IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 65

APRIL TERM, A.D. 2017

June 2, 2017

IN THE MATTER OF THE 

TERMINATION OF PARENTAL 

RIGHTS TO: GAC, A Minor Child.

KRYSTAL KAYLYNN CAVE,

Appellant

(Respondent),

v.

STATE OF WYOMING, DEPARTMENT 

OF FAMILY SERVICES,

Appellee

(Petitioner).

S-16-0212

Appeal from the District Court of Natrona County

The Honorable W. Thomas Sullins, Judge

Representing Appellant:

Timothy C. Cotton of Cotton Legal, Casper, Wyoming.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; Misha Westby, Deputy Attorney 

General; Wendy S. Ross, Senior Assistant Attorney General; Jill Kucera, Senior 

Assistant Attorney General. Argument by Ms. Ross.

Guardian ad Litem: 

Dan S. Wilde, Deputy State Public Defender; Aaron Hockman, Chief Trial and 

Appellate Counsel, Wyoming Guardian ad Litem Program. Argument by Mr. 

Hockman.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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 typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KAUTZ, Justice.

[¶1] A jury found that Appellee Department of Family Services (DFS) had proven two 

statutory grounds for termination of Appellant Krystal Kaylynn Cave’s (Mother) parental 

rights to GAC (Child). On appeal, Mother claims the district court erred by allowing: 1) 

the guardian ad litem (GAL) to actively participate in the termination proceedings; and 2) 

her counselors to testify at trial over her claim of privilege. 

[¶2] We affirm. 

ISSUES

[¶3] The issues on appeal are: 

1. Did the district court err by allowing the GAL to fully participate in the 

termination proceedings?

2. Did the district court err when it allowed Mother’s mental health providers 

to testify at trial?

FACTS

[¶4] On May 20, 2013, the Child, who was two years old, was found wandering alone 

near a busy street in Casper, Wyoming. He was very cold because he was wearing only a 

t-shirt and socks, with no diaper, underwear or pants. The person who found the Child 

called law enforcement. No responsible adult could be located, so the Child was taken 

into protective custody. 

[¶5] Mother arrived at the scene about forty minutes later. She was frantic and 

demanded the officers return the Child to her. She was told that, because he was already 

in protective custody, she would have to make arrangements with DFS for the Child’s 

return. DFS was concerned about the Child’s living arrangements because a couple of 

months earlier, it had investigated a report that Mother and the Child were living in a 

storage unit. At that time, DFS offered Mother help with locating housing and 

employment. However, after a few meetings, Mother declined further assistance from 

DFS and the agency closed the case. 

 

[¶6] Given this history, DFS required Mother to demonstrate that she had a safe place 

for the Child to live before releasing him, but she refused to allow the investigator into 

the house where she said they were staying. Mother also tested positive for 

methamphetamine use. A neglect action was filed, and, after a shelter care hearing, the 

juvenile court ordered that the Child remain in DFS custody. 
2

[¶7] In July 2013, the parties stipulated to a consent decree in the juvenile case.1 Under 

the terms of the consent decree and the court order accepting it, the neglect action would 

be dismissed without adjudication if Mother completed the objectives of her DFS case 

plan. Among other things, the case plan required Mother to participate in substance 

abuse and mental health counseling and to execute releases allowing DFS access to her 

counseling records. 

[¶8] Although Mother made some effort to locate suitable housing and employment 

and attended counseling, she did not fully comply with the case plan. She continued to 

use methamphetamine and failed to complete the required drug testing. Consequently, in 

January 2014, DFS moved to reinstate the proceedings and adjudicate Mother as having 

neglected the Child. The juvenile court granted the motion. After the adjudication, DFS 

continued to make efforts to rehabilitate Mother with the goal of reunifying the family. 

The agency provided various services to Mother, including substance abuse treatment and 

mental health counseling. However, she did not make adequate progress to complete the 

case plan and, approximately six months later, the juvenile court changed the permanency 

plan from family reunification to adoption. 

[¶9] To implement the new permanency plan, DFS filed a petition in district court to 

terminate Mother’s parental rights to the Child.2 The petition alleged that termination of 

Mother’s parental rights was appropriate under Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v)

LexisNexis 2015), respectively, because: 1) Mother neglected the Child, DFS’s 

reasonable efforts to rehabilitate the family were unsuccessful, and the Child’s health and 

safety would be seriously jeopardized by returning him to Mother; and 2) the Child had 

been in foster care for at least fifteen of the most recent twenty-two months and Mother 

was unfit to have custody and control of the Child. The court appointed the GAL to 

represent the Child and counsel to represent Mother. Mother requested a jury trial on the 

termination action and filed a “Motion in Limine Excluding Guardian ad Litem’s Active 

Participation in Termination of Parental Rights Trial and Exclusion of Evidence Not 

Relevant.” She claimed the GAL should not be allowed to actively participate in the 

termination proceeding because the Child was not a party and evidence pertaining to the 

best interests of the Child was not relevant at the trial. The district court denied Mother’s 

motion “without prejudice to the right of [Mother] to object to any irrelevant evidence 

proposed for introduction at the termination of parental rights trial.” 

[¶10] DFS gave notice that it intended to call several of Mother’s and the Child’s mental 

health providers to testify as experts at trial. Mother filed a motion to exclude that 

testimony, claiming DFS had failed to comply with W.R.C.P. 26(a)(2) which requires 

disclosure of certain information for witnesses designated to give expert testimony. The 

 

1 Consent decrees are governed by Wyo. Stat. Ann. § 14-3-428 (LexisNexis 2015).

2 The State also petitioned to terminate the Child’s father’s parental rights. He did not respond and his 

rights were terminated by default. 
3

district court denied the motion. A four day trial was held on November 30 through 

December 3, 2015. During the trial, the district court ruled that Mother’s mental health 

providers could not testify because she had revoked earlier releases of information and 

invoked her privilege to keep that information confidential. The jury did not reach a 

verdict, and the district court declared a mistrial. 

[¶11] In preparation for a second trial, DFS filed a motion to allow Mother’s mental 

health providers to testify, and the GAL filed a memorandum of law which supported 

DFS’s motion. Mother opposed the motion, once more claiming that her providers 

should not be allowed to testify because the information was privileged. The district 

court ruled that, after considering the matter further, there were several exceptions to the 

privilege which permitted Mother’s mental health providers to testify at trial. 

[¶12] At the conclusion of the second trial, the jury returned a verdict finding that DFS 

had proven both grounds to terminate Mother’s parental rights to the Child. The district 

court entered an order terminating her rights, and she appealed. 

DISCUSSION

[¶13] Although Mother does not present an issue regarding the sufficiency of the 

evidence to terminate her parental rights, the procedural and evidentiary requirements for 

termination of parental rights play some role in resolving this case and bear repeating. 

The right to associate with one’s family is fundamental and protected by due process. 

Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599

(1982). In recognition of the fundamental liberty interest in family relationships, courts

strictly scrutinize petitions to terminate parental rights and require proof of the basis for

termination of parental rights by clear and convincing evidence. Clear and convincing 

evidence is “proof that would persuade a trier of fact that the truth of the contention is 

highly probable.” RGS v. State, Dep’t of Family Servs. (In re KGS), 2017 WY 2, ¶ 14, 

386 P.3d 1144, 1147 (Wyo. 2017), citing In re HLL, 2016 WY 43, ¶ 39, 372 P.3d 185, 

193 (Wyo. 2016).

A. Guardian ad Litem’s Participation in Proceedings to Terminate Parental 

Rights

[¶14] Mother claims the district court erred by allowing the GAL to actively participate 

in the termination proceedings. The role of a guardian ad litem is a question of law that 

requires review of the applicable statutes, administrative rules, and case law. Our review 

is, therefore, de novo. Williams v. Sundstrom, 2016 WY 122, ¶ 19, 385 P.3d 789, 794 

(Wyo. 2016). See also Glover v. State, 860 P.2d 1169, 1173 (Wyo. 1993).

1. General Role of Guardian ad Litem in Termination Proceedings
4

[¶15] Wyo. Stat. Ann. § 14-2-312 (LexisNexis 2015) states in relevant part:

After the petition [to terminate parental rights] has been filed, 

the court shall appoint a guardian ad litem to represent the 

child unless the court finds the interests of the child will be 

represented adequately by the petitioner or another party to 

the action and are not adverse to that party. . . . The 

Wyoming Rules of Civil Procedure, including the right of a 

parent, child or interested person to demand a jury trial, are 

applicable in actions brought under this act.

(emphasis added). We interpreted § 14-2-312 in LM v. Laramie County Dep’t of Family 

Servs. (In re MN), 2007 WY 189, ¶ 6, 171 P.3d 1077, 1080-81 (Wyo. 2007):

Wyo. Stat. Ann. § 14–2–312 is an unambiguous mandatory 

statute that does not allow the district court discretion not to 

appoint a guardian ad litem or not to make the appropriate 

record findings that no guardian ad litem is required. 

Furthermore, the requirement that mandatory statutes be 

obeyed is most compelling in cases such as this, where 

fundamental parent/child relationships are at risk of 

severance. 

(citations omitted). 

[¶16] Mother states that she is not challenging the appointment of the GAL. Instead, she 

questions the GAL’s role. According to Mother, the Child was not a party to the 

termination proceeding but, rather, was in a position similar to a witness. She asserts, 

therefore, that “the GAL’s role in termination cases is akin to any other counsel in a civil 

matter retained to advise someone regarding the issues and protect their interests when 

proper to do so – such as quash subpoenas and the like.” DFS and the GAL counter that 

the GAL was not only entitled, but required, to participate fully in the proceedings. 

[¶17] Mother argues that the Child was not a party to the termination of parental rights

action because, under Wyo. Stat. Ann. § 14-2-310 (LexisNexis 2015), a child cannot be a 

petitioner. She also claims that the Child was not otherwise a party because he was not 

indispensable under W.R.C.P. 19, was not served with a summons, and was not required 

to answer the petition to terminate parental rights. Mother recognizes that § 14-2-312 

gave the Child the right to request a jury trial and Wyo. Stat. Ann. § 14-2-313

(LexisNexis 2015) required service of the petition upon the GAL, but claims those 

statutes do not make the Child a party. 
5

[¶18] We agree with the district court’s ruling that the GAL was entitled to fully 

participate in the action to terminate Mother’s parental rights. Regardless of whether the 

Child was technically a party to the action to terminate Mother’s parental rights, he 

clearly had an interest and rights in the proceeding. We have said that a child has “as 

fundamental a right to familial association as . . . parents.” LM, ¶ 7, 171 P.3d at 1081. 

This Court also recognizes that a child has an interest in divorce and child custody 

matters even though he is not a party. See Waterbury v. Waterbury, 2017 WY 11, ¶ 10, 

388 P.3d 532, 535 (Wyo. 2017); Weiss v. Weiss, 2009 WY 124, ¶ 13, 217 P.3d 408, 412 

(Wyo. 2009); Donnelly v. Donnelly, 2004 WY 72, 92 P.3d 298 (Wyo. 2004). 

[¶19] The child’s rights in a parental rights termination case are protected by 

appointment of a guardian ad litem. Section 14-2-312; LM, ¶¶ 6-7, 171 P.3d at 1080-81. 

Similarly, although there is no statutory requirement for appointment of a guardian ad 

litem in custody cases, courts frequently do so to protect the child’s interests. See, e.g., 

Clark v. Alexander, 953 P.2d 145, 151 (Wyo. 1998); Hanson v. Belveal, 2012 WY 98, 

280 P.3d 1186 (Wyo. 2012). We explained the duties of the guardian ad litem in Moore 

v. Moore, 809 P.2d 261 (Wyo. 1991) and Clark, supra. In Moore, 890 P.2d at 264, we 

stated that the guardian ad litem is “the attorney for the minor whom he is appointed to 

serve” and “participates in the proceedings as an advocate.” We expanded upon the 

Moore ruling in Clark and explained that the guardian ad litem performs dual roles, by 

acting in the child’s best interest and as an advocate in his favor. With regard to the 

guardian ad litem’s participation in court proceedings, we stated:

As counsel, the attorney/guardian ad litem has the opportunity 

and the obligation to conduct all necessary pretrial 

preparation and present all relevant information through the 

evidence offered at trial. Recommendations can be made to 

the court through closing argument based on the evidence 

received. 

Clark, 953 P.2d at 154. Clark, therefore, states that the guardian ad litem should take an 

active part in all court proceedings. 

[¶20] Mother attempts to distinguish Clark and Moore by emphasizing that they 

involved child custody, where the best interests of the child was the paramount issue; 

while, the best interests of the child are not relevant in determining the statutory bases for 

termination of parental rights. Her distinction between the two types of proceedings is 

valid. A typical conflict over which parent should have custody of a child focuses on the 

child’s best interests. See Wyo. Stat. Ann. §§ 20-2-201 (initial custody determination) 

and 20-2-204(c) (LexisNexis 2015) (action to modify custody). See also, Arnott v. 

Arnott, 2012 WY 167, ¶ 18, 293 P.3d 440, 447-48 (Wyo. 2012). On the other hand, we 

stated in BA v. Laramie County Dep’t of Family Servs. (In re FM), 2007 WY 128, ¶ 22, 

163 P.3d 844, 850 (Wyo. 2007) that in termination proceedings, 
6

the determination of the child’s best interests comes into play 

only after statutory grounds for termination of parental rights 

have been established by clear and convincing evidence. See 

Santosky. The United States Supreme Court has said: “[w]e 

have little doubt that the Due Process Clause would be 

offended ‘if a State were to attempt to force the breakup of a 

natural family, over the objections of the parents and their 

children, without some showing of unfitness and for the sole 

reason that to do so was thought to be in the children’s best 

interest.’ ” Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 

549, 555, 54 L.Ed.2d 511 (1978) (quoting Smith v. 

Organization of Foster Families, 431 U.S. 816, 862–863, 97 

S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977) (Stewart, J., 

concurring in judgment)).

[¶21] As we recognized in BA, termination of parental rights cannot be based soley upon 

the best interests of the child.3 However, that does not mean that the guardian ad litem 

cannot participate in the evidentiary portion of the trial. The statutory provisions setting 

forth the requirements for termination of parental rights include factors directly related to 

the child’s well-being. In this case, those factors included: 1) a showing that the Child’s 

health and safety would be seriously jeopardized by returning to Mother under § 14-2-

309(a)(iii); and/or 2) a showing that Mother was unfit to have custody and control of the 

Child under § 14-2-309(a)(v). It is hard to conceive how the GAL’s duty to represent the 

Child as to those factors could be satisfied if the GAL’s participation were curtailed in 

the manner urged by Mother. 

[¶22] A guardian ad litem’s dual duties have also been incorporated into the 

administrative rules applicable to cases involving child protection, children in need of 

supervision, and termination of parental rights cases. Guardian Program Rules and 

Regulations (GAL Rules) Chap. 1, § 2(a) (2013). Like all administrative rules, the GAL 

Rules have the force and effect of law, so long as they are consistent with statute. 

Seherr-Thoss v. Teton County Bd. of County Comm’rs, 2014 WY 82, ¶ 14, n.2, 329 P.3d 

936, 943 n.2 (Wyo. 2014); Billings v. Wyo. Bd. of Outfitters & Guides, 2001 WY 81, ¶ 

24, 30 P.3d 557, 568-69 (Wyo. 2001). The GAL Rules specifically recognize a guardian 

ad litem’s dual role of zealously advocating in favor of the child while making sure the 

child’s best interests are being protected. Id., Chap. 1 § 4(a)(i)-(v), (c). Under the rules, 

 

3

Section 14-2-309(a) does not mention the best interests of the child in setting out the requirements for 

termination of parental rights. However, our case law indicates that the child’s best interests are 

considered after at least one statutory ground for termination has been established. See BA, supra. 

Because this case focuses upon the court proceeding to determine the statutory grounds, we need not 

discuss whether the best interests of the child are properly considered after the grounds for termination 

have been established. 
7

a guardian ad litem’s “presence at and active participation in all hearings is absolutely 

critical.” Id., § 4(c). That participation includes obligations to participate in all pre-trial 

and trial proceedings and to file pleadings, objections, etc. advocating “for the child’s 

preferences and the child’s bests interests.” GAL Rules, Ch. 2, § 3(b)(viii) & (xvi). The 

administrative rules are consistent with the statutory and case law which required the 

GAL to actively participate on behalf of the Child in the proceeding to terminate 

Mother’s parental rights. 

[¶23] Mother’s argument that the GAL’s participation in the action to terminate her

parental rights should have been limited to filing motions to “quash subpoenas and the 

like” is not supported by the applicable statutes, administrative rules, or case law. The 

district court did not err by refusing to restrict the GAL’s participation in this case. 

2. GAL’s Performance in this Case

[¶24] In a somewhat obscure argument, Mother suggests that the GAL failed to properly 

fulfill her role when she did not inform the jury of the Child’s wish to remain with 

Mother. Mother also claims the GAL improperly asked the jury to decide the case based 

upon the Child’s best interests rather than the statutory factors. In Clark, we 

acknowledged the difficulty facing a guardian ad litem when the child’s preference 

conflicts with his best interests. Acting as the attorney for the child, the guardian ad litem 

has an ethical duty to “‘abide by a client’s decisions concerning the objectives of

representation.’” Clark, 953 P.2d at 152, quoting Wyo. R. Prof. Cond. 1.2. However, in 

the role of guardian ad litem, the attorney is obligated to act in the client’s best interests. 

Id. We reconciled the two potentially adverse roles, as follows:

Contrary to the ethical rules, the attorney/guardian ad 

litem is not bound by the client’s expressed preferences, but 

by the client’s best interests. If the attorney/guardian ad litem 

determines that the child’s expressed preference is not in the 

best interests of the child, both the child’s wishes and the 

basis for the attorney/guardian ad litem’s disagreement must 

be presented to the court.

Clark, 953 P.2d at 153-54.

[¶25] Mother argues that the GAL violated her responsibilities by telling the jury she

was recommending that Mother’s parental rights be terminated without also informing 

the jury that the Child’s preference was to be returned to her. We agree that the GAL 

could have presented the Child’s preference more directly; however, she did present 

some evidence on the matter and the jury was very aware that he wanted to be with 

Mother. The record contains many references to the bond between Mother and the Child. 
8

There was also evidence about the emotional problems the Child had while in foster care 

and how much he missed Mother. 

[¶26] Although most of the evidence of the Child’s preference to be with Mother was 

elicited during Mother’s attorney’s cross-examination of the witnesses, some of the 

evidence of the Child’s preference was introduced by the GAL. Responding to the 

GAL’s questions, DFS supervisor, Roberta Volk, described the difficulties the Child had 

being separated from Mother. Ms. Volk testified that the Child “loved his mom. That’s 

never been a question in this case.” Under the GAL’s questioning, another DFS worker 

testified about the Child’s struggles in foster care and that “he was dreaming that his 

mom was coming through the window to take him.” Other witnesses testified, during 

cross-examination by the GAL, about the bond between Mother and the Child and the 

Child’s problems in foster care. While the GAL could have been clearer about the 

Child’s preference to be with Mother, she stated in her closing argument that the Child’s 

struggles in foster care were due to “not being with his mom.” The record, therefore,

demonstrates that the GAL fulfilled her role of presenting the Child’s preference to be 

returned to Mother to the jury. 

[¶27] Mother also asserts that the GAL improperly concentrated her trial presentation 

upon the best interests of the Child rather than the statutory factors for termination of 

parental rights. She claims the GAL encouraged the jury to decide the case based upon 

the Child’s best interests when she told them in closing argument that they should 

consider not only Mother’s situation, but the Child’s as well. Mother likens this case to 

BA, where we reversed the order terminating the mother’s parental rights because DFS 

did not present clear and convincing evidence of the statutory grounds for termination of 

parental rights. 

[¶28] In BA, the evidence at trial focused upon how well the child was doing in foster 

care with his aunt and demonstrated that his “continued placement” with the aunt was “in 

FM’s best interest.” Id., ¶ 21, 163 P.3d at 850. We concluded the mother’s right to due 

process of law was violated when her parental rights were terminated based upon 

evidence of the child’s best interests rather than the statutory factors for termination of 

parental rights. Id., ¶¶ 21-23, 163 P.3d at 850. 

[¶29] It is true, as Mother insists, that the GAL argued to the jury that it should consider 

the Child’s situation. While this argument could pertain to the Child’s best interests, it 

also clearly referenced evidence relevant to determining the statutory factors for 

termination of parental rights. Under § 14-2-309(a)(iii), the jury needed to know what 

was required to keep the Child healthy and safe in order to determine if his health and 

safety would be seriously jeopardized if he were returned to Mother. Additionally, this 

Court has defined “fitness” in § 14-2-309(a)(v) as the parent’s “ability to meet the 

ongoing physical, mental and emotional needs of the child.” RLA v. State, Dep’t of 

Family Servs. (In re LA), 2009 WY 109, ¶ 14, 215 P.3d 266, 269 (Wyo. 2009). See also, 
9

RGS, ¶ 16, 386 P.3d at 1147. The jury could not determine whether Mother was able to 

meet the Child’s needs without knowing what they were. The trial evidence included 

testimony by the Child’s medical and mental health providers about his specific needs 

and Mother’s problems, including substance abuse and mental health issues, which would 

prevent her from addressing his needs and keeping him healthy and safe. Thus, the 

GAL’s argument that the jury should consider the Child in making its determinations was 

not an improper argument based upon the Child’s best interests. 

[¶30] Furthermore, to dispel any possibility that the jury would misunderstand the 

GAL’s argument, the district court expressly instructed the jury: 

The child’s best interests is not an element of the 

claims to be decided by the jury in this case. The child’s best 

interests come into play only after statutory grounds for 

termination of parental rights have been established by clear 

and convincing evidence. 

This case, therefore, is nothing like BA, where the evidence focused solely on the child’s 

best interests. 

[¶31] Under our statutes, administrative rules and case law, the district court properly 

allowed the GAL to actively participate in the termination proceedings. Additionally, the 

GAL did not violate her duties or Mother’s due process rights because she presented the 

Child’s preference to the jury and did not improperly argue that it should decide the case 

based upon the Child’s best interests. 

B. Treating Provider Testimony

[¶32] Mother maintains the district court erred by allowing her substance abuse and 

mental health providers to testify at trial. She claims their testimony should have been 

excluded on two bases: 1) DFS did not properly disclose it under W.R.C.P. 26; and 2) it

was privileged information. Because Mother properly objected to the testimony, we 

review the district court’s decision using the abuse of discretion standard. CL v. ML, 

2015 WY 80, ¶ 15, 351 P.3d 272, 277 (Wyo. 2015).

A trial court’s rulings on the admissibility of evidence

are entitled to considerable deference, and, as long as there 

exists a legitimate basis for the trial court’s ruling, that ruling 

will not be disturbed on appeal. The appellant bears the 

burden of showing an abuse of discretion. 
10

Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo. 2015), quoting Glenn v. Union 

Pacific R.R. Co., 2011 WY 126, ¶ 12, 262 P.3d 177, 182 (Wyo. 2011). See also CL, ¶ 15, 

351 P.3d at 277. To the extent resolution of this issue requires interpretation of statutes 

or court rules, our review is de novo. Williams, ¶ 19, 385 P.3d at 794; Busch v. Horton 

Automatics, Inc., 2008 WY 140, ¶ 13, 196 P.3d 787, 790 (Wyo. 2008) (stating de novo

review applies to interpretation of statutes and rules of procedure). 

1. Discovery Requirements

[¶33] The district court ordered the parties to “fully comply” with Rule 26(a)(2) 

“relative to the identification and disclosure of expert witnesses that are subject to the 

requirements thereof.” Mother argues that the district court erred by allowing her mental 

health providers to testify as experts because DFS failed to provide the expert report and 

other materials mandated by Rule 26(a)(2)(B). Mother quotes an earlier version of the 

rule in her brief which did not include any subsections and pertained only to disclosure 

for witnesses “retained or specially employed to provide expert testimony.” Rule 

26(a)(2)(B) (2010). The 2014 version of Rule 26(a), which applied to this case, stated: 

(2) Disclosure of expert testimony.

(A) . . . a party shall disclose to other parties the identity 

of any person who may be used at trial to present evidence 

under Rules 702, 703, or 705 of the Wyoming Rules of 

Evidence.

(B) (i) Except as otherwise stipulated or directed by the 

court, this disclosure shall, with respect to a witness who is 

retained or specially employed to provide expert testimony in 

the case or whose duties as an employee of the party regularly 

involve giving expert testimony, be accompanied by a written 

report prepared and signed by the witness or disclosure signed 

by counsel for the party. The report or disclosure shall contain 

a complete statement of all opinions to be expressed and the 

basis and reasons therefor; the data or other information 

considered by the witness in forming the opinions; any 

exhibits to be used as a summary of or support for the 

opinions; the qualifications of the witness, including a list of 

all publications authored by the witness within the preceding 

ten years; the compensation to be paid for the study and 

testimony; and a listing of any other cases in which the 

witness has testified as an expert at trial or by deposition 

within the preceding four years.
11

(ii) Unless otherwise stipulated by the parties or ordered 

by the court, if the witness is expected to provide opinions but 

no report or disclosure under (B)(i) is required, a party must 

provide a summary of the facts or opinions to which the 

witness is expected to testify and disclose the subject matter 

on which the witness is expected to present evidence under 

Rules 702, 703 or 705 of the Wyoming Rules of Evidence.

4

(footnote added).

[¶34] Mother argues that she was entitled to the comprehensive expert report and other 

materials mandated by Rule 26(a)(2)(B)(i). However, as the district court noted, that 

requirement did not apply to Mother’s treating providers, as they were not specially 

retained or employed to provide expert testimony. See Tracy v. Tracy, 2017 WY 17, ¶ 

38, 388 P.3d 1257, 1265 (Wyo. 2017); JN v. RFSG (In re HLG), 2016 WY 35, ¶¶ 22-23, 

368 P.3d 902, 907-08 (Wyo. 2016). The district court properly denied Mother’s motion 

to exclude the experts’ testimony on that basis. 

[¶35] Mother does not make any argument regarding the part of Rule 26 that actually

applies to her treating providers – subsection (B)(ii). A party intending to call a treating 

provider as an expert witness is required to produce “a summary of the facts or opinions 

to which the witness is expected to testify and disclose the subject matter on which the 

witness is expected to present evidence under Rules 702, 703 or 705 of the Wyoming 

Rules of Evidence.” Rule 26(a)(2)(B)(ii) (2014); JN, ¶¶ 22-23, 368 P.3d at 907-08. 

Given Mother does not argue that DFS failed to provide the information required under 

subsection (B)(ii), we will not address this issue.

2. Privilege

[¶36] Mother also argues that the district court erred by allowing her mental health 

providers to testify to privileged communications. The district court excluded the mental 

health providers’ testimony during the first trial because Mother had revoked her earlier 

authorizations for disclosure of confidential information. Prior to the second trial, DFS 

filed a motion for a pretrial ruling on the issue and the GAL filed a memorandum in 

support of the motion. DFS and the GAL argued that the information should not be 

excluded because: 1) it had already been disclosed pursuant to releases executed by 

Mother; and 2) the information fell within various statutory exceptions to the privilege. 

The district court ruled that the testimony would be allowed over Mother’s objection 

because it fell within several exceptions to the privilege. 

 

4 Effective March 1, 2017, Rule 26 was amended and renumbered consistent with Fed. R. Civ. P. 26. 
12

[¶37] We have generally described a privilege as “‘a limitation on a court’s ability to 

compel testimony regarding confidential communications that occur in certain 

relationships. 8 Wigmore, [Evidence ] § 2285 at 527 [(McNaughton rev. 1961)].’” 

Cooper v. State, 2002 WY 78, ¶ 8, 46 P.3d 884, 888 (Wyo. 2002), quoting Curran v. 

Pasek, 886 P.2d 272, 275 (Wyo. 1994). Wyo. Stat. Ann. § 33-38-113 (LexisNexis 2015)

establishes a privilege for information communicated by a patient or client to professional 

counselors, marriage and family therapists, social workers, and chemical dependency 

specialists “for the purpose of diagnosis, evaluation or treatment of any mental or 

emotional condition or disorder.” Disclosure of the information is not allowed unless 

there is an “express waiver of the privilege” by the client or patient or an exception

applies. Section 33-38-113(a). 

[¶38] Although the district court did not discuss the impact of Mother’s releases upon 

her claim of privilege, we will consider whether Mother expressly waived the privilege 

because we can affirm the district court on any basis appearing in the record. Leach v.

State, 2013 WY 139, ¶ 19, 312 P.3d 795, 799 (Wyo. 2013). The trial evidence included 

certain documents from the juvenile case. One of those was the juvenile court’s order 

accepting the parties’ stipulated consent decree which required Mother to comply with 

the DFS case plan. The case plan identified Mother’s mental health/coping skills, 

substance abuse, and parenting skills as safety and risk issues that needed to be 

addressed. Under the terms of the case plan, Mother was required to “work with her 

individual counselor and substance abuse counselors” and to “sign forms to release/share 

information” from her counseling with DFS. Mother signed the case plan. 

[¶39] The record contains a release signed by Mother. It was an express waiver of the 

privilege because it “clearly and unmistakably conveyed [Mother’s] intent to relinquish 

[her] statutory right” to the privilege by allowing the provider to release information to 

DFS. Cooper, ¶ 13, 46 P.3d at 889. Although the record contains only one of the 

releases signed by Mother, DFS represented to the district court that Mother had also 

executed releases for her other providers. The providers’ and DFS employees’ testimony 

confirms that information consistent with the providers’ trial testimony was shared with 

DFS and/or at MDT meetings pursuant to Mother’s releases. 

[¶40] Mother, nevertheless, asserted that her later revocation of the releases prevented 

that information from being used at trial. In Trujillo v. State, 880 P.2d 575, 581 (Wyo. 

1994), we stated that a subsequent revocation of a release will not prevent testimony 

about information previously disclosed pursuant to that release. Trujillo followed the 

general rule recited in 81 Am.Jur.2d Witnesses § 456 (2017): 

Once a patient consents to the release of medical 

information, he or she destroys the confidentiality between 

him or her and the doctor with regard to that information, and 
13

the revocation of that consent does not reinstate the privilege 

with regard to information already disclosed.

[¶41] The release signed by Mother included in the record incorporated this general rule 

into its express terms:

[I] understand that I have the right to revoke this 

authorization at any time by notifying this office [in w]riting. 

I understand the revocation is only effective after it is 

received by this office. [I] understand that any use or 

disclosure made prior to the revocation of this authorization 

will not [be a]ffected by the revocation. 

Therefore, Mother was not entitled to reinstate the privilege for information that was 

previously disclosed pursuant to an “express waiver” of the privilege. See § 33-38-113. 

[¶42] Furthermore, even without the express waivers, the evidence was admissible at 

trial. Wyo. Stat. Ann. § 14-3-210 (LexisNexis 2015) states:

(a) Evidence regarding a child in any judicial 

proceeding resulting from a report made pursuant to W.S. 14-

3-201 through 14-3-215 shall not be excluded on the ground 

it constitutes a privileged communication:

(i) Between husband and wife;

(ii) Claimed under any provision of law other than 

W.S. 1-12-101(a)(i) and (ii); or

(iii) Claimed pursuant to W.S. 1-12-116.

[¶43] Wyo. Stat. Ann. § 14-3-205 (LexisNexis 2015) pertains to reports of negligence:

(a) Any person who knows or has reasonable cause to believe 

or suspect that a child has been abused or neglected or who 

observes any child being subjected to conditions or 

circumstances that would reasonably result in abuse or 

neglect, shall immediately report it to the child protective 

agency or local law enforcement agency or cause a report to 

be made.

[¶44] Mother claims there was no report of negligence in this case. Instead, she 

characterizes the circumstances that led to the neglect charge as a simple report of a “lost 
14

child.” A citizen called law enforcement after finding the Child who was two years old, 

wandering alone near a busy street, wearing nothing but a T-shirt and socks, and very 

cold. Mother did not show up looking for the Child until forty minutes after law 

enforcement arrived. Under these circumstances, there was certainly reasonable cause to 

believe or suspect that the Child was being subjected to conditions or circumstances that 

would reasonably result in neglect. 

[¶45] Another requirement for § 14-3-210 to apply is that the information disclosed by 

Mother’s counselors be “regarding a child.” We interpreted identical language from an 

earlier version of the statute in CP v. Laramie County Dep’t of Pub. Assistance and 

Social Servs. (In re: PP), 648 P.2d 512, 516-17 (Wyo. 1982), overruled on other grounds 

by Clark, 953 P.2d at 154, n.6. Like the case at bar, PP was a parental rights termination 

action resulting from the mother’s neglect of the child. We ruled that the mother’s 

psychologist and physician5could testify about communications with her because they 

were “regarding a child.” We explained that “[e]vidence of [the child’s physical, 

emotional and mental] condition and the cause thereof was inextricably bound up in the 

mental and physical state of [the mother].” Id. at 516-17. 

[¶46] Here, DFS’s Notice of Conclusions from its investigation was entered into 

evidence at the termination hearing and stated:

The allegations of lack of supervision have been substantiated 

as to the preponderance of the evidence has been met [sic] 

due to interviews of involved parties and urinalysis testing of 

[Mother]. Further, [Mother] stipulated to the allegations of 

neglect on July 26, 2013, placing her under the jurisdiction of 

the court.

Mother’s case plan indicated that the therapy was intended to address her substance abuse 

and mental health issues so the neglect would not be repeated in the future. Like in CP,

Mother’s physical and mental state was at the heart of the claim that she neglected the 

Child; consequently, it was clearly “evidence regarding a child.” Section 14-3-210. 

[¶47] Mother argues that § 14-3-210 was impliedly repealed by § 33-38-113 which, as 

we explained above, provides that communications with counselors and therapists are 

generally privileged, but also provides exceptions to the privilege. 

[O]ur longstanding rule is that repeals by implication are not 

favored and will not be indulged if there is any other 

reasonable construction. One asserting implied repeal bears 

 

5

 The current version of § 14-3-210 does not create an exception to the privilege for communications 

between physician and patient under § 1-12-101(a)(i) or (ii). Section 14-3-210(a)(i). 
15

the burden of demonstrating beyond question that the 

legislature intended that its later legislative action evinced an 

unequivocal purpose of affecting a repeal. Furthermore, it 

must be shown that the later statute is so repugnant to the 

earlier one that the two cannot logically stand together, or that 

the whole subject of the earlier statute is covered by the later 

one having the same object, clearly intending to prescribe the 

only rules applicable to the subject.

Meyer v. Fanning (In re Est. of Meyer), 2016 WY 6, ¶ 29, 367 P.3d 629, 638 (Wyo. 

2016), quoting Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 11, 61 P.3d 1229, 1233 

(Wyo. 2003), which quoted Shumway v. Worthey, 2001 WY 130, ¶ 15, 37 P.3d 361, 367 

(Wyo. 2001). We see no indication that the legislature intended to repeal § 14-3-210 

when it enacted § 33-38-113. In fact, the two statutes are complementary. Section 33-

38-113(a)(i) provides an exception to the privilege “[w]here abuse or harmful neglect of 

children, the elderly or disabled or incompetent individuals is known or reasonably 

suspected.” This exception is entirely consistent with § 14-3-210. 

[¶48] Finally, Mother claims that by allowing introduction of the evidence from her 

therapy, the policies underlying the privilege in § 33-38-113 were violated. In Cooper, ¶ 

8, 46 P.3d at 888, we stated:

The policy underlying the statutory privilege at issue is to 

encourage full and frank disclosure between an individual and 

a person authorized to practice under Title 33, Chapter 38 for 

the purpose of effective diagnosis, evaluation, and treatment. 

Developments in the Law—Privileged Communications, 98 

Harv. L. Rev. 1450, 1472–73 (1985). Similar privileges have 

been justified on the bases that (1) counseling relationships 

would suffer if people chose not to communicate essential 

information to professionals because they feared that the 

professionals would be compelled to disclose such 

information in court and (2) such relationships involve the 

professional and the individual in an intimate relationship in 

which personal information is communicated that should be 

protected from public disclosure. Id. at 1531. The Wyoming 

legislature codified this privilege, and our judicial system 

must act to protect its purpose.

However, the statutory exceptions to the privilege recognize that other legitimate 

concerns sometimes take precedence over the confidentiality guaranteed by the privilege. 

It is up to the legislature, not this Court, to weigh the competing policies and decide when 

a claim of privilege should and should not be allowed. See Cheyenne Newspapers, Inc. v. 
16

Bd. of Trustees of Laramie County Sch. Dist. #1, 2016 WY 113, ¶ 24, 348 P.3d 679, 685-

86 (Wyo. 2016). 

CONCLUSION

[¶49] Pursuant to Wyoming statutes, administrative rules, and case law, the GAL was 

required to participate fully in the termination proceedings. The trial court, therefore,

correctly denied Mother’s motion to restrict the GAL’s role. In addition, the GAL did 

not improperly attempt to persuade the jury to make its decision based upon the best 

interests of the Child, and the GAL properly presented the Child’s preference to be with 

Mother to the jury. 

[¶50] The district court correctly allowed Mother’s mental health providers to testify 

about her communications with them. Because they were treating providers, DFS was 

not required to provide the full expert report and other materials required by Rule 

26(a)(2)(B)(i) (2014). The testimony was also properly allowed over Mother’s claim of 

privilege because the information had previously been disclosed pursuant to valid 

releases and was statutorily excepted from the privilege. 

[¶51] Affirmed.