Roberts v. State (In re RVR)
| Decision Date | 06 December 2022 |
| Docket Number | S-22-0032 |
| Parties | IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: RVR; KAR; and RLR, minor children, v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner). FRANK LANDIS ROBERTS, IV, Appellant (Respondent), |
| Court | Wyoming Supreme Court |
Appeal from the District Court of Laramie County The Honorable Peter H. Froelicher, Judge
Representing Appellant: Donna D. Domonkos and Brittany N Thorpe of Domonkos &Thorpe, LLC, Cheyenne, Wyoming. Argument by Ms. Domonkos.
Representing Appellee: Bridget L. Hill, Attorney General Misha E. Westby [*] , Deputy Attorney General; Shawnna M. Lamb, Senior Assistant Attorney General; Christina F. McCabe, Senior Assistant Attorney General. Argument by Ms. Lamb.
Guardian ad Litem: Joseph R. Belcher, Director, Wyoming Office of the Guardian ad Litem. Appearance by Mr. Belcher.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.
[¶1] Frank Landis Roberts, IV, (Father) appeals from the district court's order granting the Wyoming Department of Family Services' (DFS) petition to terminate his parental rights. He asserts he received ineffective assistance of counsel, and the district court abused its discretion when it denied his motion to set aside the entry of default. We affirm.
[¶2] Father presents two issues, which we rephrase as follows:
[¶3] At 2:45 a.m. on April 11, 2019, Father called the Cheyenne Police Department to report his three young children, RVR KAR, and RLR, were out of control. When an officer responded, he discovered the home was filthy and in disarray. The officer arrested Father on an outstanding warrant and took the children into protective custody because there were no other adults in the home who could provide care for the children.[1] The State filed a neglect petition against Father that same day. The details of the underlying neglect case are set forth in In re RR, 2021 WY 85, 492 P.3d 246 (Wyo. 2021), and will not be recapped here.
[¶4] On February 11, 2021, DFS filed a petition to terminate Father's parental rights pursuant to Wyoming Statute § 14-2-309(a)(iii)[2] and (a)(v).[3] DFS served Father with the petition and summons on March 26, 2021. The summons informed Father he needed to answer the petition within 20 days or judgment by default could be taken against him. Father did not file a timely response, and on April 16, 2021, DFS asked the Clerk of Court to enter default against Father. The Clerk entered default against Father that same day. DFS requested a default hearing on the petition against Father, which was set for June 16, 2021.
[¶5] On April 26, 2021, Father filed a pro se letter requesting a court-appointed attorney and indicating his desire to oppose the petition. Father filed his financial affidavit two days later. This affidavit indicated Father was homeless and unemployed. Court-appointed counsel entered an appearance on Father's behalf on April 30, 2021.
[¶6] On May 19, 2021, Father's counsel filed a request for an extension of time to respond to the petition, which included a proposed response he had drafted on Father's behalf. This pleading indicated counsel's attempts to contact Father were unsuccessful, but based on Father's pro se letter, it appeared Father wanted to defend against the petition. DFS objected to Father's request for an extension of time on the grounds that Father had not filed a motion to set aside the entry of default under Rule 55 of the Wyoming Rules of Civil Procedure (W.R.C.P.). The district court denied Father's request. The default hearing was continued twice, once at the request of the Guardian Ad Litem (GAL) and once at the request of DFS. It was ultimately heard on July 20, 2021.
[¶7] At the beginning of the default hearing, the district court explained the procedural posture of the case and how it intended to proceed:
[¶8] When asked if he objected to this procedure, Father's counsel stated:
[FATHER'S COUNSEL]: Your Honor, I had been prepared to have Mr. Roberts take the stand to testify as to the events that occurred, and I still would like to do that. However, if the [c]ourt decides that isn't appropriate then I think we can do most of it just from the documents that have been filed. But I prefer to put him on the stand.
[¶9] The district court said it would take up that issue when it was Father's turn to present evidence, but it reminded Father a short time had been set aside for the hearing because it was not "a full-blown trial." In his opening statement, Father's counsel argued defaulting a parent in a termination of parental rights case was "the most severe ruling the [c]ourt could grant," and Father should be given a chance to defend against the petition. He also argued affording Father that opportunity would not create an undue or extra burden on DFS because the case against the mother was still set for trial.
[¶10] DFS offered the testimony of the caseworker in the underlying juvenile neglect action. She testified Father did not comply with or complete any of the goals in his case plan. She also testified in detail about the services DFS offered to Father and the children throughout the case. Father was resistant to several of these services, and some of the service providers eventually refused to provide services for him due to his aggressive and defiant behavior. Despite DFS's efforts, Father was evicted from his apartment, and he failed to tell DFS where he was living or if he was employed. The caseworker stated she was concerned Father would be unable to meet the children's ongoing needs if they were returned to his care. She opined placing the children back with Father would seriously jeopardize their health and safety.
[¶11] When given the opportunity to cross-examine the caseworker, Father's counsel asked the district court to allow Father to testify that "there [was] no culpable conduct on his part for failing to answer." The district court reiterated the purpose of the hearing was to determine if DFS could present clear and convincing evidence that Father's parental rights should be terminated, and that termination was in the best interests of the children. The district court noted the testimony Father's counsel wished to present appeared to "go to the question of whether the [c]ourt should set aside entry of default," but the court did not have before it "any motion to set aside entry of default." The district court found that setting aside the default was not properly before the court, and it could only consider DFS's request for default judgment. The district court denied counsel's request to present this testimony. Father's counsel then informed the district court he had not filed a motion to set aside the entry of default because he believed the purpose of the hearing was "to determine whether or not the default should go through or be set aside." The district court did not reconsider its ruling. After Father's counsel cross-examined the caseworker, there was not enough time to allow DFS to finish presenting its evidence, and the district court indicated it would reconvene the hearing at a later date.
[¶12] Later that day, in response to the district court's comments, Father's counsel filed a written motion to set aside the entry of default. This motion asserted Father made numerous attempts to obtain counsel, although it did not list specific dates for those attempts. The motion admitted Father had not asked the district court to appoint counsel for him until after default had been entered. Father argued the entry of default was not due to his culpable conduct because he had done everything he could to obtain counsel. He asserted DFS would not be prejudiced because the petition against the children's mother was set for trial, and DFS would have to present similar facts at that trial. Father also asserted he had a meritorious defense, although he did not set forth any details about that defense. DFS objected to this motion, claiming Father failed to show he was entitled to relief under W.R.C.P. 55(c).
[¶13] The default hearing was set to reconvene at 9:00 a.m. on October 22, 2021. DFS wanted the district court to hear Father's motion to set aside the entry of default before the default hearing reconvened, and it filed a request for a setting on the motion when it realized Father's counsel had not done so. On October 13, 2021, the district court issued an order setting the hearing on the motion to set aside the entry of default for 8:30 a.m. on October 22, 2021.
[¶14] Neither Father nor his counsel was present when the district court convened the hearing at 8:30 a.m. The district court heard argument on Father's motion, even though he and his counsel were not present. DFS asked the district court to deny the motion because it did not "contain...
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