BILL REQ. #:  H-3969.1 

Prefiled 12/28/07. Read first time 01/14/08.   Referred to Committee on Judiciary.

     AN ACT Relating to vulnerable adult protection orders; amending RCW 74.34.120 and 74.34.135; and adding new sections to chapter 74.34 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 74.34 RCW to read as follows:
     (1) A copy of an order for protection granted under this chapter shall be forwarded by the clerk of the court on or before the next judicial day to the appropriate law enforcement agency specified in the order.
     Upon receipt of the order, the law enforcement agency shall enter the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. The order shall remain in the computer for the period stated in the order. The law enforcement agency shall only expunge from the computer-based criminal intelligence information system orders that are expired, vacated, or superseded. Entry into the law enforcement information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state.
     (2) The information entered into the computer-based criminal intelligence information system shall include notice to law enforcement whether the order was personally served, served by publication, or served by mail.

NEW SECTION.  Sec. 2   A new section is added to chapter 74.34 RCW to read as follows:
     (1) To prevent the issuance of competing protection orders in different courts and to give courts information needed for the issuance of orders, the court should, before entering an order for protection under this chapter, conduct a check of the judicial information system for the existence of other orders affecting the parties to the petition, criminal history of the parties, and other relevant information necessary to assist courts in issuing orders under this chapter.
     (2) For the purposes of this section, "parties" includes an interested person who is filing the petition on behalf of a vulnerable adult, other than the vulnerable adult's court-appointed guardian or a representative of the department.

Sec. 3   RCW 74.34.120 and 2007 c 312 s 5 are each amended to read as follows:
     (1) The court shall order a hearing on a petition under RCW 74.34.110 not later than fourteen days from the date of filing the petition.
     (2) Except as provided in section 5 or 6 of this act, personal service shall be made upon the respondent not less than six court days before the hearing. ((When good faith attempts to personally serve the respondent have been unsuccessful, the court shall permit service by mail or by publication.))
     (3) When a petition under RCW 74.34.110 is filed by someone other than the vulnerable adult, notice of the petition and hearing must be personally served upon the vulnerable adult not less than six court days before the hearing, except as provided in section 5 or 6 of this act. In addition to copies of all pleadings filed by the petitioner, the petitioner shall provide a written notice to the vulnerable adult using the standard notice form developed under RCW 74.34.115. ((When good faith attempts to personally serve the vulnerable adult have been unsuccessful, the court shall permit service by mail, or by publication if the court determines that personal service and service by mail cannot be obtained.))
     (4) If timely personal service under subsections (2) and (3) of this section cannot be made, the court shall continue the hearing date ((until the substitute service approved by the court has been satisfied)) and shall either require additional attempts at obtaining personal service or permit service by publication under section 5 of this act or service by mail under section 6 of this act.
     (5)(a) A petitioner may move for temporary relief under chapter 7.40 RCW. The court may continue any temporary order for protection granted under chapter 7.40 RCW until the hearing on a petition under RCW 74.34.110 is held.
     (b) Written notice of the request for temporary relief must be provided to the respondent, and to the vulnerable adult if someone other than the vulnerable adult filed the petition. A temporary protection order may be granted without written notice to the respondent and vulnerable adult if it clearly appears from specific facts shown by affidavit or declaration that immediate and irreparable injury, loss, or damage would result to the vulnerable adult before the respondent and vulnerable adult can be served and heard, or that show the respondent and vulnerable adult cannot be served with notice, the efforts made to serve them, and the reasons why prior notice should not be required.

Sec. 4   RCW 74.34.135 and 2007 c 312 s 9 are each amended to read as follows:
     (1) When a petition for protection under RCW 74.34.110 is filed by someone other than the vulnerable adult or the vulnerable adult's full guardian over either the person or the estate, or both, and the vulnerable adult for whom protection is sought advises the court at the hearing that he or she does not want all or part of the protection sought in the petition, then the court may dismiss the petition or the provisions that the vulnerable adult objects to and any protection order issued under RCW 74.34.120 or 74.34.130, or the court may take additional testimony or evidence, or order additional evidentiary hearings to determine whether the vulnerable adult is unable, due to incapacity, undue influence, or duress, to protect his or her person or estate in connection with the issues raised in the petition or order. If an additional evidentiary hearing is ordered and the court determines that there is reason to believe that there is a genuine issue about whether the vulnerable adult is unable to protect his or her person or estate in connection with the issues raised in the petition or order, the court may issue a temporary order for protection of the vulnerable adult pending a decision after the evidentiary hearing.
     (2) An evidentiary hearing on the issue of whether the vulnerable adult is unable, due to incapacity, undue influence, or duress, to protect his or her person or estate in connection with the issues raised in the petition or order, shall be held within fourteen days of entry of the temporary order for protection under subsection (1) of this section. If the court did not enter a temporary order for protection, the evidentiary hearing shall be held within fourteen days of the prior hearing on the petition. Except as provided in sections 5 and 6 of this act, notice of the time and place of the evidentiary hearing shall be personally served upon the vulnerable adult and the respondent not less than six court days before the hearing. ((When good faith attempts to personally serve the vulnerable adult and the respondent have been unsuccessful, the court shall permit service by mail, or by publication if the court determines that personal service and service by mail cannot be obtained.)) If timely service cannot be made, the court ((may)) shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication under section 5 of this act or service by mail under section 6 of this act. A hearing under this subsection is not necessary if the vulnerable adult has been determined to be fully incapacitated over either the person or the estate, or both, under the guardianship laws, chapter 11.88 RCW. If a hearing is scheduled under this subsection, the protection order shall remain in effect pending the court's decision at the subsequent hearing.
     (3) At the hearing scheduled by the court, the court shall give the vulnerable adult, the respondent, the petitioner, and in the court's discretion other interested persons, the opportunity to testify and submit relevant evidence.
     (4) If the court determines that the vulnerable adult is capable of protecting his or her person or estate in connection with the issues raised in the petition, and the individual continues to object to the protection order, the court shall dismiss the order or may modify the order if agreed to by the vulnerable adult. If the court determines that the vulnerable adult is not capable of protecting his or her person or estate in connection with the issues raised in the petition or order, and that the individual continues to need protection, the court shall order relief consistent with RCW 74.34.130 as it deems necessary for the protection of the vulnerable adult. In the entry of any order that is inconsistent with the expressed wishes of the vulnerable adult, the court's order shall be governed by the legislative findings contained in RCW 74.34.005.

NEW SECTION.  Sec. 5   A new section is added to chapter 74.34 RCW to read as follows:
     (1) If the respondent, or the vulnerable adult where the petition is filed by someone other than the vulnerable adult, was not personally served with the petition, notice of hearing, and ex parte order before the hearing, the court shall reset the hearing for twenty-four days from the date of entry of the order and may order service by publication instead of personal service under the following circumstances:
     (a) The sheriff, municipal officer, or other process server files an affidavit stating that the officer or process server was unable to complete personal service upon the party to be served. The affidavit must describe the number and types of attempts the officer made to complete service;
     (b) The petitioner files an affidavit stating that the petitioner believes that the party to be served is hiding from the server to avoid service or is being hidden from the server to avoid service. The petitioner's affidavit must state the reasons for the belief that the party to be served is avoiding service or being hidden to avoid service;
     (c) The server has deposited a copy of the summons, in substantially the form prescribed in subsection (3) of this section, notice of hearing, and the ex parte order of protection in the post office, directed to the party to be served at the party's last known address, unless the server states that the server does not know the address of the party to be served; and
     (d) The court finds reasonable grounds exist to believe that the party to be served is concealing himself or herself to avoid service or is being hidden from the server to avoid service, and that further attempts to personally serve the party to be served would be futile or unduly burdensome.
     (2) The court shall reissue the temporary order of protection not to exceed another twenty-four days from the date of reissuing the ex parte protection order and order to provide service by publication.
     (3) The publication shall be made in a newspaper of general circulation in the county where the petition was brought and in the county of the last known address of the party to be served once a week for three consecutive weeks. The newspaper selected must be one of the three most widely circulated papers in the county. The publication of summons shall not be made until the court orders service by publication under this section. Service of the summons shall be considered complete when the publication has been made for three consecutive weeks. The summons must be signed by the petitioner. The summons shall contain the date of the first publication, and shall require the respondent upon whom service by publication is desired to appear and answer the petition on the date set for the hearing. The summons shall also contain a brief statement of the reason for the petition and a summary of the provisions under the ex parte order. The summons shall be essentially in the following form:

NEW SECTION.  Sec. 6   A new section is added to chapter 74.34 RCW to read as follows:
     (1) In circumstances justifying service by publication under section 5 of this act, if the serving party files an affidavit stating facts from which the court determines that service by mail is just as likely to give actual notice as service by publication and that the serving party is unable to afford the cost of service by publication, the court may order that service be made by mail. The service shall be made by any person over eighteen years of age, who is competent to be a witness, other than a party, by mailing copies of the order and other process to the party to be served at his or her last known address or any other address determined by the court to be appropriate. Two copies shall be mailed, postage prepaid, one by ordinary first-class mail and the other by a form of mail requiring a signed receipt showing when and to whom it was delivered. The envelopes must bear the return address of the sender.
     (2) Proof of service under this section shall be consistent with court rules for civil proceedings.
     (3) Service under this section may be used in the same manner and shall have the same jurisdictional effect as service by publication for purposes of this chapter. Service shall be deemed complete upon the mailing of two copies as prescribed in this section.

NEW SECTION.  Sec. 7   A new section is added to chapter 74.34 RCW to read as follows:
     Following completion of service by publication as provided in section 5 of this act or by mail as provided in section 6 of this act, if the party served by publication or by mail fails to appear at the hearing, the court may issue an order of protection as provided in RCW 74.34.130.