The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 14, 2019
2019COA171
No. 18CA1918, In Interest of Spohr — Probate — Persons Under Disability — Guardianship of Incapacitated Person — Notice
A division of the court of appeals considers whether the
guardianship notice statute, section 15-14-309, C.R.S. 2019,
requires notice to the respondent by personal service of a
rescheduled guardianship hearing where the respondent was given
proper notice of an earlier scheduled hearing. The division
concludes that it does not.
The division also concludes that sufficient evidence supported
the district court’s decision that the respondent’s needs could not
be addressed by less restrictive means and that the court did not
abuse its discretion by refusing to continue the rescheduled
hearing. Therefore, the division affirms the order. COLORADO COURT OF APPEALS 2019COA171
Court of Appeals No. 18CA1918 Fremont County District Court No. 18PR30057 Honorable Stephen A. Groome, Judge
In the Interest of
Edward William Spohr, Protected Person,
Appellant,
and
Fremont County Department of Human Services,
Appellee.
ORDER AFFIRMED
Division IV Opinion by JUSTICE MARTINEZ* Furman and Navarro, JJ., concur
Announced November 14, 2019
David R. Brown Law LLC, David R. Brown, Canon City, Colorado, for Appellant
Brenda L. Jackson, County Attorney, Nicole L. Bartell, Assistant County Attorney, Canon City, Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2019. ¶1 Respondent, 1 Edward William Spohr, appeals the district
court’s order appointing the Fremont County Department of Human
Services (Department) as his guardian. We hold that the
guardianship notice statute did not require notice to the respondent
by personal service of a rescheduled guardianship hearing because
he had proper notice of an earlier scheduled hearing. We also hold
that the evidence was sufficient to support the district court’s
decision that the respondent’s needs could not be addressed by less
restrictive means and that the court did not abuse its discretion by
refusing to continue the rescheduled hearing. Thus, we affirm.
I. Factual Background and Procedural History
¶2 Spohr is a seventy-nine-year-old resident at the Valley View
Health Care Center (Valley View). Prior to this case, the district
court had appointed the Department as Spohr’s guardian. On May
17, 2018, a prior division of this court reversed the appointment for
lack of jurisdiction because the Department had failed to personally
serve Spohr with notice of the guardianship hearing. Spohr v.
Fremont Cty. Dep’t of Human Servs., 2018 COA 74, ¶ 30. The
1 The protected person in a guardianship proceedings is titled “respondent” under the applicable statute. 1 Department petitioned the district court the next day to be
re-appointed as Spohr’s permanent guardian and also as his
emergency guardian in the interim. It filed an amended petition the
following week to request only a permanent guardianship, as it no
longer considered an emergency guardianship necessary.
¶3 The following week, on May 24, 2018, the district court
appointed a court visitor and ordered the visitor to conduct an
investigation into the allegations of the guardianship petition
pursuant to section 15-14-305(1), C.R.S. 2019. The order specified
that the hearing on the guardianship petition would occur on June
12, 2018.
¶4 On May 31, the Department filed a notice of a personal service
affidavit. The attached personal service affidavit stated that Spohr
had been personally served with the original and amended
guardianship petitions, as well as a hearing notice on May 25,
2018. The hearing notice stated that the hearing on the
guardianship petition would be held on June 12, 2018. The visitor
filed a report on June 7, 2018, concluding that Spohr needed a
guardian.
2 ¶5 The court held a hearing on the petition on June 12, 2018. A
transcript of the hearing is not in the record, but the parties agree
that at the hearing the court appointed counsel for Spohr and
appointed the Department as Spohr’s emergency guardian. The
court entered written orders of these rulings the next day. The
record indicates that the court continued the hearing on the
permanent guardianship appointment at Spohr’s request.
¶6 On June 14, the Department filed a notice of a “continued
hearing” on the petition for a guardianship appointment, set for
July 18, 2018. The Department served the notice on Spohr’s
counsel electronically. Spohr then requested that a professional
evaluation be performed to evaluate his current mental health and
ability to make his own decisions, and asked that the July 18th
hearing be continued so that a report on the evaluation could be
completed. The court granted both requests.
¶7 The Department filed another notice of a continued hearing on
the guardianship petition, listing that hearing’s date as August 28,
2018. This was also served on Spohr’s counsel electronically.
¶8 A psychologist performed the professional evaluation and filed
a ten-page report, concluding that Spohr could not effectively
3 receive and evaluate complex information and that a guardian was
needed to ensure that his basic needs were met and to protect his
assets.
¶9 On August 28, 2018, the district court held a hearing on the
guardianship petition. The Department presented testimony from a
Department caseworker who worked with Spohr, a social service
director at Valley View, Spohr’s physician, and the psychologist who
performed the professional evaluation. Spohr also testified. The
court appointed the Department as Spohr’s guardian.
II. The District Court Had Jurisdiction
¶ 10 Spohr contends that the district court lacked jurisdiction to
appoint the Department as his guardian because the Department
failed to comply with the guardianship notice statute, section
15-14-309, C.R.S. 2019. We disagree.
A. Standard of Review and Applicable Law
¶ 11 Proper notice under the guardianship statute is a
jurisdictional requirement, which Spohr may raise for the first time
on appeal. Spohr, ¶ 21 (citing Town of Carbondale v. GSS Props.,
LLC, 169 P.3d 675, 679-81 (Colo. 2007)). We review de novo
whether a trial court had jurisdiction. See Dorsey & Whitney LLP v.
4 RegScan, Inc., 2018 COA 21, ¶ 10; State ex rel. Suthers v. Johnson
Law Grp., PLLC, 2014 COA 150, ¶ 14.
¶ 12 We also review de novo whether a trial court properly applied
the relevant statute. Arguello v. Balsick, 2019 COA 20M, ¶ 14.
When interpreting a statute, we strive to give effect to the
legislature’s intent. In re Estate of Morgan, 160 P.3d 356, 358 (Colo.
App. 2007). We do so by giving the statute’s words and phrases
their plain and ordinary meanings. Miller v. Hancock, 2017 COA
141, ¶ 24. “[W]e interpret the statute in a way that best effectuates
the purpose of the legislative scheme.” Morgan, 160 P.3d at 358.
“If a statute is clear and unambiguous on its face, then we need not
look beyond the plain language, and ‘we must apply the statute as
written.’” Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004) (citations
omitted).
¶ 13 Subsection (1) of section 15-14-309 requires a petitioner to
personally serve a respondent in a guardianship proceeding and
specifies that failure to serve is jurisdictional:
A copy of a petition for guardianship and notice of the hearing on the petition must be served personally on the respondent. The notice must include a statement that the respondent must be physically present unless
5 excused by the court, inform the respondent of the respondent’s rights at the hearing, and include a description of the nature, purpose, and consequences of an appointment. A failure to serve the respondent with a notice substantially complying with this subsection . . . is jurisdictional and thus precludes the court from granting the petition.
Notice of a hearing must also “be given . . . at least fourteen days
before the hearing.” § 15-14-113(1), C.R.S. 2019. A respondent
cannot waive service. See §§ 15-14-113(1), -114, -309(1), C.R.S.
2019; Spohr, ¶ 30.
B. Analysis
¶ 14 Spohr argues that the Department failed to comply with
subsection 309(1)’s personal service requirement because it did not
personally serve him with notice of the August 28, 2018,
guardianship hearing. Acknowledging that he was personally
served with notice of the June 12, 2018 hearing, Spohr maintains
the petitioner was required to personally serve him again with a
new notice because the hearing was continued. This reading of the
statute presents an issue of first impression for this court.
¶ 15 We conclude that section 15-14-309 does not require a
petitioner to personally serve a respondent with additional notice of
6 a rescheduled guardianship hearing when personal service was
initially proper.
¶ 16 First, subsection 309(1) only refers to a singular “notice” of
“the hearing.” Failure to “serve the respondent with a notice” is
jurisdictional. § 15-14-309(1) (emphasis added); Spohr, ¶ 30. A
notice was given here. The record shows that Spohr was personally
served on May 25, 2018, with a copy of the petition and notice of
the June 12, 2018, hearing on the guardianship petition. Nothing
in the plain language of the statute requires additional notices
when the guardianship hearing is continued. Thus, this case is
easily distinguishable from Spohr, ¶ 26, because there was no
evidence that any notice was served on him in that case.
¶ 17 Second, our interpretation of subsection 309(1)’s language
best effectuates the statute under the statutory scheme as a whole.
People v. Yoder, 2016 COA 50, ¶ 17 (“[W]e must also look at the
statute as a whole in order to interpret the meaning and purpose of
its language.”); Morgan, 160 P.3d at 358. Subsection 309(1)
requires the hearing notice to include certain substantive
information about the guardianship proceedings and consequences,
the respondent’s required presence, and the respondent’s rights. If
7 these requirements are not “substantially compl[ied] with,” the trial
court loses jurisdiction to enter a guardianship order.
§ 15-14-309(1). These notice requirements “have been enacted to
ensure . . . due process.” Spohr, ¶ 1 (“It is beyond dispute that due
process measures should be followed when someone — and
especially a government entity — attempts to impose a
guardianship on a person[.]”); Estate of Milstein v. Ayers, 955 P.2d
78, 81 (Colo. App. 1998) (“Because a guardianship proceeding
involves a potential deprivation of fundamental rights and liberties,
it implicates constitutional issues.”). Thus, the notice’s purpose is
to inform the respondent about the potential consequences a
guardianship proceeding could have on his or her rights and
liberties.
¶ 18 Requiring the petitioner to personally serve the respondent
with a notice of a guardianship hearing serves to protect these
rights. Requiring the petitioner to serve additional notices would
not further protect a respondent’s rights under the statutory
scheme. A respondent is already required to attend the
guardianship hearing unless excused for good cause by the court,
and the petitioner is already required to “make every reasonable
8 effort to secure the respondent’s attendance at the hearing.”
§ 15-14-308(1), (3), C.R.S. 2019. Also, before a guardianship
hearing occurs, the visitor must interview the respondent and
“[e]xplain to the respondent the substance of the petition, the
nature, purpose, and effect of the proceeding, the respondent’s
rights at the hearing, and the general powers and duties of a
guardian,” among other information. § 15-14-305(3)(a). Thus, the
statutory scheme already protects a respondent’s right to attend a
guardianship hearing that has been continued. Finally, the
rationale behind a reading that would require personal service to
obtain jurisdiction, where the court already had jurisdiction and
continued the hearing at the request of the respondent, who was
represented by counsel, is difficult to fathom.
¶ 19 For these reasons, we conclude subsection 309(1) does not
require a petitioner to personally serve the respondent with
additional notice of a continued guardianship hearing when the
respondent was already personally served.
III. Sufficient Evidence Supported the Court’s Finding
¶ 20 Spohr contends that the district court erred in appointing the
Department as his guardian because the court’s order did not
9 provide “any reasoning or exploration as to why [Spohr’s] identified
needs could not be met by less restrictive means,” as required by
section 15-14-311, C.R.S. 2019. Thus, Spohr argues, there was
insufficient evidence to appoint a guardian. We disagree.
¶ 21 In reviewing for sufficient evidence, we examine whether the
evidence, considered in the light most favorable to the prevailing
party, is sufficient to support the verdict. Hildebrand v. New Vista
Homes II, LLC, 252 P.3d 1159, 1172 (Colo. App. 2010). Because a
guardianship appointment “implicate[s] constitutional concerns,”
the petitioner’s burden of proof “is by clear and convincing
evidence.” Sabrosky v. Denver Dep’t of Soc. Servs., 781 P.2d 106,
107 (Colo. App. 1989); see In re Estate of Runyon, 2014 COA 181,
¶ 10. Thus, in sufficiency of the evidence appeals of rulings under
title 15, “‘the factual findings of the trial court sitting without a jury
are not to be disturbed unless clearly erroneous and not supported
by the record.’ In such cases, appellate courts are ‘obligated to
search the record for evidence to support the findings of fact.’”
Neher v. Neher, 2015 COA 103, ¶ 54 (citations omitted); see
10 Runyon, ¶ 31 (“[T]he record does not adequately support the trial
court’s selection of [the respondent’s] guardian and [conservator].”).
¶ 22 We review de novo whether the court properly applied the law
to its factual findings. In re Parental Responsibilities of A.M., 251
P.3d 1119, 1121 (Colo. App. 2010).
¶ 23 The power to appoint a legal guardian for an incapacitated
person lies with the district court. § 15-14-301, C.R.S. 2019. The
court may appoint a guardian if it finds that the respondent is an
incapacitated person whose needs cannot be met by less restrictive
means. § 15-14-311; Runyon, ¶ 10.
¶ 24 First, as to Spohr’s contention that the court’s order was not
sufficiently detailed, although thorough findings are preferable, “[a]
trial court need only enter findings on the material and ultimate
facts of the case. The trial court need not assert in detail which
propositions are accepted and which are rejected, but may simply
state that the evidence supports or repudiates a claim or defense.”
Yoder v. Hooper, 695 P.2d 1182, 1188 (Colo. App. 1984) (citations
omitted), aff’d, 737 P.2d 852 (Colo. 1987); see Moeller v. Colo. Real
Estate Comm’n, 759 P.2d 697, 703 (Colo. 1988) (“The brevity of a
11 trial court’s findings and conclusions alone does not determine their
validity.”). Nonetheless, “the findings must be sufficient to allow the
reviewing court to determine whether the decision is supported by
competent evidence.” In re Marriage of Rodrick, 176 P.3d 806, 813
(Colo. App. 2007).
¶ 25 The court’s findings were sufficient for our review.
¶ 26 Section 15-14-311’s limitation on appointing a guardian only
where “identified needs cannot be met by less restrictive means”
has not been construed by a published decision of this court.
Because it appears in section 311 of the Uniform Guardianship and
Protective Proceedings Act (Unif. Law Comm’n 1997), we may
consider the comment to the Uniform Act. Morgan, 160 P.3d at
359. In relevant part, the comment provides as follows:
The use of limited guardianship is emphasized in this section. If a guardian is to be appointed, the guardian shall be given only those powers needed to meet the ward’s needs and limitations. . . . [A] guardian should be appointed only when necessary, only for as long as necessary, and with only those powers as are necessary.
Unif. Guardianship & Protective Proceedings Act § 311 cmt.
12 ¶ 27 Thus, “less restrictive means” requires balancing a guardian’s
potential power against a respondent’s autonomy, in light of other
methods to meet the respondent’s needs.
¶ 28 At the hearing, the court found that Spohr had “significant
cognitive impairment, significant medical issues that require daily
attention, and it’s clear . . . that [Spohr] needs the [g]uardianship to
remain permanent . . . in order to oversee [him] and make sure his
needs are taken care of.” In the court’s later written order, it found
that Spohr’s needs could not be met by less restrictive means. It
then made findings on “the nature and extent of [Spohr’s]
incapacity.” Although Spohr argues that the court should have
considered less restrictive means on the record, the court’s findings
make clear that it determined the permanent guardianship was the
least restrictive means to address Spohr’s needs. § 15-14-311.
¶ 29 We also conclude that sufficient evidence supported this
finding. Several witnesses at the hearing said that Spohr required
twenty-four-hour care. The Valley View social service director said
that Spohr was not aware of the medications he took and could not
provide for his own self-care or make his own decisions. Spohr’s
physician testified to his numerous impairments and said that
13 Spohr did not understand or remember his own diagnoses and that
it was necessary for him to stay at a long-term care facility.
Further, the Valley View director said that when Spohr was
discharged to his home two years ago, he fired all of his appointed
home health assistants and then contacted emergency services
daily to assist him. In addition, the Department received numerous
reports that Spohr needed help. Spohr’s physician and the
Department caseworker both said that there were no other
appropriate facilities that would accept him as a resident. The
caseworker also said that Spohr’s relatives were not willing to be
appointed as his guardian or let him live with them. The expert
who performed the capacity evaluation said that Valley View was an
appropriate placement for Spohr, given his needs.
¶ 30 Thus, because “[o]ur review of the record here reveals
sufficient evidence to support the trial court’s determination,” we do
not disturb the court’s ruling. Neher, ¶ 65 (quoting Wright Farms,
Inc. v. Weninger, 669 P.2d 1054, 1056 (Colo. App. 1983)).
14 IV. The District Court Did Not Abuse Its Discretion by Denying Spohr’s Request to Continue the Hearing
¶ 31 Spohr contends that the district court abused its discretion by
denying his motion to continue the August 28, 2018, hearing
because his illness prevented him from fully participating. We
disagree.
¶ 32 We review a trial court’s denial of a motion to continue for an
abuse of discretion. People v. Mandez, 997 P.2d 1254, 1265 (Colo.
App. 1999). A trial court abuses its discretion if its decision is
manifestly arbitrary, unreasonable, or unfair, or if it misapplies the
law. Runyon, ¶ 9. The moving party must show that the denial of
the continuance resulted in actual prejudice. See People v. Marsh,
396 P.3d 1, 13 (Colo. App. 2011), aff’d, 2017 CO 10M.
¶ 33 As evidence that he was prejudiced, Spohr argues, without
further elaboration, that he “was unable to participate as much as
he ordinarily could have.” There is no record evidence to support
this claim. Spohr testified at the hearing. Further, the court
conditioned its denial based on Spohr’s ongoing condition:
Why don’t we proceed as far as we can and, and if . . . your client . . . gets to a point where he just can’t go any further, then we can — let’s try to at least start the hearing and
15 understand that probably we’re not going to be able to go all day, but we will see. Let’s just see what we can do.
The court also took a recess during the hearing at Spohr’s request.
Spohr did not ask again to continue the hearing, nor did he tell the
court that he could not participate. We cannot say in these
circumstances that the court abused its discretion. Id.
V. Conclusion
¶ 34 The district court’s order is affirmed.
JUDGE FURMAN and JUDGE NAVARRO concur.