FILED APRIL 1, 2025 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
KENDAL LEWIS, ) ) No. 40081-6-III Appellant, ) ) v. ) ) THE DEPARTMENT OF CHILDREN & ) UNPUBLISHED OPINION YOUTH FAMILY SERVICES, ) ) Respondent. )
STAAB, A.C.J. — Kendal Lewis received notice from the Department of Children,
Youth, & Families (DCYF) that the allegations he sexually abused his minor daughter
were founded. An administrative law judge (ALJ) upheld the finding. Rather than file an
appeal with the Board of Appeals (Board), Lewis petitioned for review in superior court.
The petition was dismissed because Lewis failed to exhaust his administrative remedies
before seeking judicial review. No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
On appeal to this court, Lewis contends that the superior court erred in dismissing
his petition because he was not required to exhaust administrative remedies when there is
a constitutional violation. Specifically, he argues that his due process rights were
violated when DCYF failed to notify him that the ALJ who heard the case was not the
ALJ who signed the initial decision.
BACKGROUND
DCYF informed Kendal Lewis that allegations that he sexually abused his minor
daughter were founded. After being personally served with the DCYF letter, Lewis
requested internal review. Following the internal review, Lewis was informed that the
founded finding would not be changed. Lewis then requested an administrative hearing.
A hearing was held before an ALJ who heard testimony by both parties and
weighed the evidence. The ALJ entered an “Initial Order” stating that DCYF’s finding,
as described in the letter sent to Lewis, was founded. The order stated that the ALJ who
heard the matter was on extended leave, the matter was reviewed, and that the order was
written by another ALJ in her absence. This notice also provided appeal rights, stating
that the order would become final within 21 calendar days after mailing unless (1) either
party filed an appeal with the DCYF Board, or (2) either party filed a request for an
extension of the 21-day deadline.
After receiving the Initial Order, Lewis filed a petition for review with the
Spokane County Superior Court. DCYF then filed a motion to dismiss under CR
2 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
12(b)(1), alleging that Lewis did not exhaust all available administrative remedies prior
to seeking judicial review. The superior court dismissed the petition for review after
concluding that Lewis “failed to exhaust all available administrative remedies prior to
seeking judicial review.” Clerk’s Papers at 239.
Lewis appeals the order of dismissal.
ANALYSIS
Lewis contends the superior court erred by dismissing his petition for review on
the basis that he had failed to exhaust his administrative remedies. He argues that his due
process rights were violated when a new ALJ was appointed and rendered a final decision
without notice to himself or his attorney. For this reason, he contends exhaustion of
administrative remedies was not necessary. We disagree.
Exhaustion of administrative remedies “is a question of law for the trial court to
decide.” Cost Mgmt. Servs., Inc. v. City of Lakewood, 178 Wn.2d 635, 641, 310 P.3d 804
(2013). This court “review[s] questions of law de novo.” Id. As such, “we review de
novo whether exhaustion of administrative remedies [is] required in this case.” Id.
Once an individual has received a written notice from DCYF that the “person is
named as an alleged perpetrator . . . in a founded report of child abuse or neglect,” the
individual “has the right to seek review . . . of the finding.” RCW 26.44.125(1). First,
the individual may request that DCYF review the finding. RCW 26.44.125(2). Upon
receipt of the request, DCYF “shall review and, if appropriate, may amend the finding.”
3 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
RCW 26.44.125(4). Once review is complete, DCYF shall notify the alleged perpetrator
of the decision. RCW 26.44.125(4). Second, if “the report remains founded, the . . .
alleged perpetrator . . . may request an adjudicative hearing to contest the finding.” RCW
26.44.125(5). If the individual fails to request an adjudicative hearing, they “may not
further challenge the finding.” RCW 26.44.125(5).
The adjudicative proceeding process is governed by the Administrative Procedure
Act (APA), ch. 34.05 RCW. Under the APA, a challenge to a DCYF action will be heard
by an ALJ. WAC XXX-XX-XXXX(4). At the hearing, the ALJ “must hear and decide the
issues de novo.” WAC XXX-XX-XXXX. “The ALJ’s authority is limited to determining
whether the action taken by [DCYF] was justified based on the evidence presented during
the hearing.” WAC XXX-XX-XXXX. After the hearing has concluded, the ALJ will enter an
initial order that contains findings of fact and conclusions of law on the matter. WAC
XXX-XX-XXXX. That initial order will become final if either (a) 21 days has passed since
the initial order was mailed to the parties without a request for review, or (b) when a
request for review is dismissed. WAC XXX-XX-XXXX(1). A “final order” means “an order
that is the final DCYF decision.” WAC XXX-XX-XXXX.
Relevant to this appeal, a party who either disagrees with or wants to change an
initial order, may seek review with the Board. WAC XXX-XX-XXXX(1). After the record
on review is closed, “[a] review judge [will be] assigned by the [Board] to review the
initial order.” WAC XXX-XX-XXXX(1), (2). “The review judge will consider a written
4 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
request for review, any response or reply, the initial order, and the record.” WAC 110-
03-0510(3). A review judge “may not review final orders. WAC XXX-XX-XXXX(4). The
“review judge will consider . . . [only] the initial order” entered by the ALJ. WAC 110-
03-0510(3). The review judge will only review the evidence considered by the ALJ and
then decide the issue by entering a final order either affirming, changing, dismissing, or
reversing the initial order by the ALJ or remanding for further action. WAC 110-03-
0550.
After the review judge enters a final order, a party may seek judicial review in
superior court. WAC XXX-XX-XXXX(1). Importantly, “[a] party may file a petition for
judicial review only after it has exhausted administrative remedies, as provided under
RCW 34.05.534.” WAC XXX-XX-XXXX(5). RCW 34.05.534, in turn, requires exhausting
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FILED APRIL 1, 2025 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
KENDAL LEWIS, ) ) No. 40081-6-III Appellant, ) ) v. ) ) THE DEPARTMENT OF CHILDREN & ) UNPUBLISHED OPINION YOUTH FAMILY SERVICES, ) ) Respondent. )
STAAB, A.C.J. — Kendal Lewis received notice from the Department of Children,
Youth, & Families (DCYF) that the allegations he sexually abused his minor daughter
were founded. An administrative law judge (ALJ) upheld the finding. Rather than file an
appeal with the Board of Appeals (Board), Lewis petitioned for review in superior court.
The petition was dismissed because Lewis failed to exhaust his administrative remedies
before seeking judicial review. No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
On appeal to this court, Lewis contends that the superior court erred in dismissing
his petition because he was not required to exhaust administrative remedies when there is
a constitutional violation. Specifically, he argues that his due process rights were
violated when DCYF failed to notify him that the ALJ who heard the case was not the
ALJ who signed the initial decision.
BACKGROUND
DCYF informed Kendal Lewis that allegations that he sexually abused his minor
daughter were founded. After being personally served with the DCYF letter, Lewis
requested internal review. Following the internal review, Lewis was informed that the
founded finding would not be changed. Lewis then requested an administrative hearing.
A hearing was held before an ALJ who heard testimony by both parties and
weighed the evidence. The ALJ entered an “Initial Order” stating that DCYF’s finding,
as described in the letter sent to Lewis, was founded. The order stated that the ALJ who
heard the matter was on extended leave, the matter was reviewed, and that the order was
written by another ALJ in her absence. This notice also provided appeal rights, stating
that the order would become final within 21 calendar days after mailing unless (1) either
party filed an appeal with the DCYF Board, or (2) either party filed a request for an
extension of the 21-day deadline.
After receiving the Initial Order, Lewis filed a petition for review with the
Spokane County Superior Court. DCYF then filed a motion to dismiss under CR
2 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
12(b)(1), alleging that Lewis did not exhaust all available administrative remedies prior
to seeking judicial review. The superior court dismissed the petition for review after
concluding that Lewis “failed to exhaust all available administrative remedies prior to
seeking judicial review.” Clerk’s Papers at 239.
Lewis appeals the order of dismissal.
ANALYSIS
Lewis contends the superior court erred by dismissing his petition for review on
the basis that he had failed to exhaust his administrative remedies. He argues that his due
process rights were violated when a new ALJ was appointed and rendered a final decision
without notice to himself or his attorney. For this reason, he contends exhaustion of
administrative remedies was not necessary. We disagree.
Exhaustion of administrative remedies “is a question of law for the trial court to
decide.” Cost Mgmt. Servs., Inc. v. City of Lakewood, 178 Wn.2d 635, 641, 310 P.3d 804
(2013). This court “review[s] questions of law de novo.” Id. As such, “we review de
novo whether exhaustion of administrative remedies [is] required in this case.” Id.
Once an individual has received a written notice from DCYF that the “person is
named as an alleged perpetrator . . . in a founded report of child abuse or neglect,” the
individual “has the right to seek review . . . of the finding.” RCW 26.44.125(1). First,
the individual may request that DCYF review the finding. RCW 26.44.125(2). Upon
receipt of the request, DCYF “shall review and, if appropriate, may amend the finding.”
3 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
RCW 26.44.125(4). Once review is complete, DCYF shall notify the alleged perpetrator
of the decision. RCW 26.44.125(4). Second, if “the report remains founded, the . . .
alleged perpetrator . . . may request an adjudicative hearing to contest the finding.” RCW
26.44.125(5). If the individual fails to request an adjudicative hearing, they “may not
further challenge the finding.” RCW 26.44.125(5).
The adjudicative proceeding process is governed by the Administrative Procedure
Act (APA), ch. 34.05 RCW. Under the APA, a challenge to a DCYF action will be heard
by an ALJ. WAC XXX-XX-XXXX(4). At the hearing, the ALJ “must hear and decide the
issues de novo.” WAC XXX-XX-XXXX. “The ALJ’s authority is limited to determining
whether the action taken by [DCYF] was justified based on the evidence presented during
the hearing.” WAC XXX-XX-XXXX. After the hearing has concluded, the ALJ will enter an
initial order that contains findings of fact and conclusions of law on the matter. WAC
XXX-XX-XXXX. That initial order will become final if either (a) 21 days has passed since
the initial order was mailed to the parties without a request for review, or (b) when a
request for review is dismissed. WAC XXX-XX-XXXX(1). A “final order” means “an order
that is the final DCYF decision.” WAC XXX-XX-XXXX.
Relevant to this appeal, a party who either disagrees with or wants to change an
initial order, may seek review with the Board. WAC XXX-XX-XXXX(1). After the record
on review is closed, “[a] review judge [will be] assigned by the [Board] to review the
initial order.” WAC XXX-XX-XXXX(1), (2). “The review judge will consider a written
4 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
request for review, any response or reply, the initial order, and the record.” WAC 110-
03-0510(3). A review judge “may not review final orders. WAC XXX-XX-XXXX(4). The
“review judge will consider . . . [only] the initial order” entered by the ALJ. WAC 110-
03-0510(3). The review judge will only review the evidence considered by the ALJ and
then decide the issue by entering a final order either affirming, changing, dismissing, or
reversing the initial order by the ALJ or remanding for further action. WAC 110-03-
0550.
After the review judge enters a final order, a party may seek judicial review in
superior court. WAC XXX-XX-XXXX(1). Importantly, “[a] party may file a petition for
judicial review only after it has exhausted administrative remedies, as provided under
RCW 34.05.534.” WAC XXX-XX-XXXX(5). RCW 34.05.534, in turn, requires exhausting
administrative resources unless an exception applies. A court may relieve a party from
exhausting administrative resources when one the following exceptions applies:
(a) the remedies would be patently inadequate; (b) the exhaustion of remedies would be futile; or (c) the grave irreparable harm that would result from having to exhaust administrative remedies would clearly outweigh the public policy requiring exhaustion of administrative remedies.
RCW 34.05.534(3). With these legal principles in mind, we turn to the procedures Lewis
followed to determine whether the superior court erred by dismissing his petition for
review.
5 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
The superior court did not err in dismissing Lewis’s petition for failing to exhaust
all available administrative remedies prior to seeking judicial review. Lewis sought
judicial review of the ALJ’s order by filing a petition for review in superior court without
seeking review by the Board. On appeal, Lewis argues that he was not required to
exhaust his administrative remedies because it would be futile.
Specifically, Lewis contends that his ability to exhaust his remedies regarding the
new ALJ is “moot” since the only solution available at this point would be a new ALJ.
But because the decision is final, that is not a possible remedy. This argument is circular
and unpersuasive. The order is only final because Lewis failed to follow the
administrative process and appeal the initial order to the Board within 21 days of it being
mailed. See WAC XXX-XX-XXXX. Moreover, if Lewis had appealed the initial order
properly to the Board before it became final, he could have sought the relief he requested
in superior court.1
Lewis has failed to demonstrate the application of an exception to the requirement
that he exhaust his administrative remedies before seeking judicial review. We affirm the
1 Lewis attempts to raise additional arguments in his reply brief, but this is too late to warrant consideration. See State v. Orozco, 144 Wn. App. 17, 21-22, 186 P.3d 1078 (2008) (“An issue raised for the first time in a reply brief is generally too late to warrant consideration.”).
6 No. 40081-6-III Lewis v Dep’t of Children, Youth, Families
superior court’s order dismissing the petition for failure to exhaust administrative
remedies.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Staab, A.C.J.
WE CONCUR:
_________________________________ Fearing, J.
_________________________________ Cooney, J.