Summary 2010 WY 114

Summary of Decision issued August 10, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: JS v. MB

Citation: 2010 WY 114

Docket Number: S-09-0200

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge.

Representing JS: Donna Sheen, Cheyenne, Wyoming.

Representing MB: Richard L. Harden, Casper, Wyoming.

Facts/Discussion: JS (Father) challenged the district court’s order requiring the parties to exchange child visitation on a weekly basis when the child reaches age 5 in 2013.
Father argued that the district court abused its discretion by ordering what amounts to shared custody, although each party sought primary custody.
In this case, as per the court order, the sharing is of visitation, not of custody, the parties must operate in terms of visitation as they might if the court had ordered shared custody. When the district court’s exercise of discretion in custody matters involves splitting custody of children between parents, it must provide an explanation of its reasoning and place its findings on the record. The Court noted the district court’s order explained the reasoning and analysis in full. The Court stated the primary concern in the instant case was the extent to which the parents are able to communicate and work together to promote the child’s best interest.

Conclusion: The district court did not abuse its discretion in ordering the parties to alternate weeks with the child beginning at age five. In ordering as it did, the court simply modified the current visitation arrangement to accommodate the growing child, which is routinely done in long-term custody and visitation plans.

Affirmed.

J. Hill delivered the decision.

C.J. Kite specially concurring: The Chief Justice concurred but wrote separately to point out that the jurisprudence provides that divided custody is not favored and should not be imposed simply because both parents are equally qualified to be awarded custody. Although the Justice concurred, she stated she did not believe the case should be relied upon as indicating a deviation from the Court’s long line of cases disfavoring divided custody and requiring exceptional circumstances.

Link: http://tinyurl.com/2bwh7e7 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 28

Summary of Decision issued March 18, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

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

Citation: 2010 WY 28

Docket Number: S-09-0049

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Respondent): Jamie M. Woolsey, Casper, Wyoming.

Representing Appellee (Petitioner): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Susan K. Stipe, Senior Assistant Attorney General.

Representing Guardian ad Litem: Lori Gorseth, Casper, Wyoming.

Date of Decision: March 18, 2010

Facts: The principal effect of the order at issue here was to permanently place the children with foster parents, who had cared for the children for over one year, with the further intent that Mother's parental rights be terminated and the children adopted by the foster parents. A secondary effect was to eliminate Mother's brother and his wife, who we will refer to as Uncle and Aunt, as the alternative, "kinship" placement for the children as provided for under Wyo. Stat. § 14-3-208(a)(iii) (2009), as well as applicable federal statutes and rules and regulations of DFS.

Issues: Whether a parent whose children are in the custody of the Department of Family Services has standing to argue that the familial rights of her brother and sister-in-law have been violated by the court's permanency plan of adoption by the children's foster parents. Whether the court properly considered the best interests of the minor children when conducting a permanency hearing that resulted in an order placing the minor children outside the home despite a clear Department of Family Services Policy and Supreme Court preference that makes relative [kinship/family] placement a priority.

Holdings: Standing to sue requires a legally protectible and tangible interest at stake in the litigation. The phrase tangible interest has been equated with the phrase personal stake in the outcome. The person alleging standing must show a perceptible, rather than a speculative harm from the action; a remote possibility of injury is not sufficient to confer standing. Insofar as this appeal is concerned, Mother is on the brink of having her parental rights terminated, but that has not been accomplished yet. Wyo. Stat. Ann. § 14-3-402(a)(xvi) (2009) provides:

§ 14-3-402. Definitions.
....
(xvi) "Residual parental rights and duties" means those rights and duties remaining with the parents after legal custody, guardianship of the person or both have been vested in another person, agency or institution. Residual parental rights and duties include but are not limited to:

(A) The duty to support and provide necessities of life;
(B) The right to consent to adoption;
(C) The right to reasonable visitation unless restricted or prohibited by court order;
(D) The right to determine the minor's religious affiliation; and
(E) The right to petition on behalf of the minor.

Thus, Mother has standing in this appeal.

By law, relative/kinship families are the placement of preference for children. The Wyoming Program Improvement Plan makes relative and kinship placements high priority for children placed in out of home care. DFS shall consider relative/kinship families as the placement of preference. DFS is required to make a diligent search for such kinship placements. Relative and kinship placements are less restrictive and therefore preferable to other types of out-of-home care. A DFS caseworker is responsible for conducting an ongoing diligent search for relatives and kin for any child in DFS custody until permanency is achieved. DFS shall consider relative/kinship families as both temporary and permanent resources for children who are unable to live safely with a parent. DFS recognizes that relative/kinship families are important to a child's sense of identity, belonging, and long term connections.( The Family Services Manual, Chapter 7 Section B (RELATIVE/KINSHIP CARE AND DILIGENT SEARCH) (2008)).

The State and the GAL characterize the kinship care policies articulated by the Social Security Act and DFS as merely precatory, i.e., they are "recommended" and should be "considered." In this case the GAL and DFS claim that they did consider them and determined that they were not feasible because of the geography separating Casper, Wyoming, and Miles City, Montana. The court is unable to accept these characterizations given the high stakes in play here. Tools, resources, and an Interstate Compact on the Placement of Children are available to achieve just the result that was "preferred." The district court concluded that the outcome of this case was fixed early on in the proceedings when Mother chose to do her "reunification" work in Casper, during which time the children were placed with the Foster Parents. By the time that concluded in failure, the district court found that it was too late to go back and consider the kinship placement. The court is unable to agree with those conclusions, although it should be emphasized that the district court was remarkably professional, thorough, and patient in creating a complete record, despite the resistance to the flow of information shown by the GAL and DFS, and other factors.

In the present action. when an Interstate Compact on the Placement of Children study was done, Uncle and Aunt were given extremely high marks for their ability to take in Mother's children. Based on the authority and, as a matter of ageless tradition, as a matter of federal law, and as a matter of Wyoming law, there exists a compelling preference that what is "best" for a child in circumstances such as those presented here, is placement with nuclear or extended family members.

The order of the district court is reversed and this matter is remanded to the district court with instructions that the children be placed with their Uncle and Aunt, this to be accomplished with all deliberate speed consistent with the children's well-being/best interests and under the supervision of qualified professionals in both Wyoming and Montana, the costs of that process to be borne by DFS and Natrona County.

J. Hill delivered the opinion for the court.

J. Golden filed a dissenting opinion in which J. Burke joined. Mother has no standing to bring the issues in this appeal. At this stage of the proceedings, there will be no further attempts to reunify Mother with the children. As the majority opinion informs us, termination of Mother's parental rights is a given. Under the circumstances, Mother has no legally cognizable personal stake in the outcome of the determination of the permanency goal for the children. It is true that, until terminated, Mother retains residual parental rights, but these rights do not include a right to determine the permanent placement of the children. Certainly, it is appropriate for Mother to have a voice in the proceedings below as to her preference for permanent placement, but that is a far different concept from legal standing to bring this appeal. Further, the issues Mother presents are couched in terms of the constitutional right to familial association. Her right to familial association is not at issue in this appeal. Rather, practically, it is Uncle and Aunt's right, if any, that is at issue. Mother has no standing to present arguments on behalf of Uncle and Aunt.

Pursuant to statutory mandates, the juvenile court held a hearing to determine which placement would be in the best interests of the children. The juvenile court took great pains to ensure everyone was able to speak his piece. After the hearing, the juvenile court issued a thorough and very thoughtful order. The possibility of permanent placement with Uncle and Aunt was given full consideration. In the end, however, the juvenile court determined that the permanency plan goal should be placement of the children with Foster Parents for adoption. In doing so, the juvenile court determined all the factors did not weigh equally between the two placements. Of special concern was the age of Son. Son's young age brings into play very real psychological attachment issues. The juvenile court determined removing Son from Foster Parents would not be in his best interest. Daughter also benefitted from the stability she had found in her life with Foster Parents. Whether this Court would make the same decision in the first instance is not the question. There is nothing in the record evidence that leads to the conclusion that the juvenile court erred in this matter.

Finally, the majority opinion goes too far in outright ordering placement of the children with Uncle and Aunt. At issue in this appeal is the goal of the permanency plan. This is only the beginning of the process. Much remains to be accomplished before permanent placement of the children with Uncle and Aunt becomes a reality, not least of which is the termination of Mother's parental rights. In the meantime, circumstances may change. The juvenile court, the MDT, and the DFS should retain the flexibility to continue to protect the best interests of the children throughout the process.

J. Burke filed a dissenting opinion in which J. Golden joined. The majority opinion fails to identify or apply any standard of review. The proper standard of review is abuse of discretion. Had the majority recognized and applied this standard, it could not have concluded that reversal was warranted. The juvenile court's analysis cannot be faulted. There clearly was no abuse of discretion. The children are flourishing in their current environment. There is no legal or factual justification for this further disruption of their lives. The decision should be affirmed.

Link: http://tinyurl.com/yhuytja.

Summary 2009 WY 106

Summary of Decision issued August 24, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: In re: DMW and ALW

Citation: 2009 WY 106

Docket Number: S-08-0217

Appeal from the District Court of Hot Springs County, the Honorable Gary P. Hartman, Judge.

Representing Appellants AW and LW: W. Keith Goody, Cougar, Washington.

Representing Appellee TLW: Douglas F. Schultz and James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming.

Facts/Discussion: Grandparents appealed from the district court’s order granting permanent guardianship and conservatorship of DMW and ALW (the Boys) to TLW (Stepmother). Father and the Boys were living with Grandparents in Ohio when Father was killed in a car accident in 2007. Stepmother was living in Wyoming. Stepmother and Father were estranged at the time of his death. Stepmother was granted temporary guardianship in 2007. After a hearing in 2008, the district court ruled that Biological Mother was not fit to parent the boys and consequently, a guardian needed to be appointed. The district court concluded it was in the Boys’ best interests to appoint Stepmother as guardian.
Due process: Grandparents claimed they were entitled to notice in the case because they were the Boys’ custodians after Father died. Grandparents attempted to lump their rights in with Biological Mother’s via the Court’s decision in MEO. However, Biological Mother did not appeal from the district court’s order so the Grandparents do not have standing to assert her position. Grandparents did not cite to any authority stating that they would have the same fundamental rights as parents to notice and opportunity to be heard before a temporary guardianship may be established.
Best interests of children: Under Wyoming’s guardianship statutes, the district court may appoint a guardian for a proposed minor ward when the necessity has been proven by a preponderance of the evidence. In July 2007, Father had written a letter that included his notarized signature, giving temporary custody of the Boys to the Grandfather. The district court did not give that statement any weight. The district court is instructed to appoint the person who is best qualified and willing to serve as guardian. The district court made its decision based upon the best interests of the Boys.

Conclusion: There was ample evidence to support the district court’s findings as to the ability and willingness of the parties to parent the Boys. After a review of the district court’s record, the Court could not say that the district court’s finding that placement of the Boys with Stepmother was in their best interest was clearly erroneous.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/n8pxrx .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 44

Summary of Decision issued March 30, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Parris v. Parris

Citation: 2009 WY 44

Docket Number: S-08-0247; S-08-0248

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant Father: Daniel E. White and Rhonda Sigrist Woodard of Woodard & White, PC, Cheyenne, Wyoming.

Representing Appellee Mother: Mary T. Parsons of Parsons & Cameron, PC, Cheyenne, Wyoming.

Facts/Discussion: Father appealed from the child custody provisions of a decree and a clarified decree entered in the parties’ divorce action.

The Court focused on three areas of analysis: First, a decision letter does not constitute a judicial determination which may be considered a final order. The trial ended in April 2007 and in September 2007, the district court issued a decision letter. The living circumstances of the parties changed between then and October 2008 when the district court entered the decree in the matter. During the interim, among other motions, Father had filed a motion for reconsideration of its decision not to forbid contact between Child and Mother’s boyfriend (TM.) The Court noted the district court was free to revise its rulings prior to judgment and could have heard the pre-judgment motion to reconsider. Secondly, the circumstances that existed at the time of trial no longer existed at the time the decree was entered. The primary issue of concern – TM’s contact with Mother and Child - was exactly the opposite of what the trial testimony said it would be. Third, the district court ordered a shared custody arrangement be set in place despite the lack of evidence that the parents in the instant case could make a success of shared custody. In addition, the record did not show that a comprehensive evaluation had occurred prior to determining custody.

Conclusion: The district court abused its discretion by entering a decree containing child custody provisions that were not in the best interest of the child.

Reversed and remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/dmtcrn .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 135

Summary of Decision issued November 14, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Buttle v. Buttle

Citation: 2008 WY 135

Docket Number: S-08-0090

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant Amy: Dameione S. Cameron and Dean R. Winegar of Parsons & Cameron, PC, Cheyenne, Wyoming.

Representing Appellee Joshua: Donald A. Cole of Cole & Cole Law Firm, Cheyenne, Wyoming.

Facts/Discussion: In divorce proceedings between Amy Jean Buttle (Mother) and Joshua John Buttle (Father) the district court ordered that Mother should have primary physical custody for decision making purposes but then determined the parties should share physical custody of their four-year-old son.

Evidence of Spousal Abuse: Considering the evidence presented in the action below and the district court’s statements in their entirety, the Court held the district court did not abuse its discretion in declining to base its custody determination on the evidence of abuse. While there was no question from the evidence that the parties fought, their fights involved physical confrontations and such confrontations were contrary to the best interest of the child, the Court concluded the district court could have reasonably determined from the totality of the evidence that Mother should have primary legal custody subject to liberal visitation by Father. In determining custody in the best interest of a child, evidence of spousal abuse is only one of the factors district courts are required to consider. The Court noted that the district court is in the best position to weigh the testimony and assess the witnesses’ credibility.
Shared Custody: When a district court’s exercise of discretion in custody matters involves splitting custody of children between parents or other unconventional approaches, it must provide an explanation of its reasoning and place its findings on the record so that, upon review, the Court can be sure that a comprehensive evaluation of all relevant factors occurred prior to determining custody. The decree shed no light on the district court’s reasoning for its findings. The Court’s review of the district court’s order is limited to deciding whether it abused its discretion in ordering shared custody. The Court decides whether the arrangement imposed will promote stability in the child’s environment, which is of the utmost importance to his well-being. The shared custody arrangement in the instant case required the child to spend at least three hours every fourth day traveling between Saratoga and LaGrange, attend two different daycare centers and to be separated from his primary caretaker every fourth day for a four-day period. There was nothing in the record supporting the shared custody arrangement. Mother and Father have no history of effective communication or cooperative decision making. These skills would be necessary to facilitating such a shared custody arrangement. In addition, the district court left undetermined how custody would work when the child begins to attend school in 2009. The shared custody arrangement imposed did not provide the framework that best served the child. The district court abused its discretion in ordering shared custody.

Holding: Neither party appealed the district court’s order granting Mother primary physical custody for final decision-making authority. Consequently, that order will remain in effect. The Court reversed the district court’s shared custody order and remanded with directions to enter an order awarding Mother primary physical custody and Father reasonable visitation taking into consideration the geographic distance between the parties. In addition, the district court will re-calculate the presumptive child support obligation on the basis of the new custody arrangement.

Reversed and remanded.

J. Kite delivered the decision.

Link: http://tinyurl.com/5rdh7e .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 104

Summary of Decision issued September 3, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: JT v. KD

Citation: 2008 WY 104

Docket Number: S-08-0002

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Appellant: Rex O. Arney and Vincent P. Schutte of Brown, Drew & Massey, Sheridan, Wyoming.

Representing Appellee: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Facts/Discussion: After various agreements and orders concerning custody, JT (Mother) filed a petition to modify custody in which she sought primary custody of the parties’ minor child. The district court awarded primary custody to KD (Father). Neither party requested findings pursuant to W.R.C.P. 52(a).
The ultimate issue was whether the court reasonably could have concluded as it did. Mother cannot complain on appeal that the district court did not adequately address the statutory factors or more fully explain its reasoning because she did not request specific findings.
The Court noted the district court’s decision letter contained detailed findings. The Court also noted that the district court’s consideration of the factors enumerated in § 20-2-201(a) were quoted in the decision letter so there was no question that it was aware of what it statutorily was required to consider in making a custody decision.
The Court found that Mother’s claim that the district court improperly based its decision on her past mistakes was without merit. All the past mistakes the district court considered happened during the lifetime of the child. It would have been improper for the district court not to consider them in determining the best interests of the child.

Holding: The district court issued an eight page decision letter containing detailed findings of fact, a thorough discussion of the applicable law, and a separate discussion of the importance witness credibility played in its decision. Although its ultimate ruling was set forth in one sentence, it was clear from the decision letter in its entirety that the district court carefully and thoughtfully considered the evidence, the law and the best interests of the child in awarding primary custody to Father.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/5nonh2 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 179

Summary of Decision issued November 9, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Eickbush v. Eickbush

Citation: 2007 WY 179

Docket Number: S-07-0030

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge

Representing Appellant (Plaintiff): DaNece Day of Lubnau & Bailey, PC, Gillette, Wyoming.

Representing Appellee (Defendant): No appearance.

Issue: Whether the district court abused its discretion in granting Mother’s motion to enforce the settlement agreement and ordering shared custody.

Facts/Discussion: Father appealed from the district court’s order of shared custody.
Standard of Review: Custody, visitation, child support, and alimony are all committed to the sound discretion of the district court. The welfare and needs of the children are to be given paramount consideration.
Even when parties agree on the issue of custody it is well settled that the district court is not bound to accept a stipulation of the parties and that the court’s major consideration in determining custody of minor children is the welfare of those children. The district court must consider the interest of the children at the time of the hearing, not at the time the parties separated or some other time prior to the hearing. The district court’s order contained no specific findings concerning the factors it considered in deciding to award shared custody. Therefore, the hearing transcript provided the only record evidence of the district court’s reasons for awarding shared custody. The record indicated that the district court did not have sufficient evidence to allow it to adequately address the disputed question of custody. After hearing testimony, the district court stated it was unable to discern from the evidence that had been presented that shared custody was not in the best interest of the children. In performing a best interests analysis, the district court must satisfy itself that it is possessed of sufficient facts to support its determination. The district court failed to ensure that the children’s best interests were protected when it ordered shared custody without having all the facts necessary, accurately and fully to evaluate the impact that shared custody might have on the children.

Holding: The conclusion of the district court was unsupported in the record and inconsistent with the evidence presented. The district court abused its discretion by ordering shared custody without having sufficient facts to evaluate whether that form of custody was in the children’s best interests.

Reversed and remanded.

C.J. Voigt delivered the opinion.

Link: http://tinyurl.com/2jyx3x .