493 P.3d 66
Or. Ct. App.2021Background
- Petitioners Nicole Ceaser and Happy Valley Children’s Garden (two licensed child‑care sites) were ERDC‑approved providers required to report any involvement with Child Protective Services (CPS) to DHS’s Direct Pay Unit (DPU) within five days under OAR 461‑165‑0180(8)(h)(B).
- DHS sent a Notice of Awareness in Jan 2018 warning of earlier reporting failures; petitioners deny receiving that notice.
- On Nov 5, 2018 CPS investigated an allegation at the Stark Street site (later unfounded); petitioners did not report that CPS contact to DPU within five days.
- DHS issued a six‑month suspension notice (Jan 25, 2019) for failing to report; petitioners requested a contested‑case hearing and DHS temporarily delayed enforcement pending hearing.
- On Feb 15, 2019 DHS sent another Notice of Awareness stating DHS was "allowing a 60‑day window to support compliance" and later issued an amended suspension to start April 15, 2019; a contested‑case hearing occurred April 11, 2019.
- The ALJ found petitioners violated the reporting rule, rejected their challenges (insufficient notice, waiver by the 60‑day letter, vagueness), and DHS adopted the proposed order; petitioners appealed raising four errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of suspension notice (which site, method of service) | Suspension letter failed to identify which site and was not personally or certified‑mailed, so lacked required notice | DHS: ORS 411.103(1) permits regular mail; letter provided date and conduct and was adequate under ORS 183.415 | Court held notice adequate; suspension applied to both sites by rule default and regular mail satisfied statutory service requirements |
| Whether Feb 15 Notice waived DHS’s suspension rights | The 60‑day "window to support compliance" amounted to a grace period waiving suspension if petitioner complied | DHS: letter was informational about how suspensions operate for multi‑site providers and did not relinquish suspension rights | Court held no waiver; record supported that the letter was informational and not a plain, unequivocal relinquishment |
| Vagueness of OAR 461‑165‑0180 (reporting and suspension provisions) | Rule is facially vague, permits arbitrary application, and fails to give fair warning (would create excessive reporting burdens) | DHS: rule specifies conduct to report and standards for suspension; facial challenge fails absent no standards at all | Court held provisions not unconstitutionally vague in all applications; rule clearly proscribed conduct here (CPS visit/investigation) |
| Rulemaking authority/plain‑error review (unpreserved) | OAR 461‑165‑0180(8)(h)(B) exceeds DHS authority and is unnecessary given DPU internal alerts (raised late) | DHS: issue unpreserved; no plain‑error review warranted | Court declined plain‑error review because issue was raised first in reply brief and unpreserved |
Key Cases Cited
- Villanueva v. Board of Psychologist Examiners, 175 Or. App. 345 (2001) (review standard for agency legal conclusions in contested cases)
- Sachdev v. Oregon Medical Bd., 292 Or. App. 778 (2018) (example of adequate notice under ORS 183.415(3)(d))
- Drews v. EBI Companies, 310 Or. 134 (1990) (waiver is intentional relinquishment of a known right)
- Brown v. Portland Sch. Dist. No. 1, 291 Or. 77 (1981) (waiver principles)
- Wright Schuchart Harbor v. Johnson, 133 Or. App. 680 (1995) (waiver must be plainly and unequivocally manifested)
- Great Am. Ins. Co. v. Gen. Ins. Co., 257 Or. 62 (1970) (waiver by conduct standard)
- Bank of E. Oregon v. Griffith, 101 Or. App. 528 (1990) (use of circumstantial evidence in evaluating waiver)
- State v. Krueger, 208 Or. App. 166 (2006) (facial vagueness requires showing the law is vague in all applications)
- State v. Murga, 291 Or. App. 462 (2018) (declining plain‑error review when issue first raised in reply brief)