Decision Date25 November 2003
Citation2003 WY 155,79 P.3d 997
PartiesIn the Interest of the "H" CHILDREN, Minors. DH, Appellant (Respondent), v. Wyoming Department of Family Services, Appellee (Petitioner).
CourtWyoming Supreme Court

Representing Appellant: Sue Davidson of Aspen Ridge Law Offices, P.C., Cheyenne, Wyoming.

Representing Appellee: Hoke MacMillan, Attorney General; Michael L. Hubbard, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; and Sue Chatfield, Assistant Attorney General.


VOIGT, Justice.

[¶ 1] This is an appeal from a juvenile court adjudication of neglect and a subsequent placement order. Finding no error, we affirm.


[¶ 2] On July 11, 2002, the appellant filed a Notice of Appeal in which she stated that the appeal was being taken from Findings of Fact and Conclusions of Law dated June 11, 2002, and an Order for Transfer of Physical Placement Upon Motion Hearing dated July 3, 2002. In her appellate brief, the appellant identified several specific issues, which we restate as follows:

1. Must the Department of Family Services (DFS) follow state statutes, court orders, and its own regulations in a child protection case?

2. Did the juvenile court abuse its discretion by appointing the attorney for one or more of the children to act as guardian ad litem (GAL) for the children?

3. Was the appellant denied procedural due process in the juvenile court proceedings in any of the following particulars?

a. Meaningful notice and an opportunity to be heard.
b. Failure to meet the requirements of W.R.C.P. 58.
c. Arbitrary denial of motions for continuance.

4. Did the juvenile court err in finding neglect under Wyo. Stat. Ann. § 14-3-402(a)(xii)(A) (LexisNexis 2003)?

[¶ 3] The fourth section of the appellant's brief contains some argument pertaining to issue number four above, but the bulk of the argument in that section is directed to a separate issue, which we will identify as follows:

5. Did the juvenile court err in allowing the children to have visitation with their grandparents and aunt?

[¶ 4] In its appellate brief, DFS identifies only two issues:

1. There was sufficient evidence for the juvenile court to determine by a preponderance of the evidence that the appellant neglected her children.

2. The juvenile court's Order for Transfer of Physical Placement Upon Motion Hearing is not an appealable order.

[¶ 5] Throughout this opinion, we will repeatedly note the appellant's failure to support her contentions with cogent argument or citation to pertinent authority. We also need to note at the outset that both of the State's identified issues have to do with the appellant's issues number four and five, and that the State's appellate brief is completely devoid of any response to any of the appellant's other issues. The briefing deficiencies in this case have made it almost impossible to reach the merits of the controversy.


[¶ 6] The appellant has three minor children (DDH, BKH and BMH). At the time of the incidents underlying this case, DDH was thirteen years old, BKH was ten years old, and BMH was eight years old. The appellant and her children lived with the appellant's boyfriend. Frequently, the children spent weekends with the appellant's mother and adoptive father (grandparents).

[¶ 7] On December 1, 2001, the children spent the night with their grandparents. DDH's friend, TS, also spent the night. The appellant had instructed DDH to contact her by noon the next day to go on a family outing. DDH telephoned home at noon and again between 1:30 and 2:00 p.m., but there was no answer either time. DDH then called the VFW bar, where the appellant and her boyfriend went nearly every night.1

[¶ 8] DDH reached the appellant at the VFW. The appellant's speech was slurred and she was angry with DDH for not calling her earlier. After the call, the grandparents went to take the children and TS home. At TS's home, DDH went inside with her friend, whereupon DDH became hysterical. TS's mother asked the grandfather to come inside. DDH then described problems arising in her home, including the appellant's drinking, DDH's suicide threats, the appellant's various boyfriends, the present boyfriend's name-calling and threats of violence, arguing and fighting, and DDH having to raise her siblings. DDH told her grandfather that she did not want to go home, that her mother was drunk, that her mother drinks every night, that she was "tired of it," and that there would be an argument about it if she went home.

[¶ 9] At about that time, the appellant called TS's residence and spoke with her father. Her father sensed that the appellant was drunk because she was slurring her words. The appellant's boyfriend came on the telephone and threatened the appellant's father with physical violence. TS's mother then called the Sheriff's Department. She and the appellant's father spoke with the sheriff and with the psychiatrist who had dealt with DDH after her recent suicide threat. The appellant's father was advised to take the children to the police department, which he did. At the police department, an officer separately interviewed the appellant's father and all three children. Each child told him about the appellant's drinking and problems that drinking created at home. The officer also spoke with the appellant when she repeatedly called during the interviews. Based upon all he had learned, the officer placed the children in protective custody.

[¶ 10] After the children were taken to the police department, two officers went to the appellant's home. They found both the appellant and her boyfriend to be agitated, excited, loud, and interruptive, and they described both the appellant and her boyfriend as having slurred speech and a short attention span, and smelling of alcohol. Both officers testified that they believed the appellant and her boyfriend to be intoxicated.


[¶ 11] On December 4, 2001, a Laramie County Assistant District Attorney filed a petition in the juvenile court alleging that the three children were neglected under Wyo. Stat. Ann. § 14-3-402(a)(xii)(A) because their "custodian has failed or refused to provide adequate care, maintenance, supervision, education, medical, surgical or any other care necessary for the children's well being." The detailed factual basis for that allegation read as follows:

On December 2, 2001, Officers were called to [address] for a possible suicidal subject. Upon arrival, officers made contact with [the appellant] who immediately denied any suicidal ideation and seemed confused, insisting there had been miscommunication between her and the dispatcher. Also present was [the appellant's] boyfriend[.] Both [the appellant] and [her boyfriend] smelled heavily of al[c]oholic beverages and were uncooperative and agitated during questioning. Essentially, [the appellant] tried to tell Officer Dafoe that her father ... was refusing to return her children to her. [The appellant's father] was contacted and agreed that he had refused to allow [the appellant] to take her children because she was drunk and hostile. [The appellant's father] reported that [the appellant's boyfriend] was also drunk and threatened bodily harm to [him].

The children, [DDH, BKH, and BMH] were interviewed individually. Each reported that their mother has a severe alcohol and drug problem and that they were scared to go home with her. In addition, [DDH] told [her grandfather] that she would kill herself if she had to return to her mother's home, and had just been seen at the emergency room over Thanksgiving, having attempted suicide. [DDH] confirmed to [the officers] these suicidal threats and feelings and stated that she is extremely despondent about the situation and fearful of her mother's actions.

[¶ 12] On the same day that the petition was filed, the juvenile court held an informal shelter care hearing pursuant to Wyo. Stat. Ann. § 14-3-409(a) (LexisNexis 2003). After determining that further shelter care was required, the juvenile court temporarily placed the children in the custody of DFS for foster care placement, and ordered DFS to prepare a social summary and convene a multi-disciplinary team meeting.

[¶ 13] The initial hearing on the petition was held on January 3, 2002. Appearing with counsel, the appellant denied the allegations of the petition. Also at the initial hearing, the juvenile court granted the motion of the children's GAL that the children be allowed to have visitation with their grandparents and with an aunt, CW. The juvenile court also continued the children's temporary placement with DFS.

[¶ 14] On January 15, 2002, the appellant filed a Motion to Return Children to Mother's Physical Custody or, Alternatively, Move the Children to Another Foster Care Home; and Motion to Reconsider Visitation Order. The allegations of this motion were of three general types: (1) allegations of deficient care and supervision in the foster home; (2) allegations that the grandparents and CW continued to undermine the appellant's relationship with her children by intrusive and oppressive misconduct; and (3) allegations of procedural irregularities, including lack of notice to the appellant that the visitation issue would arise at the initial hearing, and the failure of counsel for the State to present the proposed Order for Shelter Care to the appellant's counsel for approval as to form as required by W.R.C.P. 58.

[¶ 15] The appellant's motion was heard on February 21, 2002, and was denied by an order entered on March 6, 2002. The order also maintained DFS's temporary legal custody of the children, ordered certain monies be paid over to DFS for support of the children, and ordered that an order be submitted appointing the children's GAL.2

[¶ 16] On April 5, 2002, the GAL filed a motion requesting that DDH, over her mother's objections, be allowed to...

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