Harmon v. Wyo. Dep't of Family Servs. (In re Termination of Parental Rights to DKS)

2020 WY 12

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: DKS and ACH, minor children,

RACHAEL MARIE HARMON, Appellant (Respondent), v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner).

S-19-0114

SUPREME COURT, STATE OF WYOMING

OCTOBER TERM, A.D. 2019

January 29, 2020

Appeal from the District Court of Carbon County

The Honorable Wade E. Waldrip, Judge

Representing Appellant:

Marion F. Marchetti and Erik J. Oblasser of Corthell and King Law Office, P.C., Laramie, Wyoming. Argument by Mr. Marchetti.

Representing Appellee:

Bridget L. Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Senior Assistant Attorney General. Argument by Ms. McCabe.

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

BOOMGAARDEN, J., delivers the opinion of the Court; FOX, J., files a specially concurring opinion, in which GRAY, J., joins.

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.

BOOMGAARDEN, Justice.

[¶1] Rachael Marie Harmon (Mother) appeals the district court's order following a jury verdict terminating her parental rights to two minor children under Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v). She claims that the district court improperly permitted the Department of Family Services (Department) to amend its petition, that the district court erred in its allocation of peremptory challenges, and that the evidence was insufficient to support the jury's verdict. We affirm.

ISSUES

[¶2] We restate and reorder Mother's issues on appeal as follows:

I. Whether the district court properly granted the Department's motion for leave to amend its petition.

II. Whether Mother preserved her right to challenge the district court's allocation of peremptory challenges.

III. Whether clear and convincing evidence supported termination of Mother's parental rights.

FACTS

[¶3] Mother and her three children—BPG, DKS, and ACH—have a long history with the Department. The relevant portion of that history began in May 2016, when the Carbon County Attorney's Office filed a neglect petition against Mother. At an initial hearing the following month, the juvenile court ordered the three children into the Department's custody for placement in foster care. It also ordered Mother to abstain from using illegal controlled substances and to complete three consecutive, clean urinalysis tests before it would allow her visitation. The Department provided a urinalysis test to Mother "every couple of days in June 2016," but Mother tested positive for methamphetamine in all but one. The court held an adjudicatory hearing in July, where Mother pleaded no contest to neglect allegations. The Department continued providing urinalysis tests to Mother, but those tests continued to show the presence of methamphetamine. The Department consequently filed a motion for order to show cause against Mother for violations of the court's order requiring no use of illegal controlled substances.

[¶4] In September 2016, Mother signed a case plan which focused on six areas: 1) submitting to urinalysis testing, obtaining an Addiction Severity Index evaluation, and following the treatment recommendations; 2) assisting with her case plan by scheduling, attending, and following all recommendations of service providers; 3) obtaining and maintaining appropriate housing, and removing herself from individuals under theinfluence of drugs and alcohol; 4) obtaining employment or other services, such as food stamps or Medicaid, to support her and her children; 5) learning appropriate parenting skills; and, 6) addressing psychiatric concerns. In October 2016, however, the juvenile court held a hearing on the Department's previous show cause motion. It found Mother in contempt of court for continued methamphetamine use and sentenced her to 90 days' incarceration.

[¶5] Mother's incarceration ended in January 2017. The Department advised her to check in with the Department upon her release, but she failed to do so, and continued using methamphetamine. She failed to attend a February 2017 multidisciplinary team meeting regarding the children. At that meeting, the team recommended proceeding with termination of Mother's parental rights. The court held a review hearing the next month, considered the multidisciplinary team's recommendation to terminate parental rights, and concluded the Department made reasonable efforts for reunification but that such efforts were no longer required. Mother made subsequent attempts to attend an in-patient treatment facility and comply with her case plan, but ultimately relapsed.

[¶6] The Department filed termination proceedings in September 2017, alleging § 14-2-309(a)(iii) as the sole ground for termination of Mother's parental rights.¹ Approximately one year later, the Department sought leave to amend its petition to add § 14-2-309(a)(v) as another ground for termination, claiming the children were in the State's care for 15 of the last 22 months and Mother was unfit to have custody and control of her children. Mother's counsel responded to the Department's motion, but did not request a hearing. He noted that Mother did not consent to the amendment, but stated that he could not "claim undue surprise" and he had adequate time to prepare for trial. The court granted the Department's motion in November 2018.

[¶7] At the time of trial in January 2019, two of Mother's children were minors: DKS (age 14) and ACH (age 8). After voir dire, the court allocated four peremptory challenges each to the Department, the guardian ad litem, and Mother. The court took a brief recess for Mother to consult with her counsel, then reconvened in open court for the parties to select the jury. At no point did Mother's trial counsel object to the allocation of peremptory challenges. The parties exercised their peremptory challenges, with the Department and guardian ad litem each exercising three, and Mother exercising all four. After reading thenames of remaining jurors, the court asked Mother's counsel whether he had "any objection to the individuals chosen or the method used for their selection?" Mother's counsel responded "No, Your Honor."

[¶8] The court then read opening instructions to the jury, the parties presented opening statements, and the Department presented its case. The Department argued that Mother "has consistently chosen methamphetamine over her children and has been unable to care for them due to those choices," and called 14 witnesses, including various school, inpatient facility, and Department counselors and officials. One group of witnesses discussed the Department's case plan for Mother, and their efforts to reunite Mother with her children. Another group discussed Mother's, DKS', and ACH's mental, physical, and educational issues. The final group discussed concerns and potential impacts on DKS and ACH if Mother regained custody.

[¶9] Mother's counsel did not move for judgment as a matter of law at the conclusion of the Department's case, conceding that any "motion would be unsuccessful." The guardian ad litem did not call any witnesses. Mother's counsel called Mother as their sole witness. She testified about her addiction and personal efforts—admittedly unsuccessful due to her addiction—to reunify with DKS and ACH.

[¶10] The jury found the Department proved by clear and convincing evidence the elements required to terminate Mother's parental rights to DKS and ACH under both § 14-2-309(a)(iii) and (v). The Department then moved the court to address the best interests of DKS and ACH. The court stated that "[t]his verdict of the jury terminating the parental rights of Rachael Harmon is clearly in the best interests of these children. Their current placement is in the best interests of these children." Approximately one month later, the court entered an order terminating Mother's parental rights to both children. Mother timely appealed.

DISCUSSION

I. Motion to amend

[¶11] Absent "any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc."—leave to amend should be "freely given." Halling v. Yovanovich, 2017 WY 28, ¶ 22, 391 P.3d 611, 619 (Wyo. 2017) (quoting Voss v. Goodman, 2009 WY 40, ¶ 14, 203 P.3d 415, 420-21 (Wyo. 2009)). The district court has "broad discretion" to make this determination. Id. (citation omitted). "Our touchstone inquiry" when considering whether that discretion was abused "is whether the trial courtcould have reasonably concluded as it did."² Id. (quoting Gould v. Ochsner, 2015 WY 101, ¶ 39, 354 P.3d 965, 977 (Wyo. 2015)).

[¶12] Mother's trial counsel could not give the district court a conclusive reason why it should deny the Department's motion. See id. He noted that although Mother would not let him consent to the motion, it neither surprised him nor left him with inadequate time to prepare a defense against the additional ground. He further said, "[a]ny objection I would be able to articulate to the [c]ourt would simply be that by allowing [the Department] to amend the Petition, it will give [the Department] a greater chance at success by providing them more grounds to terminate."

[¶13] On appeal, Mother challenges both the timing and the content of the Department's motion. She argues that the Department filed its motion too late, and that by granting the motion so close to trial the district court left her insufficient time to prepare a defense. She also argues that the Department's motion included a "blatantly false" statement which...