dissenting:
The majority holds that the trial court was without subject matter jurisdiction to proceed relative to the certification of respondent for mental health treatment because a hearing to review that certification did not commence within ten days after respondent filed his request for such review. That respondent consented to a five-day delay and that the matter was heard on the thirteenth day is held to be “of no effect.” I respectfully dissent.
In People in Interest of Clinton, 742 P.2d 946 (Colo.App.1987), a division of this court determined that appointment of counsel to represent respondent, made on the fourth business day after the petition for certification was filed, did not constitute a “forthwith” appointment as required by § 27-10-107(5), C.R.S. (1982 Repl. Vol. 11). It then held that, that defect in the proceeding deprived the court of subject matter jurisdiction to proceed relative to the certification. The majority relies on the reasoning of Clinton to reach the result here.
The supreme court has granted certiorari to determine whether it was error to rule that “the trial court lacked subject matter jurisdiction ... due to its failure to appoint counsel ‘forthwith’....” And, whether or not Clinton ultimately proves to be correct, I would not follow it here on the issue of subject matter jurisdiction. Besides having a questionable legal foundation, Clinton is, in my view, distinguishable in that respondent Clinton did not consent to any delay as did the respondent here.
The trial court's subject matter jurisdiction over this proceeding is based on the grant of authority found in § 27-10-111, C.R.S. (1982 Repl. Vol. 11). This statute provides, in pertinent part:
“(1) Hearings before the court under section 27-10-107 ... shall be conducted in the same manner as other civil proceedings before such court_”
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“(4) The court in which ... the certification is filed under section 27-10-107 shall be the court of original jurisdiction and of continuing jurisdiction for any further proceedings under this article....”
According to this statute, the court’s subject matter jurisdiction is invoked by the filing of a petition or a notice of certification with the court. Once invoked, it continues like any other civil proceeding.
Pursuant to § 27-10-107(6), C.R.S. (1987 Cum.Supp.), respondent had the right to have the certification for short-term treatment reviewed within ten days after he filed his written request for such review. However, this requirement is primarily for the respondent’s protection, and there is no valid reason why he cannot waive this right or, as here, consent to a delay.
*147Respondent’s other contentions for reversal are without merit. Therefore, I would affirm the order of the trial court confirming respondent’s certification.