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In the Matter of the Guardianship of Lnp, A Minor Child v. Cc and Ec

February 20, 2013

IN THE MATTER OF THE GUARDIANSHIP OF LNP, A MINOR CHILD: KC, APPELLANT (RESPONDENT),
v.
CC AND EC, APPELLEES (PETITIONERS).



Appeal from the District Court of Laramie County The Honorable Michael Davis, Judge

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

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

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] Appellant, KC, ("Mother"), challenges the district court's decision to appoint CC and his wife, EC, ("Grandparents"), as permanent guardians for Mother's daughter, LNP. Mother contends the guardianship proceedings were subject to the requirements of the Indian Child Welfare Act (ICWA), and that the district court violated the provisions of the Act in establishing a plenary guardianship. Mother also contends the district court erred in concluding, under the ICWA, that returning LNP to Mother would likely result in serious emotional or physical damage. We affirm.

ISSUES

[¶2] Mother presents the following issues:

1. Whether the district court failed to comply with the Indian Child Welfare Act's ten day notice requirement.

2. Whether the district court received testimony from a "qualified expert witness" as required by the Indian Child Welfare Act.

3. Whether the district court received clear and convincing evidence that shows LNP's return to the Appellant would likely result in serious emotional or physical damage as required by the Indian Child Welfare Act.

Grandparents state the issues in a substantially similar manner.

FACTS

[¶3] Appellant is the mother of LNP, who was born in Oklahoma in 2006.*fn1 During the summer of 2010, Grandparents travelled to Oklahoma to attend the funeral of a family member. Mother told Grandparents that she was struggling to make ends meet and was having trouble finding shelter for herself, LNP, and her two other children. Grandparents offered to let LNP live with them in Cheyenne, and Mother agreed.

[¶4] LNP began living with Grandparents in September, 2010. On September 8, Mother executed a handwritten letter consenting to Grandparents' "guardianship over" LNP. The letter stated that "I [KC] give permission to [Grandparents'] guardianship over my daughter [LNP] while I'm away. For Schooling, Medical Assi[s]tance, Emergency Assi[s]tance or any other things that needs [sic] to be done while I'm away." When LNP came into Grandparents' care she was underweight and was "sick all the time." Grandparents also discovered welts on LNP's buttocks, which turned out to be symptoms of impetigo.

[¶5] Soon after taking LNP into their care, Grandparents became concerned by LNP's behavior. LNP had nightmares and a hard time sleeping in her bed. She often chose to sleep on the floor. LNP was visibly afraid of men and exhibited sexualized behavior. Eventually, LNP told Grandparents that she had been "honeyed" by her "mean daddy" while in Mother's care. In response, Grandparents sought professional counseling services for LNP. Sherri Rubeck, a licensed professional counselor, diagnosed LNP with disruptive behavior disorder and concluded that she had been sexually abused.

[¶6] On June 17, 2011, Grandparents filed a Petition for the Appointment of Emergency Temporary Guardians in Laramie County District Court, seeking temporary guardianship of LNP. Grandparents attached Mother's handwritten consent to the guardianship. The court issued an ex parte order granting Grandparents' petition and set the matter for hearing on June 22. After holding a hearing, the court issued an order appointing Grandparents as temporary guardians of LNP.

[¶7] On September 30, 2011, Grandparents filed a motion to convert the temporary guardianship to a plenary guardianship, asserting that a plenary guardianship was in the best interests of LNP. Grandparents attached a "Consent to Appointment of Guardian," which was signed by Mother on June 25. Two weeks later, Mother filed a motion to terminate the temporary guardianship. She also objected to the conversion of the temporary guardianship to a plenary guardianship. The motions were set for hearing on November 29, 2011.

[¶8] On November 21, eight days before the scheduled hearing, Mother filed a motion to vacate the temporary guardianship, alleging that LNP was an "Indian child" as defined by the Indian Child Welfare Act (ICWA), and asserting that the court had failed to comply with the provisions of the Act in granting the temporary guardianship. The motion stated that the court's temporary guardianship order had failed to make a finding, supported by the testimony of a qualified expert witness, that Mother's custody of LNP was likely to result in serious emotional or physical damage to LNP, as required under Section 1912(e) of the ICWA. At the beginning of the hearing on November 29, the court addressed Mother's motion to vacate and decided that it would consider the applicability of the ICWA at that hearing. The court proceeded to receive testimony from Mother, Grandparents, LNP's counselor, and various individuals acquainted with Mother and LNP.

[¶9] Evidence introduced at the hearing indicated that LNP may have descended from a Cherokee ancestor. As a result, the court ordered Grandparents to provide notice of the proceedings to the Cherokee Nation and the Bureau of Indian Affairs. In response to Mother's claim that adequate notice had not been given in accordance with the ICWA, the district court did not close the record at the hearing. The court stated that it would permit receipt of additional evidence if the Cherokee Nation decided to intervene. The court continued the temporary guardianship pending notification from the Cherokee Nation as to whether LNP was, in their view, an Indian child under the ICWA. The court noted that it would refrain from issuing a final decision until the tribe had a chance to respond.

[¶10] On January 23, the Cherokee Nation issued a letter stating that LNP had been determined to be an Indian child as defined under the ICWA. The letter noted that the tribe "will be staffing this case to determine what action, if any, will be taken in this matter." At a status hearing on January 25, 2012, the court asked Mother whether she would prefer that the court issue a decision as to guardianship of LNP, or whether she would prefer to wait to see if the Cherokee Nation would intervene. Mother stated that she preferred to wait, and the court continued the temporary guardianship pending further input from the Cherokee Nation.

[¶11] At a subsequent status hearing on February 29, the court was advised by the parties that the Cherokee Nation had decided not to intervene or take other action relating to the case, and that the matter was ripe for decision. The district court issued an opinion and order concluding that Mother was unfit to parent under Wyo. Stat. Ann. § 3-2-104(b), based on the evidence presented at the hearing held on November 29. The district court also determined, pursuant to Section 1912(e) of the ICWA, that returning LNP to Mother was "likely to cause serious emotional damage to L.N.P." The court entered an order granting the guardianship petition and denying Mother's motion to terminate the guardianship. The court noted, however, that "Both Wyoming law and the ICWA contemplate that a guardianship under these circumstances should continue only so long as necessary to prevent further harm to L.N.P., and that the guardianship must end if there is no longer risk of serious emotional harm." Mother appeals the district court's order.

DISCUSSION

I. Notice of Guardianship Hearing under ICWA ...


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