In re R.M.S.

128 P.3d 783, 2006 Colo. LEXIS 144
CourtSupreme Court of Colorado
DecidedFebruary 13, 2006
DocketNo. 05sA308
StatusPublished
Cited by6 cases

This text of 128 P.3d 783 (In re R.M.S.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re R.M.S., 128 P.3d 783, 2006 Colo. LEXIS 144 (Colo. 2006).

Opinion

MARTINEZ, Justice.

Petitioners, Ginny Villers and William Brian Villers (collectively, "the Villers"), filed this original proceeding under CAR. 21 seeking to vacate the trial court's order awarding guardianship of R.M.S., a minor, to Respondent, Kathleen Nace, after the deaths [784]*784of R.M.S.'s parents, Sara Sherwood and Stephen Sherwood. The trial court enforced the terms of Stephen Sherwood's will, which appointed Nace guardian for R.M.S., based on its legal conclusion that a court can set aside a valid testamentary appointment only to avoid potential harm or injury to the minor. The Villers, as persons with the care and custody of R.M.S., objected to the testamentary appointment and seek a new order appointing a guardian for R.M.S. pursuant to the best interest of the child standard. We issued a rule to show cause and now make the rule absolute.

I. Facts and Proceedings

On the afternoon of August 3, 2005, Larimer County law enforcement officials responded to a 911 call reporting sounds of gunfire in the home of Sara and Stephen Sherwood. Upon entry, officials discovered the Sher-woods' bodies. Nine days after returning from active combat duty in Iraq, Stephen Sherwood shot and killed his wife, Sara Sherwood, and then killed himself.

The Sherwoods' daughter, R.M.S., was at a neighbor's home during the shootings. Authorities subsequently placed R.M.S. in the care of Ginny Villers, Sara Sherwood's sister, and Ginny Villers' husband, William Brian Villers. R.M.S. has remained in the Villers care and custody since the deaths of her parents.

On August 8, 2005, the Villers filed an emergency petition for the appointment of a guardian for RM.S. The petition asserted that all parental rights had been terminated by death and the Villers were interested persons with the current care of R.M.S. The petition further asserted it was necessary to appoint a temporary and emergency guardian for R.M.S. until a hearing could be held on the petition because an immediate need existed and the appointment of a temporary guardian was in the best interest of R.M.S.

Seven days later, Kathleen Taylor Nace, Stephen Sherwood's mother, petitioned for appointment of guardianship on the basis that she was appointed by the will of the last parent to die, Stephen Sherwood, and the appointment had not been prevented or terminated pursuant to section 15-14-2038, C.R.S. (2005). She concurrently filed an acceptance of testimonial appointment as required under section 15-14-202, CRS. (2005), and petitioned the trial court for confirmation of the appointment pursuant to seetion 15-14-202(6), C.R.S. (2005).

The Villers objected to Nace's petition for the appointment of guardian and advanced a best interest of the child standard to the guardianship determination.1 - Under this standard, the Villers argued it would be in R.M.S.'s best interest to remain in their care and custody.

After a hearing on both guardianship petitions, the trial court entered an oral ruling appointing Nace guardian of R.M.S. The trial court concluded the relevant statute, while providing a court some degree of discretion in determining the appointment of a guardian, did not provide it with the discretion to employ a "best interests of the child standard." The court instead applied a harm standard: it concluded Stephen Sherwood's will controlled the guardianship appointment2 unless "the appointment causes harm or injury" to RMS. Because Nace was willing to gccept the appointment and the court could not find any indication that such [785]*785an appointment would cause harm or injury to R.M.S., the court granted Nace's petition and denied the Villers emergency petition. The trial court noted, however, that if it had applied a best interest standard, it might have appointed the Villers as RM.S.'s guardian. The trial court stayed removal of R.M.S.

The Villers seek a rule to show cause requiring the trial court to vacate its ruling and enter a new ruling based upon the best interests of R.M.S.

II. Analysis

Sections 15-14-201 to -210, C.R.S. (2005), of the Colorado Probate Code govern the appointment of guardians. A guardian may be appointed by a parent under section 15-14-202 (a "testamentary appointment") or by a court under section 15-14-204, C.R.S. (2005) (a "judicial appointment"). Although a parent may make a testamentary appointment, a person with the care or custody of the minor may object to the appointment under section 15-14-208(1), C.R.S. (2005).

To determine the issue before us-whether an objection under section 15-14-208(1) to a parental appointment requires judicial appointment of a guardian determined on the best interest of the child standard-we review de novo the statutory provisions governing parental appointments, objections and judicial appointments. See Welch v. George, 19 P.3d 675, 677 (Colo.2000). We first look to the statutory language and give words and phrases their plain and ordinary meaning. Civil Rights Comm'n ex rel. Ramos v. Regents of Univ. of Colo., 759 P.2d 726, 735 (Colo.1988). Where the language of a statute is plain and the meaning clear, we apply it as written because we presume the General Assembly meant what it said. See Allstate Ins. Co. v. Smith, 902 P.2d 1386, 1387 (Colo.1995).

We first discuss uncontested testamentary appointments made under section 15-14-202 and note that a court's role is limited to confirming the appointment. Next, we consider objections to parental appointments under section 15-14-203(1) and conclude an objection triggers the judicial appointment statute. We then discuss judicial appointments made under section 15-14-204, C.R.S. (2005), and observe that the legislature has clearly conditioned all judicial appointments on the minor's best interests. Finally, we conclude that a judicial appointment, made subsequent to an objection to a testamentary appointment, is to be made pursuant to the best interest of the child standard.

A. Testamentary Appointment of a Guardian

Section 15-14-202 confers authority on a parent to appoint a guardian by will or other signed writing: "a guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future." § 15-14-202(1), C.R.S. (2005); see also § 15-14-201. In connection with the appointment, the parent may specify limits on a guardian's powers and revoke or amend the appointment before confirmation by the court. § 15-14-202(1).

A testamentary appointment is generally effective upon the death of the appointing parent:

Subject to section 15-14-2083, the appointment of a guardian becomes effective upon the death of the appointing parent or guardian, an adjudication that the parent or guardian is an incapacitated person, or a written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the child, whichever occurs first.

§ 15-14-202(8), C.R.S. (2005) (emphasis added). Although a parent may appoint a guardian, whose appointment will be effective upon his or her death, the court must be petitioned to confirm the appointment. § 15-14-202(4), C.R.S.

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Bluebook (online)
128 P.3d 783, 2006 Colo. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rms-colo-2006.