In the Interest of L.B., a Child, Edite Dusalijeva, Petitioner-Appellant, and Mara B. Blumberg and Wallace L. White, Petitioners-Appellees, and Concerning Dace Carlin and Dane Carlin, Appellees.
and County of Denver Probate Court No. 15PR30332 Honorable
Elizabeth D. Leith, Judge Honorable Ruben M. Hernandez,
Offices of Stan Epshtein, Stan Epshtein, John Bellinger,
Denver, Colorado, for Petitioner-Appellant
& Avery LLP, David H. Yun, Denver, Colorado, for
Petitioners-Appellees and Appellees
1 Edite Dusalijeva appeals the probate court's orders
appointing her and Mara B. Blumberg as temporary co-guardians
of L.B. and its order appointing Ms. Blumberg, Dace Carlin,
and Dane Carlin as permanent co-guardians of L.B. We affirm.
2 L.B. was born on December 9, 2009. Her mother died in 2010.
L.B.'s father, Juris Berzins, hired Ms. Dusalijeva as
L.B.'s nanny in late 2011. Later, Mr. Berzins and Ms.
Dusalijeva developed a romantic relationship.
3 Mr. Berzins had dual citizenship in the United States and
Latvia, as does L.B. He had residences in Denver, Latvia, and
France. L.B. attended school in Denver in 2012, 2013, and
2015; she never attended school in Latvia.
4 On January 1 or 2, 2015, L.B., Mr. Berzins, and Ms.
Dusalijeva arrived in Colorado. Before that, they had lived
in Latvia for a year. Mr. Berzins bought plane tickets for
them to return to Latvia on May 24, 2015. The probate court
found, with record support, that Mr. Berzins planned for the
three to spend the summer in Latvia and to return to Denver
in time for L.B. to attend school.
5 Mr. Berzins died on February 26, 2015, at his home in
Denver. He left two executed wills. The first was prepared
for and signed by him in Latvia in 2012 (2012 Will). The
second was prepared for and signed by him in Denver in 2014
(2014 Will). The 2014 Will expressly revoked all prior wills,
identified Mr. Berzins as being "of the City and County
of Denver, " and said that it should be interpreted
under the laws of Colorado.
6 The 2014 Will left the residuary estate in trust for the
benefit of L.B. and Ms. Blumberg (Mr. Berzins' daughter)
or Ms. Blumberg's descendants. It also said that the
trust will terminate when L.B. attains age twenty-five, with
the primary purpose of the trust being "to provide for
the health, education, support and maintenance of
[L.B.]." The 2014 Will suggested that the trustees
"consider making regular payments to any person having
custody of [L.B.] while she is a minor" and
"consider receiving an annual accounting or budget from
such person for the expenses of [L.B.]." It also
requested that the trustees "consider retaining as an
asset of the trust the condominium . . . in the Candlewyck
Condominiums . . . in Denver, Colorado . . . to provide a
residence for [L.B.] and her guardian while they reside in
Denver." Both the 2012 and 2014 Wills appointed Ms.
Dusalijeva as L.B.'s guardian in case of Mr. Berzins'
7 After Mr. Berzins died, Ms. Dusalijeva and Ms. Blumberg
jointly initiated the probate court action. On March 9, 2015,
through joint counsel, Ms. Dusalijeva and Ms. Blumberg sought
to establish a temporary co-guardianship for L.B.'s
benefit for six months. The petition alleged that this was
necessary because "[a]s a result of the death of
[L.B.'s] only parent, there is no one with legal
authority to care for the Minor" and "[t]here is no
person currently acting as a Guardian or Conservator for
[L.B.] in Colorado or elsewhere." At a hearing on March
12, 2015, the magistrate entered an order for temporary
co-guardianship between Ms. Dusalijeva and Ms. Blumberg, to
expire on May 11, 2015. On May 4, 2015, the co-guardians
jointly filed a motion for an extension of the appointment.
The magistrate granted this motion without a hearing on May
6, 2015, for another sixty days, to expire on July 11, 2015.
8 On April 17, 2015, without informing the Denver Probate
Court, Ms. Dusalijeva filed a petition for guardianship over
L.B. with the Latvian orphan's court. Neither she nor her
Latvian counsel informed the orphan's court of the Denver
Probate Court proceedings or the 2014 Will. In April 2015,
the orphan's court issued a letter arguably implying that
Mr. Berzins had appointed Ms. Dusalijeva as L.B.'s
guardian. However, it later issued a letter saying that the
April 2015 letter was "not an order" and that the
court had "not made any decision to appoint a
guardian" for L.B. because it lacked information
regarding Mr. Berzins' 2014 Will.
9 After the May 2015 extension of the temporary
co-guardianship, a dispute arose between Ms. Dusalijeva and
Ms. Blumberg about whether L.B. should continue to live with
Ms. Dusalijeva and reside in Latvia, where Ms. Dusalijeva
testified she wished to live, or whether L.B. should reside
in the United States. They also disagreed about whether Mr.
Berzins intended for L.B. to be educated in the United States
or in Latvia. The probate court found, again with record
support, that Mr. Berzins wanted L.B. to be educated in
10 After a four-day guardianship hearing beginning on August
3, 2015, the probate court appointed Ms. Blumberg and Dace
and Dane Carlin as permanent co-guardians of L.B. The Carlins
are a Latvian couple living in Denver. They had met and cared
for L.B. shortly after Mr. Berzins' death and continued
to see L.B. thereafter. The probate court found that the
Carlins could provide L.B. with an upbringing similar to what
Ms. Blumberg had described as her experience growing up and
the lifestyle that Mr. Berzins would have wanted for L.B.
11 Ms. Dusalijeva primarily contends that the probate court
did not have subject matter jurisdiction. Additionally, she
contends that the probate court erred by (1) not
communicating with the Latvian orphan's court in a timely
manner; (2) denying her motion for an enlargement of time to
accept her testamentary appointment of guardianship; (3)
admitting and failing to consider certain testimony; (4)
violating her due process rights; (5) violating the Hague
Convention on the Civil Aspects of International Child
Abduction (hereinafter, the Hague Convention); and (6)
allowing her unknowing consent to a magistrate. We address
and reject these contentions in turn. Finally, we decline to
address several arguments that Ms. Dusalijeva raises for the
first time in her reply brief.
Subject Matter Jurisdiction
12 Ms. Dusalijeva contends that the probate court lacked
subject matter jurisdiction under sections 15-14-204(5),
14-13-204(1), 14-13-204(2), and 14-13-201(1), C.R.S. 2016.
Preservation and Standard of Review
13 Generally, a party may contest subject matter jurisdiction
at any time; it cannot be waived or conferred by consent,
estoppel, or laches. See, e.g., People v.
McMurtry, 122 P.3d 237, 240 (Colo. 2005); Mesa Cty.
Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200, 1206
(Colo. 2000); People in Interest of S.T., 2015 COA
147, ¶ 37.
14 The question whether a trial court has jurisdiction over a
child custody proceeding presents a question of law that we
review de novo. Brandt v. Brandt, 2012 CO 3, ¶
18; In re L.S., 257 P.3d 201, 204 (Colo. 2011).
Temporary Jurisdiction Under Sections 15-14-204(5) and
15 Ms. Dusalijeva contends the probate court lacked
jurisdiction on the three occasions it temporarily appointed
her and Ms. Blumberg as co-guardians. We
16 Sections 15-14-201 to -210, C.R.S. 2016, of the Colorado
Probate Code govern the appointment of guardians for minors.
A guardian may be appointed by a parent under section
15-14-202, C.R.S. 2016 (a "testamentary
appointment"), or by a court under section 15-14-204 (a
"judicial appointment"). This case concerns a
judicial appointment. Section 15-14-204(5) provides, in
relevant part, as follows:
If the court finds that following the procedures of this part
2 will likely result in substantial harm to a minor's
health or safety and that no other person appears to have
authority to act in the circumstances, the court, on
appropriate petition, may appoint an emergency guardian for
March 12, 2015
17 In March, May, and July 2015, the court found (1) that
following the procedures of part 2 was likely to result in
substantial harm to L.B.'s health or safety and (2) that
no other person appeared to have authority to act for L.B.
Ms. Dusalijeva argues that there was no evidence supporting
18 It is questionable whether Ms. Dusalijeva's arguments
actually implicate the court's jurisdiction. The Colorado
Constitution and Colorado statutes confer subject matter
jurisdiction on the Denver Probate Court for matters
regarding guardianship of minors. Colo. Const. art. VI,
§ 9(3) (conferring "exclusive original
jurisdiction" over "appointment of guardians"
to the Denver Probate Court); § 13-9-103(1), C.R.S. 2016
(Denver Probate Court "has original and exclusive
jurisdiction" over "[t]he granting of letters . . .
of guardianship" and "[t]he administration of
guardianships of minors"); § 15-10-302(2), C.R.S.
2016 (Denver Probate Court "has full power to make
orders, judgments, and decrees and take all other action
necessary and proper to administer justice in the matters
which come before it"). And section 15-14-204(5) does
not phrase the requirements for appointment of an emergency
guardian in jurisdictional terms. But whether framed as an
attack on the court's subject matter jurisdiction or a
mere challenge to the sufficiency of the evidence, Ms.
Dusalijeva's argument fails.
19 During the March hearing, Ms. Blumberg said, "I just
need to make sure that [Ms. Dusalijeva] has, you know, some
rights while [L.B.] is, you know, in her possession so that
she can care for [L.B.] in case of emergency or anything
else." The court agreed: "And that's exactly
what an emergency guardianship is." The court then
determined, "If we were to follow the procedures for
notice, the minor would not have anybody to be able to make
decisions and [she] would be at risk." For example,
absent appointment of a legal guardian, no one would be able
to authorize the mental health treatment for L.B. that the
court recognized she needed. Therefore, the court reasonably
concluded that failing to appoint a temporary guardian for
L.B. would result in substantial harm to her health.
20 As for the court's finding that there was no other
person with authority to act for L.B., Ms. Dusalijeva's
sworn statements alone provided the court with a sufficient
evidentiary basis. She stated under oath that "there is
no one with legal authority to care for [L.B.]" and
"[t]here is no person currently acting as Guardian or
Conservator to [L.B.] in Colorado or elsewhere." Cf.
People in Interest of N.D.V., 224 P.3d 410, 414
(Colo.App. 2009) (when mother admitted fact of child being
neglected or dependent, and, under section 19-1-104(1)(b),
C.R.S. 2016, a juvenile court's subject matter
jurisdiction in dependency or neglect cases is based on the
fact of the child being dependent or neglected, the
court's acceptance of her admission established the
essential factual predicate for the court's exercise of
21 Ms. Dusalijeva's subsequent assertion, which she
repeats on appeal, that she "had guardianship over L.B.,
per Colorado and Latvian law, " was arguably waived by
her prior sworn admissions to the contrary. But even if it
was not waived, it fails. Though Ms. Dusalijeva is correct
that a testamentary appointment is generally effective upon
the death of the appointing parent, the person designated
must timely petition the court to confirm the appointment.
§ 15-14-202(4); In re R.M.S., 128 P.3d 783, 785
(Colo. 2006). As discussed below, not only did Ms. Dusalijeva
not accept her appointment within the thirty-day time period
required by the statute, she expressly relinquished that
priority before the court. Further, and as discussed more
fully below, the record does not show a valid prior
appointment under Latvian law.
22 In sum, the court had jurisdiction under section
15-14-204(5) on March 12, 2015.
23 When Ms. Dusalijeva and Ms. Blumberg petitioned the
probate court for an extension of the temporary appointment
pursuant to section 15-14-204(4) on May 4, 2015, nothing in
their petition indicated that any facts on which the probate
court had based its March appointment had changed. The
co-guardians said only that an extension was necessary to
prevent a lapse in legal authority ...