In the Matter of D. Tsosie

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In the Matter of:

DENNIS TSOSIE, An Adult.

No. 1 CA-CV 22-0628
FILED 8-31-2023

Appeal from the Superior Court in Coconino County
No. S0300GC202200042
The Honorable Stacy Lynn Krueger, Judge

AFFIRMED

COUNSEL

Coconino County Attorney’s Office, Flagstaff
By Paul Garns
Counsel for Respondent/Appellant

Flagstaff City Attorney, Flagstaff
By Robert W. Brown
Counsel for Petitioner/Appellee
 TSOSIE v. COCONINO COUNTY
Opinion of the Court

OPINION

Judge Anni Hill Foster delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

F O S T E R, Judge:

¶1 This is an appeal from an order appointing the Coconino
County Public Fiduciary to serve as the guardian for an incapacitated
person based on a petition by a city prosecutor. For the following reasons,
the ruling is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Dennis Tsosie, a homeless resident of Flagstaff diagnosed
with various behavioral health issues, has a long record of criminal conduct.
In a 2021 criminal proceeding, he was found incompetent and not restorable
under Arizona Rule of Criminal Procedure 11. After he was released, Tsosie
was again arrested numerous times for various offenses.

¶3 Because Tsosie had been arrested many times and deemed
not restorable, the City of Flagstaff Prosecutor initiated a guardianship
action under A.R.S. § 13-4504(B) in May 2022. The Prosecutor requested that
the Public Fiduciary be named guardian for Tsosie since no other person
was “willing and able to serve.” In response, the superior court issued an
order appointing a health professional and a court investigator to provide
a report to the court regarding the Prosecutor’s request. The court also
appointed counsel to represent Tsosie. Following an evaluation, the court
investigator agreed with the Prosecutor that guardianship was necessary
and that the Public Fiduciary was the only potential guardian. Similarly,
the appointed health professional, a doctor, concluded that, “It is clinically
the least restrictive intervention for Mr. Tsosie to be appointed a guardian.”

¶4 In July 2022, the superior court held a hearing where, based
on the reports, it determined that Tsosie was incapacitated. The court
continued the matter to allow the Public Fiduciary to be heard.
Subsequently, the Public Fiduciary conducted its own assessment of Tsosie.
It opposed the court’s appointment, arguing in a written memorandum and
at a hearing that guardianship was inappropriate and the Public Fiduciary
had the discretion to decline to serve. After considering the briefing and

2
 TSOSIE v. COCONINO COUNTY
Opinion of the Court

arguments, the court reiterated its incapacity finding, found guardianship
necessary, found that the Public Fiduciary was the only potential guardian,
and concluded that the Public Fiduciary could not avoid appointment
because of those findings.

¶5 The Public Fiduciary appealed from the order, arguing that
Vanderheiden v. Superior Court, 182 Ariz. 370 (App. 1994), precluded the
court from ordering the appointment. This Court has jurisdiction under
A.R.S. § 12-2101(A)(9).

DISCUSSION

¶6 The Public Fiduciary does not challenge the superior court’s
findings regarding Tsosie’s need for guardianship and the unavailability of
other potential guardians. Rather, the Public Fiduciary contends that the
court cannot force it to serve as a guardian and that the Public Fiduciary
may decline an appointment. The Public Fiduciary is incorrect.

¶7 Section 14-53031 of the Arizona Revised Statutes provides the
procedure required to petition, and for a court to appoint, a guardian for an
incapacitated person. Subsections C and D provide the requirements for
determining incapacity. A.R.S. § 14-5303(C), (D). The statute allows any
person to petition for guardianship; a court can consider several categories
of persons to serve as guardians, such as parents or siblings. A.R.S. §§ 14-
5303(A), -5311(B). But a court can also consider appointing a Public
Fiduciary. A.R.S. § 14-5311(B)(11). Section 14-5602(A) directs that, if “there
is no person or corporation qualified and willing to act” as guardian, the
court “shall appoint a public fiduciary.”

¶8 The record presented supports the court’s conclusion that no
other qualified person or corporation could be located to serve as guardian.
The word “shall” typically indicates a mandatory provision. See State ex rel.
Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 132, ¶ 19 (2020) (“The term
‘shall’ is usually mandatory.”). The statute uses mandatory language
regarding the appointment of the public fiduciary, and permissive
language regarding those actions which may be taken by the public
fiduciary after appointment. Compare A.R.S. § 14-5602(A) (“The court shall
appoint a public fiduciary….”) with A.R.S. § 14-5602(C) and (D) (“The
public fiduciary may” apply for benefits and conduct investigations.). In
this context, to treat “shall” as permissive would ignore the plain statutory

1 This Court notes that A.R.S. § 14-5303 was amended by 2023 Ariz. Sess.

Laws, ch. 195, § 6. The amendment does not relate to the issues in this case.

3
 TSOSIE v. COCONINO COUNTY
Opinion of the Court

text. See Garcia v. Burler in and for County of Pima, 251 Ariz. 191, 195, ¶ 16
(2021) (noting the use of “may” and “shall” in the same statute indicates the
legislature intended permissive and mandatory interpretations to those
respective words.). Moreover, the public fiduciary’s proposed
interpretation would create an absurd result, which this Court must not do.
Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 554 (1981); In re Estate
of Zaritsky, 198 Ariz. 599, 603, ¶ 11 (App. 2000). Should this Court read the
appointment statute as permissive, it would eviscerate the statute’s plain
purpose of ensuring that all who need a guardian receive one. Cf. In re
Guardianship of Cruz, 154 Ariz. 184, 185–86 (App. 1987) (holding that where
the court made findings to support the mandatory appointment of a
guardian for a minor under §§ 14-5204 and -5207, the court had no
discretion to deny a guardianship petition). Because the record reflects that
no person or corporation was “qualified and willing to act,” the court did
not err in appointing the Public Fiduciary.

¶9 The Public Fiduciary argues that A.R.S. § 14-5305 allows it to
decline the mandatory appointment because the statute implies that the
Public Fiduciary has the choice of whether to accept the appointment.
A.R.S. § 14-5305 (“By accepting appointment, a guardian submits
personally to the jurisdiction of the court in any proceeding relating to the
guardianship that may be instituted by any interested person.”). The Public
Fiduciary also points to forms referenced in Arizona Rule of Probate
Procedure 55 that contemplate a guardian’s affirmative acceptance of the
role. But nothing in those provisions suggests that a Public Fiduciary may
withhold its acceptance in the face of a mandatory appointment as the
guardian of last resort. Although the Public Fiduciary does have the
statutory right to question the appointment and provide evidence that there
is a person “qualified and willing to act” as guardian, nothing in law allows
the Public Fiduciary to unilaterally nullify the court’s order imposing the
guardianship by simply refusing to tender acceptance. See A.R.S. § 14-5307
(providing for the substitution and resignation of guardians and orders of
termination of incapacity).

¶10 The Public Fiduciary’s reliance on Vanderheiden is unavailing.
Vanderheiden held that the superior court could not order a public fiduciary
to petition for guardianship. 182 Ariz. at 375. That case did not suggest that
the superior court cannot order the public fiduciary to serve as guardian
upon proper findings on a proper petition. Indeed, Vanderheiden specifically
noted that though no statute required a public fiduciary to file a petition,
the public fiduciary appointment statute used “mandatory language.” Id.

4
 TSOSIE v. COCONINO COUNTY
Opinion of the Court

¶11 The Public Fiduciary emphasizes Vanderheiden’s observation
that a guardian’s statutory powers may be inadequate to force the ward to
participate in treatment or education programs. Id. But the question before
this Court is whether the superior court could appoint the Public Fiduciary,
not the scope of the Public Fiduciary’s control.2 To the extent that public
fiduciaries in Arizona have read Vanderheiden to allow them to decline court
appointments as guardians, such an interpretation is incorrect.

¶12 Although a prosecutor petitioning for guardianship of an
individual facing criminal charges may raise conflict of interest issues, those
issues are not currently before this Court. Nothing precludes simultaneous
proceedings under Titles 13 and 14. Moreover, the Public Fiduciary’s
argument that A.R.S. § 13-4521 addresses this situation is misplaced.
Section 13-4521 (effective in January 2024) addresses dangerous and
incompetent defendants who committed serious offenses, not issues
addressed in a petition for guardianship under Title 14.

¶13 A guardian’s powers and duties are governed by A.R.S. § 14-
5312 and other applicable provisions of Title 14, Chapter 5, which put the
incapacitated person’s interests first. The only issues in this case are
whether the court could order an appointment of the Public Fiduciary and
whether that appointment could be declined.

CONCLUSION

¶14 This Court holds that when the criteria for a public fiduciary’s
appointment as a guardian have been satisfied on a proper petition, the
Public Fiduciary has no discretion to decline the appointment. This Court
therefore affirms the appointment.

AMY M. WOOD • Clerk of the Court
FILED: AA
2 The Public Fiduciary contends that § 13-4521’s new civil commitment

standard provides the proper mechanism for ensuring that dangerous and
incompetent criminals receive proper treatment. But again, the scope of a
guardian’s control over a ward’s medical or psychological treatment needs
are not at issue here.

5