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In re JW

March 18, 2010

IN THE INTEREST OF: JW AND BJ, JR., MINOR CHILDREN
LW, APPELLANT (RESPONDENT)
v.
THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



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

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

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

Hill, J., delivers the opinion of the Court; Golden, J., filed a dissenting opinion in which Burke, J., joined; and Burke, J., filed a dissenting opinion, in which Golden, J., joined.

[¶1] The district court entered its "Order on Permanency Hearing" on December 12, 2008. The process of handling the neglect complaint against the Mother (LW) in this case, which process eventuated in the order cited above, was managed by the Department of Family Services (DFS), the State of Wyoming acting through the District Attorney for the Seventh Judicial District, the Guardian ad Litem for the children affected (GAL), and a Multidisciplinary Team (MDT) created under the child protection statutes and rules and regulations promulgated by DFS. An attorney was appointed to represent Mother. The persons directly affected by that order will be identified by the use of generic terms/titles in order to maintain the confidentiality of all persons involved, but most especially the identities of the affected children. The person most directly affected by the order will be referred to as Mother. Although the long-term consequences may be equally as great for the children affected by the order, we mention them second because they are minors and their destiny lies in the hands of the adults involved in this case, which of course includes this Court. We will refer to the children individually as the Daughter and Son of Mother (and when the reference is to both, "the children"). Each child had a different father, but neither is involved in this appeal.

[¶2] The principal effect of the order at issue here was to permanently place the children with the 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. Ann. § 14-3-208(a)(iii) (LexisNexis 2009), as well as applicable federal statutes and rules and regulations of DFS. Eventually Uncle and Aunt retained counsel to represent them during the permanency hearing.

[¶3] It is Mother‟s contention that governing statutes and applicable rules and regulations enunciate a strong preference for "kinship/relative" placement in circumstances such as those that arose in this case and that the district court erred in permanently placing the children with the Foster Parents for adoption, rather than with the Uncle and Aunt. Although termination of Mother‟s parental rights had not yet been achieved when the appeal herein was perfected, it was a "given" that Mother‟s parental rights were to be terminated whether the children were placed with the Aunt and Uncle, or with the Foster Parents. We reverse the district court‟s order and remand to the district court with directions 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 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.

ISSUES

[¶4] Mother raises these issues:

1. Whether the district court erred in ignoring the recognized fundamental right of association of family by ordering permanent placement of the minor children outside the biological family.

2. Whether the district court erred in ordering permanent placement of 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.

DFS posits these as the issues:

I. Does a mother whose children are in the custody of the Department of Family Services have 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?

II. Did the court properly consider the best interests of the minor children when conducting a permanency hearing?

The GAL states these issues:

A. [Mother] does not have standing to raise on behalf of [Uncle and Aunt] alleged violations of Department of Family Services policies or violations of fundamental rights.

B. The district court correctly ruled that the best interests of the minor children would best be served by placement with and adoption by the Foster Parents.

FACTS AND PROCEEDINGS

[¶5] This appeal presents extraordinarily weighty issues concerning the imminent termination of Mother‟s parental rights and, thereafter, the permanent placement of Mother‟s children with the Foster Parents. Mother was essentially a single parent who was raising her two children on her own. The identity of the children‟s respective fathers was known to the Department of Family Services (DFS), but neither participated meaningfully in the proceedings nor are any issues raised with respect to their parental rights.

[¶6] On May 9, 2007, Mother‟s Daughter was a few months shy of her seventh birthday. Mother‟s Son was just a few days old. On that date, a petition was filed in the juvenile court asserting that the children had been neglected by their Mother. The children were taken into DFS‟s care and each was placed with a different foster parent. Among many other things, the petition asked Mother to provide the names of relatives who might be considered as placement options, and she provided the names of Uncle and Aunt. A shelter care hearing also was held on May 9, 2007, and in an order entered on May 23, 2007, the juvenile court placed the children in DFS custody with a primary goal to ascertain if the matter was a "IV-E case," a reference to a provision of the Social Security Act. The GAL was appointed for the children on May 10, 2007, and Mother was appointed counsel on May 30, 2007.

[¶7] A June 18, 2007 report of the MDT indicated that the children were returned to the physical custody of Mother and the father of the Son, with DFS retaining legal custody. In a document entitled "Family Service Plan," Mother identified as a part of "Cultural/Ethnic and Family Traditions," going to Montana every other summer to visit Uncle Levi. That same document identified "relative placement with [Uncle Levi]" as a concurrent plan for the children. The "Family Service Plan" assigns many responsibilities to the caseworker (as well as to the parent(s)), including identifying "cultural, ethnic and family traditions." Mother was assigned the responsibility to "[p]rovide any and all information on an absent parent, relative, or kinship adult." Mother identified Uncle and Aunt in fulfillment of that responsibility.

[¶8] The record reveals that four or five successive caseworkers had responsibility for this case over the relatively short time period from intake to permanency hearing, and that the "kinship placement" ball appears to have been dropped by DFS workers during the process. This appears to have occurred in part due to oversight, and in part because Uncle and Aunt lived in Miles City, Montana, a city 300 miles away from Casper. After an Initial Hearing on June 1, 2007, the juvenile court issued an order directing that DFS retain temporary legal custody of the children, with Mother to have physical custody. A Predisposition Report was filed of record on June 28, 2007, and Uncle Levi is mentioned twice in this document. In a letter filed of record on July 3, 2007, it is noted that the children were placed back in foster care with the Foster Parents. The children have remained in that placement until the present time, and they are the Foster Parents identified in the opening paragraph of this opinion.

[¶9] On July 18, 2007, the children‟s grandmother‟s home was assessed as a potential interim placement for the children, and a recommendation was made that grandmother‟s home was a suitable home to be considered as a placement for the children. That appears to have been abandoned despite a positive report in a DFS home study, because Mother objected on the basis that her mother was a "drunk" (although she later recanted that characterization).

[¶10] The parties to this matter entered into a consent decree that was filed of record on August 8, 2007. Mother admitted the neglect allegations, and the proceedings were held in abeyance while DFS continued to work with Mother to reunite her with her children. Mother‟s interest in the possibility of placement of the children with their Uncle and Aunt was conveyed to the MDT at its August 30, 2007 meeting. The Foster Parents stressed to Mother that the placement of the children with them was temporary and it was everyone‟s goal for Mother to get better and resume custody.

[¶11] Progress in this matter appeared to be very slow, in significant part because Mother was undergoing in-patient treatment for her drinking problems. The Quarterly Progress Report dated November 8-9, 2007, indicated that the permanency plan was to reunite the children with their Mother and that the contingent permanency plan was to be with "Family Relations." A hearing was held to continue the family reunification plan on February 5, 2008. An order detailing the results of that hearing was entered of record on February 28, 2008. A stipulated order extending the consent decree was entered on March 24, 2008.

[¶12] On April 8, 2008, the State and DFS sought to reinstate the original petition and to reinstate proceedings to terminate Mother‟s parental rights. This change of course was based upon evidence that she had resumed drinking alcoholic beverages and had violated the terms of the contract she had entered into for purposes of reunifying her family in other ways as well. A MDT report filed of record on April 18, 2008, discussed Mother‟s situation in detail and concluded that efforts to reunify Mother with her children be waived and the "concurrent plan of other relative placement be adopted." In an order entered of record on July 22, 2008, the district court accepted the recommendations of the MDT and directed that the matter proceed to a permanency hearing.

[¶13] In a report entered of record on August 1, 2008, the MDT recommended that the parental rights of Mother be terminated (as well as those of the two respective fathers) and that the Foster Parents be granted guardianship of the children. It is in this report that we discover that initial efforts to certify Uncle and Aunt as a family placement had been initiated. On September 5, 2008, Uncle and Aunt filed an affidavit detailing their association with the children, including that Daughter had been in their care for almost 4 years prior to her move to Casper with her Mother, and attesting to the many telephonic and personal efforts they had made to make it clear to DFS that they wanted to be made responsible for the children. At Mother‟s request, on October 14, 2008, the district court ordered a "bonding study" to be completed to ascertain the potential for the children to bond with Uncle and Aunt. By report entered of record on October 24, 2008, a MDT report indicated a recommendation that the Foster Parents adopt the children. By order entered on November 14, 2008, Uncle and Aunt were permitted to intervene in this case for the limited purpose of participating in the permanency hearing. It must be noted that the GAL and the attorney for the State resisted each and every effort that Uncle and Aunt made to become included in the proceedings that affected the children.

[¶14] Eventually the Uncle and Aunt hired their own attorney and he advocated for them at the permanency hearing. The permanency hearing was conducted on December 1, 2008. That hearing lasted all day and well into the evening hours, and we commend the district court for its efforts to let all parties speak their piece, despite numerous objections and interruption made by the GAL and the attorney for the State. Those objections were directed at limiting the information Uncle and Aunt could bring to the attention of the district court and otherwise to delay, protract, and minimize the amount of information the district court was able to hear. To its credit, the district court overruled almost all objections and allowed Uncle and Aunt to present their plea that the permanency placement for the children be with them.

[¶15] The bonding study is a key document in this case because it concluded that it was readily possible that the children could bond with Uncle and Aunt, even though they had also bonded with the Foster Parents. Mother‟s Son was a focus of much of the study because he had spent very little time with his Mother and even less time with Uncle and Aunt. However, the bonding study bore out that Uncle and Aunt had the skills and the motivation to effectuate a transition for the children from the Foster Parents‟ home to their home in Montana. The Interstate Compact on the Placement of Children Request, completed by a professional in Montana, further attested to the skills and abilities of Uncle and Aunt to parent their niece and nephew, as they had done for Aunt‟s brother in the past, and as they were doing for their own infant child.

DISCUSSION

[ΒΆ16] At the outset we take note that the record establishes that there are two suitable, stable and loving families who want to be the permanent placement for the children. One of those families is the Foster Family with whom the children have bonded during the process described above. The other family is that of the Uncle and Aunt who have been available as a placement since the outset of these proceedings. However, they lived in Montana and the reunification process Mother sought to pursue was done in Casper. Thus, the bonds between Uncle and Aunt and Daughter had been interrupted for almost two years, and there was little bond at all with Son. Against this background, the district court had to make an almost literally Solomonic decision as to where the children would be placed, with the Foster Parents or with the Uncle and Aunt. Although we conclude the district ...


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