IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: GAC, A Minor Child.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner). KRYSTAL KAYLYNN CAVE, Appellant (Respondent),
from the District Court of Natrona County The Honorable W.
Thomas Sullins, Judge.
Representing Appellant: Timothy C. Cotton of Cotton Legal,
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Misha Westby, Deputy Attorney General; Wendy S.
Ross, Senior Assistant Attorney General; Jill Kucera, Senior
Assistant Attorney General. Argument by Ms. Ross.
Guardian ad Litem: Dan S. Wilde, Deputy State Public
Defender; Aaron Hockman, Chief Trial and Appellate Counsel,
Wyoming Guardian ad Litem Program. Argument by Mr. Hockman.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury found that Appellee Department of Family Services
(DFS) had proven two statutory grounds for termination of
Appellant Krystal Kaylynn Cave's (Mother) parental rights
to GAC (Child). On appeal, Mother claims the district court
erred by allowing: 1) the guardian ad litem (GAL) to actively
participate in the termination proceedings; and 2) her
counselors to testify at trial over her claim of privilege.
The issues on appeal are:
1. Did the district court err by allowing the GAL to fully
participate in the termination proceedings?
2. Did the district court err when it allowed Mother's
mental health providers to testify at trial?
On May 20, 2013, the Child, who was two years old, was found
wandering alone near a busy street in Casper, Wyoming. He was
very cold because he was wearing only a t-shirt and socks,
with no diaper, underwear or pants. The person who found the
Child called law enforcement. No responsible adult could be
located, so the Child was taken into protective custody.
Mother arrived at the scene about forty minutes later. She
was frantic and demanded the officers return the Child to
her. She was told that, because he was already in protective
custody, she would have to make arrangements with DFS for the
Child's return. DFS was concerned about the Child's
living arrangements because a couple of months earlier, it
had investigated a report that Mother and the Child were
living in a storage unit. At that time, DFS offered Mother
help with locating housing and employment. However, after a
few meetings, Mother declined further assistance from DFS and
the agency closed the case.
Given this history, DFS required Mother to demonstrate that
she had a safe place for the Child to live before releasing
him, but she refused to allow the investigator into the house
where she said they were staying. Mother also tested positive
for methamphetamine use. A neglect action was filed, and,
after a shelter care hearing, the juvenile court ordered that
the Child remain in DFS custody.
In July 2013, the parties stipulated to a consent decree in
the juvenile case. Under the terms of the consent decree and
the court order accepting it, the neglect action would be
dismissed without adjudication if Mother completed the
objectives of her DFS case plan. Among other things, the case
plan required Mother to participate in substance abuse and
mental health counseling and to execute releases allowing DFS
access to her counseling records.
Although Mother made some effort to locate suitable housing
and employment and attended counseling, she did not fully
comply with the case plan. She continued to use
methamphetamine and failed to complete the required drug
testing. Consequently, in January 2014, DFS moved to
reinstate the proceedings and adjudicate Mother as having
neglected the Child. The juvenile court granted the motion.
After the adjudication, DFS continued to make efforts to
rehabilitate Mother with the goal of reunifying the family.
The agency provided various services to Mother, including
substance abuse treatment and mental health counseling.
However, she did not make adequate progress to complete the
case plan and, approximately six months later, the juvenile
court changed the permanency plan from family reunification
To implement the new permanency plan, DFS filed a petition in
district court to terminate Mother's parental rights to
the Child. The petition alleged that termination of
Mother's parental rights was appropriate under Wyo. Stat.
Ann. § 14-2-309(a)(iii) and (v) LexisNexis 2015),
respectively, because: 1) Mother neglected the Child,
DFS's reasonable efforts to rehabilitate the family were
unsuccessful, and the Child's health and safety would be
seriously jeopardized by returning him to Mother; and 2) the
Child had been in foster care for at least fifteen of the
most recent twenty-two months and Mother was unfit to have
custody and control of the Child. The court appointed the GAL
to represent the Child and counsel to represent Mother.
Mother requested a jury trial on the termination action and
filed a "Motion in Limine Excluding Guardian ad
Litem's Active Participation in Termination of Parental
Rights Trial and Exclusion of Evidence Not Relevant."
She claimed the GAL should not be allowed to actively
participate in the termination proceeding because the Child
was not a party and evidence pertaining to the best interests
of the Child was not relevant at the trial. The district
court denied Mother's motion "without prejudice to
the right of [Mother] to object to any irrelevant evidence
proposed for introduction at the termination of parental
DFS gave notice that it intended to call several of
Mother's and the Child's mental health providers to
testify as experts at trial. Mother filed a motion to exclude
that testimony, claiming DFS had failed to comply with
W.R.C.P. 26(a)(2) which requires disclosure of certain
information for witnesses designated to give expert
testimony. The district court denied the motion. A four day
trial was held on November 30 through December 3, 2015.
During the trial, the district court ruled that Mother's
mental health providers could not testify because she had
revoked earlier releases of information and invoked her
privilege to keep that information confidential. The jury did
not reach a verdict, and the district court declared a
In preparation for a second trial, DFS filed a motion to
allow Mother's mental health providers to testify, and
the GAL filed a memorandum of law which supported DFS's
motion. Mother opposed the motion, once more claiming that
her providers should not be allowed to testify because the
information was privileged. The district court ruled that,
after considering the matter further, there were several
exceptions to the privilege which permitted Mother's
mental health providers to testify at trial.
At the conclusion of the second trial, the jury returned a
verdict finding that DFS had proven both grounds to terminate
Mother's parental rights to the Child. The district court
entered an order terminating her rights, and she appealed.
Although Mother does not present an issue regarding the
sufficiency of the evidence to terminate her parental rights,
the procedural and evidentiary requirements for termination
of parental rights play some role in resolving this case and
bear repeating. The right to associate with one's family
is fundamental and protected by due process. Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71
L.Ed.2d 599 (1982). In recognition of the fundamental liberty
interest in family relationships, courts strictly scrutinize
petitions to terminate parental rights and require proof of
the basis for termination of parental rights by clear and
convincing evidence. Clear and convincing evidence is
"proof that would persuade a trier of fact that the
truth of the contention is highly probable." RGS v.
State, Dep't of Family Servs. (In re KGS),
2017 WY 2, ¶ 14, 386 P.3d 1144, 1147 (Wyo. 2017), citing
In re HLL, 2016 WY 43, ¶ 39, 372 P.3d 185, 193
Guardian ad Litem's Participation in Proceedings to
Terminate Parental Rights
Mother claims the district court erred by allowing the GAL to
actively participate in the termination proceedings. The role
of a guardian ad litem is a question of law that requires
review of the applicable statutes, administrative rules, and
case law. Our review is, therefore, de novo.
Williams v. Sundstrom, 2016 WY 122, ¶ 19, 385
P.3d 789, 794 (Wyo. 2016). See also Glover v. State,
860 P.2d 1169, 1173 (Wyo. 1993).
General Role of Guardian ad Litem in Termination
Wyo. Stat. Ann. § 14-2-312 (LexisNexis 2015) states in
After the petition [to terminate parental rights] has been
filed, the court shall appoint a guardian ad litem to
represent the child unless the court finds the interests of
the child will be represented adequately by the petitioner or
another party to the action and are not adverse to that
party. . . . The Wyoming Rules of Civil Procedure, including
the right of a parent, child or interested person to demand a
jury trial, are applicable in actions brought under this act.
(emphasis added). We interpreted § 14-2-312 in LM v.
Laramie County Dep't of Family Servs. (In re MN),
2007 WY 189, ¶ 6, 171 P.3d 1077, 1080-81 (Wyo. 2007):
Wyo. Stat. Ann. § 14-2-312 is an unambiguous mandatory
statute that does not allow the district court discretion not
to appoint a guardian ad litem or not to make the appropriate
record findings that no guardian ad litem is
required. Furthermore, the requirement that mandatory
statutes be obeyed is most compelling in cases such as ...