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In re VS

Supreme Court of Wyoming

October 24, 2018

IN THE INTEREST OF: VS, Minor Child,
v.
THE STATE OF WYOMING, Appellee (Petitioner). GS, Appellant (Respondent),

          Appeal 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. Hockman.

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

          KAUTZ, Justice.

         [¶1] 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.

         [¶2] We affirm.

         ISSUES

         [¶3] 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?

         FACTS

         [¶4] 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 circumstances.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 identified.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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.

         [¶11] 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."

         [¶12] 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.

         [¶13] 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.

         [¶14] 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.

         [¶15] 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.

         [¶16] 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.

         [¶17] 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.

         [¶18] 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.

         [¶19] 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:

         He did, Your Honor.

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.

         [¶20] 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 agreed ...


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