DB v. State (In re Interest of CRA), s. S–15–0194

• Decision Date: 24 February 2016
• Docket Number: S–15–0208.,Nos. S–15–0194,s. S–15–0194
• Citation: 368 P.3d 294
• Parties: IN THE INTEREST OF CRA, A Minor Child. DB, Appellant (Respondent), v. THE STATE OF WYOMING, Appellee (Petitioner). IN THE INTEREST OF CRA, A Minor Child. DB, Appellant (Respondent), v. THE STATE OF WYOMING, Appellee (Petitioner).
• Court: Wyoming Supreme Court

368 P.3d 294

IN THE INTEREST OF CRA, A Minor Child.

DB, Appellant (Respondent),

v.THE STATE OF WYOMING, Appellee (Petitioner).

IN THE INTEREST OF CRA, A Minor Child.

DB, Appellant (Respondent),

v.THE STATE OF WYOMING, Appellee (Petitioner).

Nos. S–15–0194

S–15–0208.

Supreme Court of Wyoming.

Feb. 24, 2016.

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

Representing Appellee: Peter K. Michael, Wyoming 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.

Representing Guardian Ad Litem: Dan S. Wilde, Deputy State Public Defender; Aaron S. Hockman, Chief Trial and Appellate Counsel, Wyoming Guardian ad Litem Program, a division of the Office of the State Public Defender.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ

, Justice.

[¶ 1] The juvenile court temporarily placed CRA, age five, with her maternal grandmother after the Sweetwater County Attorney filed allegations that EA, who is CRA's mother, neglected her. All parties, including DB, who is CRA's father, agreed that CRA should remain in Department of Family Services (DFS) custody for placement with her grandmother under a consent decree which would last for up to one year. The consent decree provided that if EA complied with certain requirements, the neglect action would be dismissed. While the consent decree was pending, DB asserted that he should have custody of CRA because the juvenile court had not determined him to be unfit. The juvenile court entered a permanency order continuing CRA in DFS custody, and DB appealed. Shortly thereafter, the County Attorney moved to dismiss the case and terminate DFS custody of CRA, asserting that EA had completed her case plan and had complied with the consent decree. The juvenile court dismissed the case without a hearing, and DB appealed that order as well. We consolidated the appeals.

[¶ 2] We determine that the juvenile court properly dismissed the case without a hearing, and that other issues raised by DB are moot. Consequently, we affirm the juvenile court.

ISSUES

[¶ 3] DB lists six overlapping issues, which we re-state as follows:

1. Did the juvenile court err when it granted the State's motion to dismiss without a hearing or findings about EA's completion of the consent decree requirements?

2. Are the other issues raised by DB moot? If so, does any exception to the mootness doctrine apply?

3. When a child in an abuse/neglect case must be temporarily removed from his/her custodial parent, is the non-custodial parent constitutionally entitled to temporary custody unless the juvenile court determines he/she unfit?

FACTS

[¶ 4] Appellant, DB, is the father of CRA, who was born in 2008. EA is CRA's mother. In January of 2010, the district court in Sweetwater County issued a judgment and order establishing CRA's paternity and placing CRA in the primary physical custody of EA. EA and CRA lived in Sweetwater County and DB lived in Laramie County.

[¶ 5] On Sunday, May 18, 2014, Rock Springs police arrested and incarcerated EA. They placed five-year-old CRA in protective custody with DFS. DFS then temporarily placed CRA with her maternal grandmother. Four days later the State filed a petition alleging CRA was a neglected child under Wyo. Stat. Ann. § 14–3–202(a)(vii)

(LexisNexis 2015). The Petition stated that the minor's father "is unknown to the state," although DFS had filed the earlier paternity suit asserting DB was CRA's father. Nothing in the Petition mentioned shelter care for CRA under Wyo. Stat. Ann. § 14–3–409 (LexisNexis 2015). The State attached a DFS temporary case plan for CRA to the Petition. The temporary case plan entirely omitted DB.

[¶ 6] The juvenile court issued an order setting an initial hearing for the same day the petition was filed. The order did not mention shelter care, and there is no indication that it was served on either parent. On June 10, 2014, the juvenile court signed an order for temporary custody, placing CRA into "the legal custody of the Wyoming Department of Family Services for placement in relative foster care, at or near Green River...." The order said it was the result of a hearing conducted on May 22, 2014, in which DB participated by telephone. The order provided that DB could have supervised visitation with CRA.

[¶ 7] Both DB and EA participated in a multidisciplinary team meeting on July 22, 2014. In that meeting, DB agreed that CRA should remain with her maternal grandmother. On August 8, 2014, DFS filed a "Predisposition Report" with the juvenile court. The report indicated that DB had not visited CRA at all in the two and one-half months since the case began. It stated that the "permanency goal (for CRA) is reunification with (EA) and the concurrent plan is more than likely adoption." As with the temporary case plan, the predisposition report never mentioned any consideration that CRA could be placed in her father's custody.

[¶ 8] On August 18, 2014, Robert Spence entered an appearance as DB's attorney in the case. Subsequently, he approved a consent decree on behalf of DB. The essential terms of the consent decree, for our purposes, were:

1. The County Attorney, Guardian ad Litem for CRA, EA, and DB all stipulated to the consent decree as required by Wyo. Stat. Ann. § 14–3–428(a)

(LexisNexis 2015).

2. The consent decree placed probationary requirements on EA¹ for one year.² Those requirements all related the goal of reuniting CRA with EA.

3. CRA would remain in the custody of DFS "for placement until further order of the court."

4. If EA failed to fulfill the conditions of the consent decree, "the original petition and proceedings may be reinstated at the County Attorney's discretion." If she completed the probation, the case would be dismissed.³

The parties submitted the consent decree to the juvenile court, and the court approved it on August 26, 2014.

[¶ 9] The multidisciplinary team met again on November 4, 2014. DB participated in the meeting and agreed with the team that CRA should remain with her maternal grandmother. After that meeting, Douglas Bailey replaced Mr. Spence as DB's attorney. Mr. Bailey filed a motion requesting additional visitation between DB and CRA. The juvenile court heard that motion and granted additional visitation to DB.

[¶ 10] On February 3, 2015, the multidisciplinary team met for a third time. DB, for the first time, took the position that DFS custody was unnecessary, presumably arguing that he was fit to have custody. However, at the same meeting, DB and Mr. Bailey took the position that "if placement is still necessary, (CRA) remain with her grandmother." One week later DB filed a document titled "Brief in Opposition to Continued State Custody and Foster Care Placement." In that document he argued that, because he had not been found "unfit," the juvenile court "should terminate the current custody arrangement and relinquish custody to the child's father, (DB)." The juvenile court did not end CRA's temporary custody, but instead adjusted DB's visitation at the request of CRA's counselor.

[¶ 11] The multidisciplinary team met again on May 5, 2015. The team, including DB, recommended that CRA continue to live with her grandmother and that trial home placement with EA was the next step in the case. The multidisciplinary team's report stated that EA's compliance with her case plan was "very good."

[¶ 12] The juvenile court set a "permanency review hearing" for May 14, 2015. The record contains no indication that the order setting hearing was ever served on any of the parties or attorneys in the case. EA apparently did not appear at the hearing, so the juvenile court re-set it for June 17, 2015. DB again asked the juvenile court to terminate the case and place CRA with him because he was a fit parent. Instead, the juvenile court set an extended summer visit between CRA and DB, and ordered that CRA remain in DFS custody for an additional six months.⁴ Contrary to the multidisciplinary team's finding that EA's performance on her case plan was "very good," the juvenile court's order stated "case plan compliance has been poor."⁵

[¶ 13] On July 24, 2015, the county attorney's office served all parties and attorneys with a motion to dismiss, asserting that EA had completed her probation and case plan. On July 28, 2015, the juvenile court signed an order of dismissal without DB's consent and without a hearing. DB appealed from both the permanency order and the dismissal.

[¶ 14] While the juvenile case was pending, DB filed a motion in the original paternity case seeking a modification of custody. At oral argument, DB's counsel represented that a trial on his motion to change custody in the paternity case had occurred, and that the parties were awaiting a decision from the district court.

DISCUSSION

1. Did the juvenile court err when it granted the State's motion to dismiss without a hearing or findings about EA's completion of the consent decree requirements?

[¶ 15] The State, through the Sweetwater County Attorney, filed a motion to dismiss the juvenile case and to vacate the temporary custody placed in DFS, asserting that "the case plan has been completed." The juvenile court granted that motion without a hearing. Whether a hearing was necessary before the juvenile court could dismiss the case is determined by the Child Protection Act, Wyo. Stat. Ann. § 14–3–401

through 441 (LexisNexis 2015), and by the terms of the consent decree. Questions of statutory interpretation and of contract construction are matters of law which this Court reviews de novo. LM v. Laramie County Dep't of Family Servs. (In re MN), 2007 WY 189, ¶ 4, 171 P.3d 1077, 1080 (Wyo.2007) ; MR v. State (In re CDR), 2015 WY 79, ¶ 26, 351 P.3d 264, 270 (Wyo.2015).

A. Statutory requirements.

[¶ 16] When interpreting a statute and its application, we first look at the plain language used by the legislature. MR, ¶ 19, 351...