Winter v. Dep't of Soc. & Health Servs. ex rel. Winter (In re Winter)

• Citation: 460 P.3d 667
• Decision Date: 30 March 2020
• Docket Number: C/w No. 79860-0-I, 78060-3-I; Linked with No. 79860-0-I,No. 76465-9-I,76465-9-I
• Parties: In the Matter of Thomas J. Winter, a vulnerable adult: Morris A. WINTER, Appellant, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, ON BEHALF OF Thomas J. WINTER, Respondent.
• Court: Washington Court of Appeals

460 P.3d 667

In the Matter of Thomas J. Winter, a vulnerable adult: Morris A. WINTER, Appellant,

v.DEPARTMENT OF SOCIAL AND HEALTH SERVICES, ON BEHALF OF Thomas J. WINTER, Respondent.

No. 76465-9-I

C/w No. 79860-0-I, 78060-3-I; Linked with No. 79860-0-I

Court of Appeals of Washington, Division 1.

FILED March 30, 2020

Morris A. Winter, Po Box 6486, Bellevue, WA, 98007, Pro Se.

Saphronia R. Young, Regeimbal, McDonald & Young, PLLC, 612 S 227th St., Des Moines, WA, 98198-6826, Jennifer Ann Boharski, Soc. & Hlth. Svcs. A.g. Office, Office of The Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

PUBLISHED OPINION

Hazelrigg, J. ¶1 In 2015, the Department of Social and Health Services sought and obtained a Vulnerable Adult Protection Order (VAPO) on behalf of Thomas J. Winter against his brother, Morris A. Winter. Morris¹ did not seek review of this order. Morris now seeks review of multiple orders denying motions to vacate the VAPO on various grounds. Because the court did not abuse its discretion or misinterpret the Abuse of Vulnerable Adults Act² in denying the motions to vacate, we affirm. However, we vacate the order awarding attorney fees to Thomas because RCW 74.34.130 does not provide a legal basis for the award to a party who was not the petitioner in the VAPO action.

¶2 Morris also seeks modification of the clerk’s ruling dismissing a linked appeal for failure to file his opening brief timely. Because the clerk had a valid basis to dismiss and Morris has not shown that the ends of justice demand reinstatement of the appeal, the motion to modify is denied.

FACTS

2015 Issuance of Vulnerable Adult Protection Order

¶3 In 2015, the Department of Social and Health Services (DSHS) filed a petition for a Vulnerable Adult Protection Order (VAPO) on behalf of Thomas Winter. DSHS sought a VAPO against Thomas’ brother, Morris Winter, alleging that Morris had threatened Thomas’ dog, Becky, and refused to return the dog to Thomas, which caused Thomas additional stress and anxiety and exacerbated his physical symptoms.

¶4 Thomas is over 60 years old and has advanced Parkinson’s disease

. He resides in a skilled nursing facility because he is not able to manage his own care. The petition was supported by the declaration of the Community Nurse Consultant for Adult Protective Services (APS), who reviewed Thomas’ medical records during an investigation of a report alleging that Morris was taking funds from Thomas through undue influence. She found multiple instances in which Thomas told his medical providers that Morris had threatened Becky. She asserted Thomas had found a foster home for Becky where he would be able to visit her but Morris refused to turn over the dog. Attached to the petition was a consent to receipt of protective services, which indicated that Thomas consented to assistance with a protection order.

¶5 On June 25, 2015, the court entered a VAPO restraining Morris from "committing or threatening to commit acts of abandonment, abuse, neglect, or financial exploitation against the vulnerable adult" for five years. The order included a finding that "Respondent committed acts of abandonment, abuse, neglect and/or financial exploitation of the vulnerable adult." The order also required Morris to turn over Becky to the APS nurse or the investigating Bellevue Police detective immediately. It did not include any restraints on contact between the brothers. Morris surrendered Becky to APS the day after the VAPO was entered. He did not file a motion for reconsideration or an appeal of this order.

2016 CR 60(b) Motion to Vacate

¶6 On June 24, 2016, Morris moved to vacate the VAPO under CR 60(b). He argued that the portion of the order requiring him to surrender the dog had been satisfied and that Thomas had recanted his prior allegations of abuse. Thomas filed a response through his independent counsel opposing the motion to vacate. DSHS also opposed the motion.

¶7 A commissioner of the superior court denied the motion in part and granted it in part. The court entered findings of fact that Thomas did not recant, but had subsequently re-confirmed, his statements regarding Morris’ threats to his dog and that he continued to be a vulnerable adult in need of protection from Morris. The court concluded that Morris did not have standing to bring a motion under chapter 74.34 RCW and had not shown fraud, mistake, or misconduct justifying relief under CR 60.

¶8 Morris filed a motion for reconsideration under CR 59, which was denied. He also moved for revision of the commissioner’s order under RCW 2.24.050. The superior court denied the motion for revision after a hearing in January 2017. On "de novo review of the record, on the merits[,]" the court denied the motion to vacate under CR 60. In its oral ruling, the court made clear that it did not believe Thomas had recanted the allegations of mental abuse and "[i]f anything, I have Thomas reiterating that Morris was threatening towards his dog in a way that alarmed Thomas."

¶9 In considering the equities, the court noted that "the return of the dog is only a part of the problem" and that "the consequences that Morris has suffered directly from, apparently because of the customs issue," were not so inequitable as to prevent the order from having prospective application. The court stated that it was not inequitable for the protection order "to have the intended effect" after a "fully litigated hearing before a commissioner where there were disputed allegations of mental abuse." Regarding CR 60(b)(11), the court found that there was "nothing in this record that indicates that there was some critical piece of factual information that the commissioner was missing" when the VAPO was entered. In its written order, the court also noted that it viewed the motion as untimely and that Morris did not have standing under RCW 74.34.163 to bring a motion to vacate.

¶10 Through his independent counsel, Thomas moved for an award of attorney fees and costs incurred in responding to the motions to vacate, for reconsideration, and for revision. The court granted the motion, concluding that Thomas was the prevailing party and the award constituted necessary relief for his protection under RCW 74.34.130. DSHS was not involved in the attorney fee request or award.

¶11 Morris filed a notice of appeal seeking review of the January 2017 denial of the motion for revision. He filed a second notice of appeal seeking review of the order awarding attorney fees and costs to Thomas. The appeals of these two orders were consolidated for review by this court.

2017 Settlement Agreement in King County Superior Court No. 15-2-22589-8 SEA

¶12 Before any briefing had been submitted, Morris and Thomas filed a joint motion to stay the appeal in this court to facilitate ongoing settlement negotiations. In a notation ruling, the clerk of this court granted the stay. The parties were involved in negotiations to settle a separate case that Thomas had brought against Morris and his wife, Cheryl. DSHS was not involved in that case. The superior court appointed a litigation guardian ad litem (LGAL) in that case with the authority "to make decisions related to the procedure of the litigation so long as not involving a waiver of a substantial right of Thomas." The court found that:

[Thomas] can sometimes be capable of generally expressing his interests and guiding his attorney of record as to representation, but is in need of protection and assistance during times of incapacity and inability to express his interests, particularly when there is a dosage change in the medication provided to him as treatment for his Parkinson’s disease

.

¶13In July 2017, Thomas entered into a CR 2A agreement with Morris and Cheryl to settle the lawsuit. The agreement contained the following provision concerning the VAPO:

Tom agrees to cooperate fully with efforts to fully vacate the VAPO order and finding (Case No. 15-2-14162-7) and have the APS finding (Docket No. 03-2016-LIC-00149) dismissed with a goal of clearing Morris’ name. Tom and his attorneys agree to immediately instruct Talmadge law firm to withdraw their NOA and not participate on Tom’s behalf. The brothers agree to notify Jennifer Boharski and DSHS APS that there is a settlement in the civil matter and that the brothers have reconciled, including all issues surrounding the dog Becky. The brothers further agree to request that DSHS APS vacate the VAPO finding and order and APS finding.

¶14 In the LGAL’s summary report, he stated that he reviewed the CR 2A with Thomas and believed Thomas understood all of its terms. The LGAL asserted that he was familiar with the case and believed the settlement was reasonable, appropriate, and in Thomas’ best interest "so he could stop the expense of the litigation in terms of both money and time, and possibly health, and get on with his life." He also stated that he did not believe any of the participants in the mediation would have continued with negotiations if there was any concern about Thomas’ ability to participate in the process.

¶15 On October 22, 2017, Thomas amended the consent to receipt of protective services that he had signed in 2015, stating:

I[,] Thomas J. Winter[,] hereby revoke all authorization and consent for APS or its agents to provide services related to the matters involving Morris Winter and myself .... I further request APS and its agents to support vacating the protection order (VAPO) and its findings that APS sought against Morris Winter on my behalf and dismiss all findings under any and all APS investigations regarding Morris Winter and myself because APS and other misinterpreted records and statements which led to VAPO findings and APS investigation findings that are inaccurate.

Thomas and his independent counsel both signed the statement.

2017 Agreed Application to Vacate

¶16 On November 8, 2017, Morris and Thomas filed an "agreed application under RCW 74.34.163" to vacate the VAPO in superior court. At the...