* In re the Guardianship of Kenyon Cornelius

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FILED
JUNE 10,2014
In the Office of the Clerk of Court
W A State Cou rt of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
In the matter of the Guardianship of: 	) 	No. 	30985-1-111
)
)
KENYON CORNELIUS 	)
) 	ORDER GRANTING MOTION
) 	TO PUBLISH OPINION
An Incapacitated Person. 	)
THE COURT has considered the third party motion to publish the court's opinion
of April 17, 2014, and the record and file herein, and is of the opinion the motion should
be granted. Therefore,
IT IS ORDERED, the motion to publish is granted. The opinion filed by the court
on April 17, 2014 shall be modified on page 1 to designate it is a published opinion and
on page 26 by deletion of the following language:
A majority of the panel has determined that 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.
DATED: June 10,2014.
PANEL: Judges Siddoway, Brown, Korsmo.
FOR THE COURT:
 	 	 	 	 	 	 	 	 	 	 	 	 	

FILED

April 17, 2014

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 the matter of the Guardianship of: )
) No. 30985-1-III
)
KENYON CORNELIUS, )
)
) UNPUBLISHED OPINION
An Incapacitated Person. )

SIDDOWAY, C.J. — Christina Baldwin appeals the trial court’s order appointing
Leslie Cloaninger as full guardian of Ms. Baldwin’s daughter, Kenyon Cornelius, a
developmentally delayed adult. Although Ms. Baldwin had earlier served as a co-
guardian of her daughter’s person and estate, neither that earlier role, nor the parent-child
relationship, gives rise to the constitutional interest or procedural rights that she claims
should have been recognized in the trial court. We find no error and affirm the trial
court’s order.

FACTS AND PROCEDURAL BACKGROUND

Kenyon Cornelius, presently age 43, has Down’s Syndrome and suffers from a
frontal lobe brain injury sustained in a bicycle accident as an adult. As a result of her
moderate developmental delay, she needs protection and assistance in providing informed

consent for medical decisions, in making personal decisions, and in managing her

No. 30985-1-III

In re Guardianship of Cornelius

property and financial affairs. Her parents, Christina Baldwin and Scott Cornelius, were
appointed as co-guardians of her person shortly before Ms. Cornelius turned 18.

In March 2010, the Washington State Department of Social and Health Services,
acting upon a report from its Adult Protective Services, petitioned the Whitman County
Superior Court to appoint a guardian ad litem to review Ms. Cornelius’s guardianship
based on concerns about Ms. Cornelius’s relationship with her mother. The court
appointed J ill Wahl as guardian ad litem and appointed a lawyer for Ms. Cornelius. In
May, Ms. Baldwin filed a response to the State’s petition, denying any problems and
making clear that she wished to continue to serve as her daughter’s guardian.

In late May and early June, Ms. Wahl filed her report and noted the State’s
petition for hearing on June 18. Her report, which was based on interviews and extensive
investigation, concluded that the current situation with the parents serving as co-
guardians was detrimental to Ms. Cornelius. She reported that Ms. Cornelius loves her
mother but wanted her removed as co-guardian. According to Ms. Cornelius, she had
lost caregivers with whom she was satisfied when they were either fired, or driven to
quit, by her mother. While Ms. Wahl recognized that Ms. Baldwin loved her daughter
and acted out of concern, she reported that Ms. Baldwin’s approach was disruptive.
There was consensus that Ms. Cornelius and her mother had conflicts; even Ms. Baldwin
admitted problems in their relationship, but she attributed them to service providers

“badmouthing” her when Ms. Baldwin refused to tolerate unsatisfactory performance of

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services by her daughter’s providers. Report of Proceedings (RP) at 140. Ms. Wahl
ultimately did not accept that explanation because the common denominator in the
conflict scenarios was Ms. Baldwin; she concluded that Ms. Baldwin was the problem.
Ms. Wahl also reported that Ms. Baldwin was over-involved. By way of example, Ms.
Baldwin had provided her and other service providers with so much information and so
many requests for participation and input that because the providers’ time was limited,
the result was time taken away from clients and a lower level of service

Ms. Wahl recommended that a professional third party serve as guardian while
allowing Ms. Baldwin and Mr. Cornelius to be as involved in Ms. Cornelius’s life as
- much as appropriate, writing that the mother “‘has relevant information to share and
plays an important role in Kenyon’s life,’” and that “‘Kenyon deserves to have parents
who are able to act just as parents.’” Br. of Appellant at 3.

The court granted Ms. Wahl’s request for temporary appointment of a professional
guardian. Its decision and order suspended the authority of Ms. Baldwin and Mr.
Cornelius as guardians of Ms. Cornelius’s person! and appointed Ms. Cloaninger as
temporary interim guardian, finding that “[s]ubstantial evidence has been presented that

leads the court to believe that Tina Baldwin’s service as guardian of the person of

' The court held and later continued to hold that Ms. Baldwin and Mr. Cornelius
would serve as guardians of the estate. Only the guardianship of Ms. Cornelius’s person
is at issue.

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In re Guardianship of Cornelius

Kenyon Cornelius, while being carried out diligently and in good faith, is having a severe
adverse impact on Kenyon’s physical, emotional, and psychological well-being.” Clerk’s
Papers (CP) at 252-53. It set a final hearing on the State’s petition for September 29 and
30, 2010.

Following the court’s order, the State agreed to mediate with Ms. Baldwin over
how she might resolve the State’s concerns and be reinstated as a guardian. Shortly
before the date for the final hearing, the State moved for a continuance, reporting that the
parties had been trying to settle the matter, so far without success, and requested a “short
continuance, not to exceed 6 months . . . in order to continue working on a potential
settlement, or to allow time for the parties, to adequately prepare for a contested trial.”

CP at 258. The trial court granted the motion and continued the date for the final hearing
to January 26 and 27, 2011.

On January 26, the parties appeared for what the trial court anticipated would be
the final hearing. They reported instead that the petition had been settled. The State, Ms.
Baldwin, Mr. Cornelius, Ms. Cloaninger, Ms. Wahl, and the attorney for Ms. Cornelius
had executed a “Memorandum of Agreement” that they filed with the court at that time—
by then, a year after the State had filed its petition.

The settlement agreement provided that an agreed order would be entered naming
Ms. Cloaninger as the guardian of Ms. Cornelius’s person but that the parents could be

reinstated as co-guardians if, by May 2011, Ms. Baldwin (1) demonstrated an ability to

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work cooperatively with agencies and professionals and (2) submitted to a psychological
evaluation and demonstrated follow-through with the psychologist’s recommendations.
The agreement provided that whether the conditions for reinstatement had been met
would be “determined by a judicial officer through a hearing in consultation with a
[guardian ad litem].” CP at 267. The guardian ad litem for this purpose would be “a new
neutral . . . as agreed by the parties.” CP at 268. In the event conditions for reinstatement
of the parents as co-guardians were not met, Ms. Cloaninger would continue to serve and
any further changes to the guardianship would have to meet the statutorily defined cause
for replacement.

Consistent with the settlement, the court entered an “Order Appointing Substitute
Guardian of Person,” finding that Ms. Baldwin and Mr. Cornelius had “resigned as
agreed to pursuant to the mediation agreement filed with this court.” CP at 269. It issued
letters of full guardian of the person to Ms. Cloaninger.

The May 2011 deadline for Ms. Baldwin to complete the conditions for
reinstatement came and went. It was almost a year after Ms. Cloaninger’s appointment as
full guardian and almost two years after the State’s petition was filed that the State
moved for the appointment of James Woodard to serve as a neutral guardian ad litem to
assist the court in determining whether Ms. Baldwin and Mr. Cornelius could be
reinstated as guardians of the person. By Mr. Woodard’s own admission, he became

involved after the time frame within which the conditions to Ms. Baldwin’s and Mr.

No. 30985-1-III

In re Guardianship of Cornelius

Cornelius’s reinstatement were to take place had passed. He described himself as having
been appointed to make a recommendation by agreement of the parties. The State
presented and the trial court signed an ex parte order appointing Mr. Woodard. CP at
307. |

On January 27, 2012, Ms. Cloaninger filed a statutorily required initial personal
care plan for Ms. Cornelius. By that time, the relationship between Ms. Cloaninger and
Ms. Baldwin had become increasingly adversarial. Ms. Cloaninger told Ms. Baldwin to
have no contact with Kenyon until the court rules otherwise, warning that she would seek
a restraining order if Ms. Baldwin did. Ms. Cloaninger’s care plan made reference to this
problem and incorporated her proposal that Ms. Baldwin’s “time and contact with
Kenyon be limited.” CP at 342.

Ms. Cloaninger’s care plan was set by the court for an April 10 hearing. In
proceedings taking place before that, on March 23, Ms. Cloaninger reported to the trial
court that Mr. Woodard expected to file his recommendation before the April 10 hearing
on the care plan and she believed his report would be a critical piece of information in
reviewing the care plan. The trial court agreed and asked that the parties pass along to
Mr. Woodard the court’s desire to see his report before the April 10 hearing.

Ms. Cloaninger also made clear during the March 23 proceedings that she would
like to see any issue of Ms. Baldwin’s possible reinstatement resolved at the April 10

hearing. She expressed her view that the settlement agreement, to which she was a party,

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“doesn’t even apply any longer. The time deadlines that were contemplated in [the]
agreement have long since passed.” RP at 49. Ms. Baldwin’s lawyer disagreed and
expressed concern that she and the State might not have time to be prepared for “a full-
blown hearing on the guardianship, in quotations, by the 10th.” RP at 64. The trial court
responded that it did not have a motion to continue pending and, “I’ll hear all this
argument only if that does become an issue.” RP at 65.

On April 3, Mr. Woodard filed his report. He concluded that while Ms. Baldwin
had undergone the required psychological evaluation, she did not demonstrate the
capacity or the ability to work with providers as required by the agreement. He reported
that Mr. Cornelius no longer wished to return to the position of co-guardian. He
recommended that Ms. Cloaninger remain as guardian.

On April 9, Ms. Baldwin filed a response and objections to the proposed care plan.
She focused in particular on “the issue embedded in the proposed care plan, namely, that
of limiting Ms. Baldwin’s contact as Mother with her daughter, Kenyon.” CP at 396.
Among other arguments, Ms. Baldwin contended that the settlement agreement remained
in effect and required the guardian to “‘encourage a mother daughter relationship
between Christina and Kenyon.’” Jd.

Ms. Baldwin’s objections thereby directly raised the issues of whether her contact
with Ms. Cornelius should be limited and whether the settlement agreement was still in

effect. At the same time, however, Ms. Baldwin tried to defer any final decision on her

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reinstatement, arguing “we do not yet arrive at the .. . final determination under the
Agreement as to whether or not Mr. Cornelius and Ms. Baldwin will be reappointed as
guardians” because, she contended, the agreement required that the parents receive Mr.
Woodard’s report 15 days before a hearing and she had only received it a week before.
CP at 397.

At the next day’s hearing, Ms. Cloaninger, Mr. Woodard, Ms. Baldwin, and Mr.
Cornelius testified. Ms. Cornelius was not present, but was represented by her lawyer.
Toward the end of the hearing, Mr. Woodard stated that the court should appoint Ms.
Cloaninger as guardian on a permanent basis “rather than having to go through another
one of these hearings.” RP at 209. In his earlier testimony Mr. Woodard had been
critical of the parties’ settlement agreement because of its focus on whether someone was
“entitled to be a co-guardian” rather than on what was best for Ms. Cornelius. RP at 97.
The trial court, receptive to this view, orally ruled at the conclusion of the hearing that the
parties’ agreement was of no further effect, explaining,

This memorandum of agreement that I heard about over and over again that

was about the parents. That was about attempts to reinstate the co-

guardians. I’m tired of hearing about it. It was a good faith attempt. It

failed. And it’s not in Kenyon’s best interest and this case is about Kenyon.

So from this point on I don’t—I’m not going to give any effect to that as far
as this guardianship is concerned.

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In re Guardianship of Cornelius

RP at 217-18. The court ruled that Ms. Cloaninger’s appointment as full guardian of the
person would continue and that she would be given “great latitude in handling the issues
of restricting or limiting Ms. Baldwin’s contact with Kenyon.” RP at 219.

On June 15, the court entered a written order memorializing its rulings and noting |
that it had, “on its own motion, considered the issue of [the mother] being reappointed, as
more than 8 months had passed, and it was in Kenyon Cornelius’s best interest to settle
the matter who would be Guardian of her Person.” CP at 445. Ms. Baldwin appeals.

ANALYSIS |

Before turning to Ms. Baldwin’s specific assignments of error, we address the
posture of the case at the time of the June 15, 2012 order that is challenged on appeal.

Superior courts are authorized to appoint guardians for the persons and estates of
incapacitated persons upon determining that the individual is at a significant risk of
personal or financial harm as a result of incapacities provided by statute. RCW
11.88.010(1). The guardianship act, chapter 11.88 RCW, sets forth the procedure for
establishing guardianships and limited guardianships for incapacitated persons. Jn re
Marriage of Blakely, 111 Wn. App. 351, 357, 44 P.3d 924 (2002). The act does not treat
parents or other family members as having a right to serve as guardian or as receiving

special consideration for appointment as guardian. See RCW 11.88.020 (entitled

~ “Qualifications”). Once appointed, a guardian is at all times under the general direction

and control of the court making the appointment. RCW 11.92.010. “‘The court having

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jurisdiction of a guardianship matter is said to be the superior guardian of the ward, while

the person appointed guardian is deemed to be an officer of the court.’” Jn re
Guardianship of Lamb, 173 Wn.2d 173, 190, 265 P.3d 876 (2011) (quoting Seattle-First
Nat’l Bank v. Brommers, 89 Wn.2d 190, 200, 570 P.2d 1035 (1977)).

RCW 11.88.030 and .040 dictate the procedures to be followed in petitioning for a
determination of incapacity and the initial appointment of a guardian. They, or their
predecessor provisions, would have applied to Ms. Cornelius’s guardianship when it was
first established in 1989. They do not apply to the State’s petition filed in 2010.

The procedure followed for hearing the State’s petition for substitution or
clarification is provided instead by RCW 11.88.120, which contains the few statutory
requirements that must be followed to modify a guardianship, including by replacing the
guardian. “Any person” may apply to the court for an order to replace a guardian. RCW
11.88.120(2). The court is authorized “for ... good reason” to replace the guardian “[a]t
any time.” RCW 11.88.120(1). Elsewhere, the act provides that in a hearing on an
application to replace a guardian, “the court may grant such relief as it deems just and in
the best interest of the incapacitated person.” RCW 11.88.120(4).

If the applicant for modification of a guardianship is an unrepresented person,

RCW 11.88.120(3) includes special provisions for notice and hearing that contemplate

extensive involvement by the court clerk. Where an applicant is represented by counsel,

as the State was here, the clerk is not involved in providing notice. The State does not

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dispute that Ms. Baldwin was entitled to notice and the opportunity to participate in the
hearing on its petition.

The State’s petition for substitution or clarification was noted for a hearing before
the Whitman County Superior Court to take place on June 18, 2010. At that time, Ms.
Baldwin’s and Mr. Cornelius’s service as guardians was suspended, Ms. Cloaninger was _
appointed temporary guardian of the person, and the final hearing on the petition was
scheduled for September 29 and 30. At the request of the parties, including Ms. Baldwin,
the date for final hearing was continued to January 26 and 27, 2011. On the January 26
date of the final hearing the parties appeared, filed their settlement agreement, and the
court entered its order resolving the State’s petition, recognizing the resignations of Ms.
Baldwin and Mr. Cornelius, and issuing letters of full guardianship of the person to Ms.
Cloaninger.

As of April 10, 2012, there was no need for any further hearing on the State’s
petition; it had been resolved by the parties’ settlement. What remained was approval of
Ms. Cloaninger’s care plan. There was also a looming dispute over whether the
settlement agreement had any continuing effect. No one had filed a motion to enforce it,
but Ms. Baldwin had raised the issue of its continuing viability as an objection to Ms.
Cloaninger’s proposed care plan.

With that posture in mind, we turn to Ms. Baldwin’s specific assignments of error.

We first address her contention that the trial court erred in ruling that the settlement

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agreement was of no further effect. We then address, in turn, her remaining contentions
that (1) she was denied procedural due process and the notice required by RCW
11.88.040, (2) the court erred in determining to appoint Ms. Cloaninger without affording
more time for interested parties to respond to a report by a guardian ad litem, and (3) the
decision to appoint Ms. Cloaninger and give her “great latitude” to limit contact between
Ms. Baldwin and her daughter was not supported by the evidence.

I. Ruling “Sua Sponte” That Settlement Terms Were ‘No Longer in Effect”

Ms. Baldwin argues that the trial court erred in ruling, sua sponte, that the
memorandum of agreement was “no longer in effect.” Br. of Appellant at 1.2 She points
to a provision of the agreement providing that the guardian “shall encourage a mother
daughter relationship between Christina and Kenyon,” which, she argues, cannot be read

to have a termination date. CP at 266. She also argues that the trial court should have

2 Ms. Baldwin did not assign error to the trial court’s finding 1.7 that “[t]he _
Memorandum of Agreement dated September 1, 2010 is no longer in effect,” or for that
matter, to its finding 1.1 that “[a]ll notices required by law have been given and proof of
service as required by statute is on file,” or its finding 1.4 that “[t]he proposed Certified
Professional Guardian, LESLIE CLOANINGER, is qualified to act.” CP at 446-47.
They would ordinarily be treated as verities on appeal. See In re Interest of Mahaney,
146 Wn.2d 878, 895, 51 P.3d 776 (2002). RAP 10.3 requires an appellant to assign error
to the findings of fact challenged. Delagrave v. Emp’t Sec. Dep’t, 127 Wn. App. 596,
607, 111 P.3d 879 (2005). We will overlook this failure to comply with the appellate
rules in the spirit of liberally promoting justice and facilitating the decision of cases on
the merits because the nature of the appeal on this issue is sufficiently clear from
argument in the body of the brief. RAP 1.2(a); State v. Olson, 126 Wn.2d 315, 323, 893
P.2d 629 (1995).

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heard evidence as to whether the May 1, 2011 deadline for the parents to satisfy the
conditions for reinstatement as guardians had been extended.

Mediated resolutions of guardianship disputes are contemplated by the
guardianship act. It provides at RCW 11.88.090(2) that the court may require and
establish terms of mediation whenever it appears that the incapacitated person or her
estate “could benefit from mediation and such mediation would likely result in overall
reduced costs to the estate.” Here, mediation was not court ordered, it was initiated by
the parties. But the trial court did incorporate the parties’ agreement in part in its order
appointing substitute guardian of person, by appointing MS. Cloaninger with “other
duties [and] responsibilities as outlined in the ‘Memorandum of Agreement’ filed
separately” and by providing that the guardianship would continue in effect until
terminated pursuant to Title 11 RCW “or as modified as agreed to pursuant to the
mediation agreement.” CP at 270-71.

Ms. Baldwin argues that by deciding sua sponte that the agreement was of no
further effect, the trial court denied her an opportunity to advance law and argument in
support of her position as to the meaning and continuing viability of the agreement. As
the State points out, Ms. Baldwin provides no argument, citations to legal authority, or
reference to the record in support of a construction of the agreement different from the

view of the trial court. See RAP 10.3(a)(6).

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This was not some private dispute between the State and Ms. Baldwin in which
the trial court was merely acting as referee. As earlier noted, the trial court acts as the
superior guardian to the ward and is charged with making appointments that are “just and

in the best interest of the incapacitated person.” RCW 11.88.120(4). The guardianship

| statute provides that in determining the disposition of a petition for guardianship, the
court’s order shall be based upon its findings as to the incapacitated. person’s capacities,
condition, and needs, “and shall not be based solely upon agreements made by the
parties.” RCW 11.88.095(1).

Washington cases provide that “[w]hen a court order incorporates an agreement
between the parties, the ‘meaning of the order is the same as the meaning objectively

999

manifested by the parties at the time they formed the agreement.’” Martinez v. Kitsap
Pub. Servs., Inc., 94 Wn. App. 935, 942, 974 P.2d 1261 (1999) (quoting Interstate Prod.
Credit Assn v. MacHugh, 90 Wn. App 650, 654, 953 P.2d 812 (1998)). Here, it was the
terms objectively manifested by the parties at the time they presented the settlement |
agreement to the trial court that it found acceptable and consistent with Ms. Cornelius’s
best interest.

At the time the court found the agreement acceptable and incorporated portions
into its order, the State’s petition had been pending for a year. The agreement required

the parents to satisfy the conditions for reinstatement within the next 4 months (although

the agreement referred to an 8-month period, it stated that “the 8 month provision...

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began to run on September 1, 2010”). CP at 268. The objectively manifested intent of
the parties was that at or before the May deadline, “the guardianship may return to a co-
guardian situation with [Ms. Baldwin and Mr. Cornelius] as co-guardians provided the —
[provisions identified in section 7 of the agreement] are met.” CP at 267. If the deadline
were not met, the agreement provided:

If after 8 months the provisions of [section 7] have not been met the

professional guardian shall remain in place. The guardian may then carry

out her guardianship duties as she believes fit and in keeping with what she

determines to be in Kenyon’s best interests. Any further attempt to change

the guardian must meet the statutorily defined cause for replacement.

CP at 268.

By accepting and incorporating this short-term possibility of reinstatement of the
parents as guardians, the trial court was not bound by whatever delays or modifications
Ms. Baldwin might thereafter request and the State might thereafter find tolerable. It is
noteworthy that both guardians ad litem objected to the seemingly open-ended prospect
of the parents’ reinstatement. Both urged the trial court to make clear that the short-term
reinstatement possibility provided by the agreement had passed.

It was consistent with the objective meaning of the settlement agreement as

incorporated by the court’s order for the trial court to rule that the reinstatement option

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No. 30985-1-III
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and related directives to Ms. Cloaninger were of no further effect. It was appropriate for
the court, sua sponte, to make that meaning of its order clear to the parties.
II. Alleged Violation of Due Process and Rights Under RCW 11.88.040

Ms. Baldwin next contends that when the trial court entered what she characterizes
as “a final order on a petition for guardianship” without first providing Ms. Baldwin
notice and opportunity to be heard, it violated her constitutional right to procedural due
process and her procedural rights under RCW 11.88.040. Appellant’s Br. at 1.
Constitutional challenges are reviewed de novo. City of Redmond v. Moore, 151 Wn.2d
664, 668, 91 P.3d 875 (2004). The management of a guardianship by the superior court
is reviewed for abuse of discretion. RCW 11.92.010; In re Guardianship of Johnson, 112
Wn. App. 384, 387-88, 48 P.3d 1029 (2002).

Ms. Baldwin’s argument that her statutory right to notice under RCW 11.88.040
was violated is readily addressed. First, RCW 11.88.040 relates to notice of a hearing
before first appointing a guardian, something that happened in Ms. Cornelius’s case in
1989. Second, even if RCW 11.88.040 could be said to apply at all to the proceedings
initiated by the State’s March 2010 petition, then it applied to the appointment of Ms.

Cloaninger as full guardian on January 26, 2011, coincident with Ms. Baldwin’s and Mr.

3 This is not to say that the State could not reach agreement with Ms. Baldwin that
it would not oppose her request for reinstatement on different terms or at a later time than
provided by the original agreement. But the State and Ms. Baldwin could not foist their
modifications on the court.

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Cornelius’s resignations. Ms. Baldwin received three weeks’ notice of the initial, June
2010 hearing. The scheduling of continued hearings for September and, later, January,
was announced by the court in open court, with Ms. Baldwin, her lawyer, or both present.
Moreover, Ms. Baldwin’s lawyer approved the order substituting guardian as to form and
content, and waived presentment. Any right to greater or different notice was thereby
waived.
The statute can have no conceivable application to the April 10, 2012 hearing on
the care plan because Ms. Cloaninger had been appointed full guardian of the person 15
months earlier. Ms. Baldwin does not deny receiving timely notice of the April 10 date
for the hearing on Ms. Cloaninger’s proposed care plan.’ She appeared and participated.
In her reply brief, Ms. Baldwin substitutes reliance on RCW 11.88.120(3) as a
basis for her claim that her statutory procedural rights were violated. That provision
imposes special statutory requirements involving the clerk only if an unrepresented party
is the applicant and applies only to motions to modify or terminate a guardianship,

neither of which the trial court did as a result of the April 10 hearing.

4 The record includes Ms. Cloaninger’s January 27, 2012 motion for a hearing date
on her proposed care plan and a report of proceedings taking place on March 23 in which
the court and the parties’ lawyers discussed the impending April 10 date for the hearing.
We presume the court sent out a scheduling notice of the April 10 date sometime before
March 23 but it is not in our record.

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Turning to Ms. Baldwin’s constitutional due process claim, the Fifth Amendment,
made applicable to the States through the Fourteenth Amendment, provides that no State
shall deprive any person of life, liberty, or property without due process of law. “The due
process clause of the Fourteenth Amendment confers both procedural and substantive .
protections.” Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006). For
due process protections to be implicated, there must be an individual interest asserted that
is encompassed within the protection of life, liberty, or property. Attorney Gen. ’s Office,
Pub. Counsel Section v. Utils. & Transp. Comm’n, 128 Wn. App. 818, 831, 116 P.3d
1064 (2005). |

For a party that has a liberty or property interest, due process requires, at a
minimum, notice and an opportunity to be heard. Soundgarden v. Eikenberry, 123 Wn.2d
750, 768, 871 P.2d 1050 (1994). Notice must be reasonably calculated to inform the
affected party of the pending action and of the opportunity to object. State v. Dolson, 138
Wn.2d 773, 777, 982 P.2d 100 (1999). The opportunity to be heard must be meaningful
in time and manner. Morrison v. Dep’t of Labor & Indus., 168 Wn. App. 269, 273, 277
P.3d 675 (2012). _

Ms. Baldwin’s opening brief did not identify the constitutional interest on which
she relied. In response to the State’s argument that she had no such interest, she asserted
in her reply that parents have a “constitutional interest in maintaining a relationship with

their children” and to “the companionship and society” of their children. Reply Br. of

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Appellant at 14-15. She concedes that decisions of the United States Supreme Court
“focus on the relationship between a parent and her minor children.” Id. More
accurately, decisions of the Supreme Court “all [deal] with the right to procreate and
make decisions about rearing one’s minor children without state interference.” Russ v.
Watts, 414 F.3d 783, 790 (7th Cir. 2005) (citing Supreme Court decisions and overruling
Bell y. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984) a case relied upon by Ms.
Baldwin). Washington decisions are explicit that a parent’s constitutional interest is
limited to minor children. In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d
452 (2007) (“Parents have a fundamental liberty interest in the care and welfare of their
minor children.”); see also Bay v. Jensen, 147 Wn. App. 641, 656, 196 P.3d 753 (2008);
In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980); In re Welfare of
Myricks, 85 Wn.2d 252, 253-54, 533 P.2d 841 (1975).

Ms. Baldwin urges us to recognize a parent’s liberty interest extending into a
child’s adulthood and cites five federal decisions for the proposition that “preservation of
a relationship between a parent and her adult children is a constitutionally protected
interest.” Reply Br. of Appellant at 15. Only one of the decisions that she cites supports
_ that proposition and that decision, Bell v. City of Milwaukee, which recognized an interest

supporting a parent’s suit for wrongful death of an adult child under 42 U.S.C. § 1983,

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No. 30985-1-III
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was overruled on this very point by Russ.> As Russ observes after surveying decisions of
the federal courts, “Courts have . . . been reluctant to extend the constitutional protections
afforded the parent-child relationship to cases involving adult children.” 414 F.3d at 788.
The few courts that have recognized a parental liberty interest when it comes to

adult children have found it to be an interest in companionship, not a right to raise or
engage in decision making for the child. So even those few cases would not support a
parent’s claim that she was entitled to serve as her child’s guardian, or to special
consideration in that connection.

- When it comes to the trial court’s only interference with companionship—its order
authorizing Ms. Cloaninger to limit Ms. Baldwin’s time and contact with her daughter—
Ms. Baldwin was clearly afforded due process. Ms. Cloaninger’s proposed care plan,

filed on January 27, 2012 and served on Ms. Baldwin at that time, stated, “Kenyon has an

> None of the four other cases cited by Ms. Baldwin includes any discussion of

_ whether a parent’s liberty interest continues after a child reaches adulthood. P.O.P.S. v.
Gardner, 998 F.2d 764, 767 (9th Cir. 1993) dealt with the constitutionality of .
Washington’s child support schedules. As provided by RCW 26.09.170(3), “[uJnless
otherwise agreed in writing or expressly provided in the decree, provisions for the
support of a child are terminated by emancipation of the child.” Kelson v. City of
Springfield, 767 F.2d 651 (9th Cir. 1985) was an action for the wrongful death of a 14-
year-old son. In re Delaney, 1980 OK 140, 617 P.2d 886, 890 was an action to terminate
a mother’s parental rights to her children. The decision does not reveal the ages of the
children but we note that the Oklahoma Children’s Code, as presently codified, defines
“child” at 10A Okla. Stat. tit. 10A, § 1-1-105(7) as “any unmarried person under eighteen
(18) years of age.” Mabra v. Schmidt, 356 F. Supp. 620 (W.D. Wis. 1973) was a
challenge to a prison policy that forbade children under age 18 from visiting prisoners
housed in a segregation building. The petitioner’s children were 2 and 3 years old.

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No. 30985-1-III
In re Guardianship of Cornelius
ongoing problematic relationship with her mother that affects her ability to cope with the
requirements of daily life, requiring that her mother’s time and contact with Kenyon be
limited.” CP at 342 (emphasis added). In addressing “Kenyon’s contact with her
mother,” the proposed care plan went on to incorporate a detailed schedule and contact
rules that Ms. Cloaninger had implemented. CP at 343, 345-46. Ms. Baldwin had two
and a half months to respond to these terms of the care plan. She did respond. She was
present in court and was heard on the limitations, which were squarely before the trial
court for decision in connection with the proposed care plan. Even if we assume that Ms.
Baldwin has some constitutional interest in the companionship of her daughter, then, she
has not demonstrated any denial of her right to procedural due process.
Ill. Insufficient T. me To Respond To Guardian Ad Litem Report

Ms. Baldwin next argues that the trial court erred when it considered “the merits
of the petition for guardianship” without allowing her sufficient time to respond to the
guardian ad litem’s report. Br. of Appellant at 1. Here, she points to language in RCW
11.88.090, which imposes a duty on a guardian ad litem to file its report and send copies
to persons entitled to special notice “at least fifteen days before the hearing on [a] petition
[for appointment of a guardian], unless an extension or reduction of time has been
granted by the court for good cause.” RCW 11.88.090(5)(f)(ix). It provides that if the

guardian ad litem fails to file its report in a timely manner, “the hearing shall be

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No. 30985-1-III

In re Guardianship of Cornelius

continued to give the court and the parties at least fifteen days before the hearing to
review the report.” RCW 11.88.090(7).

Ms. Baldwin did not make this argument in the trial court, either at the time of the
hearing or by a motion for reconsideration. She argues that she complained about a lack
of time to review the report, but she directs us to only her argument, in obj ecting to the
personal care plan, that “we do not yet arrive at the question [of reinstatement]” because
the parties’ agreement (not a statute) required the guardian to submit a written report to
the parties 15 days prior to the hearing. CP at 397. Ms. Baldwin never cited RCW
11.88.090(5)(f) as a basis for objection. While it is doubtful that RCW 11.88.090 even
applies, the State argues that we should refuse to entertain the statutory argument for the
first time on appeal. We agree. |

Generally, appellate courts will not entertain issues raised for the first time on
appeal. RAP 2.5(a); Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 441, 191
P.3d 879 (2008). The rule reflects a policy of encouraging the efficient use of judicial
resources and refusing to sanction a party’s failure to point out an error that the trial
court, if given the opportunity, might have been able to correct to avoid an appeal. State
v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988); Smith v. Shannon, 100 Wn.2d 26, 37,
666 P.2d 351 (1983). As the lawyers and court had discussed in proceedings on
March 23, the guardian ad litem report was relevant to approval of the personal care plan

and Ms. Baldwin did not object when it was offered and admitted into evidence. Had

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No. 30985-1-III
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Ms. Baldwin raised a statutory objection that it was not timely for the purpose of the
court rejecting Ms. Baldwin’s reinstatement, the court might have afforded her the
additional week she now contends was required by the statute in order to avoid an
unnecessary appeal.

Ms. Baldwin raises her objection too late. She waived the issue and we will not
consider it. |

IV. Sufficiency of the Evidence

Ms. Baldwin finally argues that “[t]he trial court’s decision to remove the mother
as guardian, to appoint Ms. Cloaninger guardian, and to give her ‘great latitude’ to limit
contact between Ms. Cornelius and her mother was not supported by the evidence, was
not in the best interests of Ms. Cornelius, and was erroneous.” Br. of Appellant at 1.

With respect to “removal,” Ms. Baldwin argues that the trial court failed to make a
finding of “good reason” to replace Ms. Baldwin with Ms. Cloaninger, as required by
RCW 11.88.120(1). The court did not need to find “good reason” because Ms. Baldwin,
foreseeing a prospect that she would be removed, resigned in January 2011 in exchange
for a promise of agreed conditions for reinstatement. If she regarded her resignation as a,
“removal,” then the time to appeal that decision was in early 2011. Her notice of appeal
did not identify the order accepting her resignation as a basis for appeal and, if it had, it
would have been untimely. See RAP 5.2(a) (generally requiring appeal within 30 days

after entry of the decision of the trial court that the appellant wants reviewed).

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Ms. Baldwin advances literally no evidence or argument in support of a contention
that appointment of Ms. Cloaninger as a replacement guardian was not supported by the
evidence. We will not consider it. RAP 10.3(a)(6). |

She finally challenges the trial court’s decision to give Ms. Cloaninger “great
latitude” to limit contact between Ms. Baldwin and her daughter.

In reaching its decision the trial court heard testimony from Mr. Woodard, Ms.
Cloaninger, Mr. Cornelius, and Ms. Baldwin and reviewed the reports of Dr. Mary
Dietzen, Dr. Gloria Waterhouse, Ms. Wahl, and Mr. Woodard. Having considered the
evidence, the court explained:

Ms. Baldwin, I found you to be a very nice lady. I have absolutely no, no
doubt in my mind that you love your daughter dearly and your daughter
loves you dearly and you have been her No. 1 advocate, not just for the
years that you’ve been her guardian but from the minute that she was born
here. And you continue to be an advocate for her, and you are obviously
extremely smart. You’re extremely intelligent. You’re very well educated.
I’m dead convinced you’re well intentioned, and—very well intentioned.
As I said, you’re a highly educated person and you have made yourself
extremely knowledgeable about every issue that surrounds Kenyon.
You’ve researched and I think you’ve made yourself knowledgeable about
a lot of the subject matter, probably more than some of the experts in the
area, but I read the psychological evaluation, read Ms. Waterhouse’s
evaluation. I’ve heard all of this testimony here, including the testimony of
the guardian and the guardian ad litem here, and then I heard your
testimony. ... The strongest evidence that corroborates what everybody
else was saying was your own testimony. ... [W]Jhat has been lacking here
is just good old common sense and good judgment and insight and being a
compassionate, caring mother. ... [Y]ou take a stubborn, arrogant
approach, and if anybody does not agree with you they’re wrong, and
there’s no bending, and this has had a very, very adverse effect upon your
daughter and her ability to relate with people that are trying to help her and

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No. 30985-1-III
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her progress here. And instead of having you involved as a guardian of her
person or as the person that wants to oversee every minute detail of her
caregiving and her life, and you do, she just needs you to be a mom, and
that’s difficult for you, and I understand that. ... The issue of contact with
the mother. What I’ve heard here from the guardian, the guardian ad litem,
and everyone quite frankly except Ms. Baldwin here is that her time should
be restricted. Her contact should be restricted or limited. But what
everybody is saying, Ms. Baldwin, is that Kenyon needs to have a mother.
She needs to have contact with you. She needs to enjoy her mother and not
have her mother involved in—as Mr. Cornelius said, the minutia of
controlling everything that she does or that gets done to her.... I didn’t
receive any specific recommendations, and I appreciate—guardian ad litem
or guardian or anyone else as to how the contact should be limited other
than the guardian ad litem I thought made a very good recommendation
here, which was to seek out a professional recommendation and to seek that
out from—it’s Dr. Summerson; is that right?

... What I am going to do today at least until we can do something
better as the personal care plan is concerned here is essentially give the
guardian great latitude in handling the issues of restricting or limiting Ms.
Baldwin’s contact with Kenyon here because I am confident that she is
looking out for the best interest of Kenyon and has some pretty good ideas
as to what is.in her best interest in that regarding [sic]. ... I will direct her
to get and to consider input from the professionals we have and particularly
Dr. Summerson .... And when I say restrict or limit the mother’s contact,
I’m saying it with the view or a hope, a desire here for Kenyon, that it
won’t be a time restriction and that things ultimately will work out where
mother and daughter can have a lot of time.

RP at 214-20.

All of the observations made in the trial court’s ruling are supported by evidence
in the record. Although there was conflicting evidence, this court will not resolve that
conflict or substitute its judgment for that of the trial judge. In re Marriage of Lutz, 74

Wn. App. 356, 370, 873 P.2d 566 (1994). Substantial evidence is evidence of a sufficient

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No. 30985-1-III
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quantity to persuade a fair-minded, rational person of the truth of the declared premise.
Id.

A “best interest” finding depends on the facts and circumstances of each case and
a preponderance of the evidence must support it. See In re Welfare of Aschauer, 93
Wn.2d 689, 695, 611 P.2d 1245 (1980). In reviewing a best interest finding, this court
heavily relies on the trial court’s determination of what is in the best interest of the ward.
See Inre Pawling, 101 Wn.2d 392, 401, 679 P.2d 916 (1984).

Substantial evidence supported the trial court’s decision to give great latitude to
Ms. Cloaninger in limiting Ms. Baldwin’s time and contact with Ms. Cornelius.

Affirmed.

A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

Fittdowep, OK

Siddoway, C.J.

2.06.040.

WE CONCUR:

{L
orsmo, J./ J

26