitrary or capricious.           A

regulation is arbitrary and capricious only if it is willful, unreasoning, and taken

without regard to the attending facts or circumstances. Ass’n of Wash. Spirits &

Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 358, 340 P.3d

849 (2015). Where there is room for two opinions, an action taken after due

consideration is not arbitrary and capricious even though a reviewing court may

believe it to be erroneous. j~ The scope of review under the arbitrary and

capricious standard is very narrow, and the party asserting it carries a heavy

burden. Pierce County Sheriff v. Civil Serv. Comm’n of Pierce County, 98 Wn.2d

690, 695, 658 P.2d 648 (1983).

       DSHS’s reason for allowing character reviews for individuals with pre

CAPTA findings and disallowing similar reviews for Appellants is not unreasoning

or taken without regard to the facts and circumstances. DSHS has provided a

previously lacking legal mechanism to challenge the factual basis for CPS findings.

In doing so, DSHS avoids due process concerns that arise from any CPS finding

that could result in the denial of employment. See Fields v. Dept of Early Learning,

193 Wn.2d 36, 50-52, 434 P.3d 999 (2019) (due process violation to disqualify

employee from working in licensed childcare facility without individualized

suitability review when department regulation made prior robbery conviction

automatically disqualifying fact and employee precluded from challenging

regulation at administrative level).

       Under the post-CAPTA regulatory framework, any person named as an

alleged perpetrator in a founded CPS report may challenge that finding. WAC 110-


                                       -   33   -
 No. 79647-0-1/34

30-0220.     Garcia exercised her right to raise such a challenge, and the AU

affirmed the founded finding after an evidentiary hearing. Semenenko similarly

sought to challenge the adverse finding, but this court held her appeal was

untimely. Appellants availed themselves of the review mechanisms available for

post-CAPTA findings. The DSHS regulations take into consideration both the due

process concerns of the pre-CAPTA period and the mandatory language of the

employment ban in RCW 74.39A.056(2) for individuals with a post-CAPTA final

finding of abuse. The regulations thus are neither arbitrary nor capricious.

    D. Constitutional Challenge to DSHS Regulations

        Appellants next argue DSHS’s rules limiting suitability reviews to individuals

with pre-October 1998 abuse findings deny them equal protection under the law

required by the Fourteenth Amendment and the privileges and immunities clause

of article I, section 12 of the Washington Constitution.22 These provisions require

that all persons similarly situated be treated alike. Am. Legion Post No. 149 v.

Dep’t of Health, 164 Wn.2d 570, 608, 192 P.3d 306 (2008). Appellants argue that

DSHS regulations classify individuals found to have committed child abuse after

October 1, 1998 differently than those found to have done so before that date,

without any rational justification for doing so.

       The appropriate level of scrutiny under an equal protection challenge

depends on the nature of the classification or rights involved. ki. In Amunrud v.

Board of Appeals, 158 Wn.2d 208, 220-21, 143 P.3d 571 (2006), our Supreme


       22  The right to equal protection guaranteed under the Fourteenth Amendment and by the
privileges and immunities clause of the Washington Constitution are substantially identical and
considered as one issue. State v. Smith, 117 Wn.2d 263, 281, 814 P.2d 652 (1991).


                                            -   34   -
No. 79647-0-1/35

Court acknowledged that rational basis review is the appropriate standard for

evaluating regulations affecting one’s ability to work either in a governmental

position or in an occupation of one’s choosing. See also Mass. Bd. of Ret. v.

Murgia, 427 U.S. 307, 313-14, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (no

fundamental right to government employment); Nebbia v. New York, 291 U.S. 502,

527-28, 54 S. Ct. 505, 78 L. Ed. 940 (1934) (the right to work in a particular

profession or trade subject to rational regulation).

       We apply a three step process under the rational basis test. First, we ask

whether the classification applies alike to all members within the designated class.

Yakima County Deruty Sheriff’s Ass’n v. Bd. of Comm’rs for Yakima County, 92

Wn.2d 831, 835, 601 P.2d 936 (1979). Second, we determine whether there is

some basis in reality for reasonably distinguishing between those within and

outside the class. ki. Finally, we consider whether the classification has any

rational relation to the purposes of the challenged regulations.        ki. at 836.

Challengers must do more than merely question the wisdom of the regulations;

they must show conclusively that the classification is contrary to the legislation’s

purpose. ki.

       First, DSHS regulations do not treat two similarly situated classes of people

unequally. While the regulations do not permit Appellants to obtain a suitability

review and explicitly allow such reviews for individuals with pre-CAPTA findings,

these two classes of individuals seeking jobs with vulnerable adults are not

similarly situated because the Appellants’ class had an administrative process to

challenge their CPS finding as unsubstantiated or false; but those with pre-CAPTA


                                        -   35   -
 No. 79647-0-1/36

findings had no such opportunity. Where persons of different classes are treated

differently, there is no equal protection violation. Forbes v. City of Seattle, 113

Wn.2d 929, 943, 785 P.2d 431 (1990).

           Second, there is a basis in reality for distinguishing between Appellants and

individuals with pre-CAPTA abuse findings. A classification does not violate equal

protection if it is not arbitrary or capricious. ki. at 944. As indicated above, drawing

a distinction between these two groups is not arbitrary or capricious in light of the

change in the law after Congress passed CAPTA.

          Finally, DSHS’s decision to grant a suitability review to individuals with pre

CAPTA findings but to deny them to Appellants has a rational relation to the

purpose of the challenged regulations. As DSHS notes, the regulations give

meaning to the term “final” in RCW 74.39A.056(2). Because individuals who were

the subject of a CPS investigation before CAPTA had no notice or opportunity to

challenge an abuse finding, that finding did not legally become “final,” and they are

not subject to the automatic employment ban.23

          Appellants rely on Fields v. Derartment of Early Learning to support their

request for an individualized assessment of their suitability to work with vulnerable

adults.        In that case, the employee of a licensed childcare facility appealed a

decision of the Department of Early Learning (DEL), which disqualified her to work

at the facility based on a prior attempted robbery conviction. 193 Wn.2d at 38-39.



          We decline to address Appellants’ contention that DSHS’s recommendation to the state
          23

records committee for a 35-year records retention policy violates equal protection or the privileges
and immunities clause of article I, section 12. Because we conclude that the statutory provision,
and not the records retention policy, imposes the employment ban, we need not reach this issue.


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No. 79647-0-1/37

Fields contended a DEL regulation that precluded anyone with a robbery

conviction from having unsupervised access to children violated her right to due

process. ki. at 40-41.

        As the Supreme Court noted, DEL is required to run background checks on

anyone who wants to work in a childcare facility. ki. at 43. Furthermore, the statute

at issue in Fields, former RCW 43.215.215(1), required DEL to determine whether

any individual seeking such employment “is of appropriate character, suitability,

and competence to provide child care and early learning services to children.” ki.

DEL promulgated a regulation providing that any individual with a listed

conviction24 was “permanently disqualified from providing licensed child care,

caring for children or having unsupervised access to children in child care.” ki.

(quoting former WAC XXX-XX-XXXX(1), recodified as WAC XXX-XX-XXXX). It also

promulgated a regulation that prohibited a person with a disqualifying conviction

from challenging this regulation at the administrative level.

        In analyzing Fields’ procedural due process challenge, the Supreme Court

held that the DEL regulation, as applied to Fields, created an unusually high risk

of arbitrary interference by the State and, as a result, an erroneous deprivation of

the right to pursue a lawful career of her choice. ki. at 51. It held that Fields was

entitled to an individualized assessment of her criminal history and other

qualifications at the administrative level. ki. at 52.




         The list includes 50 types of permanently disqualifying convictions. jç~.. at 43; see also
        24

former WAC XXX-XX-XXXX, recodified as WAC XXX-XX-XXXX.


                                              -   37   -
No. 79647-0-1/38

        Appellants have raised neither a substantive nor a procedural due process

challenge to the employment ban in ROW 74.39A.056(2) or to the challenged

regulations. And the statute at issue in Fields differs significantly from ROW

74.39A.056(2).        Former ROW 43.215.215, recodified as ROW 43.216.270(1),

provides:

              In determining whether an individual is of appropriate character,
              suitability, and competence to provide child care and early
              learning services to children, the department[251 may consider the
              history of past involvement of child protective services or law
              enforcement agencies with the individual for the purpose of
              establishing a pattern of conduct, behavior, or inaction with
              regard to the health, safety, or welfare of a child. No report of
              child abuse or neglect that has been destroyed or expunged
              under ROW 26.44.031 may be used for such purposes. No
              unfounded or inconclusive allegation of child abuse or neglect as
              defined in ROW 26.44.020 may be disclosed to a provider
              licensed under this chapter.
The statute differs from ROW 74.39A.056(2) in that (a) it gives the department the

discretion to assess the character, suitability, and competence of anyone seeking

a childcare position before disqualifying them from that work; and (b) it specifically

precludes the department from considering child abuse reports that have been

destroyed or expunged under ROW 26.44.031. Because there are such significant

differences between ROW 74.39A.056(2) and ROW 43.216.270(1), the holding in

Fields does not apply in this case.




        25   Effective July 1, 2018, DEL became a part of DCYF. Fields, 193 Wn.2d at 42. The
reference to “the department” in the statute referred to DEL at the time of Fields’ disqualification
but now refers to DCYF.


                                              -   38   -
No. 79647-0-1/39

   E. Dismissal of42 U.S.C. ~ 1983 Claim on Summary Judgment

       Finally, Appellants ask this court to reverse the dismissal of their claim for

injunctive relief under 42 U.S.C.   § 1983. Their claim under this statute was based
on the assertion that the Secretary of DSHS violated their right “to equal protection

of the law by creating an irrational classification that denies [them] the ability to

work in a field of their choosing.” Because Appellants have not demonstrated that

DSHS created an irrational classification in its regulations, and because it was the

legislature, and not DSHS, that denied Appellants the opportunity to work as long-

term care workers, we affirm the dismissal of their   § 1983 claim.
       Because we affirm the trial court’s dismissal of Appellants’ petition, they are

not the prevailing party and, as a result, are not entitled to an award of attorney

fees on appeal under RCW 4.84.350.

      Affirmed.




WE CONCUR:




~
       ~i)P
          ~




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