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In re ECH

Supreme Court of Wyoming

July 27, 2018

IN THE INTEREST OF: ECH, minor child, FH, Appellant (Respondent),
v.
THE STATE OF WYOMING, Appellee (Petitioner).

          Appeal from the District Court of Albany County The Honorable Tori R.A. Kricken, Judge

          Representing Appellant: David P. McCarthy, David McCarthy, P.C., Laramie, Wyoming. Argument by Mr. McCarthy.

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

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

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.

          FOX, JUSTICE.

         [¶1] FH (Father) appeals from the juvenile court's Order On Permanency Hearing, which changed the case plan for the minor child from family reunification to adoption and ordered the Department of Family Services (DFS) to cease reunification efforts. Father contends that, although he was not alleged to have abused or neglected the minor child, the juvenile court violated his due process rights when it did not advise him of his right to counsel and did not appoint an attorney until shortly before the permanency hearing. Father also appeals the juvenile court's denial of his request for transport from the Wyoming Honor Farm to attend the permanency hearing in person. We conclude that Father had a right to appointed counsel regardless of whether neglect proceedings were directed to him, but we affirm the Order On Permanency Hearing because Father has not established that he was prejudiced by the delay in appointing him counsel. We affirm the juvenile court's denial of Father's request for transport to the hearing.

         ISSUES

         [¶2] We restate the issues as follows:

1. Did the juvenile court commit plain error when it did not advise Father of his right to counsel and did not appoint counsel after Father's initial request?
2. Did the juvenile court deny Father due process of law when it denied his request for transport to the permanency hearing?

         FACTS

         [¶3] Father and Mother never married, but have one child together, ECH, born in 2012. Father and Mother resided together prior to the State filing the neglect petition. Both Father and Mother have an extensive history of substance abuse and interactions with law enforcement.

         [¶4] On May 3, 2016, Mother was arrested on a felony drug charge. Two days later, on May 5, 2016, DFS asked law enforcement officers to conduct a welfare check on the children because of reports that the children were without adult supervision or funds for food or transportation. When the officers arrived at the residence, they found Father hiding in a closet. He had an outstanding municipal warrant and had a syringe on his person, which officers suspected was used to inject methamphetamine. The officers arrested Father and took protective custody of all the children present in the home, [1] as an appropriate caregiver could not be located.

         [¶5] The next day, May 6, 2016, the State filed a Neglect Petition, focused on Mother's failure to provide adequate adult supervision for the minor children due to her incarceration. The petition stated that ECH's father was unknown. The juvenile court entered an Order for Predisposition Study and Report and Order to Create a Multi-Disciplinary Team. On May 9, 2016, the juvenile court appointed a guardian ad litem (GAL) to represent the children and held a shelter care hearing.[2] The court placed the children in the legal and physical custody of DFS for placement in foster care and set an adjudication hearing for June 20, 2016. The court appointed Mother counsel on May 10, 2016.

         [¶6] After confirming that ECH's birth certificate listed Father and that the state vital records office had an Affidavit Acknowledging Paternity on file, the State filed an Amended Neglect Petition on June 10, 2016.[3] The amended petition explained that it was "amended to correct the name of the minor child [ECH] and to add the acknowledged father, [Father], as a party to the case." The amended petition referenced Father as Mother's significant other, but did not contain any allegations of abuse or neglect against Father. On June 12, 2016, Father was served with the petition and advised of the date and time for the adjudication hearing. The juvenile court entered an order adding Father as a party to the case and amending the caption on June 14, 2016.

         [¶7] The State filed a Second Amended Neglect Petition on June 17, 2016, adding allegations against Mother. During the adjudication hearing held on June 20, 2016, Mother admitted the allegations contained in the second amended petition. Father was present during this hearing, and the juvenile court advised Father:

[The Court]: All right.
Before we get to you, [Father], there was a request to add you as a party in this matter as you are the father of record of [ECH] and the Court granted that motion.
I will tell you that at this point there's no allegation pending against you. The reason that the motion was granted was essentially to require you to appear at M.D.T. meetings and to participate in any reunification efforts here since you're the father. That obligation falls to you, but you're not accused of doing anything at this point, okay?
I've not appointed counsel or anything for you right now.

         The court did not give Father any additional advisements. At the conclusion of the hearing, the court continued to place legal and physical custody of the children with DFS and permitted supervised visitation between Father and ECH after three consecutive negative urinalysis tests (UAs). Father's first test was positive for methamphetamine. His second test was negative, but he was arrested for felony possession of methamphetamine and incarcerated before he was able to complete any further UAs.

         [¶8] Both parents were incarcerated and awaiting sentencing on felony methamphetamine drug charges by the time of the first Multidisciplinary Team (MDT) meeting on July 12, 2016. At that time, Father informed the MDT that grandmother was trying to reach DFS and he had been writing letters to ECH. The MDT discussed grandmother's visitation and ultimately recommended allowing visitation at DFS' discretion after consultation with the GAL and ECH's counselor. Father inquired why grandmother was not asked to care for ECH. Although the MDT minutes do not reflect a response to his inquiry, the DFS worker testified at the permanency hearing that she had met with grandmother on July 1, and at that time grandmother had said "she was not sure that she would be able to do it." Grandmother similarly testified that "I told her I didn't know if I could." At the conclusion of the meeting, the MDT recommended a permanency plan for ECH of reunification with Mother and Father.

         [¶9] The juvenile court held the final disposition hearing on August 1, 2016. The court adopted the MDT's recommendation for ECH's permanency goal. The court ordered Father to: (1) participate in or continue with individual counseling and family counseling and follow the recommendations of the counselors; (2) participate in "WrapAround" services; (3) submit to random UAs at DFS' request; (4) participate in and complete parenting classes; and (5) obtain a substance abuse evaluation and follow the evaluation's recommendations. Supervised visitation between Father and ECH would "occur only after three (3) consecutive negative UAs at the discretion of the Department of Family Services and after consultation with the Guardian ad Litem." The court also permitted visitation with grandmother at DFS' discretion after consultation with the GAL and ECH's counselor.

         [¶10] The day after the final disposition hearing, DFS completed a case plan incorporating the requirements set forth in the juvenile court's order, with a permanency goal for all of the children as reunification with a concurrent goal of adoption. At the next MDT meeting on October 25, 2016, both parents remained incarcerated, and Father reported that he would be incarcerated for approximately eighteen months. Father and Mother continued to send letters to ECH. Father requested telephone visitation, and Mother's attorney also pushed for more contact between the parents and children. The MDT agreed that the parents should continue with letter writing and move to supervised therapeutic visitation after it was approved by ECH's therapist.

          [¶11] The juvenile court held a review hearing on December 12, 2016. Father and Mother could not attend the hearing because of issues with their respective penitentiary facilities, although Mother's attorney was present. After the hearing, the court entered an Order on Review Hearing and Order Setting Permanency Hearing. This order changed the permanency plan from reunification for all of the children, including ECH, to "relative placement with a concurrent goal of guardianship/adoption" without explanation. The court set a permanency hearing for April 28, 2017.

         [¶12] The next MDT meeting occurred on January 31, 2017. Aside from mentioning Father was at the Wyoming Honor Farm and DFS was working to update his case plan due to that change, no other mention of Father was made during this meeting.[4] Telephone calls or other forms of visitation between ECH and his parents were still not taking place. The DFS caseworker reported that grandmother attended ECH's birthday party, brought him a gift at Christmas, and was requesting more visitation. The caseworker expressed to the MDT that "they want to make sure this happens in an appropriate way." ECH's counselor informed the team about a personal issue between herself and the foster parents, resulting in ECH's case being transferred to a new counselor. Due to a scheduling conflict, the MDT continued the meeting to another date and did not make recommendations.

         [¶13] The MDT reconvened on February 24, 2017. Father informed the team that he was taking several classes, including Responsible Fathers and Inside Out relationship classes. He also told the team he wanted an attorney to represent him in the proceedings. The district attorney suggested Father write a letter to the court requesting the appointment of counsel. The MDT continued discussions about commencing visitation between ECH and his parents. Mother's attorney expressed her frustration that the permanency hearing was approaching and yet little effort had been made toward facilitating any form of visitation with ECH. ECH's new counselor explained that he and ECH were still developing a relationship, having only met twice. The participants discussed ECH's progress and the implementation of telephone and in-person visitation with his parents. Mother's attorney repeatedly urged implementation of parental visitation and expressed her frustration that it had been delayed by the counselor's desire to continue to evaluate how ECH would react to such visits. The GAL informed the team that she would like a concurrent goal of adoption for ECH. At the conclusion of this meeting, the MDT did not have a unanimous recommendation concerning visitation between ECH and his parents. The MDT also did not reach a unanimous recommendation for ECH's permanency goal, and instead provided the following recommendations to the court: (1) family reunification with a concurrent goal of guardianship or adoption, or (2) family reunification without a concurrent plan.

          [¶14] Father filed a letter with the juvenile court on February 28, 2017, requesting counsel. In the letter, Father explained that he did not fully understand the case's procedural posture, including what occurred during the review hearing, which he could not attend. He also stated that he had not been through this type of case, was unsure whether he was being treated fairly, and did not know what his rights were, among other things. The juvenile court did not act on Father's request.

         [¶15] In March 2017, grandmother contacted the DFS caseworker and met with her to discuss pursuing placement of ECH with her. It was apparent to the DFS worker that grandmother was only willing to take ECH on a temporary basis, and return the child to either or both of his parents upon their release. Grandmother recalled:

Well, I had went in and told [the DFS worker] that I, you know, was thinking maybe that I could do it or whatever, but then, you know, it was like -- she said that if I did it, then I would be responsible for him until he was 18. I was under the impression that it would just be until, you know, [Father and Mother] got out of jail and you know. . . .

         The DFS worker advised her to consult with a lawyer. Grandmother did not pursue placement, saying "nobody's ever explained really anything to me." The juvenile court concluded that "she was hesitant at assuming full-time care for [ECH], still ...


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