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In the Matter of the v. the State of Wyoming

July 23, 2012

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: KMO, DMO, CMO, AKO, DKO, MTO, ABO, EEO, AND JBO, MINOR CHILDREN HJO, AKA HJK, APPELLANT (RESPONDENT),
v.
THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



Appeal from the District Court of Natrona County The Honorable John C. Brackley, Judge

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

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] HJO (Mother), the biologic mother of nine minor children, appeals the district court's order following a jury verdict terminating her parental rights. Mother contests the sufficiency of the evidence presented by the State of Wyoming, Department of Family Services (DFS) to terminate her parental rights, the appropriateness of the special verdict form submitted to the jury, the constitutionality of the termination statute which sets out the burden of proof, and alleged cumulative errors. We affirm.

ISSUES

[¶2] Mother presents four issues for our consideration:

I. Whether the trial court record contains sufficient clear and convincing evidence for the jury to find that the statutory requirements were satisfied for termination of parental rights of Mother as to present unfitness of Mother at the time of trial pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v).

II. Whether the trial court committed reversible error by not requiring the jury to make a finding on the verdict form as to all of the required statutory elements for termination of parental rights under Claim II pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v) as to each child and each parent separately.

III. Whether Mother's due process and equal protection rights under the Wyoming Constitution and the United States Constitution were violated because of the use of the lower burden of proof standard of "clear and convincing evidence" for termination of parental rights instead of the higher burden of proof standard of "beyond a reasonable doubt."

IV. Whether there was reversible error because of cumulative errors made throughout the termination of parental rights proceedings, thereby violating Mother's procedural and substantive due process.

FACTS

[¶3] Mother has eleven children, two of whom are no longer minors and are not part of this termination action, and nine minor children who are at issue in this termination action: KMO, born December 10, 1995; DMO, born December 12, 1997; CMO, born June 5, 1999; AKO, born September 6, 2001; DKO, born January 11, 2004; MTO, born April 19, 2005; ABO, born August 2, 2006; EEO, born December 21, 2007; and JBO, born December 21, 2007. PRG (Father #1) is the father of the two children who are no longer minors, and also of KMO, DMO, CMO, and AKO.*fn1 MBK (Father #2) is the father of DKO, MTO, ABO, EEO, and JBO.*fn2

[¶4] This family has a long history with DFS and the juvenile court. Because this case turns in part upon on an ongoing pattern of neglect, we provide an overview of that history here. Additional pertinent details will be reviewed in the discussion below. DFS first had contact with the family in early 1999 after receiving a referral from the State of Nevada about a family moving to Wyoming and in need of services. At that time, there were four children and Mother was pregnant with her fifth child. DFS was informed that Nevada's Child and Family Services had substantiated allegations of neglect against Mother four times between 1996 and 1999, including physical and medical neglect and lack of supervision. Nevada also had concerns about educational issues and the cleanliness of the home. After receiving the intake request from Nevada, DFS offered services to the family and implemented a voluntary case plan.

[¶5] The children were first taken into protective custody in Wyoming in May of 2001, after Mother reported to an emergency room doctor that she had suicidal ideations and her plan was to drive off of Casper Mountain with her children in the car. At that time, Mother had five children ranging in age from nine years to as young as twenty-three months and was pregnant with her sixth child. The district attorney filed a neglect petition and the children were placed in foster care homes. A case plan was prepared that required Mother to take financial responsibility for her children, get assistance with the stress of raising her children, seek employment, attend counseling, and take any required medications. Mother admitted the allegations of the neglect petition, and in July of 2001 the children were returned to her custody, although they remained in the legal custody of DFS.

[¶6] In November of 2002, the children were again placed in protective custody. This time the allegations of neglect were that Father #1 had left five children, ranging in age from eight years to fourteen months, home alone without adult supervision with the house in disarray, while Mother was at Walmart with the oldest child and involved in a shoplifting incident. DFS substantiated that both Mother and Father #1 had neglected the children. The district attorney filed a juvenile neglect petition and the court placed the children in DFS custody. The children were placed with a relative and then returned to Mother.

[¶7] The children were removed from the home for the third time in May of 2003, based upon new allegations that Mother's home was unclean and unsafe, and that the children had been left alone while Mother was out of town and Father #1 was at work. DFS substantiated allegations of neglect against both Mother and Father #1 based upon the condition of the home and because both parents repeatedly left the children without appropriate adult supervision. A neglect petition was filed and the children were placed in foster care. The parents entered a consent decree in October, Mother had her seventh child in January of 2004, and by March of 2004, the other six children had returned to Mother's custody. The case remained open after the children returned home in order to assist the family with continuing issues of safety and the cleanliness of the home, as well as the children's hygiene and tardiness at school.

[¶8] While that case was still open, DFS discovered that Mother had developed a friendship with a registered sex offender, Timothy Adams. DFS and the children's therapist notified Mother that Adams posed a significant physical danger to the children. Nevertheless, Mother continued to allow Adams to have contact with the children in the summer and fall of 2004 at his home and at Mother's home, and she allowed Adams to take her then six-year-old daughter on an overnight trip to Cheyenne. Adams later was charged with and pleaded guilty to taking indecent liberties with three of Mother's children (including the oldest daughter, who is not part of this action). DFS substantiated allegations of abuse against Mother for her part in allowing the children to be exposed to a known sex offender.

[¶9] Between 2004 and the spring of 2008, the children remained in Mother's custody, and Mother had four more children. During this time frame, Mother lived in a six-bedroom home provided by Housing Alternatives Incorporated, which provided HUD regulated low-income housing. Throughout Mother's tenancy, various issues arose concerning the cleanliness of the home. In February of 2008, Housing Alternatives notified Mother of the termination of her lease effective April 1, 2008, based upon the unclean, unsanitary, and unsafe condition of the home. Prior to the April 1 deadline, several things occurred to cause the family to once again come under the jurisdiction of the juvenile court.

[¶10] In November of 2007, DFS opened an investigation after receiving a school report that the oldest child was missing far too much school for what the child said was baby-sitting her siblings. In February of 2008, DFS substantiated allegations of neglect against Mother for failing to pick up her four-year-old from the Child Development Center. In early March of 2008, the four-year-old was playing unsupervised in a basement closet in the home with a lighter and started a fire. The family had to vacate the home due to over $48,000.00 in fire damage. When DFS learned of the fire on March 11, 2008, the children were placed into the protective custody of the State of Wyoming for the fourth time, based upon the fire, the conditions of the home as reported by a paramedic who responded to the fire, and growing concerns for the safety of the children while in Mother's care. Thus began the fourth and final juvenile case. DFS substantiated allegations of neglect against Mother, Father #1, and Father #2 for the conditions that led to the protective custody, and based upon evidence of ongoing neglect. The three parents eventually stipulated to the adjudication of the children as neglected, and all eleven children were placed in foster care. Mother, Father #1, and Father #2 determined that they wanted the children to be reunified with Mother and Father #2, and at the dispositional hearing on October 1, 2008, the district court approved the family service plan for reunification.

[ΒΆ11] In October of 2008 the twins, then about ten months old, were placed with Mother for a trial home placement. By May of 2009, the seven-year-old and nine-year-old were also placed with Mother for a trial home placement, and by July of 2009, the then five-year-old had been returned to Mother's custody as well. However, by early fall the conditions in the home began to deteriorate. DFS received reports that the children were late for school, were going to school dirty and hungry, the condition of the home was worse, and the children were not getting prescribed medications consistently. Based upon these reports and the fact that one of the twins had broken her arm while in the home with no explanation of how the break occurred, the five children then in Mother's custody were removed from the home and placed into foster care on October 30, 2009. During the ensuing investigation, DFS learned that there had been domestic violence in the home when the children were present and discovered other injuries to the twin with the broken arm, including bruising in her eye area, fingernail marks on ...


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