       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



PATHFINDER HOUSE ADULT FAMILY                        No. 72435-5-1
HOME; NANCY MEYER; TIMOTHY
MEYER; and KERRI BROOKS,                             DIVISION ONE


                     Appellants,

              v.



STATE OF WASHINGTON,                                 UNPUBLISHED
DEPARTMENT OF SOCIAL AND
HEALTH SERVICES,                                     FILED: November 24, 2014

                      Respondent.



       Cox, J. — Pathfinder House Adult Family Home, Nancy Meyer, Tim

Meyer, and Kerri Brooks (collectively "Pathfinder House") appeals the superior

court's order on judicial review. The order affirms the Review Decision and Final

Order of March 30, 2012 of the Department of Social and Health Services Board

of Appeals. That review decision and final order reverses the initial decision of

the administrative law judge and affirms the decisions of DSHS to issue its

Summary Suspension, License Revocation, and Stop Placement Order

Prohibiting Admissions regarding Pathfinder House Adult Family Home and to

issue findings of neglect and abuse against the Meyers and Brooks individually.

Because Pathfinder House fails in its burden to show that the review decision

and final order is invalid, we affirm.
No. 72435-5-1/2


      In 2005, Nancy Meyer obtained a license to operate Pathfinder House

Adult Family Home in Bow, Washington. She lived in the home with her husband

Tim Meyer and their adult son Tommy. Tommy has Down syndrome.

      In February 2009, five developmentally disabled residents lived at the

home, including one resident named Tyler. The residents lived in the basement,

and the Meyers and Kerri Brooks, a caregiver at the home, lived upstairs.

      On February 23, the incident at the center of this case took place. One

resident came upstairs from the basement and told Brooks that something

inappropriate was or had been going on downstairs between Tyler and Tommy.

Specifically, Tyler had allegedly rubbed his private parts against Tommy either

while they were dancing or under other circumstances, in a manner that could be

described as "dry humping" or mock intercourse. The contact did not appear to

involve any touching with the hands or any skin-to-skin contact.

       Neither Tim Meyer nor Brooks reported this incident to DSHS's hotline, to

anyone who worked either for DSHS or with the residents, or to law enforcement.

Nancy Meyer, who had been out of town, learned of the incident when she

returned on February 27. She did not report the incident to the DSHS hotline, to

Adult Protective Services (APS), or to law enforcement at that time. Instead, she

responded by keeping Tommy upstairs when Tyler was home and by scheduling

an appointment for Tyler with a community mental health agency.

       Following Tyler's appointment at the agency, a therapist reported the

incident to APS, which forwarded the report to DSHS Residential Care Services.

Law enforcement began an investigation, and Residential Care Services
No. 72435-5-1/3


conducted an adult family home licensing investigation. DSHS found violations

of four adult family home licensing regulations as a result of its investigation.

       On May 7, DSHS served Nancy Meyer with a Notice of Summary

Suspension, License Revocation, and Stop Placement Order Prohibiting

Admissions. Nancy Meyer requested an administrative hearing to contest the

enforcement action.

       Additionally, after reports of verbal abuse and neglect, DSHS's Resident

and Client Protection Program began its own investigation of the individuals

working at Pathfinder House Adult Family Home. On October 1, DSHS issued

Notice of Preliminary Finding letters to Nancy Meyer, Tim Meyer, and Kerri

Brooks based on this investigation. DSHS found that that each of them had

neglected vulnerable adults, and it also found that Brooks had abused vulnerable

adults. They each requested an administrative hearing to contest DSHS's

findings against them.

       An ALJ consolidated the enforcement matter with the three resident and

client protection matters. These consolidated matters were heard over the

course of nine days in 2010. In the Initial Order dated February 4, 2011, the ALJ

reversed the revocation of the adult home license and also overturned the

findings of neglect and abuse.

       DSHS petitioned for review of the initial order. Pathfinder House did not

seek cross-review. The Board of Appeals review judge reversed the initial order

in the review decision and final order. The review judge affirmed the revocation

of the adult home license and reinstated the findings of abuse and neglect.
No. 72435-5-1/4



       Pathfinder House petitioned for review by the superior court. The superior

court affirmed the review decision and final order.

       Pathfinder House appeals.

                               SCOPE OF REVIEW


      As an initial matter, DSHS argues that this court should disregard most of

Pathfinder House's assignments of error. Because Pathfinder House failed to

raise in the trial court most of the 190 assignments of error it makes in this

appeal, we limit our review to assignments of error 180 to 190. We decline to

address the other assignments.

       Under RAP 2.5(a), an "appellate court may refuse to review any claim of

error which was not raised in the trial court," subject to certain limited exceptions

that do not apply here. "The rule reflects a policy of encouraging the efficient use

of judicial resources."1 It provides an opportunity to the lower tribunal to correct

errors and avoid an appeal.2

       Here, the superior court expressly determined that, while findings of fact

60 and 61 of the review decision and final order were implicitly challenged, "No

other findings were challenged."3 Our review of the record confirms that

determination.

       Here, only assignments of error 180 to 190 in Pathfinder House's opening

brief in this appeal relate to findings of fact 60 and 61 of the review decision and


       1 State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988).

       2 See id.

       3 Clerk's Papers at 181.
No. 72435-5-1/5


final order. The remaining assignments of error, 1 to 179, relate to findings of

fact that were not challenged below. Thus, they are not properly before this

court.


         Pathfinder House argues that there are "no rules that apply to judicial

appeals from administrative orders" and that the cases cited by DSHS "are

inapplicable because they are not cases of appeal to superior court." But

Pathfinder House fails to provide any authority that this difference in the

procedural posture matters. Moreover, although the superior court was sitting in

an appellate capacity, the principle of RAP 2.5 is the same. It promotes judicial

economy. For these reasons, we reject this argument.

         Pathfinder House also argues that it did object to these findings of fact at

the superior court. For support, it cites to its reply brief in the superior court.

This misses the mark for two reasons. First, in this reply brief, Pathfinder House

expressly conceded that its opening trial brief did "not identify specifically

challenged findings of fact."4 Second, the objections made in the reply brief were

both too late and unsupported by argument. Pathfinder House merely attached a

list of challenged findings and stated that "virtually all of [them] flow from the

reviewing officer's credibility determination in FF 60-61 ."5 For these reasons, we

also reject this argument.




         4 id at 163.

         5 Id. at 165.
No. 72435-5-1/6


                       RCW 34.05.570—JUDICIAL REVIEW

       Pathfinder House argues that the review decision and final order is invalid.

Because Pathfinder House fails in its burden to show that the review decision

and final order is invalid for any reason, we disagree.

       This court's review of an agency action is governed by the Administrative

Procedure Act (APA), chapter 34.05 RCW.6 This court reviews the review

judge's final order, not the ALJ's decision or the superior court's order.7 We

review the record before the agency.8

       This court reviews de novo conclusions of law.9 We review factual

determinations from a final administrative decision under the substantial

evidence standard.10 Unchallenged findings are verities on appeal.11

       RCW 34.05.570(3) provides the specific grounds for which a reviewing

court may reverse an administrative decision. The party seeking relief bears the

burden of demonstrating the invalidity of the agency action.12




       6 Olympic Healthcare Servs. II LLC v. Dep't of Soc. & Health Servs., 175
Wn. App. 174, 180, 304 P.3d 491 (2013).

       7 id, at 181.

       8 Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).

       9 Olympic Healthcare. 175 Wn. App. at 181.

       10 Martini v. Emp't Sec. Dep't, 98 Wn. App. 791, 795, 990 P.2d 981 (2000).

       11 Tapper, 122 Wn.2d at 407.

       12 Olympic Healthcare. 175 Wn. App. at 180.
No. 72435-5-1/7


       We note that Pathfinder House fails, with a limited exception in its reply

brief, to specify in its briefing to this court which of the subsections of RCW

34.05.570(3) are at issue. It sought to cure this defect in response to questioning

at oral argument. Specifically, it identified subsections (c), (d), (e), and (i) as the

legal bases for its arguments. Moreover, it admitted that its arguments overlap in

these subsections. With these clarifications in mind, we address these

overlapping arguments.

           RCW 34.05.570(3)(d) - Erroneous Interpretation of the Law

       Pathfinder House argues that relief is warranted because the review judge

"confuse[d] the standard under which the initial order [was] to be reviewed" and

because the review judge "improperly limited the scope of her review." We

disagree with both arguments.

       Under RCW 34.05.570(3)(d), the court shall grant relief from an agency

order if the agency has erroneously interpreted or applied the law.

       First, Pathfinder House argues that the review judge confused the

standard of review. Specifically, it contends that the review judge relied on a

former version of WAC XXX-XX-XXXX and did not conduct a de novo review.

       WAC XXX-XX-XXXX(1) and RCW 34.05.464(4) discuss the authority of the

review judge.

       WAC XXX-XX-XXXX(1) provides:

       The review judge has the same decision-making authority as the
       ALJ. The review judge considers the entire record and decides the
       case de novo (anew). In reviewing findings of fact, the review
       judge must give due regard to the ALJ's opportunity to observe
       witnesses.
No. 72435-5-1/8


       RCW 34.05.464(4) provides:

      The reviewing officer shall exercise all the decision-making power
      that the reviewing officer would have had to decide and enter the
      final order had the reviewing officer presided over the hearing,
      except to the extent that the issues subject to review are limited by
      a provision of law or by the reviewing officer upon notice to all the
      parties. In reviewing findings of fact by presiding officers, the
      reviewing officers shall give due regard to the presiding officer's
      opportunity to observe the witnesses.

       Here, the review judge applied the proper standard of review. The review

decision and final order consistently identifies these provisions, WAC 388-02-

0600(1) and RCW 34.05.464(4), as providing the relevant authority. It correctly

states that the review judge "has the same decision-making authority when

deciding and entering the Final Order as the ALJ had while presiding over the

hearing and deciding and entering the Initial Order. . . ."13 And it explicitly notes

that administrative review is different from appellate review, because a review

judge does not have the same level of deference.14 Further, it expressly states,

"Because the ALJ is directed to decide the issues de novo, the undersigned

has also decided the issues de novo."^5 In short, the record shows that the

review judge properly applied a de novo standard of review.

       Pathfinder House claims that although the review judge "appears to give

credence to the proper standard . . . she nevertheless relied on the substantial

evidence test of the former WAC." For support, it quotes a portion of the review



       13 Administrative Record at 91.

       14 Id

       15 Id. at 92 (emphasis added).

                                              8
No. 72435-5-1/9


decision and final order stating, "'After review, the undersigned left unchanged

those Findings of Fact supported by substantial evidence based on the entire

record.'"

       But Pathfinder House fails to point out that the review decision and final

order then states, "Where findings were not supported by substantial evidence

based on the entire record they have been stricken or amended. Where

additional findings are necessary, they have been added or adopted findings

supplemented."

       Essentially, the review judge left unchanged those findings she agreed

with, and she modified or changed findings that she did not agree with. This

approach reflects application of the proper standard of review.

       Pathfinder House next argues that the review judge confused the standard

of review "by appearing to claim that the de novo requirement applied to issues."

Pathfinder House argues that the law requires the review judge "to decide the

'case' anew, not just the 'issues.'" This makes no sense.

       The review judge's use of the word "issues" rather than "case" does not

show that she misunderstood her legal authority. It is apparent that the review

judge considered the case de novo. Significantly, in the review decision and final

order, she stated:

              Review Judges must personally consider the whole record or
       such portions of it as may be cited by the parties. Consequently,
       the undersigned has considered the adequacy, appropriateness,
       and legal correctness of all Initial Findings of Fact, Conclusions
       of Law, admitted evidence, any previous proceedings and
       orders, regardless of whether any party has asked that they be
       reviewed. Because the ALJ is directed to decide the issues de
        novo, the undersigned has also decided the issues de novo. In
No. 72435-5-1/10


       accordance with RCW 34.05.464(4) and WAC XXX-XX-XXXX(1), the
       undersigned has given due regard to the ALJ's opportunity to
       observe the witnesses, but has otherwise independently
       decided the case.[™]

In short, this argument is without merit.

       Pathfinder House also argues that the review judge "misunderstands the

WAC." It points out that the review judge referred to the authority of the ALJ as

the basis for her authority. And Pathfinder House argues that the review judge's

authority is explicitly granted, rather than derived from the ALJ. Regardless of

this reference by the review judge, this record shows that she applied the correct

standard of review. This argument to the contrary is unpersuasive.

       In sum, Pathfinder House fails to show that the review judge applied the

wrong standard of review in this case.

       Second, Pathfinder House argues that relief is warranted because the

review judge improperly limited the scope of her review. Specifically, it contends

that the review judge "explicitly refused to consider issues raised by the

appellants." The record does not support this argument and we reject it.

       To support this argument, Pathfinder House points to the following portion

of the review decision and final order that states:

       The Department is correct that the Appellants cannot appeal any
       additional findings of fact and conclusions of law in the Initial Order,
       and may only respond to those challenged by the Department. The
       portion of the Appellants' response that responds to the
       Department's challenges to Initial Findings of Fact is accepted and
       has been considered. To the extent that the Appellants seek to




       16 Id. (emphasis added) (citations omitted).

                                             10
No. 72435-5-1/11


       appeal any aspect of the Initial Order, that appeal needed to be
       filed in compliance with the timelines in WAC XXX-XX-XXXX.I17'

Pathfinder House asserts, "Implicit in the foregoing quotation is that the [review

judge] did not in fact consider the entire record, and only a portion of [Pathfinder

House's] response."

       A fair reading of the quoted passage does not support this argument.

Clearly, the judge referred in this passage to the fact that the Department

initiated review of the initial order and Pathfinder House did not seek cross-

review. Having failed to do so, the issues that were properly before the review

judge were defined by the Department's challenges and Pathfinder House's

responses to them.

       This, of course, has nothing to do with whether the review judge failed to

consider the entire record for the matters properly before her. She expressly

stated that she considered the written transcript of the hearing, the reconstructed

record, the documents admitted as exhibits, the initial order, the petition for

review, and Pathfinder House's response. She also expressly stated that she

considered "all Initial Findings of Fact, Conclusions of Law, admitted evidence,

any previous proceedings and orders, regardless of whether any party has

asked that they be reviewed.'™ Pathfinder House does not identify any "issues

raised by appellants" that were not considered.




       17 ]d at 90.

       18 ]d at 92 (emphasis added).


                                             11
No. 72435-5-1/12


       In sum, Pathfinder House fails to show that the review judge improperly

limited the scope of her review for the matters that were properly before her.

       Pathfinder House argues that the WAC cited by the review judge, WAC

XXX-XX-XXXX, which provides that each party's request for review must meet

certain deadlines, conflicts with RCW 34.05.464(4), which provides that review

judges "shall exercise all the decision-making power." It also claims that this

WAC conflicts with WAC XXX-XX-XXXX(1), which provides that a review judge

decides the case de novo.

       But Pathfinder House fails to explain why this supposed conflict, if such a

conflict exists, requires this court to grant relief. The review judge in this case

expressly considered all of the findings, conclusions, previous proceedings and

orders and considered the case de novo. Accordingly, we decline to address

these arguments further.

       Pathfinder House also argues that the review judge did not consider

Attachment B to its response, which contains a chart of the "origin of sexual

words used." It argues that "[t]here can be seen from the record (references to

Attachments C-G to appellants' response) of who used what terms." But the fact

that the review judge referred to attachments C to G does not mean that she

failed to consider Attachment B. More importantly, Pathfinder House fails to

make a persuasive case why the omission of mention of Attachment B shows

either that it was not considered or that Pathfinder House was prejudiced.

       Pathfinder House argues that evidence of the review judge's disregard of

its arguments is "her failure to include in her Review Decision and Final Order,


                                              12
No. 72435-5-1/13


significant portions of Appellant's Response to the Petition for Review" including

Attachment A, Attachment B, Appendix A, the Contents and list of Attachments.

To support this, Pathfinder House cites to the portion of the review decision and

final order that incorporates text from Pathfinder House's response to the petition

for review. The review judge properly identified this quoted text as Pathfinder

House's argument. The fact that the review judge did not also include the text

from the attachments and appendices in this quotation has no significance and

no demonstrable prejudice to Pathfinder House. This quotation was "for the easy

reference of the reader" and is not indicative of what the review judge considered

in her review.19 Thus, Pathfinder House fails to point to anything in the review

decision and final order suggesting that the review judge did not consider the

attachments or that certain items were excluded from review.

       In its reply brief, Pathfinder House argues that relief is warranted, for these

same reasons, under RCW 34.05.570(3)(c). That subsection provides that the

court shall grant relief from an agency order if it determines that the agency "has

engaged in unlawful procedure or decision-making process, or has failed to

follow a prescribed procedure."20 But because this claim is based on the same

arguments just discussed, and Pathfinder House candidly admitted at oral

argument that its arguments overlap, we reject this argument for the same

reasons.




       19 ]d at 2.

       20 RCW 34.05.570(3)(c).
                                             13
No. 72435-5-1/14


                    RCW 34.05.570(3)(e) - Substantial Evidence

       Pathfinder House argues that the review decision and final order is not

supported by substantial evidence in the record. We hold that the findings

properly before us for review and the final order are supported by substantial

evidence.


       Under RCW 34.05.570(3)(e), the court shall grant relief from an agency

order if "[t]he order is not supported by evidence that is substantial when viewed

in light of the whole record before the court . .. ." "'An agency order is supported

by substantial evidence if there is a sufficient quantity of evidence to persuade a

fair-minded person of the truth or correctness of the order.'"21 An appellate court

"will not 'disturb findings of fact supported by substantial evidence even ifthere is

conflicting evidence.'"22

       With respect to the license revocation, the review judge upheld the

enforcement action. It determined that Nancy Meyer violated four WACs and

that the remedies were appropriate.

       First, the review judge concluded that Nancy Meyer violated WAC 388-76-

10020, which requires the provider to have the "[understanding, ability,

emotional stability and physical health necessary to meet the psychosocial,

personal, and special care needs of vulnerable adults." The review judge



       21 Olympic Healthcare, 175 Wn. App. at 181 (internal quotation marks
omitted) (quoting Hardee v. Dep't of Soc. & Health Servs., 172 Wn.2d 1,7, 256
P.3d 339 (2011)).

      22 McClearv v. State, 173 Wn.2d 477, 514, 269 P.3d 227 (2012) (quoting
Merriman v. Cokelev, 168 Wn.2d 627, 631, 230 P.3d 162(2010)).


                                             14
No. 72435-5-1/15


concluded that Nancy Meyer violated this regulation when she failed to

"appropriately deal with . .. incidents of sexual and mental abuse," which showed

that she "does not possess the understanding to operate an adult family home."

       Second, the review judge concluded that Nancy Meyer violated WAC 388-

76-10620(2)(a) and (c). This regulation sets forth resident rights, including the

resident's right to "[cjhoose activities, schedules, and health care consistent with

his or her interests, assessments, and negotiated care plan," and the right to

"[m]ake choices about aspects of his or her life in the home that are significant to

the resident."23 The review judge concluded that Nancy Meyer violated this

regulation when she failed to allow three residents to have control over food

choices.

       Third, the review judge concluded that Nancy Meyer violated WAC 388-

76-10670(1), (2), (3), and (4), which provide for prevention of abuse. In general,

the review judge concluded that Nancy Mayer violated this regulation when she

failed to protect her residents from verbal confrontations and belittling behavior.

       Fourth, the review judge concluded that Nancy Meyer violated WAC 388-

76-10673(2)(a) and (b). This regulation provides for mandated abuse and

neglect reporting to DSHS.24 The review judge concluded that Nancy Meyer

violated this regulation because "she did not report sexual abuse to the

appropriate authorities when she became aware of the report that it occurred."




       23 WAC 388-76-10620(2)(a), (c).

       24 WAC 388-76-10673.


                                             15
No. 72435-5-1/16


       With respect to the allegations of neglect and abuse, the review judge

concluded that each appellant's conduct was negligent because "[flailing to take

any measures to protect the other residents in the adult family home from sexual

abuse is an act or omission that demonstrates a serious disregard of such

magnitude as to constitute a clear and present danger to a vulnerable adult's

health, welfare, or safety." Additionally, the review judge concluded that Ms.

Brooks mentally abused residents of the adult family home, because she yelled

at and belittled residents.


       These conclusions are supported by the findings of fact and, moreover,

are supported by substantial evidence in the record. In particular, they are

supported by the review judge's credibility determinations. In finding of fact 60,

the review judge agreed with the ALJ's determination that "the evidence supports

a finding that the statements attributed to the Appellants by Department

witnesses were made and were accurately documented."

       And in finding of fact 61, the review judge found that the Appellants' initial

statements were more credible than their later, conflicting testimony. She stated:

              The statements made by the Appellants were not hearsay.
       Some were made closer in time to the incident, some were made
       during the time period when the Department alleges the Appellants
       should have reported contact between Tommy and Tyler, and these
       statements were more credible than their later, conflicting,
       testimony. As told by the Appellants at the outset of the
       investigation, there was an instance of sexual contact between
       Tommy and Tyler on February 23, 2009. Mr. Meyer and Ms.
       Brooks learned of it that day. They told Mrs. Meyer of the incident
       when she returned from a trip on February 27, 2009. In response
       to the incident, Mrs. Meyer scheduled a counseling appointment for
       Tyler, and Mr. Meyer made the three responses outlined in Finding
       of Fact 26. Ms. Brooks told Heather Silva of the incident on March
       27, 2009. By the time of the RCCP investigations in July, the

                                             16
No. 72435-5-1/17


       Appellants had determined on a course of denying that the incident
       occurred. This meant that they had to deny the follow-up
       precautions they made. This meant that they had to deny
       statements they made to others verbally and in writing. At hearing,
       this meant that they "forgot" a number of conversations, even while
       "remembering" contemporaneous conversations. Their initial
       statements, both verbal and written are more credible than their
       later denials.[25]

       These findings are supported by substantial evidence in the record.

Further, other findings of fact were based on this credibility determination. The

review decision and final order stated that its findings were "primarily based [on]

the statements made by the Appellants to the Department witnesses." In

general, these other findings of fact show that the Meyers and Brooks knew

about the nonconsensual inappropriate sexual contact between Tommy and

Tyler, they failed to report it to DSHS or to legal authorities, and they put other

residents in the home at risk. And these findings support the decision to revoke

the adult family home license and the decision to issue findings of neglect and

abuse. In sum, substantial evidence supports the challenged findings and the

final order.

       Pathfinder House does not appear to contest that the alleged conduct

justifies the agency's action. Rather, it challenges the credibility of DSHS's

witnesses and argues that at least one of them lied. But this court must accept

the factfinder's views regarding the credibility of witnesses and the weight to be

given reasonable, but competing inferences.26 The review judge expressly



       25 Administrative Record at 89-90.

      26 Kittitas County v. Kittitas County Conservation, 176 Wn. App. 38, 48,
308 P.3d 745 (2013).
                                              17
No. 72435-5-1/18


determined that DSHS's witnesses were credible and that the appellants' "initial

statements, both verbal and written are more credible than their later denials."27

This court does not review such determinations.

                   RCW34.05.570(3)(i) - Arbitrary and Capricious

       Pathfinder House argues that the review judge was arbitrary and

capricious. We disagree.

       Under RCW 34.05.570(3)(i), the court shall grant relief from an agency

order if the order is arbitrary and capricious. "'Arbitrary and capricious action has

been defined as willful and unreasoning action, without consideration and in

disregard of facts and circumstances.'"28 "'Action taken after giving respondent

ample opportunity to be heard, exercised honestly and upon due consideration,

even though it may be believed an erroneous decision has been reached, is not

arbitrary or capricious.'"29 The scope of review under this standard is "very

narrow" and the party seeking to demonstrate that action is arbitrary and

capricious "must carry a heavy burden."30

       Here, Pathfinder House argues that the order is arbitrary and capricious

for several reasons.




       27 Administrative Record at 90.

       28 Heinmillerv. Dep't of Health, 127 Wn.2d 595, 609, 903 P.2d 433 (1995)
(quoting Pierce County Sheriff v. Civil Serv. Comm'n, 98 Wn.2d 690, 695, 658
P.2d 648 (1983)).

       29 id at 609-10 (quoting WA Med. Disciplinary Bd. v. Johnston, 99 Wn.2d
466, 483, 663 P.2d 457 (1983)).

       30 Pierce County Sheriff, 98 Wn.2d at 695.


                                             18
No. 72435-5-1/19



       First, it argues that the review judge failed to follow proper review

standards, failed to consider Pathfinder House's response, and failed to consider

Pathfinder House's challenge to the findings of fact. Because we already

addressed the substance of these arguments in prior portions of this opinion, we

reject them for the same reasons.

       Second, it argues that the "clearest example" that the order is arbitrary

and capricious is the review judge "turn[ing] a blind eye to the fact that [a DSHS

witness]. . . virtually lied" and, instead, finding that the witness had

misunderstood. As we already discussed, credibility determinations—and that is

what this is—are not reviewable. Thus, we reject this argument as well.

       Finally, Pathfinder House argues that the review judge misquoted the

record, which shows "a willingness to misread the record." But the changes to

the quotation by the review judge were insignificant. This argument is wholly

unpersuasive.

       To summarize, Pathfinder House fails to show the agency order is invalid

for any reason specified by the controlling statute. Accordingly, we conclude that

the review decision and final order is correct.

                                  ATTORNEY FEES


       Pathfinder House seeks an award of attorney fees on appeal as the

prevailing party under RCW 4.84.350. We deny its request.

       RCW 4.84.350(1) provides for an award of attorney fees to a prevailing

party "unless the court finds that the agency action was substantially justified or

that circumstances make an award unjust." It further provides, "A qualified party



                                              19
No. 72435-5-1/20


shall be considered to have prevailed ifthe qualified party obtained relief on a

significant issue that achieves some benefit that the qualified party sought."31

        Pathfinder House does not obtain any relief on any significant issue and is

not the prevailing party. Thus, it is not entitled to fees on appeal.

        We affirm the order on judicial review, which affirms the review decision

and final order of the DSHS Board of Appeals. We also deny Pathfinder House's

request for attorney fees on appeal.

                                                         ^7*,vT.
WE CONCUR:




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        31 RCW 4.84.350(1).

                                             20
