State in Interest of C

• Decision Date: 31 December 1981
• Docket Number: No. C-5,C-5
• Citation: 638 P.2d 165
• Parties: STATE of Wyoming, in the Interest of C, D, and J, Minors. B, Appellant (Respondent), v. PLATTE COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee(Petitioner).
• Court: Wyoming Supreme Court

Page 165

638 P.2d 165

STATE of Wyoming, in the Interest of C, D, and J, Minors B, Appellant (Respondent), v. PLATTE COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee(Petitioner).

No. C-5.

Supreme Court of Wyoming.

Dec. 31, 1981.

Josephine T. Porter, Legal Services for Southeastern Wyoming, Inc., Cheyenne, for appellant.

Richard E. Dixon, Deputy County and Pros. Atty. for Platte County, Wheatland, for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

This is an appeal by B, the mother of minor children C, D and J, from an order of the juvenile court continuing custody and control of such children in the Platte County Department of Public Assistance and Social Services (hereinafter referred to as DPASS), until May 26, 1981, at which time the matter was subject to be reviewed again.

B (hereinafter referred to as mother) words the issues on appeal as follows:

"I. Whether the Court lacked jurisdiction to remove custody of the minor children from Appellant due to the Court's failure to comply with Wyoming Statutes 14-6-209(b) and (c), 14-6-226 and 14-6-229(b) (1978 as amended).

"II. Whether the decision of the Court is supported by by (sic) substantial evidence, is clearly erroneous and is contrary to the law and the evidence.

"III. Whether the Juvenile Court and the Appellate Court should apply the strict scrutiny standard to review the State's allegations of neglect."

We affirm.

C is a 7-year-old female child; D is a 5-year-old female child; and J is a 1-year-old female child. They were placed in emergency shelter care by DPASS on January 26, 1981, after their parents were arrested and detained. On January 27, 1981, the parents gave written consent for such care for a period until February 25, 1981.

On February 4, 1981, a petition was filed in the Juvenile Court, County of Platte, Eighth Judicial District, requesting the jurisdiction be taken by such court over C, D and J inasmuch as they were subject to neglect as defined in § 14-6-201, W.S.1977. ¹ The petition alleged in part:

"These children have been without proper care and control and have lacked supervision necessary for their health and welfare because of the faults, habits, conduct, acts or omissions of their parents, which parents have been unable in any event to discharge their responsibilities since the 26th day of January, 1981, because of their incarceration in the Platte County Jail."

On the same date, the Deputy County and Prosecuting Attorney filed a motion to continue custody of the children in DPASS pending additional study and report. It alleged in part:

"9. That these children have been witness to acts committed by their parents and their aunt, * * * age fourteen (14), that lie beyond the bounds of the law as set forth in the Wyoming Statutes, specifically Sections 14-3-102, 14-3-104, 14-3-105 and 6-5-107, in that they were present during intercourse between their father and their aunt, and during photography sessions where their aunt was photographed in various positions in the nude, and engaged with their mother in various sexual acts;"

It noted that should the mother be incarcerated for the criminal charges pending against her, she would be unable to care for the children; and if she were placed on probation, the allegation of neglect "should be reviewed prior to the return of the children to her home."

On February 5, 1981, a hearing was held on the motion. C, D, J, and their parents were present. An attorney was appointed to represent the minor children. The mother and the father acknowledged that they were represented by attorneys. When they were asked whether or not they had any objection to the continuance of custody by DPASS, the father answered:

"No, sir. I don't know if it's the right time, but I would-you know, we have discussed it and we feel that, you know, they should be, you know, sent, you know, to my mother in Tennessee."

The mother answered:

"I'm not sure. I'm rather confused. I am not quite sure, but I feel it would probably be the best for them too to go to Tennessee."

The court ordered continued care, custody and control of the children by DPASS "until further order of this Court and until this entire matter has been fully brought before the Court and determined."

On April 24, 1981, mother moved the court for a hearing on the petition, requesting that the custody of the minor children be returned to her. A hearing thereon was held on May 26, 1981. By then, mother had been placed on probation. Evidence was presented and received. Thereafter, the court found that mother had "not achieved * * * the ability to provide proper parenting for the juveniles" at that time. It ordered custody and control of the children to remain in DPASS, and that they be placed in the home of their paternal grandparents in Moss, Tennessee, for a period of one year from May 26, 1981. It ordered submission of reports on the progress of the mother and children, and it showed that it would review the matter in one year with a "goal" of returning custody to the mother when such return "is appropriate."

FINAL ORDER

Before addressing the issues presented on appeal by mother, we must examine the nature of the order from which the appeal was taken. At the present time, our review under the Wyoming Rules of Appellate Procedure is limited to that of final orders.

"A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right, made in a special proceeding * * *." Rule 1.05, W.R.A.P.

There can be no doubt that a transfer of custody from a natural parent for a period of one year concerns a substantial right. DS v. Department of Public Assistance and Social Services, Wyo., 607 P.2d 911 (1980); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). The order resulting from the hearing of February 5, 1981, which continued custody of the children in DPASS pending the hearing on the petition for jurisdiction in the juvenile court, was obviously an interim order to provide temporary custody for the minor children as was necessitated by the arrest of their parents. While incarcerated, the parents were not physically able to take control of the children. It anticipated a more complete and determinative hearing in a very short time. In view of the parents' incarceration and the short time span, it did not affect a substantial right. The same cannot be said of the May 26, 1981 order. The mother had been placed on probation. She was physically able to take control of the children. The order was to be effective for a prolonged period of time. A substantial right was involved.

Proceedings under the Juvenile Court Act are "special proceedings." The nature of special proceedings was discussed at length in Anderson v. Englehart, 18 Wyo. 196, 105 P. 571 (1909). And see In Re Greybull Valley Irr. Dist., 52 Wyo. 479, 76 P.2d 339 (1938). Generally, special proceedings are those which were not actions in law or suits in equity under common law, and which may be commenced by motion or petition upon notice for the purpose of obtaining relief of a special or distinct type. They result from a right conferred by law together with authorization of a special application to the courts to enforce it. Anderson v. Englehart, supra; Church v. County of Humboldt, 248 Cal.App.2d 855, 57 Cal.Rptr. 79 (1967); Application of Allen, 207 Misc. 1036, 142 N.Y.S.2d 547 (1955); Willeck v. Willeck, 286 Minn. 553, 176 N.W.2d 558 (1970); State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980). In Strode v. Brorby, Wyo., 478 P.2d 608 (1970), we recognized that, even in cases involving delinquency, proceedings under a Juvenile Court Act could be in lieu of proceedings under the general criminal procedure:

"In all cases involving juveniles, the juvenile court shall, in the exercise of its discretion, determine initially whether these rules shall apply to the juvenile proceedings or whether the proceedings shall be subject to the provisions of the Juvenile Court Act of 1951. ² * * * " Rule 51(b), W.R.Cr.P.

The language of the enactment reflects its special nature under the foregoing definitions:

"All proceedings under this act shall be regarded as proceedings in equity and the court shall have and exercise equitable jurisdiction. * * * " Section 14-6-238, W.S.1977.

"(c) The jurisdiction of the juvenile court is not exclusive. * * * " Section 14-6-203(c), W.S.1977.

"Complaints alleging a child is delinquent, in need of supervision or neglected shall be referred to the office of the county and prosecuting attorney. The county attorney shall determine whether the best interest of the child or of the public require that judicial action be taken. * * * " Section 14-6-211, W.S.1977.

"Proceedings in juvenile court are commenced by filing a petition with the clerk of the court. The petition and all subsequent pleadings, motions, orders and decrees shall be entitled 'State of Wyoming, In the Interest of ...., minor.' * * * " Section 14-6-212(a), W.S.1977.

Section 14-6-229, W.S.1977 sets forth the disposition to be made of a child adjudged "to be neglected, delinquent or in need of supervision." The special and distinct type of relief authorized by § 14-6-229 indicates the special status of the proceedings. Section 14-6-229(a)(b)(c) and (d) provide:

"(a) When a child is adjudged by the court to be neglected, delinquent or in need of supervision, the court shall enter its decree to that effect and make any disposition as provided in this section. The dispositions shall be guided by what is best suited to the protection and physical, mental and moral welfare of the child consistent with the public interest.

"(b) If the child is found to be neglected the court may:

"(i) Permit the child to remain in the custody of his parents, guardian or custodian without protective supervision, subject to terms...