Gac v. State (In re To)

• Decision Date: 02 June 2017
• Docket Number: S-16-0212
• Parties: IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: GAC, A Minor Child. KRYSTAL KAYLYNN CAVE, Appellant (Respondent), v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner).
• Court: Wyoming Supreme Court

2017 WY 65

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: GAC, A Minor Child.KRYSTAL KAYLYNN CAVE, Appellant (Respondent), v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner).

S-16-0212

SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 2017

June 2, 2017

Appeal from the District Court of Natrona County

The Honorable W. Thomas Sullins, Judge

Representing Appellant:

Timothy C. Cotton of Cotton Legal, Casper, Wyoming.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Wendy S. Ross, Senior Assistant Attorney General; Jill Kucera, Senior Assistant Attorney General. Argument by Ms. Ross.

Guardian ad Litem:

Dan S. Wilde, Deputy State Public Defender; Aaron 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.

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 typographical or other formal errors so correction may be made before final publication in the permanent volume.

KAUTZ, Justice.

[¶1] A jury found that Appellee Department of Family Services (DFS) had proven two statutory grounds for termination of Appellant Krystal Kaylynn Cave's (Mother) parental rights to GAC (Child). On appeal, Mother claims the district court erred by allowing: 1) the guardian ad litem (GAL) to actively participate in the termination proceedings; and 2) her counselors to testify at trial over her claim of privilege.

[¶2] We affirm.

ISSUES

[¶3] The issues on appeal are:

1. Did the district court err by allowing the GAL to fully participate in the termination proceedings?

2. Did the district court err when it allowed Mother's mental health providers to testify at trial?

FACTS

[¶4] On May 20, 2013, the Child, who was two years old, was found wandering alone near a busy street in Casper, Wyoming. He was very cold because he was wearing only a t-shirt and socks, with no diaper, underwear or pants. The person who found the Child called law enforcement. No responsible adult could be located, so the Child was taken into protective custody.

[¶5] Mother arrived at the scene about forty minutes later. She was frantic and demanded the officers return the Child to her. She was told that, because he was already in protective custody, she would have to make arrangements with DFS for the Child's return. DFS was concerned about the Child's living arrangements because a couple of months earlier, it had investigated a report that Mother and the Child were living in a storage unit. At that time, DFS offered Mother help with locating housing and employment. However, after a few meetings, Mother declined further assistance from DFS and the agency closed the case.

[¶6] Given this history, DFS required Mother to demonstrate that she had a safe place for the Child to live before releasing him, but she refused to allow the investigator into the house where she said they were staying. Mother also tested positive for methamphetamine use. A neglect action was filed, and, after a shelter care hearing, the juvenile court ordered that the Child remain in DFS custody.

[¶7] In July 2013, the parties stipulated to a consent decree in the juvenile case.¹ Under the terms of the consent decree and the court order accepting it, the neglect action would be dismissed without adjudication if Mother completed the objectives of her DFS case plan. Among other things, the case plan required Mother to participate in substance abuse and mental health counseling and to execute releases allowing DFS access to her counseling records.

[¶8] Although Mother made some effort to locate suitable housing and employment and attended counseling, she did not fully comply with the case plan. She continued to use methamphetamine and failed to complete the required drug testing. Consequently, in January 2014, DFS moved to reinstate the proceedings and adjudicate Mother as having neglected the Child. The juvenile court granted the motion. After the adjudication, DFS continued to make efforts to rehabilitate Mother with the goal of reunifying the family. The agency provided various services to Mother, including substance abuse treatment and mental health counseling. However, she did not make adequate progress to complete the case plan and, approximately six months later, the juvenile court changed the permanency plan from family reunification to adoption.

[¶9] To implement the new permanency plan, DFS filed a petition in district court to terminate Mother's parental rights to the Child.² The petition alleged that termination of Mother's parental rights was appropriate under Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v) LexisNexis 2015), respectively, because: 1) Mother neglected the Child, DFS's reasonable efforts to rehabilitate the family were unsuccessful, and the Child's health and safety would be seriously jeopardized by returning him to Mother; and 2) the Child had been in foster care for at least fifteen of the most recent twenty-two months and Mother was unfit to have custody and control of the Child. The court appointed the GAL to represent the Child and counsel to represent Mother. Mother requested a jury trial on the termination action and filed a "Motion in Limine Excluding Guardian ad Litem's Active Participation in Termination of Parental Rights Trial and Exclusion of Evidence Not Relevant." She claimed the GAL should not be allowed to actively participate in the termination proceeding because the Child was not a party and evidence pertaining to the best interests of the Child was not relevant at the trial. The district court denied Mother's motion "without prejudice to the right of [Mother] to object to any irrelevant evidence proposed for introduction at the termination of parental rights trial."

[¶10] DFS gave notice that it intended to call several of Mother's and the Child's mental health providers to testify as experts at trial. Mother filed a motion to exclude that testimony, claiming DFS had failed to comply with W.R.C.P. 26(a)(2) which requires disclosure of certain information for witnesses designated to give expert testimony. Thedistrict court denied the motion. A four day trial was held on November 30 through December 3, 2015. During the trial, the district court ruled that Mother's mental health providers could not testify because she had revoked earlier releases of information and invoked her privilege to keep that information confidential. The jury did not reach a verdict, and the district court declared a mistrial.

[¶11] In preparation for a second trial, DFS filed a motion to allow Mother's mental health providers to testify, and the GAL filed a memorandum of law which supported DFS's motion. Mother opposed the motion, once more claiming that her providers should not be allowed to testify because the information was privileged. The district court ruled that, after considering the matter further, there were several exceptions to the privilege which permitted Mother's mental health providers to testify at trial.

[¶12] At the conclusion of the second trial, the jury returned a verdict finding that DFS had proven both grounds to terminate Mother's parental rights to the Child. The district court entered an order terminating her rights, and she appealed.

DISCUSSION

[¶13] Although Mother does not present an issue regarding the sufficiency of the evidence to terminate her parental rights, the procedural and evidentiary requirements for termination of parental rights play some role in resolving this case and bear repeating. The right to associate with one's family is fundamental and protected by due process. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982). In recognition of the fundamental liberty interest in family relationships, courts strictly scrutinize petitions to terminate parental rights and require proof of the basis for termination of parental rights by clear and convincing evidence. Clear and convincing evidence is "proof that would persuade a trier of fact that the truth of the contention is highly probable." RGS v. State, Dep't of Family Servs. (In re KGS), 2017 WY 2, ¶ 14, 386 P.3d 1144, 1147 (Wyo. 2017), citing In re HLL, 2016 WY 43, ¶ 39, 372 P.3d 185, 193 (Wyo. 2016).

A. Guardian ad Litem's Participation in Proceedings to Terminate Parental Rights

[¶14] Mother claims the district court erred by allowing the GAL to actively participate in the termination proceedings. The role of a guardian ad litem is a question of law that requires review of the applicable statutes, administrative rules, and case law. Our review is, therefore, de novo. Williams v. Sundstrom, 2016 WY 122, ¶ 19, 385 P.3d 789, 794 (Wyo. 2016). See also Glover v. State, 860 P.2d 1169, 1173 (Wyo. 1993).

1. General Role of Guardian ad Litem in Termination Proceedings

[¶15] Wyo. Stat. Ann. § 14-2-312 (LexisNexis 2015) states in relevant part:

After the petition [to terminate parental rights] has been filed, the court shall appoint a guardian ad litem to represent the child unless the court finds the interests of the child will be represented adequately by the petitioner or another party to the action and are not adverse to that party. . . . The Wyoming Rules of Civil Procedure, including the right of a parent, child or interested person to demand a jury trial, are applicable in actions brought under this act.

(emphasis added). We interpreted § 14-2-312 in LM v. Laramie County Dep't of Family Servs. (In re MN), 2007 WY 189, ¶ 6, 171 P.3d 1077, 1080-81 (Wyo. 2007):

Wyo. Stat. Ann. § 14-2-312 is an unambiguous mandatory statute that does not allow the district court discretion not to appoint a guardian ad litem or not to make the appropriate record findings that no guardian ad litem is required. Furthermore, the requirement that mandatory statutes be

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