GP, Matter of

• Decision Date: 22 March 1984
• Docket Number: No. C-83-5,C-83-5
• Citation: 679 P.2d 976
• Parties: In the Matter of Parental Rights of GP, JP and SP. LP, Appellant (Respondent), v. NATRONA COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 976

679 P.2d 976

In the Matter of Parental Rights of GP, JP and SP. LP, Appellant (Respondent), v. NATRONA COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Petitioner).

No. C-83-5.

Supreme Court of Wyoming.

March 22, 1984.

John I. Henley of Vlastos, Reeves, Murdock & Brooks, Casper, for appellant.

Nancy Thornton, Casper, for appellee.

Ann Rochelle, Casper, guardian ad litem.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

ROSE, Justice.

This appeal comes here from an action brought by the appellee, Natrona County Department of Public Assistance and Social Services (DPASS) to terminate the parental rights of the appellant, LP, to his son, JP, and to his two daughters, GP and SP. ¹ Appellant raises sensitive and important issues concerning his rights to a jury trial and to a state-funded medical examination of GP. Appellant also challenges the admissibility of certain evidence and the sufficiency of the competent evidence to justify terminating his parental rights to each of his children. We will affirm the judgment of the district court.

Appellant's three children were admitted to the Wyoming State Children's Home on March 1, 1980. At that time, GP was eight years old, JP was four, and SP was almost two. In December, 1981, following a hearing held at the request of the State Children's Home, DPASS assumed the custody and control of JP and SP and placed them with a foster family. GP previously had been placed in the foster care of her natural father.

Based on observations of the physical condition of the children made by State Children's Home personnel and statements of the children themselves, DPASS, in May, 1982, filed a petition to terminate appellant's parental rights on the grounds that he had abused and neglected his three children and had left GP in the care of another person without provision for her support and without communication from him for at least one year. The petition goes on to allege that "the health and safety of each of these children will be seriously jeopardized by remaining with or returning to [LP]." (Emphasis added.)

The appellant filed a pro-se answer on June 22, 1982 generally denying the allegations of the complaint and demanding a jury trial but did not deposit the $12.00 statutory fee nor did he serve the jury demand upon DPASS as required by Rule 38, W.R.C.P. On June 28, 1982, the district court found that LP was a needy person and appointed counsel to represent him. On August 16, 1982, DPASS joined in what for LP was a second request for a jury trial, which the district court denied for the reason that it was not timely filed and the jury fee was not deposited with the clerk. Numerous motions were made, including a motion for costs to retain a qualified physician to examine and test GP to determine her prior sexual activity, which motion was denied. On April 25, 1983, the district court filed its order, judgment and decree terminating the parental rights of the appellant to each of his three children on the grounds that they had been abused and neglected by the respondent, that efforts at rehabilitating the family had been unsuccessful and that the health and safety of the children would be seriously jeopardized by returning to the father. The court did not, however, find that GP was left in the care of another person without provision for support and without communication from the appellant for a period of at least one year.

The appellant, LP, submits the following issues for consideration:

"I. The trial court erred in denying the appellant a jury trial.

"II. The trial court erred in refusing the appellant's request for costs for an expert witness to examine GP.

"III. The trial court erred in refusing to allow the testimony of Kathy Peterson, regarding the appellee's pre-termination procedures.

"IV. The trial court erred by admitting the records of the Wyoming State Children's Home, including alleged statements of the children, into evidence.

"V. The trial court erred by admitting the hearsay statements, of GP to Nancy Johnson, into evidence.

"VI. The trial court erred in admitting into evidence the hearsay statements of JP to members of the Children's Home staff, to Walt Murray and to Bea Spiva.

"VII. The trial court erred in admitting into evidence hearsay statements of SP made on November 30, 1981.

"VIII. There was insufficient evidence to prove clearly and convincingly that each of the children were abused and neglected by the respondent, and that each child's health and safety would be seriously jeopardized by the maintenance of the parent-child relationship between the appellant and each of his children."

Prefatory Concepts

This case was brought under Wyoming's termination-of-parental-rights statutes, i.e., § 14-2-308 through § 14-2-318, W.S.1977, 1983 Cum.Supp. and specifically § 14-2-309, according to which LP, the father, is charged and the court has found that he has "abused and neglected" his three minor children. Section 14-2-309 provides:

"Grounds for termination of parent-child legal relationship; clear and convincing evidence.

"(a) The parent-child legal relationship may be terminated if any one (1) or more of the following facts is established by clear and convincing evidence:

"(i) The child has been left in the care of another person without provision for the child's support and without communication from the absent parent for a period of at least one (1) year. In making the above determination, the court may disregard occasional contributions, or incidental contacts and communications;

"(ii) The child has been abandoned with no means of identification for at least three (3) months and efforts to locate the parent have been unsuccessful;

"(iii) The child has been abused or neglected by the parent and efforts by an authorized agency or mental health professional have been unsuccessful in rehabilitating the family or the family has refused rehabilitative treatment, and it is shown that the child's health and safety would be seriously jeopardized by remaining with or returning to the parent;

"(iv) The parent is incarcerated due to the conviction of a felony and a showing that the parent is unfit to have the custody and control of the child."

Section 14-2-308 refers to § 14-3-202(a)(ii), W.S.1977 for a definition of "abuse." There, abuse is defined as follows:

" 'Abuse' means inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child other than by accidental means, including abandonment, excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect, and the commission or allowing the commission of a sexual offense against a child as defined by law * * *." (Emphasis added.)

We have held that the right to associate with one's family is a fundamental liberty under Art. 1, §§ 2, 6, 7 and 36 of the Wyoming Constitution. In DS v. Department of Public Assistance and Social Services, Wyo., 607 P.2d 911, 918 (1980), we said:

" * * * The right to associate with one's immediate family is a fundamental liberty protected by the state and federal constitutions. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (integrity of the family unit protected by the due-process clause of the Fourteenth Amendment); and Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322 [1331], 22 L.Ed.2d 600 (1969) (implication that liberties guaranteed by the federal constitution are fundamental). See, also, State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 399 N.E.2d 66 (1980). Analysis of the Wyoming Constitution and case law also leads to the conclusion that the right to associate with one's family is a fundamental liberty. Article 1, Sections 2, 6, 7 and 36, Wyoming Constitution; Washakie County School District Number One v. Herschler, Wyo., 606 P.2d 310 (1980); Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976); and In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862 (1948)."

We also made clear that we indeed felt deeply about the family relationship:

"It may be that in matters such as this, lawyers, judges, parents--all of us--should digress from the ordinary course of things to contemplate how deeply seated the child-parent relationship is in the warp and woof of the American fabric. In this matter, where the law must decide whether a child will be separated from his mother, we have looked to the Declaration of Independence for guidance. We find the following familiar language to be helpful:

" 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the governed, ...'

"While no complete listing of the 'unalienable rights' endowed upon us can be easily defined--it is not, we suggest, too fantastic to assume that the rearing of our children might be one example of the pursuit of happiness that the founding fathers envisioned. If we accept this hypothesis, then it becomes important to recognize that the rights described in both the state and federal constitutions were formulated to protect the Declaration of Independence. This surely adds significance to the strict-scrutiny concept in matters affecting the rights of parents to rear their children." 607 P.2d at 919.

Strict scrutiny is the test which will be employed when balancing a fundamental right against a compelling state interest, which interest is, in this case, the welfare of the children. The compelling state interest having been established, it is necessary to prove that the method sought to achieve it is the least intrusive of those methods by which the state's interest can be fulfilled. State in Interest of C, Wyo., 638 P.2d 165 (1981), with the...