McDaniel v. Department of Social & Health Services

756 P.2d 143, 51 Wash. App. 893, 1988 Wash. App. LEXIS 444
CourtCourt of Appeals of Washington
DecidedApril 26, 1988
DocketNo. 8279-2-III
StatusPublished
Cited by3 cases

This text of 756 P.2d 143 (McDaniel v. Department of Social & Health Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDaniel v. Department of Social & Health Services, 756 P.2d 143, 51 Wash. App. 893, 1988 Wash. App. LEXIS 444 (Wash. Ct. App. 1988).

Opinion

Green, J.

During the period February 1983 through February 1984, Mary Kay McDaniel and her three minor children received aid to families with dependent children, medical assistance and food stamp benefits based upon a 4-person household. Mrs. McDaniel and her children resided at S. 1325 Pittsburg during this time. She and the children's father, Ben McDaniel, also known as B.J. McMich-ael, separated in 1981 and were divorced in 1986. In 1984 the Department of Social and Health Services (DSHS) learned Mr. McDaniel was possibly residing at the Pitts-burg residence. DSHS informed Mrs. McDaniel by letter that her husband's presence in the household made her ineligible for the programs. On August 15, 1985, DSHS determined Mrs. McDaniel had received an overpayment of $9,752.49.

Mrs. McDaniel appealed the determination and on March 13, 1986, an administrative hearing was held. There, DSHS, solely by use of documentation, sought to establish that Mr. McDaniel resided with his family at the Pittsburg address. DSHS offered evidence that Mr. McDaniel used the address as his own in various facets of everyday life, including credit applications, bank statements and auto registration. DSHS offered documents to contradict Mr. [895]*895McDaniel's written denial that he resided at the residence.1 A statement of the postal carrier who delivered mail to the Pittsburg address was also introduced. The carrier stated that throughout the period in issue he delivered mail in the names of McMichael and McDaniel to the residence, and that a man was routinely there.2 Mrs. McDaniel testified that only she and her children lived at the Pittsburg address during the period February 1983 through February 1984.

The Administrative Law Judge (ALJ) found that Mr. McDaniel lived with his family at the Pittsburg residence. The ALJ entered a finding that Mrs. McDaniel was not a credible witness and her testimony was both unreliable and self-serving. Accordingly, the ALJ found Mrs. McDaniel had willfully and intentionally received an overpayment of public assistance funds. This determination was affirmed on review in superior court.

On appeal to this court, Mrs. McDaniel contends (1) the ALJ was clearly erroneous in finding Mr. McDaniel resided with his family; (2) DSHS failed to provide proper notice that intent would be an issue at the hearing; and (3) the Superior Court erred in modifying DSHS's final order.

First, Mrs. McDaniel contends DSHS has the burden of proving that Mr. McDaniel lived with his family from February 1983 through February 1984. She asserts DSHS has failed to do so, and, at a minimum, has only established that Mr. McDaniel owned the Pittsburg residence and used [896]*896the address. She also argues that the ALJ's findings are based solely on uncorroborated hearsay evidence. While Mrs. McDaniel concedes DSHS may meet its burden of proof with circumstantial evidence, here, she contends there is only conjecture and the ALJ's decision should be set aside.

Our review is governed by the administrative procedure act (APA), RCW 34.04.130(6):

The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or
(f) arbitrary or capricious.

This review is limited to the record of the administrative tribunal, RCW 34.04.130(5); Department of Ecology v. Ballard Elks Lodge 827, 84 Wn.2d 551, 527 P.2d 1121 (1974), and we cannot substitute our judgment for that of the agency. Franklin Cy. Sheriffs Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983).

The above statute permits a reviewing court to remand for further proceedings if the court, based upon its review of the record, is not satisfied that the agency is right, and a "second look" is required. State ex rel. Gunstone v. State Hwy. Comm'n, 72 Wn.2d 673, 674-75, 434 P.2d 734 (1967); Skold v. Johnson, 29 Wn. App. 541, 550, 630 P.2d 456, review denied, 96 P.2d 1003 (1981). As stated in Gun-stone, at 674-75, the remand "safety valve" permits the reviewing court to "require a second look at situations and conditions which might not warrant a reversal, but which, [897]*897to the court reviewing the record, would indicate to it that the [Department] may have acted on incomplete or inadequate information . . ."A remand is proper even when the administrative decision is not in error. Stempel v. Department of Water Resources, 82 Wn.2d 109, 113, 508 P.2d 166 (1973).

Here, a remand for further proceedings is proper. DSHS relied solely on documentation evidence in lieu of any direct testimony. We are not satisfied that DSHS has met its burden of proving Mr. McDaniel resided in the family home. Although RCW 34.04.100 permits the use of relevant hearsay in contested administrative cases, as concerns this hearing DSHS's repeated and sole use and reliance on double and triple hearsay requires us to remand for a "second look". At such proceedings, some testimonial evidence should be presented corroborating the investigative reports in order to avoid reliance solely on hearsay and conjecture.

Second, Mrs. McDaniel contends the notice she received failed to apprise her, consistent with procedural due process, that intent would be an issue at the hearing. She argues deprivation of welfare benefits must satisfy constitutional procedural due process, Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970), and this requires notice reasonably calculated to apprise a party of proceedings which will affect his or her interests. Mrs. McDaniel asserts DSHS's regulations require a financial and medical assistance overpayment letter to include a "determination that an intentional overpayment is or is not involved" and also requires special notice for an intentional food stamp program violation.

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McDaniel v. DEPT. OF SOCIAL AND HEALTH SERVS.
756 P.2d 143 (Court of Appeals of Washington, 1988)

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Bluebook (online)
756 P.2d 143, 51 Wash. App. 893, 1988 Wash. App. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-department-of-social-health-services-washctapp-1988.