In Interest of AB
Annotate this Case
In Interest of AB
1992 WY 134
839 P.2d 386
Case Number: C-91-1
Decided: 10/14/1992
Supreme Court of Wyoming
In the Interest of AB, a Minor. PMB, Appellant (Respondent),
v.
STATE
of Wyoming, GOSHEN COUNTY DEPARTMENT of SOCIAL
SERVICES, Appellee (Petitioner).
Appeal from District Court, GoshenCounty, John Langdon,
J.
Jerry M.
Smith, Ann T. Schnelzer, Sigler & Smith Law Offices, Torrington, for appellant.
Joseph
B. Meyer, Atty. Gen., Michael L. Hubbard, Deputy Atty. Gen., and Richard E.
Dixon, Sr. Asst. Atty. Gen., for
appellee.
Keith
G. Kautz, Sawyer, Warren & Kautz, Torrington, guardian ad litem for AB.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT* and GOLDEN,
JJ.
* Chief Justice at time of
conference
THOMAS, Justice.
[¶1.] The primary issue
presented in this appeal is whether an order by a district court commissioner,
made following a shelter care hearing conducted after the filing of a petition
in juvenile court alleging neglect of a child, was a final disposition of the
issues and entitled to recognition under the doctrine of res judicata. The
proceeding was instituted and conducted in juvenile court pursuant to the
provisions of Wyo. Stat. §§ 14-6-201 to -243 (1986). In addition, collateral
issues are raised with respect to the failure to appoint counsel to represent
the mother and a guardian ad litem after the filing of a second petition in the
proceeding; a search warrant issued in connection with the matter subsequent to
the order by the court commissioner; the denial of a motion for continuance by
the mother; and the sufficiency of the evidence to sustain the finding of
neglect by the court. The trial court ruled that the proceedings were not
controlled by the doctrine of res judicata; it was unnecessary to have
additional appointments of counsel and the guardian ad litem; the continuance
sought should be denied; and the evidence established
neglect.
[¶2.] We hold the order
entered by the court commissioner, even if it were properly before us, would not
be a final order invoking the concepts of res judicata or collateral estoppel.
We further hold no error occurred in the proceeding because of the failure to
make a second appointment of counsel and a guardian ad litem; by virtue of the
search warrant, since no evidence obtained was used at the hearing; no abuse of
discretion is found in denying the motion for continuance; and the evidence
starkly justifies the decision of the juvenile court. The order of the juvenile
court is affirmed.
[¶3.] In the brief of the
mother, as appellant in this case, the issues are stated in this
way:
I. The
Court Order entered on April 17, 1990, in Case No. PJ2-155 operates as a bar to
the use of all evidence and testimony of alleged child neglect that occurred
prior to April 17, 1990, in subsequent cases.
II. The
document entitled Petition II is invalid for the reason that it does not conform
to W.S. 14-6-212 and it is based on res judicata evidence and
issues.
III.
The document entitled Petition II is invalid for the reason that it should have
been filed to open a new case and not a continuation of Case No. PJ2-155, a
fully adjudicated case.
IV. The
Court's Order of January 8, 1991, is invalid for the reason that Petition II
requires the appointment of an Attorney and Guardian Ad Litem for the minor
child and the appointment of an Attorney for the mother, and no written orders
were entered appointing such attorneys and/or guardian ad
litem.
V. The
Mother's motion to suppress evidence obtained prior to April 17, 1990, should
have been granted, and the state should have been estopped from introducing such
evidence on the basis of res judicata.
VI. The
Search Warrant dated January 2, 1991, was defective for the reason it was
supported by res judicata facts and events and no application was filed for the
search warrant as required by W.S. 14-6-218.
VII.
The Mother's Motion for Continuance was improperly denied.
VIII.
The evidence does not sustain the Court's finding that the minor child, A.B.,
was neglected as defined by W.S. 14-6-201(a)(xvi).
[¶4.] In the Brief of
Appellee, the State of Wyoming, this statement of the issues is
offered:
I. May
res judicata or collateral estoppel bar further proceedings in the absence of
proof that a prior judgment exists?
II.
Given her fundamental right to care for and associate with her daughter, was
appellant afforded adequate notice and a meaningful opportunity to be
heard?
III.
Was the neglect of AB by appellant demonstrated by a preponderance of evidence
in the court below?
IV. May
this court move to effect the most expeditious reunification of appellant and
her daughter consistent with AB's health and safety?
[¶5.] A Brief of Guardian Ad
Litem/Minor Child also was filed in which this statement of the issues is
articulated:
I. Did
the shelter care decision of April 17, 1990, bar further proceedings based on
evidence which existed on that date?
II.
Were procedures regarding notice and counsel properly followed, and was
appellant afforded procedural due process?
A. Was
a new docket number required?
B. Were
appropriate counsel appointed?
C. Did
appellant receive proper notice of the allegations?
D. Was
evidence improperly obtained?
E.
Should a continuance have been granted to appellant?
III.
Was neglect of the minor demonstrated by a preponderance of the
evidence?
[¶6.] The essential facts can
be briefly stated. In September of 1989, the Goshen County Division of Public
Assistance and Social Services (DPASS) first contacted the mother, PB, and her
infant daughter, AB. A voluntary case plan meeting was held the following month
involving DPASS and the mother, and the product of that meeting was the
assignment of a homemaker to assist the mother in improving the home environment
and to monitor the feeding of the baby. As a product of that contact, DPASS
reported a house cluttered with clothing and junk. It found bags of pet food in
the hallway and dirty dishes in the kitchen. The corrective action consisted of
a list of chores, including vacuuming three times a week; sweeping the kitchen
floor five times a week; scrubbing the kitchen floor three times a week; washing
the daily dishes; taking out the garbage daily; and scrubbing the bathroom once
a week. During the course of this rehabilitative effort, the baby was fed and
bathed regularly by the homemaker, who also assisted in cleaning the baby's
bedroom and her bed linen.
[¶7.] By April of 1990, DPASS
was not satisfied with the progress that PB was making in the care of her home
and child. The baby was taken into protective custody on April 13, upon the
recommendation of DPASS. On that occasion, photographs and a videotape were
taken of the interior and exterior of the residence. A description of the
conditions observed at that time with respect to the home
was:
Dirty,
to the point that it made me wonder how somebody could live in such a residence.
Dirty dishes, dog feces on the floor, dirty linen, rotting food in containers
out in the open within reach of small children. If I had to say one word about
it, I would say it was horrible.
[¶8.] As indicated, the
shelter care hearing provided for in § 14-6-209 was conducted by a district
court commissioner. The record does not encompass an order of the district court
commissioner, but there seems to be no serious dispute that the commissioner
authorized shelter care for the child for only fifteen days or until the mother
had cleaned up the house. It appears that was accomplished in several days, and
the child then was returned to the home environment. The improvement in the
living conditions was of rather short duration, and then the previous conditions
again became manifest. The mother no longer had animals in the house, but she
failed to properly clean the house, remove garbage, or feed the child. By late
1990, the living conditions for the child had become worse than before. In the
meantime, the by then Department of Family Services (DFS) had provided over 250
hours of homemaker assistance, but the mother simply would not maintain a clean
and safe environment for the child.
[¶9.] During this time, the
DFS became concerned about the physical development of the child and requested
an evaluation from several expert sources. Those evaluations resulted in
conclusions that there was cause for concern over the child's physical
development or failure to thrive. At that juncture, a second petition was filed
in the case that realleged neglect, and this neglect was still predicated upon
unsanitary and unsafe living conditions. There was an additional allegation of
failure to provide adequate nutrition.
[¶10.] After consultation with the previously
appointed counsel for the mother, a hearing date of January 4, 1991 was
established. At the conclusion of a day-long hearing, the trial court found the
child to be neglected and ordered her returned to the custody of the State for
foster placement until further order of the court. This appeal is prosecuted
from that decree.
[¶11.] We will not pause long with respect to
the set of issues asserted by the mother relating to the finality of the order
of the commissioner and the effects of res judicata or collateral estoppel that
flow from such an order. That contention is answered definitively in § 14-6-210.
The pertinent statutory provisions are:
(a) In the absence or
incapacity of the judge, the detention or shelter care hearing shall be
conducted by a district court commissioner of the county in which the child is
being detained or held in shelter care.
(b) The commissioner
may make any order concerning the child's release, continued detention or
shelter care as authorized to the judge under W.S. 14-6-209. If the child is not
released after the hearing, the commissioner shall promptly file with the court
a complete written resume of the evidence adduced at the hearing and his reasons
for not releasing the child. The commissioner may also issue subpoenas or search
warrants, order physical or medical examinations and authorize emergency
medical, surgical or dental treatment all as provided in W.S. 14-6-217 through
14-6-220. The commissioner shall not
make final orders of adjudication or disposition.
Wyo.
Stat. § 14-6-210 (1986) (emphasis added).
[¶12.] The record does not disclose compliance
with § 14-6-210(b), but that may be of no significant moment since the child was
returned to the mother about three days after the shelter care hearing. It is
clear from the statute that the action of the commissioner is simply an
interlocutory phase of the proceeding.
[¶13.] Absent any further action by one of the
parties, the matter simply remained pending on the docket of the juvenile court.
The second petition filed in the proceeding did not institute another juvenile
case. Despite a prayer in the second petition for the appointment of an attorney
for the mother and a guardian ad litem for the child, the second petition did
not require the appointment of a different attorney or guardian ad litem. It is
clear that the juvenile court ruled that the existing appointments remained in
effect. There was no error in this regard.
[¶14.] With respect to the contention that a
search warrant was unlawfully issued, we do not address that issue in this case.
The record demonstrates plainly that nothing was introduced at the hearing which
was the product of the search warrant, the issuance of which is claimed to be
unlawful. Consequently, insofar as these proceedings are concerned, no injury
could have occurred with respect to the rights of the mother, and we decline to
consider the matter as an academic issue.
[¶15.] Our evaluation of the record persuades us
there was no abuse of discretion in the failure of the trial court to grant a
continuance. We have held a number of times that granting a continuance is a
matter of discretion with the trial court, and its ruling will not be disturbed
on appeal in the absence of a clear abuse of that discretion. E.g., Carlson v.
BMW Industrial Service, Inc., 744 P.2d 1383 (Wyo. 1987); Tomash v. Evans, 704 P.2d 1296 (Wyo. 1985); Craver v. Craver, 601 P.2d 999 (Wyo. 1979). Considering
the fact that the date of the hearing was arranged with counsel in this
instance, and there was no significant adjustment to the issues presented by the
testimony of a physician who examined the child the day before, we perceive no
abuse of discretion on the part of the trial judge. Counsel for the mother
skillfully and appropriately cross-examined the physician. In addition, there
was counter evidence presented on the mother's behalf.
[¶16.] The final issue, and perhaps the only one
that has moment in this proceeding, is that of the sufficiency of the evidence
to sustain the order of the district court. We unequivocally agree that the
evidence was sufficient, distasteful as it was.
[¶17.] Obviously, the proceedings pursuant to
the child protection statutes are a step in what ultimately may be the
termination of parental rights. Consequently, cases arising in the context of
the determination of parental neglect are relevant in resolving this case,
although it must be recognized that when termination of parental rights is
involved, the evidence is to be strictly scrutinized. That standard does not
pertain in connection with the transfer of temporary legal custody pursuant to
the child protection statutes. Wyo. Stat. § 14-6-225(a) (1986). In TR v.
Washakie County Department of Public Assistance and Social Services, 736 P.2d 712 (Wyo.
1987), this court found the evidence sufficient to establish neglect in the
context of terminating parental rights. In that case, we accounted for an
earlier case in which we held that evidence of isolated instances of unclean
premises, dirty dishes, and related matters, is not sufficient grounds for
termination. DS v. Department of Public Assistance and Social Services, 607 P.2d 911, 922 (Wyo.
1980). We perceive that the standards articulated in DS and the requirements
found in TR were established by a preponderance of the evidence. In light of our
earlier cases, we are satisfied that the quantum of evidence present here was
sufficient to sustain the burden of proof of the DFS to justify the decree
entered by the court. See Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), on remand, 89 A.D.2d 738, 453 N.Y.S.2d 942 (3
Dept. 1982); 2 Am.Jur.2d Proof of Facts 365 §§ 32-34
(1974).
[¶18.] One final matter merits attention. While
not argued by the parties in their appeal, through correspondence, the issue of
payment for a transcript for purposes of the record on appeal was injected into
this matter. In our view, that issue is resolved by Wyo. Stat. § 14-6-235(b)
(1986) which provides, in pertinent part:
The following costs
and expenses, when approved and certified by the court to the county treasurer,
shall be a charge upon the funds of the county where the proceedings are held
and shall be paid by the board of county commissioners of that
county:
* * * *
* *
(vii)
Any other costs of the proceedings which would be assessable as costs in the
district court.
In our
view, the costs of the transcript would be assessable as costs in the district
court and are sufficiently like the other items enumerated in § 14-6-235 that
the county should be required to pay the costs of the
transcript.
[¶19.] Also, a motion has been filed for
temporary remand to set attorney fees for counsel for the mother. That matter
may be dealt with adequately by the juvenile court upon the mandate in this
case. No order addressing that motion will be entered.
[¶20.] The decree of the juvenile court is
affirmed.
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