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In re L.B.

Court of Appeals of Colorado, Fourth Division

January 12, 2017

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.

         City and County of Denver Probate Court No. 15PR30332 Honorable Elizabeth D. Leith, Judge Honorable Ruben M. Hernandez, Magistrate

          Law Offices of Stan Epshtein, Stan Epshtein, John Bellinger, Denver, Colorado, for Petitioner-Appellant

          Jaudon & Avery LLP, David H. Yun, Denver, Colorado, for Petitioners-Appellees and Appellees


          J. JONES, Judge

          ¶ 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.

         I. Background

          ¶ 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' death.

         ¶ 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 Denver.

         ¶ 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.

          II. Discussion

         ¶ 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.

          A. 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.

         1. 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).

          2. Analysis

         a. Temporary Jurisdiction Under Sections 15-14-204(5) and 14-13-204(1)

         i. Section 15-14-204(5)

         ¶ 15 Ms. Dusalijeva contends the probate court lacked jurisdiction on the three occasions it temporarily appointed her and Ms. Blumberg as co-guardians. We disagree.[1]

         ¶ 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 the minor.

         (1) 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 either requirement.

         ¶ 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.[2] 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 its jurisdiction).

         ¶ 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.

         (2) May 6, 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 ...

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