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In re GC

Supreme Court of Wyoming

May 20, 2015

IN THE INTEREST OF: GC, A Minor Child,
v.
THE STATE OF WYOMING, Appellee (Petitioner) KC, Appellant (Respondent),

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[Copyrighted Material Omitted]

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Appeal from the District Court of Natrona County. The Honorable W. Thomas Sullins, Judge.

Representing Appellant: Jacqueline K. Brown, Attorney at Law, Casper, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Wendy S. Ross, Assistant Attorney General. Argument by Ms. Ross.

Representing Guardian ad Litem: Dan S. Wilde, Deputy State Public Defender; Aaron S. Hockman, Chief Trial and Appellate Counsel, Wyoming Guardian ad Litem Program, Office of the State Public Defender. Argument by Mr. Hockman.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

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DAVIS, Justice.

[¶1] This appeal stems from a child neglect proceeding. The juvenile court found that it was in the child's best interest to cease efforts to reunify him with his mother and to change the permanency plan to termination of parental rights and eventually adoption. The mother appealed the juvenile court's order, claiming that the court violated her due process rights when it failed to apply the Wyoming Rules of Evidence during the permanency hearing, and that it did not have sufficient evidence to find that it was in her child's best interests to change the permanency plan to adoption. We address both issues and find that while due process may require an evidentiary hearing when the permanency plan is changed from family reunification to termination of parental rights, mother did not raise the issue below and has not established plain error. As to the second issue, we find that the juvenile court did not abuse its discretion when it changed the permanency plan to adoption. We affirm.

ISSUES

[¶2] 1. Does due process require that the Wyoming Rules of Evidence apply to review and permanency hearings involving a change in permanency away from family reunification?

2. Did the juvenile court abuse its discretion when it found that reunification efforts should no longer be pursued in this instance?

FACTS

[¶3] On May 20, 2013, Casper police officers and a Department of Family Services (DFS) representative responded to a report that a small child (GC) was wandering outside, alone and near a busy street. GC, age two at the time, was only wearing a t-shirt and socks. He was very cold and wet, and was initially unresponsive, but became more alert as he warmed up inside a neighbor's house. After the police officer and DFS child welfare worker arrived, his mother KC (Mother) came out of a house four doors down. She told them that she had been staying at the residence down the street for the last two weeks, but that she planned to return to Douglas shortly. She indicated that she did not know the names of the people she was staying with, and also said that she could not authorize the officer to enter the home to check on the conditions in which the child was living. The officer therefore took GC into protective custody because Mother could not demonstrate that he had a safe and appropriate living environment.

[¶4] The State, through the district attorney's office, filed a petition alleging that Mother had neglected GC. The juvenile court held a shelter care hearing on May 22, 2013, and it placed the child in the temporary legal and physical custody of the State. The court appointed a guardian ad litem (GAL) for GC, an attorney to represent Mother, and a multi-disciplinary team (MDT) consisting of Mother,[1] a representative of DFS, counselors, the GAL, and various other individuals, including the assistant district attorney who filed the petition. A drug test on samples taken from Mother on May 24, 2013 came

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back positive for methamphetamine and THC, the active ingredient in marijuana.

[¶5] On June 12, 2013, the court held an initial hearing at which Mother denied the State's allegations of neglect. The court continued GC's placement in the State's custody pending a full hearing on the merits. The MDT held its first meeting in July of 2013, and it recommended family reunification as the permanency goal for GC.

[¶6] An adjudication hearing was scheduled for July 26, 2013, but at the hearing the parties stipulated to a consent decree. Mother admitted the allegations of neglect and agreed to complete a case plan with DFS, and the State agreed that the court should hold the neglect proceedings in abeyance in order to allow Mother time to comply with the plan and demonstrate that she could provide a safe environment for GC. The decree also provided that if Mother failed to comply with the case plan, the State could proceed on the petition and the Court could enter her admissions of neglect on the record. The consent decree was to be in effect until January 2014. If Mother fully complied with its requirements, the neglect petition would be dismissed without an adjudication of neglect.

[¶7] The DFS case plan required Mother to attend visits with GC, demonstrate adequate parenting skills, complete a psychological evaluation, and follow the recommendations of that evaluation. She was also required to complete the testing necessary to evaluate her on the Addiction Severity Index (ASI),[2] and to obtain the treatment required, which included, inter alia, substance abuse counseling. She was required to report for random urinalysis testing and to maintain a drug and alcohol free environment, to obtain safe and stable housing and maintain stable employment, and to attend appointments for GC. She was also obligated to provide various information and updates to DFS. The case plan's permanency goal was family reunification.

[¶8] Mother initially complied with the case plan. She had a stable residence, completed an ASI, and complied with the ASI's recommendation for medium intensity group counseling. Visitation with GC also went well. However, in August Mother had two urinalysis tests which were positive for methamphetamine, and her compliance with the case plan and cooperation with DFS began to wane. Nevertheless, the MDT continued to recommend family reunification as the permanency goal after its second meeting in October of 2013.

[¶9] Despite the positive drug tests and Mother's declining compliance with the case plan, she was first allowed unsupervised daytime visits with GC, and then unsupervised overnight visits. However, on November 9, 2013, Mother tested positive for methamphetamine the same day she had GC for an overnight visit. Her counselor indicated that she was in denial about her substance abuse. In addition, on five separate occasions before December, she failed to report for urinalysis testing, and on three other occasions, she reported for testing but failed to provide or dumped her samples. Finally, while a second ASI was not required by the terms of the case plan, she was asked by the State to have the testing done to update the index, but did not.

[¶10] Because of these violations of the case plan, the State moved that the consent decree be set aside and that an adjudication of neglect be entered pursuant to Wyo. Stat. Ann. § 14-3-428(f) in December of 2013. The court held a review hearing and a hearing on the State's motion on January 8, 2014. It orally granted the State's motion for reinstatement of the proceeding and adjudicated GC as neglected by Mother. It did not issue a written order following the hearing until June 6, 2014, evidently due to delay on the part of the State in preparing it. Despite the delay, the order was consistent with the oral ruling. The court also set the case for review in six months, reconfirmed the permanency goal of reunification of GC with his

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mother, and continued the physical and legal custody of GC with the State.

[¶11] Following the January hearing, the MDT conducted its third and fourth meetings. The third meeting was held in January 2014. At that meeting, despite continuing problems with missed urinalysis tests and denial of substance abuse problems, the MDT again recommended family reunification for GC's permanency plan.

[¶12] At the fourth meeting held in April of 2014, the MDT again noted that there were continued problems with urinalysis, including a positive test for methamphetamine in March, and other missed tests and diluted samples. The report described some progress on Mother's mental health issues, but noted that she continued to miss group and individual counseling sessions. Consistent employment was also an issue. Mother stated that she was working inconsistent and sporadic hours at another new job, and that she was working for a temporary service as well. However, she failed to provide pay stubs and indicated that she was being paid " under the table" for at least one job. The majority recommendation after the April meeting was to change GC's permanency plan to termination of parental rights and adoption.

[¶13] On May 6, 2014, consistent with the MDT's recommendation, the GAL filed a motion for an order which would allow DFS to cease reunification efforts and change the permanency plan to adoption. Ten days later, the State also filed a motion to waive reunification efforts. Mother objected to the motions and requested that the court require DFS to pay for hair follicle testing because of claimed irregularities with drug testing. She claimed, among other things, that employees at the drug testing center were tampering with her samples.

[¶14] On June 4, 2014, the court held another review hearing in conjunction with a hearing on the pending motions relating to the permanency plan. At the hearing, neither the GAL nor the State presented any evidence, but instead based their arguments solely on the MDT reports. Mother did not offer any evidence to refute the findings or factual information in the reports, but her attorney implied that she would have objected to the foundation of the drug test reports referred to in the MDT reports if the hearing had been a trial, and she argued that hair follicle testing could refute the laboratory reports finding methamphetamine in the samples Mother gave.

[¶15] The court orally granted the motions filed by the GAL and the State, changed the permanency plan to termination of parental rights and adoption, and denied Mother's request that the State be required to pay for hair follicle testing. It found that because of Mother's continued use of methamphetamine and a lack of progress on her case plan, it was in GC's best interest to cease efforts at reunification. The court entered a written order consistent with the oral ruling ...


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