In the interest of Spohr v. Fremont County Department of Human Services , 422 P.3d 625 ( 2018 )

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
May 17, 2018
2018COA74
No. 17CA0473, In the Interest of Spohr — Probate — Persons
Under Disability — Guardianship of Incapacitated Person —
Notice
In this proceeding, a division of the court of appeals concludes
that where a respondent in a proposed guardianship does not
receive notice by personal service as required by section 15-14-
309(1), C.R.S. 2017, the district court lacks jurisdiction over the
respondent and is therefore precluded from granting a petition for
guardianship. The division also discusses the proper procedures
for appointing an emergency guardian under section 15-14-112,
C.R.S. 2017.
The division further rejects the petitioner’s contention that the
respondent waived service by participating in the proceedings,
because under section 15-14-114, C.R.S. 2017, a respondent
cannot waive service.
Under these circumstances, the district court lacked
jurisdiction over the respondent. Accordingly, the division vacates
the district court’s judgment granting the petition for guardianship.
COLORADO COURT OF APPEALS 2018COA74
Court of Appeals No. 17CA0473
Fremont County District Court No. 16PR30060
Honorable Stephen A. Groome, Judge
In the Interest of Edward William Spohr, Protected Person,
Appellant,
v.
Fremont County Department of Human Services,
Appellee.
JUDGMENT VACATED
Division III
Opinion by JUDGE TERRY
Webb and Rothenberg*, JJ., concur
Announced May 17, 2018
David R. Brown Law LLC, David R. Brown, Cañon City, Colorado, for
Respondent-Appellant
Daniel Slater Law, Daniel B. Slater, Cañon City, Colorado; Nicole L. Bartell,
Cañon City, Colorado, for Petitioner-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶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 (referred to by
statute as a respondent). Provisions of the Colorado Probate Code
have been enacted to ensure such due process. Those provisions
require, as relevant to this case, that when a guardianship is being
sought in court, personal service of a notice of hearing on a petition
for guardianship has to be made on the respondent. The
respondent here, Edward William Spohr, argues for the first time on
appeal that he did not receive personal service of such a hearing.
Because those statutory provisions cannot be waived by a
respondent, and were not followed here, we vacate the judgment
imposing a guardianship on Spohr.
I. Background
¶2 This case began on July 15, 2016, when the Fremont County
Department of Human Services filed a petition for emergency
appointment of a guardian for Spohr in the district court under
section 15-14-312, C.R.S. 2017.
¶3 The district court magistrate appointed counsel for Spohr and
held an emergency hearing three days later. There is no transcript
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of the hearing, and no indication in the record that Spohr was
present or that he received any notice of the hearing. In a July 19,
2016, order, the magistrate ruled that notice under section 15-14-
312 was “[d]ispensed with because the Court finds from testimony
that [Spohr] will be substantially harmed if the appointment is
delayed.” Apparently based on testimony at the hearing, the court
found that Spohr “[could] not function independently in the
community and that Valley View Health Care Center [would] only
admit him if he [had] a guardian”; that delaying the appointment
would result in substantial harm to Spohr’s health, safety, or
welfare; and that no other person appeared to have authority or
willingness to act for him. At the end of the hearing, the court
appointed the Department as emergency guardian for Spohr. (The
Department later designated its employee Daniel Nix as guardian.)
¶4 In the order appointing the emergency guardian, the court
required notice of the appointment to be personally served on Spohr
within forty-eight hours, as required by section 15-14-312(2). But
the record is devoid of any proof that personal service was made on
Spohr of a notice that Nix had been appointed as his emergency
guardian. The order said, “[t]his emergency guardianship expires
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on September 17, 2016 (date not to exceed 60 days from
appointment).”
¶5 The proceedings involving Spohr were plagued by delays and
became very protracted. Despite the proviso in section 15-14-
312(1) that the appointment of an emergency guardian “may not
exceed sixty days,” the court did not hold another hearing on the
question of Spohr’s guardianship for more than six months and the
emergency guardianship remained in place in the interim. The
following events help to explain some of the delay.
¶6 The hearing on the petition for permanent guardianship was
set for September 28. But on September 19, Spohr’s counsel filed a
motion to continue the hearing due to a calendaring conflict and
the death of a witness. The trial court granted the motion and
postponed the hearing in an order dated September 20.
¶7 In that order, the court said, “[t]he Emergency Guardianship
shall remain in effect until further order of the Court. . . . By
analogy[,] [Spohr] has waived his right to a speedy trial which
allows the emergency guardianship to remain in effect.” (Though
the court cited section 15-14-312, that section does not make any
reference to an ability to waive the right to a hearing following
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emergency appointment of a guardian and does not reference
“speedy trial.”)
¶8 The first indication in the record that service of any kind was
made on Spohr is a notice showing that he was served by mail with
the September 19 motion for continuance and the order granting
the motion, as noted on a copy of Judicial Department Form (JDF)
717. (The form, which is a standard judicial department certificate
of service form, notes that it “cannot be used in cases where
personal service is required,” and that JDF 718 must be used
instead.)
¶9 No other indications of service on Spohr appear in the record.
Most notably, there is no indication that he was served with notice
of the February 14, 2017, hearing at which a permanent guardian
was appointed for him.
¶ 10 The trial court record includes a finding that the “required
notices have been given or waived.” But the court file contains no
indication whether the notices required by section 15-14-309(1),
C.R.S. 2017, and section 15-14-312(2) were ever provided to Spohr.
We therefore remanded the case to the district court on a limited
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basis for the court to make findings about whether the required
notices were ever served on him.
¶ 11 On remand, the district court held a hearing to determine
whether Spohr was properly served. The Department presented no
further information, and the court found that the record remained
unclear as to service.
II. Notice and Service of Process Under the Probate Code
¶ 12 As relevant here, C.R.P.P. 8 provides that notice and service of
process are governed by the applicable provisions of the Probate
Code.
¶ 13 Article 14 of Title 15 of the Colorado Revised Statutes applies
to protection of persons under a disability. This case implicates
sections 15-14-309 and 15-14-312, which both contain
requirements for provision of notice in proceedings for appointment
of a guardian for an incapacitated person.
A. Emergency Guardianship for an Incapacitated Person
¶ 14 Section 15-14-312(1) of the Probate Code allows a court to
find, in an appropriate case, that compliance with the ordinary
provisions of sections 15-14-301 to -319, C.R.S. 2017, governing
appointment of a guardian “will likely result in substantial harm to
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the respondent’s health, safety, or welfare, and that no other person
appears to have authority and willingness to act in the
circumstances.” If the court makes such a finding, the court may
appoint an emergency guardian whose authority may not exceed
sixty days, and who may exercise those powers specified in the
order. § 15-14-312(1). The court appointing an emergency
guardian must appoint a lawyer to represent the protected person
throughout the emergency guardianship. Id.
¶ 15 The Probate Code would have allowed the appointment of an
emergency guardian to be made without notice to Spohr only if the
court found, based on testimony at the emergency hearing, that he
would have been “substantially harmed if the appointment [were]
delayed.” See § 15-14-312(2). The magistrate made such a finding
with respect to Spohr.
¶ 16 Subsection 312(2) provides that if the protected person was
not present at the hearing for appointment of an emergency
guardian, “the respondent must be given notice of the appointment
within forty-eight hours after the appointment.” No evidence
appears in the record to indicate that Spohr was given such notice.
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B. Non-Emergency Guardianship for an Incapacitated Person
¶ 17 Section 15-14-309 contains requirements for notice in
proceedings for appointment of a guardian for an incapacitated
person. That section makes no mention of an emergency situation.
And the Probate Code does not delineate how any transition is to be
made from an emergency guardianship under section 15-14-312 to
a non-emergency guardianship under section 15-14-309.
¶ 18 In the absence of a statutory provision governing the
transition from an emergency guardianship to a non-emergency
guardianship for an incapacitated person, we conclude that, at the
end of the sixty-day maximum period for an emergency
guardianship, if a guardianship is still sought for the protected
person, the provisions of section 15-14-304, C.R.S. 2017, for
judicial appointment of a guardian on a non-emergency basis must
be followed.
¶ 19 A petition for guardianship under section 15-14-304 would
trigger the requirements of section 15-14-305, C.R.S. 2017,
including provisions for appointment of a visitor under subsection
(1) and potential appointment of counsel under subsection (2).
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¶ 20 The following notice provisions of section 15-14-309(1) would
also apply to the petition for guardianship:
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 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 (1) is
jurisdictional and thus precludes the court from
granting the petition.
(Emphasis added.)
¶ 21 Because the service of notice is jurisdictional, the lack of
notice may be raised at any time, even for the first time on appeal.
See Town of Carbondale v. GSS Props., LLC, 169 P.3d 675, 679-81
(Colo. 2007).
III. Application of Notice Provisions to Spohr
A. Notice of the Emergency Petition for Guardianship
¶ 22 Nothing in the record shows that Spohr was given the notice
required by section 15-14-312(2) within forty-eight hours after the
appointment of Nix as his emergency guardian.
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¶ 23 Arguably, a written waiver of service by Spohr’s appointed
counsel might have been permitted by section 15-14-114, C.R.S.
2017, but no such waiver appears in the record. And that section
further provides that “a respondent, ward, or protected person may
not waive notice.” Therefore, Spohr did not waive notice of the
appointment and the ability to request a hearing on the emergency
guardian’s appointment.
¶ 24 The court must hold a hearing on the appropriateness of the
appointment of an emergency guardian within fourteen days after
the court’s receipt of a request for such a hearing. § 15-14-312(2).
Nothing in the record reflects that such a hearing was requested or
was even discussed with Spohr.
¶ 25 Although section 15-14-312(1) provides that an emergency
guardian’s authority may not exceed sixty days, Nix continued on
as Spohr’s emergency guardian long after sixty days had passed.
B. Notice of Hearing on Non-Emergency Guardianship Appointment
¶ 26 The record also contains nothing to show that Spohr was
provided with the notice required by section 15-14-309(1) before his
non-emergency guardianship hearing. That subsection required
personal service on Spohr of a copy of the petition for
9
(non-emergency) guardianship and notice of a hearing on the
petition. “A failure to serve the respondent with a notice
substantially complying with [subsection 309(1)] is jurisdictional
and thus precludes the court from granting the petition.” § 15-14-
309(1).
¶ 27 The reader will recall that the court found a waiver of the
statutory timeframes for holding a hearing on the guardianship by
analogy to waiver of a right to speedy trial in a criminal case. But
we can find no provision of the Probate Code that would permit
waiver of a protected person’s right to have a hearing on a
guardianship petition within the statutory deadlines. A finding of
implied waiver is particularly inappropriate in the context of a
person under a disability. Cf. § 15-14-114 (a respondent, ward, or
protected person may not waive notice in guardianship and
conservatorship proceedings).
¶ 28 By the same token, we reject the Department’s argument that
Spohr’s participation in the February 14 hearing (to which he was
transported in a wheelchair) was a waiver of the required statutory
notice. The Department has not explained — nor can we discern —
10
how a person so lacking in capacity as to need the appointment of a
guardian could validly waive statutory notice of a hearing.
¶ 29 And even though subsection (1) of section 15-14-309 makes
reference to “notice substantially complying” with that subsection,
we do not need to resolve whether there was “substantial
compliance” with notice provisions here, because the record
contains no evidence that Spohr was served with any notice of the
February 14, 2017, hearing on the petition for guardianship. Cf.
Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1255 (Colo.
2003) (where a notice provision is jurisdictional, strict compliance is
generally required).
¶ 30 The failure to personally serve the respondent fourteen days
before a guardianship hearing is jurisdictional and a respondent
cannot waive service. See §§ 15-14-113(1), -114, -309(1), C.R.S.
2017. We therefore conclude that, because there is no proof that
the service required by section 15-14-309(1) was made on Spohr,
the court lacked jurisdiction to appoint a permanent guardian for
him under section 15-14-311, C.R.S. 2017.
IV. Conclusion
¶ 31 The judgment is vacated.
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JUDGE WEBB and JUDGE ROTHENBERG concur.
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