In Interest of MFB 1993 WY 128 860 P.2d 1140 Case Number: C-93-1 Decided: 10/04/1993 Supreme Court of Wyoming
Cite as: 1993 WY 128, 860 P.2d 1140
IN
THE INTEREST OF MFB, A Minor: DB,
Appellant
(Respondent),
v.
THE
STATE OF WYOMING DEPARTMENT OF FAMILY SERVICES,
Appellee
(Petitioner).
Appeal from the District Court
of Natrona County. The Honorable Harry E. Leimback,
Judge
Representing Appellant: H. Steven Brown and James A.
Raymond of Brown & Raymond, P.C., Casper,
Wyoming. Representing Appellee: Joseph B. Meyer, Attorney
General; Michael L. Hubbard, Senior Assistant Attorney General; and Richard E.
Dixon, Assistant Attorney General.
Before MACY, C.J., and THOMAS,
CARDINE, GOLDEN, and TAYLOR, JJ.
TAYLOR,
Justice.
[1]
In this appeal of a juvenile court neglect proceeding, the father of a
minor child challenges the juvenile court's jurisdiction to conduct proceedings
after failing to hold an adjudicatory hearing within the time period stated in
Wyo. Stat. 14-6-209(c) and 14-6-226(b) (1986 & Cum. Supp. 1993). The
father also contends the juvenile court erred during the adjudicatory hearing by
permitting presentation of improper evidence and by failing to make necessary
findings of fact. The juvenile court determined, in the best interests of the
child, that custody should be granted to the Department of Family
Services.
[2]
We hold that the juvenile court maintained proper subject matter
jurisdiction because the failure to set an adjudicatory hearing within the time
suggested by the applicable statutes does not result in a loss of jurisdiction.
We affirm that admissible evidence supported the determination made by the
juvenile court that the child was neglected. We also affirm that the grant of
custody included a sufficient finding of neglect; however, in accord with
statutory requirements, we modify the custody determination to specify that
custody is temporary.
I. ISSUES
[3]
Appellant, the father, presents the following issues on
appeal:
I.
Was
the district court in error for refusing to grant a parent's motion to dismiss
for lack of jurisdiction when the petition for juvenile abuse/neglect was not
adjudicated within sixty (60) days as required by Wyoming Statutes 14-6-226 and
14-6-209?
II.
Was
the district court in error in allowing into evidence at an adjudicatory
hearing, under Wyoming Statute 14-6-226 evidence that occurred after
the state's taking of the child?
III.
Was
the district court in error in allowing a taking of the child when its final
order and findings failed to show abuse or neglect by the parent before the
state's taking of the child?
(Emphasis
in original.)
[4]
On behalf of appellee, the Wyoming Department of Family Services,
the Attorney General chose to frame a single, different issue:
Did
the lower court fulfill the mandate of this court as expressed in the Order
Denying Motion To Reconsider Peremptory Writ of Mandamus and Staying Dismissal
for Twenty Days To Permit A Hearing To Be Held Within That
Time?
[5]
The guardian ad litem did not file a brief in this appeal on behalf of
the minor child.
II. FACTS
[6]
Within a month after the sudden, unexplained disappearance of her mother,
police took MFB, then age two and one-half, into protective custody and removed
her from the home she shared with the father and his girlfriend. A petition
alleging neglect of a minor child was filed by the State on January 2, 1991. In
a supporting affidavit, filed with the petition, a local police investigator
detailed various concerns of family members and authorities for the welfare of
MFB, including the father's failure to permit professional counseling for MFB to
help her deal with the disappearance of her mother. The affidavit included
information that MFB's welfare was threatened because she had some knowledge of
possible criminal activity involved in her mother's
disappearance.
[7]
Following the appointment of a guardian ad litem for MFB, a shelter
care hearing was conducted on January 3, 1991 by a court commissioner. The
father waived his right to an attorney and informed the juvenile court that he
was leaving the county for an eighteen week military training school in another
state. He stipulated to a custody arrangement. The Department of Family Services
assumed temporary legal custody of MFB with temporary placement at MFB's
maternal grandparents. The commissioner ordered psychological evaluations of MFB
and the father.
[8]
The father presented himself for psychological evaluation on January 4,
1991. The evaluation was scheduled to include a personal interview and some
standardized testing. However, when the psychologist left the room, the father
failed to complete most of the tests and departed. As a result, the psychologist
reported to the juvenile court that no diagnosis was possible from this
evaluation.
[9]
Meanwhile, counseling had begun for MFB. MFB experienced high levels of
anxiety and recurring memories of a traumatic incident related to her mother's
disappearance. The counselor concluded that MFB suffered from Post Traumatic
Stress Disorder.
[10]
When the father returned from his military training, he filed an
Affidavit In Forma Pauperis requesting court-appointed representation. An
attorney was appointed on May 20, 1991.
[11]
The father requested a "Review Hearing" for October 16, 1991 to consider
a change in visitation. A report from MFB's counselor revealed that of five
scheduled supervised visits, the father had appeared for only four visits. His
interaction with MFB at the visits was characterized as displaying a lack of
sensitivity. As an example, the counselor pointed out that during the second
visit, the father brought a picture of MFB's mother and displayed it without
seeking guidance in how to help MFB deal with her mother's disappearance. At
another session, the counselor reported that the father brought inappropriate
reading material to show MFB, a book titled The Principles of Anatomy and
Physiology. The counselor told the court that MFB showed regression in her
behavior, including nightmares, loss of appetite and tantrums, following each
supervised visit. The counselor reported that MFB feared for her safety, telling
the counselor, "My Daddy said he would kill me." The juvenile court permitted
supervised visitation to continue, but ordered a second psychological
evaluation of the father and that he be required to successfully complete
parenting classes as part of a reunification plan. The father presented himself
for the second psychological evaluation on November 25, 1991.
[12]
On January 22, 1992, the father apparently requested an "Adjudicatory
Hearing." The form used as the Request For Setting misidentified the father's
attorney as the "Attorney/Guardian ad Litem for Minor." However, the juvenile
court evidently presumed the attorney was acting on behalf of the father. The
hearing was promptly set for February 10, 1992. However, no hearing was held on
that date because only thirty minutes had been reserved. In a later hearing, the
father's attorney admitted rescheduling was necessary because he had not
requested sufficient time for the proceeding. On March 3, 1992, the State
requested a one-day "Contested Hearing" which was set for May 11, 1992. All
parties agreed that this was an adjudicatory hearing.
[13]
During the adjudicatory hearing, the State presented testimony from MFB's
counselor that she suffered from Post Traumatic Stress Disorder which was severe
in nature. The counselor described the traumatic event which triggered the
disorder as occurring at the time that MFB's mother disappeared. In the
counselor's opinion, the father's failure to seek professional help for such a
young child suffering the stress of such a traumatic event constituted serious
neglect.
[14]
The paternal grandparents testified that they saw the father strike MFB
with a hard slap across the face when she did not want to leave her grandparents
following her mother's disappearance. As a result, the paternal grandfather said
he feared for MFB's safety if she remained in the father's home. The paternal
grandmother testified that the father used obscene language and made
inappropriate references to the disappearance of the mother while MFB was
present.
[15]
The maternal grandmother testified about behavioral problems MFB
experienced following her mother's disappearance, including claiming her mother
was dead. The maternal grandmother testified she expressed her concern for MFB's
well-being to local police following a visit in which the child acted withdrawn
and had trouble sleeping.
[16]
The adjudicatory hearing was not completed in one day as originally
scheduled. The juvenile court recessed before completion of the State's case.
During the interim period, the juvenile court ordered another evaluation of
MFB, this time by a child psychiatrist.
[17]
When the adjudicatory hearing resumed on July 30, 1992, a board certified
child psychiatrist testified that she diagnosed MFB as suffering from Post
Traumatic Stress Disorder. The disorder was caused by the emotional abuse or
trauma which the child suffered as a result of MFB's belief that she saw
the father hurt her mother. The psychiatrist indicated that MFB would suffer
tremendous anxiety if she were returned to the father's custody because MFB
feared the father would harm her.
[18]
The psychologist who conducted both evaluations of the father diagnosed
him as suffering from an adjustment disorder. The father also displayed some
long term characterological features such as passive aggressive behavior and a
narcissistic personality. Testing revealed he suffered from depression and
significant amounts of anger. The psychologist recommended further counseling
for the father and demonstrated success before any attempt to increase
visitation or reunify the family.
[19]
The father admitted in his testimony that following his wife's
disappearance, he had reacted to the suspicions of his family with some
unusual behavior. However, he denied that behavior ever included slapping
MFB in the face. The father said he completed the juvenile court-ordered
parenting classes and psychological evaluations as part of his commitment to do
whatever was necessary to get MFB back.
[20]
The juvenile court found, in denying a motion to dismiss after completion
of the State's presentation of evidence, that there had been physical abuse and
neglect. Furthermore, at the conclusion of all evidence, the juvenile court
found that MFB suffered from Post Traumatic Stress Disorder caused by the
disappearance of her mother and the fear that the father would harm her. In an
integrated disposition proceeding, the juvenile court ordered that in the best
interests of the child, legal custody would remain with the Department of Family
Services and MFB would be placed with the maternal grandparents. The juvenile
court permitted supervised visitations bi-monthly for three hours per visit and
ordered the father to attend counseling.
III. DISCUSSION
A.
Subject Matter Jurisdiction
[21]
The central argument presented by the father is that the juvenile court
lacked jurisdiction to proceed with this case. At the May 11, 1992 hearing,
the father made a motion to dismiss based upon the failure of the juvenile
court to hold the adjudicatory hearing within sixty days of the time the father
denied the allegations of neglect and abuse contained in the petition.
See Wyo. Stat. 14-6-209(c) and 14-6-226(b). The father declared that
the allegations should be deemed denied at the time of the shelter care hearing
in January of 1991. The State argued the allegations should be deemed denied at
the time the request for the adjudicatory hearing was made in February of
1992.
[22]
Without deciding when, or if, the allegations of the petition were
denied, the juvenile court ruled that it had jurisdiction based upon this
court's decision in In Interest of MKM, 792 P.2d 1369, 1374 (Wyo. 1990),
where we said:
We
cannot think of a result more absurd than to cause a vulnerable child to become
unprotected while under the protective wing of our court system. Under W.S.
14-6-226(b) (July 1986 Replacement), a juvenile court may either proceed
immediately or hold a hearing within sixty days, but the statutes also preserve
the discretion of the court to do neither if the best interests of the child are
served at least until objection to the delayed hearing is asserted by a
litigant.
The
father characterizes this language as dicta and distinguishes the holding
because of the concurrent jurisdiction the court in In Interest of MKM
had with pending proceedings in the district court and in the juvenile court. We
disagree and reaffirm the applicability of the holding of In Interest of
MKM to proceedings in the juvenile court.
[23]
Our primary examination requires the use of rules for statutory
interpretation which were carefully scrutinized in Parker Land and Cattle Co.
v. Wyoming Game and Fish Com'n, 845 P.2d 1040, 1042-45 (Wyo. 1993). The
vital concern of this court's inquiry is the intent of the legislature as
expressed in the statute. Id. at 1042. Using the ordinary and obvious
meaning of the statute's words, we construe all sections of a statute in pari
materia. Id.
[24]
Before we proceed, it is essential to understand how a court acquires
jurisdiction. "'Jurisdiction' is the power to hear and determine the matter in
controversy between the parties." McGuire v. McGuire, 608 P.2d 1278, 1290
(Wyo. 1980) (citing Begley v. Nall, 62 Wyo. 254, 166 P.2d 466
(1946)). Jurisdiction is conferred when a court has general power over matters
of the type involved in the particular case; the proceeding is initiated in the
particular manner required; and there is notice to the parties. McGuire,
608 P.2d at 1290.
[25]
Under our civil rules, a challenge to subject matter jurisdiction, as
distinguished from personal jurisdiction, is a defense in law under W.R.C.P.
12(b)(1). A challenge to subject matter jurisdiction is never waived.
Nicholaus v. Nicholaus, 756 P.2d 1338, 1342 (Wyo. 1988). A challenge to
subject matter jurisdiction may be asserted at any time by any interested party
before final judgment, or in a motion for relief from judgment under W.R.C.P.
60(b), or on appeal after being overruled below. 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure : Civil, 1350 at
200-05 (1990). The court, at trial or appellate level, may also assert a lack of
subject matter jurisdiction, sua sponte. Nicholaus, 756 P.2d at 1339; 5A
Wright & Miller, supra, 1350 at 202.
[26]
Subject matter jurisdiction for juvenile courts originates in
constitutional and statutory law. The Constitution of the State of Wyoming
authorizes the legislature to create such juvenile courts as may be needed and
provides that "such courts shall have such jurisdiction as the legislature may
by law provide." Wyo. Const. art. 5 29. The Wyoming Juvenile Court Act of
1971, Wyo. Stat. 14-6-201 to 14-6-243 (1986 & Cum. Supp. 1993)
(hereinafter Juvenile Court Act), provides the original jurisdiction and
customary procedure for the juvenile courts of this state. General jurisdiction
is granted by Wyo. Stat. 14-6-203(a)(i) and (iii) concerning any minor alleged
to be neglected and the parents, guardians or custodians of any minor alleged to
be neglected. In many situations, the juvenile court's jurisdiction is
concurrent with other court's jurisdiction over similar matters. See Wyo.
Stat. 14-6-203(c), (f), and (h). "Once the jurisdiction of the juvenile court
is invoked, then the matter proceeds as a continuing and dynamic situation."
In Interest of N.M., 794 P.2d 564, 566 (Wyo. 1990), Thomas, J.,
concurring, joined by Urbigkit, J.
[27]
The proceeding involving MFB was properly commenced by filing a petition
in juvenile court alleging neglect by the lather. Wyo. Stat. 14-6-212(a). A
neglected child is defined in Wyo. Stat. 14-6201(a)(xvi) as a child:
(A)
Whose custodian has failed or refused to provide adequate care, maintenance,
supervision, education or medical, surgical or any other care necessary for the
child's well being. * * *
(B) Who has been abused by the inflicting or
causing of physical or mental injury, harm or imminent danger to the physical or
mental health or welfare of the child, other than by accidental means, including
abandonment, excessive or unreasonable corporal punishment, malnutrition or
substantial risk thereof by reason of intentional or unintentional neglect, and
the commission or allowing the commission of a sexual offense against a child as
defined by law:
(I)
"Mental injury" means an injury to the psychological capacity or emotional
stability of a child as evidenced by an observable or substantial impairment in
his ability to function within a normal range of performance and behavior with
due regard to his culture;
(II) "Physical injury" means death or any harm
to a child including but not limited to disfigurement, impairment of any
bodily organ, skin bruising, bleeding, burns, fracture of any bone, subdural
hematoma or substantial malnutrition;
(III) "Substantial risk" means a
strong possibility as contrasted with a remote or insignificant
possibility;
(IV) "Imminent danger" includes threatened harm and means a
statement, overt act, condition or status which represents an immediate and
substantial risk of sexual abuse or physical or mental
injury.
The
petition alleged the father had neglected and physically abused MFB while she
was in his care and the supporting affidavit alleged that without State
intervention, a serious risk of further injury to the child
remained.
[28]
The juvenile court had jurisdiction over the subject matter identified in
the petition under the statutory definition of neglect. Therefore, the juvenile
court had the power to hear and determine the general class of cases in which
this proceeding belonged. In Interest of WM, 778 P.2d 1106, 1111 (Wyo.
1989). There is no challenge to the acquisition of personal jurisdiction over
either the father or MFB. The remaining inquiry is whether, after being
acquired, continuing subject matter jurisdiction required adherence to relevant
procedural requirements.
[29]
The procedure for declaring a child neglected is statutory and contained
in the Juvenile Court Act. Once the child is in state custody, a three-phased
process commences with a shelter care hearing followed by an adjudicatory
hearing which may result in a disposition hearing. See Kennard F. Nelson,
Comment: The Wyoming Juvenile Court Act of 1971, VIII Land & Water L.
Rev. 237 (1973). At each phase, the juvenile court makes a decision whether
continued state intervention is appropriate and what form of intervention is in
the best interests of the child.
[30]
Each hearing fulfills a statutory purpose. The informal shelter care
hearing provides the juvenile court with the opportunity to determine if further
shelter care is required pending later court action. Wyo. Stat. 14-6-209(a)
and (d). The adjudicatory hearing provides the juvenile court with sufficient
evidence to determine if the allegations of the neglect petition are
sustainable, Wyo. Stat. 14-6-209(c) and 14-6-226(b), by the requisite
preponderance of the evidence standard. Wyo. Stat. 14-6-225(a). The
disposition hearing for a child found to be neglected determines what
custody and placement would be in the best interests of the child. Wyo. Stat.
14-6-229(b). If the neglected child is to be placed outside the home, the
juvenile court must find by clear and convincing evidence that a return to the
home is not in the best interests of the child. Wyo. Stat. 14-6-229(a). The
disposition hearing may be incorporated in the adjudicatory proceeding or be
conducted as a separate proceeding. Wyo. Stat. 14-6-226(e). Underlying each of
these individual proceedings is the central purpose of the Juvenile Court Act,
which is "to protect the best interest of the children who come under its
jurisdiction." In Interest of MKM, 792 P.2d at 1374.
[31]
As previously noted, the adjudicatory hearing is discussed in two
sections of the Juvenile Court Act. Wyo. Stat. 14-6-209(c) and 14-6-226(b).
The differences in the language of these two sections are related to the
different nature of the actions and the rights involved in juvenile court
proceedings. There are three basic actions heard in juvenile court: the action
for a neglected child, such as the issue in this case; the action involving
a child in need of supervision; and the action for a child alleged to be
delinquent. See Wyo. Stat. 14-6-229.
[32]
While there are general similarities in the procedures used by the
juvenile court for these three basic actions, there are differences in the
individual rights and the person to whom they attach which are relevant. See,
e.g., CH v. Campbell County D-Pass, 699 P.2d 830 (Wyo. 1985) (noting that in
a neglect proceeding, the parents have a fundamental right to care and custody
of a child); Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d
527 (1967) (holding certain constitutional rights associated with criminal
proceedings apply to juveniles charged as delinquents); Prince v.
Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(1944) (holding when acting to guard the general interest in a child's well
being, as parens patriae, the state may restrict the parent's control);
and Nelson, supra, VIII Land & Water L. Rev. at 238-39. Therefore,
statutory provisions and case authority pertaining to delinquency
proceedings may not be applicable to neglect proceedings. State In Interest
of C, 638 P.2d 165, 171 (Wyo. 1981). It is essential to observe the proper
procedural requirements to determine which provision is applicable to a given
situation.
[33]
When a child is placed in shelter care without a court order, as with
MFB, the provisions of Wyo. Stat. 14-6-209(c) govern:
The
child or in cases of neglect the parents, guardian or custodian shall be given
an opportunity to admit or deny the allegations in the petition. If the
allegations are admitted, the court shall make the appropriate adjudication and
may proceed immediately to a disposition of the case in accordance with the
provisions of W.S. 14-6-229. If denied, the court shall set a time not to exceed
sixty (60) days for an adjudicatory hearing or a transfer
hearing.
See
In Interest of AB, 839 P.2d 386, 389 (Wyo. 1992). The provisions of Wyo.
Stat. 14-6-226(b), which the father originally relied upon, are substantially
similar:
If
the allegations of the petition are denied, the court may, with consent of the
parties, proceed immediately to hear evidence on the petition or it may set
a later time not to exceed sixty (60) days for an adjudicatory or a transfer
hearing. Only competent, relevant and material evidence shall be admissible at
an adjudicatory hearing to determine the truth of the allegations in the
petition. If after an adjudicatory hearing the court finds that the allegations
in the petition are not established as required by this act, it shall dismiss
the petition and order the child released from any detention or shelter
care.
The
purpose of both provisions is to insure that prolonged pre-hearing detention of
the child does not occur. See In re Kerr, 333 Pa.Super. 67, 481 A.2d
1225, 1227 (1984) (holding the purpose of a similar Pennsylvania Juvenile Code
provision calling for adjudicatory hearing within ten days is to prevent lengthy
pre-hearing confinement).
[34]
The father contends that the juvenile court must hold a
final adjudication within sixty days of the time the allegations of the petition
are denied. From the failure to hold a timely hearing, the father determines
that the juvenile court loses subject matter jurisdiction. This argument is not
persuasive.
[35]
The father reads a command to hold an adjudicatory hearing into
the provisions of Wyo. Stat. 14-6-209(c) and 14-6-226(b) that is simply not
present. Both provisions, once the allegations of a petition are denied, permit
the juvenile court to proceed immediately or to "set" a time "not
to exceed sixty (60) days" for an adjudicatory hearing or a transfer hearing to
district court. Wyo. Stat. 14-6-209(c) and 14-6-226(b) (emphasis added). The
operative verb is "set." The legislature has called upon the juvenile court to
"set down" a cause for hearing which requires entering the title of the action
in the court's calendar. Black's Law Dictionary 1372 (6th ed. 1990). The plain
language used by the legislature does not require the juvenile court to hold an
adjudicatory hearing within the sixty-day period as the father
suggests.
[36]
The juvenile court has the authority to act with discretion in its
calendaring process. Under the Juvenile Court Act, "'adjudication' means a
finding by the court or the jury, incorporated in a decree, as to the truth of
the facts alleged in the petition[.]" Wyo. Stat. 14-6-201(a)(i). In permitting
jury trials when demanded, the legislature also made a definite statement
about the juvenile court's ability to schedule proceedings. "The court may, on
motion of any party or on its own motion, continue or defer any
hearing as the work of the court or justice requires." Wyo. Stat.
14-6-224(d) (emphasis added). The discretion granted juvenile courts in
scheduling is essential in light of the fact Wyoming does not have an exclusive
system of juvenile courts. The district court judges also serve as the juvenile
court judges. Wyo. Stat. 14-6-202(a). The provisions of Wyo. Stat.
14-6-224(d), therefore, must be read together with the provisions of Wyo. Stat.
14-6-209(c) and 14-6-226(b) to produce a harmonious result. Parker Land
and Cattle Co., 845 P.2d at 1042.
[37]
There is no finding or evidence in the record of when the father denied
the allegations contained in the petition. No transcript is of record from the
shelter care hearing and no documents from that proceeding indicate a denial was
made by the father. The fact the father stipulated to the custody arrangement is
not a sufficient basis to presume that the father either admitted or denied the
allegations of the petition. The request for the review hearing in October
of 1991 and the argument presented during that hearing cannot constitute a
denial, since the allegations of the petition were never specifically
addressed.
[38]
One point in the record in which we may presume a denial of the
allegations occurred is in January of 1992 when the father made a motion to the
juvenile court to set an adjudicatory hearing. The juvenile court set the
hearing for February 10, 1992, within the sixty-day period mandated by Wyo.
Stat. 14-6-209(c). That hearing had to be continued in the interests of
justice because of the failure of the father to request sufficient time for the
proceeding. Wyo. Stat. 14-6-224(d). The granting of a continuance is a matter
for the discretion of the trial court and its ruling will not be disturbed on
appeal without a clear abuse of that discretion. In Interest of AB, 839
P.2d at 390. We find no abuse of discretion in this
continuance.
[39]
Furthermore, even if the father denied the allegations of the petition at
the time of the shelter care hearing in January of 1991, or we presume a denial
at that time, the failure to set an adjudicatory hearing within sixty days would
not result in a loss of jurisdiction by the juvenile court. The language
used by the legislature in Wyo. Stat. 14-6-209(c) and 14-6-226(b) does not
inhibit the juvenile court's subject matter jurisdiction. The legislature
imposed no sanction for the failure of the juvenile court to set a time for a
hearing within sixty days. We hold that it would require an unequivocal
expression from the legislature for a violation of the statute's language to
result in a lack of subject matter jurisdiction. In re Kerr, 481 A.2d at
1227. We do not find such unequivocal language in Wyo. Stat. 14-6-209(c) and
14-6-226(b). Therefore, as a matter of law, the failure to set an adjudicatory
hearing within sixty days of the denial of allegations contained in a petition
invoking juvenile court jurisdiction does not result in a loss of that court's
subject matter jurisdiction. Additionally, the father's absence from the
jurisdiction for eighteen weeks following the shelter care hearing and his
failure to complete the first psychological evaluation made it impossible to set
a hearing within sixty days.
[40]
Other states that have addressed jurisdictional questions resulting
from delayed adjudicatory hearings in juvenile court have drawn similar
conclusions. In an application for extraordinary relief, following a neglect
proceeding, the Supreme Court of Ohio held that the juvenile court did not lose
jurisdiction by falling to conduct an adjudicatory hearing within that state's
ten-day requirement. Linger v. Weiss, 57 Ohio St.2d 97, 386 N.E.2d 1354,
1355-56, cert. denied, 444 U.S. 862, 62 L. Ed. 2d 83, 100 S. Ct. 128
(1979). Accord In re Kerr, 481 A.2d at 1227 (holding under Pennsylvania
law that failure to schedule an adjudicatory hearing within the ten-day
statutory limit does not result in loss of jurisdiction). In Linger, a
two-month old child was placed in foster care for almost three years before an
adjudicatory hearing was finally held despite the ten-day adjudicatory hearing
requirement. Linger, 386 N.E.2d at 1355 n.2.
[41]
In considering the requirement for an adjudicatory hearing in a New
Jersey delinquency action where the alleged delinquent's speedy trial rights
were implicated, the court determined that a requirement to schedule a
hearing within thirty days was a "calendaring device to constantly remind
juvenile court judges that detention cases must move expeditiously and with
priority." State In Interest of C.B., 173 N.J.Super. 424, 414 A.2d 572,
574, cert denied, 84 N.J. 482, 420 A.2d 1303 (1980). The court noted that
the applicable provision in New Jersey law failed to mandate a dismissal of
delinquency charges or even a release from detention for failure to commence a
timely hearing. Id.
[42]
In holding that the failure to set an adjudicatory hearing within sixty
days does not result in a loss of subject matter jurisdiction, we are cognizant
of the need for a proper remedy for the failure to set a timely hearing under
Wyo. Stat. 14-6-209(c) and 14-6-226(b). In this proceeding, after the
juvenile court denied the father's motion to dismiss, a Petition For Writ of
Certiorari was filed with this court. This court treated the matter as a
Petition for a Peremptory Writ of Mandamus, which was granted. After a motion by
the State to stay the preemptory writ of mandamus was granted, this court
denied a rehearing. As a result, an order was issued which stayed the effective
date of the preemptory writ of mandamus for twenty days to permit the juvenile
court to hold an adjudicatory hearing.
[43]
The proper remedy for a failure to set an adjudicatory hearing within the
time constraints of Wyo. Stat. 14-6-209(c) and 14-6-226(b) is a motion to the
juvenile court for a prompt hearing brought by the minor through the guardian ad
litem, Wyo. Stat. 14-6-216, or brought by the parents, guardians or custodian
named in the petition as parties to the proceeding, Wyo. Stat.
14-6-201(a)(xvii). See W.R.C.P. 7(b). If such motion is not acted upon in
a timely fashion, then a petition for a writ of habeas corpus may be filed in
this court seeking release of the minor. Wyo. Const. art. 5 3. See
Linger, 386 N.E.2d at 1356 and In re Kerr, 481 A.2d at
1227-28.
B. Admission of Evidence
[44]
Next, the father asserts that the juvenile court erred in permitting
evidence to be introduced at the adjudicatory hearing of events which occurred
after MFB was placed in State custody. Specifically, the father objects to
the relevancy of the diagnostic testimony of the counselor and the child
psychiatrist that MFB suffered from Post Traumatic Stress Disorder. We do not
find error in the admission of this testimony.
[45]
Rulings on the admissibility of evidence are subject to the discretion of
the court in which the proceeding is being heard and without an abuse of such
discretion, the ruling will not be disturbed on appeal. L.U. Sheep Co. v.
Board of County Com'rs of County of Hot Springs, 790 P.2d 663, 673 (Wyo.
1990). Rulings on relevancy are included within the discretionary sphere of the
trial court and will be upheld unless that discretion has been abused.
Id.
[46]
We reject the thesis that only evidence that existed at the time the
child was removed from the father's custody should be presented at the
adjudicatory hearing. See, e.g., In re A.M., 365 Pa.Super. 516, 530 A.2d
430, 435 (1987) (permitting hearsay testimony from foster mother regarding
statements children made while in custodial care) and 1 Homer H. Clark, Jr.,
The Law of Domestic Relations in the United States, 10.4 at 612 (2nd
ed. 1987) (discussing typical abuse case requiring evidence from an
examining physician or other medical expert that injury did not result from
accident which is countered by parental testimony that injury was accidental).
The Juvenile Court Act specifically recognizes that after jurisdiction is
acquired, the court may order examination of a child by medical personnel "to
aid in determining the physical and mental condition of the child." Wyo. Stat.
14-6-219(a).
[47]
During the questioning of the counselor and the child psychiatrist,
adequate foundation was laid that the diagnosis of the Post Traumatic Stress
Disorder resulted from trauma suffered while MFB was in the custody of the
father. The testimony provided the juvenile court with relevant evidence on
MFB's condition and its origin which supported a finding of neglect. W.R.E. 401.
See In re Stephen W., 221 Cal.App.3d 629, 271 Cal.Rptr. 319, 324 (1990)
(holding prima facie showing of parental inability to provide for minor's care
is made by competent professional evidence that injury has been
sustained which would ordinarily not be sustained without unreasonable or
neglectful action). The juvenile court, therefore, did not abuse its
discretion in permitting this testimony.
[48]
In addition, evidence introduced at the adjudicatory hearing from the
period when MFB was m the father's custody supported a finding of neglect. The
testimony of the paternal grandparents provided evidence of physical abuse. The
testimony of the maternal grandmother detailed the fact that MFB was suffering
from sleeplessness and other mental disorders which the father refused to permit
to be treated. While the father is correct that at the time of the filing of the
petition no diagnosis of these symptoms had been made by competent
professionals, the State is not required to wait until catastrophic injury
occurs to act. In re Interest of J.S., 2 NCA 500, 499 N.W.2d 89, 92
(Neb.App. 1993). Apart from the physical abuse, the failure or refusal to
provide necessary medical care is itself evidence of neglect which is sufficient
to support the allegations of the petition and a finding of neglect. Wyo. Stat.
14-6-201(a)(xvi)(A). See 1 Clark, supra, 10.3 at 591 (stating
that parent has both a right and a duty to provide psychiatric care for a child
in the same manner that a right and duty exists to provide medical or
surgical care).
C. Findings of Neglect
[49]
Finally, the father asserts that the juvenile court's order failed to
make a necessary finding that abuse or neglect had occurred. We hold that the
juvenile court's order is sufficient.
[50]
In Wyoming, a court is not required to state its findings, except in
general terms, unless one of the parties requests special findings before the
presentation of evidence. W.R.C.P. 52. See Hopper v. All Pet Animal Clinic,
Inc., P.2d (Wyo. 1993) (Nos. 92-254
& 92-255, decided 10/1/93). No request for specific findings is of record in
this proceeding. Without a request for findings under W.R.C.P. 52, this court
considers that the general finding by the juvenile court carries with it every
finding of fact which is supported by the record. In Interest of N.M.,
794 P.2d at 565; Deroche v. R.L. Manning Co., 737 P.2d 332, 335 (Wyo.
1987); Brug v. Case, 600 P.2d 710, 715 (Wyo. 1979). See Matter of
Welfare of C. Children, 348 N.W.2d 94, 97 (Minn.App. 1984) (holding that in
neglect proceedings, although findings were not specific, they were
sufficient for review when supplemented by the record).
[51]
The failure to make a specific finding of parental neglect was considered
when this court decided State In Interest of C, 638 P.2d at 172. The
parent contesting the finding of neglect in that case said the language of the
predecessor to Wyo. Stat. 14-6-226(c) required a specific finding of neglect.
In determining that the statutory command had been fulfilled, this court
referred to comments made from the bench and language from the juvenile court's
order which was "tantamount to a finding of neglect." State In Interest of
C, 638 P.2d at 172.
[52]
We are satisfied that the juvenile court's order and determinations made
from the bench during the adjudicatory hearing reflect a sufficient finding of
neglect as defined by Wyo. Stat. 14-6-201(a)(xvi). The order states a general
finding:
FURTHER,
THE COURT SPECIFICALLY FINDS the allegations of the petition after hearing and
takes jurisdiction over this matter[.]
In
comments from the bench during the ruling against the father's motion to
dismiss, the juvenile court determined that physical abuse and neglect had
occurred when the father slapped MFB in the presence of the paternal
grandparents. At the conclusion of the adjudicatory hearing and disposition
proceeding, the juvenile court found that MFB suffered from Post Traumatic
Stress Disorder which had been untreated until State intervention occurred.
Furthermore, the juvenile court found that the father suffered from clinical
disorders which required successful counseling prior to any attempt at
reunification of the family. These findings meet the requisite standard of
State In Interest of C, 638 P.2d at 172 to adjudge MFB to be neglected by
a preponderance of the evidence. Wyo. Stat. 14-6-225(a).
[53]
Once it is determined that a child is neglected, the juvenile court makes
a disposition as provided in Wyo. Stat. 14-6-229. We are satisfied that clear
and convincing evidence, including MFB's cognizable fear of harm from the
father, supports the finding that a return of MFB to the father's custody would
not be in the best interests of the child. Wyo. Stat. 14-6-229(a). Among the
permissible alternatives for placement of a neglected child is a transfer of
temporary legal custody to a state agency. Wyo. Stat. 14-6-229(b)(v). The
order in this proceeding transferred custody without a clear declaration that it
is temporary. Using our power to modify a judgment, In Interest of MKM,
792 P.2d at 1376, we remand to the juvenile court to issue an order conforming
with Wyo. Stat. 14-6-229(b)(v), stating that the Department of Family Services
is granted temporary legal custody of MFB.
D. The Role of the Guardian Ad
Litem
[54]
While not placed at issue by the parties, this court must direct some
attention to the role of the guardian ad litem in this proceeding. See In
Interest of AB, 839 P.2d at 390 (addressing issue not argued on appeal but
injected through correspondence contained in the record). Letters from both the
maternal and paternal grandparents of MFB are contained in the record which
object to the representation of the guardian ad litem and request the
appointment of a new guardian ad litem. Both letters were forwarded by the
juvenile court to the guardian ad litem "for appropriate action." However, no
record exists of any subsequent action by the guardian ad litem regarding these
objections.
[55]
The challenged guardian ad litem appeared at the adjudicatory hearing and
made some recommendations. However, she asked no questions of any witnesses and
offered no briefing on behalf of MFB. In addition, the guardian ad litem did not
participate in this appeal on behalf of MFB's interests. Of particular interest,
given the jurisdictional and procedural questions in this appeal, is that at no
time did the guardian ad litem make a motion to the juvenile court to move these
proceedings forward.
[56]
Despite these concerns, we cannot say that MFB's interests were unfairly
prejudiced by the continued representation or diligence of the guardian ad
litem. However, we would remind all members of the bar serving in this capacity
that the guardian ad litem fulfills an essential duty. In appointing a guardian
ad litem, the juvenile court has determined that either the child has no parent,
guardian or custodian appearing in its behalf or that the interests of the
parent, guardian or custodian are adverse to the best interests of the child.
Wyo. Stat. 14-6-216. Therefore, the guardian ad litem must act with reasonable
diligence in the role of an advocate for the child, Wyo. R. Prof. Cond. 1.3,
and participate as necessary in all phases of the process, including
subsequent appeals, to insure the rights of the client are protected. See
Wyo. R. Prof. Cond. 1.14.
IV. CONCLUSION
[57]
The order of the juvenile court is affirmed as modified and the
proceeding is remanded for additional action consistent with the juvenile
court's continuing jurisdiction in the best interests of the child.
Citationizer Summary of Documents Citing This Document
Cite |
Name |
Level |
Wyoming Supreme Court Cases |
| Cite | Name | Level |
| 1995 WY 22, 890 P.2d 1100, | Rock Springs Ford Nissan v. State Bd. of Equalization, Wyoming Dept. of Revenue | Cited |
| 1995 WY 155, 903 P.2d 530, | Cotton v. Brow | Cited |
| 1997 WY 119, 946 P.2d 417, | Ahearn v. Anderson-Bishop Partnership | Cited |
| 1998 WY 16, 953 P.2d 145, | Clark v. Alexander | Cited |
| 2000 WY 92, 2 P.3d 558, | GARNETT v. HETTGAR | Cited |
| 2003 WY 43, 65 P.3d 1241, | NYBERG v. STATE OF WYOMING MILITARY DEPT. | Cited |
| 2003 WY 155, 79 P.3d 997, | DH v. WYOMING DEPARTMENT OF FAMILY SERVICES | Discussed at Length |
| 2004 WY 82, 93 P.3d 982, | IN THE INTEREST OF HP AND NP | Cited |
| 2007 WY 104, 161 P.3d 509, | BARBARA REYNOLDS and LAURRIE REYNOLDS V. JOHN A. MILATZO and DIANA R. MILATZO | Cited |
Citationizer: Table of Authority
Cite |
Name |
Level |
| 321 U.S. 158, | PRINCE v. COM. OF MASS. | Cited |
| 387 U.S. 1, | IN RE GAULT, 387 U.S. 1 (1967) | Cited |
Wyoming Supreme Court Cases |
| Cite | Name | Level |
| 1946 WY 3, 166 P.2d 466, 62 Wyo. 254, | Begley v. Nall | Cited |
| 1979 WY 117, 600 P.2d 710, | Brug v. Case | Cited |
| 1980 WY 28, 608 P.2d 1278, | McGuire v. McGuire | Cited |
| 1981 WY 137, 638 P.2d 165, | State in Interest of C | Cited |
| 1985 WY 64, 699 P.2d 830, | IN THE INTEREST OF CH, A MINOR. PP v. CAMPBELL COUNTY D-PASS | Cited |
| 1987 WY 64, 737 P.2d 332, | Deroche v. R.L. Manning Co. | Cited |
| 1988 WY 87, 756 P.2d 1338, | Nicholaus v. Nicholaus | Cited |
| 1989 WY 167, 778 P.2d 1106, | IN THE INTEREST OF WM, A MINOR CHILD. JW v. STATE OF WYOMING, EX REL. Laramie Country Department of Public Assistance and Social Servides | Cited |
| 1990 WY 39, 790 P.2d 663, | L.U. Sheep Co. v. Board of County Com'rs of County of Hot Springs | Cited |
| 1990 WY 58, 792 P.2d 1369, | In Interest of MKM | Cited |
| 1990 WY 68, 794 P.2d 564, | In Interest of N.M. | Cited |
| 1992 WY 134, 839 P.2d 386, | In Interest of AB | Cited |
| 1993 WY 10, 845 P.2d 1040, | Parker Land and Cattle Co. v. Wyoming Game and Fish Com'n | Cited |
|