In re Guardianship of Holcomb
| Citation | 5 Wn.App.2d 1044 |
| Decision Date | 18 October 2018 |
| Docket Number | 33356-6-III |
| Court | Court of Appeals of Washington |
| Parties | In the Matter of the Guardianship of JUDITH D. HOLCOMB, and OTHER SIMILAR CASES CONSOLIDATED ON APPEAL. |
UNPUBLISHED OPINION
After Lori Petersen, a certified professional guardian (CPG) received a one-year disciplinary suspension, the Spokane County Superior Court undertook judicial review not only of cases in which she served as guardian, but of cases assigned to a CPG agency (CPGA) with which she was associated. Following costly proceedings in which replacement guardians were appointed in every case, the court assessed costs of the procedure against her and the corporate operator of the agencies.
The costs were assessed without due process, including without affording the CPGA an opportunity to challenge facts outside the record on which assessment decisions were based. We reverse the money judgments only, and remand for further proceedings consistent with this opinion. We retain jurisdiction for one reason only: the administrative inconvenience to the courts and the parties that would be presented should the conduct of further hearings result in over 120 new appeals. Our retention of jurisdiction should not be viewed as reflecting any view of the merits or any belief that a further appeal is expected.
Lori Petersen became a CPG in 2001. See In re Disciplinary Proceeding Against Petersen, 180 Wn.2d 768, 773, 329 P.3d 853 (2014). In April 2012, the Certified Professional Guardian Board served her with a complaint charging her with violating standards of practice. Id. at 774-75. The charges and Ms. Petersen's defense were presented to a hearing officer in October 2012. Id. at 775. He entered findings, conclusions, and a recommendation that Ms Petersen be suspended from serving as a CPG for 1 year and monitored for 24 months thereafter. Id. at 779. The Board adopted the hearing officer's recommendations but reduced the costs he had recommended be imposed. Id.
The record and recommendation were submitted to the Washington Supreme Court for review. It questioned only the proportionality of the costs imposed by the Board. Id. After a remand in which the Board made a further substantial reduction in the costs imposed to $7, 500.00, the court affirmed and adopted the Board's recommendation in an order dated March 13, 2015. During the almost three years of proceedings leading up to the March 2015 order, the Board did not impose an interim suspension on Ms. Petersen, which it was authorized to do if there was a substantial risk of injury to the public. Petersen, 180 Wn.2d at 789 (citing former DR[1] 519).
The Supreme Court's order directed that Ms. Petersen's suspension become effective on March 20, 2015. In response to a motion to stay the suspension filed with the Supreme Court by Ms. Petersen on March 18, the court granted a stay to April 27, 2015, to allow her "to work with the Certified Professional Guardian Board to ensure proper representation of her clients and the transition of the representation of her clients to successor certified professional guardians." Clerk's Papers (CP) at 67.
At the time of the Supreme Court's order, Ms. Petersen operated as a CPG doing business as Empire Care Services or Empire Care and Guardianship (Empire). The Supreme Court's July 2014 decision characterized Empire as an agency that Ms Petersen "owns and operates" and described it as "serv[ing] over 60 wards." Petersen, 180 Wn.2d at 773. By Ms. Petersen's count at the time, 37 of the wards she served were subject to guardianships ordered and being supervised by the Spokane County Superior Court.
At the time of the Supreme Court's order affirming her suspension, Ms. Petersen was also an employee of Hallmark Care Services, Inc. and served as a designated CPG for two CPGAs operated by Hallmark: Castlemark Guardianship and Trust (Castlemark), and Eagle Guardianship and Professional Services (Eagle). If she were not replaced, Ms Petersen's suspension as a CPG would cause Hallmark to be out of compliance with a Board regulation requiring CPGAs to have two designated CPGs.
On March 17, 2015, a Spokane County court commissioner wrote to Ms. Petersen at two business locations-one, Hallmark's; the other, Empire's-directing her to inform the court in writing of her plans for her caseload, given the impending March 20 effective date of her suspension. She was asked to deliver her answer by no later than 4:00 p.m. on March 19. An attachment to the letter listed well over 120 pending guardianships by case name, incapacitated person name, guardian, and standby guardian. Empire was the assigned guardian in 32 of the cases and Ms. Petersen was the assigned guardian in 5. In all of the other cases, the assigned guardian was Castlemark, Eagle, or Hallmark.
Ms. Petersen's lawyer responded to the court commissioner the next day, notifying her that a motion had been made to stay the Supreme Court's order to allow Ms. Petersen time to transition her clients. He pointed out that of the cases on the commissioner's list, only 37 were cases in which Ms. Petersen served as guardian in her own name or in her trade name, Empire, causing them to be directly affected by the suspension. As for the Castlemark and Eagle cases, he informed the commissioner that Ms. Petersen would cease working for Hallmark during the period of her suspension and that Hallmark was working to identify a new designated CPG to replace Ms. Petersen. He stated that he had notified the Board of the change in agency status in light of Ms. Petersen's suspension and that Hallmark had 60 days to find a new CPG, citing Board DR 706.3.
Ms. Petersen's lawyer later filed a notice of appearance for Hallmark. Given the predominance of his advocacy for Hallmark in matters relevant to this appeal, we refer to him hereafter as Hallmark's lawyer, although he continues to represent Ms. Petersen.
According to a declaration Hallmark's lawyer later filed with the court, corporate actions were taken on April 1, 2015, by Hallmark's shareholder, directors and officers to address Ms. Petersen's impending suspension. Reportedly, Keri Sandifer was elected the sole director and officer of Hallmark and two individual CPGs in good standing, James Whiteley and Joan Shoemaker, provided written acceptances of their appointment as Hallmark's two designated CPGs on that date. The lawyer's declaration states, "After April 1, 2015, Hallmark Care Services, Inc. had on its board, an individual qualified pursuant to RCW 11.88.020, and had two designated CPGs, both in good standing with the CPG Board, making the Agency compliant pursuant to GR 23(d)(2)." CP at 105.[2]
On April 7, 2015, a judge of the Spokane County Superior Court wrote to Hallmark's counsel and expressed disagreement with his view that only Ms. Petersen's and Empire's cases were affected by Ms. Petersen's suspension. The letter stated that the appointment of successor guardians was at issue in all of Hallmark's cases as well, explaining:
Specifically, Hallmark/Castlemark/Eagle's ownership is in question. Despite inquiries by the Court on multiple occasions, ownership has always been stated as "confidential." The choice to leave this inquiry unanswered puts Ms. Petersen's association with any of those agencies into question. The Court will not appoint as a successor guardian any certified professional guardian associated with Hallmark or with entities falling under the Hallmark umbrella.
On the same day that the superior court judge informed Hallmark's counsel that all of its cases would be transitioned to a successor guardian, a second superior court judge signed an order appointing a special master "to oversee the transition to and appointment of successor guardians for incapacitated persons serviced by . . . Lori Petersen and the agencies of which she is a designated CPG or standby guardian." CP at 94. The order was uncaptioned other than to say, "In the Guardianship of:___ An Incapacitated Person" and bore no case number. A copy of the order was mailed to Hallmark's lawyer.
In a contemporaneous letter, the first superior court judge wrote to persons serving as guardians ad litem (GAL) in Spokane County that the suspension of Ms. Petersen "affects 125 cases in Spokane County," causing it to appoint a special master "to oversee the transition of the 125 cases currently assigned to Ms. Petersen and/or agencies with which she is involved." CP at 58. It explained:
On April 10, 2015, dozens of orders were entered appointing GALs and scheduling review hearings on an expedited basis for each guardianship in which Ms. Petersen, Empire, Castlemark, or Eagle served as guardian. Each order was captioned with multiple case names and numbers; generally with four. In each...
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