Herden v. State ex rel. Dep't of Family Servs. (In re TJH)

Decision Date27 April 2021
Docket NumberS-20-0180
Citation485 P.3d 408
Parties In the MATTER OF the Termination of Parental Rights to: TJH, minor child, Christine Dawn Herden, Appellant (Respondent), v. State of Wyoming, ex rel. Department of Family Services, Appellee (Petitioner).
CourtWyoming Supreme Court

Representing Appellant: Timothy C. Cotton, CottonLegal, Casper, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Allison E. Connell, Assistant Attorney General. Argument by Ms. Connell.

Guardian ad Litem: Joseph R. Belcher, Director & Chief Trial & Appellate Counsel, and Kimberly A. Skoutary-Johnson, Wyoming Guardian ad Litem Program. No argument.


KAUTZ, Justice.

[¶1] The Wyoming Department of Family Services (DFS) filed a petition to terminate Christine (Cristy) Dawn Herden's (Mother) parental rights to TJH (Child). Because Mother failed to timely respond, the clerk of the district court entered default against her. After a default hearing, the district court terminated her parental rights. Mother claims the district court violated her right to due process by holding the default hearing by video conference and by refusing to allow her to present evidence on the best interests of Child. We affirm.


[¶2] The issues on appeal are:

1. Did the district court violate Mother's due process rights when it held the evidentiary default hearing in the parental rights termination action by video conference?
2. Did the district court violate Mother's due process rights when it refused to allow her to present evidence regarding Child's best interests during the default hearing?

[¶3] On November 18, 2019, the State filed a petition to terminate Mother's and the unknown father's parental rights to Child.1

The State asserted Mother's parental rights should be terminated under Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v) (LexisNexis 2019).2 According to the petition, Child was born to Mother and an unknown father in June 2018. At the time of his birth, Child tested positive for methamphetamine and Mother admitted she was a heavy drug user. Consequently, a physician took protective custody of Child and the State filed a neglect petition against Mother. At a shelter care hearing held two days after his birth, Child was placed in DFS legal custody, where he has remained. DFS developed a case plan which, among other things, required Mother to complete substance abuse treatment, sustain sobriety, and cease criminal activity. Although Mother attended some supervised visits with Child, she never made enough progress on her case plan for DFS to allow her unsupervised visitation.

[¶4] On January 2, 2020, Mother was served with the termination petition and a summons while incarcerated at the Natrona County Detention Center. She did not respond to the petition, and the clerk of the district court entered a default against her on February 27, 2020. The State requested a default hearing, which was set for May 11, 2020.

[¶5] In March 2020, Mother filed a handwritten request that the entry of default against her be set aside, an answer, and a request for the district court to appoint counsel to represent her. Appointed counsel filed a supplemental motion, claiming the default should be set aside for good cause in accordance with Wyoming Rule of Civil Procedure (W.R.C.P.) 55(c). The district court combined the hearing on Mother's motion to set aside the entry of default with the previously set default hearing.

[¶6] Mother agreed to the district court's plan to hold the combined hearing by video conference rather than in person because of the COVID-19 pandemic. She later filed a motion to continue the evidentiary default hearing, stating she mistakenly believed the setting for the video conference hearing pertained only to her motion to set aside the entry of default, not the evidentiary hearing. Mother, who was still incarcerated, claimed conducting the evidentiary hearing by video, rather than in person, would violate her right to due process. Specifically, she asserted a video conference would deprive her of the ability to effectively cross-examine the State's witnesses and make it impossible for her to communicate with counsel during the hearing. Mother also argued a continuance was necessary to allow her to present evidence of Child's best interests even though she was in default.

[¶7] The district court began the May 11, 2020, hearing by considering Mother's motion to set aside the entry of default under W.R.C.P. 55(c). It denied the motion, concluding Mother had not established good cause to justify setting aside the entry of default. The court turned next to Mother's motion to continue the evidentiary default hearing. It denied the motion to continue and limited Mother's participation at the default hearing to giving an opening statement (which she waived), cross-examining the State's witnesses, objecting to the State's evidence, and making a closing argument. She was not allowed to present her own evidence.

[¶8] During the evidentiary default hearing, the State presented only one witness, the DFS caseworker who worked to reunite Mother and Child. The caseworker testified about the statutory grounds for termination of Mother's parental rights and Child's best interests. At the conclusion of the hearing, the district court granted the State's petition to terminate Mother's parental rights to Child. It ruled the State had proven by clear and convincing evidence the statutory bases for termination under § 14-2-309(a)(iii) and (v) and it was in Child's best interests to terminate Mother's parental rights. Mother filed a timely notice of appeal.


[¶9] Mother claims the district court violated her right to due process by holding the evidentiary default hearing through video conference rather than in person and by not giving her a meaningful chance to be heard regarding Child's best interests. The government may not deprive any person of "life, liberty, or property, without due process of law." U.S. Const. amends. V ; XIV, § 1. See also, Wyo. Const. art. 1, § 6. "The liberty of a parent to the care, custody and control of [her] child is a fundamental right that resides first in the parent." Wyo. Stat. Ann. § 14-2-206(a) (LexisNexis 2019). See also, RA v. State (In re AA), 2021 WY 18, ¶ 11, 479 P.3d 1252, 1256 (Wyo. 2021) ("[t]he right of familial association is fundamental") (citing Clark v. Dep't of Family Servs. (In re GGMC), 2020 WY 50, ¶ 22, 460 P.3d 1138, 1145 (Wyo. 2020) ; JLW v. CAB (In re WDW) , 2010 WY 9, ¶ 17, 224 P.3d 14, 19 (Wyo. 2010) ; and TF v. State, Dep't of Family Servs. (In re Adoption of CF), 2005 WY 118, ¶ 26, 120 P.3d 992, 1002 (Wyo. 2005) ).

[¶10] "Procedural due process requires the government to provide a parent with reasonable notice and a meaningful opportunity to be heard before interfering with [her] fundamental right to familial association." RA, ¶ 15, 479 P.3d at 1257 (citing JA v. State, Dep't of Family Servs. (In re DSB), 2008 WY 15, ¶ 27, 176 P.3d 633, 639 (Wyo. 2008) ; DH v. Dep't of Family Servs. (In re "H" Children), 2003 WY 155, ¶ 38, 79 P.3d 997, 1008 (Wyo. 2003) ). The required process varies depending upon "the nature of the proceeding and the interests involved." KC v. State (In re GC), 2015 WY 73, ¶ 32, 351 P.3d 236, 245 (Wyo. 2015). "The question of whether an individual was afforded due process is one of law subject to de novo review." RA, ¶ 9, 479 P.3d at 1256 (citing ST v. State (In re DT), 2017 WY 36, ¶ 23, 391 P.3d 1136, 1143 (Wyo. 2017) ; and Verheydt v. Verheydt, 2013 WY 25, ¶ 20, 295 P.3d 1245, 1250 (Wyo. 2013) ).

Default Hearing by Video Conference

[¶11] Although her argument is not completely clear, Mother indicates the video conference was insufficient to protect her due process right to be heard because she was unable to effectively cross-examine the DFS caseworker and could not communicate with her attorney during the hearing. Mother frames the issue as one of due process; however, the bulk of her argument is based upon the right of confrontation under the Sixth Amendment to the United States Constitution. The relevant portion of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. As Mother explains, we have recognized "a defendant's inability to meaningfully cross-examine a witness may violate his right of confrontation." Tamblyn v. State, 2020 WY 76, ¶ 50, 465 P.3d 440, 453 (Wyo. 2020) (citing In Interest of CB , 749 P.2d 267, 271 (Wyo. 1988) ). She also quotes the following passage from Bush v. State, 2008 WY 108, ¶ 49, 193 P.3d 203, 214-15 (Wyo. 2008) :

The Sixth Amendment protects the right of an accused to confront the witnesses against him. Generally, this means witnesses who testify against a defendant in a criminal proceeding must appear at trial. The right, however, is not absolute and may be compromised under limited circumstances. ... Accordingly, the presentation of witness testimony by video teleconference is not permissible unless: 1) it is necessary to further an important public policy, and 2) the reliability of the testimony is otherwise assured.

(Citation omitted).

[¶12] Mother's argument regarding the Sixth Amendment's Confrontation Clause is misguided. Under the clear language of the Confrontation Clause, criminal defendants are afforded the right to confront the witnesses against them. See also , Maryland v. Craig, 497 U.S. 836, 844, 110 S.Ct. 3157, 3162-63, 111 L.Ed.2d 666 (1990) (reiterating the right to confrontation belongs to criminal defendants); Bush, ¶ 49, 193 P.3d at 214 (generally "witnesses who testify against a defendant in a criminal proceeding must appear at trial"). A proceeding to terminate parental rights is not a criminal action. CLB v. State, Dep't of Family Servs. (In re HLL), 2016 WY 43, ...

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