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In the Matter of the Termination of the Parental Rights To: Smh, Kdh v. State of Wyoming

December 21, 2012

IN THE MATTER OF THE TERMINATION OF THE PARENTAL RIGHTS TO: SMH, KDH, MJH, AND APH, MINOR CHILDREN. HMH, A/K/A HM AND HB, APPELLANT (RESPONDENT),
v.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



Appeal from the District Court of Johnson County The Honorable John G. Fenn, Judge

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

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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] Appellant, HMH (Mother), appeals from the district court's order terminating her parental rights pursuant to Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(v). She contends there was insufficient evidence to support the district court's decision. We affirm.

ISSUE

[¶2] Mother presents the following issue for our consideration:*fn1

Was the district court's finding that parental rights to the minor children should be terminated established by clear and convincing evidence?

The Department of Family Services (DFS) and the children's guardian ad litem state the issue in a substantially similar manner.

FACTS

[¶3] Appellant is the mother of MJH, born in 1999, SMH, born in 2001, KDH, born in 2003, and APH, born in 2005.*fn2 After living most of her life in Michigan, Mother relocated with her children in 2007 to Buffalo, Wyoming, where her father resides. While living in Michigan with her children, Mother abused prescription drugs and used heroin on a daily basis. According to Mother, she eventually treated her heroin addiction through methadone therapy and moved to Wyoming with the hope of turning her life around. Following the family's move to Wyoming, however, Mother's substance abuse issues continued. Mother began a relationship with EW, whose behavior had been addressed "religiously" by Buffalo law enforcement for several years prior to Mother's arrival. Approximately one month after meeting EW, Mother and her children moved into an apartment with him. Mother's substance abuse during her habitation with EW eventually led to DFS's involvement in this case.

[¶4] DFS initially offered services to Mother in August, 2008, after receiving a report expressing concerns about her drug use. Mother refused this offer of services. Subsequently, in October, 2008, and again in January, 2009, DFS received reports that Mother's children had been locked outside of her home for an extended period, unsupervised, and without proper attire. In response to the January incident, DFS offered parenting services to Mother, which she accepted. At that time, DFS enrolled Mother in parenting classes and provided assistance to Mother in filling out a subsidized housing application, finding employment, and obtaining a driver's license. DFS also initiated counseling services for all four of Mother's children.

[¶5] On April 2, 2009, Mother attended a parenting class at the DFS office in Buffalo with her sister. Mother had difficulty staying awake at the class, her speech was slurred, and her movements were slow. Law enforcement was called, and Mother reported to officers of the Buffalo Police Department that she had taken Xanax and methadone pursuant to her prescriptions. After the officers discovered that Mother had recently filled two methadone prescriptions, Mother reported that one of her prescriptions had been stolen while she was out of state. During a subsequent search of Mother's home, however, the officers found the prescription that Mother claimed had been stolen. Mother was placed under arrest for interference with a peace officer, use of a controlled substance, and deception in purchasing prescription medication. At the time of Mother's arrest, EW was serving a jail term as the result of a third conviction for driving while under the influence.

[¶6] Upon Mother's arrest, the Buffalo Police Department took her children into protective custody and DFS subsequently placed them in non-relative foster care. At that time, it was discovered that all of the children had significant dental and vision needs that had not been addressed. Each of the children required multiple visits to the dentist to have teeth pulled and to have crowns placed on cavities. Mother's youngest child, APH, required oral surgery for his dental needs. All four of the children required glasses. Additionally, after receiving medical exams, SMH and KDH were diagnosed with attention-deficit hyperactivity disorder and were placed on prescription medications.

[¶7] The county attorney filed a neglect petition in juvenile court on April 6, 2009. Mother eventually admitted to the allegations of neglect, stating in a stipulated order that she "failed and was otherwise unable to provide adequate care and supervision of her minor children." The order provided that Mother's children would remain in foster care and would be returned to her after she obtained acceptable housing and completed one month of consecutive drug tests yielding clean results. The order also required that Mother successfully complete an intensive outpatient drug abuse treatment program, that she continue individual counseling, and that she follow all recommendations for additional services provided by her treatment facility. A DFS caseworker developed a family service plan, echoing the requirements of the stipulated order, and a multi-disciplinary team (MDT) was organized to review the requirements of the plan and make recommendations relating to Mother's rehabilitation and the care of her children. The case plan identified a goal of reunification for Mother and her children.

[¶8] While Mother was in jail following her arrest, DFS coordinated a substance abuse evaluation. Pursuant to the recommendation of her substance abuse evaluator, Mother entered an inpatient treatment program in Sheridan upon her release. After only eighteen days in treatment, however, Mother left the inpatient program against staff advice. Her discharge summary from the program recommended successful completion of the inpatient treatment program followed by completion of an intensive outpatient treatment program. Mother enrolled in an outpatient treatment program in June, 2009, but she was subsequently dropped from the program due to her sporadic participation.

[¶9] At the beginning of October, despite Mother's failure to complete a substance abuse treatment program, Mother was reunified with her children after she obtained suitable housing and submitted one month of clean drug tests. However, on October 23, both Mother and EW violated probation by testing positive for methamphetamine. Mother and EW were arrested and placed in detention the following day. The children were again removed from Mother's home and, after living with Mother's father for a short period, DFS placed the children in non-relative foster care. During the three weeks that the children were in Mother's home, the children did not attend their individual counseling appointments and did not receive their prescription medications.

[¶10] After the children returned to foster care, MJH reported to the family doctor that EW had hit his brothers, and SMH reported that EW had played with his penis. In November, SMH, who was eight years old at the time, was admitted to the Wyoming Behavioral Institute (WBI) for an evaluation and medical assessment. SMH returned to WBI in April, after exhibiting suicidal tendencies. At that time, he received several mental health diagnoses, including major depressive disorder, post-traumatic stress disorder, and oppositional defiant disorder. In May, SMH was placed in residential treatment, where, through weekly therapy sessions, he reported that he had been physically and sexually abused by EW. SMH told his psychologist that he did not want to go home as long as EW was in the house, and that he did not want to go home if his mother was drinking or using drugs.

[¶11] MJH, KDH, and APH also manifested symptoms of mental health problems in individual counseling sessions, and all were eventually diagnosed with depression, anxiety, and adjustment disorders by their mental health counselor. Additionally, all of the children expressed fear of EW. When Mother was informed of her children's statements relating physical and sexual abuse by EW, she "adamantly denied" that such abuse had occurred.

[¶12] While Mother was in jail following her probation violation, DFS developed a new case plan which required Mother to live her life free of drugs, complete an inpatient substance abuse treatment program, and obtain housing and employment upon her release from jail. The new case plan included a goal of adoption concurrent to the goal of reunification. Mother's visitation with the children continued under the new case plan, and was conducted via phone and jail visits while Mother was incarcerated. During this time, the children began demonstrating signs of anxiety before, during, and after visitation. As a result of his emotional state, APH became incontinent and broke out in hives before and after visitation. Both APH and KDH manifested their anxiety by chewing on their shirts. SMH was given the choice whether to participate in visitation every week due to the stress it induced. In one particularly disturbing episode, after feeling that he had been ignored by Mother during a phone visitation, MJH had a meltdown at school in which he wrote on the bathroom wall with his own feces.

[¶13] Upon her release from jail, Mother entered an inpatient treatment program in Casper, which she completed in February. Mother's discharge summary from the treatment program recommended that she complete a community-based outpatient treatment program and that she submit to random urinalysis testing. However, Mother's attendance at the outpatient treatment program was inconsistent, and she missed numerous drug tests in February, March, and April. In the outpatient treatment program, missed drug tests were considered positive tests. Additionally, in March, law enforcement officers responded to a 911 call reporting a domestic dispute between Mother and EW. During the officers' investigation of the incident, which resulted in EW's arrest for public intoxication, Mother admitted that she had been drinking.

[¶14] In April, the MDT recommended that the permanency goal be changed from reunification to adoption due to Mother's failure to make sufficient progress in achieving the goals set out in her case plan. Mother's caseworker noted that Mother had not demonstrated a commitment to remaining sober, and that Mother continued to deny and minimize her children's concerns regarding EW. On the same day as the MDT meeting, officers from the Buffalo Police Department responded to an anonymous report of drunk driving. Upon locating the reported vehicle, the officers discovered that Mother was a passenger in the vehicle, and that she was highly intoxicated.

[¶15] Ten days later, on May 3, the juvenile court held a hearing to determine the appropriate permanency goal for Mother and her children. The court determined that the goal of reunification should no longer be part of the permanency plan, finding "clear and convincing evidence that it is not in the best interests of the children to return home." The court further concluded that (1) DFS had made reasonable efforts towards family reunification, which had not been successful, (2) that Mother had failed in her rehabilitative efforts, and (3) that the children's health and safety would be seriously jeopardized by returning to Mother's care. The juvenile court changed the permanency goal to termination of parental rights and adoption of the children.

[¶16] In December, DFS filed a petition to terminate Mother's parental rights alleging two separate statutory grounds for termination. First, under Wyo. Stat. Ann. § 14-2-309(a)(iii), DFS asserted that the children had been neglected, that reasonable efforts to rehabilitate the family had been unsuccessful, and that the children's health and safety would be seriously jeopardized by returning to their mother. Second, under Wyo. Stat. Ann. § 14-2-309(a)(v), DFS asserted that the children had been in foster care under the responsibility of the State of Wyoming for fifteen of the most recent twenty-two months, and that Mother was unfit to have custody and control of her children. A three-day bench trial was set for October, 2011.

[¶17] Prior to trial, while Mother was pregnant with EW's child, law enforcement responded to another domestic disturbance between Mother and EW. Mother reported that EW, who was highly intoxicated, had shoved her and slapped her in the face. As a result of the incident, EW was arrested and was taken into custody. EW was eventually convicted of domestic battery.

[¶18] At trial, the district court received testimony from DFS caseworkers, officers of the Buffalo Police Department, the children's mental health counselors, the children's principal, the children's court-appointed special advocates, Mother's substance abuse and mental health therapists, Mother, Mother's father, and EW. DFS contended that Mother had not made sufficient progress to reunite with her children, and that it should not be required to expend additional time and effort in an attempt to rehabilitate Mother at the cost of further uncertainty as to her children's future. The children's guardian ad litem agreed. Mother, however, claimed that DFS had not made reasonable efforts to rehabilitate her family, and that she had not been given sufficient time to address DFS's concerns with respect to EW. Further, Mother asserted that her ability to care for her new baby without DFS assistance demonstrated that she was fit to care for her four older children. In an order issued January 27, 2012, the court determined that clear and convincing evidence supported termination of Mother's parental rights pursuant to Wyo. Stat. Ann. § 14-2-309 (a)(iii) and (a)(v). Mother appeals the district court's order.

STANDARD OF REVIEW

[¶19] Mother contends that DFS presented insufficient evidence to support termination of her parental rights. We recently set forth our standard of review in this context as follows:

We apply traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting termination. R.L.A. v. State Dep't of Family Services (In re L.A.), 2009 WY 109, ¶ 12, 215 P.3d 266, 268 (Wyo. 2009). We examine the evidence in the light most favorable to the party prevailing below, assume all favorable evidence to be true, and disregard conflicting evidence presented by the unsuccessful party. Id. Because the right to associate with one's family is fundamental, however, we strictly scrutinize petitions to terminate parental rights. M.L. v. Laramie County Dep't of Family Servs. (In the Interest of L.L.), 2007 WY 92,

¶ 9, 159 P.3d 499, 501 (Wyo. 2007). As part of our strict scrutiny standard, we require that a case for termination of parental rights must be established by clear and convincing evidence. Id. Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of the contention is highly probable. Id.

ZMETS v. State, 2012 WY 68, ¶ 8, 276 P.3d 392, 394-95 (Wyo. 2012).

DISCUSSION

[¶20] DFS sought termination of Mother's parental rights under Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(v) ...


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