FILED
APRIL 30, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SARAH EVERT AND STEPHEN ) EVERT, ) No. 32455-9-111 ) Appellants, ) ) vs. ) ) UNPUBLISHED OPINION DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES, Adult Protective ) Services, ) ) Respondent. )
FEARING, J. Sarah and Stephen Evert, wife and husband, appeal from a superior
court ruling that upheld an Adult Protection Services' order finding that the Everts
mentally abused a vulnerable adult. The Everts isolated the adult, Thomasene, from her
family. Thomasene is the mother of Sarah Evert. Because substantial evidence and
unchallenged findings of fact support the superior court ruling, we affirm.
FACTS
Sarah and Stephen Evert do not assign error to the Department of Social and
Health Services (DSHS) Board of Appeals' (Board) findings of fact in the Board's
review decision and final order, dated October 24, 2013. We thus consider those fmdings No. 32455-9-III Evert v. Dep 't o/Soc. & Health
verities on appeal. See RAP 10.3(h); Fuller v. Dep't Emp't Sec., 52 Wn. App. 603, 606,
762 P.2d 367 (1988). Some of our factual statement comes from the findings of fact.
In 2011, Thomasene lived with her husband Glenn near Boise, Idaho. Thomasene
and Glenn were respectively 83 years old and 86 years old, had been married 64 years,
and had five adult children: Dale McCleary, Thomasene (Sene) Blevins, Phyllis Keith,
Glenna Kimball, and Sarah Evert. We do not use Thomasene's and Glenn's surname.
Both Glenn and Thomasene suffered poor health. Thomasene's mental
impairments included dementia and depression. She had short term memory deficits and
needed cuing for her memory. Her level of cognition varied, and she easily grew upset.
Sometimes she did not remember events which occurred the same day, or within hours.
She forgot events that occurred weeks earlier. Thomasene's long term memory remained
intact.
Thomasene physically suffered from osteoporosis and osteoarthritis. She
underwent total shoulder and knee replacements. By late 2011, Thomasene needed
supervision for safety and assistance with her activities of daily living. By late 2011,
Glenn also suffered from dementia and physical challenges.
By December 2011, all of Thomasene and Glenn's children agreed that Glenn
could not adequately care for Thomasene. Sarah Evert proposed that her mother live in
the Everts' adult family home in Spokane. Sarah, an occupational therapist with
No. 324SS-9-III Evert v. Dep Jt ofSoc. & Health
experience in providing home care, would charge Thomasene $3,SOO per month to care
for her at the home. The family did not accept Sarah Evert's proposal.
In January 2012, Phyllis Keith arranged for her parents to live in an assisted living
facility near Boise. Keith lived near the facility and helped her parents with daily needs.
Glenn moved back to the couple's home in March 2012. Keith continued to care for
Glenn in his home. Thomasene stayed in the Boise assisted living facility, but her mental
state worsened. Sarah and Stephen Evert suggested that Thomasene and Glenn divorce,
so Thomasene could receive half of the marital estate to use to pay Sarah and Stephen for
her care without Glenn's interference.
By March 2012, Thomasene could not recall events from the previous day. She
cried. She was heavily medicated. Thomasene needed supervision and assistance with
activities of daily living.
On March IS, 2012, Sarah and Stephen Evert traveled to Boise and brought
Thomasene to their adult family home in Spokane without notifying Sarah's siblings.
The Everts convinced Thomasene to file for divorce from Glenn and assisted her in filing
before leaving Boise for Spokane. Sarah's siblings expressed concern at Thomasene's
filing for divorce. Sarah responded with an e-mail:
Any of you may call her [Thomasene] any time you want. However, if you are going to badger her about dad and upset her, there is no point in that and I won't let you do that.
Admin. Record (AR) at 4.
No. 32455-9-III Evert v. Dep't ofSoc. & Health
While a resident at Sarah and Stephen Evert's adult family home, Thomasene
participated in activities with Sarah and her daughter, as well as with others. Caregivers
provided excellent physical care and assistance. She expressed to others that she enjoyed
living at the home. She gained friends among the residents of the adult family home.
Sarah and Stephen Evert instructed their adult family home caregivers not to allow
Sarah's siblings or Glenn to speak with Thomasene unless the Everts were present. The
Everts instructed their staff not to answer telephone calls from Idaho phone numbers. On
those occasions when other children or Glenn telephoned Thomasene, Stephen and Sarah
Evert closely monitored the communications. Dale McCleary and Sene Blevins avoided
talking to Thomasene about subjects not approved by Sarah and Stephen Evert so that the
Everts would not block communication with the mother. Sarah reprimanded Blevins if
she mentioned Glenn while speaking to Thomasene. Both McCleary and Blevins had
engaged in frequent communication with their mother before her move to Spokane.
The Everts restricted Phyllis Keith's phone contact with her mother, such that she
only spoke with Thomasene four times between March 2012 and September 2012. Sarah
cautioned Keith about those subjects on which he should not speak with Thomasene.
During one call, Thomasene asked Keith about Glenn. When Keith began to answer,
Stephen Evert ended the call.
Phyllis Keith called Thomasene on Glenn's behalf in May 2012. Stephen Evert
told Keith that he was recording the call, and Keith carefully selected topics about which
No. 32455-9-III Evert v. Dep 'f ofSoc. & Health
to speak. When Thomasene asked Keith about Glenn, Keith put Glenn on the telephone.
Glenn said: "Hello, Honey, how are you, when are you coming home?" AR at 6.
Stephen Evert abruptly terminated the call. Evert then called Keith and profanely
reprimanded her for allowing Glenn to talk to Thomasene.
In September 2012, Stephen Evert interrupted another telephone conversation
between Phyllis Keith and Thomasene, during which call he told Thomasene that Keith
took her money. When Thomasene asked him to stop talking, he continued until Keith
finally ended the call.
The Everts also monitored and restricted Thomasene's contact with Glenna
Kimball, who lived in California. Kimball had spoken to her mother about once a week
before Thomasene moved to Spokane. When Kimball called Thomasene at the Everts,
Stephen Evert often expressed belligerence. He called Kimball "an asshole," and told
Kimball "Fuck you." AR at 7. While monitoring calls between Kimball and Thomasene,
he informed Thomasene that Kimball lied to her. If Glenna Kimball asked her mother
how she was or if she knew what was happening, the Everts accused Kimball of upsetting
Thomasene and terminated the call. Kimball never heard Thomasene get upset at her
during a conversation.
The Idaho district court, in which Thomasene filed for divorce, appointed Frances
Stem as Thomasene's guardian ad litem (GAL) to determine whether Thomasene
possessed sufficient mental capacity to bring the action. An Idaho court also appointed
No. 324SS-9-III Evert v. Dep 't ofSoc. & Health
Stem as GAL for Thomasene and Glenn in a guardianship action brought by Glenna
Kimball. Stem traveled to Spokane and interviewed Thomasene. Stem found
Thomasene charming, but with "significant, gaping holes in her understanding." AR at
129. Stern interviewed all of Thomasene's children and some of Thomasene's care
providers in Idaho and Spokane. Stern reviewed Thomasene's medical records. Sarah
Evert admitted to Stern that she did not allow her father or some of her siblings to speak
to Thomasene in order to protect the best interest of her mother.
In 2012, the State of Washington Department of Social and Health Services Adult
Protective Services (APS) received allegations that Stephen and Sarah Evert mentally
abused Sarah's mother, Thomasene, a vulnerable adult. On June 5, 2012, Glenn filed a
complaint with APS, alleging that Sarah Evert kidnapped his wife and sought to take
financial advantage of the situation.
APS Investigator Ellen Rapkoch assumed control of Glenn's allegations against
Sarah Evert. As part of her investigation, Rapkoch interviewed Sarah and Stephen Evert,
Glenn, Glenna Kimball, Phyllis Keith, Patty Bowers, and Helen Wynn. Bowers and
Wynn were social workers assigned to Thomasene's adult family home.
Ellen Rapkoch interviewed Thomasene on June 18, 2012. Rapkoch found that
Thomasene did not comprehend the circumstances under which she moved from Boise to
Spokane other than her husband, Glenn, did not wish to join her. Thomasene told
Rapkoch she was upset about the move. Thomasene characterized Glenn as rude and
No. 32455-9-III Evert v. Dep't o/Soc. & Health
explained she needed a divorce to obtain money from Glenn. Thomasene stated that she
enjoyed living with her daughter, Sarah Evert She did not recall Stephen Evert's name.
Thomasene told Rapkoch that she missed her other children and that Sarah would not let
her talk to Glenn.
In her interview with Ellen Rapkoch, Sarah Evert admitted to restricting
Thomasene's telephone contact with Glenn, Glenna Kimball, and Phyllis Keith. Sarah
insisted the restrictions were needed because the three resisted the divorce. Sarah also
told Rapkoch that Glenna "badgered" Thomasene. AR at 10.
GAL Frances Stem filed a report with the Idaho court, on July 10,2012. In the
report, Stem recommended suspending the divorce proceeding as she found Thomasene
neither understood the action, nor had the capacity to understand. On August 17,2012,
the Ada County district court in Idaho approved Glenna Kimball's petition for
appointment as Glenn and Thomasene's temporary guardian. The order additionally
named Kimball, Phyllis Keith, and Dale McCleary as temporary co-conservators of
Thomasene and Glenn's estate. Ellen Rapkoch reviewed Stem's GAL report as part of
her investigation into the allegations against Sarah and Stephen Evert.
On August 27,2012, Sene Blevins and Glenna Kimball visited their mother at the
Everts' adult family home. A caregiver allowed them to enter and speak with their
mother. Glenna told Thomasene about the difficulties she and Thomasene's other
children encountered in calling her. Thomasene commented that she wondered why no
No. 32455-9-111 Evert v. Dep 't ofSoc. & Health
one ever called. When Glenna told Thomasene that Stephen Evert accused Glenn of
sexually abusing her, she said, "Well, where did he get that!" AR at 9. Stephen Evert
appeared and demanded that Blevins and Kimball leave. Thomasene asked why, and
Kimball said she had a right to visit her mother. Blevins echoed Kimball's statement.
Thomasene asked to leave the Evert home with her daughters, but Stephen Evert told her
she could not leave because she was a ward of the State of Washington. Evert insisted
that his two sisters-in-law leave or he would call the police. Thomasene became upset
and insisted: "They don't have to leave!" AR at 10. To avoid conflict, Kimball and
Blevins left the home. Stephen Evert shouted profanities at them.
On September 14, 2012, Glenn called APS again about Sarah and Stephen's care
for Thomasene. APS officially added Stephen Evert as the subject of the investigation.
On September 26,2012, APS ended its investigation and found by a
preponderance of the evidence that Sarah and Stephen Evert committed mental abuse of a
vulnerable adult under RCW 74.34.020(2)(c). APS removed Thomasene from Sarah and
Stephen's care. In a letter ruling, APS explained the basis for its finding:
In March 2012, you [Sarah and Stephen Evert] moved [Thomasene] from Boise where she was residing in an Assisted Living Facility to Spokane, without prior notification to her husband of over 45 years and other concerned family members, to live in an Adult Family Home (AFH) operated by you and your spouse. [Thomasene], diagnosed with dementia, did not have the cognitive ability to understand why she was moved from Boise. On several occasions [Thomasene] was not provided with the opportunity to talk with her husband and other family members on the telephone and when she was, there were occasions when you monitored and
controlled her conversations by listening in, interrupting and choosing when the conversation should be terminated. You admitted to intentionally blocking [Thomasene's] husband's phone number. You denied [Thomasene] opportunities to talk with her husband and other family members on the telephone and restricted [Thomasene's] visitation with family members, isolating [Thomasene] from her husband and family.
AR at 79.
PROCEDURE
Sarah and Stephen Evert requested a hearing before an Office of Administrative
Hearings administrative law judge (ALJ) to review APS' order. After conducting a three-
day hearing, ALJ Debra H. Pierce affirmed APS' determination, concluding:
11. The Department has established, by a preponderance of the evidence, that the Appellants, Stephen Evert and Sarah Evert inflicted mental abuse on Thomasene by inappropriately isolating her from some family members who disagreed with their plan of action to care for Thomasene, so that their plans and decisions regarding Thomasene's care would not be interrupted. 12. Although the undersigned understands that Appellants did not engage in this conduct with the "intent" of abusing Thomasene, Appellants' intent is irrelevant. An APS administrative hearing and appeal is neither a criminal nor a civil tort proceeding to determine "guilt" or "civil culpability." It is a process for determining who should or should not have unsupervised contact and care over a vulnerable adult under circumstances licensed by or otherwise involving the Department through financial support. An APS registry listing is not intended as a punitive measure or some other form of personal judgment, but rather a process established solely for the protection of vulnerable adults. The questions before this tribunal are 1) whether or not Appellant engaged in the conduct or omissions alleged, and if so 2) whether the alleged conduct or omissions meets the statutory definition of abuse. Since the Appellant's conduct and omissions meet the statutory definition of abuse, the Department's finding must be affirmed.
No. 32455-9-111 Evert v. Dep 't o/Soc. & Health
AR at 44.
Sarah and Stephen Evert filed a petition for review of the ALJ's decision with the
DSHS Board of Appeals. The Board of Appeals affirmed APS' order and determination
that the Everts mentally abused Thomasene by inappropriately isolating her. The Board
concluded:
11. The ALJ resolved any alleged conflicts in testimony with the determination that the testimony of Mr. McCleary, Ms. Blevins, Ms. Keith, and Ms. Kimball were not only consistent, but more credible where it conflicted with the testimony of the Appellants. The Appellants are simply trying to assign error because they disagree with the ALJ's determinations, not because actual errors exist. 12. The Department met its burden of proof to show that the Appellants mentally abused Thomasene.
AR at 16.
Sarah and Stephen Evert filed a petition for review of the DSHS Board of
Appeals' decision in Spokane County Superior Court. Before the trial court, the Everts
contended: (1) the APS investigator did not conduct a full and fair investigation under
chapter RCW 74.34, and (2) neither Sarah nor Stephen mentally abused or
inappropriately isolated Thomasene while she was in their care. The superior court
affirmed the DSHS Board of Appeals. The trial court ruled that APS' investigation met
the requirements of chapter 74.34 RCW, and substantial evidence supported APS'
determination that the Everts mentally abused Thomasene by isolating her from family
members.
LAW AND ANALYSIS
On appeal, Sarah and Stephen Evert repeat the two arguments asserted
before the superior court. We repeat the ruling of the superior court.
APS Investigation
In 1999, the Washington legislature adopted the Abuse of Vulnerable Adults Act,
chapter 74.34 RCW. The act requires DSHS, through its Adult Protective Services
Division, to receive reports of abuse of vulnerable adults from mandated reporters, who
include home care agency employees. RCW 74.34.005(5), .020(11). A "vulnerable
adult" includes a person over age sixty with the functional, mental, or physical inability
to care for himself. RCW 74.34.020(17)(a). Sarah and Stephen Evert agree that
Thomasene was a vulnerable adult. Permissive reporters may also report to DSHS or a
law enforcement agency when there is reasonable cause to believe that a vulnerable adult
is being or has been abandoned, abused, financially exploited, or neglected. RCW
74.34.035(6). "Permissive reporter" encompasses any person. RCW 74.34.020(13).
DSHS must investigate reports of abuse and notify the alleged perpetrator of the
investigation's outcome. RCW 74.34.067, .068(1). The alleged perpetrator may then
challenge a finding of abuse by seeking an administrative hearing. WAC 388-71-01235,
-01240. Either DSHS or the alleged perpetrator may appeal the administrative law
judge's ruling to the DSHS Board of Appeals. The Board's decision is DSHS' final
decision. RCW 34.05.464(4); WAC 388-71-01275(3).
No. 32455-9-III Evert v. Dep 't ofSoc. & Health
Washington statutes outline the nature of an investigation to be conducted by APS.
RCW 74.34.067 provides, in relevant part:
(2) In conducting the investigation, the department shall interview the complainant, unless anonymous, and shall use its best efforts to interview the vulnerable adult or adults harmed, and, consistent with the protection of the vulnerable adult shall interview facility staff, any available independent sources of relevant information, including if appropriate the family members of the vulnerable adult.
RCW 74.34.040(3) provides that reports to DSHS from mandatory reporters must
contain, among other information, evidence of previous abuse, neglect, exploitation, or
abandonment.
Sarah and Stephen Evert contend that the investigation conducted by APS in
response to Glenn's complaint, did not comply with RCW 74.34.040 and .067. They
argue that the investigation was deficient because: (1) APS investigator Ellen Rapkoch
did not interview everyone listed as a possible witness on her investigation intake form,
and (2) Rapkoch did not investigate allegations of past abuse perpetrated against
Thomasene in Boise.
We do not address the merits of the Everts' contention, since any failure by APS
to follow the statutes' investigatory directives does not invalidate a finding by APS of
abuse of the vulnerable adult. No statute dictates that a negligent or defective
investigation annuls APS' conclusion of abuse. The Everts cite no authority that supports
reversing an APS order because of a deficient investigation. In the challenge of APS'
finding before the ALl, the Everts could call to testifY any witness they claim APS should
have interviewed. Any allegations of past abuse would not excuse the Everts' abuse of
Sarah's mother.
Finding of Mental Abuse
Sarah and Stephen Evert bring this appeal pursuant to the Administrative
Procedure Act (APA), chapter 34.05 RCW; Goldsmith v. Dep't o/Soc. & Health Servs.,
169 Wn. App. 573, 584, 280 P.3d 1173 (2012). The Everts bear the burden of
demonstrating the invalidity of APS' actions. RCW 34.05.570(1)(a). This court will
reverse an agency action if, as the Everts assert here:
(d) The agency has erroneously interpreted or applied the law; (e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court.
RCW 34.05.570(3).
When reviewing an agency decision, we apply the standards of chapter 34.05
RCW directly to the agency's record without regard to the superior court decision.
Goldsmith, 169 Wn. App. at 584; Burnham v. Dep't o/Soc. & Health Servs., 115 Wn.
App. 435, 438, 63 P.3d 816 (2003). This court reviews legal issues de novo, giving
substantial weight to the agency's interpretation of the law it administers, particularly
where the issue falls within the agency's expertise. Goldsmith, 169 Wn. App. at 584.
Challenges brought under RCW 34.05.570(e) are reviewed for substantial evidence; that
is, whether sufficient evidence exists to persuade a fair-minded person of the truth or
correctness of the order. Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd., 176 Wn.
App. 555, 565,309 P.3d 673 (2013), review denied, 179 Wn.2d 1015,318 P.3d 279
(2014). This court views the evidence in the light most favorable to the party who
prevailed in the highest forum that exercised fact-finding authority. Doing so necessarily
entails accepting the fact finder's views regarding the credibility of witnesses and the
weight to be given reasonable but competing inferences. Spokane County, 176 Wn. App.
at 565. This court defers to the DSHS Board of Appeals' determination of the credibility
of witnesses and weight of evidence. Spokane County, 176 Wn. App. at 565.
The Everts contend that substantial evidence does not support the DSHS Board of
Appeals' ruling that the Everts mentally abused Thomasene by inappropriately isolating
her from other family members. They argue that the witnesses that testified on their
behalf at the administrative hearing before ALJ Pierce undermine the Board's ruling and
that Thomasene was not "isolated" because she had numerous calls from family,
including her younger sister and friends. She had visitors. Sarah took her to water
therapy and to restaurants. DSHS contends that the record supports a finding of mental
abuse by a preponderance of the evidence. We agree with DSHS.
In an action brought by DSHS alleging mental abuse of a vulnerable adult, DSHS
must prove the alleged abuse by a preponderance of the evidence. Goldsmith, 169 Wn.
App. at 584; Kraftv. Dep'tofSoc. & Health Servs., 145 Wn. App. 708, 716,187 P.3d
798 (2008). Therefore, APS must find it more likely than not that abuse occurred.
Goldsmith, 169 Wn. App. at 584.
The abuse of vulnerable adults act, chapter 74.34 RCW defines "abuse" as:
... the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult. In instances of abuse of a vulnerable adult who is unable to express or demonstrate physical hann, pain, or mental anguish, the abuse is presumed to cause physical harm, pain, or mental anguish. Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult, which have the following meanings.
(c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a vulnerable adult from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.
RCW 74.34.020(2) (emphasis added). "Willful" means: "the nonaccidental action or
inaction by an alleged perpetrator that he/she knew or reasonably should have known
could cause hann, injury or a negative outcome." WAC XXX-XX-XXXX.
In arguing that the DSHS Board of Appeals decision is not supported by
substantial evidence, Sarah and Stephen Evert look into a crowd and see only their
friends. The Everts repeat lengthy quotes from their own witnesses in the administrative
hearing. They focus only on testimony supportive of their position and ignore extensive
testimony that confirms they were aggressively isolating Thomasene from her family.
Substantial evidence supports APS' determination that the Everts mentally abused
Thomasene by inappropriately isolating her from family members.
No. 32455-9-111 Evert v. Dep't ofSoc. & Health
Both Sarah and Stephen Evert admitted to APS investigators that they
intentionally limited Thomasene's contact with her children and husband. The Board
found they moved Thomasene from Boise to Spokane without notifying all family
members, and assisted her in filing for divorce despite her inability to understand the
proceedings, and her advanced dementia. Thomasene Blevins and Dale McCleary were
allowed to communicate with Thomasene, but they were careful to couch their
conversations in nonconfrontational topics in order to avoid Stephen and Sarah's wrath.
The Everts greatly restricted Thomasene's contact with Glenn, Phyllis Keith, and Glenna
Kimball. As the ALJ noted, even if the Everts thought that such restrictions were in
Thomasene's best interest, they were nonetheless inappropriate and disqualify the Everts
from having "unsupervised contact and care over a vulnerable adult." AR at 44.
The DSHS Board of Appeals correctly noted that the Everts "assign error because
they disagree with the ALl's determinations, not because actual errors exist." AR at 16.
The Board specifically found the Everts' testimony less credible than that of Sarah
Evert's siblings. We will not disturb this determination on appeal.
CONCLUSION
We affirm the superior court and the DSHS Board of Appeals' decision and final
order.
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.
Fearing, .
WE CONCUR:
Lawrence-Berrey, J.