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In re Termination of Parental Rights ARW

Supreme Court of Wyoming

February 19, 2015

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO ARW, a minor child: DRW, Appellant (Respondent),
v.
DLP and MLP, Appellees (Petitioners)

Appeal from the District Court of Natrona County. The Honorable Daniel L. Forgey, Judge.

Representing Appellant: Scott C. Murray, Attorney at Law, Casper, Wyoming.

Representing Appellees: John D. Chambers, John D. Chambers, P.C., Casper, Wyoming.

Guardian Ad Litem: Jacqueline K. Brown, Attorney at Law, Casper, Wyoming.

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

OPINION

Page 408

BURKE, Chief Justice.

[¶1] Appellant, DRW (Father), appeals from the district court's order terminating his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iv). He contends the district court erred in finding that the Indian Child Welfare Act did not apply to the termination proceedings, and that the court erred in denying his request to set aside the entry of default. He also claims there was insufficient evidence to support the district court's decision. We affirm.

ISSUES

[¶2] Appellant presents the following issues:

1. Whether the district court erroneously concluded the provisions of the Indian Child Welfare Act did not apply to the termination proceedings.
2. Whether the district court erred in denying Appellant's Motion to Set Aside Default & For Leave to File His Answer Out of Time.
3. Whether the district court properly concluded Appellees presented clear and convincing evidence that DRW was unfit to have care and custody of ARW.

Appellees phrase the issues in a similar manner.

FACTS

[¶3] Appellant is the father of ARW, born in 2002. Appellees, DLP and MLP (Adoptive Couple), have been involved in ARW's life since she was three weeks old, when ARW's biological mother began living in Appellees' home. After Appellant and ARW's mother divorced in 2004, Appellees exercised mother's visitation with ARW under mother's shared custody arrangement with Appellant. Both Appellant and ARW's mother executed powers of attorney providing that Appellees could have physical custody of ARW. In August 2012, ARW's mother, who has had very little involvement in

Page 409

ARW's life, consented to termination of her parental rights and to adoption by Appellees.

[¶4] During ARW's lifetime, Appellant was incarcerated several times for drug-related offenses. Due to his incarceration, he did not have contact with ARW until she was approximately nine months old. On multiple occasions, Appellant or his adult children requested that Appellees retrieve ARW from Appellant's home because Appellant was too intoxicated to care for ARW. Appellant consumed alcohol to the point of inebriation almost every day. On two occasions, the Department of Family Services contacted Appellees to take care of ARW due to the condition of Appellant's home. ARW knew what a marijuana pipe was and had learned how to mix Appellant's drinks by the time she was five years old.

[¶5] On March 8, 2012, the mother of one of ARW's friends reported to the police that her daughter had been sexually assaulted by Appellant. After receiving the report, the police went to Appellant's house and found him to be extremely intoxicated. During their interview with Appellant, ARW sat on Appellant's lap and Appellant placed his hand on ARW's breast. The police removed ARW from the home and requested that Appellees take physical custody of ARW. The following day, officers executed a search warrant and found marijuana paraphernalia and items of pornography mixed in with children's books next to Appellant's bed. Appellant was arrested. He was subsequently charged with two counts of sexual abuse of ARW's friend.

[¶6] On July 26, 2012, Appellees were appointed permanent guardians for ARW without Appellant's consent. Appellees enrolled ARW in counseling, and the counselor recommended that Appellant have no contact with ARW. On February 8, 2013, Appellant pled guilty to two counts of sexual abuse of a minor stemming from his contact with ARW's friend.[1] He was sentenced to serve concurrent terms of four to seven years on each count.

[¶7] Appellees initiated this action to terminate Appellant's parental rights on April 8, 2013. The petition alleged that Appellant's parental rights should be terminated pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iv), which provides that parental rights may be terminated if it is shown by clear and convincing evidence that " The parent is incarcerated due to the conviction of a felony and. .. the parent is unfit to have the custody and control of the child." After Appellant failed to file a timely answer to the petition, the clerk of court entered default against him on May 8, and set a hearing for June 18. A week prior to the hearing, the court received a letter from Appellant requesting a continuance. At the hearing, the district court ordered that the matter be continued pending the appointment of a GAL and the completion of a home study. Appellant was subsequently granted court-appointed representation on July 26, and on August 29, he filed his answer and motion to set aside the entry of default.

[¶8] After a hearing, the district court denied the motion to set aside the default and refused to accept Appellant's answer to Appellees' petition to terminate parental rights. ...


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