IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

NORMA OCAK, No. 56862-4-II

Respondent,

v.

STATE OF WASHINGTON DEPARTMENT 

OF SOCIAL AND HEALTH SERVICES,

UNPUBLISHED OPINION

Appellant.

VELJACIC, J. — The Washington State Department of Social and Health Services 

(Department) appeals the reversal of a final agency order by the Thurston County Superior Court. 

This final order, issued by the Department of Social and Health Services Board of Appeals (BOA), 

concluded that Norma Ocak neglected her adult son because she failed to request certain services 

for his needs and failed to prevent him from going into the community alone without proper 

supervision. The Department contends that Ocak’s actions and inactions demonstrate a serious 

disregard of consequences of a magnitude as to constitute a clear and present danger to the 

vulnerable adult’s health, welfare, or safety, as well as a pattern of conduct or inaction that fails to 

avoid or present physical or mental harm or pain to a vulnerable adult. 

We hold that the BOA erroneously applied the law to the facts when it concluded that 

Ocak’s conduct rose to the level of neglect, and we affirm the superior court’s reversal of the final 

order finding neglect. 

Filed

Washington State

Court of Appeals

Division Two

May 23, 2023
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FACTS

Ocak is the mother, guardian, and caregiver for her developmentally delayed adult son, 

I.O. I.O. has down syndrome and obsessive compulsive disorder. He has lived with his mother 

and she has cared for him his entire life. 

In 2018, I.O. received an assessment that resulted in a Person Centered Service Plan. This 

assessment concluded that I.O. required high levels of supervision and should not be left 

unattended. At the time of this assessment, I.O. qualified for 117 Community First Choice inhome care hours per month. Ocak was his paid care provider for those hours. I.O. also received 

annual State Supplementary Payment (SSP) funds in lieu of Individual Family Services (IFS), 

meaning that I.O. received $2,400 in annual SSP funds, rather than IFS waiver services, which 

would include respite care and other services. 

Due to his mental health conditions, I.O. has a history of eloping from his home without 

alerting anyone. When these elopements occur, I.O. engages in unsafe and unlawful behaviors 

such as shoplifting, walking into oncoming traffic, and trespassing. Ocak has tried various 

strategies to mitigate this behavior, such as: installing an alarm system in her home, purchasing 

I.O. a watch with GPS tracking, moving his bedroom next door to her bedroom, and cultivating 

relationships with local law enforcement and business owners so they would be familiar with I.O. 

in the event that he wandered off. Each time he has eloped, Ocak called 911 to report him missing, 

and he was returned home safely by law enforcement or a family member.

Ocak has also enlisted the support of mental health providers at Sound Mental Health 

(SMH) to help address these behaviors. Ocak and I.O. have worked closely with Mariah Zeise, an 

SMH counselor, since 2019. Zeise submitted a declaration describing her professional opinion of 

I.O.’s situation to the court, stating: 
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I and other professionals at [SMH] have discussed I.O.’s situation at length and 

concluded that Norma Ocak is doing an admirable job caring for I.O. I.O. has very 

challenging behaviors. He has certain things that he wants to do, and he is 

determined to do them. . . . We believe that his challenging behaviors would most 

likely lead to a failed placement in an Adult Family Home []. The other living 

option would be a residential supported living placement, where the supervision 

would be greater. Because I.O. is determined to do certain things (e.g., go out on 

[his] own, get frequent haircuts, etc.), he could get extremely upset if someone tried 

to stop him. We worry that he might lash out at a supported living provider, 

resulting in harm to the provider or himself. . . . My impression is that at no point 

did Norma act in a neglectful way. She has always provided the means to maintain 

the health and safety of I.O. His mental health disorder and developmental 

disability lead to him making poor, unsafe choices. From my perspective, Norma 

has always taken action when I.O. has made unsafe choices and has actively sought 

support and resources when his behavior does get unmanageable. . . . I have never 

observed anything in my interactions with Norma Ocak or I.O. that would have led 

me to consider making [a negligence] report.

Administrative Record (AR) at 411-12. 

I.O. was jailed twice while eloping. On one of these occasions, he stayed in jail for two 

days because no one picked him up. Ocak believed that someone from SMH would pick him up 

and take him home as part of the crisis plan to address I.O.’s elopements, but because it was a 

weekend, no one was available. Jennifer Goodwin, Personal Recognizant Screener at Seattle 

Municipal Court, testified that I.O was frightened and angry during his time in jail. Goodwin 

recalled that I.O. repeatedly pounded on his cell door, yelled “mom” over and over, and cried. AR 

at 116. She recalled that jail staff were very upset that I.O. had remained in jail. Ms. Goodwin 

opined that it was very traumatic for I.O. to be in jail. I.O. was ultimately picked up by his brother.

Adult Protective Services (APS) began an investigation into Ocak pursuant to allegations 

of neglect. Based on its investigation, APS notified Ocak that: 

From approximately July 6th 2019 through August 24th, 2019, a vulnerable 

adult under your supervision eloped at least once a week. As a person with [a] 

“duty of care,” it is your responsibility to assure that he is safe and you are meeting 

his needs. Furthermore, the vulnerable adult’s Service Plan negotiated with 

[Developmental Disabilities Administration] states, “the vulnerable adult requires 

supervision during awake hours and can’t be left alone.” The vulnerable adult has 
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many interactions and reported instances with the Seattle Police Department. He 

has a history of crossing the streets unsafely, where vehicles had to swerve or brake 

to avoid hitting him; has made many trips to emergency rooms due to unsafe 

behaviors; and has been the subject of Missing Person Reports. Additionally, you 

have been offered in-home supports to help with supervision, and you have rejected 

these options. Based upon your lack of supervision, you place the vulnerable adult 

in clear and present danger.

AR at 251. 

Ocak requested a hearing before the office of administrative hearings. At the hearing, an 

initial order was entered upholding APS’s finding of neglect. Ocak appealed. The BOA affirmed 

the initial order and entered a final order concluding that Ocak had neglected I.O. under former 

RCW 74.34.020(16)(a) and (b) (2020).

1 When the neglect finding became final, Ocak could no 

longer work as I.O.’s individual provider. Ocak appealed the BOA final order to Thurston County 

Superior Court, which concluded substantial evidence did not support a finding of neglect under 

RCW 74.34.020(15) and reversed the BOA’s order. The Department appeals to this court. 

ANALYSIS

I. ABUSE OF VULNERABLE ADULTS

The Department argues that Ocak’s actions and inactions demonstrate a serious disregard 

of consequences of a magnitude as to constitute a clear and present danger to the vulnerable adult’s 

health, welfare, or safety, as well as a pattern of conduct or inaction that fails to avoid or present 

physical or mental harm or pain to a vulnerable adult. We disagree. 

 

1 RCW 74.34.020 was amended in 2021 and the definition of neglect was shifted to subsection 

(15) from subsection (16), effective July 1, 2022. See LAWS OF 2021 ch. 215 § 162. At the time 

of the BOA’s final order, the citation for the definition of neglect was RCW 74.34.020(16). For 

ease of reading, we will cite to the current statute subsection (15) in this opinion as no language 

pertinent to our review was amended.
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A. Standard of Review 

We may grant relief from final agency action when “[t]he agency has erroneously 

interpreted or applied the law” or “[t]he order is not supported by evidence that is substantial when 

viewed in light of the whole record before the court, which includes the agency record for judicial 

review, supplemented by any additional evidence received by the court under this chapter.” RCW 

34.05.570(3)(d)-(e). We review such a contention de novo, but “‘give substantial weight to [the 

agency’s] interpretation of the law when subjects fall within [the agency’s] area of expertise.’” 

Woldemicael v. Dep’t of Soc. & Health Servs., 19 Wn. App. 2d 178, 181-82, 494 P.3d 1100 (2021)

(quoting Pac. Coast Shredding, LLC v. Port of Vancouver, 14 Wn. App. 2d 484, 502, 471 P.3d 

934 (2020)). “The party challenging the agency action has the burden of demonstrating the 

invalidity of the action.” Beatty v. Fish & Wildlife Comm’n, 185 Wn. App. 426, 443, 341 P.3d 

291 (2015); RCW 34.05.570(1)(a).

B. Legal Principles 

Chapter 74.34 RCW governs the Abuse of Vulnerable Adults (AVA). The basis for the 

neglect finding in the final order at issue here is RCW 74.34.020(15): 

“Neglect” means (a) a pattern of conduct or inaction by a person or entity with a 

duty of care that fails to provide the goods and services that maintain physical or 

mental health of a vulnerable adult, or that fails to avoid or prevent physical or 

mental harm or pain to a vulnerable adult; or (b) an act or omission by a person or 

entity with a duty of care that demonstrates a serious disregard of consequences of 

such a magnitude as to constitute a clear and present danger to the vulnerable

adult’s health, welfare, or safety.
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The statute does not further define “serious disregard” or “clear and present danger.” 

Woldemicael, 19 Wn. App. 2d at 182. Our duty in statutory interpretation is to discern and 

implement the legislature’s intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 

(2012). When we interpret a statute or regulation, it gives the words in that statute or regulation 

their plain and ordinary meaning. Tesoro Ref. & Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 

322, 190 P.3d 28 (2008) (plurality opinion); Stevens v. Brink’s Home Sec., Inc., 162 Wn.2d 42, 47, 

169 P.3d 473 (2007). We decipher a statute in such a way as to give effect to all language used, 

rendering no part superfluous. In re Det. of Ambers, 160 Wn.2d 543, 552, 158 P.3d 1144 (2007);

State v. Young, 125 Wn.2d 688, 696, 888 P.2d 142 (1995). We may look to related statutes when 

interpreting a regulation. Mader v. Health Care Auth., 149 Wn.2d 458, 473, 70 P.3d 931 (2003). 

Questions of statutory or regulatory interpretation are reviewed de novo. Tesoro Ref. & Mktg. Co.,

164 Wn.2d at 316.

C. The BOA Erroneously Applied the Statutory Neglect Standard in Concluding that 

Ocak Committed Neglect under RCW 74.34.020(15) 

Here, the BOA found the elements of (a) a pattern of actions or omissions by Ocak leading 

to harm to I.O. and (b) her “serious disregard of consequences of such a magnitude as to constitute 

a clear and present danger” to him. RCW 74.34.020(15)(b). The circumstances of this case as a 

whole do not support this finding. 

1. RCW 74.34.020(15)(b): “Serious disregard of consequences” 

The Department was required to establish that a person with a duty of care to the vulnerable 

adult committed “an act or omission . . . that demonstrates a serious disregard of consequences of 

such a magnitude as to constitute a clear and present danger to the vulnerable adult’s health, 

welfare, or safety.” RCW 74.34.020(15)(b). The definition of neglect in the AVA is similar to 

the definition in the Abuse of Children Act. See RCW 26.44.020(19). Notably, both statutes 
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contain the key terms “serious disregard of consequences” and “clear and present danger.” See

RCW 74.34.020(15); RCW 26.44.020(16). But the Brown court determined that the statute’s 

definition of “negligent treatment” that referenced “serious disregard of the consequences” to be 

distinct from the regular definition of negligence: “failure to exercise such care as a reasonable 

person would exercise under the same or similar circumstances.” Brown v. Dep’t of Soc. & Health 

Servs., 190 Wn. App. 572, 590, 360 P.3d 875 (2015). The court reasoned that “serious disregard” 

is a higher standard than simple negligence, and is more analogous to the utter disregard for 

another’s safety test applied to claims of wanton misconduct. Id.

In this case, the Department argues that the standard in Brown does not apply to this case 

after the decision in Woldemicael, 19 Wn. App. 2d at 182. In Woldemicael, the court declined to 

apply the Brown standard to cases of adult neglect, because the relationship between a parent and 

a minor child implicates the fundamental right to parent while the relationship between a caregiver 

and a vulnerable adult does not. Id. The Department in this case is correct that the heightened 

standard in Brown does not apply here because this case deals with neglect of a vulnerable adult. 

Nevertheless, as the Woldemicael court concluded “serious disregard requires more than simple

negligence.” 19 Wn. App 2d at 182. Ocak’s conduct does not reach this standard. While the 

heightened standard in Brown does not apply, neither does simple negligence. 

There is no dispute that Ocak owed I.O. a duty of care. There is also no question that Ocak 

failed to prevent I.O. from eloping into the community unsupervised. But the fact of I.O. eloping 

does not necessarily lead to the conclusion that Ocak’s actions and inactions constitute a serious 

disregard of the consequences to such a magnitude that it created a clear and present danger to I.O. 

In fact, the record shows Ocak took numerous actions to prevent elopement, demonstrating that 

she did regard the consequences. Such actions included installing an alarm system, getting I.O. a 
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GPS watch, moving his bedroom next to her bedroom, taking him outside every day for exercise 

to alleviate his wanderlust, cultivating relationships with local law enforcement and business 

owners, calling 911 to report him missing, and working with SMH counselors. Sadly, those 

measures were not always enough, but this alone does not establish that Ocak’s conduct amounts 

to neglect. On the contrary, the measures Ocak took tend to show a serious regard for the potential 

consequences of I.O.’s elopements. The BOA erroneously applied the statutory neglect standard 

when it concluded that Ocak’s omissions rose to a level of “serious disregard of consequences” in 

light of all of the actions she took to prevent I.O.’s elopements. 

2. RCW 74.34.020(15)(a): “fails to avoid or prevent physical or mental harm”

In its final order, the BOA concluded at conclusion of law 17 that Ocak neglected I.O. as 

defined in RCW 74.34.020(15)(a) through her “repetitive failure to ensure the necessary service 

of adequate supervision of I.O. when he was out in public” that “constitute a pattern of conduct or

inaction [] that failed to provide the critical service of supervision to maintain I.O.’s physical or 

mental health.” AR at 53. We agree with Ocak that the BOA erred in this conclusion because 

there was no nexus between her conduct and the harm to I.O. 

The Department was required to establish a pattern of actions or omissions by Ocak which 

lead to I.O.’s harm. See RCW 74.34.020(15)(a). The Department argues that by not requesting 

additional services for I.O. and instead opting to receive a $2,400 annual supplemental payment, 

Ocak engaged in neglect and caused harm to I.O. The Department contends that these services 

would have prevented I.O.’s elopements because they would have provided additional supervision, 

and that Ocak “repeatedly failed to request appropriate services for him and failed to provide 

services to him that she was required to provide under his plan of care.” Br. of Dep’t at 40. We 

disagree. 
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The respite services the Department refers to are not supervisory services. They are meant 

to assist with day to day activities. I.O. only qualified for 117 hours of these services per month, 

which amounts to less than 4 hours of care per day. I.O. could have certainly eloped while using 

these services, not to mention when respite services were not being provided during the remaining 

20 hours in the day. The Department does not demonstrate how utilizing respite services would 

have prevented I.O.’s elopements. Instead, the Department assumes a nexus exists because Ocak 

is I.O.’s legal guardian and care provider. This assumption does not support a neglect finding 

under RCW 74.34.020(15)(a). 

Further, the Department argues that Ocak opting for the $2,400 per year SSP in lieu of 

additional care hours demonstrates a failure to accept appropriate services for I.O. But Ocak used 

this payment to ensure I.O. had money to purchase things he enjoys, like haircuts, food, and 

magazines. These items also mitigated I.O.’s feelings of anger and aggression. Again, the 

Department fails to show that additional care hours would have prevented I.O.’s elopements. This 

argument suffers from the same shortsightedness as the Department’s argument regarding respite 

services: it ignores that the problem of a grown adult willfully eloping exists around the clock. For 

the aforementioned reasons, the BOA erroneously applied the statutory neglect standard when it 

concluded that Ocak’s omissions establish a pattern of behavior that lead to I.O.’s harm, because 

there is no nexus between Ocak’s choice of services and harm to I.O. Conclusion of law 17 was 

entered in error. 

3. Public Policy 

Ocak argues that our public policy should not be that developmentally delayed adults 

cannot live at home with their family members because if they wander off, the family members 

will be found to have committed neglect. We find this argument persuasive. 
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The Department argues that based on I.O.’s history with wandering off into the community, 

he should have been in an adult family home. But I.O.’s SMH counselor, who knows the family 

well, testified that placement in an adult family home would not have been a good fit for I.O., and 

Ocak had reason to believe this is not what I.O would have wanted. I.O. has been cared for by his 

mother for his entire life, and has lived in the same house for nearly 30 years. He was distressed 

being separated from his family when he spent the weekend in jail, crying and calling out for his 

mother. Opting to not place I.O. in an adult family home does not amount to a repeated failure to 

take protective action. Rather, it was a decision made based on what was in the best interest of 

I.O. 

It also cannot be that the only acceptable place for someone like I.O. is in a locked facility. 

While placement in a facility may have ensured he could not elope, he would be separated from 

his mother who has cared for him every day up until this point. Rigidly applying these statutes 

would come at a large cost to the mental and emotional health of vulnerable adults and place 

families in an impossible situation. 

Finally, Ocak assigns errors to numerous findings of fact. But, because we conclude that 

the BOA erred in determining Ocak committed neglect, we need not reach whether the findings of 

fact are supported by substantial evidence. 

We conclude that even though the BOA applied the correct neglect standard under RCW 

74.34.020(15), it erroneously applied the law to the facts when it entered conclusion of law 17 and 

ruled that Ocak neglected I.O. We affirm the superior court’s decision that reversed the BOA’s 

neglect finding.
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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 in accordance with RCW 2.06.040, 

it is so ordered.

Veljacic, J.

We concur:

Maxa, J.

Glasgow, C.J.