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In re DT

Supreme Court of Wyoming

April 5, 2017

IN THE INTEREST OF: DT and NT, Minor Children.
v.
THE STATE OF WYOMING, Appellee (Petitioner). ST, Appellant (Respondent),

         Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: Christopher G. Humphrey of Christopher G. Humphrey, P.C., Cheyenne, Wyoming.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha E. Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Senior Assistant Attorney General. Argument by Ms. McCabe.

          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.

          FOX, Justice.

         [¶1] ST (Mother) appeals from the juvenile court's order changing the permanency plan from reunification to adoption. Mother claims that the juvenile court erred when it did not make a determination prior to the hearing regarding the children's attendance at the permanency hearing, and that she was denied due process of law when the permanency hearing was held without the children. Mother also contends that there was insufficient evidence presented by the State of Wyoming, Department of Family Services (DFS), to support the juvenile court's decision to change the permanency plan from reunification to adoption. We affirm.

         ISSUES

         [¶2] 1. Did the juvenile court commit plain error when it did not determine whether the children should be present at the hearing prior to the hearing?

         2. Were Mother's due process rights violated when the juvenile court did not require the presence of the children at the hearing?

         3. Was there sufficient evidence to support the juvenile court's change in the permanency plan from reunification to adoption?

         FACTS

         [¶3] A Cheyenne police officer responded to a DFS referral to conduct a welfare check on two children, DT and NT, at the Big Horn Motel in Cheyenne, Wyoming. Upon arrival, the officer observed that the motel room was "filled with various boxes, clothing, furniture, and other belongings to a height of around 6 feet." When the officer knocked, NT climbed over the items in the room to answer the door. Mother and TO (Mother's boyfriend) were asleep inside the room. The officer could only partially open the door and was unable to enter the room. He observed that the children were wearing dirty clothing and had visible dirt on their skin. The children told the officer that they had not bathed in a week because they could not get past the piled possessions to the shower. The officer also observed an open bottle of vodka, marijuana, and drug paraphernalia inside the room. Based on these observations, the officer determined that the children's safety was at risk and placed DT and NT into protective custody.

         [¶4] The State filed a petition alleging that Mother had neglected DT and NT. The juvenile court held a shelter care hearing on August 18, 2014, and in a Stipulated Order for Continued Shelter Care, it placed the children in the temporary legal custody of the State, with temporary physical placement with Mother. The court appointed a guardian ad litem (GAL) for DT and NT, and an attorney to represent Mother.

         [¶5] On October 9, 2014, the juvenile court held an initial hearing at which the parties stipulated to a Consent Decree. Mother admitted to the allegations of the neglect petition, agreed to complete the DFS case plan, and agreed to undergo random drug testing at the direction of DFS. The State requested that the court hold the neglect proceedings in abeyance. The DFS case plan, with the goal of family preservation, required Mother to obtain permanent housing and maintain a clean home, complete parenting classes, complete the testing necessary to evaluate her on the Addiction Severity Index (ASI)[1] and follow any recommendations of the evaluation, and maintain employment. The Consent Decree also provided that if Mother failed to fulfill any of the terms and conditions of the decree, the State could proceed on the petition and Mother would be considered in contempt of court. The Consent Decree was to be in effect for six months, unless sooner discharged by the court, and could be extended for an additional six months upon good cause. The court ordered that prior to completion of the initial six-month period, the parties would conduct a Multidisciplinary Team (MDT) meeting to determine whether the decree should be dismissed or extended. The children continued to be in the legal custody of the State, with physical placement with Mother.

         [¶6] Mother struggled to comply with the case plan. DFS did a random drop-in at the end of October 2014, and found the motel room again filled with various boxes, belongings, and furniture. Mother told DFS everything would be out of the room by the following day, and when DFS returned, the room had been cleaned, and DFS allowed the children to stay in Mother's physical custody. Mother completed the required parenting classes. Mother participated in an ASI evaluation through Pathfinder, a drug addiction treatment center, which recommended Mother participate in an Intensive Outpatient Treatment (IOP) program.

         [¶7] DFS requested that Mother submit to weekly urine analysis (UA) tests, and Mother agreed to do them at Drug Testing Center of Cheyenne. Mother arrived for her first scheduled UA on November 5, 2014, and was unable to provide an adequate sample amount. The following day Mother was able to provide an adequate, negative sample. Mother then requested that she be able to complete future UA tests at Pathfinder so she could participate in the IOP program at the same place; DFS agreed. Mother provided a second negative UA on November 13, 2014. Mother failed to provide any further urine analysis at either the Drug Testing Center or Pathfinder, notwithstanding DFS's repeated requests that she do so. Mother also failed to participate in any IOP program as recommended by Pathfinder and required by the case plan.

         [¶8] In its December 2014 Quarterly Progress Report, DFS recommended that the Consent Decree be revoked based on Mother's failure to cooperate with her case plan and court orders. These failures consisted of multiple unsuccessful attempts by DFS to check conditions of the motel room, including both unannounced drop-ins and attempts to schedule appointments to check the conditions, failure to complete UA tests, and failure to participate in an IOP program. On December 22, 2014, DFS attempted another unannounced drop-in at the motel. After Mother failed to answer the door, DFS asked the motel manager to open the door. Upon entry, DFS found the room in the same cluttered condition as it had been in August. The children were hiding under a table and Mother was hiding in the bathroom. DFS determined that the children's safety was again at risk and placed DT and NT back into protective custody.

         [¶9] The State then filed a Petition to Revoke Consent Decree. By this time, Mother had missed six scheduled UAs, failed to begin an IOP program, and failed to provide a safe, clean environment for the children. At the hearing, Mother admitted to the allegations supporting the petition to revoke the Consent Decree. Also at the hearing, Mother told DFS that she could not afford the UA testing, and DFS informed Mother that DFS would pay for the testing through the Drug Testing Center. The juvenile court entered Mother's prior admission to the allegations in the original neglect petition, and found DT and NT to be neglected children. The court ordered that DFS would have legal and physical custody of DT and NT.

         [¶10] DFS completed a Six Month Review report in early February 2015. Mother had been kicked out of the motel, she no longer had a working phone number, and DFS had been unsuccessfully trying to reach Mother via e-mail. DFS noted in the report that the permanency plan was still family reunification despite the fact that Mother still had not started an IOP program or submitted to any UA testing since November 13, 2014.

         [¶11] The initial MDT meeting was held on February 17, 2015. Mother did not attend, but her attorney was present. DFS recommended that the children remain in the legal custody of DFS, with physical placement in foster care. The State further recommended that Mother work her case plan. In its Predisposition Report filed with the court on March 6, 2015, DFS stated that Mother had still not participated in an IOP program, or complied with her court ordered UAs, but recommended that the permanency plan still be family reunification.

         [¶12] At a disposition hearing on April 9, 2015, the juvenile court found it in the best interest of the children to remain in the legal custody of the State, with physical placement in foster care. The court ordered Mother to work her case plan and undergo the previously ordered random UA tests. Mother requested to change the location of the UA testing to Foundations. The court also ordered DFS to begin an Interstate Compact on the Placement of Children (ICPC), Wyo. Stat. Ann. § 14-5-101 (LexisNexis 2015), home study on the maternal grandparents in South Dakota.

         [¶13] DFS filed another Quarterly Progress Report with the court in May 2015. At that time the permanency plan was still family reunification. DFS reported that it had informed Mother that it could not pay for UA testing through Foundations due to pricing, but that it would still pay for the testing through the Drug Testing Center. DFS contacted the Cheyenne Housing Authority and provided Mother with an application to complete and return to the Housing Authority, and referred Mother to several job openings. As of the date of the report, Mother had still not participated in an IOP program or completed any UA testing. Mother was unemployed and did not have a stable residence. DFS had been in contact with the maternal grandmother (Grandmother) in South Dakota, and had started the ICPC process.

         [¶14] The second MDT meeting was conducted on May 21, 2015. Grandmother attended by phone and the MDT Meeting Report noted that Grandmother had begun the ICPC process, and was looking forward to having the children live with her. Mother stated that she wanted the children to go to Grandmother, and she explained that she could not afford an IOP program, she had not completed further drug testing, and she did not have a job or a place to live. The MDT again recommended that the children stay in the legal and physical custody of the State, that Mother continue to work her case plan, and that she complete the required UA testing.

         [¶15] Mother did not attend the third MDT meeting held on August 11, 2015. DFS noted again that Mother had not been working her case plan and had not completed any UA testing, and indicated that without significant progress in her case plan, it would recommend a change to the permanency plan.

         [¶16] DFS submitted a 12 Month Permanency Hearing report, which indicated that Mother would be required to complete a new ASI evaluation, as the initial one was no longer up to date. Additionally, the report informed the court that Mother still did not have a stable residence, had not participated in the required UA testing, and had not kept in contact with the DFS caseworker on her case. DFS still recommended family reunification, but noted that the ICPC was completed and placement with Grandmother had been approved. At the twelve-month permanency hearing held on September 3, 2015, the court ordered that the legal custody of the children would remain with the State, with placement in relative foster care. The children had been residing with Grandmother in South Dakota since August 20, 2015.

         [¶17] In its November 2015, Quarterly Progress Report, DFS recommended that the permanency plan change from family reunification to adoption or guardianship with the maternal grandmother. At the fourth MDT meeting in December 2015, Grandmother attended by phone and, according to the ...


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