Summary 2006 WY 87

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Case Name: KO V. HDH

Citation: 2006 WY 87

Docket Number: C-05-11

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Respondent): John Burman, Faculty Director, and Robert J. Percifield, Student Intern, U.W. Legal Services Program, Laramie, Wyoming.

Representing Appellee (Petitioners): Megan E. Overmann Goetz, of Pence & MacMillan, Laramie, Wyoming.

Guardians Ad Litem: Warren A. Lauer and April Jamison, of Lauer Law Office, Laramie, Wyoming.

Representing the Intervenor The State of Wyoming: Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; Ellen Rutledge, Assistant Attorney General.

Date of Decision: July 20, 2006

Issues: Whether the guardianship statute as interpreted by the district court violates substantive and procedural due process. Whether the district court entered its Order Appointing Temporary Guardians and Conservators in violation of Wyoming law. Whether the challenge to the appointment of Appellee Grandparents as temporary guardians is moot. Whether parental unfitness must be proved at a court hearing before a permanent guardianship is granted to a non-parent.

Holdings: The right to familial association is a fundamental right protected by both the Wyoming and the United States Constitutions. Parents enjoy a constitutionally protected fundamental right to make decisions concerning the care, custody, and control of their children. This fundamental right has been recognized as a liberty interest protected under the Fifth and Fourteenth Amendments to the United States Constitution, and is also found in Wyo. Const. art. 1, § 6, which provides, “no person shall be deprived of life, liberty or property without due process of law.”

When read properly, the guardianship statutes afford adequate procedural protections to a parent and are not constitutionally suspect. Wyo. Stat. Ann. § 3-2-102(b) requires that notice of the filing of an involuntary guardianship be given to the parents of the proposed ward and that Wyo. Stat. § 3-2-102(d) requires that notice shall be given pursuant to the Wyoming Rules of Civil Procedure. Reading these statutes and the Rules of Civil Procedure together leads to the conclusion that a petition for an involuntary guardianship, temporary or permanent, must be served upon the proposed ward’s parents. A parent will receive an opportunity to be heard because the plain language of Wyo. Stat. 3-2-106(a) requires a hearing before the appointment of a temporary guardian, satisfying due process requirements in that regard. The statutes are constitutional and afford adequate due process, if applied correctly. However, the district court did not properly apply the statutes. There is no dispute that Appellee Mother was not served with notice that complied with the Wyoming Rules of Civil Procedure. Because there was no summons, Mother was not informed of the time period she had to respond, how to respond, or what the consequences might be if she failed to respond. W.R.C.P. 4. Had she been properly served and the Wyoming Rules of Civil Procedure followed, Mother would have had time to respond before the requested relief was granted. As for the “subject to any notice” language in Wyo. Stat. 3-2-106, “any notice” does not mean no notice. Read in conjunction with the notice requirements set forth in § 3-2-102 applicable to involuntary guardianships, the notice language of § 3-2-106(a) authorizes the district court to prescribe additional or supplemental notice. As for the exception stated in § 3-2-102(b)(ii), the record is beyond dispute that prior to issuing the temporary guardianship order, the district court failed to make any finding of good cause to excuse the notice requirement. Nothing in the record suggests that good cause existed to excuse notice to Appellant Mother prior to appointing Appellee Grandparents as guardians. Appellee Mother’s procedural challenge to the temporary guardianship implicates constitutional principles as well. When a parent’s fundamental liberty interest is at stake, the State must provide parents “with fundamentally fair procedures.” Custody litigation imperils parents’ fundamental right to enjoy their children’s companionship and to direct their children’s upbringing. This peril is magnified by the difficulty of regaining physical custody once lost. The great weight of the parental liberty interest, together with the significant deprivation of that interest inherent in a loss of physical custody, entitles parents to custody procedures that meet the requisites of due process. Notice and the opportunity to be heard are unquestionably incidental to affording due process of law. Thus, a court must afford a parent notice and a meaningful opportunity to be heard before it can deny the parent custody of his or her children. The district court erred in appointing Appellee Grandparents temporary guardians without adherence to the statutory requirements regarding notice and a hearing. Without affording Mother proper notice and an opportunity to be heard, the district court’s establishment of the temporary guardianship lacked “fundamental fairness.”

A court should not hear a case where there has been a change in circumstances occurring either before or after a case has been filed that eliminates the controversy. The doctrine of mootness encompasses those circumstances which destroy a previously justiciable controversy. This doctrine represents the time element of standing by requiring that the interests of the parties which were originally sufficient to confer standing persist throughout the duration of the suit. Thus, the central question in a mootness case is whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties. A case will not be considered moot when it presents a controversy capable of repetition yet evading review. Under such a rationale two requirements must be met: (1) the duration of the challenged action must be too short for completion of litigation prior to its cessation or expiration; and (2). there must be a reasonable expectation that the same complaining party will be subjected to the same action again. In the present action, absent a finding of good cause, the temporary guardianship was statutorily limited to a maximum of one year, making it unlikely that litigation regarding the temporary guardianship could reach fruition before its expiration. Additionally, the child in question is still a minor, and it is not outside the realm of reasonable possibility that Appellee grandparents would continue to pursue guardianship. Appellant Mother’s claim does not concern a temporary circumstance that has since dissipated. She continues to be deprived of the custody of her daughter, and by this appeal she challenges how those circumstances arose. The record demonstrates that the temporary guardianship formed the basis for the district court’s decision in the permanent guardianship action that is the subject of this appeal. The district court used Appellee Grandparents’ temporary guardianship as the measuring stick of the child’s best interests, and by that measure, Appellee Mother was permanently denied the care, custody, and control of her daughter. Appellee Mother’s challenge to the temporary guardianship will not be viewed as moot where it is clear that the circumstances created by it directly impacted the permanent guardianship determination.

In the context of an involuntary guardianship proceeding where the proposed ward is a minor, a best interests of the child inquiry is not triggered until the district court determines that the minor actually needs a guardian. A child with a parent has a natural guardian and is not in need of a court-appointed guardian, unless the court determines that the child’s natural guardian is not fit. Thus, once the natural parent is deemed fit, the issue of custody is decided. In this case, the district court did not find that Appellant Mother was an unfit parent. At that point, Appellee Grandparents’ petition should have been denied. In the absence of a finding of parental unfitness, the district court’s finding that a guardianship was necessary was clearly erroneous. The district court erred by establishing the permanent plenary guardianship.

Appellee Mother did not receive the statutorily and constitutionally required notice and opportunity to be heard before the temporary guardianship of her daughter was established. Because it did not find Mother unfit as a parent, the district court’s determination that a guardianship was necessary, based solely upon a best interests analysis, was clearly erroneous. The district court’s order appointing Appellee Grandparents as guardians is reversed. The matter is remanded matter to the district court for further proceedings consistent with this opinion and for the entry of any orders necessary and appropriate to effect the termination of the guardianship.

J. Burke delivered the opinion for the court.