JG, In Interest of, C-86-2

Decision Date17 September 1987
Docket NumberNo. C-86-2,C-86-2
Citation742 P.2d 770
PartiesIn the Interest of JG, M, J, R, M and SG, Minor Children. JG, Appellant (Respondent), v. Thomas R. QUILLEN, Director of Natrona County Department of Public Assistance and Social Services, Appellee (Petitioner).
CourtWyoming Supreme Court

Les Bowron, Casper, for appellant.

A.G. McClintock, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., Richard E. Dixon, Asst. Atty. Gen., for appellee.

James A. Raymond, Casper, guardian ad litem.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

The major question to be resolved in this appeal from a judgment terminating parental rights is whether language in the statutes relating to termination of parental rights which alludes to "efforts by an authorized agency or mental health professional" to rehabilitate the family is limited to those efforts conducted within the State of Wyoming. The appellant structures this issue by contending that there was a total failure of proof in this regard which not only invalidates the judgment of the district court but should have resulted in a favorable ruling on his motion to dismiss at the close of the State's case. As an alternative issue, the question is raised of whether the state agency's efforts at rehabilitation should have been continued in accordance with other provisions in the statute. Finally, the question of unconstitutional vagueness of the significant aspect of the statute is raised. We note that the failure of the appellant to raise the constitutional issue forecloses that contention, and we hold that the trial court correctly resolved all the other issues. We affirm the judgment of the trial court.

In his brief in this case, the appellant articulates the issues presented for review in this way:

"I. Whether the evidence presented at trial was sufficient to allow appellant's parental rights to be terminated.

"II. Whether the district court erred in failing to grant appellant's motion to dismiss at the close of appellee's case.

"III. Whether the district court erred in failing to continue the petition pursuant to W.S. 14-2-316.

"IV. Whether W.S. 14-2-309(iv) is unconstitutionally vague."

The appellee lumps the questions into two issues as follows:

"I. Are prior rehabilitation efforts by authorities in sister states relevant, clear and convincing evidence of 'efforts by an authorized agency' for purposes of W.S. 14-2-309(a)(iii)?

"II. May a patently unfit parent raise the issue of whether or not the term 'unfit parent,' contained within a statute, should render the statute void for vagueness?"

The petition which was filed seeking the termination of the parental rights of the appellant-father alleged the statutory grounds under § 14-2-309(a)(iii) and (iv), W.S.1977. Specifically, the petition encompassed allegations that the children had been abused and neglected; efforts by authorized agencies and mental health professionals had been unsuccessful in rehabilitating the father; the health and safety of the children would be seriously jeopardized if they remained with or were returned to the father; the father was incarcerated due to the conviction of a felony, a charge of second-degree sexual assault against the children; and the father was unfit to have custody and control of the children. A guardian ad litem was appointed to represent the children in the proceeding, and upon the father's request, an attorney was appointed to represent him.

The petition was filed in June of 1985, and after several requests for continuance, which in part were attributable to the incarceration of the appellant, a hearing was held on January 24, 1986. From the bench, the district judge announced the requisite findings for termination of parental rights under both subsections of § 14-2-309(a). An order terminating parental rights, consistent with the findings by the trial judge at the close of the hearing, then was entered. This appeal is taken from that order.

The pertinent provisions in the statute read:

"(a) The parent-child legal relationship may be terminated if any one (1) or more of the following facts is established by clear and convincing evidence:

* * *

* * *

"(iii) The child has been abused or neglected by the parent and efforts by an authorized agency or mental health professional have been unsuccessful in rehabilitating the family or the family has refused rehabilitative treatment, and it is shown that the child's health and safety would be seriously jeopardized by remaining with or returning to the parent;

"(iv) The parent is incarcerated due to the conviction of a felony and a showing that the parent is unfit to have the custody and control of the child." Section 14-2-309(a), W.S.1977 (1986 Replacement).

We have identified the three elements for termination of parental rights under § 14-2-309(a)(iii), W.S.1977 (1986 Replacement), as follows:

" * * * (1) [A]busive treatment or neglect by the parent; (2) unsuccessful efforts to rehabilitate the family (i.e. termination of parental rights is the least intrusive means to satisfy the State's interest); and (3) the child's health and safety would be seriously jeopardized by remaining with or returning to the parent." Matter of GP, Wyo., 679 P.2d 976, 1005 (1984).

In making these determinations under subsection (iii) of the statute, and this also would be true under subsection (iv) of the statute, we require that the application of these statutes be the subject of strict scrutiny. TR v. Washakie County Department of Public Assistance and Social Services, Wyo., 736 P.2d 712 (1987); DS and RS v. Department of Public Assistance and Social Services, Wyo., 607 P.2d 911 (1980). See also, Matter of Parental Rights of PP, Wyo., 648 P.2d 512 (1982); State in Interest of C., Wyo., 638 P.2d 165 (1981). The strict scrutiny standard is invoked because of the conflict between the fundamental liberty of familial association and the compelling interest of the state in protecting the welfare of children. TR v. Department of Public Assistance and Social Service, supra; Matter of MLM, Wyo., 682 P.2d 982 (1984); Matter of GP, supra; Matter of SKJ, Wyo., 673 P.2d 640 (1983). Even though we require clear and convincing evidence as a part of the strict scrutiny standard, see, e.g., Matter of MLM, supra; Matter of GP, supra; Matter of SKJ, supra; Matter of Parental Rights of PP, supra, we examine the evidence in the light most favorable to the prevailing party, assuming all favorable evidence to be true while excluding from consideration conflicting evidence presented by the unsuccessful party. Further, we give the evidence of the prevailing party every favorable inference which fairly may be drawn from it. TR v. Washakie County Department of Public Assistance and Social Services, supra; Matter of SKJ, supra; Matter of Parental Rights of PP, supra.

Accepting these legal principles, the appellant has focused his attack upon the order of the district court on the second element required for termination of parental rights because of abuse or neglect. He concedes that there is clear and convincing evidence of child abuse in this case but argues that there is no evidence to demonstrate unsuccessful efforts to rehabilitate the family (i.e., termination of parental rights is the least intrusive means to satisfy the state's interest). Essentially for that reason, he does not address the third element of whether the health and safety of these children would be jeopardized seriously if they were returned to him. We will not discuss the evidence of abuse in light of the appellant's concession, but we do agree with the district judge that, without question, there was clear and convincing evidence of abuse. That conduct was manifested by physical abuse and, later, sexual abuse.

The crux of the appellant's argument is that, far from being demonstrated by clear and convincing evidence, the record is silent as to any unsuccessful efforts in rehabilitating the family, particularly the appellant, by any authorized agency or mental health professional within the State of Wyoming. It is true that the only evidence of efforts at rehabilitation relates to the intervention of the Department of Human Services of the Department of Institutions, Social and Rehabilitative Services in the State of Oklahoma, from about mid-October of 1981 until the end of the year 1983. That evidence discloses that the four sons of the appellant and his wife were placed in foster care in Oklahoma in the fall of 1981. The older of their two daughters was born during the period that the four boys were in foster care, and the second daughter was born after all the boys had been returned to the family. While the four boys were in foster care, the appellant, together with his wife, was required to participate in a program of parent training and counseling. The progress of appellant and his wife with respect to this program was somewhat sporadic, but it was completed satisfactorily after a suggestion that it might be necessary to terminate parental rights to the children. After completion of the parent training and counseling program, the two younger sons were returned...

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