AW v. State (In re Interest of SW)

• Decision Date: 08 July 2021
• Docket Number: S-20-0243,S-20-0242
• Citation: 2021 WY 81
• Court: Wyoming Supreme Court
• Parties: IN THE INTEREST OF: SW, CW, HW and NW, minor children, AW, Appellant (Respondent), v. THE STATE OF WYOMING, Appellee (Petitioner). IN THE INTEREST OF: SW, CW, HW and NW, minor children, KM, Appellant (Respondent), v. THE STATE OF WYOMING, Appellee (Petitioner).

2021 WY 81

IN THE INTEREST OF: SW, CW, HW and NW, minor children,

AW, Appellant (Respondent), v. THE STATE OF WYOMING, Appellee (Petitioner).

IN THE INTEREST OF: SW, CW, HW and NW, minor children,

KM, Appellant (Respondent), v. THE STATE OF WYOMING, Appellee (Petitioner).

S-20-0242

S-20-0243

SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 2021

July 8, 2021

Appeal from the District Court of Carbon County

The Honorable Dawnessa A. Snyder, Judge

Representing Appellant AW:

David McCarthy, David McCarthy, P.C., Rawlins, Wyoming.

Representing Appellant KM:

Jennifer K. Stone, Schilling, Winn & Stone, P.C., Laramie, Wyoming.

Representing Appellee:

Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christine F. McCabe, Senior Assistant Attorney General.

Guardians ad Litem:

Joseph R. Belcher, Director, Wyoming Office of the Guardian ad Litem; Kim Skoutary Johnson, Chief Trial and Appellate Counsel; Tamara K. Candelaria, Guardian ad Litem.

Before FOX, C.J., and DAVIS^*, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

^* Chief Justice at time of brief-only conference.

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.

GRAY, Justice.

[¶1] Both AW (Mother) and KM (Father) appeal from the juvenile court's order changing the permanency plan for their four children¹ from reunification to adoption. Their appeals have been consolidated. Mother and Father assert that the juvenile court abused its discretion when it determined that the Department of Family Services (DFS) made reasonable efforts to reunify the children without offering specialized services. We affirm.

ISSUE

[¶2] Mother and Father raise the same issue, which we rephrase:

Did the juvenile court abuse its discretion when it found DFS had provided reasonable efforts to reunify the family where specialized care was not provided to Mother or Father?

FACTS

[¶3] The family lives in Rawlins, Wyoming, and consists of Mother, Father, and four minor children. When this matter began, NW was seven years old; HW, three years old; CW, two years old; and SW was a newborn.²

[¶4] On February 11, 2019, while Mother was pregnant with SW, DFS received a call reporting possible marijuana sales out of the family garage and raising concerns about home conditions. DFS responded. On being asked, Father denied selling marijuana but admitted smoking it. The children were unwashed and the home dirty. DFS instructed the family to attend to the children and clean the home. It advised Mother and Father there would be a follow-up visit. This was the first of many incidents leading to the present proceeding and these appeals.

[¶5] DFS returned and, finding the conditions unchanged, created a safety plan addressing the children's hygiene, home conditions, and the marijuana possession and use.³ Shortly thereafter, Father was charged with possession of marijuana prompting DFS to return again. At that time, Mother was in the hospital, having just given birth to SW. SW was born with nicotine withdrawal due to Mother's tobacco use during pregnancy. DFS notified Mother and Father that there would be an investigation of the identified concerns, and both parents would be required to submit to urinalysis testing.

[¶6] When discharged from the hospital, SW was on oxygen. In April 2019, DFS received a report that doctors did not believe Mother or Father were properly administering SW's oxygen. DFS conducted a home check and found SW without oxygen, asleep on his stomach, and experiencing labored breathing. SW's oxygen levels were low, and DFS advised Mother and Father to follow doctor's orders in administering oxygen. During this same visit, DFS addressed concerns with Mother and Father about NW's continuing problems with head lice. DFS also talked to them about their household roommate who had been arrested for furnishing alcohol to minors. On leaving, DFS contacted the nurse practitioner who had reported the oxygen concern. The nurse practitioner made clear that SW needed to be on oxygen full time and advised that she and SW's doctor would like him to be brought to the hospital for observation. DFS returned to the home to find SW again without oxygen. DFS relayed the nurse practitioner's medical advice to Mother, who then drove SW to the hospital. DFS followed. After arriving at the hospital, SW was transported to Denver for treatment.

[¶7] DFS filed a neglect petition relating to SW on April 11, 2019. The juvenile court placed SW in DFS custody and ordered foster care placement on his discharge from the hospital. SW was discharged and placed with a foster care family with orders that he be on oxygen full time—twenty-four hours a day, seven days a week.

[¶8] Mother and Father were given the opportunity for visitation with SW from 8:00 a.m. through 5:00 p.m., Mondays through Fridays. Mother requested visitation be reduced from 40 hours per week to 12, but ultimately agreed to 24 hours per week. Mother and Father visited SW at DFS facilities between April 20 and May 31, 2019.

While DFS did not supervise the entirety of these visits, DFS workers periodically checked on the family. Repeatedly, even after receiving instructions, Mother would lay SW on his stomach on the floor and remove his oxygen. Mother and Father rarely held him. When Mother did hold him, she failed to support his head. During the visits, the other children were uncontrolled and subjected to inappropriate discipline from Father. Mother showed DFS workers how to turn off the oxygen alarm instead of looking for the cause of the alarm. Once, Mother left SW on the floor and exited the room. She inadvertently locked herself out, leaving SW inside, unattended.

[¶9] In mid-May, DFS received a report alleging abuse of the other three children. The report claimed the children were locked in their rooms for extended periods, and again raised concerns about the condition of the home. On May 29, 2019, Father, while visiting SW at his foster home, forcefully picked CW off the floor by his arm. This caused CW's elbow to "pop" and his arm to bruise. CW, and the other two children still in Mother and Father's care, were examined by a medical professional. Bruising was found on CW and AW. All three had head lice (NW, seven times in the preceding eight months) and were dirty. DFS was also concerned that NW consistently assumed the role of caretaker for the younger children. DFS took the three children into protective custody.

[¶10] A second neglect petition was filed against Mother and Father, this time relating to all four children. Mother and Father admitted to the allegations of neglect.⁴ The juvenile court placed the children in DFS custody, ordered Mother and Father to complete a parenting class, and required DFS to file a case plan. The later-filed case plan required Mother and Father to focus on parenting skills, home cleanliness, and communication. It directed them to attend counseling.

[¶11] The August 2019 Predisposition Report indicated that Mother and Father continued to struggle with caring for the children. They experienced problems with parental bonding and empathy toward SW. They continued to have difficulty keeping their home clean. A psychological assessment was recommended. A disposition hearing followed. Nonetheless, CW, HW, and NW were returned to the custody of Mother and Father, under DFS supervision. SW remained in foster care. Mother and Father were ordered to complete psychological evaluations and bonding assessments. In November 2019, Father tested positive for methamphetamine; and, after an emergency change of placement hearing, CW, HW, and NW returned to foster care.

[¶12] Independent bonding assessments of Mother and Father revealed that Mother and Father had significant parenting strengths, but that SW had not bonded with Mother. Asubstance abuse evaluation filed in January 2020 recommended Mother receive psychological treatment. Dr. Mark Gibson, a licensed psychologist, conducted psychological evaluations of Mother and Father. Dr. Gibson's evaluations, filed on January 21, 2020, concluded Mother suffered from major depressive disorder, borderline personality disorder, and needed mental health services. He recommended individual therapy and "a psychiatric referral . . . to assess the need for medication." Mother began receiving individual therapy in December 2019 and took medication for depression. Dr. Gibson diagnosed Father with adjustment disorder with depressed mood. Dr. Gibson recommended substance abuse treatment and a parenting course. Father received substance abuse treatment, some parenting instruction, and individual counseling.

[¶13] Between February 2019 and June 2020, Mother and Father received many services including:

• DFS developed eight safety plans. These plans included strategies to assist Mother and Father in addressing the conditions of the home; treating the children's head lice; limiting NW's role as caretaker; understanding SW's health needs; care of the children; avoiding the children's exposure to inappropriate people; and using appropriate punishments versus physical abuse.

• DFS caseworkers made nearly daily visits to the home.

• DFS cleaned the house.

• DFS removed headlice.

• DFS provided checklists to assist Mother and Father with parenting and cleaning.

• DFS provided one-on-one parenting courses for Mother and Father.

• DFS provided psychological and parenting evaluations.

• DFS transported Mother and Father to psychological evaluations.

• DFS provided substance abuse counseling for Mother and Father.

• DFS provided individual mental health counseling for Mother and Father.

• DFS provided individual counseling for the children.

• DFS provided family therapy.

• DFS provided group parenting classes.

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