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In re Spohr

Court of Appeals of Colorado, Third Division

May 17, 2018

In the Interest of Edward William Spohr, Protected Person, Appellant,
Fremont County Department of Human Services, Appellee.

          Fremont County District Court No. 16PR30060 Honorable Stephen A. Groome, Judge

          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


          TERRY JUDGE

         ¶ 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 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 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 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 ...

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