### FILED NOV. 14,2013 In the Office ofthe ClerkofCourt WA StateCourt ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION TIIREE INRE DEPENDENCY OF A.P. ) ) No. 30925-8-III ) ) ) ) ) PUBLISHED OPINION ) ) FEARING,J.

­ INTRODUCTIONANDRULING The state ofWashington, throughthe Department ofSocial andHealth Services (DSHS), filed apetition alleging thatthe childA.P. was a dependent ofthe State. DSHS asserted that A.P. was abused orneglected, as defmedbythe dependency statutes, and hadnoparentcapable ofcaring for her. A.P.'smother,B.P., successfully opposedthe dependency andretained custody ofherdaughter. Upon a ruling inherfavor from the superiorcourt, B.P. sought an award ofreasonable attorney fees and costs, underRCW 4.84.350, Washington's equal access tojustice act (WEAJA). In short, the WEAJANo.30925-8-IIII In reDependency of A.P.

other expenses, including reasonable attorneys' fees, unless the court finds that the agency action was substantiallyjustified." RCW 4.84.350. The superior court denied the motion based on its understandingthat RCW 4.84.350 provides for attorney fees only on judicial review ofrulemaking and adjudicative proceedings governed by the Administrative Procedure Act (APA), chapter 34.05 RCW. B.P. appeals, arguing thatthe meaning of"agency action" as used in RCW 4.84.350 extends beyond rulemaking and agency adjudication. We affirm the superior court on the groundthat this dependency action does not constitute "judicial review" ofan agency action. FACTS This casepresents a single question oflaw for review. As such, the facts ofthis
case are largely irrelevant, although the facts include more than the background to the dependency petition. A.P., born in 2009, is the daughter ofthe formerly married couple, B.P. and B.M.P. In 2011, B.M.P. filed for divorce in Lincoln County. Since theparties 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 whetherthe bruise resulted from A.P.'s fall on an icy sidewalk or from a slap by B.P.'s boyfriend. B.P. broke offcontactwith the boyfriend. She relayed her concerns about the

2

### No. 30925-8-1111 In re Dependency of A.P.

bruise and herpossible 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. orher 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 movedto quash the order and a hearing was scheduled for January 17. Inopposition to the motion to quash and in support ofcontinuing the restraining order, a CPS social worker signed a declaration. The Lincoln County Superior Court granted the motionto quash andreturned custody to B.P. On January 

### 18, DSHS filed this dependency action, along with a motion for sheltercare, 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

3No. 30925-8-1111 In re Dependencyof A.P.
petition because ofinsufficient facts. B.P. then unsuccessfully sought an award of reasonable attorney fees and costs underRCW 4.84.350. ISSUE Whether a dependency action in superior court constitutes "judicial review" ofan "agency action" within the meaning ofRCW4.84.350? We answer in the negative. ANALYSIS In 1995, the Washington State Legislature passedthe WEAJA, RCW 4.84.340­ .360. LAWS OF 1995, ch. 403, §§ 901-904. The WEAJA, modeled after the federal equal
access tojustice act, 28 U.S.C. § 2412, permits a court to award reasonable attorney fees and costs to a prevailingparty who filed suit to oppose unlawful agency action. The WEAJA is a section ofabroader enactment creatingregulatory reform. LAWS OF 1995, ch.403. In § 901 ofthe enactment, the legislature divulges the purpose behind the WEAJA: The legislature finds that certain individuals, smallerpartnerships, smaller corporations, and other organizations may be deterred from seekingreview ofor defending against an unreasonable agency action because ofthe expense involved in securing the vindication oftheir rights in administrativeproceedings. The legislature further finds that because of the greater resources and expertise ofthe state ofWashington, individuals, smallerpartnerships, smaller corporations, and other organizations are often deterred from seeking review ofordefending against state agency actions because ofthe costs for attorneys, expert witnesses, and other costs. The legislature therefore adopts this equal access tojustice act to ensure that these parties have a greater opportunity to defend themselves from inappropriate state agency actions and to protect their rights. 

### 4No. 30925-8-IIII In re Dependencyof A.P.

LAWS OF 1995, ch. 403, § 901 (emphasis added). The key provision ofthe WEAJA, RCW4.84.350, reads in pertinentpart: (1) Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in ajudicial review of an agency action fees and other expenses, including reasonable attorneys' fees, unless the court finds that the agency action was substantiallyjustified orthat circumstances make an award unjust. A qualified party shall be considered to have prevailed ifthe qualified party obtained reliefon a significant issue that achieves some benefitthatthe 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 "qualifiedparty,"
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 RCW4.84.340 through 4.84.360. (1) "Agency" means any stateboard, commission, department, institution ofhigher education, or officer, authorized by law to make rules orto conduct adjudicative proceedings, except those in the legislative or judicial branches, the governor, orthe attorney general exceptto the extent otherwise required by law. (2) "Agency action" means agency action as defined by chapte.r 34.05 RCW. (4) "Judicial review" means ajudicial review as defined by chapter 

## I 34.05 RCW. (5) "Qualifiedparty" means (a) an individual whose net worth did not exceed one million dollars atthe time the initial petition forjudicial 

# I
review was filed. 

# I The question ofwhetherDSHS is an "agency" for purposes ofthe WEAJA is not 

# I at issue. DSHS has been orderedto pay attorney fees under the WEAJA. See, e.g., 

## f 5 

# t I i**~.**No.30925-8-IIII In re Dependency of A.P.

Freeman v. Dep'tof Soc. 

### &Health Servs., 173 Wn. App. 729, 749-50, 295 P.3d 294 (2013); Conway v. Dep'tof Soc. 

### &Health Servs., 131 Wn. App. 406, 420-21, 120 P.3d 130 (2005). WhetherB.P. is a "qualifiedparty" is also not at issue. We focus our attention on the phrase ''judicial review." "Wereview the meaning ofa statutory definition de novo, as an issue oflaw." 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." Lowyv. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d lO78 (2012). "Wherethe 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. (quotingDep'tof Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,43 P.3d 4 (2002)). RCW4.84.340 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 ofa statute, the adoption or application ofan agency rule
or order, the imposition ofsanctions, orthe granting or withholding ofbenefits." RCW 34.05.010(3). Nowhere does chapter 34.05 RCW, the state APA, define ''judicial

6No. 30925-8-1111 In re Dependency of A.P.

review." Costanich v. Dep'tof Soc. & 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. CobraRoofingServs., Inc. v. Dep'tof Labor & Indus., 157 Wn.2d 90, 100, 135 P.3d 913 (2006). Answering that question, the courtheld that 'Judicial review" underboth the WEAJA and the APA means court review; thus the WEAJA did not apply to fees incurred at the agency level. Id. CobraRoofing supports
ourconclusion, but does not fully answer our question. The decision equated "judicial review" with nonagency review by an electedjudge,but did not directly answerthe 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." Ravenscroftv. Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998). The dictionary defines "judicial review" as "aconstitutional doctrine that gives to a court system and esp. to a supreme court the power to annul legislative orexecutive acts which thejudges declare are contrary to the provisions ofthe constitution." WEBSTER'S THIRD NEW INTERNATIONALDICTIONARY
7No. 30925·8·1111 In reDependency of A.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 aplain and ordinary meaning, the courts apply the
canon ofnoscitura sociis, Latin for gleaning the meaning ofa term by the words that surround it andthe context in which it is used. Jongewardv. BNSFRy. Co., 174 Wn.2d 586,601,278 P.3d 157 (2012). Upon studying the words and other provisions ofthe APA that surround the term 'judicialreview," we conclude that the term is limitedto court review ofagency actions under RCW 34.05.570 and does not encompass original actions filed by an agency in superior court. Throughoutthe AP A, the term 'judicial review" is accompanied by the term "civil enforcement." RCW 34.05.010(13) defines the term "[p]arty tojudicial review or civil enforcementproceedings." Part V ofthe APA is entitled "Judicial Review and Civil Enforcement." The legislature would not have identified both 'judicial review" and "civil enforcement" ifthe 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 

# I 

# I 8No.30925-8-IIII In re Dependency of A.P.
implies that, when an agency files a lawsuit, the suit is an "enforcementproceeding" and notthe 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 ofa dependency action in a court is not review ofapast administrative action; rather, it is an original action beingjudged and assessed in the first instance. Although no appellate opinion has explicitly analyzed the term ''judicial review" in our setting, historical application ofthe WEAJA helps circumscribe the term. Notably, out ofthe 81 published decisions l involvingthe WEAJA, no case involves an agency initiated civil proceeding in a court. Thepurpose 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 ofWashington, with its vast resources. The findings section provides a specific reference to the contrary, however, with its use ofthe clause "vindication oftheirrights 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 APA for defining terms, also confirms the view that the private party must be appealing

1See RCW4.84.340 -.350. 9No. 30925-8-

## nn In re Dependency of A.P.

from an administrative action, under the APA, 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 tojustice act. Plum Creek Timber Co., L.P. v. Wash. ForestPracticesAppeals 

### 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 enforcementproceedings, language absent in the WEAJA. The federal statute reads: attorney fees "maybe awarded to the prevailing party in any civilaction brought by oragainst the UnitedStates


### or any agency." 28 U.S.C. § 2412(a)(l) (emphasis added). The Washington legislature could have, butchose not to, adopt the federal language, which bolsters our conclusion 

# I that the WEAJA does not allow an award offees in litigation begun by the state.2 

# I f Because we conclude that a parental rights termination suit does not comprise "judicialreview," we need not ask ifthe 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 enforcementproceeding assumes that the 

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

# I [ t toenforce its ruling. DSHS initiates a dependency action without a priorhearing or ruling within the agency. 10 

# ! l
tNo. 30925-8-III1 In re Dependency of A.P.
justified,"within the meaning ofRCW4.84.350. We need not address this contention since we deny fees on another ground. Affirmed. 

# g S. Fearini'id \
WE CONCUR:

# ~'cf Brown, 1.



### 11