Glasgow, A.C.J.

Benjamin R. Justus, Lybeck Pedreira & Justus PLLC, 7900 Se 28th St., Ste. 500, Mercer Island, WA, 98040-6004, for Appellant (s).

Joshua Waldek Campbell, Attorney at Law, 7141 Cleanwater Dr. Sw, Po Box 40124, Olympia, WA, 98504-0124, for Respondent(s).

PART PUBLISHED OPINION

Glasgow, A.C.J.

¶ 1 Debora, a vulnerable adult living in Win Adult Family Home, choked while eating her dinner. Zaid Woldemicael, the adult family home care provider, was nearby preparing dinner for other residents and had her back turned. When Woldemicael realized Debora was in distress, she called 911 and followed the dispatcher's instructions. Sadly, Debora could not be revived.

¶ 2 The Department of Social and Health Services investigated Woldemicael, found that she neglected a vulnerable adult and violated multiple administrative regulations governing the operation of adult family homes, and revoked her license. After a hearing, an administrative law judge (ALJ) reversed. The Department's Board of Appeals then reversed the ALJ's decision and reinstated the Department's neglect and licensing findings as well as the license revocation. The superior court affirmed the Board's decision. Woldemicael appeals.

¶ 3 In the published portion of this opinion, we hold that the appropriate standard for neglect of a vulnerable adult is the statutory definition of "neglect" in RCW 74.34.020(16)(b), rather than the definition of "child neglect" discussed in Brown v. Department of Social and Health Services . In the unpublished portion of this opinion, we reverse the Board's neglect finding because although Woldemicael's mistakes had serious and tragic consequences, they did not rise to the level of statutory neglect of a vulnerable adult. Because two of the Board's licensing violation conclusions depend on its erroneous neglect finding, we reverse those findings. We affirm a third challenged licensing violation that did not depend on the neglect finding, and we remand for the Department to determine appropriate licensing consequences based on the remaining licensing violations. We reject Woldemicael's procedural challenges and deny her request for attorney fees and costs.

FACTS

¶ 4 After Debora's death, Adult Protective Services investigated the Win Home and found that Woldemicael neglected Debora. Woldemicael contested the finding and requested an administrative hearing. ¶ 5 The ALJ concluded that Woldemicael did not neglect a vulnerable adult. The ALJ held that the definition of "child neglect" in Brown also applied to neglect of a vulnerable adult. Under this standard, the Department had to show that Woldemicael acted with reckless disregard, meaning she breached her duty of care and "intentionally acted or failed to act" while "knowing or having reason to know facts that would lead a reasonable person to realize that her conduct created an unreasonable risk of bodily harm to Debora and that there was a high degree of probability that substantial harm would result to her." Administrative Record (AR) (APS) at 75. The ALJ determined that Woldemicael did not neglect Debora because she did not "intentionally act in a manner that she knew would create an unreasonable risk of bodily harm to Debora and that would create a high degree of probability that [Debora] would be substantially harmed." Id.

¶ 6 The Department appealed, and the Board reversed the ALJ's decision, rejecting the ALJ's conclusion that the child neglect standard in Brown applied to vulnerable adults. The Board determined that the statutory language in RCW 74.34.020(16)(b) required the Department to prove that Woldemicael "committed an act or omission" that "demonstrated a serious disregard of consequences ... of such a magnitude to constitute a clear and present danger" to Debora's health or safety. AR (APS) at 13. Applying that standard, the Board concluded that Woldemicael neglected Debora.

¶ 7 Woldemicael appealed to the superior court, arguing that the Board should have applied the standard in Brown. The superior court affirmed, holding that Brown did not apply, that the Board did not err when it found Woldemicael had neglected a vulnerable adult, and that Woldemicael's adult family home license should be revoked. Woldemicael appeals.

ANALYSIS

¶ 8 Woldemicael argues that the Board should have adopted the standard articulated in Brown. We disagree. Brown does not apply to neglect of a vulnerable adult and the proper standard is the statutory definition of "neglect" in RCW 74.34.020(16)(b).

¶ 9 Under RCW 34.05.570(3)(d), we may grant relief from final agency action when "[t]he agency has erroneously interpreted or applied the law." We review such a contention de novo, but we "give substantial weight to [the agency's] interpretation of the law when subjects fall within [the agency's] area of expertise." Pac. Coast Shredding, LLC v. Port of Vancouver, USA , 14 Wash. App. 2d 484, 502, 471 P.3d 934 (2020).

¶ 10 RCW 74.34.020(16)(b) defines "neglect of a vulnerable adult" in relevant part as "an act or omission by a person ... 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." The statute does not further define "serious disregard" or "clear and present danger."

¶ 11 The statutory definition of "neglect of a child" is nearly identical. See RCW 26.44.020(18). In Brown, when applying the definition of "neglect of a child," Division Three held that a parent's neglectful conduct must rise above simple negligence. 190 Wash. App. at 593, 360 P.3d 875. Under Brown , the Department must show not just that a parent failed to act reasonably, but that the parent had a "higher degree of culpability" by taking an action that "involves a high degree of probability" that the child would be substantially harmed. Id. at 590, 360 P.3d 875. The court emphasized the "fundamental liberty interest" of a parent "in the care and custody of [their] children." Id. at 593, 360 P.3d 875.

¶ 12 We agree with Woldemicael that serious disregard requires more than simple negligence, but we reject Woldemicael's contention that the Board erred by failing to employ the Brown standard because Brown is specific to child neglect cases. The relationship between a parent and a minor child implicates the fundamental right to parent where the relationship between a caregiver and a vulnerable adult does not. Moreover, the Board here never suggested that ordinary negligence supported its neglect finding. Rather, the Board quoted the statutory language and held that Woldemicael's actions constituted a serious disregard of consequences of such a magnitude that it created a clear and present danger. The Board applied the correct statutory standard.

¶ 13 Woldemicael asserts that Raven v. Department of Social and Health Services , 177 Wash.2d 804, 822-831, 306 P.3d 920 (2013), extends Brown to the vulnerable adult context. We disagree.

¶ 14 Raven implicated a different prong of the neglect provision under former RCW 74.34.020(12)(a) (2012), which applies when a person with a duty of care engages in " ‘a pattern of conduct’ " that fails to provide the vulnerable adult with " ‘the goods and services that maintain physical or mental health ... or that ... fails to avoid or prevent physical or mental harm or pain.’ " Id. at 829, 306 P.3d 920 (quoting former RCW 74.34.020(12)(a) ). This portion of the statute does not contain the "serious disregard of consequences" or "clear and present danger" language central to the definition of "neglect" applicable in this case. Id. ; compare RCW 74.34.020(16)(a), with (b). Raven is further distinguishable because the appellant in Raven was a guardian, not a caregiver, and the court emphasized that the guardian's good faith consideration of the ward's preferences significantly weighed against a neglect finding. See id. at 820-21, 306 P.3d 920.

¶ 15 Woldemicael also relies on Crosswhite v. Department of Social and Health Services , 197 Wash. App. 539, 389 P.3d 731 (2017), but that case is also distinguishable because it dealt with abuse of a vulnerable adult under RCW 74.34.020(2), not neglect under RCW 74.34.020(16). Unlike the neglect provision, the abuse provision specifies that the Department must show the perpetrator engaged in " ‘willful action or inaction.’ " Id. at 550, 389 P.3d 731 (quoting RCW 74.34.020(2) ).

¶ 16 In sum, the Board did not err by declining to apply Brown and instead applying the plain language of the statutory definition of "neglect of a vulnerable adult." The Board properly concluded that, under the statute, the Department needed to establish three elements by a preponderance of the evidence to prove that Woldemicael neglected a vulnerable adult. These elements were: "(1) [Woldemicael] committed an act or omission; (2) the act or omission demonstrated a serious disregard of consequences; and (3) the disregard was of such a magnitude to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety." AR (APS) at 13.

¶ 17 As discussed in the unpublished portion of this opinion, we conclude that even though the Board applied the correct interpretation of neglect under RCW 74.34.020(16)(b) and substantial evidence supported the Board's findings of fact, the Board erroneously applied the law to the facts when it concluded that Woldemicael's conduct rose to the level of neglect. We reverse the Board's neglect finding, reverse the licensing violations that depend on the neglect finding, and remand for further proceedings consistent with the opinion.

¶ 18 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

Sutton, J.

Veljacic, J.