IN THE INTEREST OF: ECH, minor child, FH, Appellant (Respondent),
THE STATE OF WYOMING, Appellee (Petitioner).
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.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.
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.
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
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.
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,
an appropriate caregiver could not be located.
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. 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,
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. 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.
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.
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.
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.
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.
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.
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. 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.
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
[¶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
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.
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. . . .
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 ...