Summary 2011 WY 170

Summary of Decision December 28, 2011


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Case Name: JO v. The State of Wyoming, Department of Family Services

Citation: 2011 WY 170

Docket Number: S-11-0088

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464965

Appeal from the District Court of Goshen County, Honorable Keith G. Kautz, Judge

Representing Appellant (Respondent): Mervin W. Mecklenburg, Yoder, Wyoming.

Representing Appellee (Petitioner): Gregory A. Phillips, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Jared S. Crecelius, Assistant Attorney General.

Guardian Ad Litem: Scott M. Powers, Cheyenne, Wyoming.

Date of Decision: December 28, 2011

Facts: Appellant challenges the juvenile court’s order directing the Department of Family Services (DFS) to pursue a termination of Appellant’s parental rights. She contends there was insufficient evidence to support a change in the permanency goal for her children. She also claims that DFS failed to provide a compelling reason for recommending termination of her parental rights.

Issues: Whether the Department of Family Services was required to provide a compelling reason for recommending a permanency plan of termination over relative guardianship under Wyo. Stat. 14-3-431(j). Whether the trial court’s order that termination proceedings be filed against the Mother lacked evidentiary support.

Holdings: Appellant contends that the court’s order was improper because it was based upon Appellant’s predicted behavior, rather than upon current conditions.” There is no support for Appellant’s argument. The bulk of the testimony presented at the permanency hearing related to Appellant’s demonstrated inability to care for her children and her counterproductive participation in the original permanency plan of reunification. Additionally, the court also heard testimony from a psychologist who met with Appellant on at least three occasions. The psychologist determined that Appellant had “chronic psychiatric issues that . . . cause her to be extremely emotionally reactive and to distort reality and make poor judgments.” When asked whether Appellant had the capacity to be a suitable parent, the psychologist stated that she had concluded that Appellant had “limited capacity at this time for assuming the roles of responsibility required for becoming a safe and effective parent.” Another psychologist was called by Appellant during the hearing. The second psychologist conducted a test of Appellant’s intelligence that indicated a reduced level of cognitive capacity. When asked whether that would present parenting challenges, he responded as follows: “It would. Reduced levels of intellectual functioning are often accompanied with reduced judgment and reduced social understanding. I believe it’s likely that some of [Appellant’s] – that a component of her difficulties relating to others and understanding others is probably due in part to her reduced intellectual functioning.” Further, with regard to Appellant’s general parenting ability, he stated that “I do have concerns just based on my interview and testing with her, and because of her severe difficulties I would question whether she can provide adequate parenting independently to her children.”

Considering the testimony at the permanency hearing relating to (1) Appellant’s irregular attendance and lack of engagement at scheduled visitations with her children, (2) her inability to improve her parenting skills over fourteen months of sustained DFS assistance, and (3) mental health problems that were unlikely to resolve through medical intervention “within a time frame that would be appropriate for her children to have to wait, if ever,” there was sufficient evidence to support the juvenile court’s determination that reunification with Appellant was not in the best interests of Appellant’s children. Further, Appellant chose not to testify at the permanency hearing, but conceded through counsel that she was “not able to reunify with her children at this time.” Based upon the evidence, it cannot be concluded that the juvenile court abused its discretion.

Appellant also claims that clear and convincing evidence was needed to support the juvenile court’s decision on permanency. She contends that the permanency order impinges on her parents’ fundamental rights in the child/grandparent relationship and that, because the rights of extended family members are not addressed in subsequent proceedings relating to termination of parental rights, the court’s determination at a permanency hearing must satisfy a higher evidentiary standard.

The children’s relationship with their grandparents was a proper factor for the juvenile court to consider in determining the appropriate permanency goal for Appellant’s children. However, there is nothing in Wyo. Stat. 14-3-431 to indicate that this factor, or the rights of extended family members in general, required the court to apply a higher evidentiary standard at the permanency hearing. Further, Appellant’s right to familial association does not demand application of a clear and convincing evidentiary standard because this is not an appeal from a termination of Appellant’s parental rights. As the juvenile court correctly noted in its response to Appellant’s claim at the permanency hearing, “The Court is not called upon to make findings by clear and convincing evidence in this hearing. This is not a termination of parental rights hearing. It is a hearing to determine what is the appropriate permanency goal for the children in this case.” Indeed, a termination of parental rights proceeding is a civil action filed in district court, separate and distinct from other child protection proceedings held in juvenile court.

Appellant also ignores the fact that her parents are not parties to this action. Similarly, in this context, Appellant is not in a position to assert the grandparents’ right to familial association as a justification for the application of a higher evidentiary burden at the permanency hearing.

Finally, Appellant claims that the court improperly neglected specific sections of Wyoming’s Child Protection Act in issuing the permanency order. First, relying on Wyo. Stat. Ann. § 14-3-431(j), Appellant contends that the juvenile court’s decision should be overturned because DFS “failed to provide a compelling reason for recommending a permanency plan of termination over relative guardianship. Appellant concedes that the permanency plan was changed to “termination and adoption.” Under Wyo. Stat. 14-3-431(j), DFS is not required to provide a “compelling reason” for recommending a permanency plan of adoption over legal guardianship. Rather, as the statute clearly indicates, DFS is required to provide a compelling reason for “establishing a permanency plan other than reunification, adoption or legal guardianship.” Appellant’s arguments to the contrary are unavailing. Second, relying on Wyo. Stat. 14-3-429(a)(ii), Appellant contends that the juvenile court was required to articulate specific findings of fact supporting its decision to change the permanency plan. This statute, however, does not apply to a permanency hearing. Rather, the term “disposition,” as used in the statute, refers to the initial placement of a child following an adjudication of neglect and a disposition hearing. Accordingly, as the statute governs the initial disposition phase of a neglect action, it has no application to the present case. Furthermore, the reasons for the court’s decision to discontinue the permanency plan of reunification with Appellant are clearly set forth in the record.

Affirmed.



J. Burke delivered the opinion for the court.