     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

                                   1
 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

                                   2
 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

                                    3
  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



                                    4
  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

                                     5
  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.



                                    6
       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).



                                    7
¶ 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.



                                     8
¶ 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.

                                    11
JUDGE WEBB and JUDGE ROTHENBERG concur.




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