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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON YEVGENY SEMENENKO and NATALYA SEMENENKO, Appellants,

v. STATE OF WASHINGTON, DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondents. No. 70354-4-1 DIVISION ONE

UNPUBLISHED OPINION FILED: August 11, 2014



### Becker, J. —When the Department ofSocial and Health Services reaches a formal conclusion that allegations of child abuse are founded, the 

### person againstwhom the finding is entered must petition for internal review 

### within 20 days of receiving notice. When that deadline is not met, review of the finding of child abuse is not available. 

### InNovember 2009, appellants Yevgeny and Natalya Semenenko were 

### looking for helpin dealingwith their drug-addictedteenage daughter, Letitcyia. On November 10, 2009, at 2 a.m., they broughtthe girl to a licensed drug treatment centerfor admission. She resisted being admitted, and a physical 

### struggleensued in which the parents allegedly pushed and kicked her. TheNo. 70354-4-1/2 

### Department received a report alleging that the Semenenkos physicallyabused their daughter at the treatment center. 

### The Department responded to this incident in two ways: by opening a
case with Family Voluntary Services and by initiating an investigation through Child Protective Services. These two units ofthe Department are both withinthe Division of Children and Family Services. 

### On December 3, 2009, the Semenenkos received a form letter informing them thatthe case with FamilyVoluntary Services was being closed: Your case with () Child Protective Services (X) Family Voluntary 

### Services () ChildWelfare Services () Family Reconciliation Services willbe closed effective December 11, 2009. The letter recommended thatthey continue to attemptto get Letitcyia into an in patienttreatmentfacility and attend support groups and classes about drug addiction. Itprovided contact information for requesting further services from the Division of Children and Family Services. On April 5, 2010, Child Protective Services sent Yevgeny a certified letter to inform him ofthe results ofthe investigation into the report ofphysical abuse of Letitcyia and his rights concerning those results. The letter stated that the allegations were "Founded." Itexplained, "When an allegation is 'Founded,' it

means that CPS investigated the allegation and, based on the information available, has determined that itwas more likely than not thatthe abuse and/or neglect occurred and you are the person responsible for the abuse and/or neglect." A similar letterwas sentto Natalya. The Semenenkos received their letters on April 22 and 29 respectively.No. 70354-4-1/3 

### The letters informed the Semenenkos that "Founded" reports by Child Protective Services are kept inthe computersystem ofthe Department's Children's Administration where, though they are "confidential and cannot be 

### released to the public,"they can be released forpurposes ofdetermining "ifyou
can be licensed or employed to provide care for children orvulnerable adults." Once notified thatthe investigation ended with a founded report of child abuse, the Semenenkos had 20 days to request a Department review: Within twenty calendardays after receiving written notice from the department under RCW 26.44.100 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. The request must be made in writing. If a request for review is not made as provided inthis subsection, the alleged perpetrator may not further challenge the finding and shall have no right to agency review or to an adjudicative hearing orjudicial review ofthe finding. 

### Former RCW26.44.125(2) (2008).1 The notification letters advised them of the 20-day deadline: CA [Children's Administration] must receive yourwritten request for a review within 20 calendar days from the date you receive this letter. IfCA does not receive the requestwithin 20 calendar days ofthe date you receive this letter, you will have nofurther rightto challenge the CPSfindings. The Semenenkos did not request review until almost a year later. In November 2010, Natalya lost herjob as a caregiverfor the elderly when her employer performed a routine periodic background check and discovered her

name on the Department's database offounded allegations of child abuse.

1Effective June 7, 2012, the legislature extended the deadline to 30 days. LAWOF2012, ch. 259 §11.No. 70354-4-1/4 

### On March 25, 2011, the Semenenkos requested a review of the child 

### abuse finding. The Departmentacknowledged their request in a responding lettersent onApril 18,2011. This letteradvised the Semenenkos that they were beyond the 20-day deadline for requesting review. The letter informed the 

### Semenenkos that they could "challenge this" by requesting the Office of Administrative Hearings to hold a hearing. 

### On May 12, 2011, the Office of Administrative Hearings received a letter from the Semenenkos requesting a hearing: 

### We were accused in responsibility to our daughter abuse inApril 2010. CPS told us that case is closed afterthey got all information from us and ourchild Letitciya. 

### For almost a yearwe did not knowthat charges filed on our criminal records, afterwhat Ilost my job. We are good parents! There is no 

### abuse in our family and we are requesting an administrative hearing to confirm our innocence inthis matter. Please help! The Department moved to dismiss on the basis thatthe Semenenkos did not request review ofthe child abuse finding within the 20-day deadline offormer RCW 26.44.125(2). On October 5, 2011, an administrative lawjudge issued an initialorder 

### granting the Department's motion to dismiss. While expressing sympathyfor the Semenenkos' circumstances, thejudge concluded that underformer RCW 

### 26.44.125(2), he had no authority to allowthem to proceed with a hearing on the merits ofthe child abuse finding because they had not requested review within 20 days of receiving notice in April 2010.No. 70354-4-1/5 

### The Semenenkos petitioned for review bythe Board ofAppeals. Their 

### petition referred to November2009 as the "time of our desperation" in dealing withtheir daughter's chemical dependency. They said they misunderstood the letter ofDecember 3, 2009, from FamilyVoluntary Services and thought itsaid the child abuse investigation had been closed. Now, looking back atthis paperwe see that only the family services were closed not CPS, we misunderstood because the mark stood next to the CPS services. Then, for 4 months we received nothing and heard nothing. In April 2010 we received a letter stating that "we were guilty." We didn't understand, and thought itwas some kind ofmistake, we wanted to call CPS ourselves but our daughter Letitciya was very angry aboutthe situation and wanted to call herself. She found the phone number on the letter and talked to someone, saying "my parents are not child abusers." She asked the person on the phone "what should we do? How can we fix this?" The lady told us thatwe don't need to do anything, because the case is closed. That gave us the impression that everything

was over.

... ifwe had known the truth and been given proper information on what to do we would have settled this from the start.

. . . Therefore, we ask for you to give us a chance to speak and let us be heard
.... Having an opportunity to have this hearing will hopefully put us all at a fresh start. On May 10, 2012, the Board ofAppeals affirmed the order ofdismissal and on June 1, 2012, the Board denied a motion for reconsideration. The Board concluded thatthe Department could not grant relief. Because the Semenenkos 

### had not timely requested internal review ofthe founded child abuse finding, they

were not entitled to a hearing on the merits ofthatfinding. On June 28, 2012, the Semenenkos filed a petition forjudicial review of the decision by the Board ofAppeals. They asked the courtto order a fair hearing to considerthe child abuse finding on the merits. The court granted the Department's motion to dismiss. This appeal followed. 5No. 70354-4-1/6 

### This courtstands in the same position as the trial court when reviewing an administrative agency decision. Hardee v. Dep't ofSoc. & Health Servs.. 172 

### Wn.2d 1,6, 256 P.3d 339 (2011). The partychallenging the validity of agency action has the burden ofdemonstrating itsinvalidity. RCW 34.05.570(1)(a). Judicial review ofadministrative agency orders is governed by the Administrative ProcedureAct, which provides the grounds on which such an ordermay be challenged. RCW 34.05.570(3). The Semenenkos contend the Department acted outside its statutory authority or jurisdiction, failed to follow a prescribed procedure, erroneously interpreted or applied the law, or issued an order not 

### supported by substantial evidence. RCW 34.05.570(3)(b)-(e). Department delay in completing the investigation 

### The Semenenkos argue thatthe Department acted outside its jurisdiction when itmade the finding of child abuse aftertaking longerto finish the child abuse investigation than is permitted by statute. They requestthatwe reverse the superiorcourt order ofdismissal, declare the child abuse finding void, and orderthe Departmentto remove their names from any registry of known child
abusers. When the investigation ofthe Semenenkos began in November 2009, a statute required the Departmentto complete an investigation into alleged child abuse within 90 days of receipt: For reports of alleged abuse or neglectthat are accepted for investigation by the department, the investigation shall be conducted within time frames established by the department in rule. In no case shall the investigation extendlongerthan ninetydays from the date the report is received, unless the investigation is being conducted under a written protocol pursuantto RCWNo. 70354-4-1/7 

### 26.44.180 and a lawenforcement agency orprosecuting attorney has determined that a longer investigation period is necessary. At the completion ofthe investigation, the department shall make a 

### finding thatthe report of child abuse or neglect is founded or unfounded. 

### Former RCW26.44.030(11)(a) (2009)2 (emphasis added). The agency rules promulgated underthis statute state thatthe agency attempts to complete 

### investigations within 45 days but "in no case shall the investigation extend beyond ninety days." WAC 388-15-021(7). 

### The Departmentdid not meetthe 90-day deadline. The investigation began in November2009 and was not concluded until April2010. The 

### Semenenkos argue thatthe Department's failure to complete its investigation within 90 days renders the child abuse finding void as an ultra vires act. The Semenenkos cite CR 60(b)(5). A voidjudgmentcan be attacked at any time under CR 60(b)(5). Cole v. Harvevland. LLC. 163 Wn. App. 199, 205, 258 P.3d 70 (2011). Because a child abuse finding is not ajudgment, CR 60(b)(5) does not apply. However, a line ofauthority not cited by the parties establishes that an ultra vires act by a state agency can be attacked as "void" if the agency was without any authority to act on the subject. S. Tacoma Wav, LLC, v. State. 169Wn.2d 118, 123, 233 P.3d 871 (2010). And like a void judgment, a truly ultra vires act is generally subjectto challenge and invalidation at any time. S. Tacoma Wav, 169 Wn.2d at 124. We willtherefore assume that

2This chapterwas amended effective December 1, 2013. Laws of2012, ch. 259, § 3. As amended, this provision appears at RCW 26.44.030(12)(a). The language is unchanged.No. 70354-4-1/8 

### missing the statutory 20-day deadline for seeking review would not preventthe Semenenkos from obtaining relief from the child abuse finding ifthe finding were void as an ultra vires act. 

### The Departmentresponds thatthe finding cannot be void because the 90- 

### day time limit is only directory, notwithstanding the legislature's use of the word "shall." Whetherthe 90-day time limit is mandatory or directory is an important issue, but itneed not be decided in this case. Even ifthe Department's failure to 

### complete its investigation within 90 days violated a mandatory requirement, the findingthat resulted fromthat investigation is not ultra vires. 

### Agovernment action is trulyultavires only ifthe agency was without 

### authority to perform the action. S. TacomaWav, 169Wn.2d at 122. Here, it is undisputed that the Departmentwas authorized to make a finding ofchild abuse. The Department's failure to make the finding within 90 days was a procedural 

### irregularity, not an ultra vires act. See S. Tacoma Wav. 169 Wn.2d at 121-26. We conclude the finding of childabuse is not void and the Semenenkos are not entitled to have it vacated. The Semenenkos attached two unpublished trial court orders as 

### appendices to theirreply briefto show that some superior courts have vacated findings ofchild abuse when shown that the Department's investigation was not 

### completedwithin 90 days. The Department has moved to strike. In view of our resolution of the 90-day issue, it is unnecessaryto considerthe motion to strike.

8No. 70354-4-1/9 Equitable estoppel 

### Alternatively, the Semenenkos contend the Department is equitably 

### estopped from enforcing the 20-day deadline againstthem. "Equitableestoppel is based on the principle that: 'a party should be held to a representation made
or position assumed where inequitable consequences would otherwise resultto 

### another party who hasjustifiably and ingood faith relied thereon.'" Kramarevckv


### v. Dep't ofSoc. & Health Servs.. 122 Wn.2d 738, 743, 863 P.2d 535 (1993), quoting Wilson v. Westinghouse Elec. Corp.. 85 Wn.2d 78, 81, 530 P.2d 298 

### (1975). A party asserting equitable estoppel againstthe government must prove the following by clear, cogent, and convincing evidence: (1) a party's admission, statement, or act inconsistentwith its laterclaim; (2) action by another party in reliance on the first party's act, statement, or admission; (3) injurythatwould result to the relying party from allowing the first party to contradict or repudiate the prior act, statement, or admission; (4) necessary to prevent a manifest injustice; and (5) the exercise ofgovernmental functions must not be impaired as
a result ofestoppel. Kramarevckv, 122 Wn.2d at 743-44. Equitable estoppel against the government is disfavored. Kramarevckv. 122 Wn.2d at 743. The Semenenkos claim they were confused by the December 3, 2009, letter informing them that the case with Family Voluntary Services was being closed. They thought itmeantthat the child abuse investigation had been closed and there was nothing more they needed to do to be cleared ofthe child abuse allegation. They say that in April 2010 when they received the letters informing them ofthe child abuse finding, their daughter Letitciya called the Department toNo. 70354-4-1/10 clarify. They claim the Department specifically told them, through Letitciya, that the letters must be a mistake and to ignore them. The information allegedly communicated to Letitciya overthe telephone cannot serve as the basis for finding equitable estoppel against the government because the Semenenkos do not show the person on the phone with Letitciya
was someone with authority to speakforthe Department. Thus, it is not clear, 

### cogent, and convincing evidence of a statement bythe Department inconsistent with its later claim thatthe letters sent in April 2010 triggered the 20-day deadline. Cf. Ruland v. Dep't of Soc. &Health Servs.. 144 Wn. App. 263, 182 P.3d 470 (2008). InRuland. no one could dispute that the inconsistent communication occurred. The assistant attorney general made the predicate statement on the record at a prehearing conference. Here, the Semenenkos did 

### not identify the person who allegedly made the statementon behalfof the Department. Because their evidence is insufficient to prove an inconsistent statement, their claim ofequitable estoppel fails.
Good cause excuse 

### The Semenenkos also argue thatthe statutory 20-day deadlinefor 

### requesting internal review is not enforced where there is a showing of "good cause." They ask this court to find they had good cause excusing their untimely 

### requestforreview. They requestthat the matter be remanded for an adjudicative hearing where they would have the opportunity to argue the merits of the child abuse finding.

10No. 70354-4-1/11 The Semenenkos cite a regulation promulgated underthe Administrative Procedure Act, RCW 34.05.020. The regulation is entitled "Whatdoes good

cause mean?" WAC 388-02-0020. The regulation defines "good cause" and 

### provides guidance for an administrative lawjudge who is asked to make a finding of good cause: (1) Good cause is a substantial reason or legaljustification for failing to appear, to act, or respond to an action. To show good cause, the ALJ must find that a party had a good reason for what 

### they did or did not do, using the provisions ofSuperior Court Civil Rule 60 as a guideline. (2) Good cause may include, but is not limited to, the following examples. 

### (a) You ignored a notice because you were inthe hospital or were otherwise prevented from responding; or (b) You could not respond to the notice because itwas written in a language that you did not understand. WAC 388-02-0020. 

### The regulation explains how an administrative lawjudge will interpret and 

### apply the term "good cause" in a proceeding where the term is relevant. The regulation does not provide general substantive authority to invoke good cause
as an excuse whenever a party fails to meet a statutory deadline. Here, the 

### statute establishing the deadline, former RCW 26.44.125(2), does not provide substantive authority permitting the Departmentto waive the 20-day deadline when good cause is shown. 

### The Semenenkos point out in their reply briefthatthe applicability of WAC 388-02-0020 was raised in a similar case, Rvan v. Department of Social &Health 

### Services. 171 Wn. App. 454, 287 P.3d 629 (2012). The Department agreed in that case thatWAC 388-02-0020 applies to late hearing requests made by an

11No. 70354-4-1/12 

### alleged perpetratorofabuse. Rvan, 171 Wn. App. at 464. But the Department has not made the same concession in this case, and the appeal in Ryan was 

### decided on othergrounds. The opinion contains no holding pertinentto the applicability of WAC 388-02-0020. 

### We conclude the Semenenkos were not entitled to have the Department 

### apply WAC 388-02-0020 as a basis forconsidering whetherthey had a good
cause excuse for missing the 20-day deadline for requesting review. Because the Semenenkos did not timely seek internal review ofthe child abuse finding, they are not entitled to a hearing on the merits ofthatfinding. Notice reguirements The Semenenkos also argue that they are exemptfrom the consequences ofmissing the review deadline because the Departmentdid not comply withthe notice requirements of RCW 26.44.100. Under RCW 26.44.100(2), the subject of a child abuse report must be notified of a finding of child abuse when the investigation is completed. Under former RCW 26.44.125(2), an alleged perpetratorwho has received "written notice under RCW 26.44.100" must request review within 20 days or review will
not be available. As the result ofan amendment effective June 7, 2012, the 20- day deadline for seeking review does not apply ifthe Department did not comply with the notice requirements of RCW 26.44.100: If a requestfor review is not made as provided inthis subsection, the alleged perpetrator may not further challenge the finding and shall have no right to agency review or to an adjudicative hearing or judicial review ofthe finding, unless he or she can show thatthe department did not comply with the notice reguirements of RCW 26.44.100. 12No. 70354-4-1/13

RCW 26.44.125(3) (new language is underlined). The Semenenkos contend that the notification letters they received in April 2010 did not comply with the notice requirements in RCW 26.44.100 because the 

### Departmentdid not complete the investigation within 90 days. Even ifthe new 

### language in RCW26.44.125 applies retroactively, which has not been demonstrated, it is not helpful to the Semenenkos. The Department's delay in 

### completing the investigation does not make the notice ofthe completed investigation deficient under RCW 26.44.100 RCW. The requirementthatthe 

### Departmentcomplete its investigation within 90 days is found in a different statute, RCW 26.44.030. Missing administrative record 

### The Department Board ofAppeals was supposed to transmit a certified 

### copy of the administrative record to the superiorcourt. Although the Board notifiedthe parties that ithad done so, the administrative record was never 

### properlyfiled in superiorcourt. The administrative record is before us on appeal

as a result ofthe parties' agreementto supplementthe record. The Semenenkos deduce that the superiorcourt must not have reviewed 

### the administrative record. They contend the court's failure to considertheir 

### petition inlight of the actual record requires the order of dismissal to be reversed and remanded. 

### The record is important to judicial review of a decision by a lower tribunal. 

### The superior court should not undertakejudicial review of an agency decision without a record. Nevertheless, ifthat is what occurred here, remand is not 13No. 70354-4-1/14 necessary becausethis court stands inthe same position as the superior court. The decision under review is the Department's decision to dismiss the Semenenkos' claims without allowing them an evidentiary hearing on the merits ofthe child abuse finding. As the issues are entirely legal, nothing would be accomplished by a remand. The order ofdismissal is affirmed. The Semenenkos' requestfor an award ofattorney fees is denied.

WE CONCUR:

14