MKM, In Interest of, C-89-6

CourtUnited States State Supreme Court of Wyoming
Citation792 P.2d 1369
Docket NumberNo. C-89-6,C-89-6
PartiesIn the Interest of MKM, A Minor Child. DF, Appellant (Petitioner), v. MLM and WS, Appellees (Respondent).
Decision Date31 May 1990

Stephen H. Kline and Kathryn A. Jenkins, Cheyenne, for appellant.

Ronald E. Triggs, Cheyenne, for appellee MLM.

Franklin Smith, Cheyenne, for appellee WS.

John Frentheway, Cheyenne, as Guardian Ad Litem.

Joseph B. Meyer, Atty. Gen., Richard E. Dixon, Asst. Atty. Gen., for Wyoming Div. of Public Assistance & Social Services.


URBIGKIT, Justice.

This case involves an extraordinarily bitter custody battle for MKM who was sexually abused by either her father or the man who became her mother's second husband. The district court adjudicated the controversy within child neglect and custody concepts and awarded custody to MKM's paternal grandmother in a best interests of the child discretional decision.

We affirm the district court's general award of present custody. However, in finding an award of permanent custody to the grandmother contrary to the statutes controlling this area of law, we modify the grant of custody to temporary legal custody and remand.

Mother, as appellant, questions whether the district court:

A. * * * lack[ed] jurisdiction to award permanent custody of [MKM] to a third party by virtue of its failure to comply with the procedural requirements of the Juvenile Court Act?

B. * * * violate[d] [mother's] fundamental rights by assuming jurisdiction under the Juvenile Court Act and awarding custody of [MKM] to a third party with no allegation, evidence or finding that [mother] neglected [MKM]?

C. * * * deprive[d] [mother] of a fundamental right by awarding permanent custody of [MKM] to a third party, in effect terminating her parental rights, without a finding that she is unfit?

D. * * * improperly award[ed] permanent custody of [MKM] to her paternal grandmother for the reasons that [grandmother] was not a party to the action and there was no evidence or finding that [mother] is unfit or neglected [MKM]?

Father, as appellee, with whom grandmother and MKM through her guardian ad litem join, questions whether the district court:

A. * * * abuse[d] its discretion in awarding custody of [MKM] to [the grandmother]?

B. * * * [had] before it substantial evidence upon which to base its decision to award custody of a minor to someone other than either of the natural parents?

C. * * * [had] proper jurisdiction over the subject matter and over the parties upon which to base its decision?

Finally, the Wyoming Division of Public Assistance & Social Services (DPASS) questions whether:

I. * * * the parties consent[ed] to a delay of more than 60 days between the filing of a petition and adjudication in juvenile court actions?

II. * * * the juvenile court [had] jurisdiction, to place custody of a child in third parties following an adjudication of neglect?

III. * * * [there is] error when a district court makes a child custody award pursuant to a divorce decree or modification thereof?


MKM's parents were married on May 20, 1983, MKM was born on August 23, 1983, and her parents divorced on December 21, 1984 in Laramie County, Wyoming. The divorce decree granted the father custody and the mother generous visitation rights.

On September 29, 1986, the district attorney's office petitioned the Juvenile Court of Laramie County 1 stating MKM was a neglected child, pursuant to W.S. 14-6-201(a)(xvi)(B) (1977), based on an allegation of her father's sexual abuse. Meanwhile, the child was placed in a foster home. An initial appearance and arraignment was held on October 10, 1986. 2 While the father maintained his innocence, the result of this hearing was that temporary custody was awarded to the mother. The district court also ordered the mother not to cohabit with any person while the child was residing in her home.

Because custody provisions of a divorce decree remain open throughout the minority of the children involved, and the district court granting the divorce retains continuing jurisdiction to the custody aspect of the decree, Nicholaus v. Nicholaus, 756 P.2d 1338, 1341 (Wyo.1988), the mother petitioned the district court on April 2, 1987 to award her continuing permanent custody of the child based on changed circumstances. At the same time, she moved that her petition be consolidated with the petition filed in juvenile court.

In June 1987, MKM's guardian ad litem moved for an order to show cause why mother should not be held in contempt for cohabiting with her boyfriend in violation of the 1986 order granting her temporary custody. Mother responded with a number of motions, including one to remove the guardian ad litem. Mother and her boyfriend were married on July 24, 1987, from which a child was born in January 1988. Following a hearing held on August 6-7, 1987, the district court found the mother in contempt and denied her motion to remove the guardian ad litem.

Also at this hearing, the district court expressed concern about allowing the mother to continue temporary custody of MKM and asked counsel for suggestions on this matter. It was the result of that request that the possibility of MKM's paternal grandmother becoming custodian first surfaced. On May 17, 1988, the grandmother entered an appearance to move for the district court to grant present custody to her.

In January 1988, mother moved for relief from the 1986 order forbidding her to cohabit with any person while MKM was residing with her. She stated as her reason for relief that although she had not lived with her new husband since being found in contempt a few months earlier, they were now married and she had become pregnant. In February 1988, the district court, based on a stipulation of all parties involved, removed MKM from temporary custody of her mother and placed her in foster care. The district court allowed the mother and the father to visit their daughter under supervision, but the mother's second husband was ordered not to have any contact with the child.

While this custody battle was developing in the Wyoming juvenile and district courts, Colorado authorities instituted criminal proceedings for sexual abuse against the father. Although the record in this case does not provide an entirely clear picture of what happened in Colorado, we are able to ascertain that he was convicted of two counts of sexual assault on a minor and sentenced to two concurrent prison terms of six years. The father has steadfastly maintained his innocence, claiming his conviction came as the result of an overzealous social worker and an "unlicensed psychologist." The Colorado court denied the father's motion for a new trial and his case is presently on appeal.

The new trial motion and appeal were apparently based on the finding of new evidence which came to light after the mother lost temporary custody of her daughter. While in foster care, MKM told her foster mother, social worker and therapist that her mother's second husband was the one who sexually assaulted her and that her mother had coerced her to lie about her father's alleged improper conduct. The young child also reported that her mother had burned her with a cigarette when she would not get off of a swing fast enough. The district court was now faced with contentions of abuse by all three adults--mother, father and mother's second husband. Following a pre-hearing conference in October 1988, 3 the district court issued an order determining that MKM was a neglected child, although the specific perpetrator of any sexual assault could not be determined. Although recognizing the Colorado conviction, the district court noted the pending appeal and refused to dispositively assess guilt to the father.

A final custody disposition hearing came before the district court on August 8 and 15, 1989. Testimony came from numerous current and former social workers and therapists of MKM, MKM's foster mother, the mother, the father, the mother's second husband, the grandmother and the father's new wife who also had a child of their union. The testimony from the current social workers, the therapists and the foster mother indicated that the child may have been assaulted by her mother's second husband. The former social worker and therapist testified they believed it was the father who had abused the child. While everyone seemed reasonably certain MKM had been abused sexually, no one, except the victim or the wrongdoer, really knew who had been the perpetrator.

On August 29, 1989, the district court decided that the best placement for MKM would be with her paternal grandmother. The district court detailed its findings and conclusions and stated that "[t]he acrimony and apparent hatred between [father] and [mother], * * *, is extraordinary even by juvenile and divorce court standards." It went on to state:

Most recently, * * *, there was persuasive and unrefuted evidence that [MKM] says that it was [her mother's second husband], not [her father], who sexually molested her; that she lied about it in court at the insistence of [her mother]; that she is tired and scared of the lying; frightened of [her mother's second husband]; and that he is the only one who ever "bad touched her." So there now stands against [the mother's second husband], the same if not stronger, evidence of having molested [MKM] than that which convicted her father * * * of that crime. According to testimony, the District Attorney's Office in Laramie County strongly considered filing criminal charges against [the mother's second husband], but did not do so. Mention must be made of [MKM]'s relationship with her grandmother, * * *.

During much of her earliest years, and from time to time through this litigation, [MKM] has spent a great deal of time with [her grandmother]. There exists between them a very strong bond and affection. No one disputes [the grandmother]'s love for [MK...

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