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In re Spohr

Court of Appeals of Colorado, Fourth Division

November 14, 2019

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

          Fremont County District Court No. 18PR30057 Honorable Stephen A. Groome, Judge

          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

          OPINION

          MARTINEZ, JUSTICE [*]

         ¶ 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 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.

         ¶ 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 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 ...


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