FR v. State (In re RR)

492 P.3d 246

In the INTEREST OF: RR, KR and RR, minor children,

FR, Appellant (Respondent),

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

S-20-0219

Supreme Court of Wyoming.

July 26, 2021

Representing Appellant: Hannah West of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

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

Guardian Ad Litem: Joseph R. Belcher, Director, and Kimberly Skoutary Johnson, Chief Trial and Appellate Counsel, Wyoming Office of Guardian ad Litem, Cheyenne, Wyoming.

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

DAVIS, Justice.

[¶1] FR is the father of three children, who were seven, five and four years old when the State of Wyoming filed a petition in juvenile court that alleged FR neglected the children. FR challenges the court's order adjudicating the children as neglected and its order changing the permanency plan for the children from reunification of the family to termination of FR's parental rights and adoption. We affirm.

ISSUES

[¶2] The dispositive issues are:

1. Did the juvenile court's failure to insure FR's presence at the adjudication hearing deprive it of subject matter jurisdiction to rule on the children's permanency?

2. Did the juvenile court violate FR's right to due process when it failed to insure his presence at the initial hearing, failed to advise him of his rights at the initial hearing, and failed to insure his presence at the adjudication hearing?

3. Did the juvenile court abuse its discretion when it found that the Department of Family Services (DFS) had made reasonable efforts at reunification and that the permanency plan for the children should be changed to adoption?

4. Did the juvenile court commit cumulative error?

FACTS

[¶3] At 2:43 a.m. on April 11, 2019, FR called the Cheyenne Police Department and reported that his children were out of control and that he needed help with them. Officer Jose Ruiz and another officer responded to the call, and FR allowed them into the home. FR told Officer Ruiz that he had fallen asleep at around 10:00 p.m. and "the kids just went crazy" and made a huge mess while he was sleeping.

[¶4] During the welfare check, the officers searched for any outstanding arrest warrants and found one for FR's failure to appear for a child support hearing. They then took him into custody, and because no one was available to care for the three children, Officer Ruiz contacted DFS to take them into protective custody.

[¶5] On that same day, the State filed a petition alleging that FR had neglected his three children: RR (age 7); KR (age 5); and RR(B) (age 4).¹ The petition generally alleged neglect as the term is statutorily defined, and it also referenced Officer Ruiz's affidavit of probable cause for each child. The affidavits stated that FR called police and reported his children being "out of control." They further stated that upon FR's arrest, officers were unable to contact a responsible adult to care for the children, and DFS was therefore notified.

[¶6] Also on that same day, FR's court-appointed attorney entered her appearance, and the juvenile court held a shelter care hearing. FR appeared at the hearing, not with his court-appointed attorney, but with an attorney from her office who was covering for her. The court noted FR's presence, but it did not advise him of his rights as required by the Child Protection Act.² The court instead, without objection, proceeded directly to receiving the State's evidence concerning the circumstances under which the children were taken into shelter care.

[¶7] The State presented the testimony of Officer Ruiz and the two DFS caseworkers who responded to the call, Brianna Gray and Ashley Dennis. Officer Ruiz testified concerning the circumstances of FR's call for help and his report that his children were out of control. He further testified that he received permission to look through the home, and he described what he found as follows:

When you enter the apartment there's a living room area, there's a kitchen off to the left. In the living room area there was food on the floor. There was cheese, there was spaghetti noodles. Piles of clothes. Not sure what it was, it may have been some sort of animal bedding on the floor. There were two smaller children lying on the floor in the middle of the living room. They were later identified as [RR(B)] and [KR]. After speaking with [FR], the defendant, he had stated while he was asleep, and he had fallen asleep around 10:00 p.m., the kids just went crazy, in his words. He also stated the residence was clean prior to him going to bed. I asked if I could look around and he gave me consent to.

From the living room there's a hallway that goes towards the back of the apartment. There's a couple of rooms off to the right. I asked him which room he was in. He said he was in the first room off to the right-hand side. That's where he was sleeping at the time his kids were destroying the house.

Going through the hallway there was a lot of clutter, clothing, shoes, toys, things of that nature. I went into the room where [FR] said he was asleep in and in that room there were cigarettes (sic) butts all over the floor. There was ash. Same type of thing, there were shoes, there was clothing, there was just items everywhere.

I asked him, you know, how he ended up waking up during the incident. He said his four-year-old son, [RR(B)], had come into the room and started going crazy in there and that's what woke him and that's how he discovered the mess in the house.

Across from his room is the bathroom. In the bathroom there was a tote of dirty dishes. The toilet appeared to be clogged and the bathtub had some standing water in it and also some dishes. There was another room at the very end of the apartment complex and that had chairs, it had doors, it had a lot of other items just stacked in front of the door. And directly across from that was another room that was basically empty. It wasn't as cluttered as the other ones I was in.

[¶8] On cross-examination, Officer Ruiz testified:

Q. Was there any indication the house had been unclean for more than a period of time that [FR] said it was unclean for?

A. Just based on experience, I would say yes. I mean, again, there was clutter everywhere. Some of these items he had claimed that the kids moved. One was a sofa – or like a reclining chair that he stated the kids had flipped over. With the size of the kids, I don't know how it would be physically possible for them to flip that chair.

Q. What is the size of the kids?

A. They are fairly small. Skinny but not malnourished.

Q. Okay. Anything in your meeting with [FR] give you an indication he was physically abusive toward the children?

A. No.

Q. Okay. That he did not care for the children?

A. What do you mean? Define not care.

Q. Does it seem like he's a caring father?

A. He was asking for help.

Q. Okay.

A. That's what he said the reason for the call was, that he needed help with the kids.

Q. Okay.

[¶9] Brianna Gray, one of the DFS caseworkers, also testified as to the condition of the home. She described the kitchen as incredibly dirty, and testified that the floor in the home was cluttered with piles of clothing, shoes, food, trash, and miscellaneous items and debris. She also testified that Officer Ruiz's partner cautioned her against taking many items of clothing from the home because he was concerned that they may have bugs on them. Concerning the children's condition, she testified:

Q. You said the kids indicated they didn't know the last time they ate?

A. No. So when we were talking about taking the kiddos with us to the foster home, Officer Ruiz's partner had said that the kids had told them that they were hungry. I asked [RR] when was the last time she ate and she wasn't able to tell me. We got them McDonald's and they each ate three pancakes in a very quick amount of time.

Q. Did they seem to be hungry?

A. Yes.

[¶10] Ashley Dennis, the other DFS caseworker, confirmed the uncleanliness of the home, and her photos of it were received into evidence. She further testified that she did not believe that the mess in the home could have been recently created.

[¶11] Substitute counsel for FR did not present evidence at the shelter care hearing, but after the State rested, he requested that the children be returned to FR. The juvenile court denied that request. It reasoned:

There is no question in my mind knowing [FR] and the efforts he went through in the previous juvenile proceeding that [FR] loves his children, that he loves them passionately, and that he has worked and will continue to work very hard to be a part of their lives and a constructive supportive part of their lives. Those all are very separate propositions from what happened in the last 24 hours. And receiving evidence today and hearing the testimony that I have heard, I do conclude that the State should be relieved of any obligation it may have had to undergo reasonable efforts to avoid removal under the circumstances of the children. But I also conclude – and that shelter care was appropriate at the time. I also conclude at this time it would be contrary to the children's best interest to be returned immediately to [FR's] physical or legal custody.

The fact alone that any parent would call law enforcement at 2 o'clock in the morning for help with his three children, the youngest of whom is four and the oldest of whom is seven, would suggest to me that there's a problem in this household. And the problem doesn't have so much to do specifically or individually with the fact of the dirty house or the fact of lack of resources, but rather that we've got a parent who again has found himself in the position of being overwhelmed [and] thus unable to appropriately and effectively parent in a way that – and manner that is in the children's best interest focusing on

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