KAT v. State

• Decision Date: 28 November 2012
• Docket Number: Nos. S–12–0068,S–12–0069.,s. S–12–0068
• Citation: 288 P.3d 1217,2012 WY 150
• Parties: In the Matter of the Termination of Parental Rights to KAT, SAT, and JGS, Minor Children, NLT, Appellant (Respondent), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner). In the Matter of the Termination of Parental Rights to JGS, Minor Child, MDS, Appellant (Respondent), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).
• Court: Wyoming Supreme Court

288 P.3d 1217

2012 WY 150

In the Matter of the Termination of Parental Rights to KAT, SAT, and JGS, Minor Children,

NLT, Appellant (Respondent),

v.The State of Wyoming, Department of Family Services, Appellee (Petitioner).

In the Matter of the Termination of Parental Rights to JGS, Minor Child, MDS, Appellant (Respondent),

v.The State of Wyoming, Department of Family Services, Appellee (Petitioner).

Nos. S–12–0068, S–12–0069.

Supreme Court of Wyoming.

Nov. 28, 2012.

Representing Appellant in Case No. S–12–0068: Mary L. Scheible of Scheible Law Office, Thermopolis, Wyoming.

Representing Appellee in Case No. S–12–0068: Gregory A. Phillips, Wyoming Attorney

General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General. Argument by Ms. Kucera.

Guardian Ad Litem in Case No. S–12–0068: Bobbi D. Overfield of Messenger & Overfield, P.C., Thermopolis, Wyoming.

Representing Appellant in Case No. S–12–0069:Christopher J. King of Worrall & Greear, P.C., Worland, Wyoming.

Representing Appellee in Case No. S–12–0069:Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Assistant Attorney General. Argument by Ms. McCabe.

Guardian Ad Litem in Case No. S–12–0069:Bobbi D. Overfield of Messenger & Overfield, P.C., Thermopolis, Wyoming.

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

VOIGT, Justice.

[¶ 1] This opinion encompasses two separate cases that have been consolidated for the purpose of decision. NLT, who is one of the appellants in this matter, is the mother of KAT, SAT, and JGS. The other appellant, MDS, is the father of JGS. Following a five-day bench trial, the district court terminated NLT's and MDS's parental rights to the minor children. Both parents appealed, claiming that the Department of Family Services (DFS) failed to provide clear and convincing evidence that their parental rights should be terminated. We affirm the district court's decision.

ISSUES

[¶ 2] 1. Did DFS present clear and convincing evidence to support the district court's decision to terminate NLT's parental rights to KAT, SAT, and JGS?

2. Did DFS present clear and convincing evidence to support the district court's decision to terminate MDS's parental rights to JGS?

FACTS

[¶ 3] When she was 17 years old, NLT married CRT, a 45-year-old convicted sex offender. Although NLT knew that her new husband had been convicted of sexually assaulting his son from a previous relationship, she believed that he “had learned his lesson.” The couple lived in what can only be described as squalor, and, after seven years of marriage, the couple's first child, KAT, was born on December 13, 2000. Thereafter, a son, CT, was born ¹. NLT believed her relationship with CRT was good until after the children were born. At that point, CRT became abusive towards NLT and the children. When KAT was approximately two years old, NLT removed KAT's diaper and held her down while CRT sexually abused the child. Approximately a year after that event, NLT left the home with the children and, with the help of the Hope Agency, obtained a restraining order against CRT.

[¶ 4] Although they were separated and the restraining order had been issued, CRT continued to visit NLT and the children and would often stay the night at their apartment. NLT then became pregnant with their third child. NLT moved with her children to Riverton, but returned to Torrington and again lived with CRT. Their third child, SAT, was born on November 1, 2005. Thereafter, NLT divorced CRT and moved with the children back to Riverton.

[¶ 5] NLT began dating MDS and in April 2007, after becoming pregnant with his child, she moved her family to Thermopolis to live with him. That summer, KAT, CT, and SAT stayed with their father, CRT, for three weeks in Torrington. NLT was concerned about the children when they returned from the visit because the children were all having a difficult time using the bathroom and SAT had a yeast infection. NLT took the children to the doctor and the problems were resolved. NLT's and MDS's child, JGS, was born on October 2, 2007.

[¶ 6] After JGS was born, KAT disclosed to her mother that her uncle, GT, had touched her inappropriately while she was staying with her father the previous summer. NLT told MDS about KAT's allegations, and MDS advised NLT that she ought not report the abuse because DFS would take the children away. Although NLT was concerned that her children would be taken away, she reported the abuse to the Hope Agency. The DFS office in Torrington was notified of the allegations, but no action was taken or criminal charges filed.

[¶ 7] In 2008, DFS had two more contacts with the family: one regarding a report of SAT being left alone outside in inappropriate dress for winter and the other after a report of excessive punishment. In response to those reports, DFS offered parenting classes for the family and counseling services for KAT. NLT and MDS agreed to the parenting classes, but declined counseling for KAT. During this time, CT was no longer living with NLT and MDS. According to NLT, MDS and CT were not getting along and, thus, MDS suggested that CT live with CRT. This suggestion was made even though NLT and MDS both believed that CRT had been molesting CT. Although service providers helping the family at the time warned that it was not a good idea to send CT to live with CRT, NLT ultimately agreed to do so because she was afraid that MDS would otherwise make her leave the home.

[¶ 8] When service providers came to the home to assist NLT and MDS, they often observed inappropriate behavior, usually from MDS. MDS made threatening comments towards the providers and was belittling of NLT in front of others. One provider reported the behavior to her agency's attorney, who felt it was no longer safe for that provider to go to the home. With other providers, MDS generally left the room when parenting skills were discussed, and neither MDS nor NLT “model[ed]” the techniques the providers were using with the children.

[¶ 9] In January 2009, NLT called her social service aide at DFS to apologize for missing a parenting session earlier in the day. During the conversation, NLT told the social service aide about the incident wherein NLT assisted CRT in sexually abusing KAT. NLT explained that MDS told her he had a tape recording of her disclosing the abuse of KAT to MDS, and that he was going to give the tape to DFS. The social service aide contacted her supervisor and law enforcement. NLT then repeated what she and CRT had done to KAT to Officer McDonald of the Thermopolis Police Department. Officer McDonald discussed the situation with DFS, the police chief, and the county attorney, and it was decided that NLT's children needed to be taken into protective custody.

[¶ 10] The Hot Springs County Attorney filed a neglect petition against NLT on February 3, 2009, and a shelter care hearing was held the same day. The juvenile court ordered that KAT and SAT remain in DFS custody for foster care placement, and that JGS be returned to MDS. On February 10, 2009, DFS took KAT to the Children's Advocacy Project for a forensic interview. In that interview, KAT disclosed that she had been sexually abused by her father, CRT, and her uncle, GT. She also disclosed that MDS had sexually abused her, anally raped her, and made her view pornography. Thereafter, MDS was arrested and JGS was placed in protective custody. The county attorney then filed a neglect petition against NLT and MDS on February 13, 2009.

[¶ 11] DFS developed case plans for both NLT and MDS, with the permanency goal of reunification with the children. NLT's case plan goals were to establish a safe home for the children without financial support from MDS, attend counseling and address treatment needs, obtain a psychosexual and psychological evaluation, take random drug and alcohol tests, and attend regular visitation with the children. MDS's case plan goals were to attend counseling, obtain a psychosexual evaluation, a substance abuse evaluation, a domestic violence and anger management evaluation, maintain consistent housing and employment, and visitation with JGS.

[¶ 12] Over the next several months, a multidisciplinary team regularly met to evaluate NLT's and MDS's progress in their case plans. MDS failed to comply with any part of his case plan other than visitation, and NLT failed to make attempts to gain employmentor housing. During this time, MDS was convicted of two counts of first-degree sexual assault for his conduct with KAT and was sentenced to serve two consecutive terms of 20 to 35 years in prison. Also during this time, the juvenile court found that the allegations against NLT and MDS in each of the petitions were true. On November 16, 2009, the multidisciplinary team recommended that the permanency goal of NLT's and MDS's case plans be changed from reunification to termination of parental rights. The juvenile court ordered that termination be the new goal, and DFS prepared new case plans which reflected that goal.

[¶ 13] On August 31, 2010, DFS filed a petition to terminate NLT's parental rights to KAT, SAT, and JGS pursuant to Wyo. Stat. Ann. § 14–2–309(a)(iii) and (v) (Lexis Nexis 2011) and MDS's parental rights to JGS pursuant to Wyo. Stat. Ann. § 14–2–309(a)(iii), (iv), and (v).² The district court held a five-day bench trial in June 2011, where all parties presented witnesses and exhibits. Thereafter, the district court found clear and convincing evidence of each allegation in the petition, and granted the petition to terminate NLT's parental rights to KAT, SAT, and JGS, and the petition to terminate MDS's parental rights to JGS.

STANDARD OF REVIEW

[¶ 14] In their appeals, NLT and MDS both claim that DFS failed to present clear and convincing evidence that supports the district court's decision to terminate their parental rights. We use...