                                                                       FILED
                                                                   JANUARY 17, 2017
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

VERDA LEE CROSSWHITE,                        )
                                             )         No. 33718-9-111
                     Appellant,              )
                                             )
       v.                                    )
                                             )         PUBLISHED OPINION
WASHINGTON STATE DEPARTMENT                  )
OF SOCIAL AND HEAL TH SERVICES,              )
                                             )
                     Respondent.             )

       SIDDOWAY, J. -    Verda Crosswhite appeals a final order of the Department of

Social and Health Services affirming as "substantiated" a finding that she mentally

abused a vulnerable adult. Clerk's Paper's (CP) at 4. A threshold issue is whether a

Department regulation asserts broader agency authority to find abuse than was intended

by the legislature. We hold that it does, and that the Department has misinterpreted the

law and exceeded its authority.

       Ms. Crosswhite also challenges some of the review judge's findings of fact, and

because the review judge reached a conclusion opposite of that of the administrative law

judge (ALJ), our review is slightly less deferential than it would be otherwise. Properly

construed, the statutory definition of "abuse" was not met by the Department's evidence,

which failed to demonstrate that Ms. Crosswhite's actions knowingly inflicted injury,
No. 33718-9-III
Crosswhite v. DSHS


unreasonable confinement, intimidation, or punishment. We reverse the Department's

finding of abuse.

        We also grant Ms. Crosswhite's motion to strike a statement of additional

authorities that cites to an unpublished decision of this court without including what we

hold is a needed caveat. We take this opportunity to announce that when citing to

unpublished opinions under GR 14.1, either in this court or in the trial court, a party must

do more than simply identify the opinion as unpublished. The party must point out that

the decision has no precedential value, is not binding on any court, and is cited only for

such persuasive value as the court deems appropriate. The party should also cite GR

14.1.

                     FACTS AND PROCEDURAL BACKGROUND

        In August 2013, the Department of Social and Health Services received a report

that Verda Crosswhite, who had worked as a personal caregiver for 26 years, had

mentally abused a vulnerable adult. The alleged victim was a woman named Jodi, 1 who

had hired Ms. Crosswhite as a personal caregiver about six to eight weeks before the

altercation that led to the report. By the time of the report, Jodi had already fired Ms.

Crosswhite.



        1
          Throughout these proceedings, the parties have referred to the alleged victim by
her first name only, in order to comply with confidentiality required by WAC 388-71-
01250(2).

                                              2
No. 33718-9-111
Crosswhite v. DSHS


       Unlike most of Ms. Crosswhite's clients, Jodi is not elderly. The record does not

reveal how old she is, but Ms. Crosswhite described her as "young" and as "about my

age." CP at 72, 94. Jodi was categorized as a vulnerable adult by the Department

because she was receiving in home services from a licensed agency. Jodi has diabetes,

COPD, 2 arthritis and a number of related physical limitations. She is confined to a

wheelchair, and needs extensive assistance with most of her activities of daily living.

Ms. Crosswhite's duties "included meal preparation, shopping, housework, personal

hygiene, assisting in bathing, foot care, medication management, and taking Jodi to

doctor's appointments." CP at 213.

       Under the "Abuse of Vulnerable Adults Act," chapter 74.34 RCW, the Department

is required to investigate reports of abuse of a vulnerable adult. RCW 74.34.063(1), .067.

It assigned this investigation to Rebecca Withrow, a social worker with its Adult

Protective Services program. If the Department substantiates a report and its

"substantiated" finding becomes final, it must place the reported abuser's name on a state

registry. WAC 388-71-01280. A final "substantiated" finding may be professionally

disqualifying for the abuser, since state law prevents such individuals from being

employed in a position or holding a license that involves the care of vulnerable adults or

children or from working or volunteering in a position giving them unsupervised access



       2
           Chronic Obstructive Pulmonary Disease.

                                             3
I
j



I   No. 33718-9-III
    Crosswhite v. DSHS


    to vulnerable adults or children. RCW 74.39A.056(2); WAC 388-76-10120(3)-10180(1);

    RCW 26.44.100(2)(c), .125(2)(e); WAC 388-06A-0110.

           The report of mental abuse by Ms. Crosswhite was that she yelled at Jodi in the

    waiting room of a doctor's office following an appointment that took place on August 1,

    2013. Ms. Crosswhite loudly demanded to know whether Jodi told her doctor about her

    health-threatening eating habits and abuse of pain medication. The incident was reported

    by Susi Munoz, who is employed by the Department and is Jodi's case manager.

    According to Department records, Ms. Munoz reported that both Jodi and Ms.

    Crosswhite called her on August 1, shortly after the altercation. Both were crying. Jodi

    initially wanted to fire Ms. Crosswhite but decided to think about it over the weekend.

    Ms. Crosswhite expressed concern about Jodi's self-neglect and her untruthfulness with

    her doctors.

           Three employees of the doctor's office confirmed to Ms. Withrow that the

    altercation took place and that one of the employees, Guille Gonzalez, a medical

    assistant, told Ms. Crosswhite to stop. The altercation embarrassed and upset Jodi, who

    was reduced to tears in the waiting room, where patients were present in addition to staff.

    On leaving the office, Jodi and Ms. Crosswhite remained outside for a while because Jodi

    wanted to smoke a couple of cigarettes before Ms. Crosswhite took her home. She

    continued to cry outside. We describe the facts further in discussing Ms. Crosswhite's

    substantial evidence challenge in section II of our analysis.

                                                 4
    No. 33718-9-III
    Crosswhite v. DSHS


           At the conclusion of Ms. Withrow's investigation, she found the report of abuse to

    be substantiated. Ms. Crosswhite appealed.

           The ALJ who heard the appeal reversed Ms. Withrow's determination, finding that


I   while Ms. Crosswhite acted inappropriately in yelling at Jodi, she did so out of concern

I   for her health, had Jodi's best interest in mind, and that the Department failed to show



I
    that Ms. Crosswhite's actions willfully caused injury, unreasonable confinement,

    intimidation, or punishment, as required to constitute abuse.

           The Department appealed. Fallowing a full review of the record, the review judge

    affirmed the Department's finding. It dispensed with the ALJ's findings about Ms.

    Crosswhite's concerns, motives and intent. Applying Department regulations that

    interpret and reframe certain provisions of the Abuse of Vulnerable Adults Act, the

    review judge concluded that the ALJ misapplied the law.

           Ms. Crosswhite appeals.

                                            ANALYSIS

           Washington's Administrative Procedure Act, chapter 34.05 RCW (APA) governs

    judicial review of an agency action. Alpha Kappa Lambda Fraternity v. Wash. State

    Univ., 152 Wn. App. 401,413,216 P.3d 451 (2009). Of nine statutory bases on which an

    agency order can be reversed, Ms. Crosswhite argues that three apply: (1) the

    Department's final order is outside its statutory authority because it relies on an

    improperly broadened definition of the statutory term "abuse", (2) the Department

                                                  5
     No. 33718-9-111
     Crosswhite v. DSHS


     erroneously interpreted and applied that statutory term, and (3) substantial evidence does

     not support the finding that Ms. Crosswhite's conduct met the statutory definition of

     abuse. Br. of Appellant at 2; RCW 34.05.570(3)(b), (d) and (e).

            Consistent with RCW 34.05.464, the Department provides by rule that the

I
!
     decision of an ALJ in an appeal from a substantiated finding of abuse of a vulnerable

I.   adult is an initial order, subject to review by a reviewing officer. WAC XXX-XX-XXXX(3).
I
     The AP A provides that a reviewing officer generally exercises "all the decision-making

     power that the reviewing officer would have had to decide and enter the final order [that]

     the reviewing officer presided over the hearing." RCW 34.05.464(4). This is subject to

     the proviso that "[i]n reviewing findings of fact by presiding officers, the reviewing

     officers shall give due regard to the presiding officer's opportunity to observe the

     witnesses." Id.

            We review the review judge's final order, not the initial order entered by the ALJ.

     Where the ALJ and the review officer enter contradictory findings, we do not accord the

     deference to the ALJ that we would accord to the trier of fact in a nonadministrative

     matter, because the review officer has broad decision-making authority and is intended to

     bring the agency's expertise to bear. As discussed further below, however, the review

     judge may commit an error oflaw ifhe or she fails to give due regard to findings of the

     ALJ that are informed by the ALJ's ability to observe the witnesses.




                                                  6
No. 33718-9-111
Crosswhite v. DSHS


       We review agency action from the same position as the superior court, and review

the administrative record rather than the superior court's findings or conclusions.

Edelman v. State, 160 Wn. App. 294,303,248 P.3d 581 (2011). Findings of fact from

the agency's final order are reviewed under the substantial evidence test and will be

upheld if supported by a sufficient quantity of evidence to persuade a fair-minded person

of the order's truth or correctness. Raven v. Dep 't ofSoc. & Health Servs., 177 Wn.2d

804, 817, 306 P.3d 920 (2013).

       The AP A's directive that we review whether an order is supported "by evidence

that is substantial when viewed in light of the whole record before the court" requires us

to look beyond whether there is merely some evidence that supports the agency order.

RCW 34.05.570(3)(e) (emphasis added). As the United States Supreme Court observed

in construing like language in the federal administrative procedure act, "The

substantiality of evidence must take into account whatever in the record fairly detracts

from its weight. This is clearly the significance of the requirement ... [in AP A § 706]

that courts consider the whole record." Universal Camera Corp. v. Nat'! Labor Relations

Bd., 340 U.S. 474,488, 71 S. Ct. 456, 95 L. Ed. 456 (1951). "[E]vidence in support of an

agency finding must be sufficient to support the conclusion of a reasonable person after

considering all of the evidence in the record as a whole, not just the evidence that is

consistent with the agency's finding." 2 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW

TREATISE§ 11.2, at 979 (5th ed. 2010).

                                              7
    No. 33718-9-111
    Crosswhite v. DSHS


           Ms. Crosswhite bears the burden of showing invalid action. RCW 34.05.570(l)(a).

    Relief is available only if she shows she was substantially prejudiced by the action

    complained of. RCW 34.05.570(l)(d).

                      I. The Department's regulatory definition of "abuse"

I
I
                     conflicts with the statutory definition provided by RCW
                                            74.34.020(2)

           We first address Ms. Crosswhite's arguments that the Department's regulatory


I   definition of "abuse" erroneously interprets RCW 74.34.020(2) and that in applying it,

    the Department exceeded its authority.

           We review challenges that an order is outside the statutory authority or jurisdiction

    of the agency and that the agency has erroneously interpreted or applied the law de novo,

    but "give the agency's interpretation of the law great weight where the statute is within

    the agency's special expertise." Cornelius v. Dep 't ofEcology, 182 Wn.2d 574, 585, 344

    P.3d 199 (2015). Deference "is inappropriate when the agency interpretation conflicts

    with the statute." Brown v. Dep 't of Soc. & Health Servs., 145 Wn. App. 177, 183, 185

    P.3d 1210 (2008) (citing Dep 't of Labor & Indus. v. Granger, 159 Wn.2d 752, 764, 153

    P.2d 839 (2007)).

          WAC XXX-XX-XXXX( 1) provides that in adjudications arising in Department

    programs, ALJs and review judges must first apply the Department's administrative

    regulations. Only if no Department rule applies are ALJs and review judges to decide an

    issue according to other legal authority and reasoning. WAC XXX-XX-XXXX(2). Ms.

                                                 8
No. 33718-9-111
Crosswhite v. DSHS


Crosswhite argues that the Department regulation applied by the review judge differed in

material respects from the statutory definition of "abuse" provided by RCW

74.34.020(2).

      As always in interpreting a statute, "[t]he court's fundamental objective is to

ascertain and carry out the Legislature's intent." Dep't ofEcology v. Campbell & Gwinn,

LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). "[I]fthe statute's meaning is plain on its face,

then the court must give effect to that plain meaning as an expression of legislative

intent." Id. at9-10.

       As relevant here, chapter 74.34 RCW provides that "abuse" means

       the willful action or inaction

       that inflicts injury, unreasonable confinement, intimidation, or punishment

       on a vulnerable adult. ...

       Abuse includes sexual abuse, mental abuse, physical abuse, and
       exploitation of a vulnerable adult.

RCW 74.34.020(2). Before amendment in 2015, the statute defined "mental abuse" as

including willful verbal abuse, and as including "verbal assault that includes ridiculing,

intimidating, yelling or swearing." Former RCW 74.34.020(2)(c) (2013).

       The first point of contention between the parties is the meaning of "willful."




                                              9
No. 33718-9-111
Crosswhite v. DSHS


                              A. "Willful" action or inaction

       "Willful" is not defined in chapter 74.34 RCW. While the term has been given

many meanings, 3 a meaning often currently applied in Washington cases is that an action

is willful if "a person acts knowingly with respect to the material elements of an offense."

State v. Bauer, 92 Wn.2d 162, 168, 595 Wn.2d 544 (1979); Bishop v. City ofSpokane,

142 Wn. App. 165, 171, 173 P.3d 318 (2007). RCW 9A.08.010(4), which defines types

of culpability for purposes of the criminal code, defines "wil[l]fulness"4 in this manner

"unless a purpose to impose further requirements plainly appears." It is a material

element of committing abuse of a vulnerable adult that the perpetrator "inflicts injury,

unreasonable confinement, intimidation, or punishment." RCW 74.34.020(2). Applying

this common definition of "willfully," an abuser must knowingly inflict injury,

unreasonable confinement, intimidation or punishment.

       This construction is consistent with our decision in Brown, 145 Wn. App. at 183,


       3 See Markam Grp., Inc. v. Emp 't Sec. Dep 't, 148 Wn. App. 555, 562-63, 200 P.3d
748 (2009) ("'Willful' means intentional behavior done deliberately or knowingly, where
you are aware that you are violating or disregarding the rights of your employer or a co-
worker."); New York Life Ins. Co. v. Jones, 86 Wn.2d 44, 47,541 P.2d 989 (1975)
("Willfully means intentionally and designedly."); Smith v. Shiflett, 66 Wn.2d 462, 467,
403 P.2d 364 (1965) (finding that the element of willfulness may be satisfied by reckless
disregard of probable consequences but does not require intent on the part of a
trespasser); State v. Latham, 183 Wn. App. 390,403, 335 P.3d 960 (2014) (finding
"willful" requires only general intent in the context of manslaughter, while specific intent
is required in the context of homicides).
       4
         We use the modernly-preferred "willful" throughout, recognizing that older
statutes and cases often use the formerly-preferred "wilful."

                                            10
No. 33718-9-111
Crosswhite v. DSHS


which reversed a Department finding of physical abuse against a vulnerable adult. That

decision focused primarily on the meaning of "abuse" rather than the meaning of

"willful." In construing "abuse," this court adopted the reasoning of the Alaska Supreme

Court in R.JM v. State, 946 P.2d 855, 863 (Alaska 1997) that "abuse" requires harm

resulting from "improper action." As the Alaska court observed, both the terms "abuse"

and "neglect" "imply the potential for infliction of harm." Id. at 862.

       Here, focusing on the culpability required for "willful" conduct, an actor's

knowing action or inaction and knowing "inflict[ion of] injury, unreasonable

confinement, intimidation or punishment," RCW 74.34.020(2), makes action or inaction

"improper," as that term was used in Brown.

       Defining "willfulness" to require the knowing infliction of one of the statutory

harms is also consistent with one of Black's definitions of "willful": "A voluntary act

becomes willful, in law, only when it involves conscious wrong or evil purpose on the

part of the actor, or at least inexcusable carelessness, whether the act is right or wrong."

BLACK'S LAW DICTIONARY 1834 (10th ed. 2014). 5

       By contrast, the Department regulation applied in this case defines "willful" to

mean

       [T]he nonaccidental action or inaction by an alleged perpetrator that he/she

       5
        Alternatively, Black's defines "willful" as "Voluntary and intentional, but not
necessarily malicious." Id.


                                              11
No. 33718-9-111
Crosswhite v. DSHS


       knew or reasonably should have known could cause harm, injury or a
       negative outcome.

WAC XXX-XX-XXXX. Ms. Crosswhite contends the elements "nonaccidental," "knew or

reasonably should have known" and "negative outcome" in the Department's definition

expand its authority to make professionally disqualifying findings of abuse beyond what

was intended by the legislature. "[R]ules that extend a statute's punitive reach are an

invalid exercise of agency power." Marcum v. Dep 't of Soc. & Health Servs., 172 Wn.

App. 546,558,290 P.3d 462 (2012). 6

                                     "Nonaccidental"

       We disagree with Ms. Crosswhite that the term "nonaccidental" conflicts with the

legislature's use of the term "willful" in defining "abuse." "Nonaccidental" is reasonably

synonymous with "willful." Webster's provides the following relevant definitions of

"willful":


       6
         The Department argues that chapter 74.34 RCW is remedial and should be
broadly construed. At oral argument, it contended that the statutes applied to Ms.
Crosswhite's appeal of the Department's "substantiated" finding are not punitive,
because it is chapter 74.39A RCW, not chapter 74.34 RCW, that disqualifies Ms.
Crosswhite from working as a long term care worker.
       While chapter 74.34 RCW is remedial in making available protective orders and a
claim for damages, its provisions dealing with Department investigations, findings, and
publication of substantiated findings for licensing disqualification, employment
disqualification, and criminal prosecution purposes, are punitive. This court has also
construed provisions under which the Department makes professionally disqualifying
findings applicable to licensing to be in derogation of the common law, requiring strict
construction. Brown v. Dep 't of Soc. & Health Servs., 190 Wn. App. 572, 591-92, 360
P.3d 875 (2015).

                                            12
     No. 33718-9-III
     Crosswhite v. DSHS


            2 : done deliberately : not accidental or without purpose : INTENTIONAL,
            SELF-DETERMINED ... 4 obs: done of one's own free will: not
            compulsory.

     WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2617 (1993). Courts may discern

     the plain meaning of nontechnical statutory terms from their dictionary definitions. State

     v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010) (quoting State v Cooper, 156 Wn.2d

     475, 480, 128 P.3d 1234 (2006).

            It is critical to properly identify the "knowing action" that must be nonaccidental,

     however. As previously discussed, under RCW 9A.08.0I0(4), "[a] requirement that an

     offense be committed wil[l]fully is satisfied if a person acts knowingly with respect to the

     material elements of the offense." (Emphasis added.) Yelling at a vulnerable adult that is

     nonaccidental and that nonaccidentally inflicts a type of harm identified by RCW

     74.34.020(2) is willful. Yelling that is nonaccidental but that causes a statutory harm

     accidentally or without purpose is not.
i


I
I
            The Department's position that only the actor's conduct, not her intent, needs to be


I    nonaccidental is contrary to Brown, in which this court held that "the definition of


I
!
I
     'abuse' ... require[s] a willful action to inflict injury." 145 Wn. App. at 183. The

     Department dismisses that language, arguing that the court was merely "paraphrasing"

II   RCW 74.34.020(2) in Brown and did so incorrectly, since the statute speaks only of
I
     action or inaction "that" inflicts injury, rather than action or inaction "to" inflict injury.
I
~
!
     The Department is wrong. In stating that an abuser requires willful action "to" inflict


I                                                   13


I
 l
ll   No. 33718-9-III
     Crosswhite v. DSHS

I    injury, Brown was not paraphrasing the statute, it was construing what is required to

     commit abuse.

            The Department also argues that this court's decision in Goldsmith v. Department

     ofSocial & Health Services cites Brown and holds that specific intent to cause harm is

     not required. Br. ofResp't at 16-17 (citing Goldsmith, 169 Wn. App. 573, 586, 280 P.3d

     1173 (2012)). We disagree. As noted in Goldsmith, the appellant in that case did not

     explain how the Department committed any legal error, so the issue presented in this case

     was not before the court. 169 Wn. App. at 583. Moreover, in the discussion of Brown to

     which the Department refers, the Goldsmith court stated that "if ... harm results from

     improper action, the action is abusive"-the court's concern in Brown. Id. at 586.

            In addressing "willfulness," what the Goldsmith court deemed important was not

     that an adult son's repeated arguments with his elderly father were voluntary, but was,

     instead, how often heated exchanges between the son and the father had occurred, how

     upset the father would become, the foreseeability that "lengthy and repeated yelling

     matches with a 98-year-old [man] in declining health ... could cause harm or injury,"

     and the court's conclusion that "Goldsmith knew or should have known that they caused

     his father considerable stress." Id. at 585. The court's inference that the son knew he

     was inflicting a statutory harm was necessary to Division Two's finding that his action

     was willful.

            The Department's use of "nonaccidental" to define "willful" is not erroneous if

                                                 14
    rl
i

I   '




I        No. 33718-9-111


l        Crosswhite v. DSHS


         properly construed to require knowing infliction of a statutory harm.

                                  "Knew or reasonably should have known"

I               By broadening the meaning of "willful" to include action or inaction that an
i
II       alleged perpetrator knew "or reasonably should have known" could cause harm or injury,

         the Department's regulation reduces the standard of culpability to negligence. The

i        Department cites the definition of "knowledge" in RCW 9A.08.010 in contending that


I        "[ c]riminal law ... holds a defendant charged with willful conduct to the standard of a


I
~
         reasonable person in the defendant's situation." Br. of Appellant at 20.

                We agree that RCW 9A.08.0I0 is reasonably considered in construing standards

I        of culpability. We rely on it ourselves in construing "willful" conduct. But the

I        Department overlooks the limiting construction that our Supreme Court placed on the
i
I
I
         statute's definition of "knowledge" in State v. Shipp, 93 Wn.2d 510, 610 P.2d 1322

I        (1980).
I
I               RCW 9A.08.0IO(l)(b) provides, as to "knowledge," that:

I               A person knows or acts knowingly or with knowledge when:
I                       (i) he or she is aware of a fact, facts, or circumstances or result
                described by a statute defining an offense; or
                        (ii) he or she has information which would lead a reasonable person
                in the same situation to believe that facts exist which facts are described by
                a statute defining an offense.

         In Shipp, the court held that the definition in subsection (b )(ii) could be construed to have

         three possible meanings, only one of which would be constitutional.


                                                       15
1

l    No. 33718-9-111
     Crosswhite v. DSHS

Ii          It held that "[t]he word 'knowledge' has an ordinary and accepted meaning," and,


II   "statutory redefinition of knowledge to mean negligent ignorance would completely

     contradict the accepted meaning." Shipp, 93 Wn.2d at 516. Since "[s]tatutes which

     define crimes must be strictly construed according to the plain meaning of their words to

     assure that citizens have adequate notice of the terms of the law," the court held that

     RCW 9A.08.010(l)(b) could not be construed as redefining "knowledge." Id. at 515-16.

            An alternative construction ofRCW 9A.08.010(l)(b) would be that it creates a

     mandatory presumption of knowledge when negligent ignorance is proved. But that

     construction would also be unconstitutional, since presumptions that direct the jury to

     find the presence of a criminal element absent proof of that element violate the

     requirement of due process. Id. at 515 ( citing In re Winship, 397 U.S. 358, 90 S. Ct.

     1068, 25 L. Ed. 2d 368 (1970)).

            The third, and the only permissible construction ofRCW 9A.08.010(l)(b), is that

     it creates a permissible inference. As Shipp and other Washington decisions have

     observed, if evidence persuades a fact finder that a reasonable person would have known

     something, then the fact finder may infer a defendant's "knowledge" from that evidence

     as a matter of logical probability. State v. Bryant, 89 Wn. App. 857,871,950 P.2d 1004

     ( 1998) (citing Shipp, 93 Wn.2d at 517). But those cases hold that the fact finder "must

     still find subjective knowledge." Shipp, 93 Wn.2d at 517; and see 11 WASHINGTON

     PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL§ 10.02, at 206 (3d

                                                  16
     No. 33718-9-III
     Crosswhite v. DSHS


     ed. 2008) ( defining "knowledge" and "knowingly").

            The statutes under which Ms. Crosswhite was professionally disqualified were not

     criminal statutes. But we still apply plain meaning analysis. As held in Shipp, to define

     "knowledge" as meaning negligent ignorance completely contradicts the accepted

     meaning of the word. Shipp, 93 Wn.2d at 516.

            In treating negligence as knowledge, the Department erroneously interpreted the

     law. Its application of a negligence standard exceeds its statutory authority.

                                         "Negative outcome"

            Finally, adding "negative outcome" to the types of harm that will support a

     professionally disqualifying finding of abuse is overly broad and irreconcilable with

     RCW 74.34.020(2). This court first expressed reservations about the reference to

     "negative outcomes" in Goldsmith, but because the language was not necessary to the

     outcome of that case, the court did not address the issue further. 169 Wn. App. at 585

I    n.1.
I
i           The Department argues that adding "negative outcome" to its definition was in an
!


I    effort to "implement the legislative intent that the definition of 'abuse' be as broad as


I    possible." Br. ofResp't at 21. It cites no authority for that ostensible legislative intent.

     Neither the statement of legislative purpose nor the findings adopted in enacting the
II
l    Abuse of Vulnerable Adults Act support the Department's position. See LA ws OF 1999,

     ch. 176 § 1-2 (codified in part at RCW 74.34.005). The legislative purpose was, instead,


I!
I
                                                   17


I'
No. 33718-9-111
Crosswhite v. DSHS


to combine statutory provisions relating to protection of vulnerable adults into one statute

so that the Department and law enforcement agencies could investigate complaints of

mistreatment and provide protection to vulnerable adults. Id.; Brown, 145 Wn. App. at

182.

       While deferring to agency expertise where appropriate, this court has consistently

rejected Department interpretations of statutes that broaden its authority to take punitive

action. We have already discussed the 2008 decision in Brown, in which this court

rejected the Department's view that it was authorized to make a substantiated finding of

physical abuse even though Ms. Brown intervened in a situation with a violent client to

take actions that, while physical and objectionable to the client, were "protective, not

injurious or ill-intended." Id. at 183.

       In Marcum, this court rejected a Department interpretation of the legislature's

definition of"negligent treatment" of a child in chapter 26.44 RCW, the Child Abuse and

Neglect Act. A Department rule identified categories of per se negligent treatment, in

disregard of the legislature's language that negligent treatment must involve conduct

"that evidences a serious disregard of consequences of such magnitude as to constitute a

clear and present danger to a child's health, welfare, or safety.'" Marcum, 172 Wn. App.

at 555 (quoting former RCW 26.44.020(14) (2010)). This court held that the statutory

standard for negligent treatment was unambiguous and that the Department "lacks

authority ... that fundamentally shifts the standard required to make a neglect finding."

                                             18
No. 33718-9-111
Crosswhite v. DSHS


Id. at 559.

       Last year, in [Ashley] Brown (we modify the case name to distinguish it from this

court's 2008 Brown decision), this court rejected the Department's incorporation of a

"reasonable person" standard into the legal standard required to uphold a finding of

neglect or abuse against a parent. Brown v. Dep 't of Soc. & Health Servs., 190 Wn. App.

572, 587, 360 P.3d 875 (2015). In addition to a textual basis for the decision, the court

found "[g]ood reason ... to reject a negligence benchmark," for "[a] negligence standard

could place every Washington parent in jeopardy because what is 'reasonable' under a

negligence regime varies depending on the situation and actors involved." Id. at 593.

       In this case, the Department's broadening of harms covered by RCW 74.34.020(2)

in order to make the definition of abuse "as broad as possible" conflicts with statutory

language. The legislature unambiguously identified four types of harm that constitute

"abuse," without using language such as "including" or "not limited to" that would signal

that the harms identified are nonexclusive. "Negative outcome" is not only outside the

unambiguous scope of the statute but is hopelessly vague. As we observed at oral

argument, it does not even convey who must suffer the negative outcome: The

vulnerable adult? A family member or friend? The Department? Society?

       The Department's reliance on "negative outcome" as a basis for finding abuse

exceeded its statutory authority.




                                            19
No. 33718-9-111
Crosswhite v. DSHS


                                  II. Substantial evidence

        If Ms. Crosswhite had challenged only the Department's application of its broad

definition of "willful," we would remand so that the agency could apply the correct

definition. But in this case, Ms. Crosswhite also argues that substantial evidence does not

support the agency's final order. In addition to assigning error to some of the review

judge's own findings of fact, she argues that the review judge failed to give due regard to

the ALJ's opportunity to observe the witnesses as required by RCW 34.05.464(4).

        If the review judge and the ALJ made findings on the facts relevant to the proper

definition of "willful", then Ms. Crosswhite is entitled to a decision on her evidence

sufficiency challenge. They did. In applying the Department's regulatory definition of

"willful," the review judge addressed whether Ms. Crosswhite "knew or should have

known" that her actions would inflict injury on Jodi and made numerous findings on that

score. Any facts found by the review judge as supporting an ultimate finding that Ms.

Crosswhite "knowingly inflicted injury" on Jodi would have been included as facts

supporting the review judge's ultimate finding that Ms. Crosswhite "knew or should have

known" that she was inflicting injury. Since the factual findings are adequate for

substantial evidence review, Ms. Crosswhite does not have to settle for an agency do-

over.




                                            20
No. 33718-9-111
Crosswhite v. DSHS


            A. Deference owed when findings of the reviewing and presiding
                                    officers conflict

       In Tapper v. Employment Security Department, 122 Wn.2d 397, 403, 858 P.2d 494

( 1993 ), our Supreme Court rejected the contention that a reviewing officer was legally

bound by factual findings of the ALJ who presided over the initial hearing. The court

held that the reviewing officer "has the power to make his or her own findings of fact and

in the process set aside or modify the findings of the ALJ." Id. at 404. In so holding, it

looked to case law applying the federal administrative procedure act, which it

characterized as "provid[ing] persuasive support" for its reading of the APA. Id. at 405.

See also RCW 34.05.001 ("The legislature ... intends that the courts should interpret

provisions of this chapter consistently with decisions of other courts interpreting similar

provisions of other states, the federal government, and model acts.") The court

emphasized that Ms. Tapper's appeal did not raise a substantial evidence challenge to the

review officer's findings, but argued only that a reviewing officer always lacks authority

to reject the findings of an ALJ. Id. at 403, 407.

       Where, as here, a party contends that substantial evidence does not support the

review judge's findings, the fact that the presiding judge made different findings can

matter to our review. As the United States explained in its seminal decision in Universal

Camera Corp. v. National Labor Relations Board:

       [E]vidence supporting a conclusion may be less substantial when an
       impartial, experienced examiner who has observed the witnesses and lived

                                             21
 I
il
I
 j
I    No. 33718-9-III
     Crosswhite v. DSHS

1
I
i           with the case has drawn conclusions different from the Board's than when
            he has reached the same conclusion. The findings of the examiner are to be
I           considered along with the consistency and inherent probability of
            testimony.


I
l
     340 U.S. at 496. "The substantiality of the evidence is to be assessed specifically 'in

     light of the whole record,' which includes transcripts of the agency hearing and the
I
I
;I
1    credibility and demeanor findings of the presiding officer." William R. Andersen, The

     1988 Washington Administrative Procedure Act-An Introduction, 64 WASH. L. REV.

     781, 816 (1989) (footnote omitted) (quoting RCW 34.05.570(3)(e)).

            Accordingly, when a reviewing officer reverses an ALJ on factual matters, case

     law holds that "we examine the disagreement with a gimlet eye." Aggregate Indus. v.

     Nat'! Labor Relations Bd, 824 F.3d 1095, 1100 (D.C. Cir. 2016); accord Plaza Auto

     Ctr., Inc. v. Nat'! Labor Relations Bd, 664 F.3d 286, 291 (9th Cir. 2011) ("Our review is

     more 'searching' in instances where the Board's findings or conclusions are contrary to

     those of the ALJ."); Slusher v. Nat'! Labor Relations Bd, 432 F.3d 715, 727 (7th Cir.

     2005) ("[W]e must consider the ALJ's views in deciding whether the Board's order is

     supported by substantial evidence.").

            This is especially true where a reviewing officer has rejected "primary" rather than

     "secondary" inferences. The author of a leading treatise explains the distinction:

                  A primary inference involves a determination of whether a witness'
           testimony as to an allegedly observed fact is true, e.g., did a managerial
           employee order the union organizer to leave the premises, as the witness
           claimed to have observed? A secondary inference involves application of

                                                 22
No. 33718-9-111
Crosswhite v. DSHS


       judgment, discretion, or expertise to testimony, e.g., does the method of
       calculating damages proposed by an expert witness best serve the purposes
       of the regulatory regime implemented by the agency?

2 PIERCE, supra, at 992. Professor Pierce observes that "[c]redibility based on witness's

demeanor is far more important with respect to primary inferences." Id. On the other

hand, "ALJ findings should carry little, if any, weight with respect to secondary

inferences." Id.

       Finally, case law holds that when an agency departs from ALJ findings, "it must

explain why." ITT Cont'! Baking Co. v. Fed. Trade Comm 'n, 532 F.2d 207, 219 (2d Cir.

1976). See also Gen. Dynamics Corp. v. Occupational Safety & Health Review Comm 'n,

599 F.2d 453,463 (1st Cir. 1979) ("the ALJ's decision to give or deny credit to a

particular witness' testimony should not be reversed absent an adequate explanation of

the grounds for the reviewing body's source of disagreement"); Int'! Bhd. of Teamsters v.

Nat'! Labor Relations Bd., 587 F.2d 1176, 1181 (D.C. Cir. 1978) (agency's explanation

for rejecting ALJ's findings is needed to determine whether agency's findings are

supported by substantial evidence).

                                  B. Challenged findings

       Ms. Crosswhite assigns error to 18 of the review judge's findings or conclusions in

support of 3 challenges to the sufficiency of the evidence: she argues that there is no

substantial evidence that she intended to inflict injury; that her actions constituted a

verbal assault; or that Jodi sustained injury, unreasonable confinement, punishment, or

                                              23
No. 33718-9-111
Crosswhite v. DSHS


intimidation. Br. of Appellant at 24. We find the lack of substantial evidence that Ms.

Crosswhite intended to inflict injury to be dispositive.

            1. The review judge's findings fail to give due regard to the ALJ's
                           opportunity to observe the witnesses

       The review judge concluded that the requirement of willfulness was satisfied

because "yelling and screaming in front of a room full of people ... was not an

accidental occurrence" and Mrs. Crosswhite "knew or should have known [her actions]

would cause harm or a negative outcome." CP at 13 (Conclusions of Law (CL) 11, 13).

It rejected the ALJ's findings of fact as to Ms. Crosswhite's concerns, motives and intent.

       The ALJ had the opportunity to observe Ms. Crosswhite's examination and cross-

examination. She admitted that she yelled at Jodi about whether she had been honest

with her doctor and she testified to the reasons why. According to Ms. Crosswhite, early

on Jodi told her that she wanted to "start doing better"; she wanted to "start walking" and

"start being normal." CP at 94. Ms. Crosswhite initially believed Jodi was serious about

making changes and Ms. Crosswhite wanted to help her. She thought that improving

Jodi's living environment outside her bedroom would motivate Jodi to get out of bed, so

she arranged for volunteers to donate materials and services to wash and paint the walls

in Jodi's living room and bathroom, clean her carpets, and cut back an overgrown tree

that was blocking light from the home.

      Despite this, Ms. Crosswhite testified, Jodi continued to be self-neglectful.


                                             24
No. 33718-9-111
Crosswhite v. DSHS


According to Ms. Crosswhite, Jodi stayed in bed most of the time, heavily medicated.

Jodi consistently failed to monitor her blood sugar. Jodi did not eat well even when Ms.

Crosswhite provided healthy food. Instead, Jodi survived for the most part on regular

Coca Cola and presweetened iced tea. Ms. Crosswhite testified to one occasion when

Jodi sent her to the store for a gallon of orange juice "because she had bottomed out."

CP at 85. When Ms. Crosswhite returned and poured her a glass of juice, Jodi made Ms.

Crosswhite add half a cup of sugar to it. Ms. Crosswhite believed that the way Jodi was

dealing with her diabetes was "totally dangerous." Id. She testified:

       [S]he was playing Russian roulette. And I watched her do this, and I was
       getting really scared. You know, I was scared for myself and I was scared
       for her. Because I didn't know if one morning I was going to go in there,
       and maybe she did-had an insulin reaction, and maybe didn't make it.

Id.

       In taking Jodi to doctor's appointments, Ms. Crosswhite said she observed her

being untruthful about her level of activity because her pain medications might be

reduced if her doctors knew how much time she was spending in bed. Ms. Crosswhite

said she worried that Jodi's unwillingness to be candid about her diet and inattentiveness

to her blood sugar levels would prevent her from getting needed advice on matters that




                                                                                             I
were critical to caring for her diabetes.

       The ALJ heard from three individuals who Ms. Crosswhite arranged to

donate materials or services to clean up Jodi's home and three former clients or



                                            25
     No. 33718-9-III
     Crosswhite v. DSHS


     family members of clients for whom Ms. Crosswhite had provided personal care.

            A program coordinator for Volunteer Chore Services testified that Jodi's home


l    had needed "some pretty significant cleaning." CP at 164. She testified that Ms.


li   Crosswhite arranged through her for a church group from Oregon to provide 120 hours of

     volunteer work in Jodi's home and yard, reporting back that "[the] project was very
I
I    difficult, but so worth it," and that "[Ms. Crosswhite] was amazing" and "affirmed us."


I    CP at 167. The program coordinator testified that Ms. Crosswhite was "a strong advocate


I    for ... her client." Id. The owner of a carpet cleaning service who Ms. Crosswhite

j    enlisted testified to the extent of cleaning required to deal with badly soiled carpets,
I    which he also treated with a germicide deodorizer to address pet stains and cigarette odor.

I           Three of Ms. Crosswhite's former clients or client family members testified to her
I    friendliness, helpfulness, and her respect for their privacy. Their testimony was
II   consistent with Department case notes that when Ms. Withrow asked Ms. Munoz, Jodi's
!
I    case manager, "if they have ever had a problem with [Ms. Crosswhite]," Ms. Munoz
I    answered no, adding that Ms. Crosswhite "takes care of another individual on her case
II   load and does quite well." CP at 68.

I           The ALJ observed the testimony of Guille Gonzalez, the medical assistant who
I
I    intervened to stop Ms. Crosswhite from yelling at Jodi. Ms. Gonzalez was critical of Ms.
I
!
I
!
     Crosswhite's behavior on August 1. But she testified that on two prior occasions, Ms.
I
I
I    Crosswhite had privately expressed concern to her that Jodi was too heavily medicated

                                                  26
No. 33718-9-III
Crosswhite v. DSHS


and brought in Jodi's medications so that Ms. Gonzalez could see what they were and

check with the doctor. Although the doctor ultimately determined that some of the

bottles of medication were simply duplicates of single prescriptions, Ms. Gonzalez

testified that she believed Ms. Crosswhite had Jodi's best interest in mind and it was

reasonable for her to raise the concern with the medical staff.

       The ALJ observed the testimony of Ms. Munoz, who had heard from both Jodi and

Ms. Crosswhite on August 1 and reported their altercation to the Department. She

testified that when she first heard from Jodi on the day of the altercation, Jodi told her

that she and Ms. Crosswhite "were going to try to work through it." CP at 131. Ms.

Munoz testified that Ms. Crosswhite had been "very kind" to arrange for the cleaning,

painting and yard work at Jodi's home and was "among ... an elite group of caregivers."

CP at 136-37.

       The ALJ observed the testimony of Ms. Withrow, who testified to her interviews

of Jodi. (Jodi was not called as a witness.) While testifying to how very upset Jodi was

about being yelled at about "junk food ... on [her] windowsill" and about her refusal to

control her diabetes,7 Ms. Withrow also testified about her notes of what Jodi said



       7
         Department case notes suggest that Jodi might have been more upset by the
altercation with Ms. Crosswhite than would have been foreseen. Notes of Ms. Withrow's
interviews of Jodi state that in explaining why she was so upset, Jodi "said she has had an
abusive past and [Ms. Crosswhite's] actions ... just brought up all that old stuff." CP at
69. Similar entries about the prior abuse appear elsewhere, including in connection with

                                             27
!
t   No. 33718-9-111
    Crosswhite v. DSHS


    happened after she and Ms. Crosswhite left the doctor's office. CP at 69. According to

    her case notes:

           They sat out on the bench and she said [Ms. Crosswhite] trie[ d] to calm her
           down, and told her she cared about her and that she was worried about her
           health and her poor eating habits. She said the medical staff came out and
           checked on her and she was still crying but she told them it was OK. She
           ask[ ed Ms. Crosswhite] to take her home.

    Id. Jodi told Ms. Withrow that when she called Ms. Munoz to report what had happened,

    she talked about discharging Ms. Crosswhite as her caregiver but then said, "[L]et me

    think about this over the weekend." Id. (Jodi discharged Ms. Crosswhite several days

    later, after Ms. Crosswhite questioned Jodi's husband about her sleeping and activity.

    She was angry that Ms. Crosswhite was "going behind her back." Id.)

           Based on this and other evidence, the ALJ found that Ms. Crosswhite was "very

    involved with Jodi." CP at 37 (Finding of Fact (FF) 18). He found that Ms. Crosswhite

    was "concerned with Jodi's medications" and identified the steps she had taken to

    determine whether Jodi was taking more medication than she should. CP at 38 (FF 19).

    He found that Ms. Crosswhite "was afraid for Jodi's health and believed that she was not

    telling the doctor the truth about her condition and what she was eating." Id. (FF 21).

           He entered the following additional findings and conclusions: 8


    Jodi's statement that she was "emotionally destroyed." CP at 68, 73. Some of Ms.
    Withrow's notes related to Jodi's report of an abusive past are redacted.
           8
             In reviewing both the initial and final orders, we treat mislabeled findings of fact
    or conclusions of law as what they actually are, and review them accordingly. Willener v.

                                                 28
II
'




I
I    No. 33718-9-111
I
ii   Crosswhite v. DSHS


            The Appellant did yell at the client, Jodi on August 1, 2013. She was
I           concerned that Jodi had failed to notify the doctor of her actual condition.
            ... She also told Jodi, "I'm not going to sit around and watch you kill
j           yourself. I'm calling my boss and just quit."


I    CP at 40 (Conclusion of Law (CL) 10).


I           The Department did not present any testimony or evidence that established
            that the Appellant knew or should have known what the outcome of her
            verbal statements would be. There was also no testimony or evidence that
            there was harm, injury or negative outcome. The Appellant was seeking a
            positive outcome for Jodi by her actions to assure that she was receiving the
            proper medical care.

     Id. (CL 12).

            The Appellant's actions are consistent with a person trying to make sure the
            client is being truthful with the doctor about her health .... The Appellant's
            intent [i]s substantiated by her testimony and the abundance of supporting
            testimony is that she had the best interest of her clients at heart.

     Id. (CL 13).

            [T]he Appellant's action was not intended to inflict injury but rather in
            frustration with the client's lack of truthfulness with her doctor and the
            consequences to the client of not being truthful.

     CP at 41 (CL 16).

           The ALJ concluded the Department failed to establish by a preponderance of the

     evidence that Ms. Crosswhite acted in a willful manner intended to harm, injure or cause

     a negative outcome to Jodi. CP at 41 (CL 14).

           The ALJ's findings that Ms. Crosswhite did not knowingly inflict injury but acted


     Sweeting, 107 Wn.2d 388,394, 730 P.2d 45 (1986).

                                                  29
I
    No. 33718-9-111
    Crosswhite v. DSHS


    out of concern and frustration is supported by Ms. Crosswhite's explanation of her

    actions. Evidence from Ms. Munoz and the six defense witnesses provided substantial

    support for her explanation of the concerns that motivated her to speak out, and her

    intentions.

           We note that the ALJ did not identify which of his findings were based

    substantially on credibility of evidence or demeanor of witnesses, which is one of the

    order drafting requirements imposed by RCW 34.05.461(3). He should have. The

    absence of such an identification matters on review if a finding could have been based on

    something other than weighing live witness testimony. Our concern in reviewing agency

    action is to reach a just result, however, and to that end we will rely on the best informed

    findings in the record. Where findings were necessarily based on weighing live witness

    testimony, we will treat them as such even if the order drafting requirements ofRCW

    34.05.461(3) have not been satisfied.

           The review judge either dropped the ALJ's findings as to Ms. Crosswhite's

    concerns, motives, and intent from the final order or indicated that they were merely Ms.

    Crosswhite's testimony. She failed to explain why the ALJ's assessment of the

    witnesses' testimony on this primary issue of Ms. Crosswhite's concerns, motives and

    intent should be rejected, other than to make different, unsupported findings that Ms.

    Crosswhite engaged in an unrelenting 30- to 45-minute verbal assault on Jodi.




                                                 30
No. 33718-9-111
Crosswhite v. DSHS


                 2. Substantial evidence does not support the finding of a 30-
                                  to 45-minute verbal assault

       In applying the Department's regulatory definition of ''willful," the review judge

found that Ms. Crosswhite did more than loudly and rudely demand to know what Jodi

disclosed to her doctor before being asked to stop by Ms. Gonzalez. She found that Ms.

Crosswhite continued to yell at Jodi for 30 to 45 minutes outside. She found that during

this extended period of seeing Jodi cry, Ms. Crosswhite knew or should have known that

she was inflicting injury or a negative outcome. E.g., CP at 219-20 (CL 8) ("After

yelling at Jodi in the waiting room, the Appellant continued to yell at her for 30 to 45

minutes in the parking lot."); CP at 220 (CL 10) (When Jodi started to cry, the Appellant

should have known that she should stop ... [S]he should not have continued to yell at her

for another 30 to 45 minutes."); CP at 221 (CL 12) ("The Appellant could see that her

yelling resulted in Jodi becoming upset, and did not stop her verbal assault."). If

supported by the evidence, these findings could justify an inference that Ms. Crosswhite

recognized at some point that she was inflicting injury.

       But the only evidence that Ms. Crosswhite yelled at Jodi after leaving the doctor's

office was the testimony of Debra Madill, the doctor's receptionist, that she had been able

to see through the medical office window that Ms. Crosswhite continued to yell at Jodi

for another half hour to 45 minutes. 9 This contention was raised for the first time at the


       9
           Most of the evidence was that Jodi and Ms. Crosswhite were outside for 20

                                              31
No. 33718-9-III
Crosswhite v. DSHS


hearing, which took place almost six months after the August 1 doctor's appointment.

Four months before that, in late September 2013, Ms. Madill had been asked to prepare a

sworn declaration as to what she saw, in which she stated that Ms. Crosswhite yelled at

Jodi in the waiting room but said nothing about seeing yelling continue outside. Ms.

Madill's co-workers-the two employees who actually went out to check on Jodi and Ms.

Crosswhite-did not witness Ms. Crosswhite yell at Jodi outside.

       Most inexplicable about the review judge's finding that Ms. Crosswhite berated

Jodi for as much as 45 minutes after leaving the office is that it is contradicted by Jodi's

own statements when interviewed by Ms. Withrow. Ms. Withrow testified that when

interviewed, Jodi told her that after Ms. Gonzalez told Ms. Crosswhite to "[s]top this,"

Ms. Crosswhite "quit." CP at 101. She then took Jodi outside.

       Jodi's report, reproduced above, was that once outside, Ms. Crosswhite tried to

calm her down, explaining that she cared about Jodi and was concerned about her health.

Jodi reported that she continued to cry, which is not inconsistent with the conversation as

Jodi describes it. She reported to Ms. Withrow that when medical staff came out to check

on her she told them she was okay. The review judge's finding is also irreconcilable with

Jodi's report to Ms. Munoz on the afternoon of the altercation that she and Ms.


minutes before being checked on by staff. See CP at 68 (case note of Susi Munoz report),
87 (testimony of Ms. Crosswhite), 101 (testimony of Ms. Withrow of what she was told
by Jodi). Ms. Gonzalez stated when interviewed that she checked on Jodi after a "few
minutes;" she testified at the hearing that it was 15 or 30 minutes. CP at 103, 120.

                                             32
No. 33718-9-111
Crosswhite v. DSHS


Crosswhite were going to try to work through the issue.

       Viewed in light of "the whole record" as required by the AP A, substantial

evidence does not support the review judge's findings that Ms. Crosswhite's culpability

can be inferred because she continued to yell at Jodi, despite Jodi's crying, for 30 to 45

minutes.

       This case is akin to Raven v. Department ofSocial & Health Services in the

respect that Ms. Crosswhite exercised poor judgment in acting on her concerns as she did.

177 Wn.2d at 834. ("[I]t is without question that Raven could have made better decisions

in some areas and that she exercised poor judgment in meeting her mandates under

professional standards in others. But the evidentiary record here cannot sustain a finding

[of] ... neglect" against Raven.). The record does not support the Department's finding

that Ms. Crosswhite abused a vulnerable adult. We reverse the finding.

                                     III. Attorney fees

       Ms. Crosswhite requests an award of costs and reasonable attorney fees on appeal

under the "Equal Access to Justice Act" (EAJA), RCW 4.84.340-.360. Under RAP

18. l(a), a party may recover attorney fees on appeal if authorized by applicable law.

Under the EAJA, "a court shall award a qualified party that prevails in a judicial review

of an agency action fees and other expenses, including reasonable attorneys' fees, unless

the court finds that the agency action was substantially justified or that circumstances

make an award unjust." RCW 4.84.350(1). No challenge is raised to Ms. Crosswhite's

                                             33
No. 33718-9-111
Crosswhite v. DSHS


status as a qualified party. But the Department argues that in the event Ms. Crosswhite

prevails, we should hold that its actions were nonetheless substantially justified because it

investigated Ms. Crosswhite only after receiving a complaint; it was statutorily required

to investigate; it has a duty to put the interests of vulnerable adults above the interests of

caregivers; and it relied on language in Washington cases that was supportive of its

position. Br. ofResp't at 37-38 (citing Goldsmith, 169 Wn. App. at 577-78, 585). It was

also following a duly-adopted rule interpreting a statute that it enforces and interprets. Id.

at 36.

         We agree with the Department that in these circumstances, it should not be chilled

from investigating incidents in the future out of fear that we will find its actions to be

erroneous and award attorney fees. We find substantial justification and deny the request

for an award of attorney fees.


                                                    2?dMw~. ~-
                                                          Siddoway, J.
                                                                                 1




I CONCUR:




                                              34


                                                                                                 I
                                        33718-9-III

       KORSMO, J. (dissenting) -   While I had believed that public shaming largely had

disappeared with the end of Puritan government in New England, the majority appears to

give it new life whenever a boundary-challenged busybody claims to be acting in the

victim's best interests. Since abusers in many different relationships frequently claim

their abuse was intended to help the victim, I think the majority goes too far, ruining an

otherwise fine opinion that provides some clarity and guidance to a problem area in need

of both. However, the administrative triers of fact should be the ones who apply that new

standard to the facts of this case, rather than a reviewing court a couple steps removed

from the fact finding process. Therefore, I would remand for a hearing under the new

standard and not address the sufficiency claim. Nonetheless, I also believe that the

evidence would support a finding of abuse. For both reasons, I respectfully dissent.

      Typically when an administrative hearing is conducted under the wrong process or

the wrong evidentiary standard, we reverse for a new consideration of the appropriate

standard. Jenkins v. DSHS, 160 Wn.2d 287, 302-03, 157 P.3d 388 (2007) (WAC

invalidated; remand for hearing); Arishi v. Wash. State Univ., No. 33306-0-III (Wash. Ct.

App. Dec. 1, 2016), http://www.courts.wa.gov/opinions/pdf/333060_pub.pdf (hybrid

administrative process authorized by a WAC invalidated; case remanded for full statutory
No. 33718-9-111
Crosswhite v. DSHS


hearing). The same rule applies for a bench trial. E.g., Wold v. Wold, 7 Wn. App. 872,

877,503 P.2d 118 (1972) (inadequate CR 52 findings require remand to trial court for

either (1) new argument, (2) new findings, or (3) new trial). We should also remand this

case. The analysis from both triers of fact unsurprisingly tracked the elements of the case

as defined in the now-defunct WAC provision. They should be given the opportunity to

find the facts under our new standard, just as the Department of Social and Health

Services and Ms. Crosswhite should be given the opportunity to argue this case under

that standard.

       The majority avoids the necessity of remand by ruling that the evidence was

insufficient to support the finding of abuse under the new standard. This misses the

point. The purpose of evidentiary sufficiency review is to ensure that enough evidence

was presented to meet the required burden of proof and avoid sending an insufficient case

to the trier of fact. Jackson v. Virginia, 443 U.S. 307, 316-19, 99 S. Ct. 2781, 61 L. Ed.

2d 560 (1979). Deference is accorded the factfinder's view of the evidence. Id. at 319. 1


       1
         The majority's foray into appellate court fact finding is totally at odds with
sufficiency review because it engages an appellate court in a fact finding function rather
than a review function. Here, the Washington Administrative Procedures Act, ch. 34.05
RCW, recognizes only two factfinders--the ALJ and the review judge. It does not
recognize this, or any other appellate court, as an additional factfinder. We must defer to
the review judge's view of the evidence rather than reweigh the evidence with the ALJ's
view of the evidence in mind. If the review judge served an appellate function rather
than as a factfinder, perhaps this exercise could be justified. However, since the review
judge is a second factfinder, the majority's approach mistakenly focuses on the ALJ's
findings rather than those of the review judge.

                                             2
No. 33718-9-111
Crosswhite v. DSHS


Thus, evidentiary sufficiency review measures the case as it actually was tried with a bias

in favor of the factfinder's construction of the evidence. We have no basis for

considering whether the evidence meets the appropriate standard when no one has

attempted to prove a case in accordance with that standard.

       But even if we are to undertake that analysis here, the evidence still supports the

finding of abuse. As the majority notes at page 9, RCW 74.34.020(2) in relevant part

defines "abuse" as a "willful action" "that inflicts injury" "on a vulnerable adult." The

majority recasts the statute, however, to convert a "willful action" into the purposeful

infliction of injury. The primary problem with this approach is that the legislature

expressly limited the willfulness component to the action (i.e., it was not a negligent act)

rather than to the outcome of the action. The majority justifies its approach by relying on

a criminal nonsupport prosecution, State v. Bauer, 92 Wn.2d 162, 595 P.2d 544 (1979).

Bauer cuts both ways in this circumstance. Properly construed, it better supports my

view of the statute.

       The criminal nonsupport statute punished anyone who, "[ w ]ilfully omits, without

lawful excuse, to furnish necessary food ... for his or her child." Former RCW

26.20.030(l)(b) (1973). Bauer noted that most commonly, "wilful" was used "to denote

an act which is voluntary or knowing." 92 Wn.2d at 167. "The key to judicial

construction of the term, however, lies in its legislative context." Id. Since the statute

already contained an "element of lack of lawful excuse," the court did not need to

                                              3
No. 33718-9-111
Crosswhite v. DSHS


"construe" a mental element into the meaning of "wilful." Id. at 167-68. The court

noted:

         The focus of the statute is on the lack of a lawful excuse. Any malice on
         the part of the parent is irrelevant. The intent of the legislature thus appears
         to be to punish those parents who knowingly fail to support their children
         where they have no lawful excuse, such as economic inability, for doing so.
         The focus is not on the parent's malicious state of mind, but rather on their
         knowing conduct and lack of excuse.

Id. at 168. Bauer, as the majority properly does, then found this approach consistent with

the definition of "wilful" under the then-new criminal code. Turning to that definition,

the court noted that "wilful" was satisfied "if a person acts knowingly with respect to the

material elements of the offense." Id. It then applied the willfulness definition to the

elements of the nonsupport statute such as food, clothing, shelter, medical needs, and

financial support. Id.

         The approach Bauer took to construing the nonsupport statute was entirely correct.

The willfulness element of that former statute applied to the parent's omissions-what

did the parent fail to provide that should have been provided? The legislature laid out the

omissions it was concerned with and the mental state was properly focused on them.

Here, however, the legislature has set forth a different element to which willfulness

applies--the action in question that leads to one of the four prohibited results. 2 Unlike



         2
         Grammatically, the word "willful" is used as an adjective in the abuse definition
statute and modifies the word "action." In the former nonsupport statute, "wilfully" was

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Crosswhite v. DSHS


the failure to act at issue in the nonsupport statute, the legislature has not applied

willfulness to the outcome of the willful abuse. If that body had desired that abuse would

exist only when the actor intended the outcome, as well as the action, it could easily have

said so. It did not. Instead, the only part of the statute that needs to be willful is the

action that brings about the prohibited outcome.

       The regulation, as construed by the review judge, correctly set forth the legislative

intent requiring a willful action as the cause of the victim's harm. WAC XXX-XX-XXXX

also added a foreseeability requirement that the perpetrator "knew or reasonably should

have known," that the willful action would cause harm. This reading of the legislation is

consistent with the longstanding interpretation of "willful" as including knowledge about

the result of the action. However, knowledge of the reasonable outcome of the action is

different than intending that outcome. That difference is the primary reason I disagree

with the majority's construction of the statute.

       Thus, Ms. Crosswhite's good intentions are not relevant to the inquiry here, any

more than they are in any other abuse case. 3 Ms. Crosswhite agreed that she screamed at

Jodi in the doctor's office. A reasonable person should understand that angrily lecturing


used as an adverb modifying the transitive verb "omits." Understandably, the modifier
then also had to apply to the objects of that transitive verb (food, shelter, etc.).
       3
         In a more perfect legislative scheme, the good intentions would be mitigating
evidence to be considered when deciding how, if at all, to sanction Ms. Crosswhite for
her misbehavior. The current draconian approach costs an "abuser" her career for one
mistake without consideration of the circumstances.

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No. 33718-9-III
Crosswhite v. DSHS


an adult in public, particularly in sharing knowledge of the victim's intimate secrets with

others, would cause injury. Ms. Crosswhite intentionally, purposefully, and willfully

attempted to embarrass Jodi into changing her behavior. The review judge could

properly conclude that this behavior was abusive. The evidence supports that

determination.

       Ms. Crosswhite was hired as a caregiver to provide services to Jodi such as

transportation, food preparation, and housework. She was not hired as a doctor, a

personal nurse, or a scold. When Ms. Crosswhite stepped outside her official duties, she

was on very thin ice. When she then performed that self-assumed function in a

completely unprofessional manner, she hurt the person she was supposed to be helping.

Instead of acknowledging her mistake, she has attempted to defend on the basis that she

took her action in the best interests of her victim. While our statutes ought to take

motivation into account when assessing sanctions, they currently do not. But that

omission does not therefore require us to read good motives into the statute as a defense

to an allegation of abuse any more than we would in an assault, homicide, or harassment

case. The attacker does not get to define what is in the best interests of the victim, let

alone defend on that basis. 4



       4
         This recalls to mind the Vietnam era justification for atrocities committed against
the citizens of South Vietnam: "It became necessary to destroy the town to save it."
Major Describes Move, N.Y. TIMES, Feb. 8, 1968, at 14.

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No. 33718-9-111
Crosswhite v. DSHS


       We should either be remanding this case for further proceedings under a correct

interpretation of the statute, or we should be affirming. Because the majority reverses, I

respectfully dissent.




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