FILED 

### COURT OF APPEALS DIVISION Ii 

### 2015 

### AUG l I 

### AM 9: 08 STATE OF WASHINGTON aY E I} T`t IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LARRY DALE CHRISTENSEN,

V. JENNIFER ROACH, DIVISION II

Respondent,

0 No. 44340 - 6 -II
UNPUBLISHED OPINION

BJORGEN, J. — Jennifer Roach appeals a vulnerable adult protection order restraining her from contacting Larry Christensen.. Roach contends that ( 1) venue was improper because the 

### petition for the order ofprotection was not filed in the county she and Christensen both lived in, 2) she was deprived ofherjury trial right because the trial court adjudicated the petition without 

### ajury, ( 3) she was deprived ofdue process oflawbecausethetrial court did notallow hertotestify

or cross- examine the witnesses against her, (

### 4) the person filing the petition, Richard Sutherland,

was disqualified from acting as Christensen' s attorney-in-fact based on a conflict of interest, (5) the trial court failed to enter findings offact and conclusions of law, and (6) the trial court made factual findings unsupported 

### by substantial evidence.No. 44340 - 6 -II 

### We hold that Roach ( 1) waived her venue claim by failing to object or move to transfer venue, (2) was not entitled to ajury trial because the hearing on the petition was an equitable proceeding, ( 3) was not denied due process because the trial court never prevented her from 

### testifying or cross-examining witnesses against her, and (4) waived her claim that Sutherland was 

### tainted by a conflict ofinterest by failing to raise it in the trial court or adequately briefthe issue before us. We also hold that (5) the trial court made the necessary findings offact and conclusions 

### oflaw and (6) thatthese findings are supported by substantial evidence. We affirm. FACTS In 1996, Christensen executed a durable power ofattorney naming Sutherland "as his attorney-in-fact" should he later become " disabled or incompetent." Clerk' s Papers ( CP) at 7. In April 2012, Christensen executed a living trust, naming himselfthe trust's original trustee and 

### Sutherland as his successor trustee in the event ofhis incapacity or death. The trust granted three people, Loretta Sutherland, Jessica Sutherland, and Roach, the power to determine whether Christensen had become incapacitated. Under the trust, " all rights to ... income, profits, and 

### control ofthe trust property" remained with Christensen until his death, CP at 27, at which time all interest in the trust' s property passed, in succession,to Sutherland and thento members ofhis 

### family.By 2009, Christensen was showing signs of Parkinson' s disease. Roach began working for Christensen near the end of that year, " cleaning and organizing his house" for $

### 100 a day. CP at 213. Over the next few months, Roach became something ofa personal assistant to Christensen before eventually moving into his house to become his " full time companion." CP at 213

2No. 44340 - 6 -II Roach and Christensen discovered research indicating that exercise benefitted those suffering from Parkinson' s disease. Roach considered getting Christensen to exercise as one of her duties, and some of Christensen' s friends and neighbors opined that he benefitted from 

### Roach' s physical therapy regime. In the summer of2012, Christensen remained well enough that he took a two week vacation through Scandinavia with Roach and one ofher friends. 

### By late September 2012, Roach and Christensen had returned to the United States. On September 24, 2012, Christensen tripped over a box lying on one ofthe steps in his house and fell, suffering injuries that required hospitalization. During this hospitalization, Roach used Christensen' s automated teller machine (ATM) card to withdraw, over several days, nearly 2,500 from his accounts. Christensen was discharged from the hospital on October 3, 2012. Shortlythereafter, 

### Christensen and Roach left Christensen's house in King County and temporarily moved into 

### Sutherland' s Kitsap County house. Two weeks after moving in with Sutherland,Christensen again required hospitalization. Doctors later said that the need for hospitalization may have resulted from lack ofsleep and exhaustion from over - exercise. 

### On the whole, Christensen and Roach's staywith the Sutherlands was marked bytension and strife. Despite Roach' s repeated statements ofaffection for Christensen, at least three people 

### heard Roach yelling at Christensen during the stay. One ofthese witnesses testified that she 

### heard Roach yelling at Christensen on no less than four.occasions and believed that on one of those occasions she heard a slap.

When Sutherland and his wife, Christensen' s nephew and his wife, and Roach began to plan for how to care for Christensen after his second hospitalization, a serious conflict erupted between Roach and the others. They confronted Roach over the large ATM withdrawals she hadNo. 44340 - 6 -II 

### made from Christensen' s accounts during his hospitalization. Roach began crying and yelling at the others, telling Christensen that " she was being attacked," which upset him. CP at 82. When talkturned to the costs ofRoach and Christensen's trip to Scandinavia, Christensen " spoke up and said [ he] agreed to pay half of all expense[ s]." CP at 82. Roach responded by repeatedly telling Christensen " you said you would pay for all expenses on the trip[,] remember?" CP at 82. The meeting ended, for the night, with Roach " screaming at [ Christensen,] saying she love[d] him and that [the others were] attacking her and making her leave." CP at 83. When the 

### meeting resumed the next morning, Sutherland decided thatthe situation was untenable andtold Roach that she needed to leave his home by the end ofthe day. Roach responded by immediately ... crying and screaming repeatedly" at Christensen that she loved him and that the others were 

### forcing her to leave him. CP at 83. She also told Christensen that "this has happened before and that the girlfriend gets nothing." CP at 83. When Christensen tried to
comfort her, Roach " shuffled him into the bedroom." CP at 83. He returned, immediately asking questions about his [ w] ill and who was in charge." CP at 83. The others took this incident as evidence of Roach' s manipulation of Christensen. Sutherland and Christensen' s nephewthen leftto go to Christensen' s house in King 

### County, where they retrieved belongings that he needed during his staywith the Sutherlands. 

### While there, the two men noticed the house' s unsanitary conditions, including leaking and 

### molding skylights, filthy and malodorous conditions in the master bathroom, clutterthroughout the house, and rodent feces and garbage in the kitchen.

On November 2, 2012, Sutherland filed a petition for a vulnerable adult protection order 

### in Kitsap County seeking to restrain Roach from interacting with Christensen. Sutherland filed the petition, in part, as Christensen's attorney-in-fact and as thetrustee ofChristensen's living
MNo. 44340 - 6 -II
trust, making him Christensen' s 

### fiduciary.' In the petition, Sutherland, under oath, listed a number of Roach' s acts that he contended showed abuse, neglect, and financial exploitation. These included Roach's demands that Christensen exercise excessively; her withdrawal oflarge amounts ofcash from Christensen's bank accounts during one ofhis hospital stays; hertravel 

### using Christensen' s funds; her failure to remove the clutterfrom Christensen' s house; herfailure 

### to keep the house sanitary; and her emotional abuse ofChristensen, evidenced by heryelling at him and use ofprofessions of love and other forms of emotional manipulation to bend Christensen to her wishes. 

### The parties appeared for an evidentiary hearing on the petition on November 30, 2012. The trial court announced that "ordinarily,these are proceedings that are done withouttestimony. I do rely on the pleadings, and I have reviewed the pleadings in their entirety." Verbatim Report
of Proceedings (VRP) (Nov. 30, 2012) at 3. The parties then presented their cases. Sutherland mentioned incidents that he believed showed Roach' s financial exploitation, 

### emotional abuse, and neglect ofChristensen, citing the evidence he had submitted.. This 

### evidence included documents showing that (1) Christensen's bank accounts had been heavily drawn on beginning in the late summer 2012 and that Roach had withdrawn money using his ATM cards while he was hospitalized; (2) that Roach had verbally abused Christensen or engaged in emotional manipulation; and (3) that Roach had over - exercised Christensen and failed to ensure safe and sanitary living conditions for him. 

### Roach noted that all ofSutherland' s supporting evidence consisted ofunsworn hearsay and contended, based on evidence she had submitted, that she had cared for Christensen 

### In earlyNovember, 2012, Loretta and Jessica had exercised theirpowers to declare Christensen incompetent, making Sutherland the trustee ofthe trust.No. 44340 - 6 -II appropriately. In support she had offered evidence that (1) exercise was an appropriate treatment for Parkinson' s disease, (2) Christensen' s doctors appear to have approved ofher care, and (3) 

### some people believed that she had cared for him well; she also offered heavily redacted financial records that she contended showed no financial exploitation. 

### In an oral ruling,the trial court found Roach had committed acts offinancial exploitation, neglect, and emotional abuse. The finding offinancial exploitation was based on three pieces ofevidence: Christensen' s uncharacteristic bank account withdrawals in the six months before the protection
order 

### hearing; Roach' s agreement to work for $

### 100 a day, which the trial court believed to be out - of - line with caregiver salaries in the area and which was financially unsustainable for Christensen; and Roach' s use ofChristensen' s ATM card to withdraw money. While making its 

### finding offinancial exploitation,the trial courtfound all ofthefinancial evidence Roach offered lacking in credibility. The finding ofneglectwas based on three pieces ofevidence: Roach' s failure, despite 

### being Christensen' s caregiver,to keep his house clean and orderly, including failing to keep his stairs free oftripping hazards, which led.to his fall and hospitalization; Roach's withholding of 

### medicine from Christensen; and Roach's over - exercising ofChristensen. The 

### finding of emotional abuse was based on two pieces of evidence: Sutherland' s evidence that Roach had yelled.at Christensen in an abusive manner and the trial court' s personal observation of how Roach' s crying upset Christensen.

The trial court entered a written order stating that "[ t]he [c] ourt [f] inds [b] ased [ u] pon the c] ourt [ r] ecord ... [ that] Respondent committed acts of abandonment, abuse, neglect, and/or financial exploitation of the vulnerable adult." CP at 374. Accordingly, the court granted theNo. 44340 - 6 -II 

### reliefsought in the petition, including restraining Roach from nearing or contacting Christensen, approaching his home, committing orthreatening to commit various acts ofabuse, neglect, 

### financial exploitation,orphysical harm against Christensen, and requiring herto account forany and all moneythat she had received from him.

Roach appeals. ANALYSIS I. VENUE Roach contends that venue was improper in Kitsap County because she and Christensen 

### reside in King County. Christensen contendsthat Roach waived the issue.2 Christensen is
correct.

### In Washington, venue is controlled by statute. Eubanks v. Brown, 180 Wn.2d 590, 595, 327 P. 3d 635 ( 2014). The plaintiff in an action possesses the initial right to choose venue. Eubanks, 180 Wn.2d at 595. Ifthe plaintifffails to select a proper venue, the defendant may object or request a transfer to a proper venue. Eubanks, 180 Wn.2d at 595. A defendant who fails to take one ofthose two steps waives any claim ofvenue - related error. Eubanks, 180 Wn.2d at 595 

### Inthetrial court,Roach did notobjecttothe Kitsap Countyproceedings or moveto change venue. By failing to do so, she waived any claim oferror. Eubanks, 180 Wn.2d at 595. II. TRIAL BY JURY 

### Roach claims thatthe proceedings in the trial court infringed on her right to trial byjury. Christensen argues that Roach had no constitutional right to trial byjury because ofthe equitable nature ofthe proceeding. We agree with Christensen.
2 Christensen makes these arguments through his guardians. 7No. 44340 - 6 -II 

### The right to ajury trial in civil proceedings is guaranteed by article I, section 21 ofthe Washington Constitution, which states that "[ 

### t]he right ofatrial byjury shall remain inviolate." 

### We interpret the provisions ofarticle I, section 21 by looking "to the right as it existed atthe time
of the constitution' s adoption in 1889." Sofie v. Fibreboard 

### Corp., 112 Wn.2d 636, 645, 771 P. M 711, 780 RM 260 ( 1989). Atthat time,the right to trial byjury did not attach to purely equitable matters. Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 365, 617 P.2d 704 ( 1980). To determine whether a claim is purely equitable, we consider, among other things,the issues involved and the type ofreliefsought. Auburn Mech., Inc. v. Lydig Constr., Inc., 89 Wn.App. 893, 899, 951 P. 2d 311 ( 1998) ( 

### quoting Brown, 94 Wn.2d at 368 (quoting Scavenius v. Manchester Port Dist., 2 Wn.App. 126, 129- 30, 467 P. 2d 372 ( 1970)); Chauffers, Teamsters, & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565, 110 S. Ct. 1339, 108 L. Ed. 2d 519 ( 1990). 

### Roach had no right to ajurytrial in these proceedings. An order ofprotection is aform
of injunction. Blackmon v. Blackmon, 155 Wn.App. 715, 721, 230 P. 3d 233 ( 2010). Because injunctions are " distinctly an equitable remedy ... ` 

### frequentlytermed the strong arm ofequity,"' Kucera v. Department ofTransportation, 140 Wn.2d 200, 209, 995 P. 2d 63 ( 2000), a proceeding for an injunction is an equitable proceeding." Tradewell Stores, Inc. v. T.B. & M.,Inc., 7 Wn. App. 424, 427-28, 500 P.2d 1290 ( 1972). Consequently, this was the type ofequitable proceeding to which thejury trial right does not attach. See Brown, 94 Wn,2d at 365.No. 44340 - 6 -II
III. DUE PROCESS 

### Roach also contends thatthe trial court violated her rightto due process by (1) failing to 

### offer herthe opportunityto cross-examine3 the witnesses against her and (2) failing to offerher the chance to testify on her behalf. We disagree. Both the state and federal constitutions protect against state deprivation of "life, liberty,

or property, without due process of law." UNITED STATES CONST. amend. XIV, § 1; WASHINGTON CONST. art. I, § 3. Due process is a flexible concept and the protections it requires vary based on specific circumstances. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976) (quoting Morrisey v. Brewer, 408 U.S. 471, 481, 92 S. Ct.2593, 33 L. Ed. 2d 484 ( 1972)). The trial court did not deprive Roach ofthe opportunity to present testimony and crossexamine witnesses. The basis of Roach' s due process claim is the trial court' s statement that ordinarily, these are proceedings that are done without testimony." VRP ( Nov. 30, 2012) at 3 emphasis added). That statement does not foreclose Roach' s ability to present live testimony or

cross- examine Sutherland. Roach simply never asked the trial court to allow her to do so. 

### Cf.In

re Marriage ofRideout, 150 Wn.2d 337, 352, 77 P. 3d 1174 (2003) ( appellant had the 

### opportunity to present live testimony,with consequent cross-examination, but failed to requestto do so). 

### Having failed to assert her rights, Roach cannot now complain that she was deprived of due process. See Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 ( 1944) No procedural principle is more familiar to this Court than that a constitutional right may be


### 3 Onthe cross examination issue, see also Gourleyv. Gourley, 158 Wn.2d 460, 467, 145 P.3d 1185 ( 2006).
ENo. 44340 - 6 -II forfeited in criminal as well as civil cases by the failure to make timely assertion ofthe right before a tribunal 

### havingjurisdiction to determine it.");see State v. Gunkel, 188 Wash. 528, 534- 35, 63 P. 2d 376 ( 1936)) ( 

### party musttimely assert constitutional rights or forfeit them). IV. CONFLICT OF INTEREST Roach next contends that Sutherland had a conflict ofinterest created by his serving as 

### both Christensen' s attorney-in-fact and the trustee ofChristensen' s living trust. Avoiding this situation, Roach argues, requires that Sutherland not act as Christensen' s attorney-in-fact. Christensen argues that Roach waived this claim oferror by failing to properly raise it in the trial 

### court or cite authority in support ofit. Christensen is correct. Generally a person may not raise an issue on appeal not raised before the trial court. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P. 2d 351 ( 1983); RAP 2. 5( a). This rule serves principles of.equity andjudicial economy. Smith, 100 Wn.2d at 37. Chapter 11. 94 RCW, which 

### governs the powers and duties ofan attorney-in-fact, has specific provisions that authorize interested persons to petition the courtto terminate a power ofattorney orto restrict its exercise. RCW 11. 94.090.. Roach did not avail herself ofthese provisions or otherwise request relief based on the claimed conflict of interest in the trial court. We decline to consider her claim of error for the first time on appeal. Further, Roach' s briefing on the issue fails to comport with the rules governing appeals to this court. RAP 10.3( a)(6) requires appellants to offer argument with citations to supporting legal authority. Roach has failed to offer such support and has waived any claim oferror related 

### to her conflict ofinterest argument. See Brownfieldv. City ofYakima, 178 Wn.App. 850, 876, 316 P. 3d 520 (2013).

10No. 44340 - 6 -II
V. FINDINGS AND CONCLUSIONS 

### Roach next contends that the trial court erred by not entering findings offact and conclusions of law that would enable appellate review. Christensen argues that the order itself contained the necessary finding and conclusion. Again,we agree with Christensen. 

### Division One ofthis court has succinctly summarized both the purposes and necessary content offindings offact:

The basic purpose and requirements offindings offact can be summarized: 1) in a case tried to the court, the trial court must make findings of ultimate fact concerning all of the material issues; ( 2) the trial court is not required to make findings in regard to every item of evidence introduced in a case; ( 3) the purpose of findings is to enable an appellate court to review the questions raised on appeal, 

### and (4) when it clearly appears what questions were decided bythe trial court and 

### the manner in which they were decided, the requirements for findings have been met. 

### Ford v. Bellingham-Whatcom County Dist. Bd.ofHealth, 16 Wn. App. 709, 717, 558 P.2d 821 1977) ( citing CR 52; Bowman v. Webster, 42 Wn.2d 129, 133, 253 P. 2d 934 ( 1953); Wold v. Wold,7 Wn.App. 872, 875, 503 P.2d 118 ( 1972)). The finding in the protection order is sufficient underthat standard. The trial court found that Roach had " committed acts of abandonment, abuse, neglect, and/or financial exploitation." 

### CP at 374. Although greater detail would be preferable, thatfinding meets the essential requirements offindings set out in Ford, above. 16 Wn.App. at 717. The order also contains 

### the trial court's legal conclusion, which flows directlyfrom its finding,that "as a matter oflaw. .
relief ... shall be granted." 

### CP at 374. There was no error in entering insufficient findings and
conclusions. Roach appears also to contend that the trial court erred by not entering findings with regard to each piece of evidence the parties offered at the hearing. As noted, the Ford court heldNo. 44340 - 6 -II that "the trial court is not required to make findings in regard to every item ofevidence introduced in a case." 

### 16 Wn.App. at 717. Thus, thetrial court had no dutyto do what Roach demands. VI. SUBSTANTIAL EVIDENCE

Roach also contends that ( 1) substantial evidence does not support the trial court' s 

### finding offinancial abuse because no evidence, otherthan the trial court' s own experience, supports its finding that Roach's daily rate for giving care was exorbitant and (2) substantial 

### evidence does not support the trial court's finding ofneglect because Christensen' s evidence consisted ofunsworn hearsay. We hold that substantial evidence supports the trial court's 

### findings and that the trial court did not err by relying on unsworn hearsay, based on explicit provisions in the rules of evidence. 

### We reviewthe factual findings made bythe trial court in avulnerable adult protection 

### order proceeding for substantial evidence. In re Pers. Restraint ofKnight, 178 Wn.App. 929, 936, 817 P.3d 1068 ( 2014). Because there is a heightened burden ofproof in these proceedings, the petitioner must marshal evidence that, in the light most favorable to him or her, allows us to 

### determine that afact finder could find the necessary facts by clear, cogent, and convincing
evidence. In re Dependency ofC.B., 61 Wn.App. 280, 282- 86, 810 P. 2d 518 ( 1991); Knight, 178 Wn.App. at 937. We defer to the trial court's determinations about "the persuasiveness of the evidence, witness credibility, and conflicting testimony." Knight, 178 Wn.App. at 937. 

### Consequently,when reviewing a claim that atrial court's findings are not supported by substantial evidence, we "need only consider [the] evidence favorable to the prevailing party." Endicott v. Saul, 142 Wn.App. 899, 909, 176 P.3d 560 (2008).

12No. 44340 - 6 -II
A procedural matter complicates Roach' s first allegation of error. Roach argues that 

### substantial evidence does not supportthe finding offinancial abuse because the only evidence supporting it is the trial court's own experience about caregiver rates. The trial court's statement about those rates, however, was made in its oral ruling, and a party may not assign errorto the 

### trial court' s oral ruling. El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 857, 376 P.2d 528 ( 1962). Given that legal principle, we simplytreat Roach' s challenge as one to the trial court' s finding that she committed acts offinancial exploitation,the finding contained in the order of protection.4 

### We hold that substantial evidence supports the trial court's finding offinancial exploitation. "` [ F] inancial exploitation' means the illegal or improper use, control over, or 

### withholding ofthe property, income, resources, ortrust funds ofthe vulnerable adult by any person or entity for any person' s or entity' s profit or advantage otherthan forthe vulnerable
adult' s profit or advantage." RCW 74. 34.020( 7). Financial exploitation includes t]he 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 ofthe vulnerable adult forthe benefit of a person or entity other than the vulnerable adult. RCW 74.34.020(7)( a). Whether or not the trial court erred by 

### finding that $ 100 per day was excessive, the record contains evidence that Roach used Christensen' s ATM card to withdraw 

### moneywhile he was in the hospital and used undue influence to get him to support her claim that he had agreed to paythe entirety ofher Scandinavian vacation. From that evidence,the trial court 

### could reasonably find financial exploitation. 

### 4 The use of "and/or" inthe finding inthe order ofprotection leaves itambiguous as to whether the trial court found financial abuse, but that ambiguity can be resolved by turning to the trial court' s oral ruling, State v. Hescock, 98 Wn.App. 600, 606, 989 P.2d 1251 ( 1999), which made clear that it did. 13No. 44340 - 6 -II 

### We also hold that substantial evidence supports the trial court's finding ofneglect. Under RCW 74.34.020( 12)( a),

n] eglect' means ... 

### a pattern ofconduct or inaction by a person or entity with a duty ofcare that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult. By Roach' s own admission, she served as Christensen' s caretaker and therefore bore a duty of 

### care. Despite this duty, she failed to ensure a sanitary and safe living environment. Sutherland 

### and Christensen' s nephew found filthy conditions inside Christensen' s house, and Roach failed to remove the clutter on Christensen's stairs, which eventually led to his tripping and falling. Evidence also indicates that Roach was responsible for Christensen' s October 2013 hospitalization by forcing him to over - exercise, although there is also evidence to the contrary. 

### Substantial evidence supports the trial court' s finding ofneglect. Further, even ifwe held thatthe trial court erred by finding both financial abuse and neglect, chapter 74. 34 RCW creates a cause of action for, disjunctively, " cases of abandonment, abuse, financial exploitation, or neglect." RCW 74. 34. 11 0( l) (emphasis added). Roach has not challenged the trial court' s -finding that she committed emotional abuse, making it averity on appeal.' 

### We affirm the protection orderbased onthatfinding by itself. Roach next contends that the trial court erred by making its findings on unsworn hearsay 

### evidence. ER 603 requires witnesses to testify under oath. ER 801( c) defines " hearsay" as a statement, otherthan one made bythe declarant while testifying atthe trial or hearing, offered in evidence to prove the truth ofthe matter asserted." ER 802 makes hearsay statements
Again, the written order is ambiguous as to whether it found neglect or abuse, but the trial court' s oral ruling makes clearthat it did. 14No. 44340 - 6 -II 

### inadmissible subjectto exceptions made by court rule or statute. There is no requirement, however, that atrial court apply these evidentiary rules in proceedings under chapter 74.34 RCW. ER 1101( c)( 4). The trial court was free to credit and use Sutherland' s evidence regardless ofwhether it was unsworn or hearsay. There was no error. CONCLUSION We rule against Roach on her claims oferror and affirm the trial court's entry ofthe
order of protection. 

### A majority ofthe panel having determined thatthis opinion will notbe printed inthe Washington Appellate Reports, but will be filed for public record in accordance.with RCW 2.06. 040, it is so ordered.

i BJC` . GEN -- J-.. -• We concur:

J

A CHAN NJ.,

MELNICK, J.

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