In the Matter of the Termination of Parental Rights to AGS and AMLD, Minor Children. SAS ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 143
OCTOBER TERM, A.D. 2014
November 7, 2014
IN THE MATTER OF THE
TERMINATION OF PARENTAL
RIGHTS TO AGS and AMLD, Minor
Children.
SAS,
Appellant
(Respondent), S-14-0089
v.
STATE OF WYOMING, DEPARTMENT
OF FAMILY SERIVCES,
Appellee
(Petitioner).
Appeal from the District Court of Natrona County
The Honorable Catherine E. Wilking, Judge
Representing Appellant:
Jacqueline K. Brown, Casper, Wyoming.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; Robin Sessions Cooley, Deputy
Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Douglas J.
Moench, Senior Assistant Attorney General; Shawnna M. Herron, Assistant
Attorney General. Argument by Ms. Herron.
Guardian Ad Litem:
Dan S. Wilde and Aaron S. Hockman, Cheyenne, Wyoming. Argument by Mr.
Hockman.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] Appellant SAS appeals the district court’s order terminating her parental rights to
her two children, AGS and AMLD. SAS alleges that the district court lacked jurisdiction
to terminate her parental rights because the Department of Family Services (DFS) and the
district court did not comply with statutorily mandated deadlines; that DFS failed to
establish by clear and convincing evidence that parental rights should be terminated; and
that cumulative errors committed throughout the proceedings violated her constitutional
right to due process. In her reply brief, SAS also argues that she received ineffective
assistance of trial counsel. We affirm.
ISSUES
[¶2] 1. Did the district court lose jurisdiction to terminate SAS’s parental rights when
DFS and the district court did not abide by the statutory deadlines?
2. Did DFS establish by clear and convincing evidence that SAS’s parental
rights should be terminated?
3. Was cumulative error committed such that SAS’s constitutional right to due
process was violated?
4. Was SAS’s allegation of ineffective assistance of counsel appropriately raised
for the first time in SAS’s reply brief?
FACTS
[¶3] SAS is the biological mother of AGS and AMLD. 1 SAS, AGS, and AMLD
(collectively, the family) have a long history with DFS, the juvenile court, and law
enforcement. Each of the family’s contacts with these agencies stem from SAS’s abuse
of alcohol and narcotics. Because we base our decision, in part, upon an ongoing pattern
of neglect, an overview of the family’s history with DFS is necessary.
[¶4] The family’s first contact with DFS occurred in November 2007 in Powell,
Wyoming. At that time, the family was residing with AMLD’s biological father. AGS
and AMLD were ages three and one, respectively. SAS was drinking at home while
AMLD’s father was at work and the children were asleep. SAS wanted to continue
drinking, so she abandoned the home, leaving the children alone and still asleep in their
beds. On her way to a local bar, SAS was stopped by a police officer, made to perform
field sobriety tests, and arrested for driving while under the influence.2 DFS became
1
AGS and AMLD have different fathers, neither of whom are at issue in this appeal.
2
SAS was ultimately convicted of driving while under the influence.
1
involved in the incident after learning that the children had been left at home without
supervision. The children were removed from the home, and the juvenile court
adjudicated the children neglected. A case plan was implemented, and the children were
eventually returned to SAS’s custody. DFS closed the case on August 19, 2008.
[¶5] A second contact with law enforcement and DFS occurred on August 31, 2008.
Highway patrol responded to a REDDI (report every drunk driver immediately) report in
the area of Independence Rock. Troopers soon found the reported vehicle, as well as the
driver, SAS, and two child passengers, AGS and AMLD, pulled over on the side of the
road. Observing that SAS appeared intoxicated, the troopers administered field sobriety
tests which SAS failed. The troopers placed SAS under arrest.3 The troopers took the
children into protective custody finding that they were in “substantial risk of harm or
death,” and contacted DFS, which then assumed custody of the children. A petition was
filed in juvenile court, the court adjudicated the children neglected, and they were again
removed from SAS’s care. Another case plan was implemented, working toward the goal
of reunification with SAS. In accordance with the case plan, both children were
eventually reunified with SAS. DFS closed the second case on April 22, 2010.
[¶6] The third contact with DFS and law enforcement occurred on November 24, 2011.
At that time, the family was living in Casper, Wyoming, but SAS had traveled to
Laramie, Wyoming, with AGS to celebrate Thanksgiving with a friend.4 Upon reaching
Laramie, SAS left AGS with a babysitter, went to a bar with her friend, and began
drinking. After a violent confrontation with her boyfriend, SAS picked AGS up from the
babysitter and began driving back toward her home in Casper. On their way back to
Casper, SAS and AGS were involved in a single car accident. The vehicle rolled, and
SAS was thrown from the car. When SAS revived, she found AGS still in the front seat
of the vehicle. The pair was soon picked up by a passing driver.
[¶7] After authorities were notified, SAS and AGS were transported to Casper by
ambulance. At the hospital, urine samples were taken from SAS indicating an alcohol
concentration of .17%. SAS was arrested at the hospital and charged with driving while
under the influence of intoxicating liquor and child endangerment. As a result of a plea
agreement, SAS pled nolo contendere to the drunk driving charge and the child
endangerment charge was dismissed. The district court sentenced SAS to nineteen to
twenty-four months imprisonment.
[¶8] Meanwhile, a doctor working in the emergency room placed AGS in protective
custody after learning of the circumstances of the accident. DFS responded to the
hospital and custody of AGS was transferred to DFS. A juvenile petition was filed as a
3
SAS was charged with driving under the influence, two counts of child endangerment, driving with a
suspended license, driving with no insurance, driving with no registration, and possession of a controlled
substance. SAS was convicted of driving under the influence, two counts of child endangerment, and
driving with a suspended license.
4
At the time, AMLD was staying with her paternal grandmother at SAS’s request.
2
result of the incident in which AGS was identified an abused and neglected child and
AMLD was identified a neglected child. SAS did not appear at the initial hearing held on
December 14, 2011, and the juvenile court adjudicated the children abused and neglected
in accordance with the petition.
[¶9] SAS was again arrested on April 7, 2013, for “under the influence and . . .
possession of cocaine.” SAS pled guilty to the charges and was sentenced to a year of
incarceration to run concurrent with her sentence resulting from the November 2011
incident. At the time of the trial on the termination petition, SAS was incarcerated in the
Wyoming Women’s Center.
[¶10] The termination case commenced on January 18, 2013, when the State filed the
petition to terminate SAS’s parental rights to both AGS and AMLD and to terminate the
parental rights of AGS’s father.5 The State initially filed its petition for termination of
SAS’s parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) (LexisNexis 2013),
which provides that the parent-child relationship may be terminated when
[t]he child has been abused or neglected by the parent and
reasonable efforts by an authorized agency or mental health
professional have been unsuccessful in rehabilitating the
family or the family has refused rehabilitative treatment, and
it is shown that the child’s health and safety would be
seriously jeopardized by remaining with or returning to the
parent[.]
SAS was served with the petition in early April 2013, and filed an answer and
counterclaim.
[¶11] The State later amended its petition to include termination of SAS’s parental rights
pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v) (LexisNexis 2013), which provides that the
parent-child relationship may be terminated when “[t]he child has been in foster care
under the responsibility of the state of Wyoming for fifteen (15) of the most recent
twenty-two (22) months, and a showing that the parent is unfit to have custody and
control of the child[.]”6
[¶12] The district court held the trial on the State’s petition to terminate SAS’s parental
rights beginning December 2, 2013. At its conclusion, the district court determined that
the State had proven by clear and convincing evidence that SAS’s parental rights should
5
AGS’s Father failed to answer the petition, and his parental rights were terminated as a result of a
default hearing held on October 25, 2013.
6
SAS did not answer the amended petition.
3
be terminated pursuant to both statutory provisions. It entered an order to that effect on
December 27, 2013. SAS timely perfected this appeal.
DISCUSSION
[¶13] Before we begin our discussion concerning the issues presented, a brief review of
the process leading to termination of parental rights is warranted. When a child is
removed from his or her home as a result of abuse or neglect, the procedures
and provisions of the Child Protection Act are instituted. Wyo. Stat. Ann. §§ 14-3-
401―14-3-440 (LexisNexis 2013). Once the child has been adjudicated abused or
neglected, the juvenile court determines the permanency plan for the child―whether the
child should be reunified with his or her family or whether the child’s best interests are
served by severing the parent-child relationship. Wyo. Stat. Ann. § 14-3-431(j). A
juvenile court’s determination not to reunify the family typically leads to the
commencement of termination proceedings against the child’s parent or parents. Wyo.
Stat. Ann. § 14-3-431(k). The termination proceedings cannot be commenced in the
juvenile court, but instead must be brought in district court. As a result, while the
underlying decisions relating to the disposition of the child are made in juvenile court, the
ultimate determination as to whether parental rights should be terminated rest solely with
the district court.7
I. Did the district court lose jurisdiction to terminate SAS’s parental rights when
DFS and the district court did not abide by the statutory deadlines?
[¶14] SAS first contends that the district court lacked jurisdiction to terminate her
parental rights because both DFS and the district court failed to abide by statutorily
mandated deadlines. She argues that DFS did not file a petition to terminate her parental
rights within sixty days of the juvenile court’s determination not to reunify the family as
mandated by § 14-3-431(o). SAS next asserts that the district court was required to hold
a hearing on the petition within ninety days in accordance with § 14-3-431(p), and its
failure deprived the district court of jurisdiction to hear the case. SAS is incorrect on
both counts.
[¶15] SAS failed to raise these jurisdictional questions in the district court proceedings.
However, “[a] challenge to subject matter jurisdiction may be asserted at any time by any
interested party or sua sponte by the court at the trial or appellate level.” Ahearn v.
Anderson-Bishop P’ship, 946 P.2d 417, 422 (Wyo. 1997). Because the existence of
subject matter jurisdiction is a question of law, we review such challenges de novo.
7
While Wyoming statutes provide that jurisdiction over the juvenile proceedings and termination
proceedings rest with different courts―juvenile court and district court, respectively―the State of
Wyoming does not have a separate juvenile court system. Instead, district judges also serve as juvenile
court judges in abuse/neglect, CHINS (child in need of supervision), and delinquency proceedings.
4
Harmon v. Star Valley Med. Ctr., 2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo. 2014)
(citations omitted).
[¶16] SAS bases her argument on statutory provisions in the Child Protection Act,
§§ 14-3-401―14-3-440. Section 14-3-403(b) of the Child Protection Act states, in
pertinent part:8
Nothing contained in [the Child Protection Act] is construed
to deprive the district court of jurisdiction to determine
questions of custody, parental rights, guardianship or any
other questions involving minors, when the questions are the
subject of or incidental to suits or actions commenced in or
transferred to the district court as provided by law[.]
(Emphasis added.) The legislature has made clear that the district court cannot be
deprived of jurisdiction to determine issues of parental rights based on any provision
within the Child Protection Act when such issues are the subject of an action commenced
in district court, as is the case in termination of parental rights proceedings. Section 14-
3-403(b) therefore precludes SAS’s claim that the district court’s jurisdiction was
deficient.
[¶17] While § 14-3-403(b) controls the outcome of this issue, we remind both the State
and the district courts that the purpose of these statutory deadlines is to prevent children
from remaining in “foster care limbo.”9 When the statutory deadlines are ignored, it is
the children who suffer by remaining in a state of flux and uncertainty. See David J.
Herring, Inclusion of the Reasonable Efforts Requirement in Termination of Parental
Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System,
54 U. Pitt. L. Rev. 139, 144-150 (1992) (discussing the developmental harm to children
by long-term placement in temporary foster care). Although failure to comply with the
statutory deadlines does not deprive the district court of jurisdiction, those deadlines
serve an important function.
II. Did DFS establish by clear and convincing evidence that SAS’s parental rights
should be terminated?
[¶18] While the district court determined that the termination of SAS’s parental rights
had been proven by clear and convincing evidence pursuant to § 14-2-309(a)(iii) and
8
Section § 14-3-403(b) also provides two exceptions, but neither applies in this case.
9
“Foster care limbo refers to the existence of children who live in foster care for lengthy periods of time.
Limbo results when a foster care child cannot be safely returned home; yet he or she is not free for
adoption because the state has not terminated the parent-child relationship.” Sherry A. Hess, Note, Texas
Family Code Section 263.401: Improving the Mandatory Dismissal Deadline to Be Truly in the Best
Interest of the Child, 9 Tex. Wesleyan L. Rev. 95, 98 (2002).
5
(a)(v), to affirm its decision, we need only determine whether clear and convincing
evidence was presented to support one of the bases for termination under § 14-2-309.
DMM v. State of Wyo., Dep’t of Family Servs. (In re ZMETS), 2012 WY 68, ¶ 18, 276
P.3d 392, 397 (Wyo. 2012). We therefore analyze whether the district court’s
determination to terminate SAS’s parental rights pursuant to § 14-2-309(a)(v) was
supported by clear and convincing evidence.
[¶19] We begin our analysis with the standard of review that we use in termination of
parental rights cases:
Due to the tension between the fundamental liberty of
familial association and the compelling state interest in
protecting the welfare of children, application of statutes for
termination of parental rights is a matter for strict scrutiny.
As part of this strict scrutiny standard, a case for termination
of parental rights must be established by clear and convincing
evidence. Clear and convincing evidence is that kind of proof
that would persuade a trier of fact that the truth of the
contention is highly probable. Rigorous though this standard
may be, we apply our traditional principles of evidentiary
review when a party challenges the sufficiency of the
evidence supporting termination. Thus, we examine the
evidence in the light most favorable to the party prevailing
below, assuming all favorable evidence to be true while
discounting conflicting evidence presented by the
unsuccessful party.
LDC v. State of Wyo., Dep’t of Family Servs. (In re ZKP), 979 P.2d 953, 956 (Wyo.
1999) (citations omitted).
[¶20] Termination of SAS’s parental rights pursuant to § 14-2-309(a)(v) requires clear
and convincing proof of two elements: (1) that the children have been in foster care under
the responsibility of the State for fifteen of the most recent twenty-two months; and (2)
that SAS is unfit to have custody and control of the children. Wyo. Stat. Ann. § 14-2-
309(a)(v). We take each of these elements in turn.
[¶21] The first element requires only that we solve a mathematical question. The record
reflects that AGS was placed in foster care under the responsibility of the State on
November 25, 2011. While the record lacks evidence concerning the exact date that
AMLD was first placed in DFS custody,10 the trial exhibits demonstrate that on
10
In both its original and amended petition, the State alleged that the juvenile court ordered that both
children be placed in DFS custody following a shelter care hearing on November 28, 2011. SAS,
6
December 30, 2011, the juvenile court ordered that both children “shall be placed in the
continued legal and physical custody of the Department of Family Services.” AGS
continued in her foster care placement after the initial hearing, and DFS placed AMLD
with her paternal grandmother. The State submitted clear and convincing evidence that
DFS had custody of the children by at least December 30, 2011, and continuing up until
the trial held on December 2 and 3, 2013, establishing that the children were in foster
care, under the responsibility of the State, for fifteen of the most recent twenty-two
months preceding trial.
[¶22] Prior to the November 2011 incident, SAS had requested that AMLD’s paternal
grandmother care for AMLD because SAS “was having a hard time.” The grandmother
agreed, and AMLD was in her grandmother’s care when the accident occurred. SAS
argues that because she placed AMLD with her grandmother prior to the incident, and
because AMLD remained in her grandmother’s care following the juvenile court’s order,
AMLD was not in foster care, but was, in fact, in relative placement. SAS’s argument
fails. Pursuant to its December 30, 2011 order, the juvenile court directed DFS to assume
legal custody of the children. While the physical placement of AMLD did not change,
the legal responsibility for AMLD transferred from SAS to DFS upon the juvenile court’s
order. See, e.g., In re ZMETS, 2012 WY 68, ¶ 19, 276 P.3d at 397-98 (“[D]espite the fact
that the children’s grandparents had physical custody of the children, it is undisputed that
DFS was granted legal custody after the children were adjudicated neglected, and that
DFS has retained legal custody throughout these proceedings.”). Moreover, we have
previously examined this issue and found that physical placement with relatives qualifies
as foster care when the State has been granted legal custody of a child. Id. (finding that
the term “foster care” is not limited to “care provided by non-relatives,” but also
encompasses relative care when the State has legal custody of the child).
[¶23] SAS also contends that the State was only able to satisfy the requirements of § 14-
2-309(a)(v) by its own actions. Specifically, SAS argues that the children were left to
languish in DFS custody, without a petition to terminate SAS’s parental rights, for fifteen
out of twenty-two months only to provide the State with an additional basis for
termination. SAS is essentially restating her argument that the State was required to file a
petition for termination of parental rights within sixty days of the juvenile court’s
decision not to reunify the family. As we have already found, the State’s failure to file a
petition within sixty days of the juvenile court’s determination not to reunify the family
did not deprive the district court of jurisdiction to hear the termination case. Moreover,
the record does not support SAS’s contention that DFS held the children in foster care for
the purpose of running the clock until it could move to terminate SAS’s parental rights
under § 14-2-309(a)(v).
however, denied this allegation in her answer to the original complaint, and there was no evidence
presented at trial concerning the exact date that AMLD first came under DFS custody following the
November 2011 incident.
7
[¶24] To terminate under § 14-2-309(a)(v), a district court must also find by clear and
convincing evidence that the parent is unfit to have custody and control of his or her
children. The termination statutes do not define the term “unfit;” however, we have
determined that “fitness includes the ability to meet the ongoing physical, mental and
emotional needs of the child.” HJO v. State of Wyo., Dep’t of Family Servs. (In re
KMO), 2012 WY 99, ¶ 19, 280 P.3d 1203, 1211 (Wyo. 2012) (quoting RLA v. State of
Wyo., Dep’t of Family Servs. (In re LA), 2009 WY 109, ¶ 14, 215 P.3d 266, 269 (Wyo.
2009)). While § 14-2-309(a)(v) requires a finding by the district court that a parent is
unfit at the time of the trial, the district court need not “ignore evidence of a parent’s
previous unfitness.” Id. (quoting AJJ v. State of Wyo., Dep’t of Family Servs. (In re
KMJ), 2010 WY 142, ¶ 17, 242 P.3d 968, 971 (Wyo. 2010)). Evidence of a parent’s past
behavior is “plainly relevant in determining current parental fitness.” Id. (quoting JD v.
State (In re AE), 2009 WY 78, ¶ 18, 208 P.3d 1323, 1328 (Wyo. 2009)).
[¶25] After a careful review of the record, we find that the district court’s determination
of SAS’s unfitness was supported by clear and convincing evidence. The district court
heard testimony from various DFS case workers, counselors, family members, and SAS
herself concerning SAS’s parenting of AGS and AMLD. This testimony demonstrates
that SAS has exhibited a clear pattern of neglect adversely affecting, and even injuring,
her children. In each and every instance, SAS’s reckless and dangerous behavior resulted
from her drug and/or alcohol abuse.
[¶26] From November 2007 through November 2011, AGS and AMLD were removed
from SAS’s care no less than three times following adjudications of abuse and neglect.
On each of these occasions, SAS was also charged with violations of the criminal statutes
all stemming from her drug and alcohol use. The State presented evidence that SAS
attended treatment on three separate occasions in her attempts to recover from her
addictions.11 After each of these treatment periods, SAS relapsed, placing her children in
danger each time. Even after AGS’s and AMLD’s final removal from SAS’s custody,
SAS demonstrated her unwillingness or inability to stay sober through her arrest and
conviction for cocaine use and possession.
[¶27] SAS has not only failed to meet the needs of her children by placing them in
danger of physical harm, the record reflects that she has also placed the mental and
emotional needs of the children at risk through her behavior. AGS and AMLD have been
witness to SAS’s drug and alcohol use beginning at a very young age. SAS herself
testified that she began drinking and using drugs when she was twelve years old, and has
continued such behavior throughout her life, exposing her children time and again to her
addictions. Moreover, it is clear that domestic violence has played a significant role in
11
At the time of trial, SAS testified that she was currently in a fourth treatment program through the
prison.
8
not only SAS’s life, but also the lives of her children. SAS testified about two of her
romantic relationships that the children witnessed, both involving violence. As we have
previously recognized, “A young child is not a mere bystander to domestic violence.” RS
v. Dep’t of Family Servs., Sheridan Cnty. (In re KLS), 2004 WY 87, ¶ 23, 94 P.3d 1025,
1031 (Wyo. 2004). The dysfunction of such relationships significantly impacts children,
even if the children themselves are not subject to abuse. See id. at ¶¶ 21-23, 94 P.3d at
1030-31 (discussing the impact that domestic violence has on children). “Many, if not
most, jurisdictions have echoed the conclusion that subjecting children to domestic
violence justifies termination of parental rights.” Id. at ¶ 22, 94 P.3d at 1031.
[¶28] In addition to the extensive history of SAS’s unfitness, clear and convincing
evidence was also presented demonstrating that SAS was unable to meet the physical,
mental and emotional needs of AGS and AMLD at the time of trial. Each of the DFS
case workers involved with SAS testified that they had grave concerns about SAS’s
ability to remain sober and provide appropriate care to her children. A counselor
involved in one of SAS’s stints in treatment testified that SAS’s prognosis was
“guarded.” Moreover, at the time of trial, SAS was in prison and clearly unable to meet
the physical, mental, and emotional needs of AGS and AMLD.
[¶29] SAS argues that the district court erred in finding her unfit because, at the time of
trial, she was in a treatment program at the prison that was teaching her a different way of
approaching addiction; she enrolled in bible study; she learned her triggers; and she
understood that she needed to leave some relationships behind. SAS’s alleged
transformation occurred while incarcerated. The district court had no opportunity to
observe whether SAS’s conversion would continue once SAS was removed from that
controlled environment. Moreover, our standard of review requires us to “examine the
evidence in the light most favorable to the party prevailing below, assuming all favorable
evidence to be true while discounting conflicting evidence presented by the unsuccessful
party.” In re ZKP, 979 P.2d at 956 (citation omitted). We therefore do not consider
evidence regarding SAS’s fitness that conflicts with that presented by the State.
[¶30] In this case, the evidence presented clearly and convincingly supports the district
court’s decision to terminate SAS’s parental rights pursuant to § 14-2-309(a)(v).
III. Was cumulative error committed such that SAS’s constitutional right to due
process was violated?
[¶31] SAS argues that “the termination proceedings were replete with errors and the
cumulative effect of these errors denies [SAS’s] constitutional procedural and substantive
due process rights under the Wyoming and United States Constitutions.” SAS provides a
comprehensive list of these errors:
9
[T]he State not filing the petition within sixty (60) days when
the permanency goal was not reunification, not filing a
motion to extend the time for hearing within ninety (90) days,
not seeking guardianship timely and not including AMLD’s
father in the petition to terminate parental rights. The Court
erred in allowing testimony and evidence in over [SAS’s]
hearsay objection . . . , not allowing the mother’s counsel to
question witnesses regarding the mother’s willingness to
consent to guardianship, sustaining [SAS’s] counsel when she
tried to present evidence on less intrusive measures, signing
an order extending time for hearing without affording [SAS]
an opportunity to be heard or respond, signing the order based
upon a motion filed after the 90 day period had expired, and
relying upon an order . . . issued under a preponderance of
evidence standard to prove this case by clear and convincing
evidence.
[¶32] “The purpose of evaluating for cumulative error is ‘to address whether the
cumulative effect of two or more individually harmless errors has the potential to
prejudice the defendant to the same extent as a single reversible error.’” Guy v. State,
2008 WY 56, ¶ 45, 184 P.3d 687, 701 (Wyo. 2008) (citations omitted). Only those
matters that are considered error are evaluated under our cumulative error analysis. Id.
“We will reverse . . . only when ‘the accumulated effect [of the errors] constitutes
prejudice and the conduct of the trial is other than fair and impartial.’” Id. (citations
omitted).
[¶33] SAS presents a number of issues which she failed to raise before the trial court.
We have often repeated that we will not consider a new issue on appeal that has not first
been brought to the attention of the district court. Meima v. Broemmel, 2005 WY 87,
¶ 56, 117 P.3d 429, 447 (Wyo. 2005); EBH v. Hot Springs Dep’t of Family Servs. (In re
IH), 2001 WY 100, ¶ 25, 33 P.3d 172, 182 (Wyo. 2001); Cooper v. Town of Pinedale,
1 P.3d 1197, 1208 (Wyo. 2000); WW Enters., Inc. v. City of Cheyenne, 956 P.2d 353, 356
(Wyo. 1998); Bredthauer v. TSP, 864 P.2d 442, 447 (Wyo. 1993). We forego the
application of this rule when the issue presented implicates either jurisdictional questions
or fundamental rights. Id. Because termination of parental rights proceedings affect the
“fundamental liberty of familial association,” we will address those issues raised by SAS
for which she has provided argument and authority.
[¶34] W.R.A.P. 9.05 requires that we review such issues for plain error. Plain error
occurs when “1) the record is clear about the incident alleged as error; 2) there was a
transgression of a clear and unequivocal rule of law; and 3) the party claiming the error
was denied a substantial right resulting in material prejudice.” Deeds v. State, 2014 WY
10
124, ¶ 21, 335 P.3d 473, 479 (Wyo. 2014) (citations omitted). “The appellant bears the
burden of proving plain error[.]” Id.
[¶35] SAS first contends that error occurred when the State neglected to file the petition
to terminate her parental rights within sixty days of the juvenile court’s determination not
to reunify the family in accordance with § 14-3-431(o). While the record fails to inform
us of the exact date when the juvenile court decided to cease reunification efforts with
SAS, the State concedes that the petition was not filed within sixty days of that
determination. We must therefore resolve whether the State’s failure constituted a
“transgression of a clear and unequivocal rule of law.” Deeds, 2014 WY 124, ¶ 21, 335
P.3d at 479 (citation omitted).
[¶36] The statutory provision on which SAS relies states, “A petition to terminate
parental rights shall be filed within sixty (60) days of a judicial determination that
reasonable efforts to reunify the child and parent are not required pursuant to W.S. § 14-
2-309(a)(vi), (b) or (c).” Wyo. Stat. Ann. § 14-3-431(o). The statute unambiguously
asserts that the statutory deadline applies only when the juvenile court makes a judicial
determination that reunification efforts are not necessary pursuant to one of the identified
statutory provisions, § 14-2-309(a)(vi), (b) or (c).
[¶37] Our analysis in this case is severely hampered as few of the documents from the
juvenile action were introduced as evidence in the district court proceeding. We have no
record of the basis for the juvenile court’s decision not to reunify the children with SAS.
We therefore cannot determine whether its decision not to reunify was made pursuant to
§ 14-2-309(a)(vi), (b) or (c), thus triggering the sixty-day deadline. While we may
speculate as to the juvenile court’s reasoning, we cannot rest our decision on mere
speculation. MM v. State of Wyo., Dep’t of Family Servs. (In re MM), 2009 WY 28, ¶ 16,
202 P.3d 409, 414 (Wyo. 2009) (“[W]e will not speculate as to the reasons for the
decision.” (citations omitted)). As a result, we are unable to determine whether § 14-3-
431(o) applies. See In re KMO, 2012 WY 99, ¶ 15, 280 P.3d at 1210 (finding that § 14-
3-431(o) did not apply when there was no finding in the juvenile court with respect to the
statutory provisions in § 14-3-431(o)). “[I]t is the responsibility of appellant[] on appeal
to assure the presence of any part of the record necessary for consideration. We cannot
and will not consider any matter on which the record is silent.” Condict v. Whitehead,
Zunker, Gage, Davidson & Shotwell, P.C., 743 P.2d 880, 888 (Wyo. 1987); see also
W.R.A.P. 3.05. Because an inadequate record prevents us from concluding whether there
was a “transgression of a clear and unequivocal rule of law,” we cannot say that plain
error occurred. See Deeds, 2014 WY 124, ¶ 21, 335 P.3d at 479 (stating that the
appellant has the burden of proving plain error).
[¶38] SAS next contends that error occurred when the district court failed to hold the
termination hearing within ninety days of the petition being filed in accordance with
§ 14-3-431(p). The first step of our analysis is satisfied as the record is clear that the
11
termination hearing was not held within ninety days of the petition being filed. However,
the district court did not transgress a clear and unequivocal rule of law when it held the
hearing outside of the ninety day statutory deadline. Section 14-3-431(p) states, “A
termination of parental rights hearing shall be held within ninety (90) days of the filing of
the termination petition unless continued by the court for good cause shown.” Wyo. Stat.
Ann. § 14-3-431(p). While the district court held the termination hearing outside of the
ninety-day deadline, the statute allows a continuance of the hearing for “good cause
shown.” Id. The State filed a Motion for Order Finding Good Cause on August 9, 2013.
Admittedly, the State filed the motion outside the statutory deadline, but the decision
whether to grant or deny a continuance rests within the broad discretion of the district
court. Jones v. Jones, 903 P.2d 545, 547 (Wyo. 1995); 17 Am. Jur. 2d Continuance § 3
(2004). Absent “a manifest abuse of discretion,” we will not disturb the district court’s
ruling. Richard v. Richard, 2007 WY 180, ¶ 6, 170 P.3d 612, 614 (Wyo. 2007). “To find
an abuse of discretion, the [decision] must be so arbitrary as to deny appellant due
process, and the burden rests upon appellant to prove actual prejudice and a violation of
h[er] rights.” Id. SAS provided no evidence or argument to this Court demonstrating
that she was actually prejudiced by the district court’s decision to grant the continuance.
As a result, there was no transgression of a clear and unequivocal rule of law and no plain
error.12
[¶39] SAS also argues that the district court erred when it granted the State’s motion to
continue the hearing without allowing SAS’s counsel an opportunity to respond to the
motion. The State filed the motion with the district court on August 9, 2013, and mailed
it to SAS’s counsel on August 7, 2013. The district court entered an order continuing the
hearing on August 19, 2013. W.R.C.P. 6(c)(1) states that a party affected by a motion
“may serve a response . . . at least three days prior to the hearing on the motion or within
20 days after service of the motion[.]” While the rule clearly allows an affected party
twenty days to respond, SAS has failed to demonstrate that she was “denied a substantial
right resulting in material prejudice” by the actions of the district court.13 Deeds, 2014
WY 124, ¶ 21, 335 P.3d at 479. The continuance resulted in the trial being held outside
the ninety-day statutory deadline. Nowhere in SAS’s brief has she argued that this delay
resulted in prejudice to her. See id. (“The appellant bears the burden of proving plain
error.”). In fact, the delay was due, in part, to SAS’s insistence that the Indian Child
Welfare Act controlled the proceedings. See, e.g., Ortiz v. State, 2014 WY 60, ¶ 42, 326
P.3d 883, 893 (Wyo. 2014) (stating that delays attributable to the defendant, such as
pretrial motions, may disentitle the defendant to speedy trial safeguards). Because SAS
did not suffer material prejudice, no plain error occurred.
12
Our analysis on this issue applies equally to SAS’s argument that the district court erred when it
granted the continuance despite the motion being filed outside the ninety-day deadline.
13
In the district court proceedings, SAS made no allegation that the district court’s order granting the
motion prior to the lapse of the twenty-day period was in error. She filed no response or objection to the
motion and did not address the delay in the proceedings at the scheduling conference that occurred over a
month later.
12
[¶40] SAS alleges that the district court erred in relying on the juvenile court’s
adjudication of neglect, which employs a preponderance of the evidence standard, to
establish SAS’s unfitness in the termination proceeding, which requires a standard of
clear and convincing evidence. However, the record demonstrates that the district court
did not rely on the juvenile court’s adjudication of neglect to find SAS unfit. Instead it
based its decision of SAS’s unfitness on the extensive evidence elicited at trial, and
discussed in this opinion, see supra ¶¶ 25-28, demonstrating SAS’s inability to meet the
physical, mental, and emotional needs of her children. There was no error.
[¶41] The remainder of SAS’s allegations of error are not supported by argument or
authority. Our precedent dictates that we disregard issues “not supported by cogent
argument and authoritative citation.” State v. Campbell Cnty. Sch. Dist., 2001 WY 90,
¶ 35, 32 P.3d 325, 333 (Wyo. 2001). We therefore refrain from considering those issues.
[¶42] Because we find no error, SAS’s argument that the cumulative effect of errors
violated her due process rights fails.
IV. Was SAS’s allegation of ineffective assistance of counsel appropriately raised for
the first time in SAS’s reply brief?
[¶43] SAS devoted the entirety of her reply brief to the question of whether her trial
counsel provided ineffective assistance of counsel. In her opening brief, however, she
made only a passing reference stating, “It is unknown whether this rises to the level of
ineffective assistance of counsel,” and “Appellate [sic] would argue ineffective assistance
of counsel.” SAS, however, made no argument and cited no authority to support her
allusions to ineffective assistance of counsel. In his brief, the guardian ad litem (GAL)
pointed to a number of issues that SAS failed to raise in the proceedings below. SAS
took this as an invitation to argue the issue of ineffective assistance of counsel in her
reply brief despite failing to adequately address it in her opening brief.
[¶44] Wyoming Rule of Appellate Procedure 7.03 provides, in pertinent part, “[T]he
reply brief shall precisely and concisely set forth on the first page those new issues and
arguments raised by the brief of the appellee which are addressed in the reply brief. A
reply brief is limited to such new issues and arguments, . . . ” (Emphasis added.) The
rule clearly limits an appellant to addressing new issues and arguments raised by the
appellee in its reply brief. “Rule 7.03 does not allow a party who fails to cite authority or
adequately present argument in its opening brief to cure these deficiencies by filing a
reply brief.” Budd-Falen Law Offices, P.C. v. Rocky Mountain Recovery, Inc., 2005 WY
77, ¶ 17, 114 P.3d 1284, 1289 (Wyo. 2005).
[¶45] Here, the GAL was not raising new issues, but was only arguing that SAS’s
contentions in her appeal were not well taken as they should have been raised in the
13
proceedings below. See Ultra Res., Inc. v. McMurry Energy Co., 2004 WY 121, ¶ 9, 99
P.3d 959, 962 (Wyo. 2004) (“McMurry was not raising a new issue, it was pointing out
the failure by Ultra to challenge a dispositive ruling by the district court[.]”). The
arguments made by the GAL did not open the door to allow SAS to “argue the merits of
an issue that was [her] responsibility to designate in [her] opening brief.” Id. “Presenting
argument in a reply brief is not equivalent to framing the issues in an opening brief. A
reply brief is not a second chance to raise an issue or present argument that the appellant
had the responsibility, but failed, to address in [her] opening brief.” Id. at ¶ 11, 99 P.3d
at 963. SAS had both the responsibility and opportunity to present the issue of
ineffective assistance of counsel in her opening brief; she failed to do so. She cannot
attempt to cure her failure by slipping the argument in through the back door of a reply
brief. By failing to fully address the question of ineffective assistance of counsel in her
opening brief, SAS effectively waived the issue. Id. at ¶ 11, 99 P.3d at 963.
CONCLUSION
[¶46] We find that the district court was not deprived of its jurisdiction when statutory
deadlines were bypassed. The State presented clear and convincing evidence to support
the district court’s finding that SAS’s parental rights should be terminated pursuant to
Wyo. Stat. Ann. § 14-2-309(a)(v). We find no error occurred to support SAS’s
cumulative error argument. Finally, SAS waived her contention that she received
ineffective assistance of counsel when she failed to fully address the issue in her opening
brief. Affirmed.
14