No. 26404-8-II.The Court of Appeals of Washington, Division Two.
Filed: October 12, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 004004161, Hon. Nile E. Aubrey, August 14, 2000, Judgment or order under review.
Counsel for Appellant(s), Robin H. Balsam, Attorney At Law, 609 Tacoma Ave South, Tacoma, WA 98402.
Counsel for Respondent(s), John P. Brooks, Attorney At Law, 417 S G St, Tacoma, WA 98405.
KAREN G. SEINFELD, J.
Jarilyn Romney appeals a trial court order authorizing the appointment of a guardian of her estate and a limited guardian of her person. Because the trial court did not err in relying on the evidence presented by the testifying psychologist and because clear, cogent, and convincing evidence supports the trial court’s order, we affirm.
FACTS
Jarilyn Romney is 59 years old and she and her husband, Dr. Craig Romney, have two grown children. Ms. Romney has lived alone since she and Dr. Romney separated in 1991 but Dr. Romney has provided her with money for living expenses; he has also arranged for her housing and paid her rent directly to the landlord.
About three years ago, Dr. Romney petitioned for a dissolution.[1] On Dr. Romney’s motion, the court appointed a guardian ad litem (GAL) for Ms. Romney in the dissolution action and another attorney as legal counsel.
The GAL became concerned that Ms. Romney needed substitute decisionmaking and thus, in March 2000, he petitioned the court for a guardianship of her person and her estate.
In the subsequent guardianship proceedings, the court appointed another GAL for Ms. Romney but the attorney in the dissolution action continued to provide legal representation. Dr. Kristi Breen, a psychologist, testified about Ms. Romney’s delusional belief system and diagnosed her with paranoid schizophrenia. The two GALs, Ms. Romney, and a friend also testified.
The trial court granted the petition and ordered a guardianship of Ms. Romney’s estate and a limited guardianship of her person. On appeal, she argues that Dr. Breen was not qualified to testify as an expert witness in this case, that the evidence was not sufficient to prove that she was at a significant risk of personal or financial harm, and that the court erred in not considering alternatives to a guardianship.
DISCUSSION
The superior court has statutory authority to appoint a guardianship of the person and/or the estate of an incapacitated person. RCW 11.88.010
(1).[2]
An individual is `deemed incapacitated as to person when the superior court determines 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). Similarly, `a person may be deemed incapacitated as to the person’s estate when the superior court determines 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). The standard of proof in a contested guardianship proceeding is clear, cogent, and convincing evidence. RCW 11.88.045(3). See also In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999) (`Clear, cogent and convincing evidence exists when the evidence shows the ultimate fact at issue to be highly probable.’).
I. Dr. Breen’s Testimony
Before appointing a guardian, the trial court must receive a written report from a licensed physician or psychologist who has examined the alleged incapacitated person. RCW 11.88.045(4).[3] Ms. Romney does not allege a failure to comply with this statutory mandate; rather, she argues that Dr. Breen was inexperienced and that her qualifications to give a diagnosis was questionable.
The admissibility of expert testimony rests within the trial court’s sound discretion. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 P.3d 115 (2000). Further, a court `will deem an error waived [under the invited error doctrine] if the party asserting such error materially contributed thereto.’ In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) (claim of error as to admission of polygraph testimony waived where defense moved for admission of the testimony and the defense’s expert testified without objection). Here, although the trial court initially questioned the use of a psychologist as opposed to a medical doctor, Ms. Romney’s attorney represented to the court that under RCW 11.88.045:
you can have a psychologist and that’s why I haven’t specifically objected. I realize I represent Ms. Romney and just to save some time, [Dr. Breen] is allowed to testify and it’s perfectly allowed. The medical [sic] it does not need to be a physician or MD. It can be a Ph.D.
Report of Proceedings (RP) at 74.
A short time later, Ms. Romney’s attorney again stated that she did not `object to Dr. Breen’s testimony in that she was properly qualified and made an examination for purposes of this.’ RP at 77-78. And Ms. Romney’s GAL for the guardianship proceeding stated that `all parties agreed to have Dr. Breen evaluate Ms. Romney.’ RP at 75.
As Dr. Breen was a licensed psychologist and was acceptable to the parties, the trial court did not abuse its discretion in admitting or relying on her testimony. Further, by accepting the expert at trial, Ms. Romney has waived any claim of error as to the psychologist’s qualifications.
II. Guardianship of the Person and of the Estate
The trial court ordered that Ms. Romney `shall not retain the following rights: A. to marry or divorce . . .; B. to enter into a contract; C. to appoint someone to act on her behalf; D. to sue and be sued other than through her guardian; E. to buy, sell, own, mortgage, or lease property; F. to consent to or refuse medical treatment; and G. to decide who shall provide care and assistance.’[4] Clerk’s Papers (CP) at 105 (emphasis omitted).
A. Limited Guardianship of the Person
Ms. Romney asserts that there is no evidence that she is unable to provide for her daily necessities or that she has neglected her medical needs. We disagree.
Clear, cogent, and convincing evidence supports the trial court’s order of a limited guardianship of Ms. Romney’s person. Dr. Breen described Ms. Romney’s severe delusional belief system as primarily persecutory; Ms. Romney believes that the electrical power system is abusing her, that there are constant intruders in her attic, that persons are twisting pills onto her underwear, and that others intend her harm.[5] Dr. Breen opined that the delusions interfere with all of Ms. Romney’s decisionmaking, including day-to-day living decisions, medical care choices, relationships with others, and living arrangements.[6]
Ms. Romney’s fear of being bombarded by rays has forced her to stop driving; she was asked not to return to a grocery store after she complained that the butter she bought there had worm eggs; and her delusions have affected her eating choices and hygiene and isolated her socially because she fears that people will be harmed by contact with her.
Further, Ms. Romney’s mental illness has affected the larger decisions in her life. Dr. Romney had to make housing arrangements for her several times because Ms. Romney was forced to move after her delusions upset her neighbors.
Ms. Romney’s medical care has been similarly affected. According to Dr. Romney, she was hospitalized twice but she later permanently stopped taking the prescribed psychotropic medication. She has resisted medication because she believes it will transfer the electrical abuse into her body. Ms. Romney said that she did not follow through on a doctor’s advice because she was electrically abused at the doctor’s office. Ms. Romney’s own testimony supported Dr. Breen’s description of her delusional belief system. Thus, the trial court did not err in finding, by clear, cogent, and convincing evidence, that Ms. Romney is unable to provide for her daily necessities and has neglected her medical needs.
B. Guardianship of the Estate
Ms. Romney also contends that the evidence does not support the order of a guardianship of her estate because she has been able to maintain a checking and a savings account. She also argues that only the GAL’s conclusory statements support the need to revoke each of the rights included in the trial court’s order.
Again, the evidence supports the trial court’s order. Dr. Romney generally described Ms. Romney as `impulsive’ with her money and he suggested that she could not protect her resources to meet her future needs. Dr. Romney described Ms. Romney’s failure to pay bills, her $800 expenditure on a correspondence course in Spanish that she never followed through with, and her writing large checks in a `rather capricious fashion.’ Nor could she reliably pay her rent; thus, Dr. Romney began paying her rent directly to the landlord.
Ms. Romney’s GAL and Dr. Breen likewise suggest that although Ms. Romney can handle grocery shopping and some banking, she lacks the ability to manage a larger estate. And Ms. Romney acknowledged that she has difficulty with her accounts because of the perceived electrical abuse.
Given this evidence and the possibility that Ms. Romney may have a larger estate to manage at the end of the dissolution action, the trial court did not err in ordering a guardianship of her estate.
C. Alternatives to Guardianship
Ms. Romney finally argues that the evidence does not reflect that the trial court considered alternatives to a guardianship as RCW 11.88.090(5)(f)(iv) requires.[7] At oral argument, her attorney argued that a special needs trust would provide the assistance she requires.[8]
The GAL stated in her report that there is no alternative to a guardianship currently in place and opined that no alternative `would be appropriate; Jarilyn Romney would most likely oppose it and/or revoke it.’ CP at 38.
The GAL reiterated her report at the hearing, stating that she had reviewed alternatives to a guardianship but did not believe any were viable; Ms. Romney would have to agree to them and such agreement was unlikely.
There is no evidence before us contradicting the GAL’s opinion that there is no reasonable less restrictive alternative that would adequately meet all of Ms. Romney’s needs. The evidence indicates that she requires assistance not only in financial matters but also in meeting medical, legal, and day-to-day needs such as housing. A special needs trust would not assist her in those respects. Thus, Ms. Romney’s argument as to alternatives is not persuasive.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HOUGHTON, J., HUNT, A.C.J.
In all proceedings for appointment of a guardian or limited guardian, the court must be presented with a written report from a physician licensed to practice . . . or licensed or certified psychologist selected by the guardian ad litem. If the alleged incapacitated person opposes the health care professional selected by the guardian ad litem to prepare the medical report, then the guardian ad litem shall use the health care professional selected by the alleged incapacitated person. . . . The physician or psychologist shall have personally examined and interviewed the alleged incapacitated person . . . and shall have expertise in the type of disorder or incapacity the alleged incapacitated person is believed to have.
[C]lient is likely unable to make any medical decisions due to delusions. She reports some limited ability to manage finances. She reports some ability to grocery shop and do her banking. She has some delusions about food and avoids all cooking appliances. She has diminished concentration due to preoccupation with delusion. She avoids bathing due to fear of water being tampered with. Although she has some limited ability to function she reports continuous preoccupation with delusion. . . . CP at 48.
A description of any alternative arrangements previously made by the alleged incapacitated person or which could be made, and whether and to what extent such alternatives should be used in lieu of a guardianship, and if the guardian ad litem is recommending discontinuation of any such arrangements, specific findings as to why such arrangements are contrary to the best interest of the alleged incapacitated person[.]