MMH v. State (In re Interest of EHD)

• Decision Date: 16 November 2017
• Docket Number: S-17-0110
• Parties: IN the INTEREST OF: EHD, Minor Child, MMH and LJH, Appellants (Petitioners), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

405 P.3d 222

IN the INTEREST OF: EHD, Minor Child,

MMH and LJH, Appellants (Petitioners),

v.The State of Wyoming, Appellee (Plaintiff).

S-17-0110

Supreme Court of Wyoming.

November 16, 2017

Representing Appellants: Douglas W. Bailey, Bailey Stock Harmon Cottam P.C., Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Senior Assistant Attorney General. Argument by Ms. McCabe.

Guardian Ad Litem: Dan S. Wilde, Deputy State Public Defender and Aaron S. 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.

BURKE, Chief Justice.

[¶1] Appellants, MMH and LJH, appeal from the juvenile court's order denying their motion to intervene in custody proceedings relating to their granddaughter, EHD. Appellants claim the court abused its discretion in denying their motion. They further contend the court erred in denying their requests to be appointed to the multi-disciplinary team and to have EHD placed with them. We affirm.

ISSUES

[¶2] Appellants present the following issues:

1. Did the juvenile court abuse its discretion in denying Appellants' request to intervene?

2. Did the juvenile court abuse its discretion in denying Appellants' request to be appointed to the multi-disciplinary team?

3. Did the juvenile court abuse its discretion in denying Appellants' request that EHD be placed with them?

The State and EHD's guardian ad litem raise the following additional issues:

1. Whether this Court should decline to review Appellants' claim that they were entitled to intervention as a matter of right because they did not raise the issue in the juvenile court.

2. Whether Appellants lack standing to challenge the juvenile court's denial of Appellants' request to be appointed to the multi-disciplinary team and the court's denial of Appellants' request that EHD be placed with them.

FACTS

[¶3] On June 18, 2015, EHD's mother, HD ("Mother"), was discovered unconscious in the backseat of her vehicle by law enforcement with a needle protruding from her body. She held EHD in her arms and an empty bottle of rum was within reach. Mother was arrested for driving under the influence and possession of a controlled substance, and EHD was placed in protective custody after efforts to place her with family members failed.

[¶4] The State filed a petition alleging that Mother had neglected EHD. After a hearing on the State's petition, the juvenile court found that EHD had been neglected. The court ordered that she would remain in the State's custody and that the Department, in consultation with EHD's guardian ad litem, should determine the physical placement of EHD. The court also appointed a multi-disciplinary team ("MDT") to provide recommendations for her care. The team consisted of EHD's foster parents, the guardian ad litem, the Department caseworker, Mother, Mother's attorney, and the district attorney.

[¶5] The Department placed EHD in foster care. While she was in foster care, Appellants had unsupervised visitation with her in their home. In December 2015, the Department learned that Mother was living in the home and that Appellants were permitting her access to the child without the Department's supervision. From that point on, the Department began supervising visitation with Appellants because of its concern that Appellants would allow Mother unapproved contact with EHD.

[¶6] While visitation was ongoing, Appellants submitted an application for foster care certification. The Department provided an update of that application at an MDT meeting held on November 17, 2015. The Department reported that "[Appellants] are working on completing the foster care certification process to have [EHD] placed with them. [Appellants] initially did not want [EHD] placed with them and have since changed their minds and now express a desire to adopt her." Mother did not attend the MDT meeting. Following the MDT's six-month review meeting, in December 2015, the Department noted that Appellants continued to express a desire to adopt EHD, but the Department remained concerned that Appellants would allow Mother access to EHD without the Department's knowledge.

[¶7] At the MDT's nine-month review meeting, the Department noted "several concerns about placement with [Appellants]." It noted that Appellants had declined the Department's offer to extend their visits with EHD. It also noted that Appellants had ended visits with EHD early and had cancelled some visits.

[¶8] The Department submitted a 12-month permanency hearing report on August 30, 2016. The report identified ongoing issues. The report noted that Appellants allowed Mother to have unapproved contact with EHD. It also indicated that the foster care coordinator closed Appellants' foster care certification application after they failed to complete certain required tasks, including CPR/First Aid certification, physicals, TB tests, and a home study. Ultimately, the Department "ruled [Appellants] out as a placement option" for EHD after concluding that they had "proven they will not comply with DFS and will allow [Mother] access to [EHD]."

[¶9] The juvenile court held a permanency hearing on December 8, 2016. Following the hearing, the court changed the permanency plan from reunification to termination of parental rights and adoption. On February 1, 2017, over nineteen months after the case began, Appellants filed a motion to intervene in the proceedings. Appellants' motion also requested that they be appointed to the multi-disciplinary team. The motion noted that Appellants had also filed a petition for adoption of EHD. In response, the State contended that Appellants' attempt to intervene was untimely. The State also asserted that Appellants had been considered for placement, but that the Department and the GAL had decided against placement with Appellants based on concerns for the wellbeing of the child. The juvenile court took the matter under advisement and subsequently issued an order denying Appellants' motion to intervene. This appeal followed.

DISCUSSION

I. Intervention as a Matter of Right

[¶10] Appellants contend the juvenile court abused its discretion in denying their motion to intervene. According to Appellants, they had a right to intervene in the proceedings pursuant to W.R.C.P. 24(a). That rule provides as follows:

(a) Intervention of Right.—On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Rule 24 also provides for permissive intervention:

(b) Permissive Intervention.—

(1) In General.—On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.

In this appeal, Appellants rely solely on W.R.C.P. 24(a) and do not present any claim with respect to permissive intervention under W.R.C.P. 24(b). The guardian ad litem contends that Appellants should be precluded from asserting they were entitled to intervention as a matter of right because they did not present this issue to the juvenile court. We agree.

[¶11] Appellants made no reference to Rule 24 in their motion to intervene or at the hearing on that motion, and they gave no indication as to whether they sought permissive intervention or intervention as a matter of right under that rule. In their motion, Appellants asserted:

4. Petitioners are the child's maternal grandparents and are seeking adoption. Thus, they should be allowed to intervene in this Juvenile proceeding.

5. The child has a fundamental right to a meaningful relationship with her grandparents. In re JW, 226 P.3d 873 (Wyo. 2010). Thus, Petitioners should be allowed to intervene in this Juvenile proceeding.

6. Petitioners adopted a sibling of the child, and the child's fundamental right to a relationship with her sibling should also be respected and protected. See id. Thus, Petitioners should be allowed to intervene in this Juvenile proceeding.

At the hearing, counsel for Appellants stated as follows:

[COUNSEL]: As to the scope of intervention, I don't know that they want to be parties with access to all of the confidential information. What the motion requests is that they be added to the MDT team, and there is a provision in the Wyoming statutes that allows a party to move for someone to be added or taken off the MDT team. So we filed this motion to intervene to get this issue before the Court.

[Appellants] want to be on the MDT team. They want to be considered as a placement option. At minimum, they want to have some say in this child's life. Again, they're the grandparents.

THE COURT: [T]he issue then really is, from your point of view, permanency has been decided, and that's the thing the Supreme Court is most concerned about, but in the interim, that is between now and termination and or adoption, your clients want to be considered placement options.

[COUNSEL]: Absolutely. Absolutely. ...

Notably, Appellants did not cite to any statute purporting to grant them a right to intervene pursuant to W.R.C.P. 24(a)(1).

[¶12] With respect to intervention as a matter of right under W.R.C.P. 24(a)(2), we have explained that four conditions must be satisfied to permit intervention under that section:

First, the applicant must claim an interest related to the property or transaction which is the subject of the action. Second, the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect

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