SUMMARY November 14, 2019
2019COA17 1 No. 18CA1918, In Interest of Spohr
— Probate
— Persons Und er Disability
— Guardianship of Incapacitated Person
— Notice A division of the court of appeals considers whether the guardianship notice statute, section 15

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- 309, C.R.S. 2019, requires notice to the respondent by personal service of a rescheduled guar dianship 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 need s 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. 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.COLORADO COURT OF APPEALS 2019COA17 1

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 I V Opinion by JUSTICE MARTINEZ* Furman and Navarro , JJ., concur

Announced November 14, 2019

David R. Brown Law LLC, David R. Brown, Can on City, Colorado, for Appellant Brenda L. Jackson , County Attorney, Nicole L. Bartell , Assistant County Attorney, Can on City , Colorado, for Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24

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- 1105, C.R.S. 2019.1 ¶ 1 Respondent , 1 Edward William Spohr, appeals t he district court’ s order appointing the Fremont County Department of Human
Services (Department) as his guardian. We hold that th e guardianship notice statut e d id not require notice to the respondent by personal service of a rescheduled guardianship hearing because he had prope r notice of an ear lier s cheduled hearing. We also hold that the evidence was sufficient to support the district c ourt ’s de cision that the respondent’s need s could not be addressed by less
restrictive means and tha t the court did not abuse it s discretion by refusing to continue the rescheduled hearing. Thus, w e affirm

. I. Factual Background and Procedural History ¶ 2 Spohr is a seventy

- nin e
- year
- old resident at the Valley View Health Care Center (Valley View)

. Prior to this case , t he district

c ourt had appointed the Department as Spohr’s guardian. O n May 17, 2018, a prior division of this court reversed the appointment for lack of jurisdiction because the Department had failed to personally

ser ve Spohr with notice of the guardianship hearing

. Spohr v. Fremont Cty. Dep’ t of Human Servs. , 2018 COA 74, ¶ 30. T he

1 The p rotected person in a guardianship proceedings is titled “respondent” under the applicable statute

.2 Department petition ed 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 consider ed an emergency guardianship necessary . ¶ 3 The following week , o n May 24, 2018, the district court appointed a court visitor and ordered the visitor to c onduct an investigation into the allegations of the guardianship petition pursuant to section 15

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- 305(1), C.R.S. 2019. The order specified that the hearing on the g uardianship 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 p etitions, as well as a hearing notice on May 25,
2018. The hearing notice stated that th e 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.3 ¶ 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 couns el f or 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 evaluat ion be performed to evaluate his current mental health and ability to make his own decisions, and asked that the July 18 th hearing be continued so that a report on the evaluation could be completed. The court granted both requests. ¶ 7 The Department filed a nother 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 effectively4 receive a nd evaluate complex information and that a guardian was needed to ensure that his basic needs were met and to protect his
assets. ¶ 9 On Au gust 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
per formed 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 bec ause the Department failed to comply with the guardianship notice statute, section
15

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- 309 , C.R.S. 2019 . We disagree

. A. Standard of Review and Applicable Law ¶ 11 Proper notice under the g uardianship statute is a jurisdiction al 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

w hether a trial court had jurisdiction. See Dorsey & Whitney LLP v.5 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 , 201 7 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 mus t apply the statute as written.’ ” Vigil v. Franklin , 103 P.3d 322, 327 (Colo. 2004) (citations omitted). ¶ 13 Subs ection (1) of section 15

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- 309 requires a petitioner to personally serve a respondent in a guardianship proceeding and specifies th at failure to serve is jurisdic tional : 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 unless6 excused by the court, inform t he 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 sub section 309(1) ’ s personal service requirement because it did not personally serve him with notice of the August 28, 2018 , guardianship hearing

. A cknowledging 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

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- 309 does not require a petitioner to personally serve a respondent with additional notice of7 a rescheduled guardianship hearing whe n personal servi ce was initially proper

. ¶ 16 First, subs ection 309(1) only refers to a singular “notice” of “the hearing.” Failure to “ serve the respondent with a notice ” is jurisdictional. § 15

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- 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 additi onal 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 b est 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

. S ubsection 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. If8 t hese requirements are not “ substantially compl[ied] wit h, ” the trial
court loses jurisdiction t o enter a guardianship order. § 15

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- 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 liberti es, 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. R equiring 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 reasonable9 effort to secure the respondent’ s attendance at the hearing .” § 15

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- 308(1), (3) , C.R.S. 2 019

. 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 respo ndent’ s rights at the hearing, and the g eneral powers and duties of a guardian ,” among other i nformation. § 15

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- 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 serv ice 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 F or 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 c ontend s that the district court erred in appointing the Department as his guardian because the court’s order did not10 provide “ any reasoning or exploration as to why [Spohr’s] identified needs could not b e met by less restrictive means, ” as required by
section 15

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- 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 appointm ent “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 suf ficiency of the evidence appeals of rulings under
t itle 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 su ch cases, appellate courts are ‘ obligated to search the record for evidence to support the findings of fact. ’ ” Neher v. Neher , 2015 COA 103, ¶ 54 (citation s omitted); see11 Runyon , ¶ 31 (“[T] he record does not ade quately support the trial court’ s selection of [the respondent’s] guardian and [ conservator ]

. ”)

. ¶ 22 W e 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 incapacitate d person lies with the district court. § 15

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- 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

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- 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 d etail 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 Moell er v. Colo

. Real Estate Comm’ n , 759 P.2d 697, 703 (Colo. 1988) (“The brevity of a12 trial court’ s findings and conclusions alone does not determine their validity. ”)

. Nonetheless , “the findings must be sufficient to allow the reviewing court to det ermine 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

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- 311 ’s limitation on appointing a guardian only where “ident ified needs cannot b e 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 giv en only those powers needed to meet th e 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.13 ¶ 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 impair ment, 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, i t found that S pohr’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 consider ed 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

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- 311

. ¶ 29 W e also conclude that s ufficient 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 t o his numerous impairments and said that14 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 y ears ago, he fired all of his appointed home health assistants and then contact ed 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 s aid that there were no other appropriate facilities that would accept him as a resident . T he caseworker also said that Spohr’s relatives were not willing to be appointed as his guardian or l et him live with them

. The expert who performed the capacity evaluation said that Valley View w as an appropriate placement for Spohr , given his needs. ¶ 30 Thus, because “[o]ur review of the record here reveals sufficient evid ence 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) ).15 IV. The District Court Did Not Abuse Its Discretion by Denying Spohr’s Request to Continue the Hearing ¶ 31 Spohr c ontends that the district court abused i ts discretion by denying his motion to continue the August 28, 2018 , hearing because his illness prevent ed 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 , 9 97 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 , 39 6 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

. ” T here 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 fa r 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 and16 understand that probably we’re not going to be able to go all day, but we will see. Let’s just se e what we can do. T he court also took a recess during the hearing at Spohr’s request. Spohr did not ask again to continue the hearing , n or did he tell the court that he could not participate

. We cannot say in these
circumstances that the court abuse d its discretion. Id.
V. Conclusion ¶ 34 The district court’s order is affirmed.
JUDGE FURMAN and JUDGE NAVARRO concur.