Fi,LED Ofd;-. 01: APPEALS
2014 JAj1q 1 4 9: IN THE COURT OF APPEALS OF THE STATE OF W. M` NI DIVISION II 21 Y. r In re the Matter of: No. 43687 -6 -II
DAGMAR O. KNIGHT,
An Alleged Vulnerable Adult / Appellant,
ERIC KNIGHT,
Respondent, V.
TOR K. KNIGHT, PUBLISHED IN PART OPINION
PENOYAR, J. — Dagmar Knight and her son, Tor Knight, appeal the superior, court' s entry
of a vulnerable adult protection order. Dagmar' sl other son, Eric Knight, petitioned for the
vulnerable adult protection order on Dagmar' s behalf against Tor. Dagmar and Tor argue that
Eric was required to prove the need for the protection order by clear, cogent, and convincing
evidence and the superior court imposed the most restrictive conditions in the protection order in
violation of RCW 74. 34. 005( 6). Eric, Dagmar, and Tor request attorney fees on appeal. In the
published portion, we hold that a petitioner' s standard of proof for a vulnerable adult protection
order opposed by the alleged vulnerable adult is clear, cogent, and convincing evidence because the protection order implicates the vulnerable adult' s liberty and autonomy interests.
for the superior court to determine if Eric met his burden. We address Accordingly, we remand
the remaining issues in the unpublished portion. We hold that the conditions imposed in the
1 first We intend no To avoid confusion, this opinion refers to the parties by their names.
disrespect. 43687 -6 -II
protection order are valid because the superior court is not required to impose the least restrictive
conditions under RCW 74. 34. 005( 6). Finally, we deny the parties' requests for attorney fees.
FACTS
I. BACKGROUND
Dagmar is 83 years old and lives in one of three homes on her family estate, called
Lillegaard, in Lakebay, Washington. Wayne Knight, Dagmar' s late husband, passed away on
May 8, 2010, leaving a trust with approximately four million dollars in assets to support Dagmar,
which Wells Fargo manages. Dagmar also received approximately $ 109, 000 in life insurance in
July 2010.
Dagmar has two living sons,. Eric and Tor. Tor, the younger of the two, suffers from
schizophrenia and has a criminal history, including several assault convictions and an unlawful
possession of a firearm conviction. Tor resides in a house on the Lillegaard property, located
approximately 100 yards away from Dagmar' s house, which Dagmar and Wayne built for him.
Dagmar and Wayne executed a power of attorney in May 2007, which authorized Eric to
Wayne' death. In March 2011, Eric automatically act as Dagmar' s attorney in fact upon s
became concerned for Dagmar' s physical and financial well - eing due to Tor' s behavior and the b
manner in which he was spending Dagmar' s money. Eric continued to communicate his concern
to his extended family, to Tor, and to Dagmar; however, Eric' s attempts at resolving the issues were unsuccessful.
On February 23, 2012, Eric petitioned for a vulnerable adult protection order and a
guardianship. In his petition for the protection order, Eric alleged Tor was unduly influencing
Dagmar, isolating her, and threatening her physical well -being. In support of his allegations,
Eric provided a recent medical report, in which a licensed clinical psychologist concluded
0) 43687 -6 -II
Dagmar suffers from dementia. Eric also submitted 13 declarations from family and close
friends; Dagmar' s financial records; several letters he wrote to Dagmar, Tor, and Tor' s mental
health counselor, Dr. Donnelly; and a handwritten letter from Dagmar to Eric.
In the declarations, multiple family members stated they do not visit Dagmar' s home
anymore nor do they have their traditional family holiday celebration there because of threats
Tor made to various family members and because Tor generally makes the family members feel
uncomfortable and unsafe. One particular incident mentioned in several declarations concerned
a day during the summer of 2009 when Tor assaulted Erin Knight, Dagmar' s step -granddaughter.
Dagmar and Wayne both attempted to stop the assault and were injured by Tor in the process.
The police were called and Tor was arrested. Several family and friends also noted that Dagmar
is not as talkative or stops talking when Tor is present.
Family and friends also expressed concern as to Dagmar' s safety and well- being. major surgery for Dagmar had . cancer in spring 2011. Tor, without telling any family, brought
Dagmar home from the hospital early and left her alone on the couch at her home. Dagmar' s
cousin and Eric both visited Dagmar in the days after Tor brought her home. They both stated
that Dagmar was too weak to get off the couch on her own, that she had soiled her gown, that she
was in a lot of pain, and that she was disoriented. Family also noted that Tor told them he took
Dagmar' s pain medication after her surgery and threw it away because he did not believe she
needed it.
Eric and family members also alleged Tor was unduly influencing Dagmar. Eric stated
Dagmar received $ 109, 000. 00 in life insurance in July 2010 and by February 2011 Tor had spent
almost $ 90, 000. 00 of it. Eric stated that Tor spent $ 5, 000. 00 to $ 7, 000. 00 a month of Dagmar' s
money between May 2011 and February 2012. Eric also experienced trouble getting Dagmar' s 3 43687 -6 -II
debit card back from Tor, Eric had to cancel Dagmar' s credit card, and Eric had to correct
Dagmar' s putting Tor' s name on her bank account. Additionally, a family friend witnessed Tor
coerce Dagmar into stopping at the bank to get him money when he drove them on lunch
outings. Eric also provided a copy of Dagmar' s bank statements, which demonstrate that
Dagmar wrote checks to Tor between May 2011 and February 2012 totaling $ 6, 904. 00; paid
14, 000.00 to Dr. Donnelly, Tor' s mental health counselor; spent $ 2, 589. 17 at liquor stores; and
paid $ 4, 865. 00 for an apartment in Tacoma Tor no longer needed. Dagmar also paid all Tor' s
bills and expenses.
In contrast, Dagmar maintained she did not want a protection order against Tor. A family
friend opined that Dagmar seemed oriented to him when he saw her on March 4, 2012, and that
he believed Tor was very helpful to Dagmar. Tor' s community corrections officer submitted a
declaration stating he never observed any problems between Tor and Dagmar and that Tor was helpful to Dagmar. Dagmar and Tor also submitted a letter from Adult Protective Services
stating that someone reported that Dagmar was being mistreated, but Adult Protection Services found the claim unsubstantiated.
The superior court entered a temporary protection order on February 23, 2012, restraining
Tor, among other conditions, from entering Dagmar' s residence, having any contact with
Dagmar, or from coming within 1, 000 feet of Dagmar' s residence and the 26 -acre Lillegaard estate. Dagmar learned Eric filed a vulnerable adult protection order and guardianship the next
day, and Tor took Dagmar to an attorney where Dagmar revoked Eric' s power of attorney. Tor the protection order on February 27, 2012. The order was served with temporary
effectively prevented him from living in his house, which was less than 1, 000 feet away from Dagmar' s house. Tor failed to remain at least 1, 000 feet from the 26 -acre Lillegaard estate and
V 43687 -6 -II
was arrested for violating the temporary protection order. Eric also stated he changed Dagmar' s
phone number after the superior court entered the temporary protection order because several of
Tor' s friends were calling Dagmar on Tor' s behalf in violation of the temporary protection order.
II. PROCEDURAL HISTORY
On March 8, 2012, a superior court commissioner conducted a hearing on the protection
order petition. Dagmar, Tor, and Eric were present at the hearing and each was represented by
separate counsel. Also. present at the hearing was John O' Melveny, Dagmar' s appointed
guardian ad litem; Jennifer McIver, appearing on behalf of Wells Fargo Bank, which manages
the trust; and Sarah Atwood, appearing because a bank account she managed for Dagmar was
blocked by the temporary protection order.
Although Dagmar, Tor, and Eric did not testify at the hearing, 2 the commissioner heard
argument from their attorneys as well as from Ms. McIver and Ms. Atwood. Other than to state
that he concluded Dagmar should have an attorney appointed on her behalf in the guardianship
proceeding, Mr. O' Melveny refrained from providing the court with an opinion because he had
just begun his investigation in the guardianship action.
No party requested that the commissioner hold an additional evidentiary hearing under
RCW 74. 34. 135( 1), which provides that when the vulnerable adult objects to " the protection
sought in the petition, then the court may ... order additional evidentiary hearings." In his
response to Tor' s motion to dismiss, Eric stated the superior court could hold an evidentiary
hearing, but Eric did not request that the commissioner hold one. At the hearing on the motion
for reconsideration, Dagmar' s attorney stated that he did not request an evidentiary hearing
because he thought the commissioner denied an evidentiary hearing, and Tor' s attorney stated he
2 Additionally, it does not appear from the record that they were denied the opportunity to testify. 5 43687 -6 -II
never requested an evidentiary hearing because the commissioner initially denied Eric' s petition
for the protection order.
The superior court commissioner dismissed Eric' s protection order petition, determining
instead that the guardianship case could adequately address the concerns presented and provide
the protections needed. The commissioner stated that he was concerned about both brothers'
conduct and thus also ordered that " Tor Knight is prohibited from accessing any bank account of
Dagmar] Knight via check, debit card or wire, [ and] ... that neither brother shall socially
alienate their mother by their conduct or attempt to influence her." Clerk' s Papers ( CP) at 322.
Eric filed a motion to revise the commissioner' s ruling. Due to various factors, the
hearing on revision was not held until June 15, 2012. During the interim between the March 8,
2012 and June 15, 2012 hearings, no party, including Dagmar' s guardian ad litem, requested that
the superior court hold an evidentiary hearing. At the hearing on revision, however, Dagmar and
Tor twice stated the superior court needed to hold an evidentiary hearing. Eric countered that it
was at the superior court' s discretion to hold an evidentiary hearing.
Based on the record before the commissioner and the transcript of the hearing before the
commissioner, the superior court granted Eric' s motion to revise and stated " given Tor' s criminal
history, his failure to comply with the ex -parte temporary restraining order, the spending of the
insurance proceeds, his mother' s insurance proceeds on him, her physical isolation on the
property and his proximity to her in that physically isolated situation" that it " should grant the revision in this case and provide for [ Tor' s] restraints from contact with [ Dagmar]." Report of
Proceedings ( RP) ( June 15, 2013) at 60. The superior court further stated " it' s clear that we' re
having a situation of undue influence. And given [ Tor' s] past history, both with respect to
0 43687 -6 -II
mental illness and criminal history, we' re not in a position to take unreasonable chances in this
regard." RP ( June 15, 2013) at 61.
Among other conditions, the protection order restrains Tor from " committing or
threatening to commit physical harm, bodily injury, [ and] assault" against Dagmar; restrains Tor
from " committing or threatening to commit acts of abandonment, abuse, neglect, or financial
exploitation" against Dagmar; excludes Tor from Dagmar' s residence; and prohibits Tor from
coming within 1, 000 feet of Dagmar' s residence and 1, 000 feet of the 26 -acre Lillegaard estate.
CP at 364. The protection order also restrains Tor from unsupervised contact with Dagmar, but
authorized Dagmar and Tor to have supervised visitation.
The superior court denied Dagmar' s and Tor' s motion for reconsideration of the
protection order. Dagmar and Tor timely appealed and moved for an emergency stay of the
superior court' s entry of the vulnerable adult protection order, which our commissioner denied.
ANALYSIS
I. STANDARD OF REVIEW
On appeal from the decision of a superior court revising the superior court
commissioner' s order, we review the superior court' s decision, not the commissioner' s order.
State v. Ramer, 151 Wn.2d 106, 113, 86 P. 3d 132 ( 2004). We review the. superior court' s
decision to grant or deny a protection order to determine if the superior court' s decision is
manifestly unreasonable or exercised on untenable grounds, or for untenable reasons. Hecker v: Cortinas, 110 Wn. App. 865, 869, 43 P. 3d 50 ( 2002); State ex rel. Carroll v. Junker, 79 Wn.2d
12, 26, 482 P. 2d 775 ( 1971). We review the superior court' s findings for substantial evidence.
Scott v. Sys., Inc., 148 Wn.2d 701, 707 -08, 64 P. 3d 1 ( 2003). Trans - We defer to the trier of fact
on the persuasiveness of the evidence, witness credibility, and conflicting testimony. Morse v.
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Antonellis, 149 Wn.2d 572, 574, 70 P. 3d 125 ( 2003); Burnside v. Simpson Paper Co., 123 Wn.2d
93, 108, 864 P. 2d 937 ( 1994) ( quoting State v. O' Connell, 83 Wn.2d 797, 839, 523 P. 2d 872
1974)). We review questions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 3 Wn.2d 873, 880, 73 P. 3d 369 ( 2003).
Il. STANDARD OF PROOF FOR VULNERABLE ADULT PROTECTION ORDER
Dagmar and Tor first argue that contested vulnerable adult protection orders implicate the
vulnerable adult' s due process rights and thus the petitioner must prove the need for a protection
order by clear, cogent, and convincing evidence. Dagmar and Tor further argue that Eric failed
to prove by clear, cogent, and convincing evidence that Dagmar is a vulnerable adult or that Eric is an interested person as defined by RCW 74. 34. 020( 10), ( 17) 4.
We hold the standard of proof for proving whether the adult is a vulnerable adult in a
case contested by the alleged vulnerable adult is clear, cogent, and convincing evidence and 5 remand for the trial court to determine whether Eric met his burden.
The Abuse of Vulnerable Adults Act ( Act) was enacted to protect vulnerable adults who
may be subjected to abuse, neglect, financial exploitation, or abandonment by a family
member." See RCW 74. 34. 005( 1) ( legislative findings). One means of protection is a vulnerable
3 Dagmar and Tor argue the standard of review on appeal is de novo because the superior court never held a formal factfinding hearing. However, Dagmar and Tor improperly cited cases that discuss when the superior court uses a de novo standard when reviewing the superior court commissioner' s decision and not the appropriate standard of review on appeal.
4 The superior court has discretion to determine whether the petitioner is an interested person under RCW 74. 34. 020( 10) and RCW 74. 34. 110( 1). We hold the superior- court properly exercised its discretion in finding Eric to be an interested person. 5 We specifically make no comment on the standard of proof when a petition is not opposed by the alleged vulnerable adult.
6 Chapter 74. 34 RCW. 8 43687 -6 -II
adult protection order. RCW 74. 34. 110. " A vulnerable adult, or interested person on behalf of
the vulnerable adult, may ... [ file] a petition for an order for protection in superior court." RCW
74. 34. 110( 1). The petitioner must allege specific facts and circumstances that demonstrate the
need for the relief sought. RCW 74. 34. 110( 2). An interested person is a person who
demonstrates to the court' s satisfaction that ( 1) he is interested in the welfare of the vulnerable
adult; ( 2) he has a good faith belief that the court' s intervention is necessary; and ( 3) the
vulnerable adult is unable, due to incapacity, undue influence, or duress at the time the petition is
filed, to protect her own interests. RCW 74. 34. 020( 10). The Act, however, does not state the
necessary standard of proof for a vulnerable adult protection order.
The legislature intended that the Act protect those who are unable to care for themselves
and whose physical or mental disabilities have placed them in a dependent position. See RCW
74. 34. 005 ( legislative findings). In light of this legislative objective, the Act often applies in the
context of persons " from abuse, neglect, financial exploitation, and protecting elderly
abandonment by family members, care providers, and other persons with whom the vulnerable
adult has a Calhoun v. State, 146 Wn. App. 877, 889, 193 P. 3d 188 ( 2008). The relationship."
Act lists examples of relief that the superior court may order, such as excluding the respondent
from the vulnerable adult' s residence, prohibiting contact with the vulnerable adult by the
respondent, and prohibiting the respondent from knowingly coming within a specified location.
RCW 74. 34. 130( 2) -( 4).
Similarly, in the guardianship statutes the legislature recognizes that " some people with
incapacities cannot exercise their rights or provide for their basic needs without the help of a
guardian." RCW 11. 88. 005. Thus, under the guardianship statutes, the superior court may
appoint a guardian for persons who are deemed incapacitated if the individual is at risk of
personal or financial harm.7 RCW 11. 88. 010.
The legislature' s express intent with regard to guardianships is " to protect the liberty and
of all persons, including those with " incapacities" and unique needs. RCW autonomy"
11. 88. 005. As such, the legislature stated that persons' " liberty and autonomy should be
restricted through the guardianship process only to the minimum extent necessary to adequately
provide for their own health or safety, or to adequately manage their financial affairs." RCW
11. 88. 005. Because ordering a guardianship for an incapacitated person affects the person' s
liberty and autonomy, the legislature specifically stated the standard of proof in a contested
guardianship proceeding is clear, cogent, and convincing evidence. RCW 11. 88. 045( 3).
As in this case, it is common for a petitioner to seek a vulnerable adult protection order at
to under chapter 11. 88 RCW. See, the same time as filing a petition establish a guardianship
Saul, 142 Wn. App. 899, 176 P. 3d 560 ( 2008). Both the Act and the e. g., Endicott v.
guardianship statutes are concerned with the personal and financial health of vulnerable or
incapacitated adults. Additionally, just as the legislature recognized that imposing restrictions on
the incapacitated person in a contested guardianship case restricts an individual' s liberty and
autonomy interests, so too does granting a protection order against the vulnerable adult' s wishes.
The protection order may prevent the vulnerable adult from freely interacting with the
person against whom the protection order is granted. It also may prevent the vulnerable adult
from giving gifts or providing support to the restrained person or inviting the restrained person
7 A person may be deemed incapacitated " if the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety." RCW 11. 88. 010( 1)( a). A person may also be deemed incapacitated if the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs." RCW 11. 88. 010( 1)( b). 10 43687 -6 -II
onto her property. Thus, because a contested vulnerable adult protection order case implicates
the vulnerable adult' s liberty and autonomy interests like a guardianship does, the standard of
proof for a vulnerable adult protection order contested by the alleged vulnerable adult is clear,
cogent, and convincing evidence, as it is with a guardianship. We remand to the superior court
to determine if Eric proved by clear, cogent, and convincing evidence that Dagmar is a
vulnerable adult in need of a protection order under chapter 74. 34 RCW.
Because the superior court is reviewing the vulnerable adult protection order anew and
not on a motion for revision, it is free to hold such additional hearings as it finds appropriate on
remand. We affirm the conditions imposed by the protective order but the superior court may
modify or add conditions on remand as it deems necessary.
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.
Although, in the published portion, we remand for the superior court to determine if Eric
met his burden, we address the following issues in the unpublished portion of the opinion because
they may be relevant on remand.
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I. LEAST RESTRICTIVE RESTRAINTS
Dagmar and Tor make several arguments that the superior court made no effort to
consider less restrictive alternatives to the conditions it imposed in the protection order. 8 We
disagree because the superior court is not required to impose the least restrictive conditions
possible and the superior court here imposed restrictions allowed under RCW 74.34. 130, which
it deemed necessary for Dagmar' s protection.
After an interested person petitions for a protection order on behalf of a vulnerable adult,
the superior court must order a hearing on the petition. RCW 74. 34. 110( 1), . 120( 1). When the
vulnerable adult objects to the protection order at the hearing, the superior court may dismiss the
petition, take additional testimony or evidence, or order an evidentiary hearing. RCW
74. 34. 135( l).
If the superior court " determines that the vulnerable adult is not capable of protecting ...
her person or estate in connection with the issues raised in the petition or order, ... the court
shall order relief consistent with RCW 74. 34. 130 as it deems necessary for the protection of the
vulnerable adult." RCW 74. 34. 135( 4). When ordering relief that is " inconsistent with the
expressed wishes of the vulnerable adult, the court' s order shall be governed by the legislative
8 Dagmar and Tor contend the " court ordered restraints in this case violate constitutional doctrine of least restrictive restraint." Appellants' Reply Br. at 23. To support this argument, they cite two cases that discuss least restrictive restraints in reference to closures of public trials and to an anti -harassment order case that requires the superior court to grant relief that is warranted by the facts and to not provide relief for nonparties that is not justified by the facts. Because Dagmar and Tor did not provide meaningful argument in their brief or support this constitutional argument with relevant legal authority, we need not consider it.. State v. Bonds, 174 Wn. App. 553, 567, 299 P. 3d 663 ( quoting State v. Johnson, 119 Wn.2d 167, 171, 829 P. 2d 1082 ( 1992)), review denied, 178 Wn.2d 1011, 311 P. 3d 26 ( 2013) ( "` Parties raising constitutional issues must present considered arguments to this court."'). 12 43687 = 64I
findings contained in RCW 74. 34. 005."' RCW 74. 34. 135( 4). Under the Act, the superior court
may order relief as it deems necessary for the protection of the vulnerable adult, including, but
not limited to:
1) Restraining respondent from committing acts of abandonment, abuse, neglect, or financial exploitation against the vulnerable adult;
2) Excluding the respondent from the vulnerable adult' s residence for a specified period or until further order of the court;
3) Prohibiting contact with the vulnerable adult by respondent for a specified period or until further order of the court;
Prohibiting the respondent from knowingly coming within, or knowingly 4) remaining within, a specified distance from a specified location.
RCW 74. 34. 130.
9 RCW 74. 34. 005 states:
The legislature finds and declares that:
1) Some adults are vulnerable and may be subjected to abuse, neglect, financial exploitation, or abandonment by a family member, care provider, or other person who has a relationship with the vulnerable adult;
2) A vulnerable adult may be home bound or otherwise. unable to represent himself or herself in court or to retain legal counsel in order to obtain the relief available under this chapter or other protections offered through the courts;
3) A vulnerable adult may lack the ability to perform or obtain those services necessary to maintain his or her well -being because he or she lacks the capacity for consent;
4) A vulnerable adult may have health problems that place him or her in a dependent position;
5) The department and appropriate agencies must be prepared to receive reports of abandonment, abuse, financial exploitation, or neglect of vulnerable adults;
6) The department must provide protective services in the least restrictive environment appropriate and available to the vulnerable adult. 13 43687 -6 -II
First, Dagmar and Tor contend the superior court was required to consider the least 10 restrictive alternatives when imposing conditions under the protection order. The provision
Dagmar and Tor reference, however, applies only to the department of social and health services.
It provides "[ t] he department must provide protective services in the least restrictive
environment appropriate and available to the vulnerable adult." RCW 74. 34. 005( 6) ( emphasis
added). Thus, when the department, not the superior court, provides protective services, it must
do so in the least restrictive environment appropriate.
The Act, instead, expressly allows the superior court to " order relief as it deems
necessary for the protection of the vulnerable adult." RCW 74. 34. 130. In this case, the superior
court determined that " given Tor' s criminal history, his failure to comply with the ex -parte
temporary restraining order, the spending of the insurance proceeds, his mother' s insurance
proceeds on him, her physical isolation on the property and his proximity to her . in that
physically isolated situation" that it "should grant the revision in this case and provide for [ Tor' s] restraints from contact with [ Dagmar]." RP ( June 15, 2013) at 60. The superior court further
stated " it' s clear that we' re having a situation of undue influence. And given [ Tor' s] past
history, both with respect to mental illness and criminal history, we' re not in a position to take
unreasonable chances in this regard." RP ( June 15, 2013) at 61.
to Dagmar and Tor also argue that RCW 74. 34. 135 requires the superior court to " craft an order that is the least restrictive" when the vulnerable adult objects to the protect order. Appellants'
Br. at 25. RCW 74. 34. 135( 1), however, states that when the vulnerable adult objects to the protection order the superior court has discretion regarding how to proceed and may dismiss all or part of the requested relief, may take additional testimony or evidence, or may order further evidentiary hearings. It imposes no requirement that the superior court must order the least restrictive conditions.
14 43687 -6 -II
Among other conditions, the protection order restrains Tor from " committing or
threatening to commit physical harm, bodily injury, [ and] assault" against Dagmar; restrains Tor
from " committing or threatening to commit acts of abandonment, abuse, neglect, or financial
exploitation" against Dagmar; excludes Tor from Dagmar' s residence; and prohibits Tor from
coming within 1, 000 feet of Dagmar' s residence and 1, 000 feet of the Lillegaard estate. CP at
364. The protection order also restrains Tor from unsupervised contact with Dagmar, but allows
for Dagmar and Tor to have supervised visitation. These conditions, and the others the superior
court ordered, are consistent with the restraints expressly authorized in the Act and also with
what the superior court deemed necessary for Dagmar' s protection. In sum, nothing in the
superior court' s order was inconsistent with RCW 74. 34. 005. And because the superior court
imposed restrictions the Act allows, which the evidence supported were necessary for Dagmar' s
protection, it did not violate RCW 74. 34. 130.
Second, Dagmar and Tor argue that the superior court failed to consider the impact the
vulnerable .adult protection order would have on Tor. Appellant' s Br. at 25, 27 ( " The court
failed to provide a maternal substitute for Tor for his sake and for his mother' s sake.... A short
term order designed to address Tor' s needs would be supportive of Dagmar' s parenting rights,
rather than destructive. ") The superior court is not required to consider the impact on the
respondent. Instead, the superior court' s consideration is properly focused on the protection and
well - being of the vulnerable adult: " The stated purpose of the [ Act] is to protect vulnerable
adults from abuse, financial exploitation, and neglect." Endicott, 142 Wn. App. at 919 ( citing
RCW 74. 34. 110).
15 43687 -6 -II
Lastly, Dagmar and Tor contend that a " respondent may be restrained from [ the]
vulnerable adult' s residence, but not his own home." Appellants' Reply Br. at 23. They argue
that Tor has " state and federal protected rights to be free from unreasonable governmental
intrusion into his home or private affairs," which were violated when he was forced to move out
his house. Appellants' Reply Br. at 23 ( citing U.S. CONST. Amend IV; WASH. CONST. art. 1, §
7). While the protection order did not expressly require that Tor move out of his house, it
effectively required him to do so because the order prohibited him from coming within 1, 000 feet
of Dagmar' s residence or 1, 000 feet of the 26 -acre Lillegaard property, which is where his house
was located. " Parties raising constitutional issues must present considered arguments to this
court." State v. Johnson, 119 Wn.2d 167, 171, 829 P. 2d 1082 ( 1992). "` [ N] aked castings into
the constitutional sea are not sufficient to command judicial consideration and discussion. "'
Johnson, 119 Wn.2d at 171 ( quoting In re Rosier, 105 Wn.2d 606, 616, 717 P. 2d 1353 ( 1986)).
Because Dagmar and Tor did not substantiate this constitutional argument and did not cite to any
legal authority that a person' s federal and state rights are violated when a protection order makes
the person move out of his house, we need not address it.
Further, a vulnerable adult protection order is to be issued to protect the best interests of
the vulnerable adult, not any respondent. The superior court orders relief it deems necessary for
the protection of the vulnerable adult. RCW 74. 34. 130. Here, the superior court stated it was
concerned about Dagmar' s" physical isolation on the property and [ Tor' s] proximity to her in
that physically isolated situation." RP ( June 15, 2013) at 60. Because the evidence supported
the conclusion that isolating Dagmar on the Lill egaard property with Tor was not safe,
prohibiting Tor from coming within 1, 000 feet of the property was a proper exercise of the
16 43687 -6 -II
superior court' s discretion. Thus, we hold the superior court did not violate the Act when
I I ordering the restrictions in this contested vulnerable adult protection order.
II. ATTORNEY FEES
Eric requests attorney fees under RAP 18. 1 and RCW 74. 34. 130( 7). RAP 18. 1 permits
attorney fees on appeal if applicable law grants the party the right to recover reasonable attorney
fees. Under RCW 74. 34. 130( 7) we may order the respondent " to reimburse the petitioner for
costs incurred in bringing the [ protection order] action, including a reasonable attorney' s fee,"
which extends to fees and costs on appeal. Endicott, 142 Wn. App. at 929. Because the superior
court must still determine if Eric met his burden, he is not a prevailing party. Thus, we deny
Eric' s request for attorney fees on appeal.
Dagmar and Tor request attorney fees under RCW 74. 34. 130. RCW 74. 34. 130( 7),
however, only authorizes the court to award attorney fees from the respondent to the person who
petitioned for the protection order. Alternatively, Dagmar and Tor argue we should grant them
attorney fees under the " equitable grounds articulated in the common law in bad faith actions."
Appellants Br. at 28 ( citing Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918,
982 P. 2d 131 ( 1999)). Dagmar and Tor, however, do not provide meaningful argument on any
of the theories of bad faith discussed in Rogerson Hiller. They only stated that Dagmar has
suffered tremendously" due to Eric' s allegations, that Dagmar takes offense to Eric' s
allegations, that she " is in the middle of a war with her own family and friends," and that Eric
misrepresented that he has her power of attorney." Appellants' Br. at 28. Because they are not
11 As we stated in the published portion of this opinion, on remand the superior court may modify or add to the conditions in the protection order as it deems necessary. 17 43687 -6 -II
entitled to relief under RCW 74. 34. 130 and because they did not substantiate their argument that
Eric brought the petition in bad faith, we deny Dagmar and Tor' s request for attorney fees.
In the published portion, we hold that a petitioner' s standard of proof for a vulnerable
adult protection order opposed by the alleged vulnerable adult is clear, cogent, and convincing
evidence, and we remand to the superior court to determine if Eric met his .burden. In the
unpublished portion, we hold that the conditions imposed in the protection order are valid
because the superior court is not required to impose the least restrictive conditions under RCW
74. 34. 005( 6). Finally, we deny the parties' requests for attorney fees.
1, n
We concur:
Maxa, J.
I LOJI Verellen, J.