In the Matter of the Termination of Parental Rights To: GAC, a Minor Child. Krystal Kaylynn Cave v. State of Wyoming, Department of Family Services , 396 P.3d 411 ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 65
APRIL TERM, A.D. 2017
June 2, 2017
IN THE MATTER OF THE
TERMINATION OF PARENTAL
RIGHTS TO: GAC, A Minor Child.
KRYSTAL KAYLYNN CAVE,
Appellant
(Respondent),
S-16-0212
v.
STATE OF WYOMING, DEPARTMENT
OF FAMILY SERVICES,
Appellee
(Petitioner).
Appeal from the District Court of Natrona County
The Honorable W. Thomas Sullins, Judge
Representing Appellant:
Timothy C. Cotton of Cotton Legal, Casper, Wyoming.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; Misha Westby, Deputy Attorney
General; Wendy S. Ross, Senior Assistant Attorney General; Jill Kucera, Senior
Assistant Attorney General. Argument by Ms. Ross.
Guardian ad Litem:
Dan S. Wilde, Deputy State Public Defender; Aaron Hockman, Chief Trial and
Appellate Counsel, Wyoming Guardian ad Litem Program. Argument by Mr.
Hockman.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.
[¶1] A jury found that Appellee Department of Family Services (DFS) had proven two
statutory grounds for termination of Appellant Krystal Kaylynn Cave’s (Mother) parental
rights to GAC (Child). On appeal, Mother claims the district court erred by allowing: 1)
the guardian ad litem (GAL) to actively participate in the termination proceedings; and 2)
her counselors to testify at trial over her claim of privilege.
[¶2] We affirm.
ISSUES
[¶3] The issues on appeal are:
1. Did the district court err by allowing the GAL to fully participate in the
termination proceedings?
2. Did the district court err when it allowed Mother’s mental health providers
to testify at trial?
FACTS
[¶4] On May 20, 2013, the Child, who was two years old, was found wandering alone
near a busy street in Casper, Wyoming. He was very cold because he was wearing only a
t-shirt and socks, with no diaper, underwear or pants. The person who found the Child
called law enforcement. No responsible adult could be located, so the Child was taken
into protective custody.
[¶5] Mother arrived at the scene about forty minutes later. She was frantic and
demanded the officers return the Child to her. She was told that, because he was already
in protective custody, she would have to make arrangements with DFS for the Child’s
return. DFS was concerned about the Child’s living arrangements because a couple of
months earlier, it had investigated a report that Mother and the Child were living in a
storage unit. At that time, DFS offered Mother help with locating housing and
employment. However, after a few meetings, Mother declined further assistance from
DFS and the agency closed the case.
[¶6] Given this history, DFS required Mother to demonstrate that she had a safe place
for the Child to live before releasing him, but she refused to allow the investigator into
the house where she said they were staying. Mother also tested positive for
methamphetamine use. A neglect action was filed, and, after a shelter care hearing, the
juvenile court ordered that the Child remain in DFS custody.
1
[¶7] In July 2013, the parties stipulated to a consent decree in the juvenile case.1 Under
the terms of the consent decree and the court order accepting it, the neglect action would
be dismissed without adjudication if Mother completed the objectives of her DFS case
plan. Among other things, the case plan required Mother to participate in substance
abuse and mental health counseling and to execute releases allowing DFS access to her
counseling records.
[¶8] Although Mother made some effort to locate suitable housing and employment
and attended counseling, she did not fully comply with the case plan. She continued to
use methamphetamine and failed to complete the required drug testing. Consequently, in
January 2014, DFS moved to reinstate the proceedings and adjudicate Mother as having
neglected the Child. The juvenile court granted the motion. After the adjudication, DFS
continued to make efforts to rehabilitate Mother with the goal of reunifying the family.
The agency provided various services to Mother, including substance abuse treatment and
mental health counseling. However, she did not make adequate progress to complete the
case plan and, approximately six months later, the juvenile court changed the permanency
plan from family reunification to adoption.
[¶9] To implement the new permanency plan, DFS filed a petition in district court to
terminate Mother’s parental rights to the Child.2 The petition alleged that termination of
Mother’s parental rights was appropriate under Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v)
LexisNexis 2015), respectively, because: 1) Mother neglected the Child, DFS’s
reasonable efforts to rehabilitate the family were unsuccessful, and the Child’s health and
safety would be seriously jeopardized by returning him to Mother; and 2) the Child had
been in foster care for at least fifteen of the most recent twenty-two months and Mother
was unfit to have custody and control of the Child. The court appointed the GAL to
represent the Child and counsel to represent Mother. Mother requested a jury trial on the
termination action and filed a “Motion in Limine Excluding Guardian ad Litem’s Active
Participation in Termination of Parental Rights Trial and Exclusion of Evidence Not
Relevant.” She claimed the GAL should not be allowed to actively participate in the
termination proceeding because the Child was not a party and evidence pertaining to the
best interests of the Child was not relevant at the trial. The district court denied Mother’s
motion “without prejudice to the right of [Mother] to object to any irrelevant evidence
proposed for introduction at the termination of parental rights trial.”
[¶10] DFS gave notice that it intended to call several of Mother’s and the Child’s mental
health providers to testify as experts at trial. Mother filed a motion to exclude that
testimony, claiming DFS had failed to comply with W.R.C.P. 26(a)(2) which requires
disclosure of certain information for witnesses designated to give expert testimony. The
1
Consent decrees are governed by Wyo. Stat. Ann. § 14-3-428 (LexisNexis 2015).
2
The State also petitioned to terminate the Child’s father’s parental rights. He did not respond and his
rights were terminated by default.
2
district court denied the motion. A four day trial was held on November 30 through
December 3, 2015. During the trial, the district court ruled that Mother’s mental health
providers could not testify because she had revoked earlier releases of information and
invoked her privilege to keep that information confidential. The jury did not reach a
verdict, and the district court declared a mistrial.
[¶11] In preparation for a second trial, DFS filed a motion to allow Mother’s mental
health providers to testify, and the GAL filed a memorandum of law which supported
DFS’s motion. Mother opposed the motion, once more claiming that her providers
should not be allowed to testify because the information was privileged. The district
court ruled that, after considering the matter further, there were several exceptions to the
privilege which permitted Mother’s mental health providers to testify at trial.
[¶12] At the conclusion of the second trial, the jury returned a verdict finding that DFS
had proven both grounds to terminate Mother’s parental rights to the Child. The district
court entered an order terminating her rights, and she appealed.
DISCUSSION
[¶13] Although Mother does not present an issue regarding the sufficiency of the
evidence to terminate her parental rights, the procedural and evidentiary requirements for
termination of parental rights play some role in resolving this case and bear repeating.
The right to associate with one’s family is fundamental and protected by due process.
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599
(1982). In recognition of the fundamental liberty interest in family relationships, courts
strictly scrutinize petitions to terminate parental rights and require proof of the basis for
termination of parental rights by clear and convincing evidence. Clear and convincing
evidence is “proof that would persuade a trier of fact that the truth of the contention is
highly probable.” RGS v. State, Dep’t of Family Servs. (In re KGS), 2017 WY 2, ¶ 14,
386 P.3d 1144, 1147 (Wyo. 2017), citing In re HLL, 2016 WY 43, ¶ 39, 372 P.3d 185,
193 (Wyo. 2016).
A. Guardian ad Litem’s Participation in Proceedings to Terminate Parental
Rights
[¶14] Mother claims the district court erred by allowing the GAL to actively participate
in the termination proceedings. The role of a guardian ad litem is a question of law that
requires review of the applicable statutes, administrative rules, and case law. Our review
is, therefore, de novo. Williams v. Sundstrom, 2016 WY 122, ¶ 19, 385 P.3d 789, 794
(Wyo. 2016). See also Glover v. State, 860 P.2d 1169, 1173 (Wyo. 1993).
1. General Role of Guardian ad Litem in Termination Proceedings
3
[¶15] Wyo. Stat. Ann. § 14-2-312 (LexisNexis 2015) states in relevant part:
After the petition [to terminate parental rights] has been filed,
the court shall appoint a guardian ad litem to represent the
child unless the court finds the interests of the child will be
represented adequately by the petitioner or another party to
the action and are not adverse to that party. . . . The
Wyoming Rules of Civil Procedure, including the right of a
parent, child or interested person to demand a jury trial, are
applicable in actions brought under this act.
(emphasis added). We interpreted § 14-2-312 in LM v. Laramie County Dep’t of Family
Servs. (In re MN), 2007 WY 189, ¶ 6, 171 P.3d 1077, 1080-81 (Wyo. 2007):
Wyo. Stat. Ann. § 14–2–312 is an unambiguous mandatory
statute that does not allow the district court discretion not to
appoint a guardian ad litem or not to make the appropriate
record findings that no guardian ad litem is required.
Furthermore, the requirement that mandatory statutes be
obeyed is most compelling in cases such as this, where
fundamental parent/child relationships are at risk of
severance.
(citations omitted).
[¶16] Mother states that she is not challenging the appointment of the GAL. Instead, she
questions the GAL’s role. According to Mother, the Child was not a party to the
termination proceeding but, rather, was in a position similar to a witness. She asserts,
therefore, that “the GAL’s role in termination cases is akin to any other counsel in a civil
matter retained to advise someone regarding the issues and protect their interests when
proper to do so – such as quash subpoenas and the like.” DFS and the GAL counter that
the GAL was not only entitled, but required, to participate fully in the proceedings.
[¶17] Mother argues that the Child was not a party to the termination of parental rights
action because, under Wyo. Stat. Ann. § 14-2-310 (LexisNexis 2015), a child cannot be a
petitioner. She also claims that the Child was not otherwise a party because he was not
indispensable under W.R.C.P. 19, was not served with a summons, and was not required
to answer the petition to terminate parental rights. Mother recognizes that § 14-2-312
gave the Child the right to request a jury trial and Wyo. Stat. Ann. § 14-2-313
(LexisNexis 2015) required service of the petition upon the GAL, but claims those
statutes do not make the Child a party.
4
[¶18] We agree with the district court’s ruling that the GAL was entitled to fully
participate in the action to terminate Mother’s parental rights. Regardless of whether the
Child was technically a party to the action to terminate Mother’s parental rights, he
clearly had an interest and rights in the proceeding. We have said that a child has “as
fundamental a right to familial association as . . . parents.” LM, ¶ 7, 171 P.3d at 1081.
This Court also recognizes that a child has an interest in divorce and child custody
matters even though he is not a party. See Waterbury v. Waterbury, 2017 WY 11, ¶ 10,
388 P.3d 532, 535 (Wyo. 2017); Weiss v. Weiss, 2009 WY 124, ¶ 13, 217 P.3d 408, 412
(Wyo. 2009); Donnelly v. Donnelly, 2004 WY 72, 92 P.3d 298 (Wyo. 2004).
[¶19] The child’s rights in a parental rights termination case are protected by
appointment of a guardian ad litem. Section 14-2-312; LM, ¶¶ 6-7, 171 P.3d at 1080-81.
Similarly, although there is no statutory requirement for appointment of a guardian ad
litem in custody cases, courts frequently do so to protect the child’s interests. See, e.g.,
Clark v. Alexander, 953 P.2d 145, 151 (Wyo. 1998); Hanson v. Belveal, 2012 WY 98,
280 P.3d 1186 (Wyo. 2012). We explained the duties of the guardian ad litem in Moore
v. Moore, 809 P.2d 261 (Wyo. 1991) and Clark, supra. In Moore, 890 P.2d at 264, we
stated that the guardian ad litem is “the attorney for the minor whom he is appointed to
serve” and “participates in the proceedings as an advocate.” We expanded upon the
Moore ruling in Clark and explained that the guardian ad litem performs dual roles, by
acting in the child’s best interest and as an advocate in his favor. With regard to the
guardian ad litem’s participation in court proceedings, we stated:
As counsel, the attorney/guardian ad litem has the opportunity
and the obligation to conduct all necessary pretrial
preparation and present all relevant information through the
evidence offered at trial. Recommendations can be made to
the court through closing argument based on the evidence
received.
Clark, 953 P.2d at 154. Clark, therefore, states that the guardian ad litem should take an
active part in all court proceedings.
[¶20] Mother attempts to distinguish Clark and Moore by emphasizing that they
involved child custody, where the best interests of the child was the paramount issue;
while, the best interests of the child are not relevant in determining the statutory bases for
termination of parental rights. Her distinction between the two types of proceedings is
valid. A typical conflict over which parent should have custody of a child focuses on the
child’s best interests. See Wyo. Stat. Ann. §§ 20-2-201 (initial custody determination)
and 20-2-204(c) (LexisNexis 2015) (action to modify custody). See also, Arnott v.
Arnott, 2012 WY 167, ¶ 18, 293 P.3d 440, 447-48 (Wyo. 2012). On the other hand, we
stated in BA v. Laramie County Dep’t of Family Servs. (In re FM), 2007 WY 128, ¶ 22,
163 P.3d 844, 850 (Wyo. 2007) that in termination proceedings,
5
the determination of the child’s best interests comes into play
only after statutory grounds for termination of parental rights
have been established by clear and convincing evidence. See
Santosky. The United States Supreme Court has said: “[w]e
have little doubt that the Due Process Clause would be
offended ‘if a State were to attempt to force the breakup of a
natural family, over the objections of the parents and their
children, without some showing of unfitness and for the sole
reason that to do so was thought to be in the children’s best
interest.’ ” Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct.
549, 555, 54 L. Ed. 2d 511 (1978) (quoting Smith v.
Organization of Foster Families, 431 U.S. 816, 862–863, 97
S. Ct. 2094, 2119, 53 L. Ed. 2d 14 (1977) (Stewart, J.,
concurring in judgment)).
[¶21] As we recognized in BA, termination of parental rights cannot be based soley upon
the best interests of the child.3 However, that does not mean that the guardian ad litem
cannot participate in the evidentiary portion of the trial. The statutory provisions setting
forth the requirements for termination of parental rights include factors directly related to
the child’s well-being. In this case, those factors included: 1) a showing that the Child’s
health and safety would be seriously jeopardized by returning to Mother under § 14-2-
309(a)(iii); and/or 2) a showing that Mother was unfit to have custody and control of the
Child under § 14-2-309(a)(v). It is hard to conceive how the GAL’s duty to represent the
Child as to those factors could be satisfied if the GAL’s participation were curtailed in
the manner urged by Mother.
[¶22] A guardian ad litem’s dual duties have also been incorporated into the
administrative rules applicable to cases involving child protection, children in need of
supervision, and termination of parental rights cases. Guardian Program Rules and
Regulations (GAL Rules) Chap. 1, § 2(a) (2013). Like all administrative rules, the GAL
Rules have the force and effect of law, so long as they are consistent with statute.
Seherr-Thoss v. Teton County Bd. of County Comm’rs, 2014 WY 82, ¶ 14, n.2, 329 P.3d
936, 943 n.2 (Wyo. 2014); Billings v. Wyo. Bd. of Outfitters & Guides, 2001 WY 81, ¶
24, 30 P.3d 557, 568-69 (Wyo. 2001). The GAL Rules specifically recognize a guardian
ad litem’s dual role of zealously advocating in favor of the child while making sure the
child’s best interests are being protected. Id., Chap. 1 § 4(a)(i)-(v), (c). Under the rules,
3
Section 14-2-309(a) does not mention the best interests of the child in setting out the requirements for
termination of parental rights. However, our case law indicates that the child’s best interests are
considered after at least one statutory ground for termination has been established. See BA, supra.
Because this case focuses upon the court proceeding to determine the statutory grounds, we need not
discuss whether the best interests of the child are properly considered after the grounds for termination
have been established.
6
a guardian ad litem’s “presence at and active participation in all hearings is absolutely
critical.” Id., § 4(c). That participation includes obligations to participate in all pre-trial
and trial proceedings and to file pleadings, objections, etc. advocating “for the child’s
preferences and the child’s bests interests.” GAL Rules, Ch. 2, § 3(b)(viii) & (xvi). The
administrative rules are consistent with the statutory and case law which required the
GAL to actively participate on behalf of the Child in the proceeding to terminate
Mother’s parental rights.
[¶23] Mother’s argument that the GAL’s participation in the action to terminate her
parental rights should have been limited to filing motions to “quash subpoenas and the
like” is not supported by the applicable statutes, administrative rules, or case law. The
district court did not err by refusing to restrict the GAL’s participation in this case.
2. GAL’s Performance in this Case
[¶24] In a somewhat obscure argument, Mother suggests that the GAL failed to properly
fulfill her role when she did not inform the jury of the Child’s wish to remain with
Mother. Mother also claims the GAL improperly asked the jury to decide the case based
upon the Child’s best interests rather than the statutory factors. In Clark, we
acknowledged the difficulty facing a guardian ad litem when the child’s preference
conflicts with his best interests. Acting as the attorney for the child, the guardian ad litem
has an ethical duty to “‘abide by a client’s decisions concerning the objectives of
representation.’” Clark, 953 P.2d at 152, quoting Wyo. R. Prof. Cond. 1.2. However, in
the role of guardian ad litem, the attorney is obligated to act in the client’s best interests.
Id. We reconciled the two potentially adverse roles, as follows:
Contrary to the ethical rules, the attorney/guardian ad
litem is not bound by the client’s expressed preferences, but
by the client’s best interests. If the attorney/guardian ad litem
determines that the child’s expressed preference is not in the
best interests of the child, both the child’s wishes and the
basis for the attorney/guardian ad litem’s disagreement must
be presented to the court.
Clark, 953 P.2d at 153-54.
[¶25] Mother argues that the GAL violated her responsibilities by telling the jury she
was recommending that Mother’s parental rights be terminated without also informing
the jury that the Child’s preference was to be returned to her. We agree that the GAL
could have presented the Child’s preference more directly; however, she did present
some evidence on the matter and the jury was very aware that he wanted to be with
Mother. The record contains many references to the bond between Mother and the Child.
7
There was also evidence about the emotional problems the Child had while in foster care
and how much he missed Mother.
[¶26] Although most of the evidence of the Child’s preference to be with Mother was
elicited during Mother’s attorney’s cross-examination of the witnesses, some of the
evidence of the Child’s preference was introduced by the GAL. Responding to the
GAL’s questions, DFS supervisor, Roberta Volk, described the difficulties the Child had
being separated from Mother. Ms. Volk testified that the Child “loved his mom. That’s
never been a question in this case.” Under the GAL’s questioning, another DFS worker
testified about the Child’s struggles in foster care and that “he was dreaming that his
mom was coming through the window to take him.” Other witnesses testified, during
cross-examination by the GAL, about the bond between Mother and the Child and the
Child’s problems in foster care. While the GAL could have been clearer about the
Child’s preference to be with Mother, she stated in her closing argument that the Child’s
struggles in foster care were due to “not being with his mom.” The record, therefore,
demonstrates that the GAL fulfilled her role of presenting the Child’s preference to be
returned to Mother to the jury.
[¶27] Mother also asserts that the GAL improperly concentrated her trial presentation
upon the best interests of the Child rather than the statutory factors for termination of
parental rights. She claims the GAL encouraged the jury to decide the case based upon
the Child’s best interests when she told them in closing argument that they should
consider not only Mother’s situation, but the Child’s as well. Mother likens this case to
BA, where we reversed the order terminating the mother’s parental rights because DFS
did not present clear and convincing evidence of the statutory grounds for termination of
parental rights.
[¶28] In BA, the evidence at trial focused upon how well the child was doing in foster
care with his aunt and demonstrated that his “continued placement” with the aunt was “in
FM’s best interest.” Id., ¶ 21, 163 P.3d at 850. We concluded the mother’s right to due
process of law was violated when her parental rights were terminated based upon
evidence of the child’s best interests rather than the statutory factors for termination of
parental rights. Id., ¶¶ 21-23, 163 P.3d at 850.
[¶29] It is true, as Mother insists, that the GAL argued to the jury that it should consider
the Child’s situation. While this argument could pertain to the Child’s best interests, it
also clearly referenced evidence relevant to determining the statutory factors for
termination of parental rights. Under § 14-2-309(a)(iii), the jury needed to know what
was required to keep the Child healthy and safe in order to determine if his health and
safety would be seriously jeopardized if he were returned to Mother. Additionally, this
Court has defined “fitness” in § 14-2-309(a)(v) as the parent’s “ability to meet the
ongoing physical, mental and emotional needs of the child.” RLA v. State, Dep’t of
Family Servs. (In re LA), 2009 WY 109, ¶ 14, 215 P.3d 266, 269 (Wyo. 2009). See also,
8
RGS, ¶ 16, 386 P.3d at 1147. The jury could not determine whether Mother was able to
meet the Child’s needs without knowing what they were. The trial evidence included
testimony by the Child’s medical and mental health providers about his specific needs
and Mother’s problems, including substance abuse and mental health issues, which would
prevent her from addressing his needs and keeping him healthy and safe. Thus, the
GAL’s argument that the jury should consider the Child in making its determinations was
not an improper argument based upon the Child’s best interests.
[¶30] Furthermore, to dispel any possibility that the jury would misunderstand the
GAL’s argument, the district court expressly instructed the jury:
The child’s best interests is not an element of the
claims to be decided by the jury in this case. The child’s best
interests come into play only after statutory grounds for
termination of parental rights have been established by clear
and convincing evidence.
This case, therefore, is nothing like BA, where the evidence focused solely on the child’s
best interests.
[¶31] Under our statutes, administrative rules and case law, the district court properly
allowed the GAL to actively participate in the termination proceedings. Additionally, the
GAL did not violate her duties or Mother’s due process rights because she presented the
Child’s preference to the jury and did not improperly argue that it should decide the case
based upon the Child’s best interests.
B. Treating Provider Testimony
[¶32] Mother maintains the district court erred by allowing her substance abuse and
mental health providers to testify at trial. She claims their testimony should have been
excluded on two bases: 1) DFS did not properly disclose it under W.R.C.P. 26; and 2) it
was privileged information. Because Mother properly objected to the testimony, we
review the district court’s decision using the abuse of discretion standard. CL v. ML,
2015 WY 80, ¶ 15, 351 P.3d 272, 277 (Wyo. 2015).
A trial court’s rulings on the admissibility of evidence
are entitled to considerable deference, and, as long as there
exists a legitimate basis for the trial court’s ruling, that ruling
will not be disturbed on appeal. The appellant bears the
burden of showing an abuse of discretion.
9
Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo. 2015), quoting Glenn v. Union
Pacific R.R. Co., 2011 WY 126, ¶ 12, 262 P.3d 177, 182 (Wyo. 2011). See also CL, ¶ 15,
351 P.3d at 277. To the extent resolution of this issue requires interpretation of statutes
or court rules, our review is de novo. Williams, ¶ 19, 385 P.3d at 794; Busch v. Horton
Automatics, Inc., 2008 WY 140, ¶ 13, 196 P.3d 787, 790 (Wyo. 2008) (stating de novo
review applies to interpretation of statutes and rules of procedure).
1. Discovery Requirements
[¶33] The district court ordered the parties to “fully comply” with Rule 26(a)(2)
“relative to the identification and disclosure of expert witnesses that are subject to the
requirements thereof.” Mother argues that the district court erred by allowing her mental
health providers to testify as experts because DFS failed to provide the expert report and
other materials mandated by Rule 26(a)(2)(B). Mother quotes an earlier version of the
rule in her brief which did not include any subsections and pertained only to disclosure
for witnesses “retained or specially employed to provide expert testimony.” Rule
26(a)(2)(B) (2010). The 2014 version of Rule 26(a), which applied to this case, stated:
(2) Disclosure of expert testimony.
(A) . . . a party shall disclose to other parties the identity
of any person who may be used at trial to present evidence
under Rules 702, 703, or 705 of the Wyoming Rules of
Evidence.
(B) (i) Except as otherwise stipulated or directed by the
court, this disclosure shall, with respect to a witness who is
retained or specially employed to provide expert testimony in
the case or whose duties as an employee of the party regularly
involve giving expert testimony, be accompanied by a written
report prepared and signed by the witness or disclosure signed
by counsel for the party. The report or disclosure shall contain
a complete statement of all opinions to be expressed and the
basis and reasons therefor; the data or other information
considered by the witness in forming the opinions; any
exhibits to be used as a summary of or support for the
opinions; the qualifications of the witness, including a list of
all publications authored by the witness within the preceding
ten years; the compensation to be paid for the study and
testimony; and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition
within the preceding four years.
10
(ii) Unless otherwise stipulated by the parties or ordered
by the court, if the witness is expected to provide opinions but
no report or disclosure under (B)(i) is required, a party must
provide a summary of the facts or opinions to which the
witness is expected to testify and disclose the subject matter
on which the witness is expected to present evidence under
Rules 702, 703 or 705 of the Wyoming Rules of Evidence.4
(footnote added).
[¶34] Mother argues that she was entitled to the comprehensive expert report and other
materials mandated by Rule 26(a)(2)(B)(i). However, as the district court noted, that
requirement did not apply to Mother’s treating providers, as they were not specially
retained or employed to provide expert testimony. See Tracy v. Tracy, 2017 WY 17, ¶
38, 388 P.3d 1257, 1265 (Wyo. 2017); JN v. RFSG (In re HLG), 2016 WY 35, ¶¶ 22-23,
368 P.3d 902, 907-08 (Wyo. 2016). The district court properly denied Mother’s motion
to exclude the experts’ testimony on that basis.
[¶35] Mother does not make any argument regarding the part of Rule 26 that actually
applies to her treating providers – subsection (B)(ii). A party intending to call a treating
provider as an expert witness is required to produce “a summary of the facts or opinions
to which the witness is expected to testify and disclose the subject matter on which the
witness is expected to present evidence under Rules 702, 703 or 705 of the Wyoming
Rules of Evidence.” Rule 26(a)(2)(B)(ii) (2014); JN, ¶¶ 22-23, 368 P.3d at 907-08.
Given Mother does not argue that DFS failed to provide the information required under
subsection (B)(ii), we will not address this issue.
2. Privilege
[¶36] Mother also argues that the district court erred by allowing her mental health
providers to testify to privileged communications. The district court excluded the mental
health providers’ testimony during the first trial because Mother had revoked her earlier
authorizations for disclosure of confidential information. Prior to the second trial, DFS
filed a motion for a pretrial ruling on the issue and the GAL filed a memorandum in
support of the motion. DFS and the GAL argued that the information should not be
excluded because: 1) it had already been disclosed pursuant to releases executed by
Mother; and 2) the information fell within various statutory exceptions to the privilege.
The district court ruled that the testimony would be allowed over Mother’s objection
because it fell within several exceptions to the privilege.
4
Effective March 1, 2017, Rule 26 was amended and renumbered consistent with Fed. R. Civ. P. 26.
11
[¶37] We have generally described a privilege as “‘a limitation on a court’s ability to
compel testimony regarding confidential communications that occur in certain
relationships. 8 Wigmore, [Evidence ] § 2285 at 527 [(McNaughton rev. 1961)].’”
Cooper v. State, 2002 WY 78, ¶ 8, 46 P.3d 884, 888 (Wyo. 2002), quoting Curran v.
Pasek, 886 P.2d 272, 275 (Wyo. 1994). Wyo. Stat. Ann. § 33-38-113 (LexisNexis 2015)
establishes a privilege for information communicated by a patient or client to professional
counselors, marriage and family therapists, social workers, and chemical dependency
specialists “for the purpose of diagnosis, evaluation or treatment of any mental or
emotional condition or disorder.” Disclosure of the information is not allowed unless
there is an “express waiver of the privilege” by the client or patient or an exception
applies. Section 33-38-113(a).
[¶38] Although the district court did not discuss the impact of Mother’s releases upon
her claim of privilege, we will consider whether Mother expressly waived the privilege
because we can affirm the district court on any basis appearing in the record. Leach v.
State, 2013 WY 139, ¶ 19, 312 P.3d 795, 799 (Wyo. 2013). The trial evidence included
certain documents from the juvenile case. One of those was the juvenile court’s order
accepting the parties’ stipulated consent decree which required Mother to comply with
the DFS case plan. The case plan identified Mother’s mental health/coping skills,
substance abuse, and parenting skills as safety and risk issues that needed to be
addressed. Under the terms of the case plan, Mother was required to “work with her
individual counselor and substance abuse counselors” and to “sign forms to release/share
information” from her counseling with DFS. Mother signed the case plan.
[¶39] The record contains a release signed by Mother. It was an express waiver of the
privilege because it “clearly and unmistakably conveyed [Mother’s] intent to relinquish
[her] statutory right” to the privilege by allowing the provider to release information to
DFS. Cooper, ¶ 13, 46 P.3d at 889. Although the record contains only one of the
releases signed by Mother, DFS represented to the district court that Mother had also
executed releases for her other providers. The providers’ and DFS employees’ testimony
confirms that information consistent with the providers’ trial testimony was shared with
DFS and/or at MDT meetings pursuant to Mother’s releases.
[¶40] Mother, nevertheless, asserted that her later revocation of the releases prevented
that information from being used at trial. In Trujillo v. State, 880 P.2d 575, 581 (Wyo.
1994), we stated that a subsequent revocation of a release will not prevent testimony
about information previously disclosed pursuant to that release. Trujillo followed the
general rule recited in 81 Am.Jur.2d Witnesses § 456 (2017):
Once a patient consents to the release of medical
information, he or she destroys the confidentiality between
him or her and the doctor with regard to that information, and
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the revocation of that consent does not reinstate the privilege
with regard to information already disclosed.
[¶41] The release signed by Mother included in the record incorporated this general rule
into its express terms:
[I] understand that I have the right to revoke this
authorization at any time by notifying this office [in w]riting.
I understand the revocation is only effective after it is
received by this office. [I] understand that any use or
disclosure made prior to the revocation of this authorization
will not [be a]ffected by the revocation.
Therefore, Mother was not entitled to reinstate the privilege for information that was
previously disclosed pursuant to an “express waiver” of the privilege. See § 33-38-113.
[¶42] Furthermore, even without the express waivers, the evidence was admissible at
trial. Wyo. Stat. Ann. § 14-3-210 (LexisNexis 2015) states:
(a) Evidence regarding a child in any judicial
proceeding resulting from a report made pursuant to W.S. 14-
3-201 through 14-3-215 shall not be excluded on the ground
it constitutes a privileged communication:
(i) Between husband and wife;
(ii) Claimed under any provision of law other than
W.S. 1-12-101(a)(i) and (ii); or
(iii) Claimed pursuant to W.S. 1-12-116.
[¶43] Wyo. Stat. Ann. § 14-3-205 (LexisNexis 2015) pertains to reports of negligence:
(a) Any person who knows or has reasonable cause to believe
or suspect that a child has been abused or neglected or who
observes any child being subjected to conditions or
circumstances that would reasonably result in abuse or
neglect, shall immediately report it to the child protective
agency or local law enforcement agency or cause a report to
be made.
[¶44] Mother claims there was no report of negligence in this case. Instead, she
characterizes the circumstances that led to the neglect charge as a simple report of a “lost
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child.” A citizen called law enforcement after finding the Child who was two years old,
wandering alone near a busy street, wearing nothing but a T-shirt and socks, and very
cold. Mother did not show up looking for the Child until forty minutes after law
enforcement arrived. Under these circumstances, there was certainly reasonable cause to
believe or suspect that the Child was being subjected to conditions or circumstances that
would reasonably result in neglect.
[¶45] Another requirement for § 14-3-210 to apply is that the information disclosed by
Mother’s counselors be “regarding a child.” We interpreted identical language from an
earlier version of the statute in CP v. Laramie County Dep’t of Pub. Assistance and
Social Servs. (In re: PP), 648 P.2d 512, 516-17 (Wyo. 1982), overruled on other grounds
by Clark, 953 P.2d at 154, n.6. Like the case at bar, PP was a parental rights termination
action resulting from the mother’s neglect of the child. We ruled that the mother’s
psychologist and physician5 could testify about communications with her because they
were “regarding a child.” We explained that “[e]vidence of [the child’s physical,
emotional and mental] condition and the cause thereof was inextricably bound up in the
mental and physical state of [the mother].” Id. at 516-17.
[¶46] Here, DFS’s Notice of Conclusions from its investigation was entered into
evidence at the termination hearing and stated:
The allegations of lack of supervision have been substantiated
as to the preponderance of the evidence has been met [sic]
due to interviews of involved parties and urinalysis testing of
[Mother]. Further, [Mother] stipulated to the allegations of
neglect on July 26, 2013, placing her under the jurisdiction of
the court.
Mother’s case plan indicated that the therapy was intended to address her substance abuse
and mental health issues so the neglect would not be repeated in the future. Like in CP,
Mother’s physical and mental state was at the heart of the claim that she neglected the
Child; consequently, it was clearly “evidence regarding a child.” Section 14-3-210.
[¶47] Mother argues that § 14-3-210 was impliedly repealed by § 33-38-113 which, as
we explained above, provides that communications with counselors and therapists are
generally privileged, but also provides exceptions to the privilege.
[O]ur longstanding rule is that repeals by implication are not
favored and will not be indulged if there is any other
reasonable construction. One asserting implied repeal bears
5
The current version of § 14-3-210 does not create an exception to the privilege for communications
between physician and patient under § 1-12-101(a)(i) or (ii). Section 14-3-210(a)(i).
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the burden of demonstrating beyond question that the
legislature intended that its later legislative action evinced an
unequivocal purpose of affecting a repeal. Furthermore, it
must be shown that the later statute is so repugnant to the
earlier one that the two cannot logically stand together, or that
the whole subject of the earlier statute is covered by the later
one having the same object, clearly intending to prescribe the
only rules applicable to the subject.
Meyer v. Fanning (In re Est. of Meyer), 2016 WY 6, ¶ 29, 367 P.3d 629, 638 (Wyo.
2016), quoting Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 11, 61 P.3d 1229, 1233
(Wyo. 2003), which quoted Shumway v. Worthey, 2001 WY 130, ¶ 15, 37 P.3d 361, 367
(Wyo. 2001). We see no indication that the legislature intended to repeal § 14-3-210
when it enacted § 33-38-113. In fact, the two statutes are complementary. Section 33-
38-113(a)(i) provides an exception to the privilege “[w]here abuse or harmful neglect of
children, the elderly or disabled or incompetent individuals is known or reasonably
suspected.” This exception is entirely consistent with § 14-3-210.
[¶48] Finally, Mother claims that by allowing introduction of the evidence from her
therapy, the policies underlying the privilege in § 33-38-113 were violated. In Cooper, ¶
8, 46 P.3d at 888, we stated:
The policy underlying the statutory privilege at issue is to
encourage full and frank disclosure between an individual and
a person authorized to practice under Title 33, Chapter 38 for
the purpose of effective diagnosis, evaluation, and treatment.
Developments in the Law—Privileged Communications, 98
Harv. L. Rev. 1450, 1472–73 (1985). Similar privileges have
been justified on the bases that (1) counseling relationships
would suffer if people chose not to communicate essential
information to professionals because they feared that the
professionals would be compelled to disclose such
information in court and (2) such relationships involve the
professional and the individual in an intimate relationship in
which personal information is communicated that should be
protected from public disclosure. Id. at 1531. The Wyoming
legislature codified this privilege, and our judicial system
must act to protect its purpose.
However, the statutory exceptions to the privilege recognize that other legitimate
concerns sometimes take precedence over the confidentiality guaranteed by the privilege.
It is up to the legislature, not this Court, to weigh the competing policies and decide when
a claim of privilege should and should not be allowed. See Cheyenne Newspapers, Inc. v.
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Bd. of Trustees of Laramie County Sch. Dist. #1, 2016 WY 113, ¶ 24, 348 P.3d 679, 685-
86 (Wyo. 2016).
CONCLUSION
[¶49] Pursuant to Wyoming statutes, administrative rules, and case law, the GAL was
required to participate fully in the termination proceedings. The trial court, therefore,
correctly denied Mother’s motion to restrict the GAL’s role. In addition, the GAL did
not improperly attempt to persuade the jury to make its decision based upon the best
interests of the Child, and the GAL properly presented the Child’s preference to be with
Mother to the jury.
[¶50] The district court correctly allowed Mother’s mental health providers to testify
about her communications with them. Because they were treating providers, DFS was
not required to provide the full expert report and other materials required by Rule
26(a)(2)(B)(i) (2014). The testimony was also properly allowed over Mother’s claim of
privilege because the information had previously been disclosed pursuant to valid
releases and was statutorily excepted from the privilege.
[¶51] Affirmed.
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