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In re Conservatorship and Guardianship of CPR

June 9, 2009

IN THE MATTER OF THE CONSERVATORSHIP AND GUARDIANSHIP OF CPR, A MINOR; AND AR, A MINOR:
TR, APPELLANT (RESPONDENT),
v.
LVM AND ARM, APPELLEES (PETITIONERS).



Appeal from the District Court of Carbon County, The Honorable Wade E. Waldrip, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Appellant, T.R. (Mother), appeals a district court's decision and order finding her unfit and appointing Appellees, L.V.M. and A.R.M. (Grandparents), who are the children's paternal grandparents, guardians of her two minor children, A.R. and C.R. We affirm the district court's decision.

Issues

[¶2] 1. Did the district court abuse its discretion when it admitted certain printouts from the internet, a letter from a physician who was not present at the proceedings, and testimony from lay witnesses regarding a medical condition?

2. Did the district court abuse its discretion when it denied a motion to bifurcate the trial and considered the question of Mother's unfitness and the question of appointment of Grandparents as guardians in one proceeding?

3. Was the district court's finding that Mother was unfit inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence?

4. Was the district court's finding that it was in the best interests of the children to appoint Grandparents as their guardians inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence?

Facts

[¶3] Mother and Father met when they were 17 and 18 years old, respectively. Mother became pregnant with A.R. in January of 2003 and the couple married in June of 2003. The marriage was a troubled one, and at one point Mother obtained a restraining order against Father while she was still pregnant with A.R. Mother went into labor early and was flown to Denver for emergency care. A.R. was born prematurely at 34 weeks in August of 2003. A.R. had some medical problems as an infant, for which he was flown to Denver for surgical treatment. When A.R. was approximately one year old, a visit to a specialist confirmed that he had neurofibromatosis, a genetic condition from which Father also suffered. C.R. was born in April of 2005. C.R. has no known medical conditions, although he will have to be monitored for symptoms of neurofibromatosis and should be tested for the disease at some point. In December of 2004, Father died in a car accident in which his only brother was also killed. In June of 2006, Grandparents brought this action requesting that the district court declare Mother unfit and appoint Grandparents guardians of the children. The court held a hearing on December 5, 2007, and continued the hearing on December 12, 2007. On December 26, 2007, the district court issued a decision letter finding Mother unfit and appointing Grandparents as guardians of A.R. and C.R. This appeal followed.

Discussion

1. Did the district court abuse its discretion when it admitted certain printouts from the internet, a letter from a physician who was not present at the proceedings, and testimony from lay witnesses regarding a medical condition?

[¶4] The decision of whether or not to admit evidence lies within the discretion of the trial court. Three Way, Inc. v. Burton Enters., Inc., 2008 WY 18, ¶ 29, 177 P.3d 219, 228 (Wyo. 2008). We will not disturb the trial court's ruling absent abuse of that discretion. McCabe v. R.A. Manning Constr. Co., Inc., 674 P.2d 699, 706 (Wyo. 1983). Mother's counsel timely objected to each piece of evidence at issue.

[¶5] Mother first contends that the trial court abused its discretion when it admitted printouts from the internet as evidence of a proper immunization schedule. We agree that the trial court abused its discretion when it admitted that material into evidence. The document was an unverifiable printout from the internet and the only foundation that could be laid for it was a description of the Google search Grandmother performed in order to find the information. The district court appears to have admitted the document under the theory that it could take judicial notice of the facts contained therein.

[¶6] W.R.E. 201 governs judicial notice of adjudicative facts. Under the rule, "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." W.R.E. 201(b). This printout was admitted to prove the proper schedule of immunizations for A.R. and C.R. This is not a fact that is "generally known." A printout from an unverified source on the internet, which has not been authenticated by a medical expert, cannot be categorized as a source of information "whose accuracy cannot reasonably be questioned." It was an abuse of discretion for the trial court to take judicial notice of the facts contained in this document under Rule 201. However, we find that the error was harmless*fn1 because the properly admitted medical records showed that Mother did not comply with her own doctor's schedule with respect to vaccinations, and because Mother admitted on the stand that the doctor had to restart the series of childhood vaccines for A.R. and C.R. because Mother did not comply with the schedule.

[¶7] The second piece of evidence that Mother claims should not have been admitted is a letter from Father's doctor describing the treatment of his neurofibromatosis. Mother's counsel objected on the basis that the letter was hearsay. The district court expressed concern as to whether any proper foundation had been laid for admission of the letter.

We agree with the district court's first instincts on this matter. This letter was offered as a description of neurofibromatosis and as proof of the sort of precautions and restrictions that should have been in place with regard to A.R. The letter was written by a doctor who had never examined A.R. and contained specific recommendations for a different patient (A.R.'s father). It was written approximately five years before A.R. was born and ten years before the time of trial. The doctor did not testify. Neither party has advanced an exception to the hearsay rule that would allow admission of such a document. Although we find that it was an abuse of discretion for the ...


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