RW v. State Ex Rel. Laramie County Department of Public Assistance & Social Services

766 P.2d 555, 1989 Wyo. LEXIS 4, 1989 WL 198

• Court: Wyoming Supreme Court
• Decided: January 3, 1989
• Docket: C-88-11
• Status: Published

Opinions

CARDINE, Chief Justice.

Appellants, RW and LW seek review of the district court’s order terminating their parental rights to their natural daughter KW.

We affirm.

Appellants were convicted in federal district court of second degree murder and aiding and abetting second degree murder. On appeal, their convictions were affirmed by the circuit court of appeals. The termination of their parental rights to KW was premised on their incarceration for these convictions in accordance with W.S. 14-2-309(a)(iv).¹

The family of RW and LW, in addition to KW, included three other children from a previous marriage of LW. One of these three children was a female child who we identify as JM. In July of 1986, JM became ill, complaining of a stomachache, vomiting and diarrhea. LW took JM to doctors on two occasions in late July and early August. She was diagnosed as having acute gastroenteritis. One of these doctors telephoned LW during the second week of August to inquire about JM’s health, and LW reported her to be “fine.” At this time, a friend of LW's was repeatedly urging her to seek additional medical attention because of the child’s continuing illness. Although LW and her family had free access to emergency medical care at a federal facility seven days a week, twenty-four hours a day, LW told the friend that she was waiting to receive money from the child’s natural father before taking her for medical treatment.

A friend of the appellants testified that both LW and RW hit JM in the face and pulled her hair after dinner in the appellants’ home during the weekend of August 30, 1986. This punishment was administered because JM was so ill that she was unable to eat or ask to be excused from the table. This friend related that RW then put JM in the backyard with the dog and later immersed her in a bathtub of cold water. On September 1, 1986, RW reported to a friend that JM was dead. This friend notified emergency medical personnel; and when they arrived, they found LW clutching JM whose abdomen was unusually distended.

An autopsy revealed that the cause of death was sepsis, a blood poisoning condition caused by peritonitis from a perforated bowel. Testimony at trial established that JM had been struck in the stomach by RW with sufficient force to have caused the perforation. A forensic pathologist testified that the perforated bowel caused JM’s death; that JM had suffered a severe neck injury within two days prior to her death; and that fifty-nine bruises and abrasions were found on JM’s body.

KW was born on June 5, 1986, and was just over two months of age at the time JM was killed. KW was placed in foster care by order entered October 4, 1986, and neither parent has had any contact with the child since. LW voluntarily relinquished her parental rights to the other two children, who were returned to their natural father.

On January 29, 1987, verdicts of guilty were returned against RW and LW for the crimes noted above. RW was sentenced to confinement for eighty years, with a minimum of twenty-five years to be served. LW was sentenced to confinement for eighty years with a minimum of twenty years to be served. This action to terminate the appellants’ parental rights to KW was initiated on May 29,1987. The convictions of RW and LW were affirmed by the federal circuit court of appeals on February 17, 1988. At the time this action was initiated, both parents were incarcerated on their convictions. The matter came before the court for trial April 14,1988. On April 21, 1988, an order was entered by the district court terminating the appellants’ parental rights to KW.

Appellants present the following issues:

1. That the State had a burden to prove termination was the least intrusive means to accomplish the State’s interest in protecting KW and that the district court erred in finding that, (a) the State had no burden of proof in that regard; and (b) that even though the State had no such burden, the evidence presented established that termination was the least intrusive means to accomplish protection of KW.

2. The district court erred in terminating parental rights based on convictions which were not final because appellants are in the process of seeking review of their convictions by means of a petition for writ of certiorari to the United States Supreme Court.

As to the first issue, we note that appellants’ argument relies on language found in opinions of this court which decided cases involving application of W.S. 14-2-309(a)(iii). That particular subsection requires proof of three elements before parental rights can be terminated: (1) that the child has been abused or neglected by the parents; (2) that efforts to rehabilitate the family have been unsuccessful or refused by the family; and (3) that the child’s health would be seriously jeopardized by remaining with or returning to the parents. In discussing the second of these two elements, the language “less intrusive means” has been used by this court in discussing application of this particular element of W.S. 14-2-309(a)(iii). Matter of Parental Rights of PP, 648 P.2d 512, 515 (Wyo.1982); DS v. Department of Public Assistance and Social Services, 607 P.2d 911, 922 (n. 6) (Wyo.1980). It is readily evident that this second element of W.S. 14-2-309(a)(iii) has no application to a termination of parental rights accomplished under W.S. 14-2-309(a)(iv). Subsection (a)(iv) of W.S. 14-2-309 requires the presence of two elements: (1) that the parent is incarcerated due to conviction of a felony; and (2) that the parent is unfit to have custody and control of the child. That statute is clear on its face. We need not employ rules of statutory construction, for it is clear that the State has no burden to demonstrate the unavailability of means less intrusive than termination.

As their second issue, appellants contend the evidence does not establish that they are incarcerated due to the conviction of a felony because the convictions are subject to review by the United States Supreme Court and, hence, do not fulfill the “conviction” requirement of the statute. We note at the outset that the word “conviction” may have different meanings within different contexts. State v. Ege, 274 N.W.2d 350, 355 (Iowa 1979); 9A Words and Phrases, “Convicted; Conviction” (and associated words) (1960); Annotation, “What constitutes former ‘conviction’ within statute enhancing penalty for second or subsequent offense,” 5 A.L.R.2d 1080 (1949) (and Later Case Service). Appellants rely in part on a line of California cases, deriving from In re Sonia G., 158 Cal.App.3d 18, 204 Cal.Rptr. 498, 501-02 (1984), for the proposition that a conviction is not final for purposes of terminating parental rights where an appeal is pending. The cases cited by appellants are clearly pertinent. We need not, however, resolve any and all issues which might arise concerning the meaning of the word “conviction,” as employed in W.S. 14-2-309(a)(iv), in order to dispose of this case. In this case, the appellants were convicted by the jury that returned a verdict of guilty, judgment was entered on that verdict, and the judgment was affirmed in an appeal of right to the federal circuit court of appeals. We hold that these circumstances are sufficient to establish the conviction contemplated by W.S. 14-2-309(a)(iv), and that the pendency of an application for a discretionary writ of certiorari to the United States Supreme Court does not affect the status of those convictions for purposes of the statute.

AFFIRMED.

THOMAS, J., filed a specially concurring opinion in which GOLDEN, J., joined. URBIGKIT, J., filed a specially concurring opinion.

1 . "(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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"(iv) The parent is incarcerated due to the conviction of a felony and a showing that the parent is unfit to have the custody and control of the child.”