In re Petersen

• Decision Date: 03 July 2014
• Docket Number: No. 88513–3.,88513–3.
• Court: Washington Supreme Court
• Parties: In the Matter of THE DISCIPLINARY PROCEEDING AGAINST: Lori A. PETERSEN, Certified Professional Guardian No. 9713, Petitioner.

180 Wash.2d 768

329 P.3d 853

In the Matter of THE DISCIPLINARY PROCEEDING AGAINST: Lori A. PETERSEN, Certified Professional Guardian No. 9713, Petitioner.

No. 88513–3.

Supreme Court of Washington,

En Banc.

July 3, 2014.

Chad Corwyn Standifer, Jeffrey Todd Even, Office of the Attorney General, Solicitor General Division Attorney General, Attorney at Law, Olympia, WA, for Petitioner.

Michael L. Olver, Helsell Fetterman LLP, Seattle, WA, for Respondent.

Rajiv Nagaich, Law Offices of Johnson & Nagaich, PS, Gregg H. Hirakawa, Johnson Nagaich, P.S., Federal Way, WA, Amicus Curiae on behalf of Washington Association of Elder Law Attorneys (WELA).

GONZALEZ, J.

¶ 1 The Certified Professional Guardian Board (Board) has asked us to suspend guardian Lori Petersen for actions stemming from her guardianship of D.S. and J.S. Petersen contends that this sanction is improper and suggests the Board has run afoul of separation of powers principles, violated the appearance of fairness doctrine, impermissibly lowered the evidentiary standard, and failed to consider the proportionality of the sanction. We agree with Petersen as to her last contention. She has questioned, albeit obliquely, the proportionality of the sanction, and so the Board should have considered the sanction's magnitude relative to those imposed in other cases. Accordingly, we remand to the Board to conduct a consistency analysis pursuant to its internal regulations and this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2 Petersen has been a certified professional guardian since 2001. She owns and operates Empire Care and Guardianship, a large agency serving over 60 wards. She served on the Board from 2003 until 2009 and sat on the Standards of Practice Committee (SOPC).¹ From December 2009 until April 2010, the Board received a number of grievances and complaints regarding Petersen's treatment of three wards who were all, at one point, housed at Peterson Place, an adult family home. Following protocol, the SOPC opened files for each grievance and informed Petersen that an investigation would be forthcoming.

¶ 3 According to Petersen, Commissioner Valente, who was the chair of the SOPC and had served on the Board with Petersen,² encouraged the SOPC to conduct a factual inquest to see if the charges were substantiated. Though the record is silent on this point, presumably the SOPC agreed because Commissioner Valente conducted an inquest hearing in his courtroom on July 15, 2010. At this hearing, Petersen was sworn in, was represented by counsel, and was given the opportunity to present testimony and offer evidence. Commissioner Valente also questioned Petersen at length with no objections from Petersen's attorney. As a result of these hearings, Commissioner Valente composed several written opinion letters that he sent to Petersen and others involved in the proceeding. To the Board, he recommended that a complaint be filed. The Board agreed and served Petersen with a complaint on April 25, 2012. In it, the Board charged Petersen with violating nine different standards of practice (SOPs).³ Petersen filed a timely answer that denied all the allegations and set out affirmative defenses. Petersen also sought to have the complaint dismissed with prejudice and to be reimbursed for costs and attorney's fees. When attempts to reach an agreed settlement failed, the Board served Petersen with a notice of hearing.

¶ 4 Two and a half days of hearings were held in late October 2012 before Hearing Officer Roderick Simmons. Each side was allowed to submit briefing. The Board presented seven witnesses, and Petersen called four, including herself, to the stand. A joint binder of exhibits was also admitted. The hearing officer considered all the evidence and testimony and entered findings of fact, conclusions of law, and a recommendation.

A. Findings Regarding the Guardianship of D.S.

¶ 5 D.S. was an elderly woman who suffered from dementia. She was placed at Peterson Place when her granddaughter could no longer provide adequate care. Petersen became D.S.'s guardian in March 2009. In August 2009, D.S.'s granddaughter asked Heidi Peterson ⁴ to obtain new glasses for D.S. because D.S. was an avid reader and her old glasses were scratched and broken. Petersen did not think D.S. needed a new pair but permitted Heidi Peterson to look into the matter. Heidi Peterson took D.S. to the optometrist for an initial appointment. But there was no follow up, and the optometrist's office could not reach Petersen. This resulted in a considerable delay that the Hearing Officer found inexcusable and unnecessary. Ex. 10, at 830 (Findings of Fact (FF), Conclusions of Law (CL), & Recommendations to Bd. for Action). He determined that Petersen was dismissive of the need to replace the glasses and that “she exhibited little enthusiasm for completing the steps necessary to facilitate this activity of daily living that is so enjoyed by D.S.” Id. at 829. The hearing officer determined this was a violation of SOP 402.2 ⁵ and 405.1.⁶

¶ 6 In October 2009, Heidi Peterson notified Petersen that D.S.'s physical condition had worsened and Petersen authorized a trip to the hospital. Petersen failed to inform D.S.'s family of these events until after the hospitalization began, which the hearing officer determined to be a violation of SOP 402.2 and 405.1.

¶ 7 Toward the end of October 2009, Petersen decided to move D.S. from Peterson Place. Petersen claimed the move was necessary because the facility did not provide 24–hour nursing care. The hearing officer found that Petersen made “no showing that any quality of care issues could not have been addressed by discussion and communication.” Id. at 830. Also, the hearing officer found that Petersen was dismissive of and incommunicative with D.S.'s family members. Because Petersen did not have justification to move D.S. and because she did not seek input from D.S.'s friends and family, Hearing Officer Simmons found she violated SOP 402.2 and 405.1.

B. Findings Regarding the Guardianship of J.S.

¶ 8 J.S. was 18 years old when Petersen became his guardian. He suffered from a hereditary spinocerebellar ataxia disorder that caused muscle spasticity and blindness, rendered him wheelchair bound, and shortened his life expectancy. Despite these physical limitations, J.S. was able to express his desires and was aware of the terminal nature of his disease. He was moved from a family member's house, where he was being abused, into Peterson Place in May 2009. The hearing officer found that Petersen knew how deeply J.S. was affected by this move.

¶ 9 Nonetheless, on October 30, 2009, Petersen's staff moved J.S. out of Peterson Place and into a hospice facility. The move occurred nine days after a petition to replace Petersen as J.S.'s guardian was filed. Petersen believed the move was necessary due to an order J.S.'s doctor issued on October 29, 2009 that recommended that J.S. receive hospice care or be put in a skilled nursing facility. No one spoke to J.S. about the move nor sought to learn his wishes.

¶ 10 Melody Hayashi–Taisy, J.S.'s teacher, friend, and advocate, came to Peterson Place as soon as she learned of the pending move. She described the scene as chaotic. J.S. was upset that he was being moved and understood that hospice care was for terminally ill patients. During this process, Petersen was not at Peterson Place and did not directly oversee the move.

¶ 11 Ultimately, J.S. was taken to the hospice facility without his reclining wheelchair, which was a source of security for him and where he preferred to spend substantial time. Once there, J.S. sobbed, screamed, and was disruptive. Staff at the facility did not know what to do and could not reach Petersen, so they called Hayashi–Taisy instead. Hayashi–Taisy brought J.S. his wheelchair and stayed with him until he went to sleep. On November 4, 2009, Petersen was replaced as J.S.'s guardian. With his doctor's consent, the new guardian moved J.S. back into Peterson Place and arranged for 24–hour nursing care there.

¶ 12 The hearing officer found that Petersen exhibited no regard for J.S.'s interests or opinions in moving him to hospice care. Petersen did not explain why she failed to consider placing J.S. in a skilled nursing facility or arrange for appropriate care at Peterson Place. The hearing officer found that this lack of regard for J.S.'s wishes and needs, especially during days that were then-perceived to be his last, was in violation of SOP 403.1 ⁷ and 402.2 and former SOP 401.12,⁸ 401.15,⁹ and 404.5.¹⁰

C. Recommended Sanctions

¶ 13 The hearing officer found that the SOPs that Petersen violated involved the paramount duty of a guardian—to actively seek information and input from the ward and others close to the ward to ensure appropriate care and residential placement decisions. Hearing Officer Simmons also considered the relevant aggravating and mitigating factors and the weight that each factor should be given in making his recommendation to the Board. Specifically, he determined that Petersen's significant experience as a guardian, her failure to acknowledge her wrongful conduct, her prior disciplinary history, and the vulnerability of her wards were all aggravating circumstances that should be given significant weight. Though he determined that Petersen's cooperation and her willingness to take cases from Adult Protective Services Were mitigating circumstances, Hearing Officer Simmons did not afford these factors much weight. Finally, he found that both D.S. and J.S. suffered actual, significant injuries.

¶ 14 Given these findings, Hearing Officer Simmons determined that a letter of reprimand was insufficient. Instead, he recommended that Petersen be (1) suspended for one year for her misconduct regarding the relocation of D.S. and J.S.; (2) concurrently prohibited from taking new cases for 3 months for the delay in obtaining new glasses for D.S.; (3) subjected to a probationary period of 24 months...