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In re Termination of Parental Rights to: ATE

December 30, 2009

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: ATE, KOE, ETE, ME, FDE, MINOR CHILDREN,
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLANT (PETITIONER),
v.
TWE, III, APPELLEE (RESPONDENT).



Appeal from the District Court of Campbell County, The Honorable John R. Perry, Judge.

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

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

[¶1] The district court denied a petition by the Wyoming Department of Family Services to terminate Father's parental rights. DFS appeals that decision. We will affirm.

ISSUES

[¶2] The Department states two issues for our review:

1. Whether the State of Wyoming, Department of Family Services, presented clear and convincing evidence to show reasonable efforts were made to rehabilitate the family, and such efforts were unsuccessful or refused by the Father, and the children's health and safety would be jeopardized by return to the Father, including the mental health of the minor children.

2. Whether the State of Wyoming, Department of Family Services, presented clear and convincing evidence to show that the Father was unfit to have the care and custody of the minor children.

[¶3] As an additional issue, Father asks us to consider whether the case has become moot.

FACTS

[¶4] In early 2005, DFS received reports of a family living in an extremely dirty home, and of a child from that home with significant and ongoing dental problems. In response to the reports, the social worker visited the home, accompanied by a detective from the local police department. Father and Mother lived in the home with their five children, ranging in age from approximately nine and a half years to six months. The home was "in somewhat disarray," with food and dirt on the kitchen floor, debris and toys scattered throughout the house, and dirty bathroom fixtures. Safety concerns included broken and missing light switch covers, and a toilet and bathtub that needed repair. The social worker described the children as dirty and "unkept," but said that they appeared happy and relatively healthy, except for the one child with dental problems.

[¶5] On several occasions over the next two months, the DFS social worker counseled Mother on various community services available to her. The social worker met with Father only occasionally because of his work. The social worker observed no positive changes in the family's situation. She also became increasingly concerned about the children's behavioral problems at school, about them not having proper clothing for cold weather, and about the family not having enough food in the home.

[¶6] In May of 2005, DFS filed charges of child neglect against Father and Mother. After an initial hearing before the juvenile court, the children were taken into custody by DFS and placed in foster care. In July of 2005, Father and Mother admitted to the allegations of neglect and, pursuant to court order, the children remained in the custody of DFS.

[¶7] In April of 2007, nearly two years after taking custody of the children, DFS filed a petition to terminate Father's parental rights. Because pertinent details will be reviewed in the discussion below, we provide here only an overview of that two year period. During the summer of 2005, a DFS case worker began working with Father and Mother with the goal of reuniting the family. Father and Mother decided to separate, however, and moved out of the home into smaller, separate places. Neither had enough room to take back all five children or the financial resources to support them all, so the DFS case worker considered a plan for three of the children to be returned to Mother and two to Father. That plan was short-lived because, at some time not specified in the record, Mother left the State of Wyoming. She had only minimal contact with the children and DFS after that, and her parental rights were eventually terminated. Mother did not appeal, and her parental rights are not at issue.

[¶8] Father's case was handled by a series of case workers, five in total, some lasting only a few months. Testimony at trial suggests that Father got along much better with some of the case workers than he did with others, and that his hopes for reuniting his family waxed and waned accordingly. A major source of friction between Father and the case workers was his continuing use of marijuana. At the request of DFS, Father submitted to a significant number of urinalysis tests, and all or nearly all of them were positive for marijuana. Father was cited twice for criminal contempt by the juvenile court. Both instances related to his use of marijuana. DFS refused to allow Father visitation with his children if his urinalysis results were positive, and as a result, Father had no contact with the children for substantial periods of time. In addition, Father's efforts to comply with other requirements established by DFS were sporadic at best. He attended only the first of fifteen required parenting classes. He did not obtain a mental health evaluation. He obtained a substance abuse evaluation, but did not participate in any of the required rehabilitation treatments.

[ΒΆ9] In January of 2009, the district court held a three-day bench trial on the petition to terminate Father's parental rights. At that time, the children remained in foster care, and DFS had developed plans to place them in an adoptive home. Father opposed the petition. In March of 2009, the district court entered its order ...


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