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In the Interest of: Drs, Njl, and Kdl, Minor Children. v. the State of Wyoming

September 14, 2011

IN THE INTEREST OF: DRS, NJL, AND KDL, MINOR CHILDREN. RH, APPELLANT (RESPONDENT),
v.
THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



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

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

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] RH (Mother) challenges the district court's order directing that her minor children be placed with their grandparents and father, respectively, rather than returned to her custody. We affirm the juvenile court.

ISSUES

[¶2] Mother raises three issues before this Court:

1. Whether the district court committed reversible error when it ordered, without notice to [Mother] and without conducting any evidentiary hearing, that KL and NL remain with their grandparents and not be reunited with [Mother] as had been stipulated; and DS 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.

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).

FACTS

[¶3] Mother has three minor children, DS (age 9), NL (age 6), and KL (age 5), who are the subject of a neglect petition that began this case.*fn1 MS is the father of DS, while CL is the father of NL and KL.

[¶4] On October 24, 2008, 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.*fn2 On October 28, 2008, the Albany County Attorney's Office filed a neglect petition. Part of the neglect petition indicated that the children were to be returned to their home after the identified issues had been corrected. The same day the neglect petition was filed, the children were returned to their home.

[¶5] On January 16, 2009, based upon the agreement of all parties to the matter, the juvenile court entered a consent decree, which included an admission to the allegations of neglect. Furthermore, the decree 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. The MDT also recognized terms and conditions that Mother was to meet and also established that the consent decree would be in effect for twelve months unless Mother failed to meet the terms and conditions, in which case the State would file a motion to reinstate the juvenile action. The juvenile court also entered an order accepting Mother's admission of neglect, but holding the adjudication of neglect in abeyance pursuant to the terms of the consent decree.

[¶6] Occasion to revisit the neglect petition occurred May 14, 2009, when the State moved to reinstate the proceedings alleging that Mother was interfering with CL's visitation with NL and KL, that Mother had failed to consistently keep her pet snake locked up, that Mother failed to have the children's babysitters approved by DFS, and that Mother failed to obtain a substance abuse evaluation. An amended motion to reinstate was filed on May 27, 2009, containing a second allegation of an unapproved babysitter. The juvenile court reinstated the proceedings on June 9, 2009, and 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.

[¶7] 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. On September 8, 2009, the court set forth a permanency plan of family preservation and ordered Mother to comply with eighteen terms and conditions to reach that goal.

[¶8] Until June of 2010, 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. The MDT filed a report indicating its concerns regarding Mother's and CL's ability to co-parent NL and KL. DFS also filed a quarterly progress report in May and indicated ongoing concerns about the health and welfare of the minor children. Based upon these concerns, the parties met with the children's therapist, and all agreed that it was in the best interests of NL and KL to have extended visitation with their grandparents and for DS to continue her summer visitation with her father, MS.

[¶9] On July 15, 2010, the MDT met and decided to recommend that the children continue with their grandparent visitation (for KL and NL), and that DS should be temporarily placed with her father. Pursuant to that, the State filed a motion to change custody and placement of the minor children on July 16, 2010, and requested that grandparent visitation be continued for NL and KL and that DS continue visitation with her father. Also on July 16, 2010, 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 September hearing.

[¶10] The juvenile court held a hearing on September 29-30, 2010, 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 in the case of NL and KL, and DS should continue to reside with her father. Mother timely appealed.

DISCUSSION

[¶11] As a preliminary issue, we must first address an issue brought up by the State -- that the juvenile court's hearing on July 16, 2010, is not properly before this Court on appeal. Just prior to the July 16th hearing, the State filed a motion to change custody and placement of the minor children and served the motion on Mother. The review hearing went forward, but no evidence was heard concerning the motion to change custody and placement. After the hearing, the court determined that the children should not be returned to Mother, but instead NL and KL would be placed with their grandparents, and DS would be placed with her father until a full evidentiary hearing could be held on the State's motion.

[¶12] In her brief, Mother states that the issues from the July 16, 2010, hearing are "merged into the final judgment." However, the State takes issue with that statement, and contends that the matters addressed in the juvenile court's order on review hearing are not properly before this Court, because no appeal was taken from that order. However, when Mother filed a petition for writ of review in August of 2010, she did seek interlocutory review of the July 16, 2010, hearing's order, where the juvenile court determined that the children at issue in this case should be placed outside of her home.*fn3

[¶13] The juvenile court made the following findings as a result of the July 16, 2010, review hearing:

1. This matter last came before the Court on the 17th day of August, 2009, for a Final Disposition Hearing, at which time physical and legal custody of the minor children was placed with the mother of the minor children, [Mother];

2. That this is not an Evidentiary Hearing, it is a Review Hearing;

3. The Court's record shows a history of disagreement between [Mother] and [CL] and its effects on the stability of the minor children. The Court recognizes that the minor children have been subjected to severe emotional abuse and that the "Time Out" visitation, per the Stipulation for Visitation with Grandparents, filed the 21st day of June, 2010, has been successful in providing stabilization for the minor children, [NL] and [KL];

4. That [NL] and [KL] are currently placed with their grandparents pursuant to the Stipulation for Visitation with Grandparents filed on the 21st day of June and approved by the Court's Order Granting Stipulation for Visitation with Grandparents entered June 21, 2010. That said stipulation included an agreement that it was in the best interests of the minor children, [NL] and [KL], that they visit their grandparents, from June 19, 2010 until July 18, 2010;

5. That [DS] is currently staying with [Mother], having returned from her father's home about one (1) week ago;

6. That because of the emotional stress on the minor children, it is contrary to the best interest of the minor children to remain in their mother's home, at the present time, until the hearing on the State's Motion to Change Custody and Placement of the Minor Children, filed July 16, 2010, may be held;

7. That it is in the minor children's, [NL] and [KL], best interest [that] visitation shall continue with their paternal grandparents ., with respite by maternal grandparents ., until the hearing on the State's Motion to Change Custody and Placement of the Minor Children;

8. That it is in the best interest of [DS] that she be placed with her father [MS] for an extended visit after remaining with [Mother] for one week from July 16, 2010.

[¶14] The State concedes that because this order affected a substantial right of Mother (i.e., the order addressed the children's placement), it is an appealable order. We agree. However, we disagree with the State's point that Mother is barred from appealing this particular order in accordance with W.R.A.P. 1.03, which states that "[t]he timely filing of a notice of appeal, which complies with Rule 2.07(a), is juris]dictional." Accordingly, we will proceed to address Mother's first issue, regarding the July 16, 2010, hearing, on the merits.

[¶15] Mother contends that the juvenile court's order after the July 16, 2010, hearing should be reversed because the court violated her due process rights by not giving her opportunity to present evidence prior to making its ruling. Mother also argues that the court applied the wrong statute at the review hearing, and finally, that these issues are not moot. Mother's basic complaint is that her children were removed from her home without an evidentiary hearing.

[¶16] This Court has previously considered a juvenile court's decision made during a review hearing. HP v. State, 2004 WY 82, ¶¶ 24-25, 93 P.3d 982, 989-990 (Wyo. 2004). First, we note that we review a court's findings in the context of a review hearing in a neglect proceeding under a preponderance of the evidence standard. In addressing ...


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