In re Guardianship of Cobb

• Decision Date: 11 December 2012
• Docket Number: No. 40598–9–II.,40598–9–II.
• Citation: 292 P.3d 772,172 Wash.App. 393
• Parties: In the Matter of the GUARDIANSHIP OF Sean Raymond COBB, An Alleged Incompetent Adult.
• Court: Washington Court of Appeals

172 Wash.App. 393

292 P.3d 772

In the Matter of the GUARDIANSHIP OF Sean Raymond COBB, An Alleged Incompetent Adult.

No. 40598–9–II.

Court of Appeals of Washington,

Division 2.

Dec. 11, 2012.

Mark Evan Didrickson, Attorney at Law, Vancouver, WA, for Appellant.

Lorraine Scott (Appearing Pro Se), Elma, WA, for Respondent.

PART PUBLISHED OPINION

VAN DEREN, J.

[172 Wash.App. 395]¶ 1 Christine Scott and Daniel Cobb appeal the trial court's rulings following trial to determine whether their younger brother, Sean Raymond Cobb, is incapacitated and in need of a guardian. The trial court found Sean incapacitated and appointed Christine and Daniel's sister, Lorraine Scott, as Sean's limited guardian.¹ Christine and Daniel appeal the trial court's guardianship determination on Sean's behalf and its denial of their request for a new trial. In the published portion of this opinion, we discuss their standing to assert claims on behalf of Sean and the trial court's denial of their CR 59 motion for a new trial, which they assert denied them their procedural due process rights and violated the appearance of fairness doctrine. In the unpublished portion, we address their claims that (1) the guardianship statutes are unconstitutional as applied to Sean, (2) the trial court abused its discretion by denying Sean's demand for a jury trial contained in a writing handed to the judge during Sean's testimony at the end of the trial, (3) the trial court denied Sean's procedural due process rights by relying on the guardian ad litem's (GAL) final report, and (4) the trial court abused its discretion in applying the physician/patient privilege to limit testimony at trial. We hold that Christine and Daniel do not have standing to assert claims on Sean's behalf and that the trial court's denial of their CR 59 motion for a new trial did not violate procedural due process or the appearance of fairness doctrine. Thus, we affirm. We also impose sanctions jointly on Christine, Daniel, and their attorney under RAP 18.9 for pursuing this frivolous appeal.

FACTS

¶ 2 Sean is an adult with developmental disabilities and a severe hearing loss. Sean has six older siblings, Daniel, Christine, Lorraine, Susan Didrickson, Joyce Cobb, and Dianne Gruginski. Sean's mother, Carmen Cobb, provided for Sean's care until her death in July 2009. Before Carmen died, she lived with Sean and Lorraine in Lorraine's home in Elma, Washington.

¶ 3 On September 4, 2009, Susan, Joyce, and Christine filed a petition seeking to be appointed Sean's co-guardians. On November 6, Lorraine filed a cross-petition seeking to be appointed Sean's guardian. On December 31, Daniel also filed a cross-petition seeking to be appointed Sean's guardian. On January 15, 2010, Susan and Joyce withdrew their guardianship petition. Trial occurred on the siblings' guardianship petitions on February 11, 2010. At the start of trial, Christine withdrew her guardianship petition and, instead, supported Daniel's petition. The trial court appointed Dee Grubbs to serve as Sean's GAL. Christine, Lorraine, and Daniel filed objections to the GAL's final report filed on January 19, 2010.

¶ 4 Before Sean's therapist, Dr. Serena Meyer, began her testimony, the trial court stated, “I will advise you that I've been informed that [Sean] has not waived physician/patient privilege with regard to your communications, so you should not testify with regard to anything in that case.” Report of Proceedings (RP) (Feb. 11, 2010) at 77. During Daniel's pro se direct examination of Meyer, the following exchange took place:

[Daniel]: Okay. Do you have any reasons to believe that Sean has been in dangerous or threatening situations since his mother died?

[Lorraine's counsel]: Objection. I don't know what the foundation for that would be other than communications with her patient.

[Trial court]: I think that's the question, whether she has reason to believe that.

[Meyer]: Yes, I have.

[Daniel]: And if so, what was it?

[Lorraine's counsel]: Objection on the basis of privilege.

[Trial court]: Well, if you can answer without discussing the privilege—without violating the privilege.

[Meyer]: I did file a report through Adult Protective Services.

[Daniel]: How did it affect him?

[Meyer]: I don't think I can answer that on account of privilege.

RP (Feb. 11, 2010) at 88–89. None of the parties objected to Meyer's assertion of the physician/patient privilege in refusing to answer Daniel's question.

¶ 5 Sean was the final witness at trial. During the direct examination by his counsel, the following exchange took place:

[Sean's counsel]: ... You have indicated in the past thoughts about a professional guardian or a family guardian. How do you feel at this time about a professional guardian or a family guardian?

[Sean]: Family guardian, no, I don't know.

[Sean's counsel]: Don't know? Okay.

[Sean]: I got it right here.

....

[Sean's counsel]:—[C]an you tell me, whose writing is this?

[Sean]: Mine.

[Sean's counsel]: When did you write this?

[Sean]: Last night.

[Sean's counsel]: And what is this about?

[Sean]: Write everything, what I want—what I want guardian to—

[Sean's counsel]: And who did you want to have this information?

[Sean]: The Judge.

[Sean's counsel]: I would like to offer this as an exhibit of his wishes.

RP (Feb. 11, 2010) at 199–200. The trial court admitted Sean's letter as an exhibit without objection.

¶ 6 After Sean completed his testimony, the trial court addressed Sean's letter:

[Trial court]: ... All right. I did have the opportunity to review [Sean's letter]. It does have one part of it that, I guess, causes me a little concern. There's a jury demand in here, so—

(LAUGHTER)

[Sean's counsel]: That was just recently added.

[Trial court]:—[A] little late in the proceedings, but that's certainly something that [Sean]—have you talked to [Sean] about that?

[Sean's counsel]: Yes, we've talked a number of times on that and it has been his repeated request, first of all, that things would be able to come to an agreement outside of court, and so we have repeatedly worked on trying to come to an agreement that would work for everyone, and have not been able to.

[Sean]: Yeah.

[Trial court]: That would have been great, yeah.

[Sean's counsel]: Yeah, and that has repeatedly been his request.

[Trial court]: Okay.

[Sean]: Yeah, because (inaudible) didn't go for that one.

RP (Feb. 11, 2010) at 202–03. There was no further discussion of Sean's letter or his apparent jury request.

[172 Wash.App. 399]¶ 7 The trial court concluded that Sean was an incapacitated person within the meaning of chapter 11.88 RCW and appointed Lorraine as limited guardian of his person and estate, finding that Lorraine was “a fit and proper individual as required by RCW Chapter 11.88 to be appointed as guardian.” Clerk's Papers at 181.

¶ 8 Christine and Daniel filed an unsuccessful joint CR 59 motion for a new trial. Following hearing on the motion, the trial court's oral ruling explained why it rejected each of the petitioners' asserted grounds for a new trial.² The trial court issued a written order denying the CR 59 motion the same day. The trial court then addressed a CR 11 motion for sanctions by Lorraine against the attorney who had assisted Christine and Daniel in filing their CR 59 motion:

Well, the Court considered the [CR. 11] motion carefully because, frankly, it does appear to me that quite a few of these things are matters that are not well grounded in either fact or law. And it appears to me that the Motion for New Trial is basically an attempt to delay these proceedings further. Proceedings which the Court will note, not all because of the present people moving for a new trial, but just in general, proceedings that were delayed far too long in the first place.

And so, continuing to attempt to delay the proceedings causes the Court a great deal of concern that—and actually strengthens my determination that I picked the right person to be the guardian, someone who will start looking for—after Sean's interests rather than continuing to want to litigate each and every issue in this case.

....

So, I'm supposed to be careful not to impose sanctions unless they—something is truly frivolous. And although this borders on it, I believe that it's as close to frivolous as can get without getting sanctions. I'm not going to impose sanctions in the case.

RP (Mar. 12, 2010) at 30–32. The trial court then entered a written order denying the CR 11 sanction motion. Daniel and Christine timely appeal.

ANALYSIS

I. Standing

¶ 9 Apart from their individual claims that the trial court's denial of their CR 59 motion for a new trial violated their procedural due process rights and violated the appearance of fairness doctrine, Daniel and Christine attempt to assert issues on appeal on behalf of their incapacitated brother, Sean. As an initial matter, we must determine whether Christine and Daniel have standing to assert these issues on Sean's behalf.³ Accordingly, our initial analysis is limited to this threshold question. We hold that under these circumstances Christine and Daniel do not have standing to assert their incapacitated brother's appeal rights.

¶ 10 Standing is a question of law, which we review de novo. In re Guardianship of Karan, 110 Wash.App. 76, 81, 38 P.3d 396 (2002). In general, a person lacks standing to vindicate the constitutional rights of a third party. State v. Gutierrez, 50 Wash.App. 583, 591–92, 749 P.2d 213 (1988) (citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Singleton v. Wulff, 428 U.S. 106, 113–14, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). But a litigant may have standing to vindicate the rights of a third party where (1) the litigant has suffered an injury-in-fact, giving him or her a sufficiently concrete interest in the outcome of the disputed issue; (2) the litigant has a close relationship to the third party; and (3) there exists some hindrance to the third party's ability to protect his or her...