                                                                      FILED
                                                        ;c. 01JR.I. OF APPEALS. DIV,1
                                                          STATE- OF WASHINGTON

                                                         2018 FEB 26 Ati 8:39

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 DALJIT S. DHALIWAL,                           )
                                               )         No. 75567-6-1
                         Appellant,            )
                                               )
        v.                                     )
                                               )         DIVISION ONE
 STATE OF WASHINGTON                           )
 DEPARTMENT OF SOCIAL & HEALTH                 )         UNPUBLISHED OPINION
 SERVICES,                                     )
                                               )
                         Respondent.           )         FILED: February 26, 2018
                                               )
       APPELWICK, J. — Dhaliwal failed to timely request review of an adverse

agency finding. Years later, he produced evidence that he claims proves that the

finding was erroneous. An All, the DSHS Board of Appeals, and the superior

court, all dismissed for failure to timely request review. We affirm.

                                      FACTS

       Child Protective Services( received a report that Dhaliwal had hit his

daughter on November 29, 2011. The daughter was taken into protective custody.

On December 20, 2011, Dhaliwal received notice of a founded finding from the

Department of Social and Health Services(DSHS)that he had engaged in abuse

or neglect of a minor in his care arising out of the incident. It was written in his

native language, and stated that he had 30 days to request review of the findings.

       Child Protective Services received a report of a second incident that

occurred on December 12, 2011. On January 5, 2012, Dhaliwal received notice
No. 75567-6-1/2


of another founded finding from DSHS that he had engaged in of abuse or neglect

of a minor in his care arising out of this second incident. It was written in his native

language, and stated that he had 30 days to request review of the findings.

       Dhaliwal did not request review until August 16, 2013, 18 months after the

second finding. At that time, he asked DSHS to review the findings. DSHS

responded that his request for review was untimely.

       On May 7,2014, Dhaliwal submitted to the Office of Administrative Hearings

(OAH) a request for an administrative hearing regarding the founded findings. In

his prehearing brief to the OAH, Dhaliwal included his daughter's handwritten note,

dated April 21,2015, in which she rescinded her allegations that led to the founded

findings.

       On June 30, 2015, the OAH Administrative Law Judge(AU)dismissed the

request, because Dhaliwal did not timely request review of the initial two founded

findings. The DSHS Board of Appeals affirmed the OAH AUJ for the same reason:

Dhaliwal did not seek review within thirty days of the original founded findings.

Dhaliwal petitioned for review in superior court. The Superior Court affirmed.

Dhaliwal appeals.

                                    DISCUSSION

       Dhaliwal argues that his daughter's recantation of her accusations amounts

to newly discovered evidence that should allow him to seek review, even though

he did not initially seek timely review.

       Adjudicative proceedings regarding DSHS findings of child abuse or neglect

are governed by RCW 26.44.125(5), and the Administrative Procedure Act(APA),


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No. 75567-6-1/3


ch. 34.05 RCW. When reviewing an agency decision, this court applies the

standards of the APA directly to the agency's record, without regard to the superior

court decision. State v. Snyder, 194 Wn. App. 292, 296-97, 376 P.3d 466 (2016),

review denied, 187 Wn.2d 1017, 389 P.3d 604 (2017). This court reviews the

Board of Appeals' legal determinations de novo.1 Id. at 297.

      Two statutes are relevant. First, former RCW 26.44.125(2)(1998)2 stated,

             Within twenty calendar days after receiving written notice from
      the department under RCW 26.44.100 that a person is named as an
      alleged perpetrator in a founded report of child abuse or neglect, he
      or she may request that the department review the finding. The
      request must be made in writing. If a request for review is not made
      as provided in this subsection, the alleged perpetrator may not
      further challenge the finding and shall have no right to agency review
      or to an adiudicative hearing or judicial review of the finding.

(Emphasis added.) Second, RCW 34.05.562(2), of the APA, allows for a remand

to the agency if new evidence becomes available:

       The court may remand a matter to the agency, before final
       disposition of a petition for review, with directions that the agency
       conduct fact-finding and other proceedings the court considers



       1 Under the APA, Dhaliwal must demonstrate the invalidity of the agency's
actions on one of nine grounds. See Snyder, 194 Wn. App. at 297. Here, he
argues that the agency's action was arbitrary and capricious, which is one of those
nine grounds. RCW 34.05.570). An arbitrary or capricious action is a willful and
unreasonable action made without consideration and without regard for the facts
and circumstances. State Dep't of Soc. & Health Servs. v. Nix, 162 Wn. App. 902,
913-14, 256 P.3d 1259(2011). But, this is an argument on the merits of the action.
As discussed below, we do not reach the merits due to Dhaliwal's failure to timely
request review.
       2 In 2012,the legislature amended RCW 26.44.125(2)to allow for an appeal
within 30 days, rather than 20 days. LAWS OF 2012, ch. 259 § 11. This revision
was effective June 1, 2012. However, it appears that the notices sent to Dhaliwal
stated that he had 30 days to request review, even though the statute at the time
only gave him 20 days. This distinction is immaterial, because Dhaliwal did not
request review within 20 or 30 days.

                                         3
No. 75567-6-1/4

       necessary and that the agency take such further action on the basis
       thereof as the court directs, if:



               (b)The court finds that(i) new evidence has become available
       that relates to the validity of the agency action at the time it was
       taken, that one or more of the parties did not know and was under
       no duty to discover or could not have reasonably been discovered
       until after the agency action, and (ii) the interests of justice would be
       served by remand to the agency.

       Dhaliwal does not argue that he filed for review within the 20 day period.

Instead, he relies on RCW 34.05.562(2)(b) in arguing that his case should have

been remanded to the agency due to his daughter's recantation.

       We disagree. We first note that the language in former RCW 26.44.125(2)

is particularly strong. A party "shall have no right to agency review or to an

adjudicative hearing or judicial review of the finding" if the party does not file a

timely request for review. Id. (emphasis added). This language is unequivocal.

Failure to request review results in the party having no right to review. The order

was final.

       Second,the APA contains a separate notice of appeal time requirement that

is similarly restrictive. That statute states that "fflailure of a party to file an

application for an adjudicative proceeding within the time limit or limits established

by statute or agency rule constitutes a default and results in the loss of that party's

right to an adjudicative proceeding." RCW 34.05.440(1). As evidenced by both

chapter 26.44 RCW, and the APA, the legislature intended .to apply strict

requirements for appeals of agency decisions. A party loses his or her right to

review if he or she does not timely request review.



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No. 75567-6-1/5


      The language in RCW 34.05.562(2) that states that the court"may" remand

upon the discovery of new evidence never came into play here. It applies only

when a timely petition for review has been filed and the resulting order is

subsequently appealed to the superior court. Due to Dhaliwal's initial failure to

request review, the orders became final. The statute does not allow the court to

reopen final orders in unappealed proceedings.

      We affirm.




WE CONCUR:




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