In the Interest of: AM, NM and IM, minor children, RR v. The State of Wyoming ( 2021 )

IN THE SUPREME COURT, STATE OF WYOMING
2021 WY 119OCTOBER TERM, A.D. 2021
October 28, 2021
IN THE INTEREST OF: AM, NM and
IM, minor children,
RR,
Appellant
(Respondent),
v. S-21-0037
THE STATE OF WYOMING,
Appellee
(Petitioner).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Sarah G.R. Phillips, Bighorn Mountain Legal Services, LLC, Sheridan, Wyoming.
Argument by Ms. Phillips.
Representing Appellee:
Bridget L. Hill, Attorney General; Misha Westby, Deputy Attorney General;
Christina McCabe, Senior Assistant Attorney General; Allison Connell, Assistant
Attorney General. Argument by Ms. Connell.
Guardians ad Litem:
Joseph R. Belcher, Director, and Kimberly A. Skoutary-Johnson, Chief Trial and
Appellate Counsel, Wyoming Guardian ad Litem Program.
Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, 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, Chief Justice.
[¶1] The Department of Family Services (DFS) recommended changing the
permanency plan for minor siblings IM, NM, and AM from a concurrent plan of adoption
or reunification to adoption. The juvenile court held an evidentiary hearing after which it
ordered the permanency plan be changed to adoption and found that DFS should be
relieved of making further reasonable efforts to reunify. We affirm.
ISSUES
[¶2] Mother raises three issues which we consolidate and rephrase as follows:
I. Did the juvenile court err when it ruled that DFS could
cease making reasonable efforts to reunify?
II. Did the juvenile court’s decision to admit DFS’s
Exhibit A violate Mother’s due process rights?
FACTS
[¶3] RR (Mother) and JM (Father) are parents of three minor children, IM, NM, and
AM. On March 29, 2019, law enforcement officers responded to a report of an argument
between Mother and Father outside a school. When officers contacted Mother and
Father, they learned that the children, then ages seven, five, and four, had been home
alone at the time of the argument. The officers also discovered a pipe and small baggie
which both tested presumptively positive for methamphetamine. Mother admitted to
purchasing and using methamphetamine, the officers arrested Mother and Father, and
took IM, NM, and AM into protective custody. Later that day, the Sheridan County
Attorney’s office filed a petition alleging Mother and Father had neglected the children.
On April 1, 2019, the juvenile court ordered the children be placed in foster care. It also
ordered both parents to address their addictions and to obtain counseling assessments to
address individual and family needs. A multidisciplinary team (MDT) was appointed to
“formulate reasonable and attainable recommendations for the court outlining the goals
or objectives the parents should be required to meet for the child[ren] to be returned to
the home or for the case to be closed.” Wyo. Stat. Ann. § 14-3-427(f) (LexisNexis 2021).
[¶4] Mother initially made progress on the plan—she got a job, had several clean UAs,
successfully completed inpatient treatment, attended outpatient counseling and recovery
classes, and progressed to unsupervised visits with the children. In the early spring of
2020, Mother’s counseling and recovery meetings were cancelled and she lost her job as
a server at a restaurant because of COVID-19. During a visit with the children, Mother
was arrested on suspicion of theft. Mother lost her housing because of the arrest but
resumed part-time employment as a server and appeared to be doing well with her
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aftercare. Mother resumed supervised visits with the children in the summer of 2020. In
August 2020, Mother was arrested on new felony charges for delivery of
methamphetamine. Mother relapsed and, in September, she was arrested again for
misdemeanor possession of a controlled substance. DFS then learned Mother had been
lying about her living situation for months. At the next MDT meeting, the majority of the
team recommended the permanency plan be changed to adoption.
[¶5] At the November 5, 2020 evidentiary hearing, the DFS caseworker and the
guardian ad litem argued it was in the children’s best interest to change the permanency
plan to adoption. The State introduced an exhibit prepared by the DFS caseworker which
summarized the events of the previous nineteen months and the reasonable efforts made
by DFS to reunify the family. Mother objected to the exhibit, asserting it was untimely
because she only received a copy “shortly before” the hearing, and because it contained
hearsay within hearsay. The juvenile court admitted the exhibit reasoning that the Rules
of Evidence do not apply to juvenile proceedings of this nature and that probative,
trustworthy, and credible hearsay evidence is allowed. See W.R.E. 1101(b)(3).
[¶6] The DFS caseworker opined that it was in the children’s best interest to change the
permanency plan to adoption. Mother’s counsel asked if it would be detrimental to cease
reasonable efforts pending the termination case. The DFS caseworker responded that she
did not think it would be detrimental to the children and that prolonging reasonable
efforts would “make things worse in the end.”
[¶7] The juvenile court promptly issued its order on November 10, 2020. It found:
Throughout this case, both parents have made little to no
progress. . . . Although Mother has actively participated in
this case, she is still not in a position to parent these children
after receiving extensive services. Both parents have failed to
maintain their sobriety, stable housing, or employment. In
addition, both parents have continued to engage in criminal
behavior throughout this case, and they are now facing
significant jail or prison time.
Though Mother requested continued reunification efforts, the court concluded that the
children’s right to stability and permanency outweighed Mother’s right to familial
association. It held that the State had proven the permanency plan was not in the
children’s best interest and ordered the permanency plan be changed to adoption. It
ruled, “DFS should be relieved of making further reasonable efforts, including facilitating
phone calls between the children and their parents.” Mother appealed.
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DISCUSSION
I. The Juvenile Court Did Not Err When It Ruled That DFS Could Cease
Reasonable Efforts
[¶8] Mother does not challenge the juvenile court’s order changing the permanency
plan to adoption; she does object to allowing DFS to cease making reasonable efforts at
reunification, which essentially means she can no longer have contact with her children.
First, she asserts the juvenile court’s decision is not supported by sufficient evidence;
second, Mother argues that the juvenile court’s decision was deficient as a matter of law
because it did not make specific findings under Wyo. Stat. Ann. § 14-2-309(b) or (c).
A. Standard of Review
[¶9] We review the juvenile court’s decision to change a permanency plan for an abuse
of discretion. In the Interest of AA, 2021 WY 18, ¶ 33, 479 P.3d 1252, 1261 (Wyo.
2021). “A court does not abuse its discretion unless it acts in a manner which exceeds the
bounds of reason under the circumstances.” Id. (quoting MMM v. AMMJ, 2018 WY 60,
¶ 10, 419 P.3d 490, 493 (Wyo. 2018)). To the extent Mother challenges the sufficiency
of the evidence to support the juvenile court’s decision, “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.” In the
Matter of JPL, 2021 WY 94, ¶ 21, 493 P.3d 174, 180 (Wyo. 2021) (citations omitted).
Mother’s assertion that the juvenile court erred as a matter of law requires us to “engage
in statutory interpretation, a question of law that we review de novo.” In the Interest of
DT, 2017 WY 36, ¶ 23, 391 P.3d 1136, 1143 (Wyo. 2017) (citation omitted).
B. The Juvenile Court Was Not Required to Order Reasonable Efforts to
Continue When It Changed the Permanency Plan to Adoption
[¶10] Mother argues that the juvenile court’s decision that DFS could cease making
reasonable efforts to reunify her with her children was contrary to the children’s best
interest and not supported by sufficient evidence. But, while the decision to change a
permanency plan must be supported by sufficient evidence, the same is not true for the
decision to discontinue reasonable efforts following a change in plan.
[¶11] “To change a permanency plan, the juvenile court must determine whether the
current plan is in the child’s best interests and whether DFS has made reasonable efforts
to finalize the plan.” In the Interest of SW, 2021 WY 81, ¶ 17, 491 P.3d 264, 269 (Wyo.
2021) (citations omitted). The State must prove that a change in the permanency plan is
justified by a preponderance of the evidence. Id. If the juvenile court determines the
State has met its burden, it may order a change in the permanency plan. Id. While Wyo.
Stat. Ann. § 14-3-440 requires DFS to make reasonable efforts to reunify children with
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their family, “the statute also recognizes that . . . reunification efforts inconsistent with
the permanency plan may be discontinued.” In re NDP, 2009 WY 73, ¶ 21, 208 P.3d
614, 619 (Wyo. 2009); see also Wyo. Stat. Ann. § 14-3-440(d) (If reasonable efforts to
reunify are “determined to be inconsistent with the permanency plan for the child,”
efforts shall be made in accordance with the revised permanency plan “to finalize the
permanent placement of the child.”).
[¶12] The juvenile court determined that reunification was no longer in the best interest
of the children and that DFS had made reasonable efforts to reunify the family, but those
efforts had failed. It ordered that the permanency plan be changed to adoption.
Reasonable efforts to reunify Mother with the children are unnecessary because the
permanency plan no longer contemplates reunification of the family. See In the Interest
of SW, 2021 WY 81, ¶ 29, 491 P.3d at 272 (concluding that sufficient evidence supported
the decision to change the permanency plan from reunification to adoption, that
reasonable efforts had been made, and that no further efforts were required); In the
Interest of DT, 2017 WY 36, ¶ 34, 391 P.3d at 1146 (concluding the juvenile court did
not abuse its discretion when it ruled DFS could cease reasonable efforts and changed the
permanency plan from reunification to adoption); In re NDP, 2009 WY 73, ¶ 21, 208
P.3d at 619. Mother directs this Court to no authority that requires a juvenile court to
support its decision to cease reasonable efforts after a change in permanency plan by
sufficient evidence. The juvenile court did not abuse its discretion. 1
C. Wyoming Statute § 14-3-440 Does Not Require a Specific Finding Under § 14-
2-309(b) or (c) When the Juvenile Court Finds DFS Made Reasonable Efforts
to Reunify the Family but the Efforts Were Unsuccessful
[¶13] Mother argues that the juvenile court’s decision to cease reasonable efforts was
deficient as a matter of law because it did not make additional findings under Wyo. Stat.
Ann. § 14-2-309(b) or (c). “When interpreting a statute and its application, we first look
at the plain language used by the legislature. If the statute is sufficiently clear and
unambiguous, the Court simply applies the words according to their ordinary and obvious
meaning.” In the Interest of DT, 2017 WY 36, ¶ 25, 391 P.3d at 1144 (quoting In re
CRA, 2016 WY 24, ¶ 16, 368 P.3d 294, 298 (Wyo. 2016)). We construe each statutory
provision in pari materia, and we “consider all statutes relating to the same subject or
having the same general purpose and strive to interpret them harmoniously.” In Interest
of JB, 2017 WY 26, ¶ 12, 390 P.3d 357, 360 (Wyo. 2017) (citations omitted).
1
DFS argued at oral argument that one reason for the cessation of reasonable reunification efforts was the
desire to achieve permanency for the children. While this is certainly a desirable goal, it does not seem to
have been achieved in this case. According to counsel, it took almost a year for the State to file its
petition for termination.
4
[¶14] Wyoming statute § 14-2-309 addresses the grounds for terminating the parent-
child relationship. Subsection (a) sets forth bases for termination that generally require
DFS to make reasonable efforts at reunification prior to seeking termination. Subsections
(b) and (c) address circumstances in which the parents’ conduct is so egregious that the
statute specifically states no reasonable efforts are required before DFS seeks
termination. 2
[¶15] Mother’s argument that provision means reasonable efforts at reunification can
only be ceased after specific findings by the juvenile court that the circumstances
under § 309(b) or (c) exist would turn the statutory structure on its head. The general rule
is that reasonable efforts shall be made to preserve and reunify the family to either
eliminate the need to remove the child from the home, or to make it possible for the child
2
Subsections (b) and (c) provide:
(b) Proof by clear and convincing evidence that the parent has been
convicted of any of the following crimes may constitute grounds that the
parent is unfit to have custody or control of any child and may be
grounds for terminating the parent-child relationship as to any child with
no requirement that reasonable efforts be made to reunify the family:
(i) Murder or voluntary manslaughter of another child of the
parent or aiding and abetting, attempting, conspiring to commit
or soliciting such a crime; or
(ii) Commission of a felony assault which results in serious
bodily injury to a child of the parent. As used in this paragraph
“serious bodily injury” means as defined by W.S. 6-1-104.
(c) Notwithstanding any other provision of this section, evidence that
reasonable efforts have been made to preserve and reunify the family is
not required in any case in which the court determines any one (1) or
more of the following by clear and convincing evidence:
(i) The parental rights of the parent to any other child have been
terminated involuntarily;
(ii) The parent abandoned, chronically abused, tortured or
sexually abused the child;
(iii) The parent has been convicted of committing one (1) or
more of the following crimes against the child or another child of
that parent:
(A) Sexual assault under W.S. 6-2-302 through 6-2-304;
(B) Sexual battery under W.S. 6-2-313;
(C) Sexual abuse of a minor under W.S. 6-2-314 through
6-2-317.
(iv) The parent is required to register as a sex offender pursuant
to W.S. 7-19-302 if the offense involved the child or another
child of that parent. This shall not apply if the parent is only
required to register for conviction under W.S. 6-2-201;
(v) Other aggravating circumstances exist indicating that there is
little likelihood that services to the family will result in
successful reunification.
Wyo. Stat. Ann. § 14-2-309(b) and (c) (LexisNexis 2021).
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to safely return to the child’s home. Wyo. Stat. Ann. § 14-3-440(a). 3 If DFS considers
the reasonable efforts have not achieved those goals, it may seek to change the
permanency plan from reunification to adoption, as it did here, and it must then
“demonstrate to the juvenile court that it made reasonable efforts to reunify the family but
was unsuccessful.” Interest of VS, 2018 WY 119, ¶ 38, 429 P.3d 14, 25 (Wyo. 2018).
The § 309(b) and (c) procedure for such exceptional circumstances as murder of another
child or sexual abuse simply have no application to Mother’s situation.
[¶16] Here, the juvenile court found that DFS made reasonable efforts to reunify the
family, but those efforts were unsuccessful. It determined that DFS could cease making
reasonable efforts to reunify the family because those efforts would be inconsistent with
the new permanency plan—adoption. The juvenile court did not err as a matter of law by
making no finding under Wyo. Stat. Ann. § 14-2-309(b) or (c).
II. The Juvenile Court Did Not Violate Mother’s Due Process Rights When It
Admitted State’s Exhibit A into Evidence
[¶17] Mother claims the admission of Exhibit A violated her due process rights. “The
question of whether an individual was afforded due process is one of law, for which our
review is de novo.” Interest of VS, 2018 WY 119, ¶ 25, 429 P.3d at 21 (citation omitted).
“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.” Bruce v. Bruce, 2021 WY 38, ¶ 16, 482 P.3d 328, 333 (Wyo. 2021)
(citations omitted). Exhibit A is a six-page summary of the case that the DFS caseworker
put together to justify the decision to change the permanency plan. The caseworker
testified that she compiled the summary from her internal DFS notes. The State gave a
copy of the exhibit to Mother shortly before the start of the hearing. Mother objected
because it was untimely and contained hearsay within hearsay. On appeal, Mother argues
she was denied due process because she could not meaningfully defend against the
exhibit. 4
[¶18] Generally, due process requires notice and an opportunity to be heard. Matter of
TJH, 2021 WY 56, ¶ 10, 485 P.3d 408, 412 (Wyo. 2021). “The required process varies
depending upon ‘the nature of the proceeding and the interests involved.’” Interest of VS,
3
See KC v. State, 2015 WY 73, ¶¶ 20-31, 351 P.3d 236, 242-45 (Wyo. 2015), for an excellent summary
of the procedure in abuse and neglect and termination cases.
4
Mother does not specify how Exhibit A is relevant to the issue she has raised – the cessation of
reasonable efforts to reunify – as opposed to the change in the permanency plan, which she does not
contest. However, the notes regarding her continued drug use, and the children’s “thriving” in foster care
could be relevant to the decision to cease Mother’s contact with the children.
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2018 WY 119, ¶ 28, 429 P.3d at 22 (citation omitted). Parents are entitled to an
evidentiary hearing when a proposed “change in permanency plan includes adoption or
permanent placement other than reunification.” KC v. State, 2015 WY 73, ¶ 42, 351 P.3d
236, 247 (Wyo. 2015). When a parent requests an evidentiary hearing,
[t]he parent requesting a hearing is entitled to put the State to
its proof, to be present, to confront and cross-examine
witnesses, to call witnesses, and to present a case in support
of a continued plan of reunification or dismissal of the case.
Hearsay evidence that is probative, trustworthy and credible
may be received at the hearing. . . . [A]t the permanency
hearing[,] the State has the burden of establishing by a
preponderance of the evidence that a change in the
permanency plan is in the best interests of the child.
Interest of VS, 2018 WY 119, ¶ 29, 429 P.3d at 22-23 (quoting KC, 2015 WY 73, ¶ 44,
351 P.3d at 247).
[¶19] We agree with Mother that the State’s production of the exhibit was untimely.
There was insufficient time for Mother to review the exhibit. However, we cannot say
that the untimeliness of the exhibit denied Mother due process. Mother cross-examined
the caseworker about her opinions and testimony, and she had the opportunity to call
witnesses and present a case in support of a continued plan of reunification. Further,
while the caseworker created the exhibit from her internal DFS notes, most of the
information within the exhibit is also found in the MDT and CASA notes to which
Mother had access. Mother challenges the exhibit for containing hearsay, but the rules of
evidence do not apply in juvenile proceedings except in adjudicatory hearings. W.R.E.
1101(b)(3). Thus, reliable hearsay is allowed at permanency hearings. Interest of VS,
2018 WY 119, ¶ 29, 429 P.3d at 22-23 (quoting KC, 2015 WY 73, ¶ 44, 351 P.3d at 247).
The caseworker testified that she compiled the document based on her review of the case
and all the statements either came from her or other MDT members, thus, the hearsay
testimony was “probative, trustworthy and credible.” Interest of VS, 2018 WY 119, ¶ 29,
429 P.3d at 22. The juvenile court did not violate mother’s due process rights by
admitting Exhibit A into evidence.
CONCLUSION
[¶20] The juvenile court did not err when it ruled that DFS could cease reasonable
efforts following a change in the permanency plan to adoption, and the admission of
Exhibit A did not violate Mother’s right to due process. We affirm.
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