Note: Decisions of a three-justice panel are not t o be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2010-266

APRIL TERM, 2011

In re Marvin Waldman } APPEALED FROM: } } Human Services Board } } } DOCKET NO. Y-08/09-441

In the above-entitled cause, the Clerk will enter:

Petitioner appeals pro se from the Human Services B oard’s decision that he financially exploited his elderly mother by using her Social Se curity income for himself. We affirm.

In July 2009, the Department of Disabilities, Aging and Independent Living (DAIL) substantiated a report that petitioner had exploite d his mother as defined in 33 V.S.A. § 6902(6). Petitioner requested review of this decision by the Human Services Board, and following a hearing, the Board affirmed DAIL’s determination. It made the following findings. Petitioner’s mother, E.W., is an elderly woman who used to live in Florida. She now lives in a residential care home in Middlebury, Vermont. Medicaid pays so me of the facility’s cost, and E.W. is responsible for the remaining share from her monthl y Social Security check.

E.W. moved into the facility in May 2008. Petition er paid the bill in full for several months, apparently using funds from the sale of E.W .’s Florida home. In November 2008, petitioner stopped paying the facility. Petitioner did not dispute that for most or all of the time since November 2008, he was E.W.’s representative p ayee for Social Security. Despite receiving E.W.’s Social Security money, petitioner did not pay any of it to the facility on E.W.’s behalf from October 2008 to the present. In a May 2009 letter to the facility, petitioner acknowledged E.W.’s debt, which totals $25,953.42. Petitioner argued that it was “God’s will” that he use E.W.’s money for his own business ventu res. The Board found that petitioner offered no credible evidence that he ever had permission an d authority to use E.W.’s income for his own benefit and purposes.

Based on these and other findings, the Board affirm ed DAIL’s decision that petitioner exploited his mother. The Board found it undispute d that E.W. was a “vulnerable adult” as defined in 33 V.S.A. § 6902(14). It explained that the term “exploitation” included “[w]illfully using, withholding, transferring or disposing of fu nds or property of a vulnerable adult without or in excess of legal authority for the wrongful profi t or advantage of another” or “[a]cquiring possession or control of an interest in funds or pr operty of a vulnerable adult through the use of undue influence, harassment, duress, or fraud.” Id . § 6902(6)(A), (B). The Board concluded that by using E.W.’s income for himself—and leaving E.W. significantly indebted, vulnerable to2

eviction, and subject to being without necessary me dical care and personal assistance—petitioner willfully “used” E.W.’s income without “authority” and for his own “wrongful advantage to E.W.’s personal and financial detriment.” It also concluded that by failing to inform E.W. that he was not using her Social Security income to pay her bill at the facility, petitioner acquired the use and control of E.W.’s income by “undue influenc e.” Thus, finding the statutory standards satisfied, the Board affirmed DAIL’s decision. Pet itioner filed a motion for reconsideration, which the Board denied. This appeal followed.

On review, we defer to the Board’s decisions, and w e “will not set aside the Board’s findings unless they are clearly erroneous.” In re E.C., 2010 VT 50, ¶ 6. “Our review is thus limited to determining whether the Board applied th e proper legal standard, whether the evidence before the Board reasonably supports its findings, and whether the Board's findings reasonably support its conclusions.” Id. “In reviewing the s ufficiency of the Board’s findings, we will

construe the record in a manner most favorable to t he Board’s conclusions.” Id. (quotation omitted).

The Board’s decision is supported by the record and by the law. First, E.W. is plainly a “vulnerable adult.” She was ninety-one years old a t the time of the hearing below and living in a facility that must be licensed under chapter 71 of Title 33, V.S.A. See 33 V.S.A. § 6902(14)(A) (“vulnerable adult” includes “resident of a facilit y required to be licensed under chapter 71” of Title 33). As to exploitation, the Board found tha t petitioner did not dispute that he received E.W.’s Social Security income and used it for his o wn purposes. The statute defines “exploitation” in part as “[a]cquiring possession o r control of . . . funds or property of a vulnerable adult through the use of undue influence , harassment, duress, or fraud.” Id. § 6902(6)(B).

The Board reasonably concluded that petitioner acqu ired possession of his mother’s funds through undue influence. He took advantage o f a joint checking account to take his mother’s money for himself. Obviously, E.W. needed this money to meet her own needs—she risked eviction as a result of petitioner’s behavio r, and it was only through the kindness of the facility that she was able to remain at the facilit y despite over $25,000 in unpaid fees. Petitioner took this money without E.W.’s knowledge, and E.W. was completely unaware that her expenses were not being paid. By failing to inform his moth er of his actions, petitioner was able to continue using her money as his own for a lengthy p eriod of time. The Board found that petitioner offered no credible evidence to show tha t he had permission and authority to use E.W.’s income for his own benefit and purposes. In particular, the testimony of his mother, presented by petitioner and confirming his version of authorization, was rejected as wholly unconvincing. While petitioner asserts otherwise, it is for the Board, not this Court, to weigh the evidence and assess the credibility of witnesses. In re E.C., 2010 VT 50, ¶ 6.

Given that this statutory definition of exploitatio n set forth in § 6902(6)(B) is satisfied, we need not consider if petitioner also exploited h is mother under § 6902(6)(A). We note that if petitioner was in fact E.W.’s representative payee for Social Security purposes—a fact the Board found unchallenged by petitioner—then he was legall y obligated to use the Social Security

benefits that he received on E.W.’s behalf for E.W. ’s use and benefit; he was also obligated to keep such benefits separate from his own funds. Se e 20 C.F.R. § 404.2035(a), (b). Petitioner’s behavior would plainly violate these federal regula tions and the statutory standard.3

None of petitioner’s arguments persuade us otherwis e. The fact that the federal government may have directly deposited E.W.’s Socia l Security funds into a joint checking account does not justify petitioner’s behavior or g ive him free rein to use E.W.’s money for himself. As set forth above, the Board found no ev idence that petitioner was authorized to use E.W.’s money as his own, and it acted well within i ts discretion in so concluding. While petitioner cites evidence that he believes supports his position, the Board was not so persuaded. We will not reweigh the evidence on appeal.

We reject petitioner’s belated challenge to the con stitutionality of the statutes at issue in this case and his challenge to the method by which fair hearings are conducted, including the use of a hearing officer who may or may not the Board’s attorney. Petitioner fails to show that these arguments were raised before the hearing officer or the Board during the proceedings on the merits. See Passion v. Dep’t of Social & Rehab. Se rvs., 166 Vt. 596, 597-98 (1997) (mem.) (“Matters not objected to in the prior proceeding w ill not be considered on appeal . . . .”). Instead, they appear to have been advanced for the first time in two motions to reconsider—one filed by petitioner and another written by a nonpar ty on petitioner’s behalf. The Board found no good cause to reopen its decision, and it did not e rr in so concluding. See F.H. Rule 1000.4(K) (Board authorized to grant such motions “only upon a showing of good cause by the moving party”). We note that petitioner cited no legal au thority to support such contentions in the motions below, aside from citing the statutes that specifically authorize the hearing process

followed here.

Finally, the Board has not defamed petitioner, as p etitioner suggests—its order reflects the Board’s conclusion, based on the evidence prese nted at the hearing below, that petitioner exploited his elderly mother. Petitioner was provi ded ample due process by which to challenge this conclusion, and the fact that he disagrees wit h the Board’s decision does not demonstrate legal error or violation of his constitutional righ ts. We have considered all of petitioner’s arguments and find them all without merit.

Affirmed.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ Marilyn S. Skoglund, Associate Justice

_______________________________________ Brian L. Burgess, Associate Justice