SAS v. State, Dep't of Family Servs. (In re AGS)
| Decision Date | 07 November 2014 |
| Docket Number | No. S–14–0089.,S–14–0089. |
| Citation | 2014 WY 143,337 P.3d 470 |
| Parties | In the Matter of the Termination of Parental Rights to AGS and AMLD, Minor Children. SAS, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner). |
| Court | Wyoming Supreme Court |
Representing Appellant: Jacqueline K. Brown, Casper, Wyoming.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Shawnna M. Herron, Assistant Attorney General. Argument by Ms. Herron.
Guardian Ad Litem: Dan S. Wilde and Aaron S. Hockman, Cheyenne, Wyoming. Argument by Mr. Hockman.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶ 1] Appellant SAS appeals the district court's order terminating her parental rights to her two children, AGS and AMLD. SAS alleges that the district court lacked jurisdiction to terminate her parental rights because the Department of Family Services (DFS) and the district court did not comply with statutorily mandated deadlines; that DFS failed to establish by clear and convincing evidence that parental rights should be terminated; and that cumulative errors committed throughout the proceedings violated her constitutional right to due process. In her reply brief, SAS also argues that she received ineffective assistance of trial counsel. We affirm.
[¶ 2] 1. Did the district court lose jurisdiction to terminate SAS's parental rights when DFS and the district court did not abide by the statutory deadlines?
2. Did DFS establish by clear and convincing evidence that SAS's parental rights should be terminated?
3. Was cumulative error committed such that SAS's constitutional right to due process was violated?
4. Was SAS's allegation of ineffective assistance of counsel appropriately raised for the first time in SAS's reply brief?
[¶ 3] SAS is the biological mother of AGS and AMLD.1 SAS, AGS, and AMLD (collectively, the family) have a long history with DFS, the juvenile court, and law enforcement. Each of the family's contacts with these agencies stem from SAS's abuse of alcohol and narcotics. Because we base our decision, in part, upon an ongoing pattern of neglect, an overview of the family's history with DFS is necessary.
[¶ 4] The family's first contact with DFS occurred in November 2007 in Powell, Wyoming. At that time, the family was residing with AMLD's biological father. AGS and AMLD were ages three and one, respectively. SAS was drinking at home while AMLD's father was at work and the children were asleep. SAS wanted to continue drinking, so she abandoned the home, leaving the children alone and still asleep in their beds. On her way to a local bar, SAS was stopped by a police officer, made to perform field sobriety tests, and arrested for driving while under the influence.2 DFS became involved in the incident after learning that the children had been left at home without supervision. The children were removed from the home, and the juvenile court adjudicated the children neglected. A case plan was implemented, and the children were eventually returned to SAS's custody. DFS closed the case on August 19, 2008.
[¶ 5] A second contact with law enforcement and DFS occurred on August 31, 2008. Highway patrol responded to a REDDI (report every drunk driver immediately) report in the area of Independence Rock. Troopers soon found the reported vehicle, as well as the driver, SAS, and two child passengers, AGS and AMLD, pulled over on the side of the road. Observing that SAS appeared intoxicated, the troopers administered field sobriety tests which SAS failed. The troopers placed SAS under arrest.3 The troopers took the children into protective custody finding that they were in “substantial risk of harm or death,” and contacted DFS, which then assumed custody of the children. A petition was filed in juvenile court, the court adjudicated the children neglected, and they were again removed from SAS's care. Another case plan was implemented, working toward the goal of reunification with SAS. In accordance with the case plan, both children were eventually reunified with SAS. DFS closed the second case on April 22, 2010.
[¶ 6] The third contact with DFS and law enforcement occurred on November 24, 2011. At that time, the family was living in Casper, Wyoming, but SAS had traveled to Laramie, Wyoming, with AGS to celebrate Thanksgiving with a friend.4 Upon reaching Laramie, SAS left AGS with a babysitter, went to a bar with her friend, and began drinking. After a violent confrontation with her boyfriend, SAS picked AGS up from the babysitter and began driving back toward her home in Casper. On their way back to Casper, SAS and AGS were involved in a single car accident. The vehicle rolled, and SAS was thrown from the car. When SAS revived, she found AGS still in the front seat of the vehicle. The pair was soon picked up by a passing driver.
[¶ 7] After authorities were notified, SAS and AGS were transported to Casper by ambulance. At the hospital, urine samples were taken from SAS indicating an alcohol concentration of .17%. SAS was arrested at the hospital and charged with driving while under the influence of intoxicating liquor and child endangerment. As a result of a plea agreement, SAS pled nolo contendere to the drunk driving charge and the child endangerment charge was dismissed. The district court sentenced SAS to nineteen to twenty-four months imprisonment.
[¶ 8] Meanwhile, a doctor working in the emergency room placed AGS in protective custody after learning of the circumstances of the accident. DFS responded to the hospital and custody of AGS was transferred to DFS. A juvenile petition was filed as a result of the incident in which AGS was identified an abused and neglected child and AMLD was identified a neglected child. SAS did not appear at the initial hearing held on December 14, 2011, and the juvenile court adjudicated the children abused and neglected in accordance with the petition.
[¶ 9] SAS was again arrested on April 7, 2013, for “under the influence and ... possession of cocaine.” SAS pled guilty to the charges and was sentenced to a year of incarceration to run concurrent with her sentence resulting from the November 2011 incident. At the time of the trial on the termination petition, SAS was incarcerated in the Wyoming Women's Center.
[¶ 11] The State later amended its petition to include termination of SAS's parental rights pursuant to Wyo. Stat. Ann. § 14–2–309(a)(v) (LexisNexis 2013), which provides that the parent-child relationship may be terminated when “[t]he child has been in foster care under the responsibility of the state of Wyoming for fifteen (15) of the most recent twenty-two (22) months, and a showing that the parent is unfit to have custody and control of the child [.]”6
[¶ 12] The district court held the trial on the State's petition to terminate SAS's parental rights beginning December 2, 2013. At its conclusion, the district court determined that the State had proven by clear and convincing evidence that SAS's parental rights should be terminated pursuant to both statutory provisions. It entered an order to that effect on December 27, 2013. SAS timely perfected this appeal.
[¶ 13] Before we begin our discussion concerning the issues presented, a brief review of the process leading to termination of parental rights is warranted. When a child is removed from his or her home as a result of abuse or neglect, the procedures and provisions of the Child Protection Act are instituted. Wyo. Stat. Ann. §§ 14–3–401 to 14–3–440 (LexisNexis 2013). Once the child has been adjudicated abused or neglected, the juvenile court determines the permanency plan for the child—whether the child should be reunified with his or her family or whether the child's best interests are served by severing the parent-child relationship. Wyo. Stat. Ann. § 14–3–431(j). A juvenile court's determination not to reunify the family typically leads to the commencement of termination proceedings against the child's parent or parents. Wyo. Stat. Ann. § 14–3–431(k). The termination proceedings cannot be commenced in the juvenile court, but instead must be brought in district court. As a result, while the underlying decisions relating to the disposition of the child are made in juvenile court, the ultimate determination as to whether parental rights should be terminated rest solely with the district court.7
[¶ 14] SAS first contends that the district court lacked jurisdiction to terminate her parental rights because both DFS and the district court failed to abide by statutorily mandated deadlines. She argues that DFS did not file a petition to terminate her parental rights within sixty days of the juvenile court's determination not to reunify the family as mandated by § 14–3–431(o ). SAS next asserts that the district court was...
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...after the court appointed his attorney in May 2017.5 Normally, we will not consider an issue raised for the first time on appeal, In re AGS , 2014 WY 143, ¶ 33, 337 P.3d 470, 480 (Wyo. 2014), but we have recognized "two exceptions to this rule: when the issue raises jurisdictional questions......