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DMW v. TLW

August 24, 2009

IN THE INTEREST OF DMW AND ALW, MINORS, AW AND LW, APPELLANTS (RESPONDENTS),
v.
TLW, APPELLEE (PETITIONER).



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

The opinion of the court was delivered by: Hill, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] AW and LW (Grandparents) appeal from the district court's order granting permanent guardianship and conservatorship*fn1 of DMW and ALW (the Boys) to TLW (Stepmother). Grandparents claim that they were not provided proper notice of, or an opportunity to be heard on, Stepmother's petition for temporary guardianship, the district court erred by failing to give priority to Grandparents as guardians for the Boys based upon Father's written statement giving the grandfather custody of them, and the district court did not act in the Boys' best interests when it awarded guardianship to Stepmother.

[¶2] We affirm.

ISSUE

[¶3] Grandparents identify a single vague issue on appeal:

Did the District Court err when it awarded permanent guardianship and conservatorship of DMW and AL[W] to the stepmother, TLW, rather than the paternal grandparents, AW and LW?

Stepmother does not present a separate statement of the issues.

FACTS

[¶4]DMW is a male child who is now almost 9 years old. ALW is a male child who is now about 7 years old. Their parents, JW (Father) and HS (Biological Mother), were never married. Until 2005, Biological Mother had custody of the Boys and they lived in Ohio. In the summer of 2005, facing an action by the Ohio family services agency because of violence in the home, Biological Mother agreed that the Boys could live with Father. At that time, Father and Stepmother were living together in Ohio, although they did not marry until January of 2006. Stepmother also had custody of a daughter from a previous relationship (Stepsister). After moving in with Father and Stepmother, the Boys began counseling.

[¶5] In the spring of 2006, Father, Stepmother, Stepsister, and the Boys moved to Thermopolis, where Father had secured a job. Shortly after the move, the Boys began counseling with Hot Springs County Counseling Services. They also attended school in Thermopolis.

[¶6] In 2007, Stepmother engaged in an extra-marital affair. Upon learning of the affair, Father and the Boys returned to Ohio on July 3, 2007, where they stayed with Grandparents. On July 18, 2007, Father was killed in an automobile accident. The Boys were not involved in the accident, as they were with Grandparents at that time.

[¶7] On July 19, 2007, Stepmother petitioned for temporary and permanent guardianship of the Boys. After an ex parte conference with Stepmother and her counsel, the district court awarded Stepmother temporary guardianship of the Boys. Stepmother filed the Wyoming order in Ohio. She traveled to Ohio to attend services for Father and pick up the Boys. She and the Boys returned to Wyoming, and they have since been in Stepmother's custody.

[¶8] Biological Mother and Grandparents were formally served with the guardianship documents on August 10, 2007, and given notice that a hearing on Stepmother's guardianship petition would be held on September 28, 2007. Biological Mother filed a motion to terminate Stepmother's temporary guardianship of the Boys, and Grandparents filed a motion to intervene, seeking to be appointed as co-guardians of the Boys. The district court heard evidence on the pending motions at the September 28th hearing; however, the parties did not finish with their case presentations that day, and the hearing was continued until April 17 and 18, 2008. In the meantime, a guardian ad litem (GAL) was appointed.

[¶9] After the hearing concluded in April 2008, the district court issued a decision letter and order including detailed findings of fact and conclusions of law. 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 that it was in the Boys' best interests to appoint Stepmother as their guardian. Biological Mother did not appeal the district court's order, but Grandparents did.

STANDARD OF REVIEW

[¶10] The standard of review for guardianship cases was well stated in KO v. LDH (In re Guardianship of MEO),2006 WY 87, ¶ 17, 138 P.3d 1145, 1150 (Wyo. 2006) (citations omitted):

We presume the district court's findings of fact are correct and will not set them aside unless the findings are inconsistent with the evidence, clearly erroneous or contrary to the great weight of the evidence. Additionally, we review a district court's conclusions of law de novo. Id. Construction of the guardianship statutes involves a question of law which we review de novo.

A finding of fact is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." In re Estate of Thomas, 2009 WY 10, ¶ 6, 199 P.3d 1090, 1093 (Wyo. 2009) (quoting Mullinnix ...


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