MLM, Matter of
| Decision Date | 25 May 1984 |
| Docket Number | No. C-83-6,C-83-6 |
| Citation | 682 P.2d 982 |
| Parties | In the Matter of Parental Rights of MLM, LFM and BDM. MS, Appellant (Respondent), v. Robert KUCHERA, Director of the Department of Public Assistance and Social Services In and For CAMPBELL COUNTY, Appellee (Petitioner). |
| Court | Wyoming Supreme Court |
David A. Kinskey, Gillette, for appellant.
A.G. McClintock, Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., Laura L. Beard, Asst. Atty. Gen., Cheyenne, Jack Sundquist, Deputy County Atty., and Francis E. Stevens, guardian ad litem, Gillette, for appellee.
Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.
Appellant appeals the trial court's termination of her parental rights to three daughters, MLM, LFM and BDM. The trial court's judgment followed a jury verdict which found that appellant had neglected her three children.
Appellant has raised the following issues on appeal:
Issues C and D will be considered together, and issues E, F, and G will be combined.
We will affirm.
Appellee, Campbell County Department of Public Assistance and Social Services (hereinafter D-PASS) first contacted appellant and her family in September 1981. Mrs. Greer Hastings, principal caseworker for D-PASS, was assigned to the case and made numerous home visits and telephone calls during a fifteen month period. Mrs. Hastings, in her position, was principally concerned with providing services to families that included neglected and abused children. Between September 1981 and December 1982 the three children were removed from appellant's home several times. Removal was either voluntary so that the children could be placed temporarily in foster care or was involuntary and the children were put in protective custody. After each removal the children were returned to appellant after her promise to correct certain deficiencies that were explained to her in detail. D-PASS workers and others found certain recurring problems and deficiencies with appellant and in her home: 1) inadequate heat, 2) hazards that endangered the children, 3) children were not receiving prescribed medicine, 4) bedwetting, lack of clean clothing, inadequate personal hygiene, 5) children's health problems, hunger and inappropriate behavior patterns, 6) physical mistreatment, and 7) generally, the children and the home were filthy and unkempt.
This is not merely a "dirty house" case; it is a case of three little girls living under conditions of squalor and neglect all their lives. D-PASS said, in effect, "enough is enough," and filed a petition for termination of parental rights.
The three girls were born in the State of Washington. MLM was born in 1974; LFM in 1976; and BDM in 1979. We do not have all the details of the conditions that existed in Washington, but generally, they were the same conditions as found in Wyoming.
We know in greater detail the circumstances of the children's welfare in Campbell County, Wyoming. Mrs. Hastings found three dogs and three cats in residence at appellant's home. On one visit she counted twenty piles of feces of various vintage in the hallways, bedroom and living room. Feces was detected on most home visits. The children and a dog drank out of the same water dipper; and the children found and ate remnants of food in junk cars on appellant's premises. Two of the children went to school hungry and begged for food; and they were given showers at school. They also went to school without warm clothes. They were given clothes from various sources, and these clothes ended up in soiled clothes piles in appellant's home. Besides incidents of wetting their pants at school, two children required some medical treatment at school, and were identified as having psychological problems. Additionally, appellant's home and her three girls were associated with a variety of strong odors, the smell of urine being predominate.
Caseworkers, nurses and others identified items and conditions in the home that they characterized as hazardous and dangerous to the health and safety of the children. One child was sleeping eighteen inches from a space heater with a pile of flammable material next to the heater. Food found in junk cars constituted a danger of bacteria and poison. Knives and medicine were accessible to the children. The caseworker noticed that there was no cover on the light switches or outlets, and exposed hot water pipes and aluminum siding with sharp edges also created a danger. These hazards were pointed out to appellant.
On December 7, 1982, appellee filed its petition to terminate the parental rights of appellant pursuant to § 14-2-309(a)(iii), W.S.1977, (Cum.Supp.1982). 1 This statute provides:
Neglect is defined in § 14-3-202(a)(vii), W.S.1977:
" 'Neglect' means the failure or refusal by those responsible for the child's welfare to provide adequate care, maintenance, supervision, education or medical, surgical or any other care necessary for the child's well-being. * * * "
We have previously considered the requirements of § 14-2-309(a)(iii), W.S.1977, and stated:
"Thus we examine the evidence to ascertain if it clearly and convincingly establishes the facts: (1) that CP has failed or refused to provide adequate care, maintenance, supervision, education or medical, surgical, or other care necessary for PP's well being; (2) that rehabilitative efforts by authorized agencies have been unsuccessful in correcting the situation; and (3) that PP's health and safety would be seriously jeopardized by remaining with or returning to CP. * * * " Matter of Parental Rights of PP, Wyo., 648 P.2d 512, 513 (1982).
"Succinctly stated, parental rights cannot be terminated under § 14-2-309(a)(iii) unless there is the necessary quantum of proof to show 1) neglect, 2) a refusal or failure of rehabilitation, and 3) that the health and safety of the children will be in jeopardy if left with the offending parent." Matter of SKJ and SLJ, Wyo., 673 P.2d 640, 644 (1983).
Appellant contends that the admission into evidence of an adjudication of prior neglect in the State of Washington regarding appellant's children was erroneous, irrelevant and prejudicial. Appellant objected to three orders of the Juvenile Department of the Superior Court of the State of Washington in and for Cowlitz County, and two reports by the Department of Social and Health Services (hereinafter D-SHS). In determining the relevance of evidence objected to, certain rules and prior case law must be considered:
" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, Wyoming Rules of Evidence.
Rule 402, W.R.E.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, W.R.E.
"Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Rule 7.04, Wyoming Rules of Appellate Procedure.
Rule 61, Wyoming Rules of Civil Procedure, provides that an error in admitting evidence is not a ground for granting a new trial, for setting aside a verdict, or for disturbing a judgment tent with substantial justice" and an error must be disregarded which "does not affect the substantial rights of the parties."
A ruling of the trial court on the relevancy of evidence in termination of parental rights cases is "within its sound discretion and will be upheld absent the showing of a clear abuse of discretion." Matter of Parental Rights of SCN and NAN, Wyo., 659 P.2d 568, 521 (1983). The appellant has the burden to demonstrate an abuse of discretion in the court's ruling. Nimmo v. State, Wyo., 603 P.2d 386 (1979). Considerable deference is accorded an admissibility ruling of a district court on appellate review if a legitimate and rational basis exists for the decision. Apodaca v. State, Wyo., 627 P.2d 1023 (1981).
Courts generally hold that evidence of prior neglect of the same children is relevant in dependency or parental rights termination...
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