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In the Interest of: Mc, Hc and Cc, Minor Children, Dl v. State of Wyoming

April 12, 2013

IN THE INTEREST OF: MC, HC AND CC, MINOR CHILDREN, DL, APPELLANT (RESPONDENT),
v.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



Appeal from the District Court of Hot Springs County The Honorable Robert E. Skar, Judge

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

Before KITE, C.J., and HILL, BURKE, and DAVIS, 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] After an adjudicatory hearing in this abuse and neglect case, Appellant was found to have neglected her three children. She challenges that decision on the grounds she was denied fundamental due process rights because the trial court declined to grant a motion to dismiss or to strike witnesses after claimed discovery violations by the State, and because the evidence was insufficient to support a finding of neglect. We find that the trial judge did not abuse his discretion in dealing with the claimed discovery violations, that Appellant received due process, and that the evidence was sufficient to support a finding of neglect. We therefore affirm.

ISSUES

[¶2] 1. Did the trial court abuse its discretion when it denied Appellant's motion to dismiss and to strike witnesses for claimed discovery violations that were not brought to the court's attention until the date of trial, and did its ruling on this issue result in a denial of due process?

2. Was there sufficient evidence to support the trial court's finding of neglect?

FACTS

[¶3] On January 27, 2012, the Hot Springs County Attorney's Office filed a petition alleging that Appellant DL's three children, MC, HC, and CC, were being neglected or abused, or both. At the time the petition was filed, MC was sixteen, HC was fifteen, and CC was twelve. All of the children resided with Appellant in Thermopolis.

[¶4] The day before the petition was filed, school resource officer Deputy Cameron Simeral responded to a report that CC claimed to be "baked" at school, meaning that he claimed to be suffering from the effects of marijuana smoked the night before. Deputy Simeral learned from CC that his older brother MC had asked if he "wanted to get high" the previous evening. CC agreed, and both boys went to Appellant's bedroom and retrieved a glass pipe and a small bud of marijuana from a red tin they knew to be kept there. One or both of them then smoked the marijuana in the garage. MC was interviewed and reported that CC appeared to be "high" for the rest of the night. Based on this information, Deputy Simeral obtained and executed a search warrant on Appellant's house.

[¶5] The search yielded the red tin described by CC, which contained a few small buds suspected to be marijuana, as well as a glass pipe, pipe cleaners, and lighters. The suspect substance tested presumptively positive for Tetrahydracannibinol (THC), the active ingredient in marijuana, and Appellant was therefore arrested and taken into custody for possession of a controlled substance in violation of Wyoming Statute § 35-7- 1031(c)(i)(A). The children were placed in temporary protective custody pending a shelter care hearing.

[¶6] Appellant was released on bond to await trial on the pending possession charge. The district court sitting in juvenile session*fn1 held the shelter care hearing required by Wyoming Statute § 14-3-409 on January 27, 2012. At the hearing, the State, Appellant, and the children's guardian ad litem ("GAL") stipulated that the Appellant would clean up the home, that the children would be returned to her care, and that all would participate in further efforts to keep the home clean pending a hearing. Appellant also agreed to have no contact with children under the age of eighteen, except for family members.

[¶7] The court found that shelter care was no longer necessary, and that the children's best interests would be served by returning them to Appellant's home under the conditions provided by the stipulation. The court required Appellant and her children to clean the home and to return it to a presentable condition as the parties and the GAL had agreed, and it also required Appellant to permit the Department of Family Services (DFS) to periodically inspect it. It also ordered Appellant to undergo random drug testing. The court scheduled an adjudicatory hearing at which the State would be required to prove its allegations of abuse or neglect for April 23, 2012.

[¶8] Appellant's counsel filed a motion to dismiss on the day of the hearing. She alleged that the State had failed to comply with Rule 3 of the Wyoming Rules of Procedure for Juvenile Courts (W.R.P.J.C.), which governs discovery in all juvenile cases, including abuse and neglect, delinquency, and child in need of supervision proceedings. She contended that the State failed to timely provide exculpatory evidence consisting of a negative urinalysis (UA) conducted on CC. Appellant also claimed that the State failed to provide a witness list before the hearing, which violated W.R.P.J.C. 3(b)(3). Appellant moved the court to dismiss the petition, or in the alternative, to strike the State's witnesses. She claimed that her rights to due process had been violated.

[¶9] The court heard arguments on the motion before the adjudicatory hearing began. Counsel did not call any witnesses or present any evidence, but instead argued their respective positions. Appellant's attorney indicated that she had sent the county attorney's office a letter concerning discovery on April 10, 2012, a little less than two weeks before the hearing. In it, she indicated that "[i]t is my understanding that [CC] provided a UA and I have no information regarding this [sic] of the results. Please provide this to me."

[¶10] The county attorney indicated that he initially received a report from DFS stating that no UA had been done. This was consistent with a police report indicating that no urine sample had been taken from CC. CC was asked to provide a sample on January 27 but was initially unable to do so. Apparently a sample was taken later in the day by an agency not specifically identified in the record.

[¶11] When the county attorney met with DFS employees to prepare them for the adjudication hearing on April 19, he learned that CC had in fact provided a urine sample which tested negative for controlled substances. He supplied the information to Appellant's counsel on April 20, the Friday before the adjudication hearing was to be held.*fn2 The county attorney also argued that Appellant was aware of the existence of the negative drug test before he was, and that although Appellant's counsel did not receive a witness list, the reports and other documents produced in discovery provided sufficient information for Appellant's counsel to identify witnesses and to determine the substance of their testimony. He had his own complaints about Appellant's failure to provide releases so that he could obtain information concerning MC's counseling.*fn3

[¶12] The guardian ad litem aligned with the State, pointing out that Appellant's counsel should have filed a motion to compel under W.R.P.J.C. 3(f). He argued that "the rule to me is clear that if a respondent is not feeling that they are getting information, they need to file the motion." He did not believe the county attorney had intentionally withheld exculpatory or other evidence because he had continuously received updated information throughout the pendency of the abuse-neglect proceedings. Counsel for Appellant admitted that she could have filed a motion to compel, but that she did not do so because she "was trying to maintain civility."

[¶13] Counsel for the Appellant did not request a continuance to allow additional time to prepare for the adjudication hearing.*fn4 The court denied the motion to dismiss or strike witnesses "[b]ased on what [it] heard here today." The adjudication hearing began immediately after this ruling.

[¶14] The State called Deputy Simeral as its first witness. He testified to the following:

Q. . . . [C]ould you please describe the general condition that you observed while in the house?

A. As mentioned earlier, just clutter, dirty clothes, food, empty packages of random food, cans of soda, foul smell. Upstairs there were more of the same to include personal papers and bills belonging to [Appellant], I assume, pill bottles scattered. There was dried bloodied bandages on the bathroom floor, is what it appeared to be, as well as other soiled napkins and things of that sort.

Q. And did you in fact find any controlled substances at that house?

A. Yes I did.

Q. And what did you find?

A. A small red tin located next to [Appellant's] bed with lighters, a glass pipe, and a smaller tin containing a few buds of marijuana.

[¶15] Deputy Simeral also described MC's room as "very cold, very cool. No carpet. It was the basement, unfinished basement area. I don't recall any lighting system. If there was, it was a single bulb. It smelled foul, dirty, damp, a typical basement." He believed the condition of the house posed a serious health risk, given the dried blood, the temperature of MC's room, and "the bathrooms being the way they smelled."

[¶16] The State's next witness was Shari Rogers, a DFS juvenile probation officer. She testified that she went to the county jail on January 27 because Deputy Simeral asked her to help obtain a urine sample from Appellant. Appellant was released on bond on the possession charge while Ms. Rogers was still at the jail, and Ms. Rogers gave her a ride because she did not have appropriate winter clothing for the walk home. Ms. Rogers encouraged Appellant to quit smoking marijuana, but Appellant replied that "well, that's not going to happen." She added that if DFS broke her family up for that reason, that would just be what happened.*fn5

[¶17] On cross-examination Ms. Rogers admitted that she had been visiting Appellant's home since 2004 because MC had previously been adjudicated delinquent, and that she had never reported a health risk. However, she testified on redirect examination that she believed that bloody cloth rags and rotten food would pose a health risk, at least to younger children.

[¶18] The State also called MC as a witness. He testified that Appellant smoked marijuana often, and that when she did she stayed in her room watching Netflix and playing computer games. MC testified that during those times their home "just reeks with marijuana," and that Appellant did not interact with the children. He also testified that her demeanor becomes "edgy, like she gets mad at things that are really trivial, I guess."

[¶19] MC further testified that Appellant kept her marijuana in a location accessible to him and his siblings:

A. Yeah, that night [January 25] me and my little brother, we went upstairs and Mom had marijuana in the house, so we took her pipe and some of her marijuana, we went to the garage and he smoked it and I didn't, so . . .

Q. Okay. Why did that occur?

A. It was there and I guess we just had the idea, "Let's ...


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