Spohr v. & Fremont Cnty. Dep't of Human Servs., Court of Appeals No. 18CA1918
| Citation | 456 P.3d 86 |
| Decision Date | 14 November 2019 |
| Docket Number | Court of Appeals No. 18CA1918 |
| Parties | In the INTEREST OF Edward William SPOHR, Protected Person, Appellant, and Fremont County Department of Human Services, Appellee. |
| Court | Court of Appeals of Colorado |
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
Opinion by JUSTICE MARTINEZ*
¶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.
¶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, 422 P.3d 625. The 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.
¶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 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.
¶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.
¶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. RegScan, Inc. , 2018 COA 21, ¶ 10, ––– P.3d –––– ; State ex rel. Suthers v. Johnson Law Grp., PLLC , 2014 COA 150, ¶ 14, 350 P.3d 961.
¶12 We also review de novo whether a trial court properly applied the relevant statute. Arguello v. Balsick , 2019 COA 20M, ¶ 14, 446 P.3d 937. 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, 410 P.3d 819. "[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 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.
¶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 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, 409 P.3d 430 (); 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 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 (); Estate of Milstein v. Ayers , 955 P.2d 78, 81 (Colo. App. 1998) (). 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...
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