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In the Interest of Nc and Am, Minor Children v. State of Wyoming

January 9, 2013

IN THE INTEREST OF NC AND AM, MINOR CHILDREN, SC AND FC, III, APPELLANTS (RESPONDENTS),
v.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge

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

Before KITE, C.J., HILL, VOIGT, BURKE, and DAVIS, 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] This appeal arises from the district court's exercise of juvenile jurisdiction over neglect petitions filed on two Texas children whose maternal grandmother brought them to Wyoming after the children had been abused in Texas by their mother's boyfriend. The district court adjudicated the children as neglected, and the children's mother and her boyfriend appeal, contending that the district court did not have subject matter jurisdiction.

[¶2] Because this case is an interstate child custody dispute, we hold that the district court erred in exercising jurisdiction pursuant to Wyoming's Child Protection Act. The district court had jurisdiction to respond to the immediate threat to the children, but that jurisdiction was as defined and limited by the temporary emergency jurisdiction provisions of Wyoming's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). We thus affirm in part, reverse in part, and remand for proceedings consistent with the direction herein.

ISSUE

[¶3] The children's mother and her boyfriend state the issue on appeal as follows:

The issue before the Court is whether the juvenile court was correct in determining that it possessed the requisite subject matter jurisdiction to hear and determine the matter in controversy.

FACTS

[¶4] In April 2011, SC (Mother) was living in the Dallas, Texas area with her two girls, NC and AM, and her boyfriend, FC, III (FC). At that time, NC was four years old, and AM was three years old. On the 14th or 15th of April 2011, Mother contacted her mother, SR (Grandmother), who lives in Cody, Wyoming, and reported that her boyfriend, FC, had bitten her two children. Mother also took photographs of the girls' injuries using her cell phone and forwarded those to Grandmother.

[¶5] Mother told Grandmother that she was going to report the abuse to law enforcement, take the children to a physician, and then move in with her sister, who also lived in the Dallas, Texas area. When Mother and the children moved in with Mother's sister, Mother's sister observed the bite marks on NC and AM. She described them as follows:

A. My sister ended up showing to me, and my fiance ended up taking pictures off my cell phone. There were several bite marks on [NC], deep bite marks, on her arm from her shoulder blades, the butt cheeks, the sides of the hips. [AM] had a couple on her, not as much as [NC] did, but [AM] had a few.

Q. [AM] had a few what?

A. Bite marks or bruises. She had a couple on her shoulder as well, on her left arm.

[¶6] At some point, Mother reconciled with FC, and she and the children moved back in with him. In July 2011, Grandmother traveled to Texas to check on Mother and the children. She testified to her reasons for the trip and what she observed.

A. Well, I went down because I was worried about the girls, and [SC] wouldn't tell me what the doctor said. And she just kept saying, well, the doctor was going to call the police. And she didn't have any answers, so I went down and stayed for a week.

Q. When you got down there in July, did you observe the girls at all?

A. Yes.

Q. What did you notice at that time?

A. The bruises -- [NC] had bruises on both arms and on her bottom. And [AM] still had the bruises on her -- along her chest or, you know, her side.

[¶7] After a week in Texas, Grandmother went back to Wyoming, but with plans to return to pick up Mother and the children after Mother worked the two-week notice period she was required to give her employer. Grandmother explained:

A. I came back home with plans to return.

Q. So did you have plans to return? What prompted those plans?

A. [SC] told me that he was increasingly abusive to the girls and to her. She said she knew she'd never get her life straightened out or be in a better situation as long as she was with [FC]. And she said, "Would you come and get me?"

[¶8] Grandmother returned to Texas two weeks later, but when she arrived, Mother told her that she had decided to stay in Texas and try to work things out with her boyfriend. Mother, however, allowed Grandmother to take the two children back with her to Wyoming, with the understanding that Mother would come to Wyoming to retrieve the children.

[¶9] Shortly after returning to Wyoming, Grandmother contacted the Wyoming Department of Family Services (DFS), hoping "to find some way to protect the girls." DFS, in turn, contacted the Cody Police Department. Detective Juliet Vibe of the Cody Police Department investigated the allegations of abuse and interviewed the children. In her Affidavit of Probable Cause, Detective Vibe reported that neither law enforcement nor a family services agency in Texas had requested assistance from Wyoming. Detective Vibe's affidavit also detailed the discussion she had with Texas law enforcement concerning the abuse allegations.

On September 14, 2011, I spoke with Detective Smeltzec of the Balch Springs, Police Department. Detective Smeltzec advised that he interviewed both [SC] and her boyfriend, identified as [FC] about the marks. Both [SC] and [FC] stated that the bite marks were from an unnamed nine (9) year old boy who used to live next door to them. Detective Smeltzec did not find their statements credible, but did not have enough information to proceed with a criminal investigation. Detective Smeltzec emailed me a copy of his report. I offered to interview the girls for Detective Smeltzec, but he advised that it would not be necessary for the case.

[¶10] Following Detective Vibe's investigation, on October 4, 2011, the Park County Attorney's Office (the State) filed separate juvenile petitions on each of the girls alleging that each child was a neglected child as defined by Wyoming statute. The petitions also requested a shelter care hearing, and on October 26, 2011, the district court held an initial appearance and shelter care hearing.

[¶11] At the shelter care hearing, a number of individuals participated by telephone from Texas: Mother; Mother's boyfriend, FC; Mother's Texas attorney, Mario Herrera; and the children's purported biological father, Raul M. During the hearing, Mr. Herrera advised the district court of pending custody proceedings in Texas, and he contested the court's subject matter jurisdiction.

MR. HERRERA: Your Honor, I'm sorry to interrupt. The biggest issue, I think, before you even get to the merits on the case, is the fact of the venue and the jurisdictional issue. The fact is that there's been two petitions to the Court trying to terminate -- or terminate the parental rights of both the parties. Both children are subject to these. They were filed prior to any proceedings occurring in this case, so continuing jurisdiction has been established with Texas.

[¶12] The State acknowledged that a current custody case was pending in Texas, but it disputed that those proceedings should affect the district court's jurisdiction to rule on the juvenile petitions before it. In responding to those arguments, Mr. Herrera further described the Texas proceedings.

MR. HERRERA: * * *

The two pending suits are going to directly affect each other. So even if -- one way or the another (sic), we're going to have to respect and consolidate these into one case and one suit. And that's why we need to establish what's going to be the proper jurisdiction. And just considering all the other facts, the allegations were in Texas, there was already an investigation started in Texas, there was a suit filed in Texas. The children -- the jurisdiction -- even just the residence requirement, other than this allegation being made in Wyoming, there's no other -- the children are still residents of Texas as of now.

MR. HERRERA: Your Honor, the only -- the only point I'd like to bring up is that although both the guardian ad litem and the State were making arguments that jurisdiction is not going to affect the custody, that it has nothing to do with the civil matter, the fact is the recommendation goes exactly to the heart of what the petitions in Texas are for. They're for custody. They're for visitation, possession and access. They are exactly what is being ...


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