Matter of REH

25CA0331 Matter of REH 05-21-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0331
Kit Carson County District Court No. 21PR30024
Honorable Justin B. Haenlein, Judge

In the Matter of R.E.H., Ward,

Melissa Carlson,

Appellant,

v.

R.E.H.; Theresa Lambert; and Felicia Hielscher,

Appellees.

ORDERS AFFIRMED

Division III
Opinion by JUDGE KUHN
Dunn and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 21, 2026

Melissa Carlson, Pro Se

Randa Davis-Tice, Guardian Ad Litem, for R.E.H.

Theresa Lambert, Pro Se

Felicia Hielscher, Pro Se
¶1 In this guardianship case, former guardian, Melissa Carlson,

appeals the district court’s orders denying her motion to relocate

the ward, R.E.H.; removing her as guardian; and establishing a

schedule for visits with R.E.H. We affirm.

I. Background

¶2 R.E.H. is an at-risk adult with a developmental disability. For

more than thirty years, R.E.H. has been a full-time resident of an

assisted living facility.

¶3 In July 2021, Carlson, who is R.E.H.’s sister, filed a petition to

be appointed as R.E.H.’s emergency guardian. The district court

granted the motion to ensure that R.E.H.’s “best interests, safety,

and medical issues [were] being advanced.” Felicia Hielscher,1 who

is R.E.H.’s half-sister, later objected to Carlson’s petition and

claimed that Carlson provided the court with “information that was

not true about the relationship between Felicia and [R.E.H.]” to

support Carlson’s appointment as emergency guardian.

1 To avoid confusion between those who share a last name, we will

refer to Felicia Hielscher by her first name. We do not mean any
disrespect by doing so.

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¶4 The district court scheduled a hearing to determine R.E.H.’s

guardianship for November 8, 2021 — the date Carlson’s emergency

guardianship expired.

¶5 At that hearing, Carlson alleged that Felicia mistreated R.E.H.

and asked that he be “protected from her.” After considering

several witnesses’ testimony, the district court appointed Carlson as

R.E.H.’s permanent guardian.

¶6 In 2024, Carlson filed a motion to relocate R.E.H. to Grand

Junction. Carlson claimed that, if he lived in Grand Junction,

R.E.H. would be close to family and “would have a nicer and cleaner

living environment” than he had at the assisted living facility. The

assisted living facility objected to Carlson’s motion as an interested

party. It claimed that R.E.H. was a “beloved member of the

community,” and that he was “unfairly caught in the middle of a

family dispute between two sisters who are fighting for control and

not always focused on [R.E.H.] and [his] best interest.”

¶7 Felicia and Theresa Lambert, who is R.E.H.’s mother, also

objected to Carlson’s motion. They claimed that R.E.H. “has come

very far” at the assisted living facility and that Burlington is his

“safe haven” and a place that he has called home for thirty-six

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years. Felicia then filed a motion to appoint a guardian ad litem for

R.E.H., and Lambert filed a motion to set a visitation schedule.

Carlson objected to both motions.

¶8 The court ultimately appointed Randa Davis-Tice, an attorney

in Lamar, as R.E.H.’s guardian ad litem. The district court

scheduled a hearing to address Carlson’s motion to relocate and

Lambert’s motion to set visitation.

¶9 Before the hearing, Felicia and Lambert filed an emergency

motion to remove Carlson as R.E.H.’s guardian. The district court

scheduled that motion to be heard alongside the other two motions

at the hearing.

¶ 10 After the hearing on all three motions, the district court issued

an order on October 17, 2024. The court denied Carlson’s motion

to relocate R.E.H. to Grand Junction. The court explained that,

while it had “significant concerns regarding [R.E.H.’s] living

situation, [it could not] overlook the mental strain that a move

would bring [R.E.H.].” The district court also stated that it was

“concerned with the interaction [and animosity] between all three

family members.” The court therefore ruled that it was in R.E.H.’s

best interests to appoint “a successor guardian [who] is an

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independent party with the ability to mediate disputes between the

parties.” The court appointed Carla Foth, a longtime friend of

R.E.H., as successor guardian.

¶ 11 Finally, the district court ruled that “[b]ecause of the

animosity between the parties[,] . . . a set visitation schedule is

appropriate,” and on January 30, 2025, the district court set a

visitation plan for the parties.

¶ 12 Carlson now appeals.

II. Analysis

¶ 13 Carlson contends that the district court’s decisions were

“clearly unfair, unreasonable[,] and not in the best interest of

[R.E.H.].” She asks this court to (1) permit R.E.H. to relocate to

Grand Junction; (2) remove Foth as R.E.H.’s guardian and appoint

Carlson and Paula Mae Hielscher, another one of R.E.H.’s sisters,

as his joint guardians; and (3) reverse the district court’s visitation

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order.2 Davis-Tice, Felicia, and Lambert counter that we lack

jurisdiction to hear this case. They also ask us to impose sanctions

against Carlson for not abiding by the Colorado Appellate Rules and

for failing to serve her opening brief on all the other parties. We

address the jurisdictional contention first, then we consider

Carlson’s contentions in turn, and finally, we address sanctions.

A. Jurisdiction

¶ 14 Davis-Tice, Felicia, and Lambert contend that Carlson’s notice

of appeal was untimely, and, therefore, we lack jurisdiction to hear

this appeal. We disagree.

¶ 15 A notice of appeal must be filed with the appellate court

“within [forty-nine] days after entry of [a] . . . [final] order being

appealed.” C.A.R. 4(a)(1). Here, the court entered its first order on

October 17, 2024. In that order, the district court denied Carlson’s

2 Carlson also summarily alleges that the district court judge was

biased — specifically, that he had “close friendships” with certain
parties involved in the case, he was temporarily suspended after he
entered the orders in the case, and he later resigned from office.
However, this claim is underdeveloped. Carlson does not cite to the
record or case law to support her argument. Thus, we will not
address this claim. See Antolovich v. Brown Grp. Retail, Inc., 183
P.3d 582, 604 (Colo. App. 2007) (declining to address
“underdeveloped arguments”).

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motion to relocate R.E.H. and granted Felicia and Lambert’s motion

to remove Carlson as guardian and Lambert’s motion to set a

visitation schedule. The court declined to set the visitation

schedule “without the involvement of the new guardian,” however.

Instead, it instructed the parties to work with the new guardian and

submit a visitation schedule for the court’s approval.

¶ 16 The court then issued its second order on January 30, 2025,

which fully resolved the issues in these motions and set a visitation

schedule. Carlson filed her notice of appeal on February 21, 2025,

twenty-two days after the court entered the January 30 order.

¶ 17 After receiving the notice of appeal, this court issued an order

to show cause directed to this issue. A motions division discharged

the show cause order and accepted the notice of appeal as timely

filed after reviewing Carlson’s response. Although we are not bound

by the motions division’s decision, see Chavez v. Chavez, 2020 COA

70, ¶ 13, given the facts we detail above, we see no reason to revisit

its decision here.

B. Applicable Law and Standard of Review

¶ 18 The Colorado Probate Code grants district courts broad

authority “to make orders, judgments, and decrees and take all

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other action necessary and proper to administer justice in the

matters which come before it.” § 15-10-302(2), C.R.S. 2025. This

includes the court’s power under section 15-14-315(1)(b), C.R.S.

2025, to limit a guardian’s power to establish a ward’s “place of

custodial dwelling.”

¶ 19 A court can also remove a guardian “for cause at any time.”

§ 15-10-503(3), C.R.S. 2025; see § 15-14-318(4), C.R.S. 2025. One

basis for “removal of a [guardian] exists when . . . [r]emoval would

be in the best interests of the [guardianship].” § 15-10-503(3)(c)(I);

see also § 15-10-201(19), C.R.S. 2025 (defining “fiduciary” to

include a guardian); § 15-10-501(2)(b), C.R.S. 2025 (defining

“estate” to include a guardianship).

¶ 20 The court can also set a visitation schedule under section

15-10-302(2), which authorizes it to make any “necessary and

proper” orders to administer justice in cases filed under the

Colorado Probate Code.

¶ 21 We review for an abuse of discretion a district court’s exercise

of its broad powers related to the interests of a protected person.

See Arguello v. Balsick, 2019 COA 20M, ¶ 13 (“[W]e review a district

court’s appointment of a guardian for an abuse of discretion.”); see

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also Sweeney v. Summers, 571 P.2d 1067, 1070 (Colo. 1977) (“[T]he

[district] court has a broad discretion in all matters relating to

protected persons . . . .”). A court abuses its discretion if its ruling

is manifestly arbitrary, unreasonable, or unfair, or if the court

misconstrues or misapplies the law. Arguello, ¶ 13. “We review a

court’s factual findings . . . for clear error. A court’s factual findings

are clearly erroneous only if there is no support for them in the

record.” Van Gundy v. Van Gundy, 2012 COA 194, ¶ 12 (citations

omitted).

¶ 22 Although Carlson, Felicia, and Lambert are all pro se, that

status “doesn’t affect our analysis. . . . [P]ro se parties must comply

with procedural rules to the same extent as parties represented by

attorneys.” Adams v. Sagee, 2017 COA 133, ¶ 10. We broadly

construe pro se parties’ filings “to ensure that they are not denied

review of important issues because of their inability to articulate

their argument like a lawyer.” Johnson v. McGrath, 2024 COA 5,

¶ 10 (quoting Jones v. Williams, 2019 CO 61, ¶ 5). “It is not this

court’s role, however, to rewrite a pro se litigant’s [briefs]. Nor may

we act as an advocate for a pro se litigant.” Id.

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C. Relocation

¶ 23 Carlson contends that the district court erred by denying her

motion to relocate R.E.H. to Grand Junction. She also argues that

although the court cited section 15-14-315 as the statute governing

her request to relocate R.E.H., that statute does not apply because

she did not seek to move R.E.H. out of state.

¶ 24 As Carlson points out, the October 17 order states that

“[p]ursuant to [section 15-14-315], the [c]ourt has the authority to

authorize the relocation of the ward.” Section 15-14-315(1)(b)

states that a guardian can only “establish or move the ward’s place

of dwelling outside this state upon express authorization of the

court.” (Emphasis added.) It is understandable that Carlson may

be confused about the scope of the court’s authority given the use

of the word “authorize” in the October 17 order and in section

15-14-315(1)(b).

¶ 25 However, section 15-14-315 outlines a guardian’s general

powers. One of these powers is “establish[ing] the ward’s place of

custodial dwelling.” § 15-14-315(1)(b). And it’s true that a

guardian can “only establish or move the ward’s place of dwelling

outside this state upon express authorization of the court.” Id. But

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this is a limitation on the guardian’s authority, not the court’s. And

the guardian’s authority to “establish the ward’s place of custodial

dwelling” — along with all other guardianship powers — may be

“otherwise limited by the court.” § 15-14-315(1). Accordingly, the

court had the authority to place limits on Carlson’s power to

relocate R.E.H.

¶ 26 As to whether the district court abused its discretion when it

denied Carlson’s motion to relocate, we discern no error. In

determining that it was in R.E.H.’s best interests to remain in

Burlington, the district court considered and weighed the testimony

about R.E.H.’s current living situation against the effect of

relocating R.E.H. to a new community. The court articulated its

significant concerns with the treatment that R.E.H. had received at

his current assisted living facility. For example, the court cited a

“number of incidents where fecal matter . . . [was] found either on

[R.E.H.’s] clothing or on other furniture in [R.E.H.’s] home. There

have also been instances where the cleanliness of [R.E.H. himself,

his] room[,] and surrounding area [were] of concern.” However, the

court was also concerned about the “mental strain” that a move to

Grand Junction would have on R.E.H. Not only had R.E.H. resided

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at his current assisted living facility for thirty-six years, but his

family, his guardian and friend Foth, and his community were in

Burlington. The court also found Davis-Tice credible when she

testified that R.E.H. wanted to remain in Burlington.

¶ 27 Carlson also asserts that the court ignored testimony from her

and one of R.E.H.’s caseworkers at the October 15, 2024, hearing

regarding the relocation, guardianship, and visitation issues. But

Carlson didn’t provide a transcript of that hearing. The court

reporter’s affidavit reveals that the electronic recording of those

proceedings was not usable. And Carlson did not attempt to

reconstruct the missing record. See C.A.R. 10(e).

¶ 28 In the absence of a transcript, we must presume that the

district court’s findings are supported by the record. In re Estate of

Smith, 718 P.2d 1069, 1074 (Colo. App. 1986) (“Where no transcript

of testimony is before this court, we must presume that the findings

of . . . the [district] court were supported by the evidence.”). “A

party cannot overcome a deficiency in the record by statements in

the briefs.” McCall v. Meyers, 94 P.3d 1271, 1272 (Colo. App.

2004). And to the extent that Carlson takes exception with the

court’s credibility determinations or how it weighed conflicting

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evidence, the resolution of those matters was within the province of

the district court as the fact finder. People in Interest of Ramsey,

2023 COA 95, ¶ 23.

¶ 29 Because the district court carefully weighed the evidence for

and against relocating R.E.H., and we must presume that the

transcript would support the court’s factual findings, we discern no

error in the court’s decision to deny the motion to relocate.

D. Guardian

¶ 30 Carlson also contends that the court erred by removing her as

guardian because she took her responsibilities as R.E.H.’s guardian

seriously, maintained consistent contact with R.E.H., and never

acted against R.E.H.’s best interests.

¶ 31 Under section 15-14-318, a court may remove a guardian at

any time for cause. Here, the court concluded that it was in

R.E.H.’s best interests to remove Carlson as guardian and to

appoint a successor guardian. Specifically, the court concluded

that it would be in R.E.H.’s best interests “to appoint a successor

guardian [who] is an independent party with the ability to mediate

disputes between the parties and [who] can limit interactions

between the parties as much as possible.”

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¶ 32 Underlying the court’s conclusion was its finding — based on

the parties’ behavior at the hearing “as well as previously” — that

“there is significant animosity between the parties.” The court

noted that the operator of the proposed host home in Grand

Junction testified that “[e]veryone in the room s[aw] [R.E.H.] as a

tool,” and the court found “that all three family member[s’]

interactions are impacted to a certain extent by their desire to hurt

the other parties.”

¶ 33 The record supports the court’s finding that previous court

proceedings revealed significant animosity among the parties.

Testimony at the original guardianship hearing revealed that

Carlson and Felicia have a long history of conflict: Carlson admitted

at that hearing that the two had a rocky relationship. And Felicia

claimed that the sisters’ relationship “went south” when they were

younger, and since then, Carlson had fabricated stories about her.

Additionally, in Carlson’s opening brief, she claims that during a

“routine phone call,” Felicia said she hated Carlson and “want[ed]

nothing more to do with [her].” Again, we must presume that the

transcript of the relocation, guardianship, and visitation hearing

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would have supported the court’s findings with respect to this

claim, as well. See In re Estate of Smith, 718 P.2d at 1074.

¶ 34 We therefore conclude that the district court’s findings are not

clearly erroneous. And given these findings, we perceive no abuse

of discretion in the order removing Carlson as guardian and

appointing an independent successor guardian.

E. Visitation Plan

¶ 35 Lastly, Carlson contends that the district court erred by

ordering a visitation plan. She specifically argues that R.E.H.

should be able to choose who he spends his time with, that “[t]he

parties [who] have chose[n] to spend little to no time with [R.E.H.]

g[o]t awarded the most visitation time,” and that the visitation plan

limited the time that R.E.H.’s family members in Grand Junction —

three sisters, a brother-in-law, a nephew, and a niece — could

spend with R.E.H., given that the drive from Burlington to Grand

Junction is seven hours. Again, we discern no error.

¶ 36 According to the district court, it implemented the visitation

schedule to protect R.E.H.’s “health, welfare, emotional wellbeing,

and happiness.” The court explained that the plan was not

intended to “restrict contact between [R.E.H.] and his family, . . .

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[but was instead] meant to provide a long-term structure on which

[R.E.H.] [could] rely.” The schedule listed Carlson as one party and

Felicia and Lambert as the other party. For holidays like Easter,

Thanksgiving, and Christmas, the court evenly split the parties’

visitation rights, with each party having visitation on such dates

every other year. The parties had the same visitation schedule on

R.E.H.’s birthday. However, only Carlson received visitation time on

Memorial Day and Labor Day. And only Felicia and Lambert

received visitation time on Independence Day (which also falls near

Lambert’s birthday), Mother’s Day, and Logan County Fair days.

¶ 37 The court recognized that no party would be “fully satisfied”

with the schedule. The court also noted that the time allocated to

each party was not mandatory but, rather, “available time with

[R.E.H.]” If the parties wished to spend time with R.E.H. outside of

the plan “during daytime hours, and within the county of Kit

Carson, [the assisted living facility] [was] to be contacted no less

than [six] hours in advance to determine R.E.H.’s availability.”

¶ 38 We perceive no abuse of discretion in the district court’s

visitation schedule. See Sweeney, 571 P.2d at 1070. The court

considered the proposed visitation schedule that Davis-Tice

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submitted and the “case file, [the court’s] findings and orders, the

realities of the distance between parties, . . . and [most importantly,

R.E.H.’s] best interests.”

¶ 39 When crafting the visitation schedule, the court properly

considered the parties’ testimony and priorities. For instance, the

court allocated Lambert visitation time on Mother’s Day and her

birthday. And it allocated Felicia and Lambert visitation time

during the Logan County Fair, because testimony indicated that

they took R.E.H. to the fair each year. Finally, the schedule is not

mandatory and can be temporarily changed if the parties come to a

mutual agreement in writing. Further, the order does not restrict

R.E.H. from choosing with whom he wants to spend his time but,

rather, offers him a structure that he could rely on.

¶ 40 In light of the district court’s consideration of the evidence, the

parties’ expressed priorities, and R.E.H.’s best interests, the court’s

visitation schedule is not manifestly arbitrary, unreasonable, or

unfair. See Arguello, ¶ 13. Thus, the court did not abuse its

discretion when it adopted the schedule.

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III. Request for Sanctions

¶ 41 Davis-Tice, Felicia, and Lambert note that Carlson “failed to

use the correct [notice of appeal] form” when she filed her appeal.

Davis-Tice argues that because Carlson used the incorrect notice of

appeal form and the contents of her appellate brief did not comply

with the Colorado Appellate Rules, the appeal is frivolous and we

should sanction Carlson under C.A.R. 38(b). Davis-Tice also asks

us to dismiss the appeal and grant attorney fees to the assisted

living facility’s attorney. Felicia and Lambert ask for double costs

as a sanction for Carlson’s failure to serve her opening brief on

Felicia.

¶ 42 An appeal can be deemed frivolous as filed or frivolous as

argued. Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App.

2006). As relevant here, an “appellant’s misconduct in arguing the

appeal may be such as to justify holding the appeal to be ‘frivolous

as argued.’” Id. (citation omitted). Under C.A.R. 38(a), we can

“dismiss an appeal . . . or impose other sanctions [we] deem[]

appropriate, including attorney fees, for the failure to comply with

. . . the[] appellate rules.”

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¶ 43 Although Carlson made errors in form selection, record

citation, and service, we conclude that her appeal is not frivolous as

argued. Carlson is a pro se party, and while she must comply with

the appellate rules, we don’t perceive her procedural missteps as

constituting misconduct. Carlson substantially complied with

C.A.R. 28 and C.A.R. 32(h). While she failed to use headings and

make clear and concise arguments, Carlson did present an

argument for each issue and briefly concluded with “the precise

relief sought,” in compliance with C.A.R. 28(a)(8).

¶ 44 Davis-Tice also argues that we should dismiss Carlson’s

appeal because she failed to serve her opening brief on Davis-Tice.

It is true that C.A.R. 25(c) requires that “[c]opies of all documents

filed by any party . . . be served by a party or person acting for that

party on all other parties to the appeal or review.” While Carlson

was required to serve the opening brief on Davis-Tice, it appears

that Carlson served the opening brief on some of the other parties,

but not Davis-Tice. However, we know that Davis-Tice received

actual notice of the opening brief because she filed a timely answer

brief. As a general principle, “sanctions should be directly

commensurate with the prejudice caused to the opposing party.”

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Trattler v. Citron, 182 P.3d 674, 682 (Colo. 2008). Davis-Tice does

not allege prejudice from the failure of service, and we do not

perceive any. So there is no basis to dismiss the appeal as a

sanction for Carlson’s failure to serve one of the parties.

¶ 45 Davis-Tice further asks for attorney fees for the assisted living

facility. But Davis-Tice is not counsel for the assisted living

facility — which did not appear in this appeal — and she cannot

request attorney fees on its behalf. C.A.R. 38(b) (“If the appellate

court determines that an appeal . . . is frivolous, it may award

damages . . . , including attorney fees, . . . to the appellee or cross-

appellee.” (emphasis added)).

¶ 46 As for Felicia and Lambert, they “ask[] to be awarded damages

of single or double costs of all expenses related to the appeal”

because Carlson failed to use the correct form and failed to serve

Felicia. We deny the request for double costs as a sanction for the

same reasons we deny the similar sanctions requests discussed

above. Accordingly, we deny all the requests for sanctions.

¶ 47 However, because we affirm the orders, costs are taxed against

Carlson. See C.A.R. 39(a)(1). Any party seeking to recover costs

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against Carlson may do so in the district court by following the

procedure set forth in C.A.R. 39(c).

IV. Disposition

¶ 48 The orders are affirmed.

JUDGE DUNN and JUDGE LIPINSKY concur.

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