Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

In re the Guardianship of:                                       No.  40966-6-II

THOMAS ROBINSON,
                                                           UNPUBLISHED OPINION
              An Incapacitated Person.

       Armstrong, P.J.  --  The Department of Social and Health Services petitioned for the 

appointment  of a guardian of the person and estate of Thomas Robinson after receiving 

allegations of self-neglect.  Robinson opposed the guardianship petition.

       The jury found Robinson incapacitated as to his person and his estate and restricted his 

rights accordingly.  The trial court ordered a limited guardianship for Robinson and his estate.  

Robinson appeals, arguing that (1) the testimony of a temporary financial manager improperly 

conveyed to the jury that he lacked capacity, (2) the trial court erred by allowing references to his 

evaluations at Western State Hospital, and (3) the medical reports do not satisfy RCW 

11.88.045(4).  We affirm.

                                            FACTS

       Adult Protective Services, a division of the Department of Social and Health Services, 

became involved with Robinson in 2007 after receiving a referral alleging that  he was self-

neglecting.  Robinson suffers from alcoholism, diabetes, dementia, congestive heart failure, and 

Korsakoff's disease.  Robinson has often been hospitalized because he is unable to handle his 

complex medication regimen and personal care, as well as his hydration needs.  Frequently, 

Robinson left the hospital against medical advice, without filling his necessary prescription  

No. 40966-6-II

medications, and without caregiving assistance.  

       In February 2009, Robyn Floor, an occupational therapist assisting with Robinson's 

independent living situation, concluded that based on her observations, Robinson could not safely 

live independently and that he needed assistance with daily living activities, medical decision-

making, money management, transportation, and using the telephone.  Floor provided her 

evaluations to Lisa Gilman, an adult protective services social worker investigating allegations 

that Robinson was self-neglecting.

       In March 2009, the Department received a referral from Dr. Retailliau, Robinson's 

physician at the time, that Robinson was self-neglecting. Dr. Retailliau treated Robinson for atrial 

fibrillation and observed that Robinson did not know his medications or what they were for, nor 

could he describe what he was taking or eating.  Dr. Retailliau could not safely prescribe the 

medication for Robinson's condition.   

       Later in March 2009, Gilman met with Robinson in his apartment. Gilman observed badly 

stained floors and furniture, beer bottles throughout the apartment, and clothes strewn about the 

bedroom.  Gilman also observed that Robinson was not taking his medications as prescribed and 

was aware of needing only one medication, although he had been prescribed seventeen different 

medications.

       When Gilman returned to Robinson's apartment in April 2009, Robinson was wearing the 

same stained clothes he had worn at her last visit.  Robinson's apartment smelled of rotten food 

and Gilman observed more bottles of hard liquor in the apartment.           Gilman returned to 

Robinson's apartment on five different occasions following this visit but she could not reach him 

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No. 40966-6-II

at home.

       Gilman returned to Robinson's apartment again on May 8, 2009.  Robinson was not home 

but Gilman smelled strong odors coming from his apartment.  The apartment manager let Gilman 

into Robinson's apartment where she saw more empty alcohol bottles, food cartons, and garbage. 

       In May 2009, Robinson was hospitalized and his occupational therapist recommended 24-

hour supervision.  Robinson told his occupational therapist that he was unable to care for himself 

because he was sick, he  provided inaccurate information about his children's ages, and he 

reported having difficulty with self-care.  Robinson agreed to go to Roo-Lan, a skilled nursing 

facility, on June 12, 2009.  But he left against medical advice in October 2009.

       On June 25, 2009, the Department petitioned the trial court to appoint a guardian ad litem

(GAL) for Robinson and his estate; Robinson opposed the guardianship petition.  The trial court 

appointed Julie Weigand as his GAL.  When Weigand met with Robinson in July 2010, he told her 

that he was 74, although he was 73, that it was May, he could not remember the name of the 

President, or what the name or address was for the Roo-Lan facility where he lived.    Weigand 

informed Robinson that she was his GAL.  Robinson responded angrily, telling Weigand that he 

opposed the guardianship and wanted an attorney.     Weigand arranged for the appointment of 

independent counsel for Robinson.

       In July 2009, Dr. Karanam, Robinson's physician, reported that Robinson was 

incapacitated due to alcoholism and medical noncompliance leading to safety issues specifically 

requiring "24-hour supervision for multiple complex medications . . . household chores, driving, 

shopping, monitoring alcohol use." Report of Proceedings (RP) (Apr. 21, 2010) at 245-47.  

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       After Robinson left Roo-Lan in October 2009, he returned home.  He was hospitalized in 

late October for acute renal failure, hyponatremia, diarrhea, abdominal pain, and a low heart rate.  

Robinson had an aortic valve replacement in November.  He was hospitalized twice in December 

for mental health issues and not taking his medications.

       In January 2010, Weigand visited Robinson's apartment.  She discovered his apartment 

had feces on the floor, rotting food left out, and garbage strewn about.  According to Weigand, 

the apartment was filled with a rancid odor and there was a pill box on the kitchen floor with 

some compartments open and others closed, but not in a consecutive order.

       On February 12, 2010, Clifton Messerschmidt was appointed by the court to serve as 

Robinson's temporary financial and personal property manager.  Messerschmidt managed 

Robinson's finances, paid his bills, obtained and handled his mail, managed his apartment lease, 

cleaned the apartment, and paid for storage of property.  After his appointment, Messerschmidt 

removed approximately 20 bags of garbage from Robinson's apartment, including food, alcohol 

bottles, and soiled clothing. Messerschmidt also observed feces on chairs and on the mattress in 

the bedroom and a strong odor coming from the furniture.  A handgun was in a box in the 

bedroom under some clothes, with six bullets in the gun.

       Before trial on the guardianship petition, Robinson moved to exclude references to 

Western State Hospital.  The trial court ruled that counsel could show that Robinson was a 

resident at Western State Hospital but could not disclose why he was there or how long he had 

been there.  The trial court also    precluded any evidence that Robinson was involuntarily 

committed at Western State Hospital, however, the trial court did not prohibit evidence that Dr. 

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No. 40966-6-II

Parmenter had evaluated Robinson at Western State Hospital where she worked.  Robinson's 

counsel requested that the witnesses refer to Robinson being "hospitalized" at Western State 

Hospital when referring to his time there.  RP (Apr. 21, 2010) at 189.

       Dr. Parmenter, a Western State Hospital neuropsychiatrist, testified that during her 

evaluation of Robinson she observed semantic paraphasic errors1 that signified he suffered from 

dementia.  Dr. Parmenter also noted that Robinson's remote memory was impaired as evidenced 

by his inability to provide his childrens' correct ages or remember past events.  Based on her 

testing, Dr. Parmenter concluded that Robinson was of at least average intelligence, had low 

verbal fluency, and exhibited significant difficulty learning and recalling information.

       During Dr. Parmenter's testimony, the Department offered part of Robinson's medical file 

including a copy of the Kohlman Evaluation of Living Skills (KELS) and the Allen Cognitive 

Evaluation Tool;   Robinson did not object.  These tests evaluate the patient's ability to 

independently complete certain tasks of daily living.  Robinson exhibited a need for assistance in 

daily living, including with self-care, safety and health, money management, transportation, 

telephone use, work, and leisure.  His medical records reflect treatment for diabetes, coronary 

artery disease, congestive heart failure, cardiomyopathy, atrial fibrillation, hypertension, chronic 

obstructive pulmonary disease, transient ischemic attacks, alcoholic gastritis, and a long-standing 

history of alcohol abuse.

       At trial, Weigand submitted medical reports from Dr. Karanam and Dr. Parmenter.  

1 Dr. Parmenter described that paraphrasic errors occur when a person says a word that is similar 
in meaning to the word that he means to use, but is not quite the right word.  An example of a 
paraphrasic error is using the word "bouquet" to describe a "wreath." RP (Apr. 20, 2010) at 131.

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Robinson moved to dismiss the guardianship petition arguing that  the medical reports were 

insufficient.  The trial court denied his motion finding the medical reports and testimony 

substantially complied with the requirements of the guardianship statute.

       Robinson testified that he would like to live in an apartment with assistance, including 

nurse visits three times a week, but he did not need assistance with shopping or preparing food.  

Robinson stated it would be useful to have caregivers to help with routine matters.  He was not 

able to provide the name of any of his medications, testifying, "I don't even pay any attention to 

them.  They're so numerous." RP (Apr. 22, 2010) at 302.  He recognized that he suffered from a 

heart condition. 

       The jury found Robinson incapacitated as to his person and his estate.  The trial court 

ordered a limited guardianship for Robinson and his estate.

                                          ANALYSIS

                         I. Testimony of Temporary Financial Manager

       Robinson states that RCW 11.88.0102 and RCW 11.88.045(3)3 presume capacity of the 

person for which there is a petition for guardianship.  He challenges the testimony of 

Messerschmidt, the court-appointed temporary financial manager for Robinson, asserting that he

improperly conveyed to the jury that Robinson lacked capacity.        The State responds that 

2 It is unclear which portion of the statute Robinson relies upon.  RCW 11.88.010(2) provides, in 
relevant part, "[a] person shall not be presumed to be incapacitated nor shall a person lose any 
legal rights or suffer any legal disabilities as the result of being placed under a limited 
guardianship. . . ."

3 RCW 11.88.045(3) provides that the alleged incapacitated person is "entitled to testify and 
present evidence and, upon request, entitled to a jury trial on the issues of his or her alleged 
incapacity." The standard of proof is clear, cogent, and convincing evidence.

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No. 40966-6-II

Robinson waived this issue because he did not object at trial.

       We may refuse to review any claim of error not raised in the trial court.  RAP 2.5(a).  To 

preserve an issue for appeal, a party must object to the evidence during the trial.  State v. Guloy, 

104 Wn.2d 412, 421, 705 P.2d 1182 (1985) (a litigant cannot remain silent as to claimed error 

during trial and later, for the first time, object on appeal).  Robinson did not object to the evidence 

about Messerschmidt's role as temporary financial manager.4      Moreover, Robinson's general

objection to the guardianship proceedings is not sufficient to preserve a challenge to the 

guardian's testimony at trial. In re Det. of Audett, 158 Wn.2d 712, 725-26, 147 P.3d 982 (2006). 

Accordingly, we decline to address the issue.5 RAP 2.5(a). 

                            II. References to Western State Hospital

       Robinson argues that evidentiary references to Western State Hospital, specifically the 

Department's questioning on direct examination of Dr. Parmenter, was improper because (1) by 

statute, mental health records are confidential;    (2) jurors would presume Robinson was 

incapacitated because he was at Western State Hospital; and (3) this error was not harmless. 

       We review a trial court's rulings admitting evidence for an abuse of discretion.  City of 

Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004).  A trial court abuses its discretion if its 

decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.  

4 Robinson does not allege that the testimony by Messerschmidt was a manifest constitutional 
error, nor does he argue that the testimony led to actual prejudice.  

5 Robinson urges us to accept the issue in spite of his "technical" violation of the appellate rules, 
citing State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995).  See Reply Br. of Resp't at 4.  But 
Olson dealt with the State's failure to assign error to the trial court's dismissal of a criminal 
charge, not the admission of evidence.  We decline to apply it here.  Olson, 126 Wn.2d at 318-19.  

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No. 40966-6-II

Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010).

       RCW 71.05.390 protects from disclosure "all information and records compiled, obtained, 

or maintained in the course of providing" mental health treatment services.  RCW 71.05.390(19) 

provides, in relevant part, that the fact of admission, as well as records, shall not be admissible in 

any legal proceeding without written consent of the person subject to the proceeding, except "in 

the case of a minor, a guardianship or dependency proceeding."                Moreover, RCW 

71.05.390(3)(b)(iii) states that information may be disclosed as necessary to decide whether or 

not proceedings should be instituted to appoint a guardian.

       The trial court ruled that the Department could not introduce evidence of Robinson's 

involuntarily commitment at Western State Hospital.   But the court did allow evidence that Dr. 

Parmenter's evaluations occurred at Western State Hospital.  

       Dr. Parmenter testified that she worked at Western State Hospital as a clinical 

neuropsychiatrist.  She testified that she saw patients at the hospital for interviews and 

evaluations.  She also testified that she evaluated Robinson on five different occasions.  Robinson 

concludes that this constitutes testimony that he had been detained at Western State Hospital.  We 

disagree. 

       Dr. Parmenter never testified that Robinson was involuntary committed at the time of her 

evaluations; nor did she ever refer to him as a patient of the hospital. Furthermore, Robinson did 

not object to any testimony that may have been outside the scope of the trial court's limiting 

instruction.

       Notably, during trial, Robinson's counsel made the only arguable reference to Robinson's 

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status at Western State Hospital during cross-examination of Dr. Parmenter.  Robinson's counsel 

asked,  "[Robinson] was hospitalized at the time that he was evaluated by you, and he was 

hospitalized at the time that the KELS was performed?"    Dr. Parmenter responded, "Yes."    RP 

(April 21, 2010) at 166.  Robinson's counsel then continued,

       [Robinson's counsel]:  In one instance, when Mr. Robinson performed the KELS 
       exam, he was hospitalized.  He was in an institution or circumstances where there 
       was some level of supervision and care provided.  And when the other 
       examination, [sic] the Allen Cognitive Evaluation Tool was done, his appearance 
       and frequency of self-care activities, he was judged to be independent.  When you 
       evaluated him, his appearance, in your words, was acceptable, it was okay and so 
       forth.  
       So my question is that the institutional hospitalization setting applied in all these 
       circumstances . . . would you consider the setting determining whether or not his 
       appearance is going to be indicative of being independent or indicative of needing 
       assistance?

RP (April 21, 2010) at 167-68.

       Thus, Robinson's counsel elicited the only evidence from which the jury could infer that 

Robinson was hospitalized at Western State.  And the error, if any, was invited.  Casper v. Esteb 

Enters., Inc., 119 Wn. App. 759, 771, 82 P.3d 1223 (2004).  A party cannot set up an error 

below and then complain of it on appeal.  Bloor v. Fritz, 143 Wn. App. 718, 740, 180 P.3d 805 

(2008). 

       We hold that the trial court did not abuse its discretion by limiting references to 

Robinson's involuntary commitment as required under RCW 71.05.390.  Any erroneous reference 

to Robinson's status as a patient of the hospital was invited error.

                                         III.  Incapacity

       Robinson argues that the medical report did not meet the guardianship requirements as 

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No. 40966-6-II

required under RCW 11.88.045.6     He further challenges the GAL's testimony as hearsay.  The 

Department responds that the two medical reports and the supplemental testimony from the GAL 

complied with the statutory requirements for the appointment of the guardian.

       We review questions of law de novo.  Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 

P.3d 82 (2005).  In a guardianship proceeding, we review the trial court's factual findings for 

substantial supporting evidence from which a rational trier of fact could find the necessary facts 

proved by clear, cogent, and convincing evidence.  In re Guardianship of Stamm, 121 Wn. App. 

830, 842, 91 P.3d 126 (2004).  RCW 11.88.045(4) requires that the court be presented with a

written report from a physician in a proceeding for appointment of a guardian or limited 

guardian.7

       Robinson's first challenge to the medical reports asserts that Dr. Karanam's report was 

not filed with the trial court.  This is incorrect.  Dr. Karanam's report was filed as a sealed exhibit 

and is part of the record. 

       Robinson next argues that the medical reports filed in this case are statutorily inadequate 

6 Robinson relies on the unpublished case of In re Guardianship of Healey, 140 Wn. App. 1020, 
2007 WL 2411688 (2007), to support his assertion that RCW 11.88.045(4) requires a medical 
report submitted in a guardianship proceeding to include all medications of the alleged capacitated 
person.  It is improper for a party to cite an unpublished opinion as authority under GR 14.1 and 
furthermore, this court does not consider arguments unsupported by authority.  

7 RCW 11.88.045(4) requires that the medical report include:  the name and address of the 
physician, education and experience of physician, dates of examination, summary of relevant 
medical, functional, neurological, or mental health history, findings of the physician as to the 
alleged incapacitated person's condition, current medications, effect of current medications on the 
alleged incapacitated person's ability to understand or participate in the proceedings, opinions on 
the specific instances of the alleged incapacitated person's needs, and identification of persons the 
physician has met with regarding the alleged incapacitated person.

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No. 40966-6-II

because they do not include a list of his current medications.  This argument also fails.  Dr. 

Karanam's medical report meets all statutory requirements of RCW 11.88.045(4), including a list 

of all of Robinson's current medications.

       In addition, the GAL obtained a second medical report from Dr. Parmenter.  This report 

was also filed with the court and Dr. Parmenter testified to the contents of the report.  Robinson 

argues that Dr. Parmenter's medical report is deficient because it did not identify all of his 

medications as required by RCW 11.88.045(4).  But his argument fails because the trial court 

already had a medical report before it that included a list of Robinson's medications and the 

second medical report was supplemental.  See RCW 11.88.045(4). We conclude that the medical 

reports met the requirements of RCW 11.88.045(4).

       In conclusion, we find no error in the guardianship trial. Thus, we affirm the jury's finding 

that Robinson is incapacitated and the trial court's order imposing a limited guardianship for 

Robinson and his estate. 

       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 in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Armstrong, P.J.
We concur:

Hunt, J.

Johanson, J.

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