                                                                          FILED 

                                                                       APRIL 30, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


SARAH EVERT AND STEPHEN                      )
EVERT,                                       )         No. 32455-9-111
                                             )
                     Appellants,             )
                                             )
      vs.                                    )
                                             )         UNPUBLISHED OPINION
DEPARTMENT OF SOCIAL AND                     )
HEALTH SERVICES, Adult Protective            )
Services,                                    )
                                             )
                     Respondent.             )

      FEARING, J.     Sarah and Stephen Evert, wife and husband, appeal from a superior

court ruling that upheld an Adult Protection Services' order finding that the Everts

mentally abused a vulnerable adult. The Everts isolated the adult, Thomasene, from her

family. Thomasene is the mother of Sarah Evert. Because substantial evidence and

unchallenged findings of fact support the superior court ruling, we affirm.

                                         FACTS

       Sarah and Stephen Evert do not assign error to the Department of Social and

Health Services (DSHS) Board of Appeals' (Board) findings of fact in the Board's

review decision and final order, dated October 24, 2013. We thus consider those fmdings
No. 32455-9-III
Evert v. Dep 't o/Soc. & Health


verities on appeal. See RAP 10.3(h); Fuller v. Dep't Emp't Sec., 52 Wn. App. 603, 606,

762 P.2d 367 (1988). Some of our factual statement comes from the findings of fact.

          In 2011, Thomasene lived with her husband Glenn near Boise, Idaho. Thomasene

and Glenn were respectively 83 years old and 86 years old, had been married 64 years,

and had five adult children: Dale McCleary, Thomasene (Sene) Blevins, Phyllis Keith,

Glenna Kimball, and Sarah Evert. We do not use Thomasene's and Glenn's surname.

          Both Glenn and Thomasene suffered poor health. Thomasene's mental

impairments included dementia and depression. She had short term memory deficits and

needed cuing for her memory. Her level of cognition varied, and she easily grew upset.

Sometimes she did not remember events which occurred the same day, or within hours.

She forgot events that occurred weeks earlier. Thomasene's long term memory remained

intact.

          Thomasene physically suffered from osteoporosis and osteoarthritis. She

underwent total shoulder and knee replacements. By late 2011, Thomasene needed

supervision for safety and assistance with her activities of daily living. By late 2011,

Glenn also suffered from dementia and physical challenges.

          By December 2011, all of Thomasene and Glenn's children agreed that Glenn

could not adequately care for Thomasene. Sarah Evert proposed that her mother live in

the Everts' adult family home in Spokane. Sarah, an occupational therapist with




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experience in providing home care, would charge Thomasene $3,SOO per month to care

for her at the home. The family did not accept Sarah Evert's proposal.

       In January 2012, Phyllis Keith arranged for her parents to live in an assisted living

facility near Boise. Keith lived near the facility and helped her parents with daily needs.

Glenn moved back to the couple's home in March 2012. Keith continued to care for

Glenn in his home. Thomasene stayed in the Boise assisted living facility, but her mental

state worsened. Sarah and Stephen Evert suggested that Thomasene and Glenn divorce,

so Thomasene could receive half of the marital estate to use to pay Sarah and Stephen for

her care without Glenn's interference.

       By March 2012, Thomasene could not recall events from the previous day. She

cried. She was heavily medicated. Thomasene needed supervision and assistance with

activities of daily living.

       On March IS, 2012, Sarah and Stephen Evert traveled to Boise and brought

Thomasene to their adult family home in Spokane without notifying Sarah's siblings.

The Everts convinced Thomasene to file for divorce from Glenn and assisted her in filing

before leaving Boise for Spokane. Sarah's siblings expressed concern at Thomasene's

filing for divorce. Sarah responded with an e-mail:

              Any of you may call her [Thomasene] any time you want. However,
       if you are going to badger her about dad and upset her, there is no point in
       that and I won't let you do that.

Admin. Record (AR) at 4.

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       While a resident at Sarah and Stephen Evert's adult family home, Thomasene

participated in activities with Sarah and her daughter, as well as with others. Caregivers

provided excellent physical care and assistance. She expressed to others that she enjoyed

living at the home. She gained friends among the residents of the adult family home.

       Sarah and Stephen Evert instructed their adult family home caregivers not to allow

Sarah's siblings or Glenn to speak with Thomasene unless the Everts were present. The

Everts instructed their staff not to answer telephone calls from Idaho phone numbers. On

those occasions when other children or Glenn telephoned Thomasene, Stephen and Sarah

Evert closely monitored the communications. Dale McCleary and Sene Blevins avoided

talking to Thomasene about subjects not approved by Sarah and Stephen Evert so that the

Everts would not block communication with the mother. Sarah reprimanded Blevins if

she mentioned Glenn while speaking to Thomasene. Both McCleary and Blevins had

engaged in frequent communication with their mother before her move to Spokane.

       The Everts restricted Phyllis Keith's phone contact with her mother, such that she

only spoke with Thomasene four times between March 2012 and September 2012. Sarah

cautioned Keith about those subjects on which he should not speak with Thomasene.

During one call, Thomasene asked Keith about Glenn. When Keith began to answer,

Stephen Evert ended the call.

      Phyllis Keith called Thomasene on Glenn's behalf in May 2012. Stephen Evert

told Keith that he was recording the call, and Keith carefully selected topics about which

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to speak. When Thomasene asked Keith about Glenn, Keith put Glenn on the telephone. 


Glenn said: "Hello, Honey, how are you, when are you coming home?" AR at 6. 


Stephen Evert abruptly terminated the call. Evert then called Keith and profanely 


reprimanded her for allowing Glenn to talk to Thomasene. 


       In September 2012, Stephen Evert interrupted another telephone conversation

between Phyllis Keith and Thomasene, during which call he told Thomasene that Keith

took her money. When Thomasene asked him to stop talking, he continued until Keith

finally ended the call.

       The Everts also monitored and restricted Thomasene's contact with Glenna

Kimball, who lived in California. Kimball had spoken to her mother about once a week

before Thomasene moved to Spokane. When Kimball called Thomasene at the Everts,

Stephen Evert often expressed belligerence. He called Kimball "an asshole," and told

Kimball "Fuck you." AR at 7. While monitoring calls between Kimball and Thomasene,

he informed Thomasene that Kimball lied to her. If Glenna Kimball asked her mother

how she was or if she knew what was happening, the Everts accused Kimball of upsetting

Thomasene and terminated the call. Kimball never heard Thomasene get upset at her

during a conversation.

       The Idaho district court, in which Thomasene filed for divorce, appointed Frances

Stem as Thomasene's guardian ad litem (GAL) to determine whether Thomasene

possessed sufficient mental capacity to bring the action. An Idaho court also appointed

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No. 324SS-9-III
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Stem as GAL for Thomasene and Glenn in a guardianship action brought by Glenna

Kimball. Stem traveled to Spokane and interviewed Thomasene. Stem found

Thomasene charming, but with "significant, gaping holes in her understanding." AR at

129. Stern interviewed all of Thomasene's children and some of Thomasene's care

providers in Idaho and Spokane. Stern reviewed Thomasene's medical records. Sarah

Evert admitted to Stern that she did not allow her father or some of her siblings to speak

to Thomasene in order to protect the best interest of her mother.

       In 2012, the State of Washington Department of Social and Health Services Adult

Protective Services (APS) received allegations that Stephen and Sarah Evert mentally

abused Sarah's mother, Thomasene, a vulnerable adult. On June 5, 2012, Glenn filed a

complaint with APS, alleging that Sarah Evert kidnapped his wife and sought to take

financial advantage of the situation.

       APS Investigator Ellen Rapkoch assumed control of Glenn's allegations against

Sarah Evert. As part of her investigation, Rapkoch interviewed Sarah and Stephen Evert,

Glenn, Glenna Kimball, Phyllis Keith, Patty Bowers, and Helen Wynn. Bowers and

Wynn were social workers assigned to Thomasene's adult family home.

       Ellen Rapkoch interviewed Thomasene on June 18, 2012. Rapkoch found that

Thomasene did not comprehend the circumstances under which she moved from Boise to

Spokane other than her husband, Glenn, did not wish to join her. Thomasene told

Rapkoch she was upset about the move. Thomasene characterized Glenn as rude and

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No. 32455-9-III
Evert v. Dep't o/Soc. & Health


explained she needed a divorce to obtain money from Glenn. Thomasene stated that she

enjoyed living with her daughter, Sarah Evert She did not recall Stephen Evert's name.

Thomasene told Rapkoch that she missed her other children and that Sarah would not let

her talk to Glenn.

       In her interview with Ellen Rapkoch, Sarah Evert admitted to restricting

Thomasene's telephone contact with Glenn, Glenna Kimball, and Phyllis Keith. Sarah

insisted the restrictions were needed because the three resisted the divorce. Sarah also

told Rapkoch that Glenna "badgered" Thomasene. AR at 10.

       GAL Frances Stem filed a report with the Idaho court, on July 10,2012. In the

report, Stem recommended suspending the divorce proceeding as she found Thomasene

neither understood the action, nor had the capacity to understand. On August 17,2012,

the Ada County district court in Idaho approved Glenna Kimball's petition for

appointment as Glenn and Thomasene's temporary guardian. The order additionally

named Kimball, Phyllis Keith, and Dale McCleary as temporary co-conservators of

Thomasene and Glenn's estate. Ellen Rapkoch reviewed Stem's GAL report as part of

her investigation into the allegations against Sarah and Stephen Evert.

       On August 27,2012, Sene Blevins and Glenna Kimball visited their mother at the

Everts' adult family home. A caregiver allowed them to enter and speak with their

mother. Glenna told Thomasene about the difficulties she and Thomasene's other

children encountered in calling her. Thomasene commented that she wondered why no

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Evert v. Dep 't ofSoc. & Health


one ever called. When Glenna told Thomasene that Stephen Evert accused Glenn of

sexually abusing her, she said, "Well, where did he get that!" AR at 9. Stephen Evert

appeared and demanded that Blevins and Kimball leave. Thomasene asked why, and

Kimball said she had a right to visit her mother. Blevins echoed Kimball's statement.

Thomasene asked to leave the Evert home with her daughters, but Stephen Evert told her

she could not leave because she was a ward of the State of Washington. Evert insisted

that his two sisters-in-law leave or he would call the police. Thomasene became upset

and insisted: "They don't have to leave!" AR at 10. To avoid conflict, Kimball and

Blevins left the home. Stephen Evert shouted profanities at them.

       On September 14, 2012, Glenn called APS again about Sarah and Stephen's care

for Thomasene. APS officially added Stephen Evert as the subject of the investigation.

       On September 26,2012, APS ended its investigation and found by a

preponderance of the evidence that Sarah and Stephen Evert committed mental abuse of a

vulnerable adult under RCW 74.34.020(2)(c). APS removed Thomasene from Sarah and

Stephen's care. In a letter ruling, APS explained the basis for its finding:

              In March 2012, you [Sarah and Stephen Evert] moved [Thomasene]
       from Boise where she was residing in an Assisted Living Facility to
       Spokane, without prior notification to her husband of over 45 years and
       other concerned family members, to live in an Adult Family Home (AFH)
       operated by you and your spouse. [Thomasene], diagnosed with dementia,
       did not have the cognitive ability to understand why she was moved from
       Boise. On several occasions [Thomasene] was not provided with the
       opportunity to talk with her husband and other family members on the
       telephone and when she was, there were occasions when you monitored and

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No. 32455-9-III
Evert v. Dep't ofSoc. & Health


      controlled her conversations by listening in, interrupting and choosing
      when the conversation should be terminated. You admitted to intentionally
      blocking [Thomasene's] husband's phone number. You denied
      [Thomasene] opportunities to talk with her husband and other family
      members on the telephone and restricted [Thomasene's] visitation with
      family members, isolating [Thomasene] from her husband and family.

AR at 79.

                                    PROCEDURE

      Sarah and Stephen Evert requested a hearing before an Office of Administrative

Hearings administrative law judge (ALJ) to review APS' order. After conducting a three-

day hearing, ALJ Debra H. Pierce affirmed APS' determination, concluding:

              11. The Department has established, by a preponderance of the
      evidence, that the Appellants, Stephen Evert and Sarah Evert inflicted
      mental abuse on Thomasene by inappropriately isolating her from some
      family members who disagreed with their plan of action to care for
      Thomasene, so that their plans and decisions regarding Thomasene's care
      would not be interrupted.
              12. Although the undersigned understands that Appellants did not
      engage in this conduct with the "intent" of abusing Thomasene, Appellants'
      intent is irrelevant. An APS administrative hearing and appeal is neither a
      criminal nor a civil tort proceeding to determine "guilt" or "civil
      culpability." It is a process for determining who should or should not have
      unsupervised contact and care over a vulnerable adult under circumstances
      licensed by or otherwise involving the Department through financial
      support. An APS registry listing is not intended as a punitive measure or
      some other form of personal judgment, but rather a process established
      solely for the protection of vulnerable adults. The questions before this
      tribunal are 1) whether or not Appellant engaged in the conduct or
      omissions alleged, and if so 2) whether the alleged conduct or omissions
      meets the statutory definition of abuse. Since the Appellant's conduct and
      omissions meet the statutory definition of abuse, the Department's finding
      must be affirmed.


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No. 32455-9-111
Evert v. Dep 't o/Soc. & Health


AR at 44.

       Sarah and Stephen Evert filed a petition for review of the ALJ's decision with the

DSHS Board of Appeals. The Board of Appeals affirmed APS' order and determination

that the Everts mentally abused Thomasene by inappropriately isolating her. The Board

concluded:

              11. The ALJ resolved any alleged conflicts in testimony with the
      determination that the testimony of Mr. McCleary, Ms. Blevins, Ms. Keith,
      and Ms. Kimball were not only consistent, but more credible where it
      conflicted with the testimony of the Appellants. The Appellants are simply
      trying to assign error because they disagree with the ALJ's determinations,
      not because actual errors exist.
              12. The Department met its burden of proof to show that the
      Appellants mentally abused Thomasene.

AR at 16.

      Sarah and Stephen Evert filed a petition for review of the DSHS Board of

Appeals' decision in Spokane County Superior Court. Before the trial court, the Everts

contended: (1) the APS investigator did not conduct a full and fair investigation under

chapter RCW 74.34, and (2) neither Sarah nor Stephen mentally abused or

inappropriately isolated Thomasene while she was in their care. The superior court

affirmed the DSHS Board of Appeals. The trial court ruled that APS' investigation met

the requirements of chapter 74.34 RCW, and substantial evidence supported APS'

determination that the Everts mentally abused Thomasene by isolating her from family

members.


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No. 32455-9-III
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                                 LAW AND ANALYSIS

       On appeal, Sarah and Stephen Evert repeat the two arguments asserted

before the superior court. We repeat the ruling of the superior court.

                                    APS Investigation

       In 1999, the Washington legislature adopted the Abuse of Vulnerable Adults Act,

chapter 74.34 RCW. The act requires DSHS, through its Adult Protective Services

Division, to receive reports of abuse of vulnerable adults from mandated reporters, who

include home care agency employees. RCW 74.34.005(5), .020(11). A "vulnerable

adult" includes a person over age sixty with the functional, mental, or physical inability

to care for himself. RCW 74.34.020(17)(a). Sarah and Stephen Evert agree that

Thomasene was a vulnerable adult. Permissive reporters may also report to DSHS or a

law enforcement agency when there is reasonable cause to believe that a vulnerable adult

is being or has been abandoned, abused, financially exploited, or neglected. RCW

74.34.035(6). "Permissive reporter" encompasses any person. RCW 74.34.020(13).

      DSHS must investigate reports of abuse and notify the alleged perpetrator of the

investigation's outcome. RCW 74.34.067, .068(1). The alleged perpetrator may then

challenge a finding of abuse by seeking an administrative hearing. WAC 388-71-01235,

-01240. Either DSHS or the alleged perpetrator may appeal the administrative law

judge's ruling to the DSHS Board of Appeals. The Board's decision is DSHS' final

decision. RCW 34.05.464(4); WAC 388-71-01275(3).

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No. 32455-9-III
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       Washington statutes outline the nature of an investigation to be conducted by APS.

RCW 74.34.067 provides, in relevant part:

              (2) In conducting the investigation, the department shall interview
       the complainant, unless anonymous, and shall use its best efforts to
       interview the vulnerable adult or adults harmed, and, consistent with the
       protection of the vulnerable adult shall interview facility staff, any available
       independent sources of relevant information, including if appropriate the
       family members of the vulnerable adult.

RCW 74.34.040(3) provides that reports to DSHS from mandatory reporters must

contain, among other information, evidence of previous abuse, neglect, exploitation, or

abandonment.

       Sarah and Stephen Evert contend that the investigation conducted by APS in

response to Glenn's complaint, did not comply with RCW 74.34.040 and .067. They

argue that the investigation was deficient because: (1) APS investigator Ellen Rapkoch

did not interview everyone listed as a possible witness on her investigation intake form,

and (2) Rapkoch did not investigate allegations of past abuse perpetrated against

Thomasene in Boise.

       We do not address the merits of the Everts' contention, since any failure by APS

to follow the statutes' investigatory directives does not invalidate a finding by APS of

abuse of the vulnerable adult. No statute dictates that a negligent or defective

investigation annuls APS' conclusion of abuse. The Everts cite no authority that supports

reversing an APS order because of a deficient investigation. In the challenge of APS'



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No. 32455-9-III
Evert v. Dep't o/Soc. & Health


finding before the ALl, the Everts could call to testifY any witness they claim APS should

have interviewed. Any allegations of past abuse would not excuse the Everts' abuse of

Sarah's mother.

                                 Finding of Mental Abuse

       Sarah and Stephen Evert bring this appeal pursuant to the Administrative

Procedure Act (APA), chapter 34.05 RCW; Goldsmith v. Dep't o/Soc. & Health Servs.,

169 Wn. App. 573, 584, 280 P.3d 1173 (2012). The Everts bear the burden of

demonstrating the invalidity of APS' actions. RCW 34.05.570(1)(a). This court will

reverse an agency action if, as the Everts assert here:

             (d) The agency has erroneously interpreted or applied the law;
             (e) The order is not supported by evidence that is substantial when
       viewed in light of the whole record before the court.

RCW 34.05.570(3).

       When reviewing an agency decision, we apply the standards of chapter 34.05

RCW directly to the agency's record without regard to the superior court decision.

Goldsmith, 169 Wn. App. at 584; Burnham v. Dep't o/Soc. & Health Servs., 115 Wn.

App. 435, 438, 63 P.3d 816 (2003). This court reviews legal issues de novo, giving

substantial weight to the agency's interpretation of the law it administers, particularly

where the issue falls within the agency's expertise. Goldsmith, 169 Wn. App. at 584.

Challenges brought under RCW 34.05.570(e) are reviewed for substantial evidence; that

is, whether sufficient evidence exists to persuade a fair-minded person of the truth or

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No. 32455-9-III
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correctness of the order. Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd., 176 Wn.

App. 555, 565,309 P.3d 673 (2013), review denied, 179 Wn.2d 1015,318 P.3d 279

(2014). This court views the evidence in the light most favorable to the party who

prevailed in the highest forum that exercised fact-finding authority. Doing so necessarily

entails accepting the fact finder's views regarding the credibility of witnesses and the

weight to be given reasonable but competing inferences. Spokane County, 176 Wn. App.

at 565. This court defers to the DSHS Board of Appeals' determination of the credibility

of witnesses and weight of evidence. Spokane County, 176 Wn. App. at 565.

       The Everts contend that substantial evidence does not support the DSHS Board of

Appeals' ruling that the Everts mentally abused Thomasene by inappropriately isolating

her from other family members. They argue that the witnesses that testified on their

behalf at the administrative hearing before ALJ Pierce undermine the Board's ruling and

that Thomasene was not "isolated" because she had numerous calls from family,

including her younger sister and friends. She had visitors. Sarah took her to water

therapy and to restaurants. DSHS contends that the record supports a finding of mental

abuse by a preponderance of the evidence. We agree with DSHS.

      In an action brought by DSHS alleging mental abuse of a vulnerable adult, DSHS

must prove the alleged abuse by a preponderance of the evidence. Goldsmith, 169 Wn.

App. at 584; Kraftv. Dep'tofSoc. & Health Servs., 145 Wn. App. 708, 716,187 P.3d




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No. 32455-9-111
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798 (2008). Therefore, APS must find it more likely than not that abuse occurred.

Goldsmith, 169 Wn. App. at 584.

      The abuse of vulnerable adults act, chapter 74.34 RCW defines "abuse" as:

             ... the willful action or inaction that inflicts injury, unreasonable
      confinement, intimidation, or punishment on a vulnerable adult. In
      instances of abuse of a vulnerable adult who is unable to express or
      demonstrate physical hann, pain, or mental anguish, the abuse is presumed
      to cause physical harm, pain, or mental anguish. Abuse includes sexual
      abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult,
      which have the following meanings.

             (c) "Mental abuse" means any willful action or inaction of mental or
      verbal abuse. Mental abuse includes, but is not limited to, coercion,
      harassment, inappropriately isolating a vulnerable adult from family,
      friends, or regular activity, and verbal assault that includes ridiculing,
      intimidating, yelling, or swearing.

RCW 74.34.020(2) (emphasis added). "Willful" means: "the nonaccidental action or

inaction by an alleged perpetrator that he/she knew or reasonably should have known

could cause hann, injury or a negative outcome." WAC XXX-XX-XXXX.

      In arguing that the DSHS Board of Appeals decision is not supported by

substantial evidence, Sarah and Stephen Evert look into a crowd and see only their

friends. The Everts repeat lengthy quotes from their own witnesses in the administrative

hearing. They focus only on testimony supportive of their position and ignore extensive

testimony that confirms they were aggressively isolating Thomasene from her family.

Substantial evidence supports APS' determination that the Everts mentally abused

Thomasene by inappropriately isolating her from family members.

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         Both Sarah and Stephen Evert admitted to APS investigators that they

intentionally limited Thomasene's contact with her children and husband. The Board

found they moved Thomasene from Boise to Spokane without notifying all family

members, and assisted her in filing for divorce despite her inability to understand the

proceedings, and her advanced dementia. Thomasene Blevins and Dale McCleary were

allowed to communicate with Thomasene, but they were careful to couch their

conversations in nonconfrontational topics in order to avoid Stephen and Sarah's wrath.

The Everts greatly restricted Thomasene's contact with Glenn, Phyllis Keith, and Glenna

Kimball. As the ALJ noted, even if the Everts thought that such restrictions were in

Thomasene's best interest, they were nonetheless inappropriate and disqualify the Everts

from having "unsupervised contact and care over a vulnerable adult." AR at 44.

         The DSHS Board of Appeals correctly noted that the Everts "assign error because

they disagree with the ALl's determinations, not because actual errors exist." AR at 16.

The Board specifically found the Everts' testimony less credible than that of Sarah

Evert's siblings. We will not disturb this determination on appeal.

                                      CONCLUSION

         We affirm the superior court and the DSHS Board of Appeals' decision and final

order.




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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




                                                     Fearing, .

WE CONCUR: 




                                                     Lawrence-Berrey, J.




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