Aa v. State

479 P.3d 1252

In the INTEREST OF: AA, a minor child,

RA, Appellant (Respondent),

v.The State of Wyoming, Appellee (Petitioner).

S-20-0093

Supreme Court of Wyoming.

February 1, 2021

Representing Appellant: Jennifer K. Stone, Winn & Stone, P.C., Laramie, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Allison E. Connell, Assistant Attorney General. Argument by Ms. Connell.

Representing Guardian ad Litem: Dan S. Wilde, Deputy Director, Office of the Guardian ad Litem; Joseph R. Belcher, Chief Trial and Appellate Counsel; Elizabeth Dinkel, UW Law School Extern. Appearance by Mr. Belcher.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ, Justice.

[¶1] RA (Father) appeals from the juvenile court's order relieving the State of Wyoming's Department of Family Services (DFS) from its statutory responsibility to make reasonable efforts to reunify him with AA (Child). Father asserts the juvenile court violated his right to due process during the early stages of the child protection action and abused its discretion when it determined reasonable reunification efforts were unnecessary.

[¶2] We reverse and remand for proceedings consistent with this opinion.

ISSUES

[¶3] The issues on appeal are:

I. Did the juvenile court violate Father's due process rights when it proceeded with the child protection action without providing Father notice and an opportunity to be heard?

II. Did the juvenile court abuse its discretion when it determined, pursuant to Wyo. Stat. Ann. § 14-2-309(c)(v) (LexisNexis 2019), DFS was not required to make reasonable efforts to reunify Father and Child?

FACTS

[¶4] Child was born in 2014 to Father and RK (Mother). For the first two years of Child's life, she lived with Father, Mother, and Mother's other children. Father and Mother separated in 2017. Near the time of their separation, Mother obtained a protection order prohibiting Father from having contact with her or Child. Father was, however, able to have the order modified so he could have visitation with Child.

[¶5] On March 4, 2017, Child was in Father's custody for visitation when the State removed her and placed her into protective custody because Mother admitted she was using methamphetamine. The State alleged Mother had neglected Child, and the juvenile court ordered Child be held in shelter care. Because there were no neglect or abuse allegations against Father in the 2017 case, the juvenile court refused to appoint counsel for him.¹ The court ordered Father to test negative for drugs before visiting Child; he did not complete the required tests. Child was returned to Mother's care in April 2017, but Father still did not exercise visitation. In 2018, Father was incarcerated for felonious restraint of a victim not involved in this case. Father was released from custody in May 2019 and moved into his mother's house in Laramie.

[¶6] On November 26, 2019, Child was again taken into protective custody because Mother had been arrested for physically abusing Child's older brother and could not care for Child. The juvenile court held a shelter care hearing on November 27, 2019, without Father present, and found Child should be placed in DFS custody. Although the State knew Father's address, it did not serve him with notice of the hearing. Twenty-three (23) days later, the State filed a motion for an order that reasonable efforts to reunify Child with Father were not required.

[¶7] On December 23, 2019, Father was personally served with 1) the neglect petition against Mother; and 2) an order directing him to appear in the juvenile court on January 2, 2020, for an initial hearing. The juvenile court appointed counsel for Father, and he filed an objection to the State's motion requesting the court order reasonable efforts to reunify him with Child were unnecessary. Father agreed to a case plan which required, among other things, drug testing. Father complied with the testing requirement and began weekly supervised visitation with Child.

[¶8] After a two-day evidentiary hearing, the juvenile court granted the State's motion to relieve DFS of the duty to make reasonable efforts to reunify Father and Child. Father filed a timely notice of appeal. We will provide additional details about the facts and course of proceedings as necessary to decide the issues in this appeal.

DISCUSSION

Due Process

[¶9] Father claims the juvenile court violated his right to due process by failing to provide him notice and the opportunity to be heard during the early stages of the child protection action.² The question of whether an individual was afforded due process is one of law subject to de novo review. ST v. State (In re DT), 2017 WY 36, ¶ 23, 391 P.3d 1136, 1143 (Wyo. 2017) ; Verheydt v. Verheydt, 2013 WY 25, ¶ 20, 295 P.3d 1245, 1250 (Wyo. 2013).

[¶10] The State maintains we should not consider Father's due process claim because he did not object to the procedure employed by the juvenile court. "Normally, we will not consider an issue raised for the first time on appeal, but we have recognized two exceptions to this rule: when the issue raises jurisdictional questions or when the issue is of such a fundamental nature that it must be considered." FH v. State (In re ECH) , 2018 WY 83, ¶ 21, 423 P.3d 295, 302 (Wyo. 2018) (citations and quotation marks omitted).

[¶11] The right of familial association is fundamental. Clark v. Dep't of Family Servs. (In re GGMC), 2020 WY 50, ¶ 22, 460 P.3d 1138, 1145 (Wyo. 2020) ; JLW v. CAB (In re WDW) , 2010 WY 9, ¶ 17, 224 P.3d 14, 19 (Wyo. 2010) ; TF v. State, Dep't of Family Servs. (In re Adoption of CF), 2005 WY 118, ¶ 26, 120 P.3d 992, 1002 (Wyo. 2005). "The liberty of a parent to the care, custody and control of [his] child is a fundamental right that resides first in the parent." Wyo. Stat. Ann. § 14-2-206(a) (LexisNexis 2019). See also, Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (the due process clause protects parents’ rights to raise their children); Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 1398, 71 L.Ed.2d 599 (1982) ("the child and his parents share a vital interest in preventing erroneous termination of their natural relationship").

[¶12] According to the State, Father's fundamental interest in preserving his familial relationship with Child has not been affected in an impermissible way because the juvenile court did not change the permanency plan to termination of parental rights and/or adoption. Unquestionably, termination of parental rights affects the fundamental right to familial association. Clark, ¶ 22, 460 P.3d at 1145 (citing JLW, ¶ 17, 224 P.3d at 19 ). However, decisions leading up to termination may also affect a parent's fundamental rights. In FH, ¶ 21, 423 P.3d at 302, we stated, "[t]he decision to halt reunification efforts certainly affects a parent's substantial rights, as it will likely have a significant impact on a termination decision." (Citation omitted). In fact, the provision the State relied upon when requesting the juvenile court relieve DFS of the duty to make reasonable efforts to reunify Father with Child is included within § 14-2-309 – the statute setting out the procedure for termination of parental rights.

[¶13] We ruled in FH, ¶ 21, 423 P.3d at 302, the "right to counsel in a permanency hearing where cessation of reunification efforts has been recommended is a matter of such fundamental nature that we must consider it even though it was not raised below." Given the close connection between procedures required in the early stages of a child protection action and the cessation of reunification efforts, the issue of whether the juvenile court violated Father's due process right is of a fundamental nature. Cf. Crofts v. State ex rel. Dep't of Game & Fish, 2016 WY 4, ¶ 32, 367 P.3d 619, 627 (Wyo. 2016) (appellant's claim she was not afforded procedural due process was not of a fundamental nature because she did not establish a protected property or liberty interest). We will, therefore, consider Father's argument that he was deprived of due process in the juvenile proceedings even though it was not raised below.

[¶14] However, because Father did not address this issue to the juvenile court, our review is limited to a search for plain error. Wyoming Rule of Appellate Procedure (W.R.A.P.) 9.05 ; FH , ¶ 21, 423 P.3d at 302 ; KC v. State, 2015 WY 73, ¶ 47, 351 P.3d 236, 248 (Wyo. 2015).

Plain error occurs when "1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right resulting in material prejudice." The appellant bears the burden of proving plain error.

ST, ¶ 23, 391 P.3d at 1143 (quoting SAS v. State, Dep't of Family Servs. (In re AGS), 2014 WY 143, ¶ 34, 337 P.3d 470, 480 (Wyo. 2014) ) (other citations and quotation marks omitted).

[¶15] The first part of the plain error test is satisfied because the record clearly reflects the course of proceedings. The second part of the test requires a showing of a violation of a clear and unequivocal rule of law. The Fifth and Fourteenth Amendments to the United States Constitution prohibit the government from depriving any person of "life, liberty, or property, without due process of law." See also, Wyo. Const. art. 1, § 6 ("No person shall be deprived of life, liberty or property without due process of law."). Procedural due process requires the government to provide a parent with reasonable notice and a meaningful opportunity to be heard before interfering with his fundamental right to familial association. JA v. State, Dep't of Family Servs. (In re DSB), 2008 WY 15, ¶ 27, 176 P.3d 633, 639 (Wyo. 2008) ; DH v. Dep't of Family Servs. (In re "H" Children), 2003 WY 155, ¶ 38, 79 P.3d 997, 1008 (Wyo. 2003). The required process varies depending upon "the nature...