                                                                                                                 FILED
                                                                                                                    ED
                                                                                                         COURT OF APPEALS
                                                                                                               DIVISION 11
                                                                                                        20J5 ?AUG 1 2    12 : 1 4 9
                                                                                                                                .
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                                   DIVISION II

BABYSALOME T. GAMBLE,                                                              No. 44743- 6- 11


                                       Appellant,


          v.




WASHINGTON STATE DEPARTMENT OF                                               UNPUBLISHED OPINION
SOCIAL AND HEALTH SERVICES,


                                       Respondent.


          MELNICK,       J. —       Babysalome Gamble appeals the trial court' s dismissal                   of her


administrative appeal challenging the Department of Social and Health Services' s ( Department)

finding   that she   neglected      her daughter,      a vulnerable     adult.   The agency review judge applied

collateral estoppel and determined that the trial court' s neglect finding in a previous protection

order   proceeding    involving        Ms. Gamble        and   her daughter bound the agency.          Ms. Gamble


appealed to the trial      court, which affirmed.         She argues on appeal to this court that ( 1) collateral


estoppel should not apply and ( 2) the agency' s order is not supported by substantial evidence.

Because Ms. Gamble had an incentive to vigorously litigate the issue of neglect at the protection

order   proceeding,   and       in fact did   so, we   hold that   collateral estoppel applies.   Additionally, even

without applying collateral estoppel, the agency' s order is supported by substantial evidence of

neglect. We affirm.


                                                          FACTS


          Ms. Gamble is the           caretaker    for her     adult   daughter, JTR.     In 2004, Ms. Gamble' s


husband,'      JTR' s stepfather, was accused of raping JTR. As a result of those accusations, JTR' s

stepfather     pleaded    guilty to assaulting JTR.            The court issued a no contact order prohibiting


1
    At the time, Ms. Gamble         was not yet married        to JTR' s   stepfather.
44743 -6 -II



contact   between JTR         and    her    stepfather.    The    court rescinded     the   order    in 2006.   In 2007, Ms.


Gamble and JTR' s stepfather bought a house where they lived together with JTR and her

younger sister.




          In September 2010, the Department received a report alleging more abuse by JTR' s

stepfather on       JTR.     The report also alleged that Ms. Gamble was neglecting JTR by allowing

JTR to be      alone with     her    stepfather.    The Department investigated the allegations and obtained a


vulnerable        adult   protection       order   on    JTR' s behalf in     superior      court.    The protection order


included      a    finding    that    Ms.    Gamble       had    neglected    JTR.      It restrained her from having

unsupervised        contact    with     JTR.       Ms. Gamble objected to the court' s finding that she had

neglected     JTR.    She appealed this issue to our court. In re Ramos, noted at 162 Wn. App. 1038,

2011 WL 2639940.              We     affirmed      the   protection order,    including     the   neglect   finding.   Ramos,


2011 WL 2639940, at * 2.


          The Department also made an administrative finding that Ms. Gamble had neglected

JTR.2 This finding was based on Ms. Gamble' s failure to supervise JTR in JTR' s stepfather' s

presence.          Ms. Gamble         requested     a    hearing   to   contest   the   finding.       After a hearing, the

Administrative Law Judge ( ALJ)                    affirmed      the Department' s      neglect      finding.   Ms. Gamble


appealed to a review judge.


          The review judge determined that collateral estoppel applied because the trial court had

already determined during the protection order proceedings that Ms. Gamble had neglected JTR.

The judge therefore concluded that the trial court' s neglect findings were binding and affirmed

the ALJ' s order.


2
    This is    a   separate    proceeding from the              protection   order.     Under chapter 74.34 RCW, the
Department must investigate allegations of abuse or neglect and determine whether they are
 substantiated.
44743 -6 -II



         Ms.     Gamble      sought    review         of   the     review     judge'   s     order   in   superior   court.   The


Department       moved     for summary judgment, arguing that                     collateral       estoppel applied.     The trial


court granted the Department' s motion and dismissed the case. Ms. Gamble appeals.

                                                           ANALYSIS


I.        STANDARD OF REVIEW


         The Administrative Procedure Act ( APA), chapter 34. 05 RCW, governs our review of


agency    orders.    WAC 388 -02 -0640; Lynn                v.   Dep' t   of Soc. &    Health Servs.,        170 Wn. App. 535,

543 -44, 285 P. 3d 178 ( 2012).          A court may grant relief from an order if it determines that the

agency erroneously interpreted the law or the agency' s decision is not supported by substantial

evidence.       RCW 34. 05. 570( 3)( d), (      e).        The party asserting the invalidity of an order has the

burden    of   demonstrating     the   invalidity.         RCW 34. 05. 570( 1)(        a).    We sit in the same position as


the   superior court,      applying the APA           standards     directly    to the     administrative record.       Hardee v.


Dep' t of Soc. &     Health Servs.,     152 Wn. App. 48, 54, 215 P. 3d 214 ( 2009).

          We review legal conclusions de novo to determine whether the review judge correctly

applied   the law    and whether       the   findings      support      the   conclusions.      Hardee, 152 Wn. App. at 55.

Whether     collateral estoppel applies         is    an   issue   of   law   we review       de   novo.   Christensen v. Grant


County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 ( 2004).

          Where a party asserts that the agency' s decision is not supported by substantial evidence,

we    determine     whether    there is "`     a sufficient quantity of evidence to persuade a fair- minded

person of      the truth   or correctness of    the     order.'"        Kittitas County v. Kittitas County Conservation

Coal., 176 Wn.       App.     38, 47 -48, 308 P. 3d 745 ( 2013) (               quoting City of Redmond v. Cent. Puget

Sound Growth Mgmt Hearings Bd., 136 Wn.2d 38, 46, 959 P. 2d 1091 ( 1998)).                                           We view the


evidence       in the light .most favorable to '                 the party who prevailed in the highest forum that
                                                                    3
44743 -6 -II



exercised      fact -finding authority.'"           Kittitas County, 176 Wn. App. at 48 ( quoting City of Univ.

Place v. McGuire, 144 Wn.2d 640, 652, 30 P. 3d 453 ( 2001)).

II.      COLLATERAL ESTOPPEL


         First, Ms.       Gamble argues that collateral estoppel does not apply in this instance.3

Because the protection order proceedings involved full litigation of Ms. Gamble' s neglect of

JTR, we affirm.


         Initially, Ms. Gamble contends that the Department improperly raised this issue for the

first time     on appeal.      For support, she cites RCW 34. 05. 554, which states that issues not raised

before the agency may not be raised on appeal, and RCW 34.05. 558, which states that judicial

review of a disputed issue of fact must be confined to the agency record for judicial review. But

the review judge ruled on collateral estoppel during the administrative proceedings and Ms.

Gamble does not identify any issues of fact necessary for deciding this appeal that were not

raised   in the agency        record.    Ms. Gamble further argues that the review judge should not have

raised   the   question of collateral estoppel sua sponte.                   She fails to cite any authority in support of

this   contention.      See RAP 10. 3(       a)(   6); State     v.   Young, 89   Wn.2d 613, 625, 574 P. 2d 1171 ( 1978)


 quoting DeHeer          v.                Intelligencer, 60 Wn.2d 122, 126, 372 P. 2d 193 ( 1962) (
                              Seattle Post -                                                                       courts




may assume that where no authority is cited, counsel has found none)).




3 Ms. Gamble also argues that summary judgment is an improper procedure for resolving an
 administrative        appeal.     CR 81(      a)    states, "        Except where inconsistent with rules or statutes
 applicable     to   special proceedings,          these   rules shall govern all civil proceedings."     Judicial review

 of   the Department' s        orders   is   governed       by    the APA.     WAC 388 -02 -0640.     The APA does not
 state whether       summary judgment          proceedings are appropriate.             See RCW 34. 05. 510 -.598. Thus,

 summary judgment under CR 56 is not inconsistent with the APA.
                                                                        4
44743 -6 -II



           Collateral estoppel prohibits parties from relitigating issues in a subsequent proceeding.

Christensen, 152 Wn.2d at 306 ( quoting Rains v. State, 100 Wn.2d 660, 665, 674 P. 2d 165

 1983)).     The party seeking to apply collateral estoppel must show that ( 1) the earlier proceeding

decided the identical issue              presented       in the later proceeding, ( 2)          the earlier proceeding ended in a

judgment      on   the    merits, (      3) the earlier proceeding involved the party against whom collateral

estoppel     is   asserted,       and (       4)    no injustice occurs by the application of collateral estoppel.

Christensen, 152 Wn.2d                  at    307.    Ms. Gamble alleges that none of the requirements was met in

this case.


           Ms. Gamble first             argues       that the issues in     each   proceeding       were   different.   She asserts


that the issue in the protection order proceeding was whether a protection order was necessary

and the issue in the second proceeding was whether the neglect allegation was founded.

However, the trial          court       in the first proceeding decided Ms. Gamble                      neglected   JTR.   Ramos,


2011 WL 2639940,                 at *    2.        This issue is central to the current administrative proceedings.


Accordingly, the first element is met.

           The second and third elements are also met. The protection order proceedings ended in a

final judgment       on    the   merits.           Ramos, 2011 WL 2639940,          at *   1.    Ms. Gamble was a party to both

the protection order proceedings and these administrative proceedings.


           Finally, Ms. Gamble contends that applying collateral estoppel would work an injustice.

She argues that she did not have an incentive to vigorously litigate the issues in the protection

order proceedings.               But Ms. Gamble had similar incentives to litigate the issues in both the

protection        order   and    the     administrative       proceedings.         In both cases, a neglect finding would

result in Ms. Gamble losing her                       status as   JTR' s   caretaker.      WAC 388 -825 -385 ( providing that

the Department may terminate a caretaker' s contract under circumstances indicating, among
                                                                       5
44743 -6 -II



other   things,   neglect);       RCW 74. 34. 130 ( providing that the court may prohibit contact with the

vulnerable adult).



          The record indicates that Ms. Gamble contested the neglect finding throughout the

protection order proceedings.                 At the protection order hearing, Ms. Gamble was represented by

counsel    and    had       an   opportunity to testify.             Her attorney argued that Ms. Gamble had not

neglected JTR and objected to the court making a neglect finding. When the trial court made the

neglect   finding      over      her   objections,   Ms. Gamble           appealed   to this    court.   See Ramos, 2011 WL


2639940, at * 1.


          This situation is unlike the cases Ms. Gamble cites in her brief, Hadley v. Maxwell, 144

Wn.2d 306, 27 P. 3d 600 ( 2001),                 and    State   v.   Valdez, 148 Wn.2d 303, 59 P. 3d 648 ( 2002).           In


those cases, our Supreme Court held that it was unjust to apply collateral estoppel to bar

relitigation of issues decided in administrative proceedings. Hadley, 144 Wn.2d at 315; Vasquez,

148 Wn.2d         at   317 -18.         In Hadley, the defendant faced more serious consequences in the

subsequent trial court proceedings compared to the consequences in the administrative

proceedings.       144 Wn.2d           at   310, 315.   And in Vasquez, the purposes of the prior and subsequent


proceedings were            fundamentally        different.     148 Wn. 2d     at    317 -18.    Accordingly, the parties had

less incentive to vigorously litigate the issues in the                     earlier administrative proceedings.        Hadley,

144 Wn.2d at 315; Vasquez, 148 Wn.2d at 317 -18.


          By contrast, here, during the prior protection order proceeding, Ms. Gamble risked losing

not only her status as JTR' s caretaker, but her ability to contact her daughter without supervision.

Thus,    she   had     an   incentive to vigorously litigate the issue               and   in fact did   so.   The review judge


did not err by concluding that collateral estoppel applied.



                                                                      6
44743 -6 -II



IV.     FINDING OF FACT 58


        Ms. Gamble next argues that finding of fact 58 is not based on substantial evidence.

Finding of fact 58 states that the ALJ and review judge did not find Ms. Gamble credible when

she testified   that   she   did   not   believe JTR'     s stepfather assaulted      JTR.    This involves a credibility

determination. We        will not        disturb credibility determinations         on appeal.     Griffith v. Seattle Sch.


Dist. No. 1, 165 Wn. App. 663, 672, 266 P. 3d 932 ( 2011).

V.      SUBSTANTIAL EVIDENCE


        Finally, Ms. Gamble argues that the agency' s order is not supported by substantial

evidence.       Because the agency record as a whole, taken in the light most favorable to the

Department, establishes that Ms. Gamble neglected JTR by not adequately protecting her from

her stepfather, we disagree.


         Neglect" means


         a) a pattern of conduct or inaction by a person or entity with a duty of care that
        fails to provide the goods and services that maintain physical or mental health of a
        vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain
        to a vulnerable adult; or (b) an act or omission by a person or entity with a duty of
        care that demonstrates a serious disregard of consequences of such a magnitude as
        to constitute a clear and present danger to the vulnerable adult's health, welfare, or
         safety, including but not limited to conduct prohibited under RCW 9A.42. 100.
RCW 74. 34. 020( 12).          Here, even without relying on the trial court' s neglect finding in the

protection order proceedings, there is substantial evidence to support the agency' s order.

         The review judge found that Ms. Gamble, JTR' s caretaker, knew that for JTR' s safety

and   because     of   her disabilities, JTR         needed protection        and     a   caregiver' s   supervision.   The


review judge also found that Ms. Gamble knew of the accusations that JTR' s stepfather sexually

assaulted      JTR in 2004     and       that   he had   a conviction    for assaulting JTR.        Despite these facts, in


2007, JTR       and    Ms. Gamble          moved    in   with   JTR' s   stepfather   and younger sister.       During that
                                                                  7
44743 -6 -II



time,   Ms. Gamble left JTR in her             stepfather' s presence without adult supervision.          Ms. Gamble


testified that, between 2007 and 2008, JTR' s stepfather and younger sister picked JTR up from

school once or     twice     a month.    Ms. Gamble failed to sufficiently address the alleged abuse with

JTR     or question   her   directly   about   her interactions   with   her   stepfather.   Thus, there is substantial


evidence that Ms. Gamble knew of the risk of harm to JTR and failed to prevent physical or

mental    harm   or pain    to JTR.    See RCW 74. 34. 020( 12). We affirm.


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

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

2. 06. 040, it is so ordered.




We concur:




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