In the Matter of the Vulnerable Adult Petition for: Alan Carlin ( 2021 )

FILED
MARCH 4, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Matter of the Vulnerable Adult )
Petition for: ) No. 37496-3-III
)
ALAN CARLIN, )
)
PETER CARLIN, )
) UNPUBLISHED OPINION
Respondent, )
)
v. )
)
MARY C. EZENWA, )
)
Appellant. )
FEARING, J. — Mary Ezenwa appeals from the superior court’s entry of an order
restraining her from contact with eighty-two-year-old Alan Carlin. The trial court found
Ezenwa to have isolated and abused Carlin in violation of the Vulnerable Adult
Protection Act. Overwhelming evidence and the law support the trial court’s ruling. We
therefore affirm.
FACTS
Never advertise oneself as a millionaire.
No. 37496-3-III
Carlin v. Ezenwa
Alan Carlin, born April 28, 1937, resided in Fairfax, Virginia. His wife died in
2018. Alan has three adult children: Nancy Bundics, Danielle Roselin, and Peter Carlin.
Although Alan lives independently, he receives food, cleaning, and yard care assistance.
On the evening of December 24, 2019, Alan Carlin connected with Mary Ezenwa,
born July 22, 1984, after she sent him a message through the dating website
millionairematch.com, the leading millionaire dating service, serving only developed
countries since 2001. Alan responded with information regarding his education, work,
and family. E-mail messages show that Ezenwa and Alan’s relationship developed
instantaneously. In her second e-mail on December 24, Ezenwa expressed her love for
Alan. She also conveyed a conviction that the couple would successfully bear a family.
Alan replied with an offer for Ezenwa to visit him. Ezenwa responded with her own
invitation for Alan to travel to Spokane and live with her at her apartment for eight
months, after which they could consider marriage and children.
On Christmas day, 2019, Alan Carlin informed Mary Ezenwa that his physician
advised him not to fly. Alan invited Ezenwa to travel to Fairfax because of his
commodious home and convenient transportation facilities in adjacent Washington, D.C.
He volunteered to purchase meals for them. Ezenwa accepted the invitation and, that
same day, informed Alan of her intended arrival date of January 3. She, however,
ultimately obtained a ticket for January 18.
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Between Christmas and January 18, Alan Carlin and Mary Ezenwa focused e-mail
communications on Alan’s work and Ezenwa’s desire to assist him for free on grant-
funded projects. Ezenwa offered to split revenue accrued from the grants. She inquired
of Alan as to his experience with obtaining grant funding. On December 26, Ezenwa sent
two lists of potential projects for which the duo could seek grants.
On January 18, 2020, Mary Ezenwa, at her own expense, flew from Spokane to
Virginia to meet Alan Carlin. She there resided at Alan’s home. Alan’s children knew of
a female visiting Alan, but could not discover her name. On January 24, 2020, Alan and
Mary Ezenwa joined in matrimony.
On January 24, Alan Carlin’s son, Peter, filed a petition, in Fairfax County,
Virginia Circuit Court, seeking appointment as guardian and conservator for Alan. Peter
alleged in the petition that his father faced financial and physical risk as a result of his
permitting a stranger to live with him. Peter highlighted the stranger’s refusal to identify
herself. In the petition, Peter outlined his father’s finances:
Alan Carlin’s estate includes his residence . . . which has an assessed
value of $783,830; and bank and brokerage accounts with a total value of
approximately $1.5 million. Alan Carlin has income from his Federal
government retirement annuity and investment income of approximately
$150,000 annually.
Clerk’s Papers (CP) at 32. Peter Carlin declared in his petition that his father suffered
from cerebral amyloid angiopathy, a disorder that leads to damage in blood cells and
subsequent progressive strokes.
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With his petition for guardianship, Peter Carlin filed a letter from Argye E. Hillis,
Alan Carlin’s treating neurologist. Dr. Hillis confirmed that Alan suffered from cerebral
amyloid angiopathy. Cognitive testing, in September 2019, showed that Alan suffered
from “significant deficits in areas of the brain responsible for frontal lobe functioning.”
CP at 37. Hillis opined that the brain damage impacts Alan’s decision making capacity
and poses a risk for personal and financial exploitation by others.
On January 24, 2020, Peter Carlin served the petition for appointment of
guardianship on Alan. Peter also served notice of a hearing for January 31, 2020, which
hearing would determine the necessity of the appointment for a guardian. The notice
informed Alan that appointment of a guardian may impact the spending of his money, the
management of his property, and the rendering of medical decisions.
On January 27, the newlyweds, octogenarian Alan Carlin and tricenarian Mary
Ezenwa, flew to Spokane. Alan purchased the airline tickets. Alan sent a message to his
three children that informed them of his marriage and his plans to visit his new wife’s
home. An acquaintance of Ezenwa’s, Sara Miller, retrieved the couple from the Spokane
airport and drove them to her apartment in Cheney.
On January 29, Alan Carlin’s daughter, Danielle Roselin, contacted Officer Rocky
Hanni of the Cheney Police Department and expressed concern for her father. Roselin
believed, based on tower pings from Alan’s cellphone, her father to be present in Cheney.
Officer Hanni contacted Fairfax County law enforcement authorities, who informed
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Hanni that they did not consider Alan a missing person since he was an adult without any
history of incompetency. Officer Hanni decided to perform a welfare check anyway.
On January 30, Officer Rocky Hanni traveled to 515 West 6th Street, Cheney, the
apartment of Sara Miller. He encountered a nervous and shaking Mary Ezenwa. Ezenwa
exited the residence to speak with Officer Hanni. Ezenwa informed Hanni that she rented
a room with her husband, Alan. Ezenwa disclosed her last name. Officer Hanni asked
Ezenwa how she spelled her last name. Ezenwa looked at a document in her hand before
responding. Hanni asked Ezenwa to spell her middle name, and she again peered at the
document. Hanni told Ezenwa that he failed to write down the middle name, and he
asked her to repeat the spelling. Ezenwa viewed the document in her hand a third time.
Finally, Hanni asked Ezenwa to pronounce her middle name. Ezenwa answered that she
never learned how to pronounce the name.
Officer Rocky Hanni requested of Mary Ezenwa that she grant him the
opportunity to speak with Alan Carlin. Ezenwa replied that Alan just finished showering
and would need time to prepare to see others. Ezenwa reentered the apartment.
Five minutes later Officer Rocky Hanni knocked again on the apartment door.
Mary Ezenwa appeared outside again and informed Hanni that Alan needed an additional
thirty minutes to place hearing aids in his ears. A patient Officer Hanni returned to the
address in thirty minutes and spoke with Alan. Alan informed Hanni that his children
were attempting to declare him incompetent in order to prevent him from disinheriting
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them. Alan protested that he purchased a plane ticket, boarded the plane, and journeyed
to Spokane of his own free will.
After his conversation with Alan Carlin on January 30, Officer Rocky Hanni
contacted Adult Protective Services to alert the agency to the situation of Alan. Then on
January 31, Officer Rocky Hanni contacted Sara Miller, the principal occupant of 515
West 6th Street, Cheney. Miller told Officer Hanni that she met Mary Ezenwa two years
earlier. Ezenwa, however, had never stayed with her before arriving in Spokane with
Alan Carlin. Miller explained that Ezenwa informed her that she lived with Alan in
Virginia for two years and that the two recently married. Miller first believed that the
wedded pair planned on staying at her residence for two nights, but then Ezenwa asked to
stay for multiple weeks. Miller told Ezenwa that she and Alan could stay until February
12, when another resident would move into their room. Miller also told Officer Hanni
that Ezenwa told her that she and Alan came to the state of Washington for a psychiatric
evaluation, but Miller did not know the reason for the evaluation.
During the afternoon of January 31, 2020, Cheney Police Department Officers
Timothy Ewen, Chris English, and Zebulon Campbell visited the residence at 515 West
6th Street. Mary Ezenwa answered their knock on the door, and she invited the three
officers inside. The officers served documents on Ezenwa and Alan Carlin. The
documents included a temporary order of protection obtained by Peter Carlin in Spokane
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County Superior Court, which order declared Alan a vulnerable person. The officers
afforded Ezenwa the opportunity to collect her belongings and depart the residence.
While still at the residence, Officer Zebulon Campbell concluded that, because a
court had determined Alan Carlin to be a vulnerable adult and because Alan could not
articulate any plans to care for himself, Alan should be placed in protective custody. Law
enforcement transported Alan involuntarily to Sacred Heart Medical Center in Spokane.
Daughter Danielle Roselin traveled to Spokane and visited Alan at the hospital.
According to Roselin, on Alan’s admission to the hospital, hospital staff found him to be
dehydrated, anemic, and agitated. Alan also suffered from reduced kidney function, a
urinary tract infection, and an elevated lactic acid level, the latter condition which can
occur during a worsening infection and places the patient at risk of sepsis. Alan told his
daughter that he had fallen during his stay in Cheney. The fall resulted from a low airbed
on which he slept or from a room that lacked light and was sprinkled with trash that
created obstacles to walking.
On February 4, 2020, Officer Rocky Hanni visited Alan Carlin in the hospital.
Alan informed Officer Hanni that, before leaving Virginia, Mary Ezenwa requested that
Alan go to the post office and change his mailing address to 210 E. Lincoln Road,
Apartment 156, Spokane. When he returned from the post office, Ezenwa informed him
that his new address should instead be Apartment 157. This change of address concerned
Alan because he did not know who resided there. Alan further explained to Hanni that,
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on arriving in Cheney, he opened a bank account, in which he deposited $6,000.01. He
believed Ezenwa possessed paperwork for the account. Alan did not know whether
Ezenwa could withdraw money from the account. Alan informed Officer Hanni that
Ezenwa claimed to be a patient advocate, who owned two tech firms. Ezenwa boasted of
a net worth $5 million.
PROCEDURE
As previously written, on January 31, 2020, Peter Carlin filed a petition for a
vulnerable adult protection order on behalf of his father, Alan. Peter alleged in his
petition that he was an interested person concerned about the welfare of his father. Peter
declared a good faith belief that his father needed protection. Peter, as he did in the
petition in Virginia, explained that Carlin suffers from cerebral amyloid angiopathy.
Peter alleged that Alan’s illness interfered in his ability to render rational decisions and
placed him at risk for abuse and personal and financial exploitation by others. Peter
added that Alan had been subject to online scams in the recent past as a result of his
profile on millionairematch.com. Alan’s treating neurologist, Argye Hillis, and his
primary care physician, Ellen Jenkins, submitted declarations in support of the petition.
The two physicians averred that Alan recently was the target of financial scams.
In an exhibit to the petition, Peter Carlin outlined recent events in his father’s life.
According to the outline, on September 11, 2019, Alan Carlin executed a limited durable
power of attorney naming his daughter Nancy Bundics as attorney-in-fact. The document
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authorized Nancy to assist in the handling of her father’s finances. Alan executed the
power of attorney shortly after he lost $30,000 to scammers. He had earlier sent
$110,000 to other scammers. These transactions depleted his checking and primary
savings accounts. At the time he signed the durable power of attorney, he used funds in
his retirement account for everyday expenses.
On January 31, Peter Carlin obtained a temporary order for protection that
declared his father to be a vulnerable adult. The notice and temporary protection order
gave notice of a hearing on February 13, 2020.
On February 13, 2020, the Spokane County Superior Court commissioner
entertained Peter Carlin’s request for a final order of protection. Alan Carlin did not
attend the hearing, but submitted a declaration in support of the petition. In the
declaration, he agreed to the restrictions against Mary Ezenwa planted in the preliminary
protection order and asked the court to make the restrictions permanent.
On February 13, the court commissioner continued the hearing to February 27,
2020. The commissioner extended the temporary protection order in the interim.
Thereafter Alan Carlin filed another declaration and Mary Ezenwa filed two declarations.
Alan Carlin’s second declaration outlined his experience with Mary Ezenwa. Alan
asserted that, before he left Virginia, a social services specialist from Adult Protective
Services of Fairfax County visited his home in Virginia at the request of one of his
children. Since no one was then present at the abode, the social worker left his card.
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Ezenwa informed Alan that Virginia APS was a regulatory agency that would severely
restrict his freedom. She warned Alan that, if the agency found him, it would take him
into custody. According to Alan, Ezenwa told him that, if married, Virginia authorities
could not assume custody of him. She also suggested that the couple travel to
Washington State where, according to Ezenwa, a higher threshold existed for granting a
guardianship. Ezenwa informed Alan that, once married, she could become his guardian,
which would prevent Peter Carlin from obtaining the position. Ezenwa also told Alan
that she possessed a $5 million net worth. Alan later learned that she lacked money for
an attorney for the current proceeding and that she sought money from his friends to
obtain the attorney’s $3,500 retainer.
In Mary Ezenwa’s first declaration, she denied telling Alan that, if he married her,
Virginia’s adult protective services could not restrict his behavior. She could not recall
telling Alan that she wanted to be his guardian, however, she possibly told him that the
courts appoint wives as guardians for their husbands. Finally, Ezenwa denied disclosing
a net worth of $5 million.
In her second declaration, Mary Ezenwa acknowledged that she found Alan Carlin
on a website for women seeking wealthy men. She explained that she was asexual and
encountered difficulty in gaining a male companion who did not expect sexual relations.
She did not explain why wealthy men were less likely to desire sexual contact than poor
men. In the declaration, Ezenwa asserted that she did not pursue Alan, rather he pursued
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her as shown by email. She maintained that the two shared interests in common and she
never sought to control his money. She declared that she had subpoenaed Spokane
physician Debra Brown, who evaluated Alan and found him competent.
On February 27, 2020, the superior court commissioner conducted a hearing on
the petition for a vulnerable adult protection order. During the hearing, Peter Carlin’s
counsel notified the court commissioner that counsel subpoenaed three witnesses,
including Mary Ezenwa, and these witnesses were present in the courtroom if the court
desired testimony beyond the declarations. Mary Ezenwa’s counsel contended that he
received late notice of the witnesses, and he argued that the witnesses could have all
submitted affidavits. The court commissioner commented that courts generally resolved
proceedings involving vulnerable adults by affidavits, and, after counsel’s presentations,
she would decide if she required additional information. Ezenwa presented no lay
witnesses, expert testimony, or third-party affidavits to support her position. She did not
ask for live testimony. After argument by counsel, the court commissioner decided the
petition based on the declarations.
In an oral ruling, the court commissioner observed that Alan Carlin supported the
petition. She noted that two medical professionals submitted declarations in support of
the petition. Dr. Argye Hillis opined that Alan could be at risk for personal and financial
exploitation due to damage of his frontal lobe. Alan’s daughter Danielle Roselin, a
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psychologist, averred that Alan lacked insight into how his behavior led to the present
situation. Roselin described Alan’s poor condition when transported to the hospital.
The court commissioner rejected Mary Ezenwa’s contention that she had not
exploited Alan Carlin. The commissioner commented on the telling communications
between Alan and Ezenwa.
[S]he [Mary Ezenwa] states she loves him. The next day they talk
about her traveling to DC to stay with him in his home that has four
bedrooms close to DC. He will buy her food. She provides him of a very
detailed list of what she needs at Costco for her nutrition supplements. This
court finds that to be laying that foundation as far as how far will Mr.
Carlin go? She also talks about wanting to be his silent partner to write the
books, that she can do a lot of things for him. “One, build a fancy website
for you. One book per month. One newsletter weekly. Two blog posts
weekly. Marketing by social media platforms. Weekly webmaster role for
the email, et cetera. Love Mary.” And again, this is the first day they’re
talking.
Report of Proceedings (RP) at 27.
During the court commissioner’s oral ruing, she observed that, less than 24 hours
after meeting Alan Carlin on the Internet, Ezenwa broached the possibility of children,
although she later professed to be asexual. The court commissioner highlighted that Alan
informed Ezenwa that he could not travel, yet the pair flew to Spokane. Alan’s family
located the couple only as the result of pings on cell phone towers. The commissioner,
after referencing e-mail and texts between Alan and Ezenwa, remarked:
This is isolation. This is removing him from the home of 50 years.
Removing him from family. This is exploitation, emotionally, financially,
even after the service of this order for protection she’s asked for money.
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Washington State Law clearly says if you’re a married couple that the
wife/husband will have 50 percent.
RP at 29-30.
The court commissioner found Alan Carlin to be a vulnerable adult. The court
also found Mary Ezenwa to pose a threat to the physical safety of Alan. The
commissioner granted the vulnerable adult protection order.
LAW AND ANALYSIS
On appeal, Mary Ezenwa assigns six errors to the trial court proceedings. First,
law enforcement conducted an unlawful search and seizure of her temporary Cheney
residence in violation of the Fourth Amendment of the United States. Second, petitioner
Peter Carlin failed to serve the petition for a vulnerable adult protection proceeding and
notice of hearing on Alan Carlin. Third, the superior court denied Ezenwa a fair hearing
and due process. Fourth, Peter Carlin was not an “interested person” within the meaning
of the vulnerable adult protection act. Fifth, insufficient evidence supported the superior
court’s finding that Alan Carlin was a vulnerable adult. Sixth, insufficient evidence
supported the superior court’s finding that Alan Carlin was the victim of isolation,
emotional abuse, and personal and financial exploitation under RCW 74.34. We address
the assignments of error in such order. Ezenwa’s numerous assignments of error and her
contention that substantial evidence did not support the court commissioner’s ruling
prolongs our opinion.
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Law Enforcement Entry
Mary Ezenwa contends that law enforcement entered and remained in her residence
in violation of the United States Constitution’s Fourth Amendment. We assume Ezenwa
references the entry on January 31, 2020, by Cheney Police Officers Timothy Ewen,
Chris English, and Zebulon E. Campbell. The facts show that Officer Rocky Hanni did
not enter the home on January 30.
Mary Ezenwa does not inform the court what relief she deems she should receive
as a result of an alleged unlawful entry. We question, but do not decide, whether the
court may exclude, during a vulnerable adult protection proceeding, evidence based on an
unlawful entry into a home. We also assume, but do not decide, that the officers could
enter the home under their community caretaking function. Cady v. Dombrowski, 413
U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); State v. O’Neill, 148 Wn.2d 564,
574, 62 P.3d 489 (2003); State v. Mennegar, 114 Wn.2d 304, 309, 787 P.2d 1347 (1990).
We reject Mary Ezenwa’s Fourth Amendment to the United States Constitution
assignment of error based on consent. The evidence shows that Ezenwa invited the three
officers inside her premises on January 31. She never revoked the consent, and the
officers never exceeded any consent. The officers did not engage in any search or seizure
of property. One exception to the Fourth Amendment warrant requirement is consent.
State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998).
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Service of Process
Mary Ezenwa assigns error to Peter Carlin’s alleged failure to serve the petition
for vulnerable adult protection order and the notice of hearing on his father, Alan Carlin.
In her brief, she cites RCW 74.34.120(3) for the rule that the pleadings must be served on
the vulnerable adult. She also cites RCW 74.34.115 for the rule that the petitioner must
furnish a written notice to the vulnerable adult using the standard notice form described
in the statute. But then Ezenwa provides no argument that Peter Carlin failed to follow
either statute. The facts show that Alan Carlin received proper notice. During the
hearing before the court commissioner, Ezenwa never argued to the contrary.
Fair Hearing and Due Process
Mary Ezenwa contends the trial court denied her due process by refusing Ezenwa
the opportunity to call witnesses and by allowing Peter Carlin to introduce as evidence
old medical records. We deny the factual underpinning to Ezenwa’s arguments and so
reject her assignment of error.
The due process clause of the Fourteenth Amendment provides that no state shall
“deprive any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV, § 1. The fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful manner. Matthew v. Eldridge, 427
U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
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Under the vulnerable adult protection act, Chapter 74.34 RCW, due process
protections include, among other safeguards, the requirement that one file a petition along
with an affidavit setting forth the facts and circumstances supporting it, a hearing before a
judicial officer, notice to the respondent at least six days before the hearing, an
opportunity to appeal, and a five-year limitation on the protection order. RCW
74.34.110(1)-(3), .120(2)(3), .130(7). In addition, pursuant to RCW 74.34.135(3):
At the hearing scheduled by the court, the court shall give the
vulnerable adult, the respondent, the petitioner, and in the court’s discretion
other interested persons, the opportunity to testify and submit relevant
evidence.
Mary Ezenwa correctly asserts that no witnesses testified at the February 27
hearing. Nevertheless, Ezenwa and Peter Carlin agreed that the court commissioner
could decide the petition based on the declarations filed. In her declaration, Mary
Ezenwa averred that she attempted to subpoena Dr. Debra Brown to testify.
Nevertheless, in her declaration and during the hearing, she never explained her inability
to subpoena the physician. She did not ask for a continuance in order to serve the
subpoena. The court commissioner never declined a request by Mary Ezenwa to call live
witnesses. Assuming a decision based solely on declarations violated due process
principles, her direction to the court commissioner to base her decision on the
declarations constitutes invited error.
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The invited error doctrine prohibits appellate review of an error that the party
creates before the trial court. State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009).
The doctrine prevents parties from misleading trial courts and receiving a windfall by
doing so. State v. Momah, 167 Wn.2d at 153.
Mary Ezenwa next contends that more recent medical reports from two medical
professionals in Spokane show that Alan Carlin is competent and not in danger of
financial exploitation. Peter Carlin replies, in part, that Ezenwa references medical
reports not presented to the trial court and that this court does not generally review
evidence presented for the first time on appeal.
RAP 9.11(a) provides:
The appellate court may direct that additional evidence on the merits
of the case be taken before the decision of a case on review if: (1)
additional proof of facts is needed to fairly resolve the issues on review, (2)
the additional evidence would probably change the decision being
reviewed, (3) it is equitable to excuse a party’s failure to present the
evidence to the trial court, (4) the remedy available to a party through
postjudgment motions in the trial court is inadequate or unnecessarily
expensive, (5) the appellate court remedy of granting a new trial is
inadequate or unnecessarily expensive, and (6) it would be inequitable to
decide the case solely on the evidence already taken in the trial court.
All six factors must be met in order to permit supplementation of the record. Schreiner v.
City of Spokane, 74 Wn. App. 617, 620-21, 874 P.2d 883 (1994). Mary Ezenwa does not
ask this court to entertain additional evidence under RAP 9.11. Nor does she provide any
analysis as to the application of the rule’s factors. Therefore, we deny her contention.
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This court will not entertain an assignment of error not supported by argument and
citation to legal authority. BC Tire Corp. v. GTE Directories Corp., 46 Wn. App. 351,
355, 730 P.2d 726 (1986).
Mary Ezenwa contends that the declarations of neurologist Argye E. Hillis and
primary care physician Ellen Jenkins were false, were known by Peter to be false, and
contained outdated opinions. Nevertheless, the trial court, not this reviewing court,
determines what evidence is false. An appeals court does not reweigh the evidence or
determine credibility. Young v. Toyota Motor Sales U.S.A., 9 Wn. App. 2d 26, 39, 442
P.3d 5 (2019), aff’d, 196 Wn.2d 310, 472 P.3d 990 (2020). Ezenwa provides no analysis
as to when the medical opinions purportedly become outdated. Because of Alan Carlin’s
age, the validity of medical opinions concerning his inability to care for his wellbeing and
his susceptibility to manipulation would increase as time passed after the signing of the
declarations by the two physicians.
Interested Person
Mary Ezenwa contends that Peter Carlin is not an interested person under the
vulnerable adult protection act. We disagree.
The vulnerable adult protection act defines an “interested person” as one:
who demonstrates to the court’s satisfaction that the person is
interested in the welfare of the vulnerable adult, that the person has a good
faith belief that the court’s intervention is necessary, and that the vulnerable
adult is unable, due to incapacity, undue influence, or duress at the time the
petition is filed to protect his own interests.
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RCW 74.34.020(12).
In his petition for a vulnerable adult protection order, Peter Carlin affirmed that he
worried about the welfare of his father. Peter also declared that he had a good faith belief
that his father needed protection. According to Peter, his father suffered from from
cerebral amyloid angiopathy. The impairment affected his ability to manage his own
personal affairs, finances, and health needs. Alan Carlin, during a one year window of
time, had wired $110,000 to random individuals. Few, if any persons, held more interest
in the welfare of Alan, then Alan’s son, Peter.
Vulnerable Adult
Mary Ezenwa contends that Peter Carlin’s petition did not sufficiently allege the
status of Alan Carlin as a vulnerable adult and that the declarations in support of the
petition did not supply sufficient evidence for the court commissioner’s finding of Alan
being a vulnerable adult. As to her first contention, Ezenwa did not argue, before the
court commissioner, of an insufficiency of the petition. Reviewing courts normally will
not review an issue for the first time on appeal. RAP 2.5(a). Ezenwa also does not
provide any argument that this court should review the insufficiency of a petition when
the court commissioner found, after a hearing, the facts to support the petition. Thus, we
move to the question of whether substantial evidence supports the court commissioner’s
finding of Alan Carlin being a vulnerable adult.
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The legislature enacted the Abuse of Vulnerable Adults Act in order to protect
adults who “may be subjected to abuse, neglect, financial exploitation, or abandonment.”
See RCW 74.34.005(1). In its legislative findings, the legislature declared that a
vulnerable adult may be subject to such abuse or exploitation “by a family member, care
provider, or other person who has a relationship with the vulnerable adult.” RCW
74.34.005(1). The legislature recognized that “[a] vulnerable adult may have health
problems that place him or her in a dependent position.” RCW 74.34.005(4).
To protect vulnerable adults, the legislature permits an interested person to submit
a petition for an order for protection of a vulnerable adult. RCW 74.34.110(1) impliedly
defines a “vulnerable adult” as one facing abandonment, abuse, financial exploitation,
neglect, of the threat of any of the four phenomenon. The statute reads:
A vulnerable adult, or interested person on behalf of the vulnerable
adult, may seek relief from abandonment, abuse, financial exploitation, or
neglect, or the threat thereof, by filing a petition for an order for protection
in superior court.
RCW 74.34.110(1). Elsewhere the vulnerable adult protection act defines a “vulnerable
adult” as:
Sixty years of age or older who has the functional, mental, or physical
inability to care for himself or herself.
RCW 74.34.020(22)(a).
Overwhelming evidence supported the trial court’s finding that Alan Carlin had
the functional, mental, or physical inability to care for himself. Alan was 82 years old.
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According to Dr. Ellen Jenkins, Alan’s primary care physician, Alan suffers from
cerebral amyloid angiopathy. The disease causes deficits in the brain’s frontal lobe and
leads to impaired functioning. Jenkins opined that Alan requires supervision and
remained at risk for financial scams. The record showed Alan already lost tens of
thousands of dollars to scammers. Jenkins declared support for the vulnerable adult
petition.
Neurologist Argye Hillis also declared that Alan suffers from cerebral amyloid
angiopathy. She opined that the condition causes miniature strokes, resulting from
damage to the blood vessels. She stated that the resulting impairment impacts his
decision making capacity, judgment, reasoning and insight. His impairment placed him
at risk for personal and financial exploitation and abuse of others.
The declaration of Danielle Roselin described Alan Carlin’s condition at the time
he arrived at the Spokane hospital. As a result of the care, or lack thereof, from Mary
Ezenwa, Alan Carlin suffered from dehydration, anemia, and at risk for sepsis. Alan had
fallen while with Mary Ezenwa. He slept on a low airbed in a room cluttered with trash.
According to psychologist Roselin, her father lacked insight into how his behavior had
placed him in a dangerous situation.
This court reviews the superior court’s decision to enter a permanent order of
protection for an abuse of discretion. Hecker v. Cortinas, 110 Wn. App. 865, 869, 43
P.3d 50 (2002). The superior court abuses its discretion in entering the order if it is
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Carlin v. Ezenwa
“manifestly unreasonable or exercised on untenable grounds or for untenable reasons.”
In re Matter of Knight, 178 Wn. App. 929, 936, 317 P.3d 1068 (2014). This court
reviews the superior court’s findings to determine if they are supported by substantial
evidence. In re Matter of Knight, 178 Wn. App. at 936. This court does not reevaluate
“the persuasiveness of the evidence, witness credibility, and conflicting testimony,”
leaving such determinations solely to the trier of fact. In re Matter of Knight, 178 Wn.
App. at 936.
Victimhood
Mary Ezenwa next contends that the superior court commissioner failed to make
specific findings to support her determination that Ezenwa committed actions amounting
to financial exploitation. According to Ezenwa, the court commissioner needed to and
failed to enter a specific finding that Ezenwa acted with deception, intimidation, or
unlawful influence to gain control over Alan Carlin’s resources. She also argues that the
evidence did not support any conclusion that she harmed Alan. Ezenwa further contends
that the court commissioner failed to make findings that Ezenwa’s actions amounted to
neglect, but we ignore this contention because of alternate grounds on which to affirm the
superior court.
RCW 74.34.110(1) declares:
A vulnerable adult, or interested person on behalf of the vulnerable
adult, may seek relief from abandonment, abuse, financial exploitation, or
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Carlin v. Ezenwa
neglect, or the threat thereof, by filing a petition for an order for protection
in superior court.
(Emphasis added.) We note that the petitioner need not prove financial exploitation,
abuse, and neglect, only one of the conditions. Any of the conduct by the respondent
suffices for entry of a protection order. We also observe that the petitioner need not show
actual abuse or financial exploitation, as long as the petitioner shows a threat of either.
RCW 74.34.020(2) defines some of the operative terms found in RCW
74.34.110(1):
(1) “Abandonment” means action or inaction by a person or entity
with a duty of care for a vulnerable adult that leaves the vulnerable person
without the means or ability to obtain necessary food, clothing, shelter, or
health care.
(2) “Abuse” means the willful action or inaction that inflicts injury,
unreasonable confinement, intimidation, or punishment on a vulnerable
adult. In instances of abuse of a vulnerable adult who is unable to express
or demonstrate physical harm, pain, or mental anguish, the abuse is
presumed to cause physical harm, pain, or mental anguish. Abuse includes
sexual abuse, mental abuse, physical abuse, and personal exploitation of a
vulnerable adult, and improper use of restraint against a vulnerable adult
which have the following meanings:
....
(c) “Mental abuse” means a willful verbal or nonverbal action that
threatens, humiliates, harasses, coerces, intimidates, isolates, unreasonably
confines, or punishes a vulnerable adult. Mental abuse may include
ridiculing, yelling, or swearing.
(d) “Personal exploitation” means an act of forcing, compelling, or
exerting undue influence over a vulnerable adult causing the vulnerable
adult to act in a way that is inconsistent with relevant past behavior, or
causing the vulnerable adult to perform services for the benefit of another.
....
(7) “Financial exploitation” means the illegal or improper use,
control over, or withholding of the property, income, resources, or trust
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funds of the vulnerable adult by any person or entity for any person’s or
entity’s profit or advantage other than for the vulnerable adult’s profit or
advantage. “Financial exploitation” includes, but is not limited to:
(a) The use of deception, intimidation, or undue influence by a
person or entity in a position of trust and confidence with a vulnerable
adult to obtain or use the property, income, resources, or trust funds of the
vulnerable adult for the benefit of a person or entity other than the
vulnerable adult;
....
(c) Obtaining or using a vulnerable adult’s property, income,
resources, or trust funds without lawful authority, by a person or entity who
knows or clearly should know that the vulnerable adult lacks the capacity to
consent to the release or use of his or her property, income, resources, or
trust funds.
....
(13)(a) “Isolate” or “isolation” means to restrict a vulnerable adult’s
ability to communicate, visit, interact, or otherwise associate with persons
of his or her choosing. Isolation may be evidenced by acts including but
not limited to:
(i) Acts that prevent a vulnerable adult from sending, making, or
receiving his or her personal mail, electronic communications, or telephone
calls; or
(ii) Acts that prevent or obstruct the vulnerable adult from meeting
with others, such as telling a prospective visitor or caller that a vulnerable
adult is not present, or does not wish contact, where the statement is
contrary to the express wishes of the vulnerable adult.
RCW 74.34.115 (emphasis added).
Unfortunately, the law demands that the trial court sign a standard form order
prepared by the administrative office of the courts, which form leaves little, if any, room
for the trial court to enter detailed findings of fact that support entry of a protection order.
RCW 74.34.115. But we can determine the court’s specific findings by reviewing the
oral ruling.
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No. 37496-3-III
Carlin v. Ezenwa
At the conclusion of the February 27, 2020 hearing, the court, in oral comments,
found that Mary Ezenwa began manipulating Alan Carlin on the first day of their e-mail
conversation. Ezenwa claimed she loved Alan, even though she had never met him.
Although Ezenwa claimed, during the vulnerable adult proceeding, that she was asexual,
Ezenwa stated they could raise a family. Alan was 82 years old, and Ezenwa was 35
years of age. Ezenwa wrote of a lifetime of love, when Alan only had a few years of life
remaining.
The trial court continued during her oral findings. When guardianship
proceedings began in Virginia, Mary Ezenwa flew Alan Carlin from his home of fifty
years to Spokane, even though he earlier stated his physician told him not to fly. She
isolated Alan from Virginia authorities and from Alan’s children. Alan would not
communicate with his children, and the children only serendipitously discovered his
location 2,500 miles away by cellphone pings. Law enforcement officers found Alan in
Cheney, where he suffered from dehydration and lived amongst piles of trash. In the
meantime, Alan gave Ezenwa access to his bank records. At the conclusion of her
remarks, the court commissioner specifically found isolation, emotional exploitation, and
financial exploitation. The evidence before the court commissioner overwhelmingly
supported her findings.
The evidence presented by Peter Carlin illustrates the need for the Vulnerable
Adult Protection Act, and entry of the restraining order against Mary Ezenwa fulfilled the
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No. 37496-3-III
Carlin v. Ezenwa
policy behind the act. Decades ago in an era without cellphones, Alan Carlin’s children
may have never located him, and Alan could have been subjected to months of financial
and emotional exploitation from Ezenwa.
Attorney Fees and Costs
Both parties request an award of reasonable attorney fees and costs on appeal.
Mary Ezenwa requests fees and costs under RCW 74.34.130(7). She also seeks an award
of fees in the sum of $20,000 under RCW 4.84.080(2).
RCW 74.34.130(7) declares:
The court may order relief as it deems necessary for the protection of
the vulnerable adult, including, but not limited to the following:
....
(7) Requiring the respondent to pay a filing fee and court costs,
including service fees, and to reimburse the petitioner for costs incurred in
bringing the action, including a reasonable attorney’s fee.
Contrary to Mary Ezenwa’s suggestion the statute does not authorize the court to award
reasonable attorney fees to the respondent.
RCW 4.84.080(2) outlines the schedule of attorney’s fees stating:
When allowed to either party, costs to be called the attorney fee,
shall be as follows:
....
(2) In all actions where judgment is rendered in the [S]upreme
[C]ourt or the court of appeals, after argument, two hundred dollars.
We assume that Mary Ezenwa misreads RCW 4.84.080 as $20,000 rather than $200. In
any event, Ezenwa does not prevail on appeal and so is not entitled to fees under the
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No. 37496-3-III
Carlin v. Ezenwa
statute.
Peter Carlin requests an award of attorney fees under RAP 18.9(a) which permits
this court, on the motion of a party, to require payment of compensatory damages to
another party for filing of a frivolous appeal. These compensatory damages typically
entail payment of attorney fees. Boyles v. Department of Retirement Systems, 105 Wn.2d
499, 506, 716 P.2d 869 (1986). “An appeal is frivolous if there are no debatable issues
upon which reasonable minds might differ and it is so totally devoid of merit that there
was no reasonable possibility of reversal.” Eugster v. City of Spokane, 139 Wn. App. 21,
34, 156 P.3d 912 (2007). “An appeal is not frivolous, however, if the appellant can cite a
case supporting its position.” Schreiner v. City of Spokane, 74 Wn. App. 617, 625
(1994). Attorneys and pro se litigants are held to the same standard. In re Marriage of
Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
We question whether Peter Carlin must establish a frivolous appeal in order to gain
an award of reasonable attorney fees and costs. RCW 74.34.130(7) authorizes the court,
at its discretion, to impose reasonable attorney fees and costs on the respondent in favor
of the petitioner. Nevertheless, we deem Mary Ezenwa’s appeal frivolous and award
Peter reasonable attorney fees and costs.
Mary Ezenwa premised her appeal largely on her contention that declarations
within the record are false. Nevertheless, this court does not reweigh the evidence. The
evidence overwhelmingly supported the trial court’s findings and ruling. Ezenwa failed
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Carlin v. Ezenwa
to cite legal authorities to support her appeal.
CONCLUSIONS
We affirm the order of protection entered against Mary Ezenwa. We award Peter
Carlin reasonable attorney fees and costs incurred on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Siddoway, A.C.J.
______________________________
Staab, J.
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