In Interest of Spohr

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.
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 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.

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¶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

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 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.

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 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

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 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

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 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

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 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

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 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.

A. Standard of Review and Applicable Law

¶ 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

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 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.

B. Analysis

¶ 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

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 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.

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¶ 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

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 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)).

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 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.

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