[¶ 71] I respectfully dissent. I do not believe that leaving one's children with their grandparents, being intoxicated to an unknown *Page 1016 degree on one occasion, or being uncooperative with law enforcement legally constitutes neglect. I also believe many serious mistakes were made during the course of the proceedings below that deserve comment and that such comment is a proper use of this Court's supervisory authority over juvenile courts. Wyo. Const. Art. 5, § 2 ("The supreme court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and shall have a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.").
[¶ 72] I preface my remarks by stating that I am approaching this case from both broad and narrow perspectives. The narrow perspective involves analyzing the facts of this particular case. There is no doubt this family has serious problems, and the children should not be returned to Mother without careful, individualized review. After all, the overriding goal of a proceeding under the Child Protection Act is to protect children. A finding that the allegations in the petition do not constitute legally cognizable neglect in no way prevents the state from either amending its petition in this case or filing a new petition, as may be appropriate.
[¶ 73] The broad perspective involves analyzing this case within the context of the Child Protection Act. The Child Protection Act requires balance between protecting children and timely establishing a permanent living arrangement for the children. With exceptions, the general goal in a child protection proceeding is either family reunification or termination of parental rights, freeing the children for adoption. This balance serves the best interest of all children. Unfortunately, this balance has not been achieved in this proceeding.
[¶ 74] I agree that neither brief provides much guidance to this Court. Mother's brief is a general diatribe upon the juvenile court process. While this does not help this Court resolve the current situation, it does reveal a seriously dysfunctional juvenile court system. Certainly the safety of the children is the primary concern, but the ultimate goal of the juvenile system is to maintain the family unit whenever safely and reasonably possible. In this case, the record discloses that no efforts were made to reunify this mother with her three children before adjudication.
[¶ 75] Physical custody and adjudication of neglect are two distinct aspects of a juvenile court action. With regard to physical custody, the Child Protection Act very clearly requires reasonable efforts to maintain children in their home and reasonable efforts to reunify the family if the children must be removed from the home. At the informal shelter care hearing, the juvenile court made a finding in its order that the state was complying with these reasonable efforts requirements. A review of the transcript from that hearing, however, reveals that the issue of reasonable efforts was never discussed. The findings, therefore, are completely unsupported by the evidence. Indeed, a review of the entire record reveals that no reasonable efforts to reunify this family were ever implemented before adjudication.
[¶ 76] The statutory reasonable efforts requirement begins immediately upon the removal of a child from the home. The heart of reasonable efforts to reunify a family is a case plan, created with the cooperation and consultation of family members, DFS and an MDT. Although the juvenile court timely ordered an MDT to convene, no MDT was ever appointed or convened. More disturbingly, there is no indication that a case plan was ever created and adopted. Child specific case plans provide the juvenile court with a means to determine the appropriate goals for the family and gauge the progress of the family in achieving these goals, with reunification being the required result when safely and reasonably possible. Without a case plan and constant evaluation thereof, there are no concrete criteria by which a parent's behavior and progress can be measured. Ultimately, the lack of a case plan results in there being no means by which a parent can regain custody of his or her children. This result flies in the face of the constitutional dimension of the right to familial association and the language of the Child Protection Act.
[¶ 77] The state justified the absence of an MDT by stating that the convening of an MDT is not appropriate before adjudication. The essence of the argument presented by *Page 1017 the state is that convening an MDT (and thereby effectuating case planning) is potentially a wasted effort if the parent is denying all allegations. As mentioned above, adjudication and custody are two distinct aspects of a juvenile court proceeding. The Child Protection Act clearly contemplates that attempts to reunify the family must begin immediately. Wyo. Stat. Ann. § 14-3-427 (LexisNexis 2003) contemplates an MDT being appointed as soon as possible after a petition is filed. The MDT is specifically required to review each child's individual situation for the purpose of making case planning recommendations. § 14-3-427(e). The parent's denial of the allegations is simply a factor to be weighed in determining appropriate case plan options. The statute specifically provides that the recommendations of the MDT are not to be considered by the juvenile court before adjudication without the consent of the child and the parent. § 14-3-427(h). This section clearly anticipates that the MDT will be functioning before adjudication.
[¶ 78] The Act also contains other provisions that require case planning to begin immediately upon the filing of the petition if a child is removed from the home. Wyo. Stat. Ann. § 14-3-429(a)(iv) (LexisNexis 2003) requires the juvenile court at adjudication to:
ensure that reasonable efforts were made by the department of family services to prevent or eliminate the need for removal of the child from the child's home or to make it possible for the child to return to the child's home. Before placing a child outside of the home, the court shall find by clear and convincing evidence that to return the child to the child's home would not be in the best interest of the child despite efforts that have been made[.]
Further, Wyo. Stat. Ann. § 14-3-431(c) (LexisNexis 2003) mandates that the juvenile court:
shall conduct a review hearing six (6) months from the date of the child's removal from the home, twelve (12) months from the date of the child's removal from the home, and not less than once every twelve (12) months thereafter. At each of these review hearings the court shall review the case plan to determine:
(i) The health and safety of the child;
(ii) The continuing necessity for the 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;
(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 is expected to be returned to the home or placed for adoption or legal guardianship.
The time requirements for these case plan reviews by the juvenile court run from the date the child is removed from the home. It is important that these time frames are followed because § 14-3-431(d) mandates:
*Page 1018When a child has been placed in foster care under the responsibility of the state for fifteen (15) of the most recent twenty-two (22) months the state shall file a petition to terminate parental rights or seek to be joined as a party to the petition if a petition has been filed by another party, unless:
(i) The child is in the care of a relative;
(ii) The state agency has documented in the case plan a compelling reason for determining that filing the petition is not in the best interest of the child; or
(iii) The state agency has not provided services to the child's family deemed to be necessary for the safe return of the child to the home, if reasonable efforts described in W.S. 14-3-440 are required to be made.[22]
[¶ 79] The statutory framework reveals that the critical action invoking the beginning of reasonable efforts to reunify the family is the removal of a child from her home. Because the process potentially leads to the termination of parental rights, due process concerns permeate the entire proceedings. Even if termination of parental rights is not statutorily required, it is always in the best interests of the child to effect permanency and, if circumstances allow, family reunification as quickly as possible.
[¶ 80] In the instant proceeding, no case plan was ever developed. There was never any specific finding by clear and convincing evidence in the order of adjudication that the return of the children to their home would not be in their best interests. There is no indication that the situation of each child was evaluated individually to determine what was best for each, individual child. There are no case plan reviews as required under § 14-3-431(c) (obviously a futile activity given the absence of case plans). The juvenile court refused to even consider Mother's motion for the return of her children filed January 15, 2002.23 Even if the juvenile court had entertained the motion, because there was no case plan and no MDT, there would have been little if any information available to the juvenile court upon which it could make an informed decision based upon the objectively determined best interests of each, individual child.
[¶ 81] Further, not only was this mother separated from her children, the juvenile court seemingly even refused to acknowledge that Mother retained certain residual parental rights.24 At the hearing on Mother's motion for return of her children, the juvenile court commented that Mother maintained no supervisory authority over the children. The juvenile court repeatedly deferred to the recommendations of the GAL over the express objections of Mother, without taking evidence. Mother's wishes were given seemingly little to no weight. This is not to say that a parent can micromanage the lives of her children when her children have been placed in the legal custody of the state. The right to make certain major decisions, however, remains with the parent.
[¶ 82] The lack of an MDT and a case plan takes on even more significance in this case because Mother and the GAL disagreed on what was best for the children on several occasions.25 This case presents disturbing family dynamics. There are strong indications that actions of the grandfather and possibly the aunt (Mother's sister) are negatively affecting the relationship between Mother and the children. The juvenile court, however, granted visitation to these family members, over Mother's objection, solely upon the recommendation of the GAL.26 The juvenile court also has ordered placement of the children with the aunt, again solely upon the recommendation of the GAL. Whether such visitation and placement are in the best interests of the children is undetermined. No evidence has been presented. An MDT would have independently evaluated the family *Page 1019 dynamics and objectively decided what was in the best interests of these children, thus putting more confidence in any decision reached by the juvenile court.
[¶ 83] In short, a review of the record in this case reveals an utter disregard for the provisions of the Child Protection Act dealing with child custody, family reunification and permanency. Having said this, however, I also must emphasize that Mother shares the burden of ensuring the system functions appropriately. The defects noted above do not affect the jurisdiction of the juvenile court. The remedy for alleged violations of statutory directives or due process violations is first to request appropriate action from the juvenile court. If the juvenile court does not act, the remedy then is to seek review from this Court. See generally, In Interest of MFB, 860 P.2d 1140 (Wyo. 1993); InInterest of WM, 778 P.2d 1106 (Wyo. 1989). Further, if Mother were truly interested in improving family life for her children, she could have voluntarily undertaken to resolve some of the obvious issues even without a case plan and then present the juvenile court with evidence of her efforts. The record reveals that every party to these proceedings has failed these children.
[¶ 84] Mother also complains about the appointment of John Frentheway as the GAL in this action. While her argument is poorly presented, I perceive the issue Mother to be raising as a very focused issue. The issue is not, as the majority opinion suggests, whether an attorney can be both a GAL and an attorney for a child. The issue Mother raises is actually one of statutory interpretation. Mother argues that if Frentheway was the attorney for the children, his appointment as GAL violates Wyo. Stat. Ann. § 14-3-416, which prohibits the juvenile court from appointing a representative of any party to a Child Protection proceeding as GAL. The majority opinion also recognizes the potential implication of Wyo. Stat. Ann. § 14-3-211. Section 14-3-211 requires a court appointed attorney for a child to also represent the child's best interests. Under the facts of this case, however, § 14-3-211 does not apply because Frentheway was never appointed by the court to act as the attorney for the children.27 Thus, § 14-3-416 controls. If Frentheway was acting as attorney for the children before his court appointment as GAL, he would have been a representative of a party (the children) and should not have been appointed GAL.
[¶ 85] It thus becomes important to determine exactly what role Frentheway is playing in the juvenile court proceeding. The problem is that his initial role in this action is uncertain. The record is replete with implications of Frentheway's acting as the attorney for the children. However, his authority to represent the children as their attorney is never disclosed. Mother did not hire him to represent the children. He was not appointed by the juvenile court, either as a private attorney or as a public defender.28 It is even unclear if he was claiming to represent all three children or only the oldest child.29 Thus, the representation of the children is very unclear. Even after the juvenile court finally appointed Frentheway to be the GAL for the children on February 28, 2002, Frentheway continued to be referred to as both the attorney for the children as well as the children's GAL.30
[¶ 86] Because the record is unclear as to Frentheway's role, Mother has failed to meet her burden of proving that the statute was violated. It is not appropriate to make any *Page 1020 assumptions as to Frentheway's role before his appointment by the juvenile court. I strongly suggest, however, that the juvenile court resolve this issue. Every party to these proceedings has a right to know Frentheway's role. The juvenile court should immediately clarify Frentheway's status. If Frentheway is acting as attorney for the children, his authority should be made explicit and he should be removed as GAL if his attorney role began before his appointment as GAL. If Frentheway has always been acting as the GAL for the children, the juvenile court must ensure Frentheway is properly appointed as GAL at the beginning of proceedings. This is not a minor technicality. Legal representation of children is critically important in juvenile proceedings. These children had no court appointed legal representation until almost three months after the petition was filed. Further, although one person can fulfill both roles, the roles are distinct, with distinct obligations. Everyone involved in the proceeding, most especially the children, must know exactly who is representing the children and in what capacity.31
[¶ 87] Returning now to the narrow perspective, the heart of Mother's appeal is her challenge to the adjudication of neglect. The petition alleges one incident.32 While one, isolated incident certainly can constitute legal neglect, the single incident as alleged in this case does not present an issue of legal abuse or neglect. At best the allegations in the petition suggest that Mother and her boyfriend were intoxicated to an unknown degree and, upon being informed that her children would not be returned to her, she became agitated and uncooperative with law enforcement. The children, however, were with their grandparents, where Mother had delivered them. For their part, the children did not want to return home because they believed Mother was drunk. The oldest child was particularly adamant about refusing to return home, threatening suicide if she was returned to her mother.33 While certainly this allegation indicates a dysfunctional family with serious problems, the allegation includes no indication of legally cognizable neglect. The children were safely provided for by the grandparents, at least initially at mother's request.
[¶ 88] I do not question the propriety of taking the children into protective custody. Under the circumstances, taking protective custody of the children was a prudent action. I do not even question whether neglect or emotional abuse due to substance abuse or other problems exist in this family. That question is not before this Court. Such allegations were not charged in the petition, and, therefore, this Court should not review the evidence or offer any opinion on such potential allegations. Should the State choose to allege continuing behaviors that constitute abuse or neglect, it may do so.
[¶ 89] The fact, however, is that Mother had no prior notice that her entire lifestyle and prior history would be available to support a nebulous adjudication of neglect.34 Mother was defending against the single incident alleged in the petition. I do not *Page 1021 perceive the allegation that Mother was intoxicated to an unknown extent on this one occasion to open the door to a generalized allegation of neglect through continued substance abuse. I do not perceive the mention of Mother's boyfriend in the petition as opening the door to an allegation of neglect through Mother's failure to protect the children from boyfriend's emotional abuse. While further allegations may be supported by evidence adduced during the course of these proceedings, the petition has never been amended to include such allegations. Due process considerations require that a parent have adequate notice of the specific allegations against him or her.
[¶ 90] I would reverse the adjudication of neglect under the specific facts of this case. A parent does not neglect her child by placing the child with a caregiver. Further, it is not the function of the juvenile court or this Court to moralize on a person's lifestyle. Whether or not this, or any, court agrees with how this single mother is raising her children is irrelevant. The only issue is whether Mother is neglecting or abusing her children as defined in the Child Protection Act. Certainly this family has problems. The Child Protection Act requires the State to take a focused approach to helping the family resolve its problems, not just separate antagonistic parties and then disappear until formal adjudication.
[¶ 91] That said above brings me back to the physical custody of the children. This family has been kept apart for almost two years, with no hope for reunification because there has been no case plan. The right to familial association is a fundamental right. CH v. Campbell CountyD-Pass, 699 P.2d 830, 833 (Wyo. 1985) (appellant has a "fundamental right to have care and custody of her own child"). The right belongs not only to parents, but also to children. By failing to create circumstances under which reunification could be achieved, the juvenile court system and every participant therein have failed these children.35
[¶ 92] Unfortunately, there is no remedy except to remand the case to the juvenile court for proceedings in compliance with the Child Protection Act. Assuming the petition is amended or a new petition is filed, an MDT immediately should evaluate the situation of each child individually to determine the best interests of that child. Case plans for each child must be developed and reasonable efforts must be made by the State to reunify this family or at least individual children with the mother if safely possible. The questions of visitation and physical placement of the children must be reviewed. Ultimately, it is the responsibility of all the parties to cooperate and timely determine the actions necessary in the best interests of the children.
[¶ 93] The juvenile court must guide the process. This includes conducting the statutorily required case plan reviews and, when appropriate, the juvenile court must make a finding, by clear and convincing evidence for each individual child, that return to the child's home would not be in the best interest of that child (§ 14-3-429(a)(iv)). Time is of the essence. Do it.