In the Matter of the Vulnerable Adult Petition for Dagmar O. Knight, Appellant. Eric Knight, Respondent,
Tor K. Knight, Appellant
PUBLISHED IN PART
Appeal from Pierce County Superior Court. Docket No: 12-2-00589-9. Date filed: 06/15/2012. Judge signing: Honorable Rosanne Nowak Buckner.
Joan K. Mell (of III Branches Law PLLC ) and Michael B. Smith, for appellant.
Robin H. Balsam and Margaret M. Kennedy (of Robin H. Balsam PS ), for respondent.
Authored by Joel Penoyar. Concurring: Bradley A. Maxa, James Richard Verellen.
[178 Wn.App. 930] ¶ 1 -- Dagmar Knight and her son Tor Knight appeal the superior court's entry of a vulnerable adult protection order. Dagmar's  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 [178 Wn.App. 931] adult's liberty and autonomy interests. Accordingly, we remand for the superior court to determine if Eric met his burden. We address the remaining issues in the unpublished portion.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.
¶ 2 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.
¶ 3 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.
¶ 4 Dagmar and Wayne executed a power of attorney in May 2007, which authorized Eric to automatically act as Dagmar's attorney in fact upon Wayne's death. In March 2011, Eric became concerned for Dagmar's physical and financial well-being due to Tor's behavior and the 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.
¶ 5 On February 23, 2012, Eric petitioned for a vulnerable adult protection order and a guardianship. In his [178 Wn.App. 932] 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 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.
¶ 6 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 members and friends also noted that Dagmar is not as talkative or stops talking when Tor is present.
¶ 7 Family and friends also expressed concern as to Dagmar's safety and well-being. Dagmar had major surgery for 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.
¶ 8 Eric and family members also alleged Tor was unduly influencing Dagmar. Eric stated Dagmar received $109,000.00 [178 Wn.App. 933] 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 debit card back from Tor, had to cancel Dagmar's credit card, and 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.
¶ 9 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.
¶ 10 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.
¶ 11 Tor was served with the temporary protection order on February 27, 2012. The order effectively prevented him [178 Wn.App. 934] from living in his house, which was less than 1,000 feet away from Dagmar's house. Tor ...