     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.
                                   1
 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.



                                   2
¶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

                                    3
  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.

                                    4
  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

                                      5
             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


                                     6
  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

                                    7
  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

                                    9
  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



                                      10
  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

                                     11
  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.




                                    12
¶ 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

                                     13
  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)).




                                    14
       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.




                                    16
