DMM v. State

2012 WY 68, 276 P.3d 392, 2012 WL 1699831, 2012 Wyo. LEXIS 72
CourtWyoming Supreme Court
DecidedMay 16, 2012
DocketNo. S-11-0212
StatusPublished
Cited by1 cases

This text of 2012 WY 68 (DMM v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DMM v. State, 2012 WY 68, 276 P.3d 392, 2012 WL 1699831, 2012 Wyo. LEXIS 72 (Wyo. 2012).

Opinion

BURKE, Justice.

[T1] Appellant, DMM, challenges the district court's order terminating her parental rights pursuant to Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(v). She claims there was insufficient evidence to support the district court's decision. We affirm.

ISSUES

[T2] Appellant raises the following issue:

1. Whether the Trial Court record contains clear and convincing evidence supporting termination under applicable Wyoming Statutes.

The Department of Family Services (DFS) presents the issues as follows:

1. Can Mother, who failed to timely answer the petition to terminate parental rights, appeal the entry of a default judgment on the basis of sufficiency of the evidence?
2. Was there sufficient evidence presented in the default hearing and in the complaint to constitute clear and convincing evidence to support the termination of Mother's parental rights?

The children's guardian ad litem phrases the issue in a substantially similar manner.

FACTS

[T3] Appellant is the mother of ZMETS, born in 2002, ZCJS, born in 2003, and ZPMS and ZKMS, both of whom were born in 2005. On October 7, 2009, Appellant's children were taken into protective custody after the police received notice that the children were playing, unsupervised, in the parking lot of a motel where Appellant lived and worked. A petition alleging that Appellant had neglected her children was filed on October 9, 2009, and the children were adjudicated neglected after Appellant failed to appear at a hearing on the petition. DFS initially placed the minor children with separate foster care families, but relocated all of the children in April, 2010 to relative foster care with their paternal grandparents, where they have remained since that time.

[394]*394[T4] Shortly after Appellant's children were placed in protective custody, a DFS caseworker developed a family service plan and began efforts to reunify Appellant with her children. The caseworker scheduled supervised visitations with Appellant, and coordinated visitations with Appellant at a transitional housing facility. The DFS caseworker also helped Appellant obtain treatment for substance abuse and arranged for the children to receive mental health counseling at the Central Wyoming Counseling Center. Despite the caseworker's efforts, however, Appellant did not meet the requirements of the family service plan. Appellant did not attend visitations consistently, and DFS was forced to cancel some visitations due to Appellant's intoxication. Although the caseworker was initially unable to secure Appellant's attendance at outpatient substance abuse treatment programs, Appellant did eventually complete an inpatient treatment program. However, Appellant did not maintain sobriety. She also did not meet the mental health or family counseling goals identified in the family service plan, and she failed to make further progress under the plan due to a "communication breakdown" with her caseworker.

[T5] In March of 2010, a multi-disciplin-ary team recommended that reunification efforts be discontinued. The children were relocated to the home of their paternal grandparents in Colorado, and a second family service plan was developed, which halted efforts to reunify Appellant with her children. After the children were relocated to Colorado, the caseworker continued efforts to facilitate communication between Appellant and her children, but Appellant did not meet the goals of the second family service plan, and the caseworker was unable to maintain consistent contact with Appellant.

[T6] On January 26, 2011, DFS filed a petition to terminate Appellant's parental rights pursuant to Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(v). The petition alleged that Appellant had abused or neglected her children, that reasonable efforts had been made to reunify Appellant with her children, and that the children's health and safety would be seriously jeopardized by returning the children to Appellant's care. The petition also alleged that the children had been in foster care under the responsibility of the State of Wyoming for fifteen of the most recent twenty-two months, and that Appellant was unfit to have custody and control of her children. Appellant did not file a timely answer to the petition. As a result, default was entered against Appellant. The district court set a default hearing for April 27, 2011. Approximately one month after default was entered, counsel for Appellant made an entry of appearance, and, on the day of the district court's hearing, Appellant filed an answer to the petition for termination of parental rights and a motion to set aside the entry of default.

[T7] At the default hearing, DFS presented testimony from the caseworker who managed Appellant's family service plan. Due to the default, Appellant was not permitted to present evidence, but she was allowed to cross-examine the Department's witness, object to the entry of evidence, and present opening statements and closing arguments.1 The district court denied Appellant's motion to set aside the default, and, noting that Appellant was aware of the importance of filing an answer, concluded there was no good cause for relief. At the conclusion of the hearing, the court found that clear and convincing evidence existed to support termination of Appellant's parental rights under Wyo. Stat,. Ann. §§ 14-2-309(a)(iii) and (a)(v), and that termination was in the children's best interests. The court subsequent ly issued an order terminating Appellant's parental rights. Appellant timely filed this appeal.

STANDARD OF REVIEW

[T8] Appellant challenges the sufficiency of the evidence supporting termination of her parental rights. We apply traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting termination. R.L.A. v. State Dep't of Family Services (In re L.A.), 2009 WY 109, ¶ 12, 215 P.3d 266, 268 (Wyo.2009). We examine the evidence in the [395]*395light most favorable to the party prevailing below, assume all favorable evidence to be true, and disregard conflicting evidence presented by the unsuccessful party. Id. Because the right to associate with one's family is fundamental, however, we strictly seruti-nize petitions to terminate parental rights. M.L. v. Laramie County Dep't of Family Servs. (In the Interest of L.L.), 2007 WY 92, ¶ 9, 159 P.3d 499, 501 (Wyo.2007). As part of our strict scrutiny standard, we require that a case for termination of parental rights must be established by clear and convincing evidence. Id. Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of the contention is highly probable. Id.

DISCUSSION

[T9] DFS petitioned to terminate Appellant's parental rights pursuant to Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(v) (Lexis-Nexis 2009). Those statutory subsections provide as follows:

§ 14-2-309. Grounds for termination of parent-child relationship; clear and convincing evidence.
(a) The parent-child legal relationship may be terminated if any one (1) or more of the following facts is established by clear and convincing evidence:
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Related

In Re Zmets
2012 WY 68 (Wyoming Supreme Court, 2012)

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Bluebook (online)
2012 WY 68, 276 P.3d 392, 2012 WL 1699831, 2012 Wyo. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dmm-v-state-wyo-2012.