FILED 


NOV. 14,2013 


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 TIIREE 


IN RE DEPENDENCY OF A.P. ) 

) No. 30925-8-III 

) 

) 

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) PUBLISHED OPINION 

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) 

FEARING, J. ­

INTRODUCTION AND RULING 

The state ofWashington, through the Department ofSocial and Health Services 

(DSHS), filed a petition alleging that the child A.P. was a dependent ofthe State. DSHS 

asserted that A.P. was abused or neglected, as defmed by the dependency statutes, and 

had no parent capable of caring for her. A.P.'smother, B.P., successfully opposed the 

dependency and retained custody ofher daughter. Upon a ruling in her favor from the 

superior court, B.P. sought an award ofreasonable attorney fees and costs, under RCW 

4.84.350, Washington's equal access to justice act (WEAJA). In short, the WEAJA 
No.30925-8-IIII 

In re Dependency ofA.P. 

other expenses, including reasonable attorneys' fees, unless the court finds that the 

agency action was substantially justified." RCW 4.84.350. The superior court denied the 

motion based on its understanding that RCW 4.84.350 provides for attorney fees only on 

judicial review of rulemaking and adjudicative proceedings governed by the 

Administrative Procedure Act (APA), chapter 34.05 RCW. B.P. appeals, arguing that the 

meaning of "agency action" as used in RCW 4.84.350 extends beyond rulemaking and 

agency adjudication. We affirm the superior court on the ground that this dependency 

action does not constitute "judicial review" of an agency action. 

FACTS 

This case presents a single question of law for review. As such, the facts of this 

case are largely irrelevant, although the facts include more than the background to the 

dependency petition. 

A.P., born in 2009, is the daughter of the formerly married couple, B.P. and 

B.M.P. In 2011, B.M.P. filed for divorce in Lincoln County. Since the parties have 

separated, B.P. has been the primary caregiver for A.P. 

On December 27,2011, A.P. suffered a bruise on her face. Confusion exists as to 

whether the bruise resulted from A.P.'s fall on an icy sidewalk or from a slap by B.P.'s 

boyfriend. B.P. broke off contact with the boyfriend. She relayed her concerns about the 

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bruise and her possible overreaction to the injury to her counselor, who reported the event 

to Child Protective Services (CPS). 

On January 10,2012, CPS gathered a family team decision meeting among a CPS 

facilitator, B.M.P., B.P., and B.P.'s attorney. CPS encouraged B.P. to place A.P. in the 

care ofB.M.P., but B.P. refused. 

On January 12, B.M.P. obtained a temporary restraining order, without notice to 

B.P. or her counsel, preventing B.P. from contact with A.P., effectively placing custody 

ofthe child with B.M.P. In support ofthe order, B.M.P. averred, "CPS advised me to get 

emergency protection for my daughter as soon as I could. They are working to give me 

full custodial rights." Clerk's Papers at 141. B.P. immediately moved to quash the order 

and a hearing was scheduled for January 17. In opposition to the motion to quash and in 

support of continuing the restraining order, a CPS social worker signed a declaration. 

The Lincoln County Superior Court granted the motion to quash and returned custody to 

B.P. 

On January 18, DSHS filed this dependency action, along with a motion for 

shelter care, with the Spokane County Superior Court. B.P. successfully gained an order 

transferring the action to Lincoln County, the situs ofthe divorce proceeding. On 

February 28, the Lincoln County Superior Court summarily dismissed the dependency 

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petition because of insufficient facts. B.P. then unsuccessfully sought an award of 

reasonable attorney fees and costs under RCW 4.84.350. 

ISSUE 

Whether a dependency action in superior court constitutes "judicial review" of an 

"agency action" within the meaning ofRCW 4.84.350? We answer in the negative. 

ANALYSIS 

In 1995, the Washington State Legislature passed the WEAJA, RCW 4.84.340­

.360. LAWS OF 1995, ch. 403, §§ 901-904. The WEAJA, modeled after the federal equal 

access to justice act, 28 U.S.C. § 2412, permits a court to award reasonable attorney fees 

and costs to a prevailing party who filed suit to oppose unlawful agency action. The 

WEAJA is a section ofa broader enactment creating regulatory reform. LAWS OF 1995, 

ch.403. In § 901 ofthe enactment, the legislature divulges the purpose behind the 

WEAJA: 

The legislature finds that certain individuals, smaller partnerships, smaller 

corporations, and other organizations may be deterred from seeking review 

of or defending against an unreasonable agency action because ofthe 

expense involved in securing the vindication of their rights in 

administrative proceedings. The legislature further finds that because of 

the greater resources and expertise ofthe state of Washington, individuals, 

smaller partnerships, smaller corporations, and other organizations are often 

deterred from seeking review of or defending against state agency actions 

because of the costs for attorneys, expert witnesses, and other costs. The 

legislature therefore adopts this equal access to justice act to ensure that 

these parties have a greater opportunity to defend themselves from 

inappropriate state agency actions and to protect their rights. 

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LAWS OF 1995, ch. 403, § 901 (emphasis added). 

The key provision ofthe WEAJA, RCW 4.84.350, reads in pertinent part: 

(1) Except as otherwise specifically provided by statute, a court shall award 


a qualified party that prevails in a judicial review ofan agency action fees 


and other expenses, including reasonable attorneys' fees, unless the court 


finds that the agency action was substantially justified or that circumstances 


make an award unjust. A qualified party shall be considered to have 


prevailed ifthe qualified party obtained relief on a significant issue that 


achieves some benefit that the qualified party sought. 


(2) The amount awarded a qualified party under subsection (l) ofthis 


section shall not exceed twenty-five thousand dollars. 


(Emphasis added.) "Agency," "agency action," "judicial review," and "qualified party," 

are incompletely defined in RCW 4.84.340. This definitional statute reads: 

Unless the context clearly requires otherwise, the definitions in this section 


apply throughout RCW 4.84.340 through 4.84.360. 


(1) "Agency" means any state board, commission, department, 


institution of higher education, or officer, authorized by law to make rules 


or to conduct adjudicative proceedings, except those in the legislative or 


judicial branches, the governor, or the attorney general except to the extent 


otherwise required by law. 


(2) "Agency action" means agency action as defined by chapte.r 

34.05 RCW. 

(4) "Judicial review" means a judicial review as defined by chapter I 

34.05 RCW. 

(5) "Qualified party" means (a) an individual whose net worth did 


not exceed one million dollars at the time the initial petition for judicial 
 

review was filed. I 

The question ofwhether DSHS is an "agency" for purposes ofthe WEAJA is not I at issue. DSHS has been ordered to pay attorney fees under the WEAJA. See, e.g., 

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No.30925-8-IIII 

In re Dependency ofA.P. 

Freeman v. Dep't ofSoc. & Health Servs., 173 Wn. App. 729, 749-50, 295 P.3d 294 

(2013); Conway v. Dep't ofSoc. & Health Servs., 131 Wn. App. 406, 420-21, 120 P.3d 

130 (2005). Whether B.P. is a "qualified party" is also not at issue. We focus our 

attention on the phrase ''judicial review." 

"We review the meaning of a statutory definition de novo, as an issue of law." 

State v. Johnson, l32 Wn. App. 400, 406, 132 P.3d 737 (2006). "The court's duty in 

statutory interpretation is to discern and implement the legislature's intent." Lowy v. 

PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d lO78 (2012). "Where the plain language of . 

a statute is unambiguous and legislative intent is apparent, we will not construe the 

statute otherwise." Id. "Plain meaning may be gleaned 'from all that the Legislature has 

said in the statute and related statutes which disclose legislative intent about the provision 

in question. '" Id. (quoting Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 

11,43 P.3d 4 (2002)). 

RCW 4.84.340 directs us to find the definition of "agency action" and "judicial 

review," in the APA. The APA defines "[a]gency action" as "licensing, the 

implementation or enforcement of a statute, the adoption or application of an agency rule 

or order, the imposition ofsanctions, or the granting or withholding of benefits." RCW 

34.05.010(3). Nowhere does chapter 34.05 RCW, the state APA, define ''judicial 

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No. 30925-8-1111 

In re Dependency ofA.P. 

review." Costanich v. Dep't ofSoc. & Health Servs., 164 Wn.2d 925,930, 194 P.3d 988 

(2008). 

One Washington case partially defined 'Judicial review," for purposes ofRCW 

4.84.350. In Cobra Roofing, the Supreme Court addressed whether the WEAJA applied 

when a party prevails at the agency level. Cobra Roofing Servs., Inc. v. Dep't ofLabor & 

Indus., 157 Wn.2d 90, 100, 135 P.3d 913 (2006). Answering that question, the court held 

that 'Judicial review" under both the WEAJA and the AP A means court review; thus the 

WEAJA did not apply to fees incurred at the agency level. Id. Cobra Roofing supports 

our conclusion, but does not fully answer our question. The decision equated "judicial 

review" with nonagency review by an elected judge, but did not directly answer the 

question ofwhat is "review" and whether the term "review" may encompass original 

actions filed by an agency in superior court. 

"The fact that a word is not defined in a statute does not mean the statute is 

ambiguous. Rather, an undefined term should be given its plain and ordinary meaning 

unless a contrary legislative intent is indicated." Ravenscroft v. Wash. Water Power Co., 

136 Wn.2d 911, 920-21, 969 P.2d 75 (1998). The dictionary defines "judicial review" as 

"a constitutional doctrine that gives to a court system and esp. to a supreme court the 

power to annul legislative or executive acts which the judges declare are contrary to the 

provisions ofthe constitution." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 

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No. 30925·8·1111 

In re Dependency ofA.P. 

1223 (1993). This ordinary meaning ofthe term "judicial review" does not apply in this 

context, because the WEAJA is concerned with overturning agency action regardless of 

the constitutionality ofthe action. 

Where a term does not have a plain and ordinary meaning, the courts apply the 

canon of noscitur a sociis, Latin for gleaning the meaning of a term by the words that 

surround it and the context in which it is used. Jongeward v. BNSF Ry. Co., 174 Wn.2d 

586,601,278 P.3d 157 (2012). Upon studying the words and other provisions of the 

APA that surround the term 'judicial review," we conclude that the term is limited to 

court review of agency actions under RCW 34.05.570 and does not encompass original 

actions filed by an agency in superior court. Throughout the AP A, the term 'judicial 

review" is accompanied by the term "civil enforcement." RCW 34.05.010(13) defines 

the term "[p ] arty to judicial review or civil enforcement proceedings." Part V ofthe AP A 

is entitled "Judicial Review and Civil Enforcement." The legislature would not have 

identified both 'judicial review" and "civil enforcement" if the two were identical 

concepts. Within Part V, RCW 34.05.570 is entitled 'judicial review" and RCW 

34.05.578 is captioned "petition by agency for enforcement." Notably, subsection .570 

deals solely with lawsuits filed by aggrieved parties against an agency and subsection 

.578 addresses only lawsuits filed by agencies. The context in which these terms are used I 

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No.30925-8-IIII 

In re Dependency ofA.P. 

implies that, when an agency files a lawsuit, the suit is an "enforcement proceeding" and 

not the initiation of "judicial review" as contemplated by the WEAJA. 

Common usage ofword "review" by a court implies the agency already completed 

its adjudication. Indeed, the word "review" means "to examine again." WEBSTER'S, 

supra, at 1944. The filing of a dependency action in a court is not review of a past 

administrative action; rather, it is an original action being judged and assessed in the first 

instance. 

Although no appellate opinion has explicitly analyzed the term ''judicial review" 

in our setting, historical application of the WEAJA helps circumscribe the term. Notably, 

out of the 81 published decisionsl involving the WEAJA, no case involves an agency 

initiated civil proceeding in a court. 

The purpose section ofthe WEAJA supports, in part, B.P.'s broad view ofthe Act 

as advocating an equal litigation field for parties litigating, in all contexts, against the 

state of Washington, with its vast resources. The findings section provides a specific 

reference to the contrary, however, with its use ofthe clause "vindication of their rights 

in administrative proceedings." LAWS OF 1995, ch. 403, § 901. This pending lawsuit is 

not an administrative proceeding. The legislature's referral, in the WEAJA, to the state 

AP A for defining terms, also confirms the view that the private party must be appealing 

1 See RCW 4.84.340 -.350. 

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No. 30925-8-nn 

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from an administrative action, under the AP A, in order to obtain fees, rather than the state 

initiating suit in court. 

Finally, B.P. cites to federal case law to argue that the legislature intended for 

WEAJA to extend to civil proceedings. WEAJA is patterned after the federal equal 

access to justice act. Plum Creek Timber Co., L.P. v. Wash. Forest Practices Appeals 

Bd., 99 Wn. App. 579,595,993 P.2d 287 (2000). B.P.'s reliance on federal law, 

however, harms rather than benefits her, since she overlooks the federal equal access to 

justice act language explicitly extending its scope to civil enforcement proceedings, 

language absent in the WEAJA. The federal statute reads: attorney fees "may be 

awarded to the prevailing party in any civil action brought by or against the United States 

or any agency." 28 U.S.C. § 2412(a)(l) (emphasis added). The Washington legislature 

could have, but chose not to, adopt the federal language, which bolsters our conclusion I that the WEAJA does not allow an award of fees in litigation begun by the state.2 

I 

f 

Because we conclude that a parental rights termination suit does not comprise 

"judicial review," we need not ask if the suit constitutes "agency action." DSHS 

contends that B.P. is not entitled to fees because the state's actions were "substantially I 

2 We question whether a dependency action would be considered a civil 

enforcement proceeding anyway, since an enforcement proceeding assumes that the 

agency previously conducted adjudication within the agency, and the agency now seeks I

I 

[ 

t to enforce its ruling. DSHS initiates a dependency action without a prior hearing or 

ruling within the agency. 

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No. 30925-8-III1 

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justified," within the meaning ofRCW 4.84.350. We need not address this contention 

since we deny fees on another ground. 

Affirmed. 

g S. 

Fearini'id \ 

WE CONCUR: 

Brown, ~'cf 1. 

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