MK v. State (In re SK)

544 P.3d 606

2024 WY 25

In the INTEREST OF: SK, MK, SK, SK and WM, minor children,

MK, Appellant (Respondent),

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

In the Interest of: SK, MK, SK, SK and WM, minor children,

JP-W, Appellant (Respondent),

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

S-23-0172, S-23-0173

Supreme Court of Wyoming.

March 4, 2024

Appeal from the District Court of Laramie County, The Honorable Steven K. Sharpe, Judge

Representing Appellant MK: Brittany Thorpe, Domonkos & Thorpe, LLC, Cheyenne, Wyoming.

Representing Appellant JP-W: Jordan A. Surber, Coal Creek Law LLP, Cheyenne, Wyoming.

Representing Appellee: Bridget L. Hill, Attorney General; Christina F. McCabe, Deputy Attorney General; Wendy S. Ross, Senior Assistant Attorney General; April Jamison, Senior Assistant Attorney General; Catherine L. Reeves, Assistant Attorney General.

Office of the Guardian ad Litem: Joseph R. Belcher, Director.

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

FOX, Chief Justice.

[¶1] In these consolidated appeals, Father and Mother Challenge the juvenile court’s decision to change the permanency plan of their five children from family reunification to adoption or guardianship. We affirm.

ISSUES

[¶2] We combine the parents’ issues on appeal:

1. Did the juvenile court abuse its discretion when it changed the permanency plan from family reunification to adoption or guardianship?

2. Did the juvenile court commit plain error when it allowed the Department of Family Services to employ the Interstate Compact on the Placement of Children mechanism to help it determine Mother’s fitness for placement?

3. Did the juvenile court commit plain error when it allowed the Guardian ad Litem, rather than the State, to prove the grounds for the permanency change?

4. Did the juvenile court violate Mother’s due process rights when it admitted evidence and witness testimony that was not disclosed by the Guardian ad Litem until shortly before the permanency hearing?

FACTS

[¶3] Mother and Father immigrated to the United States from West Africa in the early 2000s and had three children together, MK (2009), SK (2010), and SK (2011). Mother had two more children, SK (2013) and WM (2017), whose paternity is unconfirmed. The parents separated, and all five children lived with Father in Wyoming while Mother, lived in Iowa.

[¶4] In November 2019, law enforcement arrested and jailed Father for aggravated assault. The children were taken into protective custody. The Laramie County District Attorney’s Office filed a neglect petition against Father, and Mother was later contacted and listed as the non-offending parent. A multidisciplinary team (MDT) was formed, a guardian ad litem (GAL) appointed, and the Wyoming Department of Family Services (DFS) placed the children in non-relative foster care.

Father’s Case Plan and Progress

[¶5] DFS outlined goals for Father in his case plan. He was to obtain appropriate and safe housing, complete a mental health evaluation, and follow, the recommendations arising from the evaluation. DFS updated his case plan and required him to also complete a parenting class and stay in contact with the children’s therapists to provide input and receive feedback about the children’s needs.

[¶6] Father struggled to obtain appropriate and safe housing. Father’s attorney told the MDT Father "cannot commit to purchasing or renting a large enough place to accommodate all the children until he knows when they are coming back." Later Father was living in a homeless shelter in Fort Collins, Colorado and obtained a housing voucher. However, he did not want to use the voucher until he knew Mother’s plans. DFS provided Father with information for six housing agencies, but Father reported none were able to help him. DFS also contracted with Family to Family to assist Father with housing, and the court appointed Families First Wyoming (FFW) to assist with services. FFW found a transitional homeless shelter, but Father would have needed full custody of the children to live there. After that, FFW reported Father did not reach out with requests or questions and made no contact with the organization. By October 2022, Family to Family had helped him apply for low-income housing but he encountered lengthy waitlists. In early 2023, DPS reported it had been unable to contact Father since September 2022/

Mother’s Case Plan and Progress

[¶7] At the start of this case, Mother was the non-offending parent, living in Iowa, and wanted the children to be placed with her. Although she had stable housing, a car, and employment, DFS identified "significant concerns of domestic violence" from records, reports, and evaluations in its predisposition report. For example, the oldest child report- ed witnessing domestic violence between Mother and Father as well as between Mother and Mother’s husband, Chris Proctor.

[¶8] Mr. Proctor had a significant criminal history, including DUIs, at least two child endangerment charges, and multiple domestic violence charges. At the start of this case, it was reported Mr. Proctor was incarcerated for committing domestic violence against Mother, which two of the children had witnessed.

[¶9] Mother’s case plan reflected these domestic violence concerns. The plan required her to complete domestic violence lessons to prevent future instances. She was also required to demonstrate the ability to protect herself and her children from potentially dangerous relationships.

[¶10] Her case plan further required Mother to complete a mental health evaluation and follow its recommendations. She was also to stay in contact with the children’s therapists to provide input and feedback about the children’s needs.

[¶11] Throughout the case, MDT members reported a language barrier and cultural differences, particularly with Mother. Mother could not read English or speak it very well. In 2022, the court appointed her a new attorney who obtained court authorization to add a translator to the MDT. The MDT noted that Mother’s culture and customs, and in particular, her disciplining techniques, did not fit well with United States standards. The MDT had become aware of substantiated allegations of inappropriate and excessive discipline reported earlier in Nebraska, including "peppering," in which Mother would squirt peppers into the children’s eyes, genitals, armpits, and buttocks and tie them up so they could not alleviate the pain. Mother’s case plan required her to develop alternative discipline and parenting techniques.

[¶12] DFS used the Interstate Compact on the Placement of Children (ICPC) process to request Iowa authorities complete a home study. Initially, Mother passed this home study. But Iowa placed her ICPC application on hold after finding out about the substantiated allegations of excessive discipline and domestic violence in Nebraska. Her ICPC application was eventually denied because Mother failed to complete paperwork regarding these Nebraska abuse allegations.

[¶13] Mother, moved to Cheyenne, Wyoming, after her Iowa ICPC, application was denied. She was approved for housing funds, through DFS. However, the funds were not cleared for several weeks, so Mother lost the house she had reserved. FFW helped her apply for housing and a job, but Mother was unable to find adequate housing for a large family in Cheyenne.

[¶14] Mother moved to Fort Morgan, Colorado, where she obtained a stable and well-paying job and a house big enough to meet her family’s needs. By April 2022, reunification efforts were going positively. She was hosting unsupervised, weekend visits at her home, a new therapeutic team had joined the MDT, and the MDT hoped to expand visitation throughout the summer and place the children with Mother before school started in the fall. DFS submitted an ICPC application so Colorado’s Department of Human Services (DHS) could complete a home study and help with supervision and services.

[¶15] Reunification efforts stalled that summer for two reasons; DHS denied Mother’s ICPC application because Mother was not cooperating with the home study process, and Mr. Proctor had been released from jail. Although Mother obtained a protective order against Mr. Proctor, the MDT believed he continued to be present in Mother’s home while the children visited. Consequently, visitation changed from unsupervised in Mother’s home to supervised in Cheyenne. Mother denied Mr. Proctor had or would have contact with the children and refused to come to visits for approximately five months before restarting visits in Cheyenne.

[¶16] DFS resubmitted Mother’s ICPC application, and in January 2023, Mother’s ICPC home study was approved. DHS recommended the children be returned to Mother under the direction of Wyoming DFS. DFS recommended two of the children, SK (2010) and SK (2011), be returned to Mother immediately and that the others transition to Mother over a few weeks so Mother would not be overwhelmed by having all five children returned to her home at once. SK (2010) and SK (2011) moved to Mother’s home. The GAL objected, arguing placement with Mother, was not in the children’s best interests, and requested a hearing on the objection to occur during the scheduled evidentiary permanency hearing.

Evidentiary Permanency Hearing

[¶17] At the evidentiary permanency hearing, the GAL was the sole proponent for a change in permanency from family reunification to adoption. The State and parents advocated for the permanency plan to remain family reunification. The GAL called SK (2010), a visitation supervisor, and the children’s therapists as witnesses. The children’s therapists testified Mother made statements to the children about not wanting them and instructed them not to, reveal that Mr. Proctor had been in her home. SK (2010)’s therapist testified SK (2010) reported Mother had physically assaulted her by kicking her in the shins. The court continued the hearing to March 10.

[¶18] Before the hearing resumed, an incident occurred between Mo...