In the Interest of SO, a Minor Child: PM and JM v. State , 382 P.3d 51 ( 2016 )

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 99
OCTOBER TERM, A.D. 2016
October 17, 2016
IN THE INTEREST OF SO, a Minor Child:
PM and JM,
Appellants
(Respondents),
v.
THE STATE OF WYOMING,
S-16-0071
Appellee
(Petitioner),
and
FH and RH,
Appellees
(Respondents).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellants:
Timothy C. Cotton, CottonLegal, Casper, Wyoming.
Representing Appellee, State of Wyoming:
Peter K. Michael, Attorney General; Misha Westby, Deputy Attorney General; Jill
E. Kucera, Senior Assistant Attorney General. Argument by Ms. Kucera.
Representing Appellees, FH and RH:
No appearance.
Guardian Ad Litem:
Dan S. Wilde, Deputy Director, Aaron S. Hockman, Permanency Attorney, and
Christopher W. Goetz, Student Intern, Wyoming Guardian Ad Litem Program.
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 any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.
[¶1] Appellants JM and PM are the grandmother and step-grandfather of SO. SO is
currently in the legal custody of the Wyoming Department of Family Services, and has
been in the physical care of Foster Parents since three days after her birth on February 4,
2013. Grandparents filed a motion seeking to transfer placement of SO from Foster
Parents to Grandparents. The juvenile court denied the motion and Grandparents
challenge that decision in this appeal. We affirm.
ISSUE
[¶2] The issue in this case is whether the juvenile court abused its discretion when it
denied the “Motion for Placement of Minor Child with Grandparents.”
FACTS
[¶3] At the time of her birth, SO’s Mother was in pretrial custody at the Natrona
County jail in Casper, Wyoming. Wyoming’s Department of Family Services took the
child into protective custody. Because Mother’s four older children were already in DFS
custody in Sheridan, Wyoming, DFS relocated SO to Sheridan, where she was placed in
Foster Parents’ care on February 7, 2013. On February 21, 2013, Mother was released
from jail on bond and moved to Sheridan. On March 12, 2013, DFS filed a petition
alleging that SO was a neglected child and that Mother was unable to provide proper care
for her. During the initial hearing, Mother admitted the allegations, and the juvenile
court adjudicated SO as a neglected child. The court ordered that SO would remain in
the legal custody of DFS and in the physical custody of Foster Parents.
[¶4] In April of 2013, DFS sent a “Notice to Relative” form to Grandparents and other
relatives of SO, informing them that SO had been removed from Mother’s care and was
in the custody of the State. The form indicated to Grandparents that, “[a]s a relative, you
may be considered for short or long term placement of this child, if you agree, and your
home is considered an appropriate placement option.” Grandparents returned the form to
DFS as requested, indicating they were “interested in making contact with this child and
being a positive support in this child’s life.” They did not check the box indicating they
were “interested in being considered as a possible placement resource for this child.”
[¶5] In the meantime, Mother’s criminal proceedings continued. Ultimately, Mother
pled guilty to a charge of possession of a deadly weapon with unlawful intent, and was
sentenced to three to five years in prison. The sentence was suspended, and Mother was
placed on probation with a requirement that she complete an in-patient substance abuse
treatment program. She entered a treatment program on June 20, 2013. Mother did not
complete the program, however, and was discharged from the treatment facility on
October 18, 2013. As a consequence, her probation was revoked and on November 7,
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2013, Mother was ordered to complete her prison sentence.
[¶6] After Mother went to prison, Grandparents, for the first time, sought to have SO
placed with them. Their request was discussed at a November 21, 2013, meeting of the
Multidisciplinary Team. A majority of MDT members recommended that SO should
remain in the care of Foster Parents, and also recommended termination of Mother’s
parental rights.
[¶7] Following this meeting, Grandparents sought permission to intervene in the case,
and that petition was granted. Grandparents also petitioned the court to place SO in their
care and applied with DFS to become SO’s foster parents. Acting on this application,
DFS completed a home study which recommended against placing SO with
Grandparents. As a result of this study, DFS denied Grandparents’ application to become
foster parents. In response, Grandparents hired an independent expert to perform a
second home study. That study concluded that Grandparents were an appropriate
placement option for SO.
[¶8] At a hearing in June of 2014, the juvenile court accepted the MDT’s
recommendation to change the permanency plan to adoption. It also ordered that SO
remain in the physical custody of Foster Parents. In a separate proceeding in district
court, DFS petitioned to terminate Mother’s parental rights. Following a trial, the district
court granted that petition. Mother appealed, and we affirmed the district court’s
decision. SSO v. State, Dep’t of Family Servs., 2015 WY 124, 357 P.3d 754, 755 (Wyo.
2015).
[¶9] A subsequent permanency hearing was held in July of 2015. During that hearing,
the juvenile court also heard Grandparents’ motion asking that SO be removed from
Foster Parents and placed with them. In its order, entered November 6, 2015, the
juvenile court confirmed a permanency plan of adoption, and ordered that SO should
continue to be placed with Foster Parents. This order, in effect, also denied
Grandparents’ motion to place SO with them. Grandparents subsequently appealed the
denial of their motion to change placement.
STANDARD OF REVIEW
[¶10] The guiding principle of Wyoming’s Child Protection Act, as stated by the
legislature, is that a “child’s health, safety and welfare shall be of paramount concern in
implementing and enforcing this article.” Wyo. Stat. Ann. § 14-3-201 (LexisNexis
2015). Thus, at its core, a juvenile court’s decision regarding placement of a child must
be based on the child’s best interests. We review such a decision for abuse of discretion.
In cases where the trial court is required to make a
determination that is in the “best interest of the child,” we
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have regularly applied an abuse of discretion standard of
review. This standard applies in adoption cases:
The district court has the power and discretion to grant
an adoption without parental consent, provided all the
statutory elements are satisfied. In the Matter of the
Adoption of SMR, MVC v. MB, 982 P.2d 1246, 1248
(Wyo. 1999). This Court reviews adoption decrees by
applying the abuse of discretion standard. In the
Matter of Adoption of TLC, TOC v. TND, 2002 WY
76, ¶ 9, 46 P.3d 863, 867-68 (Wyo. 2002).
TF v. Dep’t of Family Serv. (In re CF), 2005 WY 118, ¶ 10,
120 P.3d 992, 998 (Wyo. 2005). It also applies in child
custody cases: “We have stated before that ‘[c]ustody,
visitation, child support, and alimony are all committed to the
sound discretion of the district court.’” Blakely v. Blakely,
2009 WY 127, ¶ 6, 218 P.3d 253, 254 (Wyo. 2009). The
fundamental goal in adoption and child custody cases is to
arrive at a result that is in the best interests of the child.
Similarly, the “best interests of the children” are at the heart
of the permanency decision in this case. Accordingly, we will
apply the abuse of discretion standard in reviewing the district
court’s decision.
JO v. State, Dep’t of Family Servs. (In the Interest of RE), 2011 WY 170, ¶ 10, 267 P.3d
1092, 1096 (Wyo. 2011). See also KC v. State (In the Interest of GC), 2015 WY 73, ¶
18, 351 P.3d 236, 242 (Wyo. 2015).
[¶11] “In determining whether there has been an abuse of discretion, the ultimate issue is
whether or not the court could reasonably conclude as it did.” GWJ v. MH (In re BGH),
930 P.2d 371, 377-78 (Wyo. 1996) (quoting Martinez v. State, 611 P.2d 831, 838 (Wyo.
1980)). “A court does not abuse its discretion unless it acts in a manner which exceeds
the bounds of reason under the circumstances.” GWJ, 930 P.2d at 377.
Assessment of the circumstances of this case, in the
context of alleged abuse of discretion, is tantamount to an
evaluation of whether the evidence is sufficient to support the
decision of the district court. In review of the evidence, we
accept the successful party’s submissions, granting them
every favorable inference fairly to be drawn and leaving out
of consideration conflicting evidence presented by the
unsuccessful party.
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Basolo v. Basolo, 907 P.2d 348, 353 (Wyo. 1995) (citing Cranston v. Cranston, 879 P.2d
345, 351 (Wyo. 1994)).
DISCUSSION
[¶12] The juvenile court held a permanency hearing in SO’s case on July 28, 2015. At
this same hearing, it also considered Grandparents’ motion to place SO with them. The
juvenile court heard testimony from the DFS caseworker, a child psychologist, and
Grandmother. It also considered voluminous information in the record, including
periodic reports and recommendations from DFS and from the MDT. After considering
the evidence, the juvenile court ruled that “the permanency plan of adoption is in the best
interest of the child,” and that SO should continue to be placed with Foster Parents.
Accordingly, it denied Grandparents’ motion to place SO with them. The question before
us is whether the court abused its discretion when it made that choice.
[¶13] In our review, we consider the evidence favorable to DFS and Foster Parents, and
give them the benefit of every favorable inference fairly drawn from that evidence. We
leave out of consideration conflicting evidence presented by Grandparents. Basolo, 907
P.2d at 353. Applying this standard of review, we find that the evidence is more than
sufficient to demonstrate that the juvenile court did not make an unreasonable decision.
[¶14] Grandparents do not identify or suggest that there were any inadequacies in the
care provided by Foster Parents. Their contention of error appears to be based solely
upon their familial relationship. In short, they contend that the child should be placed
with them simply because they are SO’s grandparents. We disagree.
[¶15] We begin by noting that SO had been in Foster Parents’ care since three days after
her birth, and at the time of the permanency hearing she had been in their care
approximately two and a half years. By all accounts, she was thriving in that situation.
Testimony indicated that changing placement could be detrimental to SO. The child
psychologist, though not familiar with SO’s individual case, provided the juvenile court
with general information about early childhood development, attachment, bonding, and
the effects of changing placement. She indicated that a permanent change in placement
affects a child “just like a death, so if they no longer have the caregiver in their life,
they’ve lost that person.” She testified that two-year-olds may react with grief,
“significant regression in their skills,” increased anxiety, and fear of abandonment. This
testimony echoed concerns expressed by the DFS caseworker that, given the attachments
formed between SO and Foster Parents, removing her from their care would be harmful
to SO.
[¶16] Although the home study commissioned by Grandparents supported placement of
SO with them, there was also evidence in the record that raised concerns about
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Grandparents’ ability to provide adequate care for SO. The DFS home study concluded
that placement of SO with Grandparents was inappropriate, and listed several factors
contributing to that conclusion. As previously mentioned, Mother’s four older children
were in DFS custody when SO was born. Two of those children had been placed with
Grandparents. After keeping the children for just over a year, Grandparents indicated
they were “tired,” “frustrated” and “burnt out,” and the children were placed elsewhere.
While those children were in the care of Grandparents, there were concerns that the
children had not been taken to medical, dental, and vision appointments. The DFS
employee who conducted the home study also did “not get the sense” that Grandparents
were “prepared to parent [SO] long term.” Instead, the DFS employee believed,
Grandparents were motivated by a desire to reunite SO with Mother in the future, even
though Mother’s parental rights to SO had been terminated. In addition, there was
evidence that Mother left Grandparents’ care when she was eleven years old to live with
her biological father. Mother’s sister left Grandparents’ care when she was twelve to live
with her paternal grandmother.
[¶17] Grandparents do not contend that Foster Parents have failed to provide adequate
care for SO. Rather, they assert that Wyoming’s “compelling preference” for placement
with family tips the balance in their favor. The juvenile court was aware of that
preference, but correctly concluded that the best interests of SO were paramount. As it
explained in a subsequent order:
[A]lthough there is a ‘compelling preference’ that it is best to
place a child with family, this is not an absolute rule, and the
Court must consider the best interests of each child when
making a placement decision. In this case family placement
was not an option when the child was taken into custody.
When it became an option, DFS considered the factors that it
is required to evaluate under its rules and regulations, and it
determined that [Grandparents] were not a suitable placement
or adoptive home. When making the placement
determination, the Court agreed that continued placement
with the foster family was in the child’s best interests.
[¶18] The juvenile court’s reasoning is in accord with the statute governing permanency
hearings, which provides that, “At the permanency hearing, the court shall determine
whether the permanency plan is in the best interest of the child.” Wyo. Stat. Ann. § 14-3-
431(k). It is consistent with the Child Protection Act’s provision that a “child’s health,
safety and welfare shall be of paramount concern.” Wyo. Stat. Ann. § 14-3-201. We
acknowledge, as did the juvenile court, that there is a preference for family placements in
Wyoming. TF v. Department of Family Serv. (In re CF), 2005 WY 118, ¶ 26, 120 P.3d
992, 1002 (Wyo. 2005) (“We agree that, in general, preference should be given to family
placements.”). However, the preference for family placement should not prevail over the
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“paramount concern” for the best interests of the child.
[¶19] The juvenile court determined that it was in the best interests of SO to remain in
the custody of Foster Parents. It was within the court’s discretion to make this
determination and, in turn, to deny Grandparents’ motion to place SO with them. The
evidence available to the juvenile court, when viewed in a light most favorable to DFS
and Foster Parents, demonstrates the reasonableness of this decision. The juvenile court
did not abuse its discretion, and we affirm.
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