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In re JB

Supreme Court of Wyoming

March 7, 2017

IN THE INTEREST OF: JB and TLW, Minor Children.
v.
THE STATE OF WYOMING, Appellee (Petitioner). TW, Appellant (Respondent),

         Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge

          Representing Appellant: Lisa K. Finkey, Gillette, Wyoming.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha E. Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Timothy W. Miller, Senior Assistant Attorney General.

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

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

          KAUTZ, Justice.

         [¶1] The juvenile court adjudicated TW a neglectful parent to his two children, JB and TLW. TW appeals the decision, arguing that he could not be neglectful because he did not have physical custody or control of the children at the time the State alleged the neglectful behavior occurred. We find that the applicable statutes do not require that a parent or noncustodial parent have actual physical custody or control of the children in order to be found to have neglected the children. Accordingly, we affirm the juvenile court's decision.

         ISSUE

         [¶2] TW raises one issue in this appeal:

Whether the district court (sic) erred when it found that, even though [TW] did not have physical custody of his children, [TW] neglected his children pursuant to Wyoming Statute § 14-3-202(a)(viii)?

         The State articulates a similar issue, although it unnecessarily expands on it, by stating:

Neglect occurs when "those responsible for a child's welfare" fail or refuse to provide care necessary for the child's well-being. A parent is "a person responsible for a child's welfare." Can a juvenile court enter a finding of neglect against a parent when the parent did not have physical custody or control of the child when the neglect occurred?[1]

(footnote added).

         FACTS

         [¶3] On December 22, 2014, family members reported to the Department of Family Services (DFS) that they were concerned AB (mother of the children) was using drugs and not providing adequate care for her children, JB, TLW and KB.[2] DFS promptly assigned the case to investigator Dena Knox who met with JB and TLW's two paternal aunts, paternal uncle, and paternal grandmother on December 23, 2014. At that meeting Ms. Knox learned that TW was incarcerated in a Department of Corrections treatment facility in Casper, Wyoming. Paternal grandmother phoned AB, who then met with Ms. Knox and the family. Ms. Knox told AB about the family's concerns, and asked AB to provide a urine sample for drug testing. AB refused. Ms. Knox learned AB was homeless, so she explained the importance of a stable home for the children. At that point, AB agreed that the children would stay with paternal grandmother for five months so AB could get her affairs in order.[3]

         [¶4] On January 28, 2015, the State filed a neglect petition against AB. The State alleged that AB failed to tend to her children's medical needs and was unable to care for her children because she was at times under the influence of methamphetamine and marijuana. The juvenile court entered an order to appear, and required AB and TM (KB's father) to appear for an initial hearing. TW, the father of JB and TLW, was still in the custody of the Wyoming Department of Corrections and was not ordered to appear.[4]However, the record shows the State intended to serve ...


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