In re Termination of Parental Rights to CG, SG, JG and SG

• Decision Date: 23 December 2003
• Citation: 2003 WY 166,81 P.3d 208
• Parties: In the Matter of the TERMINATION OF PARENTAL RIGHTS TO CG, SG, JG and SG, minors. AMG, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner).
• Court: Wyoming Supreme Court

81 P.3d 208

2003 WY 166

In the Matter of the TERMINATION OF PARENTAL RIGHTS TO CG, SG, JG and SG, minors.

AMG, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner).

No. C-03-1.

Supreme Court of Wyoming.

December 23, 2003.

Representing Appellant: Ronald G. Pretty, Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General. Argument by Mr. Wilde.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, JJ., and KALOKATHIS, DJ.

GOLDEN, Justice.

[¶ 1] The district court terminated the parental rights of AMG, the natural mother, to four of her children: CG, SG, JG, and SG. AMG (Mother) appeals only certain specific decisions made by the district court. We affirm.

ISSUES

[¶ 2] Mother raises the following issues:

1. Did the court err by allowing the introduction of testimony in violation of Rule 702, W.R.E. and Daubert v. Merrell Dow Pharmacy?¹

2. Did the court err in its instructions given to the jury?

3. Did the trial court err when it failed to give the respondent's theory of the case?

FACTS

[¶ 3] Because of the limited nature of the issues, only a brief outline of the facts is necessary. The Wyoming Department of Family Services (DFS) filed a petition to terminate the parental rights of Mother.² At trial, DFS presented testimony from several mental health professionals who have been counseling the children. The mental health professionals testified about the mental health of the children and special needs of the children, and gave their professional opinion as to whether it would serve the best interests of the children to have Mother's parental rights terminated. The testimony from these experts and from others indicated that Mother was not capable of properly caring for the children. A jury returned a verdict terminating Mother's parental rights to each child.

DISCUSSION

[¶ 4] We summarily affirm the actions of the district court with regard to Mother's issues number two and three. Both of these issues question the propriety of the jury instructions. Mother, however, failed to designate for the record on appeal the jury instructions actually given. Our standard of review for jury instructions requires us to review the instructions as a whole. This Court recently provided, albeit in a criminal jury trial context, guidance with regard to our standard of review for jury instruction issues:

The applicable standard of review is well-established: Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. Mueller v. State, 2001 WY 134, ¶ 9, 36 P.3d 1151, ¶ 9 (Wyo.2001). With specific regard to a defendant's "theory of the case" instruction we have held that:

Due process requires the trial court to give a correct instruction to the jury that details the defendant's theory of the case. Blakely v. State, 474 P.2d 127, 129 (Wyo.1970). The instruction must sufficiently inform the court of the defendant's theory and must be supported by competent evidence. Bouwkamp v. State, 833 P.2d 486, 490 (Wyo.1992). A theory of the case is more than a comment on the evidence that tells the jury how to consider the evidence. Ellifritz v. State, 704 P.2d 1300 (Wyo.1985). Fundamentally, the instruction must in the first instance be a proper theory of the case, or theory of defense, instruction. That is, the offered instruction must present a defense recognized by statute or case law in this jurisdiction. Bouwkamp, 833 P.2d at 490.

As Bouwkamp explained, "[t]heory of defense instructions are to be derived from and address criminal defenses provided for by statute or acknowledged by this court." Id. It further noted "common-law defenses are retained unless otherwise provided by this act." Id. (quoting Wyo. Stat. Ann. § 6-1-102(b)). Additionally, this Court has discussed acceptable defenses, notably in Keser v. State, 706 P.2d 263, 269 (Wyo.1985). See also, 1 Paul H. Robinson, Criminal Law Defenses § 21, at 70 n. 1 (1984); 1 Charles E. Torcia, Wharton's Criminal Law § 39 (15th ed.1993).

Any competent evidence is sufficient to establish a defense theory even if it consists only of testimony of the defendant. Best v. State, 736 P.2d 739, 745 (Wyo.1987). We view the evidence in a light favorable to the accused and the accused's testimony must be taken as entirely true to determine if the evidence is competent. Duckett v. State, 966 P.2d 941, 944 (Wyo.1998). Even if the court deems the evidence to be weak, or unworthy of belief, the instruction must be given if a jury could reasonably conclude the evidence supports the defendant's position. Id. The refusal to allow an instruction requested by the defendant when due process requires the defendant's instruction be given is reversible error per se. Id.

Holloman v. State, 2002 WY 117, ¶¶ 15-17, 51 P.3d 214, ¶¶ 15-17 (Wyo.2002)

.

Wheaton v. State, 2003 WY 56, ¶ 20, 68 P.3d 1167, ¶ 20 (Wyo.2003).

[¶ 5] The issue is not as simple as whether the jury instructions offered by Mother were correct. According to our standard of review, we must analyze the instructions actually given to the jury to see if, as a whole, they adequately informed the jury concerning the applicable law, allowing the jury to apply that law to their findings with respect to the material facts. Mother had the burden of providing this Court with a complete record on which to base a decision. Orcutt v. Shober Inv., Inc., 2003 WY 60, ¶ 9, 69 P.3d 386, ¶ 9 (Wyo.2003). Because she has not done so, this Court has no other means to review the district court's decision. We must assume the decision was in accord with the law. Id. at ¶ 10.

[¶ 6] Mother's first issue is also inadequately presented. Her argument essentially is that the fields of child psychology and psychotherapy have no proper scientific basis. Her objection, as stated in her brief, is that the trial judge abused his discretion in allowing the mental health professionals to "testify as experts as to the medical and psychological problems that the children had. In addition, the Court allowed these witnesses—over objections—to tell the Jury what their verdict should be.... [T]hese witnesses were liberal arts majors who were regurgitating some psycho-babble mindspeak that social `scientists' pass off to a gullible public as science." Not surprisingly, Mother offers no citation to authority to support the proposition that the general fields of child psychology and psychotherapy do not meet the legal standards for scientific or specialized knowledge.

[¶ 7] Despite the inadequacy of Mother's brief, because of the fundamental nature of parental rights, we will briefly comment upon Mother's concerns. Before trial, Mother filed a motion to either exclude any testimony from mental health providers or to hold a hearing pursuant to W.R.E. 104³ to determine the admissibility of the testimony of the mental health providers. The trial court denied the motion and did not hold a W.R.E. 104 hearing, but said it would consider specific issues as they arose at trial. Mother argues that, had the trial court held a Rule 104 hearing, it would have found the proposed testimony from the mental health professionals "was not hard science like 2+2 equals 4 but instead was only the meaningless meanders of people that couldn't be real scientists but could only be pseudo scientists which were specifically barred by Daubert."

[¶ 8] The admissibility of expert testimony is derived directly from W.R.E. 702, which states: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." This Court, in previous opinions, has discussed at length the procedure that should guide the district court in reaching its decision regarding the admission of expert testimony. See generally Seivewright v. State, 7 P.3d 24 (Wyo.2000)

; Bunting v. Jamieson, 984 P.2d 467 (Wyo.1999). The analysis contained in Seivewright is directly on point to the arguments Mother makes in this appeal, and we quote from Seivewright at length:

In performing our review, it is well established that the decision of the district court to admit or reject expert testimony is a decision solely within that court's discretion. Springfield v. State, 860 P.2d 435, 438 (Wyo.1993); Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1993); Braley v. State, 741 P.2d 1061, 1064 (Wyo.1987). Recently, we expanded on that standard of review.

The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable. Our opinion in Joiner [General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ] makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "review[s] a trial court's decision to admit or exclude expert testimony." 522 U.S. at 138-39,118 S.Ct. 512, . That standard applies as much to the trial court's decisions about how to

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