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In re L-Mhb

Supreme Court of Wyoming

September 19, 2017

IN THE INTEREST OF: L-MHB, A Minor Child, DM, f/k/a DF, Appellant (Respondent),
THE STATE OF WYOMING, Appellee (Petitioner).

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

          Representing Appellant: Deborah L. Roden of Woodhouse Roden Nethercott, LLC, Cheyenne, WY. Argument by Ms. Roden.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha E. Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Shawnna M. Herron, Senior Assistant Attorney General. Argument by Ms. Herron.

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

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

          HILL, JUSTICE.

         [¶1] DM (Mother) gave birth to L-MHB on April 15, 2014, and the child was immediately placed in protective custody due to concerns that Mother was a danger to her and was unable to properly care for her. The juvenile court held timely shelter care, initial, and adjudicatory hearings, but there were inordinate delays in the court's issuance of adjudication, disposition, and permanency orders.

         [¶2] Mother appeals the court's permanency order, which changed the permanency plan for L-MHB from family reunification to adoption. She contends that the order violated her due process rights, made inadequate findings, and was not supported by sufficient evidence. We affirm.


         [¶3] Mother states the issues on appeal as:


The juvenile court's order changing permanency violated DM's constitutional due process rights because it was entered without notice or an opportunity to be heard, counted pre-adjudication and disposition delay against DM, and failed to make the requisite statutory findings on permanency.



         [¶4] Mother gave birth to L-MHB on April 15, 2014, and on April 17, 2014, the State filed a petition alleging neglect. Attached to the State's petition was an affidavit by the pediatrician who examined L-MHB shortly after her birth. The affidavit attested:

1. At 10:18 P.M. on April 15, 2014, [Mother] gave birth to a baby girl at Cheyenne Regional Medical Center.
2. I placed a protective hold on [Mother's] baby because I believe that the baby would be in danger if she were to be discharged or in the hospital room with [Mother].
3. I believe the baby is in danger for the following reasons:
a. [Mother] was an inpatient on Cheyenne Regional's Behavioral Health Unit twice during this pregnancy. Both admissions she reported suicidal tendencies. Her verbalized suicide plans ensured that the unborn baby she was pregnant with would also die.
b. During an inpatient behavioral health admission [Mother] asked staff how she could kill the baby she was carrying, and how long it would take to kill the baby.

c. [Mother] has reported using drugs during this pregnancy.

d. [Mother] has not followed up with a mental health treatment regime despite her hospitalizations and is not currently on medication for her depression or suicidal ideations.

e. [Mother] is unhygienic and I feel she is unable to properly care for her child.

f. [Mother] has relayed that she stops breathing at night and that her dog must jump on her to restart her breathing.
4. As such, I believe that the Department of Family Services needs to take protective custody of [Mother's] child.

         [¶5] On April 17, 2014, the juvenile court held a shelter care hearing, which was attended by Mother and her attorney. Following that hearing and on that same date, the court issued a shelter care order directing that legal custody of L-MHB remain with the State and that she be placed in foster care upon discharge from the hospital. On April 22, 2014, the court issued an order directing the Department of Family Services (DFS) to prepare a predispositional report.

         [¶6] On May 8, 2014, the juvenile court held the first of two initial hearings. During that hearing, Mother's attorney indicated that he had a potential conflict of interest, and the court continued the proceeding to ensure Mother had counsel before admitting or denying the neglect petition allegations. Mother's attorney also informed the court that Mother was concerned that she was being denied visitation with her child. Counsel for the State responded to those concerns, explaining:

[Mother's Attorney] indicated that the mother's visits have stopped. At this time, that is correct. She has been very threatening to the supervising staff at her last visit. She displayed a knife that she had brought to the visit, and the supervisor had safety concerns about that. She has made a number of threatening statements about murdering people, about the State messing with the wrong family, such that the supervisors who supervise the visits have concerns for their safety, and the safety of the child.
That being said, it is the intention of the team that works with her to try and meet with her to see if we can't establish some ground rules so that we could begin visits again, but until that occurs, at this time we're going to quickly run out of individuals willing to supervise her with that type of behavior. So at this time, there are no visits going on, but we hope to remedy that shortly.

         [¶7] At the close of the first initial hearing, the juvenile court ordered legal custody to remain with the State and L-MHB to remain in foster care. The court also instructed Mother to cooperate with DFS and attend meetings of the multidisciplinary team (MDT).

         [¶8] On May 29, 2014, the juvenile court held a second initial hearing. Mother denied the allegations of the neglect petition, informed the court that she had not been permitted visitation with the child since the first initial hearing, and requested that visitation be resumed. Counsel for the State reported:

I do have a letter from her treating psychiatrist, which does not recommend visits at this time. I would also share with the Court that we did make efforts to see whether or not the Laramie County Sheriff's Department would be willing to participate with us in providing some assistance for supervised visits, and currently, based upon the information they've received, they are unwilling to do that.
So we are not in a position where we feel that we can ensure the safety of the child, and would ask again that the Court consider at this time ordering no visitation.

         [¶9] Following the second initial hearing, the juvenile court again ordered legal custody to remain with the State and L-MHB to remain in foster care. With respect to visitation, the court did not foreclose visitation, but ordered any visitation to be supervised and at the discretion of DFS and the child's guardian ad litem (GAL).

         [¶10] On July 22, 2014, the juvenile court held an adjudicatory hearing. After hearing the State's and Mother's evidence, the court took the adjudication under advisement. On November 20, 2014, the court held its first statutorily required six-month review hearing.[1] By the time of this first review hearing, the court had not issued an adjudication order. Additionally, Mother had married and moved to Casper, Wyoming with her new husband, and Mother's attorney indicated that she would be filing a motion to transfer the case to Casper.[2] The court commented:

Very well. And I'll indicate to you that, while, as I say, regrettably it's been under advisement, the Court does have the record of the proceeding and the exhibits to review, but that review will occur shortly. Probably give it a week before you file your motion, because, of course, depending on the ruling, there may be no motion to file.
The Court will today direct, whether it's for a week or through to disposition, depending on the ruling, I will order in the interim that the minor remain in the legal custody of the State, and subject to foster care at this point.

         [¶11] About four months later, on March 24, 2015, the juvenile court issued a decision letter directing entry of an order adjudicating Mother neglectful. The court wrote:

I am writing to direct entry of an order adjudicating the mother neglectful. The trial of the matter on July 22, 2014, should have resulted in findings and an order. There is no indication as to why the order was never entered, other than this Court not formalizing the matter. This delay is neither contrary to the minor's interests, nor the mother's, as review activity has continued in the normal course of events despite the absence of formal adjudication.
The Court has reviewed the matter, including the record of all proceedings and finds by clear and convincing evidence that the minor here was neglected and subject to probable and imminent abuse or harm as the mother was unable to safely provide for her baby upon its birth due to her compromised mental state.
The mother admits some, but not all of the statements she made to the medical professionals, including expression, pre-birth, of her intentions to step in front of a truck and end her and the baby's lives. Her own suicidal ideations and some actions taken just prior to birth make out a present danger to the baby upon birth.
She expressed notions immediately following the birth which evidenced paranoia and a complete disconnect with reality that also made her a danger to the baby. She was, at the time of the filing of this Petition, totally incapable of caring for anyone safely. For instance, her insistence that an ex-boyfriend had his friends positioned as snipers around the hospital, (a statement repeated, and apparently believed by the mother at trial in July, many months later), make it clear her well established mental condition make her a danger to the minor.
[Counsel for the State] is to prepare the order in this regard, including a directive that the matter be set for disposition. [Counsel for Mother] is to approve the order to form. Any objections to the procedure should be drawn to the Court's attention by Motion within fifteen (15) days of the order being entered.

         [¶12] On April 15, 2015, the juvenile court entered its adjudication order, adjudicating L-MHB neglected and Mother as having neglected L-MHB. Mother did not appeal or file an objection to the adjudication order. On April 23, 2015, Mother filed a motion to change venue, and the court combined the hearing on that motion with its disposition hearing, which was held on May 20, 2015. At the disposition hearing, the court heard argument and recommendations from the State, the GAL, and Mother, both on disposition and the motion to transfer venue. The court then orally ruled that it would deny Mother's venue motion and further ruled:

The dispositional order will continue the legal custody in the State, and placement of the minor, and cooperation by [Mother] with the case plan. It is imperative - this year has gone by - not only months have gone by the time of the adjudicatory hearing, but even at the adjudicatory hearing, it was evident to this Court that she did not even back off of some of - if they were delusions or they were real and they were just very strange, whatever they were, she is an individual who struggles. There is no question that she's struggling. This Court is not separating her from this child because she is, sadly, struggling with mental illness.
I separated and continue to separate this woman from this child for the baby's safety. And the safety net that could have developed over the last year - with no visitation, the safety net could have developed, and work could have been done all along the way that has not been done. Now, she is someone clearly who doesn't want the government, and medical providers and so forth in her life, or the government to know what her medical providers say.
There is no way out of it now[.] [Mother] has got to comply with this case plan. There has got to be this sharing of a complete psychological evaluation, and at this point, in the child's interest, there has to be deadlines. The complete psychological evaluation completed and in the hands of the guardian ad litem immediately, or no longer than sixty days, and at the same time, any identified mental health provider has to be identified as having a release from her to speak to the Department and to the guardian ad litem.
That is a horrible invasion of privacy. I absolutely understand it, and I can even imagine [Mother's] face if she was in the courtroom to me saying this, but this is a baby, and if that baby is going to go safely home, I have to know these things, and a year has gone by. That is unacceptable. And there are procedural glitches and all that. We've done our review hearings, but there have been procedural glitches, but what's done is done. We have to reunify this family, and step one is that case plan.

         [¶13] On July 23, 2015, the juvenile court entered its written disposition order. The order directed that legal custody of L-MHB would remain with the State, placement would remain foster care through DFS, and family reunification would remain the goal. The order further directed, consistent with the court's oral ruling, that Mother: Continue to comply with her case plan; complete a psychological evaluation within sixty days of the May 20, 2015 disposition hearing and provide those results to DFS and the GAL; immediately sign and provide all releases from any mental health providers to DFS and the GAL; and participate in random UAs.

         [¶14] On November 5, 2015, the court held another six-month review hearing.[3] The State and GAL recommended that a permanency hearing be held and that the permanency plan be changed from reunification to adoption. Mother maintained that reunification should remain the goal. On that same date, the court issued an order finding that reasonable efforts to reunify were being made and directing that family reunification remain ...

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