DRW v. DLP (In re ARW)
| Decision Date | 19 February 2015 |
| Docket Number | No. S–14–0167.,S–14–0167. |
| Citation | 343 P.3d 407,2015 WY 25 |
| Parties | In the Matter of the Termination of Parental Rights to ARW, a minor child. DRW, Appellant (Respondent), v. DLP and MLP, Appellees (Petitioners). |
| Court | Wyoming Supreme Court |
Representing Appellant: Scott C. Murray, Attorney at Law, Casper, Wyoming.
Representing Appellees: John D. Chambers, John D. Chambers, P.C., Casper, Wyoming.
Guardian Ad Litem: Jacqueline K. Brown, Attorney at Law, Casper, Wyoming.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶ 1] Appellant, DRW (Father), appeals from the district court's order terminating his parental rights pursuant to Wyo. Stat. Ann. § 14–2–309(a)(iv). He contends the district court erred in finding that the Indian Child Welfare Act did not apply to the termination proceedings, and that the court erred in denying his request to set aside the entry of default. He also claims there was insufficient evidence to support the district court's decision. We affirm.
[¶ 2] Appellant presents the following issues:
Appellees phrase the issues in a similar manner.
[¶ 3] Appellant is the father of ARW, born in 2002. Appellees, DLP and MLP (Adoptive Couple), have been involved in ARW's life since she was three weeks old, when ARW's biological mother began living in Appellees' home. After Appellant and ARW's mother divorced in 2004, Appellees exercised mother's visitation with ARW under mother's shared custody arrangement with Appellant. Both Appellant and ARW's mother executed powers of attorney providing that Appellees could have physical custody of ARW. In August 2012, ARW's mother, who has had very little involvement in ARW's life, consented to termination of her parental rights and to adoption by Appellees.
[¶ 4] During ARW's lifetime, Appellant was incarcerated several times for drug-related offenses. Due to his incarceration, he did not have contact with ARW until she was approximately nine months old. On multiple occasions, Appellant or his adult children requested that Appellees retrieve ARW from Appellant's home because Appellant was too intoxicated to care for ARW. Appellant consumed alcohol to the point of inebriation almost every day. On two occasions, the Department of Family Services contacted Appellees to take care of ARW due to the condition of Appellant's home. ARW knew what a marijuana pipe was and had learned how to mix Appellant's drinks by the time she was five years old.
[¶ 5] On March 8, 2012, the mother of one of ARW's friends reported to the police that her daughter had been sexually assaulted by Appellant. After receiving the report, the police went to Appellant's house and found him to be extremely intoxicated. During their interview with Appellant, ARW sat on Appellant's lap and Appellant placed his hand on ARW's breast. The police removed ARW from the home and requested that Appellees take physical custody of ARW. The following day, officers executed a search warrant and found marijuana paraphernalia and items of pornography mixed in with children's books next to Appellant's bed. Appellant was arrested. He was subsequently charged with two counts of sexual abuse of ARW's friend.
[¶ 6] On July 26, 2012, Appellees were appointed permanent guardians for ARW without Appellant's consent. Appellees enrolled ARW in counseling, and the counselor recommended that Appellant have no contact with ARW. On February 8, 2013, Appellant pled guilty to two counts of sexual abuse of a minor stemming from his contact with ARW's friend.1 He was sentenced to serve concurrent terms of four to seven years on each count.
[¶ 7] Appellees initiated this action to terminate Appellant's parental rights on April 8, 2013. The petition alleged that Appellant's parental rights should be terminated pursuant to Wyo. Stat. Ann. § 14–2–309(a)(iv), which provides that parental rights may be terminated if it is shown by clear and convincing evidence that “The parent is incarcerated due to the conviction of a felony and ... the parent is unfit to have the custody and control of the child.” After Appellant failed to file a timely answer to the petition, the clerk of court entered default against him on May 8, and set a hearing for June 18. A week prior to the hearing, the court received a letter from Appellant requesting a continuance. At the hearing, the district court ordered that the matter be continued pending the appointment of a GAL and the completion of a home study. Appellant was subsequently granted court-appointed representation on July 26, and on August 29, he filed his answer and motion to set aside the entry of default.
[¶ 8] After a hearing, the district court denied the motion to set aside the default and refused to accept Appellant's answer to Appellees' petition to terminate parental rights. The court determined that Appellant had not demonstrated good cause under W.R.C.P. 55(c) for failing to file his answer in a timely manner.
[¶ 9] A hearing on Appellees' petition to terminate parental rights was subsequently held on February 11, 2014. Because default had been entered, Appellant was limited to opening and closing remarks and cross-examination of witnesses. During the hearing, counsel for Appellant informed the court that, according to Appellant, ARW might be an Indian child, stating that ARW's mother was “half Apache.” Accordingly, Appellant claimed that he was entitled to the protections, including the notice requirements, of the Indian Child Welfare Act.
[¶ 10] Following the hearing, the district court entered an order terminating Appellant's parental rights. The court found that Appellees had proven by clear and convincing evidence Appellant was incarcerated for a felony conviction and that he was unfit to have custody and control of ARW. The court also found that the Indian Child Welfare Act was inapplicable. Appellant filed a timely appeal.
[¶ 11] In his first issue, Appellant contends the district court erred in determining that the Indian Child Welfare Act did not apply to the termination proceedings. Ultimately, whether the ICWA applied to the termination proceedings is an issue of statutory interpretation. Statutory interpretation raises questions of law, which we review de novo. Wyoming Dep't of Envtl. Quality v. Wyoming Outdoor Council, 2012 WY 135, ¶ 8, 286 P.3d 1045, 1048 (Wyo.2012).
[¶ 12] According to Appellant, the district court was required to apply the provisions of the Act after his counsel informed the court at the termination hearing that, according to Appellant, ARW's mother was “half Apache” and ARW was therefore an “Indian child” under the terms of the ICWA. Accordingly, Appellant asserts that, pursuant to Sections 1912(a) and (f) of the Act, the court was required to “notify the parent or Indian custodian and the Indian child's tribe ... of the pending proceedings and their right of intervention,” and Appellees were required to demonstrate beyond a reasonable doubt that “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Appellees respond that, in accordance with the United States Supreme Court's recent decision in Adoptive Couple v. Baby Girl, ––– U.S. ––––, 133 S.Ct. 2552, 2562, 186 L.Ed.2d 729 (2013), because ARW's mother consented to the relinquishment of her parental rights, and because Appellant has not claimed any Native American heritage of his own, the termination of Appellant's parental rights would not precipitate the “breakup of the Indian family” as contemplated by the ICWA. We agree with Appellees.
[¶ 13] In Adoptive Couple v. Baby Girl, 133 S.Ct. at 2558, the biological father, a member of the Cherokee Nation, agreed to relinquish his parental rights to his baby daughter. The birth mother then decided to put the baby up for adoption. Id. The morning after the baby was born, the birth mother signed forms relinquishing her parental rights and consenting to an adoption by a non-Indian couple. Id. Approximately four months later, the adoptive couple served the biological father with notice of the pending adoption. The father signed papers stating that he accepted service and that he was “not contesting the adoption.” The father subsequently requested a stay of the adoption proceedings and asserted that he did not consent to the adoption. Id. at 2558–59. After a trial, the South Carolina Family Court determined that the ICWA applied to the proceedings and that the adoptive couple had not carried the heightened burden under § 1912(f) of proving that the baby would suffer serious emotional or physical damage if the father had custody. Id. at 2559. Accordingly, the Family Court denied the adoptive couple's petition for adoption and awarded custody to the father. Id. The South Carolina Supreme Court affirmed the Family Court's decision after determining that the ICWA applied because the case involved a child custody proceeding relating to an Indian child. Id. The United States Supreme Court subsequently granted the adoptive couple's petition for a writ of certiorari. Id.
[¶ 14] The U.S. Supreme Court reversed the judgment of the South Carolina Supreme Court. The U.S. Supreme Court determined, first, that the text of the Act demonstrated that it was designed primarily to counteract the unwarranted removal of Indian children from Indian families. Id. at 2561. In light of this purpose, the Court concluded that when “the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with...
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