from the Juvenile Court of Laramie County The Honorable
Steven K. Sharpe, Judge
Representing Appellant: Tyler J. Garrett of Hathaway &
Kunz LLP, Cheyenne, Wyoming.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Misha Westby, Deputy Attorney General; Jill E.
Kucera, Senior Assistant Attorney General; and Rashell A.
Read, Assistant Attorney General. Argument by Ms. Read.
Guardian 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. Appearance by Mr.
DAVIS, C.J., and BURKE, [*] FOX, KAUTZ, and BOOMGAARDEN, JJ.
GS (Father) appeals from the juvenile court's order
changing the permanency plan for VS (the Child) from family
reunification to adoption. Father asserts the juvenile court
violated his right to due process at the permanency hearing
by proceeding without him being present, taking judicial
notice of the juvenile case file, and allowing the State of
Wyoming to present information about the case by offer of
proof. Father also claims the juvenile court abused its
discretion when it changed the permanency plan without
requiring the Department of Family Services (DFS) to make
reasonable efforts to reunify the Child with him.
The issues on appeal are:
I. Did the juvenile court commit plain error and violate
Father's due process rights when it held the permanency
hearing without securing his attendance or testimony, took
judicial notice of the juvenile court file, and allowed
information about the case to be presented through offers of
proof rather than sworn witness testimony?
II. Did the juvenile court abuse its discretion when it
determined that DFS made sufficient efforts to reunify the
family and it was in the Child's best interest to change
the permanency plan from reunification to adoption?
The Child was born in 2006 to Father and EL (Mother). Father
was incarcerated when the Child was born and remained in
prison until shortly before November 2017. He has never met
the Child. He is on parole in Alabama, living in unknown
In March 2016, the Laramie County district attorney filed a
petition alleging Mother had neglected the Child because he
had numerous unexcused absences and tardies at school. The
Child initially was not taken into protective custody.
However, DFS learned that the Child was actually residing
with his maternal grandmother, who was gravely ill.
Mother did not appear at either of two initial hearings,
likely because there were active warrants for her arrest, but
the court entered a denial on her behalf at the second
initial hearing. The juvenile court placed the Child in
DFS's legal custody and gave DFS and the guardian ad
litem (GAL) discretion to determine physical custody. The
juvenile court also ordered a Multi-Disciplinary Team (MDT)
to convene, hold meetings and report to the court. When it
became clear the maternal grandmother could not care for the
Child, he was placed in foster care.
On June 13, 2016, the juvenile court held an adjudicatory
hearing on the allegation that Mother had neglected the
child. Although her attorney was present, Mother again failed
to appear. The court ruled Mother had neglected her son, and
the Child was "a neglected child as defined by
statute." In August 2016, DFS developed a case plan
which Mother signed. The goal was family reunification with
Mother. Many aspects of the plan required Mother to address
her substance abuse issues. The case plan also required DFS
to diligently search for Father, who had since been
DFS learned that Father was incarcerated in Alabama. On
September 1, 2016, he was provided a form to request an
attorney be appointed to represent him in the juvenile case.
Father was not, however, considered a placement option
because of his lengthy prison sentence.
The MDT met on September 13, 2016, and neither parent
attended the meeting, either in person or by phone. The MDT
report said the Child was doing well in foster care, but
Mother was not making progress on her case plan. She
continued to use drugs and had been in jail. Father "was
currently in prison in Alabama and would not be released
until the year 2022." The DFS caseworker said she had
not heard from him about the case. Despite Mother's
noncompliance, the MDT recommended that the permanency plan
remain reunification with Mother.
On September 23, 2016, an attorney was appointed to represent
Father. Father filed a motion to appear by telephone at the
disposition hearing scheduled for November 14, 2016. The
juvenile court granted the motion and directed Father to call
the court at the appointed time.
At the disposition hearing, Mother and her attorney appeared
in court. Father did not call in, but his attorney appeared
in person. Father's attorney reported difficulty
contacting Father at the Alabama prison, but said she was in
contact with him via letters. There was discussion about
Mother's lack of progress on her case plan and the
possibility of developing a concurrent permanency plan in the
event reunification was not successful. The district attorney
discussed the option of placing the Child with a maternal
aunt and uncle, and Father's attorney stated that
Father's mother (the Child's paternal grandmother)
might be a placement option. Mother's attorney
acknowledged Mother's lack of progress on the case plan
but said she wanted the "opportunity to prove herself
and to reunite with her child."
At the end of the disposition hearing, the juvenile court
ruled the Child would remain in DFS custody and the
permanency plan would remain family reunification with
Mother. The court ordered Mother to comply with her case plan
and directed the parties to appear for a hearing in one
month. The juvenile court warned Mother that if she failed to
make progress on her case plan, the court would consider
changing the permanency plan. The court ordered DFS and the
GAL to, in the meantime, "continue to look for family
placement options." DFS's quarterly progress report
essentially recited the facts developed at the November 14,
2016 disposition hearing.
The MDT met on December 6, 2016, and neither Father nor
Mother attended. The MDT report noted Mother still was not
complying with her case plan, and the Child had not had any
visits with Father's "side of the family."
According to the MDT report, DFS had considered Father's
mother and sister as possible placement options. However,
Father's sister had never contacted DFS, and the DFS
caseworker voiced concerns about the Child being placed with
the paternal grandmother because she spoke only Spanish,
while the Child spoke English, and she "did not know if
she would be able to care for him." Father's
attorney stated that she was gathering more information about
Father's family for DFS. Father's attorney
recommended a permanency plan of guardianship with
Father's mother, and the rest of the MDT recommended that
the permanency plan remain reunification with a concurrent
plan of guardianship.
The court considered the case at a status hearing on December
19, 2016, which Mother attended. Although Father had received
permission to attend the hearing by telephone, he did not
call until near the end of the meeting. The State requested
that the court change the permanency plan to a concurrent
plan of family reunification and guardianship, although
suitable guardians were proving difficult to locate. The
maternal aunt and uncle who had earlier been identified as a
possible placement were still completing the requirements for
a home study. The court approved the permanency plan of
reunification with a concurrent plan of guardianship and
found DFS had made reasonable efforts toward those goals.
On September 20, 2017, DFS filed a quarterly progress report.
The report stated that Mother had not complied with her case
plan and had not attended visitation with the Child since
February 2017. The Child's maternal aunt and uncle had
apparently completed their study, moved to Cheyenne, and the
Child was placed with them in May 2017. The Child flourished
in the aunt and uncle's care. Father and his family
supported guardianship being placed with the aunt and uncle.
DFS recommended the permanency plan be changed to
guardianship with the aunt and uncle.
The MDT held a meeting on October 11, 2017, which Father
attended by telephone and his attorney attended in person.
Mother was in jail, and her attorney did not attend. The DFS
caseworker stated that the Child was doing very well with his
aunt and uncle and wanted to remain with them. The MDT report
stated that Father had been granted parole, but his release
date was unknown. The DFS caseworker also said that Father
sent the Child letters and pictures, but the Child did not
want to respond.
At the MDT meeting, Father stated he had changed his mind and
now refused to consent to the aunt and uncle having
guardianship of the Child. "[H]e wanted the opportunity
to be a father since he never had the chance. [Father] stated
he wanted to claim [the Child] if he could." His
attorney, therefore, recommended that the Child be placed
with Father upon his release from prison. The district
attorney and the DFS caseworker recommended changing the
permanency goal to termination of parental rights and
adoption by the aunt and uncle.
The court held a review hearing on October 23, 2017. Father
appeared by telephone, and Mother did not appear. The
district attorney, DFS and the GAL asked that the permanency
plan be changed from family reunification to adoption.
Mother's attorney was unsure of Mother's position on
the permanency plan, so he asked for an evidentiary
permanency hearing. Father's attorney agreed with the
request for an evidentiary hearing because Father was opposed
to the proposed change of the permanency plan.
The juvenile court held a permanency hearing on November 17,
2017. Mother did not appear, but agreed to relinquish her
parental rights. Father had been released from prison, and
the juvenile court granted him permission to attend the
hearing by telephone from Alabama. He did not, however,
answer when the court called him. His attorney attended the
hearing in person, and the juvenile court asked her whether
Father had notice of the hearing, to which she responded:
It was my understanding that he would be ready to answer the
phone call. I also explained to him that while it is set for
9 o'clock, these are stacked settings, so it may be 10
o'clock or 11 o'clock his time by the time he
receives a call. So I have no explanation for his absence or
his not answering the telephone.
In light of Father's failure to appear for the
evidentiary hearing, the State requested to present an offer
of proof as to why the permanency plan should be changed from
family reunification to adoption. The State also requested
that the court take judicial notice of the juvenile court
file and all the information contained therein. Father's
attorney did not object to the State's proposed procedure
or request a continuance to secure Father's attendance.
The juvenile court declared Father in default with respect to
the permanency hearing and stated that "a proffer would
be an appropriate way for the State to proceed." It also