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In re E.R.C.K.

Supreme Court of Wyoming

December 24, 2013

In the Matter of the Termination of the Parental Rights to E.R.C.K., Minor Child,
v.
State of Wyoming, Department of Family Services, Appellee (Petitioner). V.L.K, Appellant (Natural Mother),

Page 1171

Representing Appellant: Peggy A. Trent, Trent Law Office, LLC, Laramie, Wyoming.

Representing Appellee: Peter K. Michael, Interim Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Shawnna M. Herron, Assistant Attorney General. Argument by Ms. Herron.

Guardian ad Litem: Dan S. Wilde, Deputy Public Defender and Program Administrator; Aaron S. Hockman, Guardian ad Litem and Permanency Attorney, Wyoming Guardians ad Litem Program. Argument by Mr. Hockman.

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

DAVIS, Justice.

[¶ 1] The Department of Family Services sought to terminate V.L.K.'s parental rights to her son, E.R.C.K., after its efforts to reunify the family in neglect proceedings were unsuccessful. V.L.K. failed to answer the Department's petition, and default was entered. She was subsequently appointed counsel. The district court declined to set aside the default when asked to do so. During the course of the default termination hearing, V.L.K. decided to relinquish her parental rights and consent to adoption of E.R.C.K. The district court recessed the hearing, and V.L.K. provided a signed and acknowledged relinquishment and consent. The district court entered an order accepting the relinquishment and consent, and there were no further termination proceedings.

[¶ 2] V.L.K. claims that the district court erred in not setting aside the default and in accepting the relinquishment and consent.

Page 1172

We find her decision to provide the relinquishment and consent rendered any claimed error in declining to lift the default moot, and that the order accepting the relinquishment and consent is not appealable. Accordingly, we dismiss the appeal, but remand with instructions for the district court to vacate the portion of the order accepting the relinquishment and consent purporting to divest V.L.K. of her parental rights because this portion of the order is a nullity. See, e.g., Weiss v. Weiss, 2009 WY 124, ¶¶ 1, 14, 217 P.3d 408, 409, 412 (Wyo.2009).

ISSUES

[¶ 3] 1. Did V.L.K.'s provision of an admittedly voluntary relinquishment and consent to adoption render any error in not lifting an entry of default moot?

2. Is the order accepting the relinquishment and consent appealable under Wyoming Rule of Appellate Procedure 1.05?

FACTS

[¶ 4] V.L.K. is the mother of E.R.C.K. In a petition for termination of parental rights, the Department alleged that on March 5, 2011, when the child was eleven months old, he was taken into protective custody. Law enforcement authorities following up on an anonymous tip found him to be living in conditions they believed amounted to neglect under Wyoming's Child Protective Services Act, Wyo. Stat. Ann. § 14-3-201 through 216. The Albany County District Court sitting in juvenile session placed E.R.C.K. in the custody of the Department after a shelter care hearing was held on March 8, 2011.

[¶ 5] On October 19, 2012, the Albany County Department of Family Services filed the petition for termination of V.L.K.'s parental rights. The Department alleged that V.L.K. had neglected E.R.C.K. by keeping him in what can best be summarized as a filthy environment without hot water, electricity, or heat. It claimed that V.L.K. failed to cooperate with its efforts to rehabilitate and reunify the family because she did not find adequate housing or maintain employment, did not maintain consistent visitation, was unable to bond with E.R.C.K., failed to comply with visits by the Albany County Public Health Department, and otherwise refused services necessary for family reunification. The Department alleged that E.R.C.K. had been in foster care in its custody for fifteen of the past twenty-two months,[1] that V.L.K. was unfit to have custody and control of him, and that V.L.K.'s parental rights should therefore be terminated under Wyoming Statute § 14-2-309(a)(v).[2] It made the same claims for termination of the parental rights of E.R.C.K.'s father, who voluntarily relinquished his parental rights and consented to adoption and therefore did not participate in the proceedings described below.

[¶ 6] The Department claims that V.L.K. was served with the petition on October 29, 2012, and V.L.K. does not dispute this assertion, although the return is not included in the record on appeal.[3] The Department moved for entry of default under Wyoming Rule of Civil Procedure 55(a), and default was entered by the clerk on November 21, 2012.[4] A default hearing was set for February 5, 2013, at the Department's request.

Page 1173

[¶ 7] On December 14, 2012, V.L.K. filed an affidavit of indigency and request for court-appointed counsel. Counsel was appointed by an order filed on the same date.

[¶ 8] V.L.K.'s attorney filed a motion to set aside the entry of default on the date of the default hearing. She indicated that her client did not recall being served, but asserted that she had contacted the court to obtain counsel, and was told that she needed to pick the affidavit up in Laramie. She was living in Cheyenne at the time, and claimed to have no means of transportation to obtain the required form. She ...


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