In re Cs

• Decision Date: 13 October 2006
• Docket Number: No. C-05-17.,No. C-05-16.,C-05-16.,C-05-17.
• Parties: In the Matter of the Termination of Parental Rights to CS, Minor Child. LS a/k/a LA, Appellant (Respondent), v. Johnson County Department of Family Services, Appellee (Petitioner). In the Matter of the Termination of Parental Rights to TS, Minor Child. LS a/k/a LA, Appellant (Respondent), v. Johnson County Department of Family Services, Appellee (Petitioner).
• Court: Wyoming Supreme Court

143 P.3d 918

2006 WY 130

In the Matter of the Termination of Parental Rights to CS, Minor Child.

LS a/k/a LA, Appellant (Respondent), v. Johnson County Department of Family Services, Appellee (Petitioner).

In the Matter of the Termination of Parental Rights to TS, Minor Child.

LS a/k/a LA, Appellant (Respondent), v. Johnson County Department of Family Services, Appellee (Petitioner).

No. C-05-16.

No. C-05-17.

Supreme Court of Wyoming.

October 13, 2006.

Representing Appellant: Jan Flaharty of Sheridan, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; and Jill E. Kucera, Senior Assistant Attorney General.

Guardian Ad Litem: Tonia Hanson of Buffalo, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL^*, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] LS appeals a jury verdict terminating her parental rights to two of her minor children contending it was not established by clear and convincing evidence that she had abused or neglected the children and that she was denied due process when an employee of the Johnson County Department of Family Services (DFS) failed to provide her with transportation to the termination hearing. We affirm.

ISSUES

[¶ 2] LS puts forward two issues for appellate review:

A. Whether it was established by clear and convincing evidence that LS abused or neglected her children within the meaning of "abuse" and "neglect," as those terms are defined by Wyo. Stat. §§ 14-3-202(a)(ii) and (vii).

B. Whether LS was deprived of her due process rights to a meaningful opportunity to be heard, guaranteed under Article 1, § 6, of the Wyoming Constitution and the Fifth and Fourteenth Amendments of the United States Constitution, when the Department of Family Services refused at the last moment to transport LS to the termination hearing.

FACTS

[¶ 3] LS is the natural mother of CS and TS who were born on February 13, 2003, and June 9, 2000, respectively. Both children were born at home and neither birth certificates nor social security numbers were ever obtained for either of them. In October of 2003, LS and the children moved from Montana to Buffalo, Wyoming, where they lived in a one-room cabin with LS's father and his wife. On December 19, 2003, DFS and law enforcement personnel went to the cabin to investigate after LS's father reported that LS was abusing the children. LS's father reported that LS would place CS, then eight months old, in a fleece sleeping bag, tie the top closed with a handkerchief, and leave the child inside whenever he cried. He also reported that LS would pinch the fingers of TS as a form of punishment until TS screamed; she would hold CS over the potty for extended periods of time in an attempt to train him at the age of eight months; and she did not provide adequate nutrition for the children. In addition, there were allegations that LS refused to seek medical care for the children or provide the care prescribed and recommended by a doctor. The children were taken into protective custody at that time.

[¶ 4] LS agreed to leave the children in foster care and a case plan with the goal of reuniting the family was established. LS failed to follow the case plans. She did not maintain stable residences — moving seventeen times between January of 2004 and March of 2005 — or employment and paid no child support. LS only made about forty percent of scheduled visitations with the children. On February 23, 2005, DFS filed a petition to terminate LS's parental rights alleging that LS had abused and neglected the children, reasonable efforts at rehabilitation and reunification had been unsuccessful, and that the children's health and safety would be jeopardized if custody was returned to LS. It was also alleged that the minor children would be in foster care under the responsibility of the State of Wyoming in excess of fifteen of the previous twenty-two months.

[¶ 5] Trial before a jury was scheduled to commence on Monday, August 15, 2005. On Sunday, LS had contacted a DFS employee about receiving a ride from her home in Sheridan to the trial in Buffalo. The employee initially agreed to provide the ride but she contacted LS later that same day and informed her that DFS could not provide transportation. The employee cited safety concerns if the trial went adversely for LS as the reason. LS was unable to arrange alternative transportation and she was not present during the first day of the trial. No continuance was requested and the jury was informed about the reason for LS's absence. LS appeared for the second and third days of trial and during her testimony, she explained the reason for her absence to the jury.

[¶ 6] At trial, LS's father described LS's conduct with the children that led to his decision to contact DFS. There was testimony from a mental health professional that LS suffered from a narcissistic personality disorder that prevented her from focusing on the needs of the child emotionally or developmentally and that the children's health and safety would be at risk if they were returned to her. Testimony from several counselors and social workers who observed LS interact with the children during rehabilitation efforts agreed with that conclusion after observing emotional abuse and other inappropriate behavior by LS. In her testimony, LS did not generally deny any of the conduct attributed to her but defended it as appropriate parenting behavior and asserted her competence to raise the children and disputed the characterizations that the health and safety of the children would be jeopardized if she retained custody. After hearing the witnesses and evidence of both parties, the jury returned a verdict finding that LS's parental rights to both children should be terminated pursuant to the provisions of Wyo. Stat. Ann. § 14-2-309(a)(iii) and (a)(v) (LexisNexis 2005).¹ A Judgment and Decree terminating LS's parental rights to CS and TS was entered on October 3, 2005. LS appeals.

STANDARD OF REVIEW

[¶ 7] When we review the granting of a petition to terminate parental rights, our review is pursuant to the following standards:

Due to the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children, application of statutes for termination of parental rights is a matter for strict scrutiny. TR v. Washakie County Dep't of Pub. Assistance & Soc. Servs., 736 P.2d 712, 715 (Wyo.1987). As part of this strict scrutiny standard, a case for termination of parental rights must be established by clear and convincing evidence. Wyo. Stat. Ann. § 14-2-309(a) (Michie 1997); In Interest of JG, 742 P.2d 770, 773 (Wyo.1987); D.S. v. Dep't of Pub. Assistance & Soc. Servs., 607 P.2d 911, 919 (Wyo.1980). Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of the contention is highly probable. Matter of GP, 679 P.2d 976, 982 (Wyo.1984). Rigorous though this standard may be, we apply our traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting termination. Matter of SYM, 924 P.2d 985, 987 (Wyo.1996). Thus, we examine the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. Id.; D.S. v. Dep't of Pub. Assistance & Soc. Servs., 607 P.2d at 919-20; In Interest of JG, 742 P.2d at 773. In re ZKP, 979 P.2d 953, 956 (Wyo.1999); see also In re IH, 2001 WY 100, ¶ 14, 33 P.3d 172, ¶ 14 (Wyo.2001); Matter of TLC, 2002 WY 76, 46 P.3d 863 (Wyo.2002).

In re K.L.S., 2004 WY 87, ¶ 11, 94 P.3d 1025, 1027-28 (Wyo.2004) (quoting SD v. Carbon County Department of Family Services (In re SED), 2002 WY 168, ¶ 5, 57 P.3d 1235, ¶ 5 (Wyo.2002)).

[¶ 8] LS also claims a denial of due process under Wyoming Constitution Article 1, § 6 and the Fifth and Fourteenth Amendments to the United States Constitution.

Wyo. Const. art. 1, § 6, provides that "[n]o person shall be deprived of life, liberty or property without due process of law." The similar provision found in the Fifth Amendment to the United States Constitution was made applicable to the states by the Fourteenth Amendment. "Notice and the opportunity to be heard are touch stones of this due process of law." Pecha v. Smith, Keller & Associates, 942 P.2d 387, 391 (Wyo.1997). The notice and hearing opportunity must be "appropriate to the nature of the case," and the opportunity to be heard must be "`at a meaningful time and in a meaningful manner.'" Jones v. Jones, 903 P.2d 545, 548 (Wyo.1995) (quoting Moore v. Board of Educ. of Fulton Public School No. 58, 836 S.W.2d 943, 947 (Mo.1992), cert. denied, 507 U.S. 916, 113 S.Ct. 1270, 122 L.Ed.2d 666 (1993)). The party claiming an infringement of his right to due process has the burden of demonstrating both that he has a protected interest and that such interest has been affected in an impermissible way. Meyer v. Norman, 780 P.2d 283, 289 (Wyo.1989). The question is whether there has been a denial of fundamental fairness. Id.

In re "H" Children, 2003 WY 155, ¶ 38, 79 P.3d 997, 1008 (Wyo.2003).

DISCUSSION

[¶ 9] LS contends that there was no clear and convincing evidence sufficient to support termination of her parental rights as her conduct did not constitute "abuse" or "neglect" as those terms are statutorily defined. LS insists that she is simply being punished for her "unorthodox" parenting beliefs.

[¶ 10] After reviewing the entire record and taking due consideration of the appropriate statutes, we conclude that the jury's determination is supported by clear and convincing evidence. Pursuant to § 14-2-309(a)(iii), three elements have to be shown by clear and convincing evidence before a parent's rights can be terminated: (1) the child has been abused or neglected by the parent; (2) reasonable efforts by an authorized agency or mental health...