In re HC

Decision Date02 July 1999
Citation983 P.2d 1205
PartiesIn the Interest of HC, a Minor Child: CAC, Appellant (Respondent), v. Natrona County Department of Family Services, Appellee (Petitioner).
CourtWyoming Supreme Court

Ann M. Rochelle of Williams, Porter, Day & Neville, P.C., Casper, Wyoming, Representing Appellant.

Gay Woodhouse, Chief Deputy Attorney General; Michael L. Hubbard, Deputy Attorney General; Dan S. Wilde, Assistant Attorney General, Representing Appellee.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR,1 JJ. GOLDEN, Justice.

Following Appellant CAC's second misdemeanor conviction of child endangerment, which constituted a felony conviction because of the enhancement provision under Wyo. Stat. Ann. § 6-4-403(a)(ii) and (c), and following her filing of the notice of appeal of right from that conviction, which matter is now pending in this Court, the Department of Family Services, State of Wyoming (DFS), filed a petition in the district court for the termination of CAC's parental rights to her daughter, HC, on the grounds that (1) CAC neglected HC, DFS's efforts to rehabilitate the family have been unsuccessful, and HC's health and safety would be seriously jeopardized by returning HC to CAC, Wyo. Stat. Ann. § 14-2-309(a)(iii); and (2) CAC is incarcerated because of a felony conviction and is unfit to have the custody and control of HC, Wyo. Stat. Ann. § 14-2-309(a)(iv). After CAC answered, denying the allegations, DFS filed a motion for summary judgment on its petition, supported by affidavits and court documents. CAC opposed the motion, filing counter affidavits. Without holding a hearing on the motion the district court granted summary judgment and entered its order terminating CAC's parental rights to HC based on the two statutory grounds advanced by DFS. Appealing that order, CAC contends that genuine issues of material fact exist relating to the grounds, that DFS's affidavits do not comply with the requirements of W.R.C.P. 56(e), and that the district court did not afford CAC due process of law when it granted DFS's motion.

This Court holds that reversal of the summary judgment and remand for further proceedings are required for several reasons. For one thing, the district court's failure to hold a hearing on the motion violated CAC's right to due process of law. For another thing, this Court holds that the affidavits submitted by DFS to support its motion do not comply with the requirements of W.R. C.P. 56(e), and, therefore, the district court erred in granting the motion which was not supported by admissible clear and convincing evidence as the law requires. Finally, this Court takes notice that CAC's felony conviction, which is central to one of the grounds for termination advanced by DFS, is on appeal of right to this Court and, until resolved by this Court, cannot qualify as a "conviction" under Wyo. Stat. Ann. § 14-2-309(a)(iv) for the purpose of the termination of CAC's parental rights to HC. For all of these reasons, this Court has no other choice but to reverse the summary judgment in DFS's favor and to remand for further proceedings consistent with this opinion.

ISSUES

Appellant CAC presents these issues for our review:

1. Under Wyo. Stat. § 14-2-309(a)(iii), were there no material issues of fact and was summary judgment proper as a matter of law?
2. Under Wyo. Stat. § 14-2-309(a)(iv), were there no material issues of fact and was summary judgment proper as a matter of law?

Appellee rephrases the issues as:

Whether the District Court properly granted the State's motion for summary judgment?
FACTS

"Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving [her] all favorable inferences which may be drawn from the facts." In Interest of DG, 916 P.2d 991, 996 (Wyo. 1996) (quoting Matter of Adoption of JLP, 774 P.2d 624, 629 (Wyo.1989)).

On November 12, 1997, DFS filed an amended petition for termination of CAC's parental rights to her six-year-old daughter, HC. That petition stated that the child had been abused or neglected; efforts by the State had not successfully rehabilitated the family; and the child's health and safety would be seriously jeopardized by returning her to CAC. It further stated that CAC was incarcerated for a felony conviction and unfit to have the custody and control of the child. On December 16, 1997, DFS filed the affidavit of the social worker assigned to the case involving the child. That affidavit stated that all information in it was obtained while working in that capacity, from documentation in the DFS files, and from data provided by the DFS investigator assigned to the case. On December 18, 1997, DFS moved for summary judgment, relying upon this affidavit, an affidavit signed by a DFS investigator which repeated the first affidavit, and the judgment and sentence and court documents from CAC's misdemeanor and felony convictions for child endangerment. The court documents included affidavits of the officers investigating the injuries to HC which resulted in CAC's convictions for misdemeanor and felony child endangerment.

The first officer's affidavit revealed that she was advised that on April 14, 1992, CAC brought an injured HC, then eight months old, to the emergency room at the Wyoming Medical Center in Casper, Wyoming. The officer was told by a doctor that an examination revealed that HC had a right side skull fracture and a left femur fracture that was in the process of healing, as well as facial bruising. DFS reported that the examination established that HC had also suffered three rib fractures, but the documentation of the examination was not attached to either affidavit. The affidavit also stated that CAC's boyfriend, Floid Boyer, admitted to the officer that he had inflicted the injuries on HC.

CAC pled guilty to misdemeanor child endangerment and was placed on probation for one year for failure to protect HC from harm and for a delay in seeking medical treatment for the injured child. DFS reported, without accompanying documentation, that HC was placed in the legal and physical custody of DFS on April 16, 1992, and DFS provided extensive services to CAC to improve her parenting skills with the purpose of reuniting her with HC. Physical custody was returned to CAC in September of 1994.

The affidavit stated that DFS received reports of extreme filth and unsanitary and unsafe conditions in CAC's home, which were substantiated by DFS in April of 1995, and a court hearing was held on child neglect complaints. Following that hearing, physical and legal custody were returned to CAC on May 15, 1995. Documentation of the neglect complaint, the investigation substantiating the neglect, and court hearing were not filed with the affidavits.

On June 28, 1995, DFS received a report that HC, then age three, was at the Wyoming Medical Center where she was being treated for second and third degree burns over twenty percent of her body. The officer's affidavit reported that another officer told him that these injuries were inflicted by Boyer who claimed to have spilled coffee on HC, that CAC learned of the burns in the afternoon, observed them at 7:00 p.m. that evening when she returned home from work, and left HC in the care of a fourteen-year old babysitter while she and Boyer went to play darts. CAC told the babysitter of the injuries but did not provide special instructions or medication for HC. The officer's affidavit reported that another officer told him he had observed CAC pushing HC in a stroller at about 3:00 a.m., and she informed him that she was taking HC to the hospital emergency room for treatment. The officer's affidavit reported that a fire inspector and a plastic surgeon informed him that the injuries were burns from an open flame. Supporting documentation about the examination and its results were not included with the affidavit. DFS's affidavits reported, without accompanying documentation, that in addition to CAC's failing to promptly get medical care for her daughter, CAC's home was extremely filthy and dangerous to a child with burns who was at serious risk of infection.

Soon after this burn incident, law enforcement authorities arrested CAC and charged her with child endangerment. HC was placed in foster care on June 30, 1995, where she has remained to this day. After much delay in the criminal proceeding, CAC was found guilty of child endangerment on May 16, 1997. Because that conviction was her second conviction of that offense, under the applicable enhancement statute it constituted a felony conviction. On July 1, 1997, the court entered judgment and sentence on the conviction which resulted in CAC's incarceration at the Wyoming Women's Center for a term of not less than twenty-four months and not more than forty-eight months with credit for nine days pre-trial incarceration. On July 14, 1997, CAC filed her notice of appeal of right from that conviction, serving a copy of that notice on, among others, the district attorney.

Nine days later, on July 23, 1997, DFS, through the assistant district attorney, filed its petition to terminate CAC's parental rights to her minor daughter, HC. On November 12, 1997, DFS filed an amended petition. After CAC filed her answer which denied DFS's allegations, discovery ensued. Each party filed a motion for summary judgment with supporting material. The record does not include any mention of the district court's conducting a hearing on the motions for summary judgment. On February 4, 1998, the district court issued its decision letter in which it announced it was granting DFS's motion for summary judgment. In the decision letter, the court noted that efforts to rehabilitate the family were unsuccessful as evidenced by the 1995 neglect complaint, HC's 1995 burn injuries, and CAC's second child endangerment conviction. The court was persuaded by the convictions that HC's health and safety would be...

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    • United States
    • Wyoming Supreme Court
    • August 22, 2000
    ...that the alleged oral contract was of no consequence, and we find no proper legal ground in the record for affirming it. In Re HC, 983 P.2d 1205, 1209 (Wyo.1999). Accordingly, our standard of review requires that we must examine the record from the vantage point most favorable to the party ......
  • Bevan v. Fix
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    ...of the tort. We may uphold the grant of summary judgment upon any proper legal ground finding support in the record. In re HC, 983 P.2d 1205, 1209 (Wyo.1999); Ahearn v. Anderson-Bishop Partnership, 946 P.2d 417, 422 (Wyo.1997). Consequently, because the plaintiffs' failure to satisfy any si......
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    ...is well established. Parental rights are fundamental rights and are protected by both federal and state constitutions. In re HC, 983 P.2d 1205, 1209 (Wyo. 1999); DS v. Dep't of Pub. Assistance & Soc. Servs., 607 P.2d 911, 918-19 (Wyo. 1980). These rights are directly affected in a terminati......
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