Adoption of JLP, Matter of

• Decision Date: 25 May 1989
• Docket Number: No. C-88-12,C-88-12
• Citation: 774 P.2d 624
• Parties: In the Matter of the ADOPTION OF JLP. RHF, Appellant (Respondent), v. RMC and RNC, Appellees (Petitioners).
• Court: Wyoming Supreme Court

Page 624

774 P.2d 624

58 USLW 2011

In the Matter of the ADOPTION OF JLP RHF, Appellant (Respondent), v. RMC and RNC, Appellees (Petitioners).

No. C-88-12.

Supreme Court of Wyoming.

May 25, 1989.

James A. Raymond of Brown, Raymond & Rissler, P.C., Casper, for appellant.

Eric A. Distad, Casper, for appellees.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

MACY, Justice.

Appellant RHF appeals from an order terminating his parental rights to JLP and from a subsequent decree of adoption by which appellee RNC, as stepfather of JLP and husband of appellee RMC, adopted the minor child. Appellant, as a convicted rapist serving a lengthy prison sentence, essentially challenges the determination that he is unfit to have custody and control of the minor child.

We affirm.

Appellant states the issues as being:

I.

WHETHER RULE 56, W.R.C.P., IS APPLICABLE TO AN ADOPTION PROCEEDING.

II.

WHETHER THE CRITERIA OF § 14-2-308, ET SEQ., W.S.1977, MAY BE CONSIDERED IN A PROCEEDING FOR ADOPTION PURSUANT TO § 1-22-101, ET SEQ., W.S.1977.

III.

WHETHER PETITIONERS SHOWED BY CLEAR AND CONVINCING EVIDENCE FACTS SUFFICIENT TO GRANT AN ADOPTION WITHOUT PARENTAL CONSENT.

Appellees, alternatively, describe the issues in this manner:

I.

WHETHER Rule 56, W.R.C.P., is applicable in an action seeking the termination of parental rights and adoption?

II.

WHETHER the criteria of W.S. 14-2-308 may be considered in an action based jointly on W.S. 1-22-101 and W.S. 14-2-308?

III.

WHETHER Petitioners presented, by clear and convincing evidence, facts sufficient to terminate Appellant's parental rights, thereby rendering his consent to adoption unnecessary?

Although we believe that appellees have more accurately identified the issues presented by this case, we would synthesize as the dispositive issue: Whether or not summary judgment is available in an action to terminate parental rights and, if so, whether or not appellees established, by clear and convincing evidence, facts sufficient to terminate the parental rights of appellant in this case.

Appellant is the natural father of JLP. JLP was born on July 8, 1983. Appellant never married RMC, the child's mother, but apparently they resided together after the birth of JLP until appellant's present incarceration, which commenced upon his arrest on two rape charges in April 1985. In October 1985 appellant was sentenced to a term of twenty-five to thirty years in the Wyoming State Penitentiary in connection with the two rapes, one of which involved the rape of an elderly woman who subsequently died.

RMC and RNC were married in November 1986. In April 1987 they filed a petition for adoption wherein they sought the termination of appellant's parental rights and the adoption of JLP by RNC. As grounds for the termination of appellant's parental rights, the petition listed appellant's incarceration and unfitness pursuant to Wyo.Stat. § 14-2-309 (1977) of the termination statutes. Additionally, the petition alleged that appellant had abandoned the child and had failed to contribute to the child's support. These allegations were made pursuant to Wyo.Stat. § 1-22-110 (1977) of the adoption statutes, which provides for adoption without the consent of a natural parent.

Appellant was served with the petition at the penitentiary, and he filed various pro se pleadings in response, including a petition to establish his paternity. In July 1987 appellant filed an untimely demand for a jury trial. ¹ The district court did not respond to the demand for a jury trial, and the demand apparently was deemed to have been waived as not being timely and for failure to file the requisite fee. See W.R.C.P. 38. ² Appellees served a request for admissions upon appellant to which he responded. Social studies were ordered and prepared in accordance with Wyo.Stat. § 14-2-314 (1977). In August 1987 a guardian ad litem was appointed to represent the interests of JLP, and counsel for appellant was appointed in November 1987.

After a pretrial conference held August 5, 1988, the matter was set for a hearing on October 3, 1988. Thereafter, however, appellees filed a motion for summary judgment on the termination question. A hearing on the motion was held September 21, 1988, with the guardian ad litem and counsel for both parties in attendance. On October 4, 1988, the district court granted the motion, thereby terminating appellant's parental rights. The decree of adoption was entered on October 6, 1988, after a hearing held on that day.

As a preliminary matter, we note our agreement with appellees that this case involves only a review of a termination action decided pursuant to the termination statutes. Wyo.Stat. §§ 14-2-308 to -319 (1977). Appellant attempts to posture the case as strictly an adoption proceeding premised solely upon the adoption statutes, Wyo.Stat. §§ 1-22-101 to -116 (1977), and argues that the criteria of the termination statutes were improperly considered in the proceeding. We observe, however, that the petition for adoption requested a termination of appellant's parental rights pursuant to the termination statutes. In addition, the termination proceeding was prosecuted separately from, although incidentally to, the adoption proceeding, and the district court properly relied upon § 14-2-309 of the termination statutes in its order terminating appellant's parental rights. At the motion hearing, counsel for appellees specifically stated that the motion was made on the basis of § 14-2-309(a)(iv). The actual adoption was accomplished in a later related proceeding. Thus, we are not reviewing an action in the nature of an adoption proceeding against a nonconsenting parent pursuant to § 1-22-110. ³ If appellant's parental rights were properly terminated, and we herein determine they were, then appellant was a stranger to the subsequent adoption proceeding and had no right to object to or participate in that proceeding. Section 14-2-317. See also PAA v. Doe, 702 P.2d 1259 (Wyo.1985) (same effect under § 1-22-110(a)(vii) where father was adjudged guilty of cruelty, abuse, neglect, or mistreatment of the child--his consent to adoption was not required, and he was a stranger to adoption proceeding). Thus, we review only the propriety of the order terminating appellant's parental rights.

Our review of a termination of parental rights is guided by the following principles. The application of the termination statutes is a matter of strict scrutiny. AG v. Big Horn County Department of Public Assistance and Social Services, 762 P.2d 42 (Wyo.1988); JG v. Quillen, 742 P.2d 770 (Wyo.1987). Strict scrutiny is required because of the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children. PL v. Johnson County Department of Public Assistance and Social Services, 761 P.2d 985 (Wyo.1988); JG, 742 P.2d 770. The evidence supporting a termination must be clear and convincing. Section 14-2-309(a); ZLW v. Johnson County Department of Public Assistance and Social Services, 761 P.2d 1000 (Wyo.1988); LP v. Natrona County Department of Public Assistance and Social Services, 679 P.2d 976 (Wyo.1984). Due to the fundamental nature of the rights affected by a termination action, the procedures involved must satisfy due process. LP, 679 P.2d 976; Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). See also Blair v. Supreme Court of State of Wyoming, 671 F.2d 389 (10th Cir.1982), wherein the Tenth Circuit noted that former Wyo.Stat. § 14-2-305(a) (1977) (repealed in 1981) provided that no order terminating parental rights may be entered without a hearing. ⁴

Is a termination of parental rights accomplished by summary judgment after a motion hearing compatible with the foregoing principles? Generally, we think not. ⁵ Rarely could a petitioner establish its case under any of the various grounds available pursuant to § 14-2-309 without a full evidentiary hearing. The instant case, however, presents a situation which we believe comes within the purview of the principle, articulated by the United States Supreme Court in a related context, that "fundamental fairness may be maintained in parental rights termination proceedings even when some procedures are mandated only on a case-by-case basis, rather than through rules of general application." Santosky, 455 U.S. at 757, 102 S.Ct. at 1397, citing Lassiter, 452 U.S. 18, 101 S.Ct. 2153. In Lassiter, the Supreme Court held that the constitution does not require the appointment of counsel for an indigent parent in every termination proceeding and that the decision as to whether the appointment of counsel is required is to be made in the first instance by the trial court, subject to appellate review. Id., 452 U.S. at 31-32, 101 S.Ct. at 2161-62.

In LP, 679 P.2d 976, we held that termination proceedings are civil in nature. Section 14-2-312 specifically provides that the Wyoming Rules of Civil Procedure "are applicable in actions brought under this act." W.R.C.P. 1 reads in material part:

These rules govern procedure in all courts of record in the State of Wyoming, in all actions, suits or proceedings of a civil nature, in all special statutory proceedings except as provided in Rule 81, and in all appeals in criminal cases.

W.R.C.P. 81 provides in part:

Statutory provisions shall not apply whenever inconsistent with these rules, provided, (1) that in special statutory proceedings any rule shall not apply insofar as it is clearly inapplicable * * *.

Thus, our statutes and rules clearly contemplate that W.R.C.P. 56 regarding summary judgment is applicable in proceedings brought pursuant to the termination statutes. Additionally, the Supreme Court decisions in Santosky and Lassiter indicate the fundamental fairness and propriety of a particular...