IN THE INTEREST OF: MA, KA and GA, minor children
S-21-0151
IN THE SUPREME COURT, STATE OF WYOMING
February 28, 2022
2022 WY 29
OCTOBER TERM, A.D. 2021
JR,
Appellant
(Respondent),
v.
THE STATE OF WYOMING,
Appellee
(Petitioner).
Appeal from the District Court of Weston County
The Honorable John R. Perry, Judge
Representing Appellant:
DaNece Day of Day Law, LLC Gillette, Wyoming.
Representing Appellee:
Bridgеt L. Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney
General; Allison E. Connell, Assistant Attorney General. Argument by Ms.
Connell.
Guardian ad Litem:
Joseph R. Belcher, Director; Kim Skoutary Johnson, Wyoming Office of the
Guardian ad Litem. Appearance by Ms. Tamara Candelaria.
Before FOX, C.J., and DAVIS*, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
*Justice Davis retired from judicial office effective January 16, 2022, and, pursuant to Article 5, § 5 of
the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2021), he was reassigned to
act on this matter on January 18, 2022.
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.
[¶1] JR (Mother), who lives out of state and has not been adjudicated abusive or
neglectful, appeals the juvenile court’s order changing thе permanency plan for her and her
three children from family reunification to termination of parental rights and adoption.
Mother asserts the court abused its discretion when it determined the Wyoming Department
of Family Services had made reasonable efforts to reunify her with the children. Because
the record, viewed in the light most favorable to the State, reflects that the Department
failed to prove by a preponderance of the evidence that it made reasonable efforts, we
reverse the court’s order changing the permanency plan and remand with instructions to
the court.
ISSUE
[¶2] The issue is:1
Did the juvenile court abuse its discretion when it determined
the Department had made reasonable efforts to reunify Mother
with the children?
FACTS
Background
[¶3] Mother shares three children—MA,2 KA, and GA—with MA (Father). The family
had primarily lived in Upton, Wyoming, but, duе to Father’s mental illness and domestic
abuse, Mother and the children moved back and forth between Upton and Sturgis, South
Dakota in the years leading up to these proceedings. Just prior to the proceedings, Mother
was living in South Dakota and the children were in Upton with Father.3
got angry because his mother (DA) would not give him beer money. Despite frigid
temperatures, Father turned off the electricity in the home, sent MA to get money from
DA, and threatened to keep the electricity off until he returned. DA’s friend contacted law
enforcement, who investigated the report and took the children into protective custody on
February 5, 2019.
Proceedings
[¶5] On February 7, the State filed a neglect petition against Mother and Father and the
court held an initial and shelter care hearing. In addition to the events described above, the
petition alleged:
[MA] was hit by [F]ather and bruised on left arm; when angry,
[Father] also pours beer onto one of the [children’s] bed; [the
children] report feeling unsafe at home with parents; [Father’s]
behavior is part of a pattern related to some apparent mental
illness, which is a threat to [the children] and to himself[.]
Mother and Father each denied the neglect allegations, and Father expressed a desire to
give up custody of the children to Mother. The GAL, appointed to represent the children,
recommended they be placed with Father’s parents “for the time being.” Though Mother
wanted the children to go home with her to South Dakota, she reluctаntly agreed to the
placement. The court expressed hesitation to let Mother take the children only because she
lived out of state and it wanted “a little more information.” The court placed the children
in the legal custody of the Department, and in foster care with Father’s parents. It also
ordered that a multidisciplinary team (MDT) be appointed.
[¶6] Under
hearing within 60 days of the shelter care hearing, and under no circumstances more than
90 days after the filing of the petition. In early April, the State requested to go beyond the
60-day window, because the parties were “working together to try to negotiate a stipulation
as to adjudication[.]” Then, on June 27, the court granted the State’s request to amend the
neglect petition and treat it as newly filed. The new petition incorporated the оriginal
allegations, and provided that Mother “shall no longer be a target of the [p]etition, but shall
remain a party as the biological mother of the allegedly neglected children.” The court
then held another initial and shelter care hearing, this time on the new petition, and
continued the children’s placement with Father’s parents.
[¶7] On September 30, the court accepted the parties’ stipulated Rule 7 agreement and
finally held the adjudicatory hearing.4 As per the stipulation, the court adjudicated the
children “neglected” as defined by
in that “[F]ather has failed or refused to provide adequate care necessary for
[their] well-being[.]” The court ordered the Department’s caseworker to provide a
predisposition report. Its order also stated, in relevant part, that Mother and Father shall:
cooperate with the Department and the GAL, comply with their case plans, maintain
teleрhone service or the equivalent, participate in MDT meetings, have visitation with the
children, obtain substance abuse evaluations, attend counseling, maintain clean and
suitable homes, and submit to random searches and drug testing at the Department’s
request.
[¶8] The caseworker filed her predisposition report on November 25, 2019. She noted
that she could not reach Mother “for purposes of completing this report.” The report
identified concerns about the children being neglected if Mother did not address her
“stability and substance abuse issues” and recommended that Mother complete a substance
reunification with concurrent planning for adoption or guardianship with Father’s parents.
[¶9] The court held a disposition hearing on the heels of the first MDT meeting that same
month. Following the hearing, the court found that the Department had made reasonable
efforts to reunify the children with Mother, and that it was in the children’s best interests
to continue residing with Father’s parents. The court adopted the MDT’s recommendations
and, in addition to the requirements imposed on Mother in its adjudication order, it further
ordered Mother to complete a parenting class, show consistency with appointments and
visitation, obtain a counseling needs assessment, and participate in family counseling if
recommended.
Reunification Efforts
[¶10] Following the initial and shelter care hearing in February, the Department allowed
Mother as much visitation as she could make at Father’s parents’ house in Upton. In
September, seven months after the children had beеn taken into custody, the Department
provided Mother a case plan with a goal of “family reunification”. By late October, Mother
had submitted to two random urinalysis tests, and one had come back positive for
methamphetamine.
[¶11] In November, after Mother expressed to the caseworker that visits at Father’s
parents’ house were uncomfortable given her history of abuse by Father, her visitation
changed to supervised visits every Friday at noon at the Department’s office in Sundance,
Wyoming. Mother was required to travel to Wyoming and submit to urinalysis tests prior
to these visits. As noted above, the MDT had its first meeting that same month, see supra
¶ 9, where the caseworker explained that this case was “a weird situation; the kids have
been in custody since February and we need to movе forward from here.”
[¶12] The MDT met again in February 2020. Mother stated she was attending a parenting
class, looking for a counselor, and had not yet scheduled a substance abuse evaluation. She
complained to the MDT that she was not receiving any information on the children and
said she wanted to know everything. The caseworker expressed concern that Mother had
only made it to two Friday visits with the children since they began in November—she
noted that not all of the missed visits were Mother’s fault but encouraged Mother to make
“it a priority to make it to visits.” Mother had provided at least one more urinalysis test,
which came back clean. The MDT set a deadline for Mother to complete a counseling
needs assessment and a substance abuse evaluation by February 29. On February 13, the
caseworker emailed Mother a list of providers in Mother’s area.
[¶13] The COVID-19 pandemic arose in March. Due to restrictions on interstate travel,
Mother could not have in-person visits for two or three months. During that time, Mother’s
visitation switched to phone calls and video chats.
[¶14] Mother completed a counseling services intake and began counseling at Behavioral
Management Systems in April. Her counselor found that she had issues with anxiety,
coping skills, mood instability, and domestic violence trauma. Mother was diagnosed with
mild depression and PTSD. The counselor recommended that Mother participate in
individual therapy. She put together an “action plan” for Mother and referred her to the
Artemis House for additional support. When the COVID-19 travel restrictions werе lifted
sometime in May or June, the caseworker told Mother they could be flexible regarding
visitation and “left the ball in [Mother’s] court”—no visitation schedule in
South Dakota was ever reestablished. Mother continued having calls with the children.
[¶15] At the June MDT meeting, the caseworker stressed that they needed to see Mother’s
goals met. Specifically, she said Mother needed to get a substance abuse evaluation, finish
her parenting class, continue with counseling, show consistency with visitation, and
arrange for family counseling. The caseworker also told the team that Mother had not
submitted to a urinalysis in several months because the caseworker had not seen her. The
GAL and the caseworker strongly encouraged Mother to get family counseling set up in
South Dakota to help ease the transition when the children returned to living with her. The
caseworker said the Department may be able to help transport the children but she needed
to see consistent visitation from Mother. Mother stated that though she still had not seen
the children, she had been having regular phone and video contact with them. She shared
that she was in counseling and was working on getting the children set up for counseling.
She had one more session left in her parenting class and had a substance abuse evaluation
scheduled. Mother asked whether the children were in counseling and when the
caseworker replied that they were, Mother expressed frustration again that no one shared
information with her regarding the children.
[¶16] Mother completed her substance abuse еvaluation in July. She told the evaluator
that she had not consumed alcohol in over five years and denied using any drugs. The
evaluator had “[n]o recommendations” because Mother “did not meet [the] criteria for
alcohol or drug use disorder.”
[¶17] At the August MDT meeting, Mother reported she was still attending counseling
and had completed her substance abuse evaluation. The caseworker confirmed she had
received the evaluation, but said she was unhappy with it because the caseworker was not
able to provide the evaluator with collateral information regarding the case. Mother had
still not had any in-person visits with the children, but said she spoke with them almost
daily. She claimed visitation was hard to arrange due to everyone’s schedules. The MDT
expressed concern that Mother had still not arranged for family counseling, and Mother
responded she was waiting on insurance paperwork to see if her South Dakota provider
would accept the children’s Wyoming Medicaid. In the meantime, Mother felt that they
could begin counseling in Wyoming.
[¶18] DA shared her belief that Mother was not speaking with the children as often as she
claimed. DA also mentioned that MA was having some medical issues and Mother asked
why she was not notified about this. Mother again expressed frustration that no one cared
to keep her updated on the children. DA admitted that she had stopped trying to
communicate with Mother about six months into the case. Father shared that he had been
visiting the children several times a week at his parent’s house. When Mother expressed
she felt that was unfair, the caseworker responded that Mother “chose to move away.”
[¶19] The county attorney expressed concern that Mother seemed to be “putting the cart
before the horse” in terms of reunifying with the children. Mother responded that she had
done everything that was asked of her and she did not know what else she could do. The
county attorney replied that her concern was more about how long it took Mother to
accomplish tasks. Mother shared that she was recently diagnosed with PTSD, and she
recognized that that had slowed down the process but stated she would do anything to
reunify with the children.
[¶20] At the close of this meeting, the team was split as to whether to change the
permanency plan to adoption. The caseworker and the GAL recommended the change with
a concurrent plan of reunification so that they could continue to “work for family
reunification[.]” Mother, Father, and their attorneys did not agree with the change. The
county attorney was “on the fence” and requested an evidentiary permanency hearing.
[¶21] Mother stopped attending counseling in September. According to her discharge
report, she “left against professional advice” and her progress was “poor.” Mother missed
the November 2020 and January 2021 MDT
caseworker shared that Mother had arranged but then missed and/or canceled two family
counseling appointments in Wyoming. At that point, Mother had not seen the children in
person since November 2019. By January, the caseworker had only heard from Mother
once since thе November meeting. At the close of both meetings, the caseworker, the
GAL, and the county attorney supported a permanency plan of adoption and recommended
that the Department be relieved from making further reunification efforts.
Permanency Hearing
[¶22] The juvenile court held a permanency hearing on January 13, 2021.6 The court took
“judicial notice of the juvenile file and all the documents contained therein” at the start of
the hearing. The children testified first. GA and KA expressed a desire to live with
Father’s parents, and GA felt that Mother did not make an effort to see them. MA testified
he thought it would be best if they could live with Mother, but he wished she would try
harder to reunify with them. Mother and the caseworker each testified at length. We
discuss their testimony in detail as relevant to our discussion.
[¶23] At the close of the hearing, Mother argued that the Department failed to prove it had
made reasonable efforts to reunify her with the children. The Department argued that
Mother failed to follow through with her requirements, and it relied heavily on the fact that
Mother had not seen the children in person in over a year. The GAL agreed with the
Department, arguing that Mother’s biggest issue was “inconsistency.” The court ruled
from the bench that a change in the permanency plan was warranted, but reserved ruling
on whether it should be a concurrent plan that required the Department to continue to make
reasonable efforts toward reunification.
[¶24] The court’s order then found that the Department had made reasonable efforts and
no additional efforts were required. The court concluded it was in thе children’s best
interests to change the permanency plan “from reunification to termination of parental
rights for both parents and adoption.” Mother appealed.
STANDARD OF REVIEW
[¶25] To change a permanency plan “from family reunification to adoption, a juvenile
court must find that [the Department] made reasonable efforts to achieve reunification
without success and that reunification is no longer in the children’s best interest.” Interest of RR, 2021 WY 85, ¶ 97, 492 P.3d 246, 270 (Wyo. 2021) (citing Interest of SW, 2021 WY
81, ¶ 17, 491 P.3d 264, 269 (Wyo. 2021)). We review the court’s reasonable efforts
determination for abuse of discretion. Id. ¶ 98, 492 P.3d at 270–71 (citing Interest of JW, 2018 WY 22, ¶ 20, 411 P.3d 422, 426 (Wyo. 2018)).
[¶26] The Department had the burden at the permanency hearing to prove that it made
reasonable reunification efforts. See Interest of AM, 2021 WY 119, ¶ 15, 497 P.3d 914,
920 (Wyo. 2021) (the Department must “demonstrate to the juvenile court that it made
reasonable efforts to reunify the family but was unsuccessful” (quoting Interest of VS, 2018
WY 119, ¶ 38, 429 P.3d 14, 25 (Wyo. 2018)); JW, ¶ 19, 411 P.3d at 426). On appeal,
we must look at whether the court’s determination that the Department met its burden was
reasonable and supported by a preponderance of the еvidence. RR, ¶ 98, 492 P.3d at 270–
71 (citing JW, ¶ 20, 411 P.3d at 426). “A ‘preponderance of the evidence’ is defined as
‘proof which leads the trier of fact to find that the existence of the contested fact is more
probable than its non-existence.’” J.J.F. v. State, 2006 WY 41, ¶ 9, 132 P.3d 170, 174
(Wyo. 2006) (citation omitted).
[¶27]
In analyzing the sufficiency of [the] evidence, we defer to the
juvenile court’s judgment, examining all evidence in the light
most favorable to the State and resolving all evidentiary
conflicts in its favor.We assume all of its evidence is true and
disregard any contrary proof adduced by the parent challenging
the juvenile court’s decision.
RR, ¶ 98, 492 P.3d at 271 (quoting VS, ¶ 38, 429 P.3d at 25). We cannot affirm a court’s
ruling changing the permanency plan when the record, reviewed under this standard,
reflects that the Department failed its burden.
DISCUSSION
[¶28] “The liberty of a parent to the care, custody and control of [her] child is a
fundamental right that resides first in the parent.”
(LexisNexis 2021). “[A] parent’s right to raise his or her children is an essential and basic
civil right.” Interest of FM, 2007 WY 128, ¶ 9, 163 P.3d 844, 847 (Wyo. 2007) (citing
Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212–13, 31 L.Ed.2d 551 (1972)).
This right is implicated in decisions leading up to the termination of parental rights. See
Interest of: AA, 2021 WY 18, ¶ 12, 479 P.3d 1252, 1257 (Wyo. 2021) (halting reunification
efforts “affects a parent’s substantial rights”).
[¶29] In abuse and neglect cases, the Department is statutorily required to “make
reasonable efforts to ‘preserve and reunify the family[.]’” SW, ¶ 19, 491 P.3d at 270
(quoting
reasonable efforts to “eliminate the need to remove the child[ren] from the home, or to
make it possible for the child[ren] to safely return” home. AM, ¶ 15, 497 P.3d at 920 (citing
must “have been accessible, available and appropriate.” SW, ¶ 20, 491 P.3d at 270 (quoting
[¶30] The Department’s efforts must also be tailored to the distinct circumstances of each
case. See id. (“[T]he Department is obligated to make reasonable efforts suitable to the
unique situation of the family involved.” (quoting Matter of BAD, 2019 WY 83, ¶ 37, 446
P.3d 222, 232 (Wyo. 2019) (J. Fox, concurring))); see also In re HP, 2004 WY 82, ¶ 26,
93 P.3d 982, 990 (Wyo. 2004) (discussing a parent’s tailored case plans);
§ 14-3-204(a)(iv)
[the] problems that [led] to or caused the child abuse or neglect”). Thus, to demonstrate
that its efforts were reasonable, the Department must make clear the reasons that
necessitated the out of home placement in the first place, and then show how its efforts
were directed at remedying those reasons. See also In re M.F., 243 Cal.Rptr.3d 510, 518
(Cal. Ct. App. 2019) (“To support a finding that reasonable services were offered or
provided to the parent, the record should show that the supervising agency identified the
problems leading to the loss of custody [and] offered serviсes designed to remedy those
problems[.]” (citations omitted)); Matter of J.D.R., 493 P.3d 567, 571 (Or. Ct. App. 2021)
(“[R]easonable efforts are ‘efforts that focus on ameliorating the adjudicated bases for
jurisdiction, and that give parents a reasonable opportunity to demonstrate their ability to
adjust their conduct and become minimally adequate parents.’” (internal quotes and
citation omitted); In re J.M., 193 A.3d 773, 783 (D.C. 2018) (“[T]he state’s services ‘must
adequately pertain to the impediment to reunification[.]’” (citation omitted)); Matter of
Welfare of H.K., 455 N.W.2d 529, 532 (Minn. Ct. App. 1990) (Minnesota statutes require
that reasonable efforts must be made “to correct the conditions that led to the dependency
determination.”).
[¶31] The juvenile court, pursuant to
review hearings to assess, among other things, whether “progress has been made toward
alleviating or mitigating the causes necessitating placement outside the home[.]” The court
must also assess the Department’s efforts at permanency hearings, аnd it may order the
Department to make additional efforts as needed.
Accordingly, the juvenile court must evaluate the Department’s efforts on a “case-by-case
basis, taking into consideration the totality of the circumstances.” 1 Children & the Law:
Rights and Obligations § 3:10, Westlaw (database update May 2021); SW, ¶ 20, 491 P.3d at 270.
after the children had been removed from Father’s home—this is a “weird situation[.]” The
Department had made no allegations of abuse or neglect against Mother. The original
neglect petition filed in February against both Mother and Father, contained factual
allegations only about Father. In June, the State removed Mother from the neglect petition
altogether. The juvenile court approved that change at the second initial and shelter care
hearing.7 In September, the children were adjudicated neglected by Father. Mother no
longer lived with Father; she lived in South Dakota. We acknowledge that the Department
had a history with the family in Wyoming, but the Department never articulated the reasons
why it needed to remove the children from Mother’s South Dakota home. It would seem
to be inherently difficult to tailor reunification efforts, or to review any such efforts, when
the reasons for the children’s placement away from Mother and her home were never set
forth.8
[¶33] We must consider Mother’s argument that the Department failed to provide more
than a handful of services that were “accessible, available and appropriate” to reunify her
with the children in the context of these unusual circumstances. Having judiciously
reviewed the record, we conclude the juvenile court could not reasonably determine that
the Department proved, by a preponderance of the evidence, efforts were reasonably
tailored, accessible, available, or appropriate to genuinely help Mother achieve the court
ordered requirements and case plan objectives apparently deemed necessary to safely
return the children to Mother’s South Dakota home. The evidence instead shows the
The only thing that would give me some pause today with not letting the
children go with you today, ma’am, is the fact that you’re in South Dakota.
We need a little more information.
Is it unclear from the record what information the court needed, and whether or not it was ever provided.
The State asserted in its amended petition that Mother “agreed that the children should remain in
their current placement while [the] matter [was] pending.” Because the transcript for the hearing on the
amended petition is not included in the record, it is unclear if this is in reference to Mother’s reluctant
agreement to the placement with Father’s parents at the February hearing, see supra ¶ 5, or if there was
some additional agreement.
Department provided minimal, informational assistance and was inflexible and disengaged
from Mother and her unique circumstances.9
Court Ordered Requirements
[¶34] The court ordered Mother to obtain a counseling needs assessment, arrange and
participate in individual and family counseling as needed, get a substance abuse evaluation,
completе a parenting class, and maintain telephone service. The Department’s evidence,
and the rest of the record—viewed in the light most favorable to the State—shows that all
the Department did to assist Mother in completing these tasks was email her a list of
assessment and evaluation providers in her area and remind her to complete these tasks at
MDT meetings and through a couple phone calls and emails.
[¶35] Because the Department’s efforts must “go beyond mere matters of form,
to include real, genuine help[,]” BAD, ¶ 37, 446 P.3d at 232 (J. Fox, concurring) (citation
omitted); 1 Children & the Law: Rights and Obligations § 3:10, one list of providers and a
handful of reminders cannot be considered tailored, appropriate, or otherwise genuinely
helpful. See In re R.J.F., 443 P.3d 387, 398 (Mont. 2019) (“[E]ngaging in reasonable
efforts requires more than merely suggesting services to a parent and waiting for the parent
to then arrange those services for herself.”); In re James G., 943 A.2d 53, 84 (Md. Ct. Spec.
App. 2008) (“[T]he Department must do more than simply provide the parents with a list
of service providers and then leave the parents to obtain services on their own.” (citation
omitted)); cf. Matter of GGMC, 2020 WY 50, ¶ 32, 460 P.3d 1138, 1148 (Wyo. 2020) (the
Department arranged and paid for the father’s drug testing and made various referrals to
counseling services); SW, ¶ 13, 491 P.3d at 268–69 (the Department provided individual
mental health counseling, substance abuse counseling, and provided and transported the
parents to psychological evaluations.).
[¶36] The Department failed to show that it tailored its efforts to Mother’s unique
circumstances. Of particular concern is the lack of evidence from the Department that it
considered how Mother’s mental health affected her ability to comply with the court
ordered requirements. The caseworker testified that, in her experience, depression can
inhibit a parent from fully taking action to reunify. Though she had been aware of Mother’s
history of domestic abusе since the beginning of the case, she said she and Mother never
discussed it in relation to her case or talked about how it might affect Mother’s ability to
meet her case objectives. We understand the caseworker had not been provided the results
of Mother’s counseling services intake prior to the permanency hearing; however, Mother
had shared at the August MDT meeting that she was recently diagnosed with PTSD, which
she believed had hindered her ability to meet her requirements. The Department provided
no evidence to show that it made any effort to verify or accommodate Mother’s PTSD
diagnosis.
[¶37] In regard to individual counseling, the Department’s evidence showed that Mother,
relying on the list of providers from the caseworker, see supra ¶ 36, enrolled in аnd attended
counseling, though only for about five months. Similarly, the caseworker testified that she
emailed Mother to inform her of a free “Love and Logic” parenting class. At the time of
permanency hearing, Mother had either completed or almost completed a different
parenting class.
[¶38] As to Mother’s substance abuse evaluation, the caseworker testified the evaluation
was insufficient because the caseworker was not able to provide the evaluator with
collateral information about any substance abuse history. According to the caseworker,
the Department usually coordinates with parents to schedule evaluations, but the record
nowhere reveals that she ever attempted to coordinate this with Mother. Instеad, the MDT
notes show that Mother shared at the June meeting that she had an evaluation scheduled
for the following week, and the Department did not follow up. The notes further show that
the caseworker had received the evaluation, and determined it was unsatisfactory, prior to
the August meeting. It is unclear why the caseworker never requested that Mother obtain
another evaluation with input from the caseworker prior to the permanency hearing.
[¶39] The Department’s evidence further illustrates it was inflexible in assisting Mother
in remedying impediments she encountered while trying to achieve her court ordered
requirements. The law requires reasonable flexibility on the part of the Department to
assist parents in overcoming impediments to their cаse objectives. Compare In re MN,
2003 WY 135, ¶ 20, 78 P.3d 232, 237 (Wyo. 2003) (reasonable efforts found where the
Department “on numerous occasions conducted one-on-one discussions with Mother” and
tailored its efforts to “account [for] the particular needs of Mother, as more information
became available”), and JW, ¶ 26, 411 P.3d at 427 (reasonable efforts found where the
Department adapted its efforts after the father went to prison to assist him to continue
working toward his case objectives), with FM, ¶¶ 12–14, 163 P.3d at 848
efforts not found where the reunification case plan was never updated, and the Department
made no attempts to facilitate contact between Mother and the child once Mother went to
jail.).
[¶40] The MDT requested that Mother arrange for family counseling in South Dakota.
The caseworker testified at the hearing about Mother’s delay and ultimate failure to make
those arrangements. On cross-examination, however, the caseworker admitted that she
never provided Mother the necessary insurance forms to arrange family counseling for the
children, who were enrolled in Wyoming Medicaid, in South Dakota, though she did
provide similar forms to Father’s parents to assist them with a surgery MA had in South
Dakota. She testified she was not aware that Mother needed help with this, but the MDT
notes reflect that Mother communicated this issue at both the June and August meetings.
[¶41] As to maintaining telephone service, the caseworker testified that sometimes when
she called Mother, she learned that Mother had run out of minutes. She admitted, however,
that she never discussed the issue with Mother, and never offered assistance to ensure
Mother could maintain telephone contact.
Case Plan Objectives
[¶42] The Department provided Mother with a basic case plan seven months after it took
the children into custody. Its evidence at the hearing, and the rest of the record—viewed
in the light most favorable to the State—again shows the Department made minimal or no
effort to assist Mother in meeting her two objectives:
- Visitation
- Mother “will work [with DA] on setting up visits”
- Mother “will make it to the visits”
- Mother “will [submit to urinalysis] before visits”
- Safe suitable home
- “[D]rug free home”
- “[C]lean home, provide food, place for a[ll] three children
to sleep[, and] heat [and] water in the home” - “[C]omply [with] home visits [and] random [urinalysis
tests]”
[¶43] As to the Department’s efforts to assist Mother with visitation, the caseworker’s
testimony reflected that the Department offered Mother visitation at Father’s parent’s
house in Upton from February 2019 through October 2019. Then it arranged for scheduled
visitation and urinalysis testing once a week at its Sundance office from November 2019
until the COVID-19 pandemic arose in March 2020. While in-person visits were
suspended from mid-March until May or June, it allowed Mother video visits and phone
calls with the children. From May or June 2020 until the time of the permanency hearing,
the caseworker testified she “left the ball in [Mother’s] court” regarding visitation after
letting her know they could be flexible regarding location.
[¶44] At the hearing, the Department focused on evidence showing Mother’s poor track
record for visitation and the fact that Mother had not seen the children in over a year by the
time of the permanency hearing. The caseworker testified that Mother made “[v]ery few”
visits in Upton, and only two of the scheduled visits occurred in Sundance—most were
cancelled by Mother.
[¶45] But the caseworker also acknowledged, and the MDT notes and case notes confirm,
that Mother had told her that Fridays at noon were a bad time for her because she was
taking care of her grandmother and her father in South Dakota. We could find no evidence
to show whether or how the Department considered adjusting the schedule to аccommodate
Mother’s obligations, or to verify whether such accommodation was appropriate. Nor did
the Department offer to reschedule any of the missed visits, whether they were cancelled
by Mother or for another reason. The caseworker also testified that Mother requested a
December 2020 visit with the children. The record confirms that Mother requested a
weekend in a hotel with the children, but the Department was uncomfortable with her
request and the court denied it. There is no evidence in the record that the Department ever
offered Mother a more suitable alternative.
address other relevant circumstances, not the least of which was Mother’s transportаtion
issues. The MDT notes show that Mother told the team in February 2020 that she was
“working on getting her vehicle up to par so she can make the visits with the kids.” The
caseworker’s notes confirm that Mother had missed at least two Friday visits due to car
troubles. Yet, the caseworker testified the Department never offered Mother financial
support for vehicle repairs because Mother never explained her car troubles to the
caseworker. And furthermore, the record nowhere indicates that the Department ever
offered Mother transportation services to attend scheduled visits or to arrange for the
children to visit her in South Dakota. Cf. RR, ¶ 104, 492 P.3d at 272 (the Department
offered FR transportation services); HP, ¶¶ 9, 26, 93 P.3d at 986, 990 (the Department
offered the mother transportation to visit the children); MN, ¶ 24, 78 P.3d at 238 (the
Department offered the mother transportation from Pinedale to Jackson to visit her child).
[¶47] According to the Department’s evidence, in the almost two years between the
children’s removal from the home and the permanency hearing, it offered Mother open-
ended visitation for about nine months; scheduled supervised visitation, and urinalysis
testing, for less than five months; and allowed Mother virtual visitation when the COVID-
19 pandemic arose. Offering, scheduling, or allowing a parent visitation with her children
is not enough. Nor is leaving “the ball in [Mother’s] court” for the six or seven months
prior to the permanency hearing. The Department must present evidence that it made
efforts to genuinely help Mother achieve regular visitation with her children. See R.J.F.,
¶ 37, 395 Mont. at 472, 443 P.3d at 398 (“[E]ngaging in reasonable efforts requires more
than merely suggesting services to a parent and waiting for the parent to then arrange those
services for herself.”); BAD, ¶ 37, 446 P.3d at 232 (J. Fox, concurring) (reasonable efforts
must “go beyond mere matters of form,” “so as to include real, genuine help” to “improve
the circumstances of the parent and the relationship of the parent with the child” (quoting
Matter of Welfare of J.A., 377 N.W.2d 69, 73 (Minn. Ct. App. 1985))). We could find no
such evidence in the record before us.
[¶48] Last, but certainly not least, the Department presented no evidence that it made any
effort whatsoever to assist Mother in meeting her goal of providing a “safe suitable home”
for her children in South Dakota. The caseworker testified that she had never observed
Mother’s home, and she had never put in a request for someone in South Dakota to make
a home inspection. We cannot ignore the Department’s complete failure to address this
important, long-term objective.10
[¶49] Even when viewed in the State’s favor, the record demonstrates the Department
failed its burden to show it provided Mother tailored, accessible, available, or appropriate
services, or any “genuine help” to achieve reunification with her children.
[¶50] Mother’s right to care for and raise her children is an essential right. See FM, ¶ 9,
163 P.3d at 847. The requirement that the Department make reasonable reunification
efforts is intended to protect her rights. For the reasons stated above, we conclude the
Department failed to carry its burden to prove that reasonable efforts were made in this
case, and the juvenile court could not reasonably conclude to the contrary.
[¶51] We also cannot ignore the juvenile court’s failure to maintain oversight of this case.
six months following a child’s removal from the home, during which it must evaluate:
(i) The health and safety of the child[ren];
(ii) The continuing necessity for the [children’s out of home]
placement;
(iii) The appropriateness of the current placement;
(iv) The reasonableness of efforts made to reunify the
family and the consistency of those efforts with the case
plan;
(v) The appropriateness of the case plan and the extent of
compliance with the case plan including the permanent
placement of the child[ren];
(vi) If progress has been made toward alleviating or mitigating
the causes necessitating placement outside the home and the
extent of that progress; and
(vii) The date the child[ren] [are] expected to be returned to the
home or placed for adoption or legal guardianship.
It must also hold permanency hearings not less than every 12 months after a child is
removed from the home, where it again must assess the Department’s efforts and may order
the Department to make additional efforts.
that the court should have held a review hearing in August 2019, a review and/or
permanency hearing in February 2020, and another review hearing in August 2020. See
questions, problems pertaining to the Department’s efforts to reunify the children with
Mother could have been sooner identified and addressed.
[¶52] We reverse and remand this matter with instructions to the juvenile court to order
the Department to make further reasonable efforts to reunify Mother with the children, and
to exercise timely and thorough oversight of all future proceedings.
Notes
placement for the children, and when it failed to hold review hearings every six months as required by law.
Because our reasonable efforts determination alone warrants reversal, we do not consider Mother’s due
process argument.
action because there has been no request or order to extend services beyond his 18th birthday. See
Stat. Ann. § 14-3-431(b)
under this act shall terminate with respect to a child adjudicated neglected, when he reaches eighteen (18)
years of age unless the court has ordered care or services to continue beyond that time.”).
separated for a year. The children lived with Mother and completed a full year of school in South Dakota
before Mother and Father tried to reconcile. The last time Mother took the children to South Dakota, Father
showed up at a community center, took the children back to Upton, and denied Mother visitation for some
time after. When Father finally allowed Mother to visit, Mother was only in Upton for a day or two when
the events that triggered this case occurred.
parties may stipulate to any matter, including adjudication and disposition.”
what type of drugs, he said they do meth in the bathroom. When asked how he knew they used meth, he
said that he once saw Mother smoking it out of a pipe. MA was unable to articulate how he knew what the
drug was other than to say, “I just know.” For purposes of the predisposition report, MA stated he had
never seen his parents do drugs, but he once found a “meth pipe” in his mom’s car. The caseworker testified
at the permanency hearing that her concern about Mother’s drug use was based on information from
previous times she had worked with the family.
September 18, but, in response to two separate requests from Mother, continued it to November 25, 2020
and then to January 13, 2021.
and thus delay adjudication. The deadlines set forth in
Child Protection Act, are intended “to ensure a relatively speedy resolution of child protection matters to
reduce the amount of uncertainty in the child’s life and prevent an undue infringement on the
constitutionally protected parent-child relationship.” In re DSB, 2008 WY 15, ¶ 23, 176 P.3d 633, 638 (Wyo. 2008).
accessible, available, and appropriate services that it could” given Mother’s lack of cooperation. We
recognize that if a parent is uncooperative, it may be unreasonable to require the Department to make
further efforts. See RR, ¶ 99, 492 P.3d at 271 (citing JW, ¶ 21, 411 P.3d at 426). But a parent’s lack of
cooperation does not relieve the Department of its responsibility at the outset. Furthermore, the record does
not show Mother to have been uncooperative. Cf. In re SRJ, 2009 WY 94, ¶¶ 7–9, 212 P.3d 611, 613 (Wyo. 2009); In re ARC, 2011 WY 119, ¶¶ 17–22, 258 P.3d 704, 709 (Wyo. 2011); Interest of RR, 2021 WY 85, ¶¶ 103–05, 492 P.3d 246, 272 (Wyo. 2021).
reasonable efforts even though it had not conducted a home inspection to determine if the mother’s house
was safe and suitable for children. ¶ 22, 258 P.3d at 709. There, the “caseworker testified that, had Mother
complied with the other parts of her family service plan, [the Department] would have inspected her home
when it started the reunification process.” Id. We agreed that was reasonable because “[u]ntil the time
when actual family reunification was drawing closer, there was no reason to inspect her home.” Id. Here,
the caseworker provided no such testimony or other rationale for not conducting a home inspection and the
record suggests that reunification was expected sooner rather than later—the MDT even encouraged
Mother, throughout the case, to arrange family counseling in South Dakota to ease the children’s transition.
Additionally, in ARC, the children were removed from the home because it was not safe and suitable. Id.
¶ 6, 258 P.3d at 707. That case began when investigators found the young children home alone with drugs,
drug paraphernalia, needles, pill bottles, a large amount of cash, and a stolen firearm. Id. ¶¶ 6, 16, 258 P.3d
at 707, 708. Here, the children were removed from Father’s home, not Mother’s, there was no evidence
that Mother’s house was not safe or suitable for the children, and there was no obvious reason why Mother’s
case plan contained this specific objective.