Summary 2011 WY 128

Summary of Decision September 14, 2011

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Case Name:  RH v. Wyo. Dep’t of Family Servs.

Citation:  2011 WY 128

Docket Number: S-11-0017

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464370

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

Representing Appellant (Respondent):  John M. Burman, Faculty Supervisor, U.W. Legal Services Program; Tracy Racicot, Student Director; and Liz Minnerop, Student Intern.  Argument by Ms. Minnerop.

Representing Appellee (Petitioner):  Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Susan K. Stipe, Senior Assistant Attorney General.  Argument by Ms. Stipe.

 Date of Decision: September 14, 2011

Facts:  Mother had three minor children, ages 9, 6 and 5, who were the subject of a neglect petition that began this case.  The three minor children were removed from their home and Mother’s care after authorities observed a number of safety and sanitation concerns in Mother’s home while executing a search warrant.  After the county attorney’s office filed a neglect petition and some identified issues were corrected, the children were returned to their home. Based upon the agreement of all parties to the matter, the juvenile court initially entered an order accepting Mother’s admission of neglect, but holding the adjudication of neglect in abeyance pursuant to the terms of a consent decree which placed the children in the custody of Mother, under the protective supervision of the Department of Family Services (DFS).  A multidisciplinary team (MDT) was also established in order to provide recommendations to the juvenile court.

Subsequently, the juvenile court found that Mother violated the terms of the consent decree.  Juvenile proceedings were reinstated, and the children were adjudicated to be neglected after the admission of the neglect was entered.  Mother retained custody of her children throughout the proceedings while under the protective supervision of DFS.  The order reinstating the proceedings authorized DFS to remove the children from Mother’s custody without a subsequent order from the juvenile court.  The court set forth a permanency plan of family preservation and ordered Mother to comply with eighteen terms and conditions to reach that goal, while the children continued to live with Mother. 

Issues continued to prevail, however, concerning Mother’s compliance with the orders of the juvenile court and concerning the welfare of the children.  Based upon these concerns, the parties met with the children’s therapist, and all agreed that it was in the best interests of the children for two of the children to have extended visitation with their grandparents, and for the other child to continue her summer visitation with her father.

The MDT met and decided to recommend that the two children continue with their grandparent visitation, and the other child be temporarily placed with her father.  Pursuant to that recommendation, the State filed a motion to change custody and placement of the minor children, and requested that the existing visitation arrangements be continued.  On the same day, the juvenile court held an already scheduled review hearing on the matter, and after hearing recommendations from the MDT members, found it was in the best interests of the children to be continued to be placed away from Mother until the hearing on the State’s motion to change custody.

The juvenile court held a two-day hearing on the State’s motion to change custody.  After hearing from both sides, and after both sides were presented an opportunity to present evidence to the juvenile court, it ruled that the minor children should not be returned to Mother at that time, and that they should remain with their grandparents and father, respectively.  Mother timely appealed.

Issues:  1) Whether the district court committed reversible error when it ordered, without notice to Mother and without conducting any evidentiary hearing, that the two children remain with their grandparents and not be reunited with Mother as had been stipulated; and the other child be placed with her father without Mother’s consent; 2) Whether the district court erred by applying Wyoming Statute § 14-3-429(a)(iv) or stated inversely, whether the district court erred by failing to apply Wyoming Statute § 14-3-405 in deciding the State’s motion to change custody and placement of the minor children after conducting an evidentiary hearing; and 3) Whether the district court’s findings of fact were supported in relevant part by “clear and convincing evidence” as required by Wyoming Statute § 14-3-429(a)(iv).

Holdings:  The Court affirmed the juvenile court.  Mother’s basic complaint is that her children were removed from her home without an evidentiary hearing.  As to the first issue, the Court found no abuse of discretion in the juvenile court’s order temporarily maintaining the placement of the children with their grandparents and father, respectively. 

As to the second issue, the Court found that the juvenile court’s conclusions of law were decided under the correct statute.  The juvenile court reasoned in its decision that the plain language of § 14-3-429(a)(iv) provides that it is to be used after an adjudication of neglect; that this statute incorporates the best interests of the child which are now of “constitutional preeminence.”  The alternative statute proposed by Mother, § 14-3-405(c), demonstrates through its plain language that it applies to emergency situations; and the relief provided in § 14-3-405(c) includes ex parte relief, an emergency order, or a search warrant, none of which was alleged as necessary in light of the two-day evidentiary hearing held in this case.

As to the final issue, the Court noted that the juvenile court held a two-day evidentiary hearing where, after hearing numerous witnesses testify, it issued detailed findings of fact and conclusions of law.  Mother’s arguments were not only heard but she was also given the opportunity to dispute the State’s evidence.  The juvenile court made 72 findings of fact to support its conclusions that both elements of § 14-3-429(a)(iv) were met. The Court examined the evidence in the light most favorable to the State and upheld the juvenile court’s findings that the statutory requirements for out of home placement were met.

The Court upheld the juvenile court’s findings of fact, conclusions of law and order directing Mother’s minor children to be placed with their grandparents and father, respectively, rather than returned to her custody.    

J. Hill delivered the opinion for the court.