Opinion
No. 30249-7-II
Filed: August 31, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 01-2-00467-8. Judgment or order under review. Date filed: 03/21/2003. Judge signing: Hon. Richard a Strophy.
Counsel for Appellant(s), Marilyn R Gunther, Attorney at Law, 9416 S 248th St, Kent, WA 98030-4867.
Aziz Safouane (Appearing Pro Se), 20920 110th Ave S.E. #2001, Kent, WA 98031.
Sarah Safouane (Appearing Pro Se), 20920 110th Ave S.E. #2001, Kent, WA 98031.
Counsel for Respondent(s), Jarett A. Goodkin, Office of the Aty General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Sandra Daniella Schilling, Attorney at Law, 4150 85th Ave SE, Mercer Island, WA 98040-4020.
Aziz and Sarah Safouane requested an adjudication hearing to challenge a Department of Social and Health Services (DSHS) investigation that found they were alleged perpetrators of child abuse and neglect. DSHS and the superior court denied their request, on grounds of collateral estoppel, because the juvenile court had already found they had perpetrated child abuse and neglect. The Safouanes appeal. We affirm.
FACTS
The Safouanes have produced eight children. In fall 1994, their 22-month-old fifth child died. The State charged Aziz Safouane with causing the child's death. But after the court refused to admit the older siblings' hearsay statements incriminating the father in the child's death, it dismissed the charge. In the Matter of the Dependency of A.S., 101 Wn. App. 60, 62, 6 P.3d 11, review denied, 141 Wn.2d 1030 (2000), cert. denied, 532 U.S. 930 (2001).
After the child's death, DSHS filed dependency petitions for the Safouanes' other children based on the fact that they did not seek medical treatment until the child stopped breathing and the child died as a result. The Honorable Deborah Fleck held a 14-day dependency hearing at which both parents were represented. Experts appeared on both sides. The DSHS experts opined that the child died of non-accidental blunt force abdominal trauma resulting from child abuse. The Safouanes' expert opined that the child died from injuries inflicted by an accidental impact with the handlebars of his brother's bike. All experts agreed that following the injury there would be a period of time during which the child would be in visible distress. No one disputed that the parents did not seek medical care until the child stopped breathing.
After hearing the evidence, the trial court determined that the child died from abuse and failure to seek medical assistance and found his then four siblings dependent under former RCW 13.34.030(4)(c) (1994). Later, the trial court entered a dispositional order, requiring among other things, that the parents undergo psychological examinations. The parents failed to comply with the dispositional order, and DSHS filed petitions to terminate the Safouanes' parent-child relationship with their four surviving offspring.
"Dependent child' means any child . . . [w]ho has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development.' Former RCW 13.34.030(4)(c).
Before the termination matter was heard, the Safouanes had a sixth child. DSHS filed a dependency petition on that child. Following a multi-day trial, the Honorable Carol Schapira found the sixth child dependent. In part, the court decided that:
The refusal of the parents to accept or participate in court ordered services is significant to this court. They are intelligent and capable people who are credible in their expressions of love and concern for their children. Yet they are more concerned with maintaining a highly adversarial stance with the court and DSHS than they are in taking steps to acknowledge previous court orders or possible parental deficiencies and engaging in services to reunify their family. As a result, the circumstances which led to the death of the older child in the home have never been addressed by the parents and the same risk of harm applies to [their sixth child], who is at a particularly vulnerable age, as applies to the other surviving children of the parents.
Administrative Record (AR) at 321. The court also entered a dispositional order requiring the parents to visit the child in foster care and undergo psychological evaluations. Again, the parents failed to comply. On June 18, 1997, a different trial court terminated the Safouanes' parental rights to all five surviving children. The Safouanes had a seventh child during the pendency of the above proceedings. Another judge found that child dependent, but allowed her to remain in the Safouanes' care under certain conditions. The Safouanes failed to comply, including failing to accept visiting nurse care, and the court ordered this child into foster care. When the parents failed to comply with the dispositional order, DSHS sought termination. After a hearing, the Honorable Dale Ramerman declined to terminate the Safouanes' parental rights to their seventh child. But the court of appeals reversed the trial court. A.S., 101 Wn. App. at 74.
Sarah Safouane then conceived an eighth child. During her pregnancy, her maternity case manager contacted a hospital social worker to advise her of the upcoming birth and of the Safouanes' DSHS record. The social worker contacted Child Protective Services (CPS). In response, CPS asked to be notified of Sarah's labor. CPS also formally asked the hospital to place an administrative hold on the newborn infant.
On April 2, 1999, Sarah gave birth to her eighth child, M.I.S. The hospital complied with the CPS request. On April 5, 1999, DSHS filed a dependency petition on M.I.S under former RCW 13.34.030(2) (1998). As grounds, the petition alleged the Safouanes' family history with DSHS set forth above.
On April 5, 1999, a juvenile court commissioner found M.I.S. dependent and ordered him placed in shelter care under RCW 13.34.050. The trial court denied the Safouanes' motion for revision, noting:
RCW 13.34.050(1) states:
The court may enter an order directing a law enforcement officer, probation counselor, or child protective services official to take a child into custody if: (a) A petition is filed with the juvenile court alleging that the child is dependent and that the child's health, safety, and welfare will be seriously endangered if not taken into custody; (b) an affidavit or declaration is filed by the department in support of the petition setting forth specific factual information evidencing reasonable grounds that the child's health, safety, and welfare will be seriously endangered if not taken into custody and at least one of the grounds set forth demonstrates a risk of imminent harm to the child . . . and (c) the court finds reasonable grounds to believe the child is dependent and that the child's health, safety, and welfare will be seriously endangered if not taken into custody.
There is no contention that the child has been harmed. The issue is serious threat of substantial harm. Given the facts established in the dependency proceeding . . . concerning the death of respondents' child and the failure of respondents to adequately respond to the injury of that child . . . and the record of the respondents' failure to comply with court ordered services, there is more than adequate basis for the court to find that there were no reasonable efforts that could have been made to prevent or eliminate the need for removal, and that release of the child would present a serious threat of serious harm. Thus, the statutory requisites for placing the child into shelter care have been met.
AR at 286. At a follow-up May 4, 1999 shelter care hearing, the court entered various orders, including requiring that the Safouanes undergo psychological evaluations.
At the hearing, the parents indicated that they would not follow any court order that placed any conditions on M.I.S. being returned to their home.
On July 2, 1999, DSHS sent the Safouanes a certified letter advising them that a CPS investigation revealed that on April 2, 1999, the Safouanes had `[e]ngage[d] in actions or omissions resulting in injury to, or creating a substantial risk to the physical or mental health or development of a child.' AR at 345. The letter also referred the Safouanes to the allegations set forth in the DSHS April 5, 1999 dependency petition. At the Safouanes' request under RCW 26.44.125, DSHS reviewed the abuse report and affirmed it. DSHS advised the Safouanes that RCW 26.44.125 allowed them to challenge the review in an administrative hearing.
M.I.S. was born on April 2, 1999.
RCW 26.44.125 states:
(1) A person who is named as an alleged perpetrator after October 1, 1998, in a founded report of child abuse or neglect has the right to seek review and amendment of the finding as provided in this section.
(2) Within twenty calendar days after receiving written notice from the department . . . that a person is named as an alleged perpetrator in a founded report of child abuse or neglect, he or she may request that the department review the finding. . . .
(3) Upon receipt of a written request for review, the department shall review and, if appropriate, may amend the finding. . . .
(4) If, following agency review, the report remains founded, the person named as the alleged perpetrator in the report may request an adjudicative hearing to contest the finding.
The Safouanes then requested an adjudicative hearing through the DSHS Office of Administrative Hearings (OAH). On August 19, 1999, before the OAH acted, and after a 10-day trial, Judge Ramerman found M.I.S. dependent. The trial court adopted the findings of fact, conclusions of law, and dependency and termination orders on the Safouanes' six other living children. The court concluded that the Safouanes could not adequately care for M.I.S. and that he would be in a situation that could cause substantial physical and emotional damage, noting:
The parents continue refusing to accept any responsibility for the death of their child . . . in their care, to visit either [their seventh or eighth child], and to comply with any court orders. The parents adamantly refuse to engage in any services capable of correcting parental deficiencies. As a result, the parents have never addressed the circumstances which led to the death of [their fifth child] and the same risk of harm applies to [M.I.S.].
The Safouanes argue that Judge Ramerman relied on Judge Fleck who relied on inadmissible hearsay. We disagree. Judge Ramerman entered a specific finding that he did not consider the inadmissible hearsay testimony from Judge Fleck's termination trial.
AR at 324.
On January 4, 2000, DSHS moved to dismiss the Safouanes' request for an adjudicative hearing with the OAH. DSHS argued that the Safouanes' prior dependency proceeding and order regarding M.I.S. collaterally estopped them from rearguing whether they posed a substantial risk of harm to him. An administrative law judge (ALJ) dismissed the Safouanes' request for an adjudicative hearing. A DSHS Board of Appeals review judge, and the superior court upheld the ALJ's determination. The Safouanes appeal.
ANALYSIS Collateral Estoppel
The Safouanes first contend that collateral estoppel does not preclude their appeal of the CPS finding that they posed a substantial risk of harm to M.I.S. They further assert that CPS generated an unfounded report because the hospital social worker contacted CPS after M.I.S.'s birth based on CPS's insistence rather than to report abuse or neglect.
We review agency decisions under the Administrative Procedure Act, chapter 34.05 RCW. Burnham v. Dep't of Social Health Servs., 115 Wn. App. 435, 438, 63 P.3d 816, review denied, 150 Wn.2d 1013 (2003). Under RCW 34.05.570(3), we may overturn the agency decision if we find it is unconstitutional, the agency interpreted or applied the law erroneously, or the agency acted arbitrarily or capriciously. Campbell v. Dep't of Social Health Servs., 150 Wn.2d 881, 891-92, 83 P.3d 999 (2004). The Safouanes must prove that the agency decision is invalid. RCW 34.05.570(1)(a). Specifically here, the Safouanes must demonstrate that the agency made an error of law.
Like the trial court, we review the agency decision for an erroneous interpretation or application of the law. Burnham, 115 Wn. App. at 438.
When DSHS receives a report alleging child abuse or neglect, RCW 26.44.050 and .100 require it to investigate the report and prepare findings. If DSHS finds the report was `founded,' meaning that the investigation supported the allegations of child abuse or neglect, then the alleged perpetrator of the child abuse or neglect can seek agency review of the findings. RCW 26.44.100(2) and .125(2). If DSHS adheres to the findings, the alleged perpetrator can request an adjudicative hearing under chapter 34.05 RCW. RCW 26.44.125(4).
The ALJ dismissed the Safouanes' request for an adjudicative hearing because the questions of whether the allegations of child abuse and neglect were founded had already been answered in the dependency proceedings. Thus, the ALJ concluded that collateral estoppel barred them from raising the same question in an adjudicative hearing.
We review the application of collateral estoppel de novo as a question of law. State v. Vasquez, 109 Wn. App. 310, 314, 34 P.3d 1255 (2001) (citing Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1114 (9th Cir. 1999)), aff'd, 148 Wn.2d 303 (2002). Collateral estoppel prevents endless relitigation of already decided issues. Reninger v. Dep't of Corrections, 134 Wn.2d 437, 449, 951 P.2d 782 (1998). To impose a collateral estoppel bar here, DSHS must establish that identical parties litigated identical issues to a final judgment on the merits and that no injustice results from its application. Reninger, 134 Wn.2d at 449.
First, the Safouanes do not dispute that the parties are identical. Next, we must decide whether the issues were identical.
On August 19, 1999, the trial court found M.I.S. dependent because The parents continue refusing to accept any responsibility for the death of their child . . . in their care, to visit either [their seventh or eighth child], and to comply with any court orders. The parents adamantly refuse to engage in any services capable of correcting parental deficiencies. As a result, the parents have never addressed the circumstances which led to the death of [their fifth child] and the same risk of harm applies to [M.I.S.]
AR at 324. This issue is identical to the one that the Safouanes sought to relitigate in the adjudicative hearing.
Finally, to determine whether applying the doctrine will work an injustice, we must decide if the parties were afforded a full and fair opportunity to litigate their earlier claim. By and Through Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 264-65, 956 P.2d 312 (1998). Here, Judge Ramerman conducted a 10-day dependency trial. Judge Ramerman found that the Safouanes, who appeared pro se, were knowledgeable of their rights and responsibilities and made knowing, intelligent, and voluntary decisions in this matter. Thus, the Safouanes had a full and fair opportunity to be heard.
On April 6, 2000, the ALJ found that the Safouanes had an `opportunity to be heard with regard to the issues of abuse and neglect, to call witnesses and to examine and cross-examine witnesses and to present evidence in their own behalf.' CP at 12.
Collateral estoppel applies, barring the Safouanes from relitigating in an adjudicative hearing the question whether they pose a substantial risk of harm to M.I.S. Their argument fails.
Having determined that the bar applies, we do not address the Safouanes' other arguments based on the CPS report.
Attorney Fees
The Safouanes also request attorney fees and costs as prevailing parties. RCW 4.84.350. As they do not prevail on appeal, we do not award attorney fees and costs.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, J and QUINN-BRINTNALL, C.J., concur.