TD v. State (In re SMD)

2022 WY 24

IN THE INTEREST OF: SMD and SND, minor children,

TD, Appellant (Respondent), v. THE STATE OF WYOMING, Appellee (Petitioner).

IN THE INTEREST OF: SMD and SND, minor children,

KL-R, Appellant (Respondent), v. THE STATE OF WYOMING Appellee (Petitioner).

Nos. S-21-0117, S-21-0118

Supreme Court of Wyoming

February 10, 2022

Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

Representing TD: Jordan J. Camino, The Wages Group, LLC Buffalo, Wyoming. Argument by Ms. Camino.

Representing KL-R: Sarah G.R. Phillips, Bighorn Mountain Legal Services, LLC, Sheridan, Wyoming. Argument by Ms Phillips.

Representing the State of Wyoming: Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Wendy S. Ross, Senior Assistant Attorney General. Argument by Ms. Ross.

Guardian ad Litem: Joseph R. Belcher, Director, Wyoming Office of the Guardian ad Litem; Kim Skoutary Johnson, Chief Trial and Appellate Counsel; Jordan Martin, Student Extern.

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

GRAY JUSTICE

[¶1] KL-R (Mother) and TD (Father) appeal the juvenile court's order changing the permanency plan for their children, SMD and SND, from reunification to adoption. Their appeals have been consolidated. Mother and Father each contend that the juvenile court abused its discretion by ordering a change in the plan to adoption and not guardianship. Mother further contends that the juvenile court abused its discretion when it did not order a concurrent plan of reunification and determined reunification efforts could cease. We affirm.

ISSUES

[¶2] The issues are:

1. Did the juvenile court abuse its discretion when it found that it was in the children's best interests to change the permanency plan to adoption instead of guardianship?

2. Did the juvenile court abuse its discretion when it determined there was no need for a concurrent plan of reunification when it determined DFS could cease reunification efforts?

FACTS

A. Factual Background

[¶3] Mother had four children, ERLA (age nine), ELLA (age six), SMD (age three), and SND (age two). Mother's ex-husband, JL-R, is the father of ERLA and ELLA. Mother's live-in boyfriend (Father) is the father of SMD and SND. This case involves only SMD and SND; the other children are addressed only peripherally as relevant to the issues here. All three parents and the four children lived together. On December 2, 2018, Mother and Father had a verbal dispute at the family residence. The dispute escalated and Mother responded by cutting her wrists with a kitchen knife. Law enforcement arrived at the home. While attending to Mother and sorting the situation out, they found the home to be unsanitary-animal feces and urine covered the floor, the kitchen sink contained moldy dishes, dirty clothes and garbage cluttered the home, the children's mattresses were uncovered with holes in them, and the walls were smeared with dirt and mud. All four children were taken into protective custody, and Mother, Father, and JL-R were cited for child endangerment. Father and JL-R were arrested and taken to jail. Mother was placed on a psychiatric hold at a local hospital.

[¶4] The next day, the Sheridan County Attorney filed a petition alleging that Mother, Father, and JL-R had neglected the children. At the December 4, 2018 shelter care hearing, all parents denied the neglect allegations. The juvenile court placed the children in the legal and physical custody of the Department of Family Services (DFS). DFS then placed the children in relative foster care with their maternal grandparents. Later, all parents pled no contest to the neglect petition, and the children were adjudicated as neglected.

[¶5] In early April 2019, DFS filed its Predisposition Report and case plan. The Predisposition Report detailed Mother's and Father's history of mental health and substance abuse issues. It also summarized the family's history with DFS.^[1]

[¶6] The case plan required both Mother and Father to work on long-term sobriety, parenting education, mental health, and stability (including housing, employment, and transportation). It also required Mother and Father to obtain substance abuse evaluations (and follow the recommendations); complete random urinalysis (UA) testing; attend and complete the Compass Nurturing Parenting class (and follow through with recommendations after completion); attend couples counseling for a minimum of eight sessions (and follow through with provider recommendations); obtain and maintain employment to provide for the children's basic needs; obtain and maintain safe and adequate housing; obtain and maintain reliable transportation; and attend scheduled appointments for a minimum of three months. Specific to Mother, the case plan required that she follow through with all recommendations of her most recent psychological evaluation; complete an additional evaluation to identify specific personality and parenting capacity issues (and follow through with any recommendations); continue attending the Psychosocial Rehabilitation Program through Northern Wyoming Mental Health Center (NWMHC) for six consecutive months (and follow through with recommendations); continue attending medication management through NWMHC, and take prescribed psychiatric medications (and follow through with recommendations). Separate from Mother, the case plan required Father to schedule a medication evaluation (and follow any recommendations from that evaluation). The juvenile court adopted the case plan and ordered Mother and Father to complete the tasks set forth.

B. December 2018 through November 2019

[¶7] Early on, Mother and Father had varied success. Father held three jobs but had lost them all by the end of April 2019; he was following the terms of his probation; he started a parenting education program and attended supervised visits with all four children but missed several appointments; and he completed his first substance abuse evaluation but used methamphetamine. Mother obtained a part-time job, began receiving psychological services, indicated she was thinking about moving to a better place for the children, and was going to reapply for Social Security benefits; but she also relapsed, using controlled substances. On March 21, 2019, both Mother and Father spent three days in jail after failing random UA tests.

1. Father

[¶8] Tragically, on April 22, 2019, ELLA was hurt in a school accident, and died several days later.^[2] On May 5, 2019, Father began drinking heavily and got into an altercation with JA, the children's maternal grandfather and foster parent, who had also been drinking. SMD and SND, who were in the care of JA and their maternal grandmother, RA, were temporarily relocated to another foster care home. They were returned to RA on May 24, 2019. As a result of this incident, Father was charged with battery and was arrested.^[3] The charge led to an emergency review hearing, after which the permanency plan remained reunification with a concurrent plan of adoption. Father was incarcerated from May 5 through November 24, 2019. During that time, Father was sober, took his medication, completed parenting education homework provided by DFS, and continued to have phone and video visits with the children. He received an addiction assessment or Addiction Severity Index (ASI).^[4] Although his ASI recommended outpatient treatment, it was the view of the Multidisciplinary Team (MDT)^[5] that he should attend inpatient treatment on his release from jail. Father agreed, and he was granted an early release to attend an inpatient treatment program beginning on November 25, 2019.

2. Mother

[¶9] The May 17, 2019 MDT report indicated Mother had a full-time job and was on a list for a better apartment. She had completed psychological testing (and scheduled additional recommended testing) and was engaged in individual counseling. She had a vehicle and was attending supervised visits with the children. By August, Mother was missing therapy appointments and expressing dissatisfaction with her job. Nevertheless, she maintained steady employment, felt good about her recovery, and had remained sober. She was doing well with the children and had progressed to having visits supervised by her mother, RA. By October 2019, Mother's employment had changed to part time, and she was not attending therapy. She was borrowing money from friends to pay her rent and food. However, her apartment was clean and well maintained, and she had transitioned to unsupervised visitation including overnight visits.

C. December 2019 through April 2020

[¶10] The first permanency hearing was held in early December 2019. The juvenile court continued the permanency plan of reunification and removed the concurrent plan of adoption. The court ordered Father to complete inpatient treatment, obtain employment, and abide by the conditions of his probation. It ordered Mother to maintain her employment and housing and to continue with her psychiatric medications and receiving psychiatric care.

1. Father

[¶11] February 21, 2020, Father was released from the inpatient treatment program. He received a rating of "maximum benefit," but because he had not attempted to change his addictive behaviors, he did not receive a certificate of successful completion.^[6] Father was able to find a job after his discharge, but he immediately began drinking and, by April 2020, he had begun using methamphetamine and marijuana. He lost his job and started working landscaping jobs "under the table." He did not have stable housing, instead he stayed at the homes of various friends. Father's parenting skills caused concern. For example, he raised his voice and issued punishments at inappropriate times during...