Lead Opinion
Biological father (BDR) appeals from a district court order which: (1) granted guardianship of his son (BBC) to a married couple (BEB and PJB) who previously attempted to adopt BBC, (2) denied BDR any rights of visitation with BBC, and (3) relieved BDR of any child support obligations. This court had reversed a previous district court order, which had permitted BEB and PJB to adоpt the child and had terminated BDR’s parental rights. Matter of Adoption of BBC,
We affirm in part and reverse in part.
BDR, appellant, raises the following issues:
A. The primary issue presented for review and determination by this court is:
Did the district court err by failing to follow the mandate of this court in the initial appeal?
B. Additional and included issues are as follows:
1. After the reversal of the adoption and termination of parental rights and remand “... for a timely hearing before the trial court to determine what is now in the best interest and welfare of BBC pertaining to his temporary care, custody and control as well as what are the father’s rights and support obligations in connection therewith.” [D]id the district court err in allowing the filing of an Amended Petition in two counts, one for adoption based on non-support and one fоr guardianship?
2. Did the district court err in denying Appellant a hearing and an opportunity to present evidence as to present conditions and circumstances affecting Appellant’s and BBC’s interests?
3. Did the district court err in allowing the introduction in this case, after appeal, of a totally new and unrelated issue of guardianship and in granting letters of guardianship without any hearing?
4. Did the district court err in denying Appellant [father], without any hearing, any rights of visitation?
5. Did the district court err in denying Appellant’s [father’s] request for a home study conducted by family services, prior to the determination of the custody and visitation issues?
BACKGROUND
On April 22, 1992, this court issued an opinion from a first appeal in this case. See BBC I. In that opinion, we reversed a district court judgment which had terminated BDR’s parental rights and had granted BEB and PJB adoption of BBC. At the same time, however, we affirmed that part of the district court’s order which had denied the father’s motion for custody. BBC I,
Those directions were:
[W]e remand this matter for a timely hearing before the trial court to determine what is now in the best interest and welfare of BBC pertaining to his temporary care, custody, and control, as well as what are the father’s rights and support obligations in connection therewith.
BBC I,
On remand, a volley of motions and petitions were quickly filed by the parties. BDR filed a petition for temporary custody and BEB and PJB filed amended pleadings seeking adoption and рarental termination on new grounds or, in the alternative, guardianship of BBC. In addition, BEB and PJB and the biological mother (EC) filed motions for continuances.
All the parties filed memoranda addressing the issues designated by the district court. At somе point, although the record is not clear, the termination of parental rights issue was dismissed, and a second action was filed in another district judge’s court addressing that issue.
DISCUSSION
STANDARD OF REVIEW
All of the objections raised by BDR concern the broader issue of whether the district court proceeded consistently with our opinion and mandate from BBC I. When this court remands a case, the district court is vested with jurisdiction only to the extent conferred by this court’s opinion and mandate. Potter v. Gilkey,
On remand from this court, whether a reversal or an affirmance or any combination of the two, the district court must substantially comply with the combined directions, purрose, and intent of this court’s opinion and mandate. An action taken by a district court which fails to substantially comply is the equivalent of proceeding without jurisdiction and is error.
BDR, more specifically, asserts that the district court violated our mandate and opinion when it: permitted leave to amend pleadings, permitted BEB and PJB to file a petition for guardianship of BBC, granted BEB and PJB guardianship without holding another hearing, failed to hold any substantive hearing in accordance with our opinion in BBC I, and denied BDR’s request for a home study by the Department of Family Services (DFS) before determining visitation and custody. Each of these specific objections will be reviewed in light of the enumerated standard of review.
Leave to Amend Pleadings
The general rule, concerning whether amendment of pleadings after remand is permissible, is as follows:
Cases bearing on the amendment of pleadings after remand, where no leave or direction has been granted by the appellate court, generally turn on the question of the power of the lower court, * * * it being held that * * * the question as to whether it shall be allowed in a particular case is committed primarily to the discretion of the lower court, with the exercise of which the appellate court will not interfere, except in the case where there has been a clear abuse of discretion * * *.
5B C.J.S. supra § 1969(1) (citations omitted). Our case law is in accord with the general rule. Mealey v. City of Laramie,
In Mealey, we held that the trial court had not abused its discretion in denying the plaintiff leave to amend its pleadings. Mealey,
Whether or not the proposed amendment should have been allowed or rejected was a matter lying within the discretion of the trial court and unless such discretion was abused, its ruling will not be set aside.
Mealy, at 1020.
In this case, we cannot say that the district court’s action, permitting leave to all parties to amend the pleadings, was an abuse of discretion or was inconsistent with our opinion in BBC I. After our opinion in BBC I, reversing the termination of parental rights and adoption, most of the original pleadings were no longer applica-, ble. The hearing, which resulted in the original judgment of adoption and termination of BDR’s parentаl rights, was grounded in BDR’s petition for habeas corpus and BEB’s and PJB’s petition for adoption. If the district court had proceeded, after remand, based solely on the old pleadings, the precise issues would have been difficult to discern. Therefore, the district court did not abuse its discretion.
GUARDIANSHIP, VISITATION, SUPPORT OBLIGATIONS
BDR next argues that the district court erred in pеrmitting BEB and PJB leave to amend their pleadings with a petition for guardianship because guardianship is inconsistent with this court’s directions as set out in the BBC I opinion. We disagree with BDR and hold that permitting an amended pleading for guardianship was consistent with our opinion in BBC I. We do so because the paramount concern in a guardianship proceeding is the best interest of the child, see Wyo.Stat. § 3-2-101(a)(v) (1985), and our specific directions on remand required the district court “to determine what is now in the best interest and welfare of BBC * * BBC I,
In addition, BDR asserts that the district court’s grant of guardianship to BEB and PJB fails because no notice was given and no hearing was held. Although we find that the amended рleading petitioning for guardianship was consistent with our stated purpose in BBC I, we cannot see how the district court’s grant of full guardianship to BEB and PJB — without a hearing and based solely on old evidence elicited at the BBC I hearing — substantially complied with our opinion in BBC I. As we have said before, “[i]f a cause is remanded for a specified purpose, any proceedings inconsistent therewith are error.” Sanders,
Our opinion expressed a specific purpose to the district court when we said, “[w]e remand this matter for a timely hearing before the trial court to determine what is now in the best interest and welfare of BBC * * *, as well as what are the father’s rights * * *.’’ BBC I,
Despite these specific directions, the district court granted guardianship to BEB and PJB without any hearing and without any new evidence concerning the present fitness of BDR. In its decision letter granting the guardianship the district court reasоned,
Regarding the guardianship, it has been found by this court that the father is unfit to be custodian of the child. That finding was affirmed by the [Wyoming] Supreme Court. (Emphasis added).
As is plainly evident from the highlighted language of the district court, the decision to grant guardianship was based on past findings by that court and not based on a “timely hearing” or “what is now in the best interest of BBC.” Therefore, the district court’s actions concerning guardianship are inconsistent with the specific purpose we expressed in BBC I, and we hold that the district court, in granting the guardianship to BEB and PJB, exceeded its jurisdiction over this case as limited by our opinion and mandate from BBC I. There
This same analysis applies to those parts of the district court order which denied visitation and relieved BDR of any support obligation. In making these determinations on visitation and support, the district court simply ignored our specific directions requiring a timely hearing and a determination of the present circumstances. In other words, the district court exceeded its jurisdiction of this remanded case when it orderеd denial of visitation rights and support obligations, without substantially complying with our opinion and mandate. Therefore, the order concerning visitation and support obligation is also reversed.
Home Study
BDR also asserts that the district court should have ordered a home study of BDR by DFS. A home study is only required when a petition for termination of parental rights is filed by “anyone other than the authorized agency.” Wyo.Stat. § 14-2-314 (1986). Because of our decision in BBC I, there is no petition for termination of BDR’s parental rights before the district court. Therefore, the district court was under no statutory obligation to order a home study. We hold that the district court’s action, of not ordering a home study, was cоnsistent with our opinion and mandate from BBC I, and thus was not error.
DISPOSITION
Today we reverse those parts of the district court’s June 29, 1992 order, which granted guardianship to BEB and PJB, denied any visitation rights to BDR, and' removed any support obligation from BDR. We reverse because the district court acted without authority by failing to substantially comply with our opinion and mandate in BBC I. We affirm the district court’s action which permitted BEB and PJB to amend their pleadings in order to file a petition for guardianship.
We remand to the district court and order the district court to: (1) maintain the status quo, concerning BBC’s temporary care custody and control, as it existed before the district court’s June 29, 1992 order; (2) grant all parties leave to amend the pleadings and proper amount of time to answer opposing pleadings; and (3) after all the pleadings are filed, hold an eviden-tiary hearing to determine, based on the circumstances as they exist today, the best interest of BBC and BDR’s rights and duties.
ROONEY, J., filed a dissenting opinion.
Notes
. A mandate is required by Rule 9 of the Wyoming Rules of Appellate Proсedure. Rule 9 has since been renumbered as Rule 9.10.
. At oral argument, all parties agreed that this second termination action has since been dimissed by the other district judge.
Dissenting Opinion
dissenting in part.
I dissent only from that part of the majority opinion which results in a reversal.
The herein contested part of the majority opinion is that part premised on an аlleged failure of the district court to comply with the direction of this court on remand of the first appeal relative to holding a hearing on specific issues. We worded the remand in the first appeal:
“[W]e remand this matter for a timely hearing before the trial court to determine what is now in the best interest and welfare of BBC рertaining to his temporary care, custody, and control, as well as what are the father’s rights and support obligations in connection therewith.”
Matter of Adoption of BBC,
On this appeal, the majority of the Court finds error in failing to hold a “hearing,” but inconsistently finds no error in allowing an amendment of the pleadings after remand. As stated in the majority opinion:
On remаnd, a volley of motions and petitions were quickly filed by the parties. BDR filed a petition for temporary custody and BEB and PJB filed amended pleadings seeking adoption and parental termination on new grounds, or, in the alternative, guardianship of BBC.
In truth, the amendments, admitted as proper, established new issues and, in effect, creаted “a new ball game.” The directions of this court on remand were with respect to that before the district court in “the old ball game,” and should not be said to be mandatory in “the new ball game.”
Additionally, I do not read the remand order to require a new evidentiary or trial-type hearing in which the district court must disregard all of that previously put before it in this matter, as indicated in the majority opinion. The direction on remand for a “timely” hearing doеs not clearly contemplate a new hearing. It could be just the opposite, i.e., one necessary to bring the matter up to time. Timely “means a reasonable time, and reasonableness depends on the circumstances of the particular case.” Levine v. Town of Oyster Bay,
Nothing will be gained by another remand of this case. Time, effort and judicial economy will be lost. Rapid determination of the status of the child is in its best interest. I would affirm in all respects.