                                                                                                                        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the remaining issues in the            unpublished   portion.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



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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.

                                                             7
43687 -6 -II



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



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43687 -6 -II



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.




                                                            11
43687 -6 -II



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).




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          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


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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.
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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.




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