Matter of Adoption of BBC

ROONEY, Justice (Retired),

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 alleged 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 pertaining 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, 831 P.2d 197, 202 (Wyo.1992).

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 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 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, created “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.” *775If the entire direction of the case can properly be changed by amendments to the pleadings, it is inconsistent to hold that formalities pertinent to remand action on the original issues must be met. The emphasis here should be on a determination as to what is in the best interests of the child. Substance should prevail over remand directions, which were rationally directed to different issues. The remand instructions were with reference to those issues then presented to both courts. If those issues were changed or ceased to exist — as here, compliance with the instructions would be unnecessary. Carried to the extreme, if BDR died, the pertinency of the issues upon which the remand directions were given would no longer exist. The pertinency of those issues and the remand directions are likewise changed by the new pleadings. It should not be necessary here, or in similar cases in the future, for the parties, or for the district court, to dismiss the case and then cause to be filed a new one in order to place new issues before the district court, unburdened by the procedure status of the dismissed case. The precedent set by this decision can create unnecessary problems in remand of future cases.

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 does 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, 40 Misc.2d 605, 243 N.Y.S.2d 656, 658 (N.Y.Sup.1963). The meaning of timely “must be determined upon the facts of each particular case. The Court necessarily has considerable discretion in its determination.” In re Rumsey Mfg. Corp., 9 F.R.D. 93, 98 (W.D.N.Y.1949). It would be superfluous to have a repetition of all of that established previously related to BDR’s actions which resulted in the previous disposition of the matter. The remand did not direct the holding of a new hearing or a new trial. We often do so. Here, the order was for a “timely” hearing. To me, and apparently to the district court, the direction was to afford an opportunity to the parties to bring the matter up to time by placing before the court anything new and different having bearing upon the issues. The record does not reflect a request by any party for an evidentiary hearing. Nor does it reflect an objection or other means of preserving error by either party with reference to not having such (as usually required by us). As noted in the majority opinion, briefs were filed by the parties, as ordered by the district court, on the issues of parental termination and guardianship. Ample opportunity was thereby afforded the parties to recite the evidence and law pertinent to the issues, and they took advantage of the opportunity. There was sufficient compliance with the remand order of this court.

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.