In re Wdw

• Decision Date: 28 January 2010
• Docket Number: No. S-09-0097.,S-09-0097.
• Citation: 2010 WY 9,224 P.3d 14
• Parties: In the Matter of the Termination of Parental Rights to WDW, a minor child: JLW, Appellant (Respondent), v. CAB, Appellee (Petitioner).
• Court: Wyoming Supreme Court

224 P.3d 14

2010 WY 9

In the Matter of the Termination of Parental Rights to WDW, a minor child:

JLW, Appellant (Respondent), v. CAB, Appellee (Petitioner).

No. S-09-0097.

Supreme Court of Wyoming.

January 28, 2010.

Representing Appellant: John M. Burman, Director, Legal Services; Marci Day, Student Director, Legal Services. Argument by Ms. Day.

Representing Appellee: Juan Leo DeHerrera, DeHerrera & Bach Law Center, PC, Rawlins, Wyoming.

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

BURKE, Justice.

[¶ 1] JLW (Father) appeals the district court's order terminating his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iv). He claims the district court failed to satisfy the social study requirements detailed in Wyo. Stat. Ann. § 14-2-314. He also contends there was insufficient evidence to support the district court's finding that he was an unfit parent. We affirm.

ISSUES

[¶ 2] Father presents the following issues:

1. Whether the District Court erroneously exercised its discretion in terminating the parental rights of [Father] after:

a. Failing to direct that a social study should be made upon the filing of the petition for termination as required by Wyo. Stat. Ann. § 14-2-314 and rendering a judgment in favor of termination without having reviewed the completed home study.

b. Ordering a home study for the purpose of the possible adoption of WDW by his step-father rather than for the purpose of determining whether termination would be appropriate.

2. Whether the District Court erred in finding that [Mother] established that [Father] was unfit to have custody and control of the minor child, WDW, for the purposes of Wyo. Stat. Ann. § 14-2-309(a)(iv), because:

a. [Mother] failed to carry the evidentiary burden of proving [Father] was unfit to have custody and control by clear and convincing evidence.

FACTS

[¶ 3] Father and CAB (Mother) are the parents of WDW who was born in May 1999. Mother filed for divorce shortly after the birth and a default divorce decree was entered in October 1999. Mother was awarded sole custody of WDW. Father was ordered to pay $300 per month in child support. The divorce decree did not provide Father with any visitation rights. It did, however, specifically provide that Father could petition for visitation rights in the future.

[¶ 4] Mother married CB in June 2005. CB wants to adopt WDW and, as an initial step in the adoption process, Mother sought to obtain Father's consent to the adoption. Father refused to give consent. Mother then filed a petition to terminate Father's parental rights. Father contested the petition. The district court appointed a Guardian ad Litem for WDW and a bench trial was held in September 2008.

[¶ 5] At the beginning of trial, Father's attorney advised the court that the social study mandated by Wyo. Stat. Ann. § 14-2-314 had not been ordered. Father's counsel did not seek a continuance. Instead, she suggested that the district court order the social study after trial if the court felt that it was necessary. The court accepted the suggestion and trial proceeded as scheduled.

[¶ 6] The evidence presented at trial established that Father was in jail at the time of WDW's birth and had been incarcerated on numerous occasions since that time. At the time of trial, Father was serving a five to seven year sentence for aggravated burglary, a felony. He began serving the sentence in 2006. Father has two other felony convictions and additional felony charges are currently pending in Utah. Father has struggled with drug and alcohol abuse when not in prison. Father never voluntarily paid child support. Support payments were garnished from his wages during those periods of time when Father was not in prison.

[¶ 7] Father has never met WDW. He has made sporadic attempts to establish contact. On occasion, he requested visitation. Mother rebuffed those requests, claiming that visitation was not authorized by the divorce decree and that Father was not current in his child support obligations. Over the years, Father sent approximately 70 letters to WDW. Most of the letters were sent while Father was in prison. He has sent WDW two gifts.

[¶ 8] At the close of the evidence, the district court took the matter under advisement and ordered the social study. On January 12, 2009, the district court entered its decision letter finding generally against Father and concluding that his parental rights should be terminated. In the decision letter, the district court noted that it had not yet received the social study. The social study was filed with the court on January 15, 2009. The Order Terminating Parental Rights was entered on February 20, 2009. Father filed a timely appeal.

DISCUSSION

Social Study

[¶ 9] Father's first issue centers around Wyo. Stat. Ann. § 14-2-314 (LexisNexis 2005) which states:

Upon the filing of a petition by anyone other than an authorized agency as defined by W.S. 14-2-308(a)(ii)(A), the court shall direct that a social study be made by the appropriate county office of public assistance and social services or by any authorized agency to aid the court in making a final disposition of the petition. The social study shall state the factual information pertaining to the allegations in the petition, the social history and the present situation and environment of the child and parent. The social study shall not be excluded as evidence by reason of hearsay alone. The social study shall be made available to any party to the action upon request.

Father contends that the district court did not comply with the statute. His complaint is threefold. First, he contends that the district court erred in failing to order the social study when the petition for termination was filed. Second, he claims that the district court erred in terminating his parental rights "before receiving a completed social study." Finally, he asserts that the social study was inadequate because it did not contain sufficient information regarding Father's present situation.

[¶ 10] The facts relating to the social study are not in dispute. The social study was not ordered when the petition for termination was filed. The district court and the parties were aware of that oversight prior to the commencement of trial. Father, through counsel, suggested that the trial proceed without the social study. The court accepted Father's suggestion and ordered the social study after trial. Prior to receiving a completed social study, the court, by decision letter, notified counsel of its intention to terminate Father's parental rights. In footnote two of the decision letter, the court stated:

The Court has not received a completed social study at this point. However, keeping in mind that [Father] is incarcerated by the Wyoming Department of Corrections and that [Mother] has raised [WDW] and his brother for their entire lives and has worked at the Carbon County Child Development Center for several years, the Court believes that the information contained in a completed social study will only be cumulative of the evidence presented at trial. The Court seeks to end the delay in issuing its opinion caused by waiting on the social study. Therefore, the Court issues its opinion here realizing that the statute mandates the social study, but finding its absence to be harmless.

[¶ 11] The social study was filed with the court on January 15, 2009. More than a month later, on February 20, 2009, the district court entered its Order Terminating Parental Rights. We will first address Father's claim of error relating to the timing of the social study.

[¶ 12] The statutory language is mandatory and the social study should have been ordered when the petition was filed. Father, however, intentionally and knowingly waived any objection to the lack of timely compliance.¹ It was Father's counsel who asked the court to proceed with trial:

THE COURT: But in any event, we apparently all agree that preparation of a social study is mandatory under 14-2-314, and it has not been done in this case. Is that correct?

[PETITIONER'S COUNSEL]: That's correct, Your Honor.

[GUARDIAN AD LITEM]: Yes, Your Honor.

[RESPONDENT'S COUNSEL]: And, Your Honor, ... the statute requires both the appointment of a guardian ad litem and a social study ... I would propose that we take evidence today, and if the Court feels it is necessary to [order] a social study for further proceedings that it reserve its judgment.

THE COURT: And that is what we will do.

[RESPONDENT'S COUNSEL]: Beyond that, I don't have any further comment.

[¶ 13] Father's contention that his parental rights were terminated prior to the filing of the social study is not correct. Father's rights were terminated on February 20, 2009 when the district court entered the Order Terminating Parental Rights. The social study was filed on January 15, 2009. Although the decision letter was filed prior to receipt of the social study, the decision letter did not terminate Father's parental rights. "A court's decision letter or opinion letter, made or entered in writing, is not a judgment." W.R.C.P. 54(a); see also Broadhead v. Broadhead, 737 P.2d 731, 733 (Wyo.1987).

[¶ 14] We cannot ascertain from the record whether the district court reviewed the social study prior to entry of the termination order. It is possible that the court reviewed the social study and concluded that it supported the termination decision. It is also possible that the district court entered the termination order without reviewing the social study. Under either scenario, Father has failed to establish prejudicial error. To establish prejudicial error, Father must show "that the outcome of his trial would have been more favorable had the error not occurred." RK v. State ex rel. Natrona County Child Support Enforcement Dep't, 2008 WY 1, ¶ 18, 174 P.3d 166, 171 (Wyo.2008).

[¶ 15] Father complains that the social study was inadequate because he "was never personally interviewed, and the study does...