DG, In Interest of

• Decision Date: 29 January 1992
• Docket Number: No. C-91-2,C-91-2
• Citation: 825 P.2d 369
• Parties: In the Interest of DG, JG and CW, Minor Children. WR, Appellant (Respondent), v. Marianne LEE, Director for the Natrona County Department of Public Assistance and Social Services, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 369

825 P.2d 369

In the Interest of DG, JG and CW, Minor Children.

WR, Appellant (Respondent), v. Marianne LEE, Director for the Natrona County Department of Public Assistance and Social Services, Appellee (Petitioner).

No. C-91-2.

Supreme Court of Wyoming.

Jan. 29, 1992.

H. Steven Brown of Brown, Raymond & Rissler, P.C., Casper, for appellant.

Joseph B. Meyer, Atty. Gen., Michael L. Hubbard, Senior Asst. Atty. Gen., and Richard E. Dixon, Asst. Atty. Gen., for appellee.

Gloria J. Monroe, Casper, guardian ad litem.

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

URBIGKIT, Chief Justice.

This jury-trial determined parental termination case presents the issue of proper service of process to obtain jurisdiction over a non-resident mother. Finding no proper service to jurisdictionally sustain entry of the order of termination of the parent-child relationship under the Wyoming statutes, we reverse.

I. ISSUES

In this case, factually showing insufficiency of parenting defined by a jury verdict but now compelled to decision by the requirement for proper service of process, appellate issues defined by the mother as appellant ¹ include:

[I.] The district court improperly denied appellant's motion to dismiss for improper service and its verdict is null and void.

[II.] The Wyoming termination of parental rights statute is unconstitutional as it denies defendants due process and equal protection under the Wyoming constitution.

[III.] The district court erred when it refused appellant's proposed jury instructions.

Appellee Marianne Lee, director of what was formerly the Natrona County Department of Public Assistance and Social Services ² and is now the Department of Family Services, rephrases the issues:

I. Did constructive service of petition on appellant satisfy the requirement of W.S. 14-2-313(b) and thus confer personal jurisdiction of appellant upon the trial court?

II. Is the compelling state interest in the welfare of our children sufficient to countervail fundamental parental rights when the two collide?

III. Were the instructions given by the trial court to the jury in this case clear declarations of pertinent law?

Because this appeal is jurisdictionally determined on the basis of insufficient service of process, extensive review of other contended issues is pretermitted.

II. FACTS

This proceeding, undertaken in the district court of Natrona County, Wyoming by the filing of a petition for termination of parental rights, involved three children: JG, age seven; CW, age six; and DG, age four. The petition was signed, verified and then filed in the district court by the director of Natrona County DPASS. The document, dated and acknowledged January 31, 1990, was filed in the district court March 21, 1990 including a notice of hearing scheduled for May 11, 1990. Neither an order to show cause nor a summons was issued and the petition lacked the name or signature of any attorney to represent DPASS.

Sometime in late March, the petition for termination was mailed to the mother of the three children, WR, who was then alleged to reside in Sheridan, Colorado. The document also included the name of the father for two of the children and alleged his residence in Arizona, with no father stated for the third child. All three children had been under the supervision of DPASS through foster home services in Natrona County since about 1986. ³

On April 23, 1990, an order was issued appointing counsel (present appellate counsel) to represent the mother as an indigent person. ⁴ Immediately following appointment, the mother's counsel first responded to the petition for termination with a motion to dismiss filed May 8, 1990, which stated:

COMES NOW the Respondent, [WR], by and through undersigned counsel, and moves this Court for an Order dismissing Petitioner's Petition for the following reasons:

1. The Department of Public Assistance and Social Services must be represented by counsel.

2. The Petitioner, Marianne Lee, is not representing herself and is not authorized to practice law.

3. The Respondent was not properly served with copy of Petition pursuant to Rule 12(b)(5) of the Wyoming Rules of Civil Procedure.

WHEREFORE, Respondent prays that Petitioner's Petition be dismissed and for such other and further relief as this Court deems just and proper.

The record demonstrates that at the time the mother's counsel filed the motion to dismiss, no attorneys had yet entered an appearance to represent the children as guardian ad litem or for representation of DPASS in the litigation.

Sequentially, three days after the motion to dismiss was filed, the mother's counsel filed a general denial answer. Included in her answer was an affirmative attack on the factual lack of negligence or abuse of the children for termination justification and a claim that the proposed guardian ad litem was not the best choice to be appointed for variant reasons. Regardless of the mother's assertion, the court appointed the petitioned guardian ad litem to represent the children. Also, the district attorney's office in Natrona County entered an appearance to represent DPASS. The mother requested and received a jury trial. Jury findings of abuse and neglect, jeopardy of health and safety, and unsuccessful efforts to rehabilitate the family resulted in a jury verdict unfavorable to the mother. Consequently, the termination order was entered and is the final order from which appeal is taken. The structure of the appeal does not present any sufficiency of the evidence questions to attack that verdict.

The trial commenced on February 27, 1991. Prior to trial, the district court had not taken any action on the mother's motion to dismiss filed May 8, 1990. However, with the start of the trial, the district attorney's office filed an affidavit in resistance to the motion to dismiss which, unsupported by briefing, stated:

I, * * *, Assistant District Attorney for the Seventh Judicial District and attorney for the Petitioner, Natrona County Department of Public Assistance and Social Services herein, upon my oath depose and state as follows:

1. That a Petition was filed in the captioned matter on March 21, 1990, * * * seeking the termination of the parental rights of [WR] and [GG].

2. That service of a summons cannot be made within the State of Wyoming and that their last known address is as follows: [WR], * * *, Sheridan, Colorado * * *; [GG], * * *, Phoenix, Arizona * * *. That this case is one of those mentioned in Wyoming Rule of Civil Procedure 4(e) as authorized in W.S. § 14-2-313(b).

3. That pursuant to W.S. § 14-2-312, the District Court set the Petition for hearing on May 11, 1990, at 9:00 a.m.

4. That a copy of the Petition was sent to each Respondent at the above-listed address by certified mail, return receipt requested. That [WR] received a copy of the Petition filed herein on April 5, 1990, as indicated by the domestic return receipt attached hereto as Exhibit A. Further, that [GG] [the father] received a copy on April 7, 1990, as indicated by the domestic return receipt attached hereto as Exhibit B.

5. That this Affidavit is submitted pursuant to requirements of Wyoming Rule of Civil Procedure Rule 4(1)(e) and W.S. § 14-2-313.

Attached to the affidavit of the district attorney were the return receipts signed by the mother (undated but postmarked April 5, 1990) and by the father of the two children (similarly signed with a delivery date of April 7, 1990). The status of the father for the third child is undisclosed in the record.

It is the district court's order denying the motion to dismiss for lack of jurisdiction because of improper service of process from which this appeal is substantively now presented:

THIS MATTER having come before the Court this 11th day of May, 1990, on Respondent, [WR's] Motion to Dismiss, the State of Wyoming being represented by * * *, Assistant District Attorney, the Guardian Ad Litem for the minor children, * * *, being present, the Court having heard the argument of counsel, having reviewed the file and being fully advised in the premises, does hereby find that proper service of the original Petition filed herein was obtained on the Respondent, [WR], and that an Affidavit of Mailing had not been filed herein, the appearance of the Respondent by counsel cured any defect in the service of process and that therefore proper service of process has been obtained over the Respondent, [WR], in this matter. Further, this Court finds that the Petition prepared and signed by Marianne Lee is authorized by W.S. § 14-2-310 and that the Respondent's Motion to Dismiss should be denied;

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Respondent's Motion to Dismiss is hereby denied, that proper service has been obtained over the Respondent, [WR], and she should answer or otherwise plead to the Petition filed herein forthwith.

Since no summons or order to show cause had ever been issued, any compliance with service of process requirements was limited to one certified, return receipt requested mailing of the initial petition by DPASS. The petition provided in its text a stated date for a hearing, but no answer date. No proof of service by filing the return receipt was filed with the district court until the date of trial.

III. DISCUSSION

We will address the issues of jurisdiction and service of process in sequence: a) sufficiency of the initial service of process to provide jurisdiction; b) contended waiver of improper service by filing the answer after the motion to dismiss was presented; and c) propriety of pro se appearance by the director of the Natrona County DPASS in initial filing of the petition and its effect on the district court's acquisition of jurisdiction. We also address the constitutionality of the termination statute and whether the district court committed error in refusing the mother's proposed jury instructions.

A. Sufficiency of the Initial Service of...