JL, In Interest of, C-88-1

• Decision Date: 23 September 1988
• Docket Number: No. C-88-1,C-88-1
• Citation: 761 P.2d 985
• Parties: In the Interest of JL, a Minor. PL, Appellant (Respondent), v. JOHNSON COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 985

761 P.2d 985

In the Interest of JL, a Minor.

PL, Appellant (Respondent), v. JOHNSON COUNTY DEPARTMENT OF PUBLIC ASSISTANCE AND SOCIAL SERVICES, Appellee (Petitioner).

No. C-88-1.

Supreme Court of Wyoming.

Sept. 23, 1988.

Mark J. Murphy of Shoumaker and Murphy, Sheridan, for appellant.

Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Richard E. Dixon, Asst. Atty. Gen., for appellee.

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

URBIGKIT, Justice.

This appeal is taken from an order terminating the parental rights of the mother, PL (appellant), with respect to her three-year-old daughter, JL. Upon appeal, appellant challenges the procedural and evidentiary sufficiency of those proceedings. She presents two issues for review:

1. Should the trial court be reversed because the natural mother was not initially advised of her right to counsel and the child was not appointed counsel in the initial juvenile court proceeding?

2. Should the trial court be reversed because there was insufficient evidence to establish that an authorized agency or mental health professional has been unsuccessful in rehabilitating the mother or that the mother refused rehabilitation treatment?

We affirm.

I. FACTS

Embracing distinctly unpleasant facts, this record indicates that JL was born in Georgia on November 15, 1984. Appellant, herself a product of parental abandonment and foster homes, was eighteen and married at the time of the child's birth. Shortly after JL's birth, the parents separated and appellant initiated divorce proceedings. For practical purposes, with one brief interlude, the father disappeared from this scenario, and within a year, appellant and JL moved to California where JL's grandmother lived. Shortly after arrival, appellant met JH, a young man from Buffalo, Wyoming. Within two or three days of meeting, the three people moved to Buffalo, Wyoming as a culmination of an extremely quick romance. Arriving in Buffalo on New Year's Eve 1985, the three moved in with JH's parents and stayed until January 24 or 25, 1986, when they established a separate residence. ¹ Apparent subsistence was derived from appellant's acquisition of emergency Department of Public Assistance and Social Services welfare benefits.

In the evening of January 27, 1986, appellant took JL to the emergency room of Johnson County Memorial Hospital, reporting to medical personnel that the baby girl had been "acting ill." The attending physician testified that JL had multiple bruises over her entire body, was in shock, dehydrated, in a state of cardiovascular collapse and respiratory distress, and had a markedly distended abdomen. Police and Johnson County Department of Public Assistance and Social Services (Johnson County D-PASS) officials were summoned to investigate suspected child abuse. Unpleasantly descriptive photographs of the injuries were taken.

After JL was stabilized, she was flown to Billings, Montana on an emergency life flight, whereupon emergency abdominal surgery was performed to repair a perforation of the stomach. The initial and final diagnosis of medical personnel in Billings was that the injuries were of nonaccidental origin and fit the diagnosis of the "battered child syndrome." The treating physician in Billings stated JL "came as close to dying as is possible." JL remained hospitalized for over one month, enduring further abdominal surgeries, and then was placed in foster care in Billings until August 1987, in order to receive outpatient medical treatment. In addition to the physical injuries, this death's door child evidenced severe emotional harm, including an inability to cry or express pain.

Appellant was interviewed on January 27, 1986 by police and the Johnson County D-PASS director. Appellant first reported that the injuries occurred when JL fell out of her stroller onto a fireplace hearth while being cared for by JH. Both appellant and JH were subsequently arrested and charged with felony child abuse. ² A plea agreement was reached with appellant wherein the charges against her were reduced to two counts of reckless endangerment in return for her agreement to testify against JH. Although appellant finally admitted that she may have caused some of the less serious injuries, ³ the police concluded that JH was responsible for the life-threatening injuries. He committed suicide before trial and, on her guilty pleas to reckless endangerment, appellant was given a probationary sentence of one year.

Upon the petition of the county attorney's office, an order was entered on January 28, 1986, as the day of the injury report and hospitalization, placing JL in the temporary protective custody of Johnson County D-PASS. Further orders continuing such custody were entered on February 11, 1986 and May 5, 1987. In June 1986, the child care agency developed a rehabilitation plan with appellant for the stated objective of returning JL to her care. Approximately one month later, however, appellant left Buffalo and returned to Georgia, effectively ending her participation in the treatment plan. Care, custody and control of JL continued in the governmental agency. So also ended Chapter I of the life of JL, the baby girl, now aged nearly two, who almost totally by accident became a responsibility of the State of Wyoming.

On February 24, 1987, an order was entered by the district court appointing counsel to represent appellant; a few months later, a guardian ad litem was appointed for JL. Seeking finality of their twenty months of responsibility, the Johnson County and Prosecuting Attorney on behalf of Johnson County D-PASS, filed a petition on September 22, 1987 to terminate parental rights of both parents. The father voluntarily relinquished. Appellant, through appointed counsel, contested. Following trial, the district court entered an order terminating appellant's parental rights. In the termination order from which this appeal is taken, the district court made the following specific findings:

2. THE COURT FURTHER FINDS:

(a) That the minor child has been in the protective custody of the Johnson County Department of Public Assistance and Social Services for an extended period, in excess of one year;

(b) That the minor child was originally taken into protective custody by the Johnson County Department of Public Assistance and Social Services due to severe physical abuse and neglect;

(c) That [PL] has failed to contribute, in any significant manner, toward the support and maintenance of the minor child since prior to January 27, 1986;

(d) That all rehabilitative efforts have failed;

(e) That there have been no substantive contacts with the minor child by [PL] for a period in excess of one year; and,

(f) That the minor child's health, stability and safety would be seriously jeopardized by returning the minor child to her natural mother.

II. PROCEDURAL INADEQUACY OF APPOINTMENT OF COUNSEL

Appellant argues that the termination proceedings were constitutionally and statutorily defective in that, upon initially ordering temporary protective custody of JL, the district court neither appointed counsel to represent JL nor advised appellant of her right to counsel.

In the emerging situation, the district court ordered JL placed in temporary protective custody on January 28, 1986, ⁴ and further ordered continued protective custody on February 11, 1986 and May 5, 1987. We distinguish the care, custody and control status began in January 1986 and thereafter continued without contest from the subsequent termination initiated by a petition filed twenty months later. See South Carolina Dept. of Social Services v. Vanderhorst, 287 S.C. 554, 340 S.E.2d 149, 151 (1986) (two distinct stages were involved: the removal and the termination. However, the court found that, since the petition to terminate relied on factual findings from the removal hearing, the petition to terminate should have been denied when no counsel was afforded the parent); Petition of Catholic Charitable Bureau of Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 392 Mass. 738 467 N.E.2d 866, 869 (1984) (discussing "the settled distinction between custody and termination proceedings"); Matter of Evans, 81 N.C.App. 449, 344 S.E.2d 325, 327 (1986) (different standards apply to removal rather than termination proceedings); and State in Interest of Alexander, 384 So.2d 1003, 1005 (La.App.1980) (a temporary protection order and its expiration did not affect separately brought child abuse proceedings). ⁵ The goal of the temporary custodial transfer has been explained as:

"It is not the quality or character of parental conduct per se that justifies State intervention on behalf of an abused, neglected, or otherwise endangered child. Rather, it is the fact of the endangerment itself. As parens patriae the State ... acts to protect endangered children." Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592, 421 N.E.2d 28 (1981). * * *

* * * The focus of such a [termination] proceeding is not whether the parent should be deprived of "custody" in order to safeguard the child's well-being, but rather whether "it would be in the best interests of the child for all legal relations [with the parent] to be ended " (emphasis added). Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119, 461 N.E.2d 186 (1984). "Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child." Santosky v. Kramer, 455 U.S. 745, 749, 753, 102 S.Ct. 1388, 1392, 1393, 71 L.Ed.2d 599 (1982).

Petition of Catholic Charitable Bureau, 467 N.E.2d at 868-69.

In a termination adjudication, the rights of the parent are implicitly a consideration along with the best interests of the child; each of these constitutional interests may diverge. See Matter of Welfare of J.J.B., ...