In the interest of Spohr v. Fremont County Department of Human Services

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

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 (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 —

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 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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