MSH v. ALH

2012 WY 29, 271 P.3d 983, 2012 Wyo. LEXIS 30, 2012 WL 639137
CourtWyoming Supreme Court
DecidedFebruary 29, 2012
DocketNo. S-11-0179
StatusPublished
Cited by2 cases

This text of 2012 WY 29 (MSH v. ALH) 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
MSH v. ALH, 2012 WY 29, 271 P.3d 983, 2012 Wyo. LEXIS 30, 2012 WL 639137 (Wyo. 2012).

Opinion

VOIGT, Justice.

[¶1] The district court terminated the appellant's (father's) parental rights to his three children, pursuant to Wyo. Stat. Ann. § 14-2-309(a)iv) (LexisNexis 2011), after finding, by clear and convincing evidence, that he was incarcerated for a felony conviction and was unfit to have the custody and control of the children. In this appeal, the father claims the district court erred when it allowed a police report to be introduced into evidence, and when the officer who wrote the report testified consistently with the report and allegedly vouched for the eredibility of a victim. He also argues that the appellee (mother) failed to produce clear and convine-ing evidence that father was unfit to care for his children. Finding no error, we affirm.

ISSUES

[¶ 2] 1. Whether Officer Dunn's testimony and the admission of his report into evidence was plain error.

2. Whether Officer Dunn's testimony regarding the credibility of the victim's statement was plain error.

3. Whether mother presented clear and convincing evidence that father was unfit to have the custody and control of his children.

FACTS

[¶ 3] Father and mother were married in Texas in 2001. The couple had three children: BH was born in 2001, SH was born in 2003, and EH was born in 2004. Shortly after EH was born, father began serving a ten-year term of imprisonment after pleading guilty to aggravated sexual assault of a minor. The incident to which he pleaded guilty occurred in 1999, before his marriage to mother, and involved him engaging in the sexual abuse of his then girlfriend's six-year-old learning disabled daughter.

[¶ 4] In December of 2009, mother filed a petition to terminate father's parental rights to BH, SH, and EH. The district court held a hearing and, thereafter, entered an order terminating father's parental rights. The district court concluded that mother had presented clear and convincing evidence that father was incarcerated for a felony conviction and that he was unfit to have custody and control of the children. In addition to considering the cireumstances surrounding father's felony conviction, the court found that father had provided no financial or physical support for the children, and his incarceration made him unable to be a parent since 2004. The court further found that, by the time father is guaranteed release from prison, he will have missed the majority of the children's childhood years. Father now appeals that order.

DISCUSSION

Whether Officer Dunn's testimony and the admission of his report into evidence was plain error

[15] At the termination hearing, Officer Dunn, who investigated the charges to [985]*985which father pleaded guilty, testified about the investigation. Early on in his testimony, the police report he made regarding the incident was introduced and admitted into evidence without objection. Father now claims that admission of the report into evidence was error, as the report was hearsay and the information within the report was also based upon hearsay. He also asserts that Officer Dunn's testimony, consistent with the report, was based upon hearsay.

[16] This issue is being raised for the first time on appeal and, therefore, we will review for plain error. Walker v. State, 2012 WY 1, ¶ 6, 267 P.3d 1107, 1110 (Wyo.2012); see also WR v. Natrona Cnty. Dep't of Family Servs. (In re Interest of DG), 916 P.2d 991, 998 (Wyo.1996) (discussing the use of plain error when a party raised the constitutionality of the termination of parental rights statute for the first time on appeal). In order to show plain error, the party alleging error must demonstrate: "1) the record is clear about the incident alleged as error, 2) there was a transgression of a clear and unequivocal rule of law, and 3) the party claiming error was denied a substantial right which materially prejudiced him." Walker, 2012 WY 1, ¶ 6, 267 P.3d at 1110 (citations omitted).

[¶ 7] Here, while the record is clear that the report was admitted into evidence, we need not determine whether a clear and unequivocal rule of law was violated because father has failed to prove that, if there was error, it was prejudicial. In order for a parent's rights to be terminated, pursuant to Wyo. Stat. Ann. § 14-2-809(a)@iv), there must be a showing, by clear and convincing evidence, that the parent is incarcerated due to a felony conviction. While Officer Dunn's report and testimony certainly informed the district court of the factual background regarding the allegations against father in the criminal case, his report and testimony were not necessary to establish that father was incarcerated due to a felony conviction. Father's own testimony established that to be the case, including that the crime was aggravated sexual assault of a minor.

[¶ 8] We also find that father has failed to show he was prejudiced to the extent the district court may have considered the facts underlying the crime as a basis for finding father unfit. While Officer Dunn's testimony and the report informed the district court that the father's then live-in girlfriend's daughter was the victim, the victim was disabled, the victim called father "Daddy," and the assault took place at night when the victim's mother was at work, the bulk of this information was also disclosed in father's testimony. Father testified that he was in an intimate relationship with the victim's mother, that he lived with the victim and her mother, that he was a father figure to the victim, and that the victim called him "Daddy" at times. Although father did not testify that the victim was disabled or that the assault took place at night while the victim's mother was at work, we do not find that the omission of those facts would have resulted in a different outcome. Therefore, father has failed to demonstrate that he was prejudiced by Officer Dunn's testimony and the admission of his report and, thereby, has failed to carry his burden under the plain error standard of review.

Whether Officer Dunn's testimony regarding the credibility of the victim's statement was plain error

[19] Father claims that Officer Dunn vouched for the victim's credibility, thereby causing him prejudice. Again, this claim is being raised for the first time on appeal and, therefore, will be reviewed for plain error. Walker, 2012 WY 1, ¶ 6, 267 P.3d at 1110. While the record clearly shows the incident father alleges was error, just as above, he has failed to demonstrate that he was prejudiced by the allegedly erroneous testimony.

[T10] Father claims that Officer Dunn's testimony was introduced to prove that father was actually guilty of the crime for which he pleaded guilty. However, at this point in time, the question of whether father actually committed the crime for which he pleaded guilty is not relevant. What is relevant is that he was convicted of sexually abusing a child and that he is serving a term of incarceration for that conviction. See Wyo. Stat. Ann. § 14-2-809(a)(iv).

[986]*986[¶ 11] Further, despite the fact that father maintains he did not commit the crime, the district court properly relied upon that guilty plea and conviction as a factor when determining whether father was unfit to have custody of his children. While father certainly could have attempted to mitigate his conviction by introducing evidence that he entered the plea without accepting responsibility, he did not do so.

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Bluebook (online)
2012 WY 29, 271 P.3d 983, 2012 Wyo. LEXIS 30, 2012 WL 639137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/msh-v-alh-wyo-2012.