SVG, In Interest of

• Decision Date: 04 February 1992
• Docket Number: No. C-91-7,C-91-7
• Citation: 826 P.2d 237
• Parties: In the Interest of SVG, a Minor Child. TG, a/k/a TK, Appellant (Respondent), v. Marianne LEE, Director of Natrona County Department of Public Assistance and Social Services, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 237

826 P.2d 237

In the Interest of SVG, a Minor Child.

TG, a/k/a TK, Appellant (Respondent), v. Marianne LEE, Director of Natrona County Department of Public Assistance and Social Services, Appellee (Petitioner).

No. C-91-7.

Supreme Court of Wyoming.

Feb. 4, 1992.

James A. Raymond of Brown, Raymond & Rissler, P.C., Casper, for appellant.

Joseph B. Meyer, Atty. Gen., Michael Lee Hubbard, Sr. Asst. Atty. Gen., and Richard E. Dixon, Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

URBIGKIT, Chief Justice.

This appeal follows our recent decision in In Interest of DG, 825 P.2d 369 (Wyo.1992) in again requiring us to address jurisdictional requirements to terminate parental rights to a very young child. The utilization of summary judgment for the parental rights termination action presents an additional issue in this appeal.

We reverse.

I. ISSUES

Stated as issues by appellant are:

I.

Whether the order terminating appellant's parental rights is void because the case was filed by Marianne Lee, Director

of DPASS, and not by an attorney authorized to practice law in this state.

II.

Whether the court erred in granting summary judgment.

III.

Whether the district court's order should be reversed because the district court did not make specific findings as to the grounds for termination of appellant's parental rights.

We add the dispositive problem addressed in In Interest of DG of the lack of jurisdiction because of the failure to secure proper service of process. Gookin v. State Farm Fire & Casualty Ins. Co., 826 P.2d 229 (Wyo.1992); Interest of DG, 825 P.2d 369 (Wyo.1992).

II. FACTS

This a parental termination case for a baby boy who has been, essentially since his birth, in the custody of the Natrona County Department of Public Assistance and Social Services, now known as the Department of Family Services (Agency). After passing his second birthday in Agency maintenance, a petition for termination of the mother's parental rights was filed. The father had earlier given the Agency a consent to termination and adoption. The petition was filed pro se by the Agency director while the mother was then living in Arkansas. The mother, when receiving telephone notice from her former mother-in-law about her possible parental rights termination, objected to service of process. She first participated individually in the termination proceeding by filing a resistance to the termination and then, through appointed counsel, followed with an affidavit to oppose the entry of summary judgment against her. However, summary judgment was granted and the mother now appeals from that order.

III. LEGAL QUESTIONS PRESENTED

A. Petition Filed Pro Se by the Agency Director

This subject has been dispositively considered in In Interest of DG. Since other reasons for reversal exist, we do not now determine whether the result is jurisdictional which would void the proceeding or, conversely, whether plain error would require reversal for this case. Cf. In Interest of DG, 825 P.2d 369 (Wyo.1992).

B. Service of Process

We are again required to examine the service of process for this parental termination case to determine whether the trial court ever achieved jurisdiction. Gookin, 826 P.2d 229 (Wyo.1992); Goss v. Goss, 780 P.2d 306 (Wyo.1989); Midway Oil Corp. v. Guess, 714 P.2d 339 (Wyo.1986). The problem is similar, but the events not identical, to In Interest of DG in petitioner's failure to comply with W.R.C.P. 4.

On November 15, 1990, the petition for termination was filed pro se by the Agency director. A stated date for a hearing of January 30, 1991 at 8:00 a.m. was included in the petition. A guardian ad litem for the child was appointed on November 16, 1990, and the office of the district attorney entered an appearance for the Agency twelve days later by the execution of a precipe for a summons. On the day the precipe was filed and the summons issued, November 28, 1990, the district attorney's office filed an affidavit which stated:

COMES NOW the State of Wyoming, by and through * * *, Assistant District Attorney, and informs the Court that service of summons, petition and notification cannot be made on [the mother], natural mother of the minor child, * * *, within the State of Wyoming. That attempts of service on [the mother] at her last known address of 804 South Lincoln, Casper, Wyoming, were unsuccessful. FURTHER that attempts to locate [the mother] by reasonable diligence of the Natrona County District Attorney's Office has produced negative results in locating her.

THEREFORE, the State of Wyoming informs the Court that pursuant to W.S. § 14-2-313(b), service by publication to terminate the parental rights of [the mother] will be undertaken in accordance with the provisions of the Wyoming Rules of Civil Procedure 4(e), 4(f), 4(g) and 4(h), as said [mother] is not presently known to be a resident of the State of Wyoming nor is said [mother's] residence known at the present time to the State of Wyoming, FURTHER, the State of Wyoming requests that the Clerk of District Court make provision to obtain service on the natural mother by publication.

(Emphasis added.)

On the same day, service of process was commenced with preparation and filing of a notice which was then published in a county newspaper of general circulation on December 2, 9, 16 and 23, 1990, stating in published text:

TO: [The Mother]

LKA: 804 South Lincoln, Casper, Wyoming

YOU ARE HEREBY NOTIFIED * * * You are required to appear at the hearing on this matter which has been scheduled for January 30, 1991, at 8:00 a.m. You are further notified that failure to make answer to the Court in this matter within thirty (30) days [of] the last date of this publication will result in judgement by default being entered against you and your right to said minor child forever terminated.

A summons was also issued on November 28, 1990, which designated the sheriff to serve it, was then returned for filing on December 31, 1990, and included the following as its return:

I, _______________, Sheriff in and for said County of Natrona, in the State aforesaid, do hereby certify that I received the within Summons, together with a copy of the Petition filed in the above entitled matter, and that I served the same in the County aforesaid on the ________ day of ____________, 19__, by delivering a copy of the same, together with a copy of the Petition to [the mother], 804 S. Lincoln[,] Casper, Wyoming 82601[.]

After due and diligent search we were unable to locate [the mother], in Natrona County, Wyoming 12-27-90. MOVED no For[ ]warding.

Ronald L. Ketchum[,] Sheriff

By [Signature] [,] Deputy Sheriff

In response to the published notice, the mother sent a letter dated January 17, 1991 to the district court with copies to the assistant district attorney and guardian ad litem:

I am the natural mother of * * * and I have been told by my former mother-in-law who lives in Casper, Wyoming that a notice was filed in the newspaper in an effort to terminate my parental rights.

I do not want my parental rights terminated. I want my child back. I want the opportunity to present my side in court, but I need the court to appoint an attorney for me. I have not been served properly with any papers and would request that I be served at the above address.

This matter is set for a hearing before you on Wednesday, January 30, 1991, at 8:00 A.M. I would respectfully request a continuance from that date in order [to] secure an attorney and allow that attorney time to prepare a defense on my behalf. I would respectfully request that you appoint an attorney for me, and I would respectfully request that proper service be made on me.

Thank you very much for your consideration.

(Emphasis in original.)

A pleading response was filed on January 23, 1991, which stated:

IN THE INTEREST OF

[SVG]

CIVIL NO. 66663

RESPONSE

Comes the natural mother of [SVG], * * *, and for her Response to the published notice to terminate her parental rights, and states as follows:

1. I have been notified that a notice has been published in an effort to terminate my parental rights, but I have not been properly served with any papers.

2. I do not want my parental rights terminated. I want my child.

WHEREFORE, the natural mother prays that her parental rights not be terminated, that she be restored the custody of her child, and that she be properly served with all documents relating to this action, and for all other proper relief.

* * * Natural Mother

115A Jessie Turner Terrace

Van Buren, AR 72956

* * *

[Signature]

[The Mother], pro se

(Emphasis in original.)

Included with the filing was a request for the appointment of an attorney and a pro se motion for continuance, which also stated in part:

1. The above-styled matter has been set for hearing on the termination of my parental rights on Wednesday, January 30, 1991, at 8:00 A.M.

2. I have not been properly served with process and therefore do not know what the allegations are against me.

3. I do not have an attorney and have asked the court to appoint one for me. If the Court does appoint an attorney to represent me, my attorney will need sufficient time to prepare a defense on my behalf.

4. I live in the State of Arkansas and I need time [to] arrange transportation to the State of Wyoming.

On the date of the trial court's receipt of the three documents, the letter, response and motion, an attorney for the mother was appointed who, two days later, followed the previous filings with a demand for trial by a jury. In April, the Agency followed these pleadings with a motion for summary judgment which was thereafter granted based on the supporting and resistive affidavits. The record examination reveals that, as a response to the petition, every pro se filing by the mother included efforts to contest the adequacy of service of process. Consequently, that issue is now clearly presented as a viable appellate...