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In re Termination of Parental Rights to Hill and KGS

Supreme Court of Wyoming

April 12, 2016

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO HLL and KGS, Minor Children: CLB, Appellant (Respondent),
v.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner)

          Appeal from the District Court of Uinta County. The Honorable Joseph B. Bluemel, Judge.

         Representing Appellant: Ariel C. Calmes, Harris Law Office, P.C., Evanston, Wyoming.

         Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; David S. Robinson, Assistant Attorney General. Argument by Mr. Robinson.

         Guardians ad Litem: Office of the State Public Defender: Dan S. Wilde, Deputy State Public Defender; Aaron S. Hockman, Chief Trial and Appellate Counsel, Wyoming Guardian ad Litem Program, Cheyenne, Wyoming.

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

          OPINION

         DAVIS, Justice.

          [¶1] Appellant Mother challenges a district court decision terminating parental rights to two of her minor children pursuant to Wyo. Stat. Ann. § § 14-2-309(a)(iv) and (v) (LexisNexis 2015). She presents a myriad of arguments, ranging from a challenge to subject matter jurisdiction to a claim that the evidence was insufficient to support the termination. We affirm.

         ISSUES

          [¶2] Mother presents the following issues, which we have refined and reordered somewhat:

1. Did the district court have jurisdiction over the termination proceedings?
2. Does W.R.C.P. 55, governing default, apply in parental termination proceedings?
3. If so, did the district court abuse its discretion by denying Mother's request to set aside an entry of default?
4. Did the district court correctly conclude that the Department presented clear and convincing evidence to support the termination of Mother's parental rights to two of her children?

         FACTS

          [¶3] Mother has had six children, but currently has custody of none of them. Her first child died at fourteen months from blunt force trauma to the head. Mother was convicted of third degree felony child abuse for her role in that tragedy. Mother's rights to her second child were either relinquished or terminated, so far as we can tell from the record. Rights to her third and fourth children were terminated by default. Mother's rights to the remaining two children, HLL and KGS, are the subject of this appeal.

          [¶4] HLL was born in 2001 and KGS arrived a few years later in 2003. By all accounts, these children have had a very tough life. In 2007, Wyoming's Department of Family Services (Department) became aware of the children when Mother moved with them to Wyoming from Utah. The Utah Department of Child and Family Services had an open case with Mother, and as a result it contacted the Department and asked that it follow up with the family and offer Mother and the children services. Mother opted not to accept the services offered by the Department, and that case was closed.

          [¶5] A year later, in 2008, the Department received a report from law enforcement that Mother had physically abused both children. In an attempt to hide the injuries she had inflicted on them, she kept them out of school and barricaded them in the basement of their house for a week. After uncovering the situation, law enforcement exercised protective custody and took the children to the emergency room for immediate medical treatment.

          [¶6] A petition to begin child protection proceedings was filed, and temporary custody was transferred to the Department pursuant to Wyo. Stat. Ann. § 14-3-208. The juvenile court[1] adjudicated that Mother had abused and neglected the children. Criminal charges were also brought, and Mother was again convicted of felony child abuse. Nevertheless, the children were reunified with Mother in the summer of 2009, with the juvenile case remaining open under Department supervision for an additional year.

          [¶7] Over the next four years, Mother continued to have run-ins with law enforcement and the Department. She was arrested for aggravated assault in 2011. HLL and KGS witnessed the assault, after which Mother took the children and hid with them from law enforcement until she was eventually arrested. She then left HLL and KGS with a friend while she was sent to substance abuse treatment. The Department opened a case and offered services to the children and the friend taking care of them. Mother was apparently reunited with the children after this crisis passed.

          [¶8] On January 29, 2013, Mother became intoxicated and committed a felony aggravated assault and battery on a girlfriend. She beat the woman with a baseball bat, causing significant injuries. HLL and KGS were in the home during the beating, which occurred just outside. Afterwards, Mother told the children to help cover blood in the snow and to clean blood off the baseball bat. She then directed HLL to hide the bat and fabricated a story for the children to tell in order to create a false alibi if anyone asked what had happened.

          [¶9] The next day, on January 30, Mother was arrested for the battery, and the children were left with a friend. The day after that, January 31, law enforcement officers conducted a welfare check at the friend's home. The officers found the children without adult supervision and learned that KGS was caring for her sister and the friend's children as well. There was no food in the home; the friend was limited in food stamps and could not provide for HLL and KGS. The officers took HLL and KGS into protective custody that same day.

          [¶10] On February 1, 2013, the county attorney's office filed a petition in juvenile court alleging that Mother had abused and neglected HLL and KGS. The court held a shelter care hearing the same day, after which it placed both children in the legal custody of the Department. HLL and KGS have remained in the Department's custody since that time. Mother subsequently admitted to the allegations that she neglected them.

          [¶11] On May 29, 2013, Mother was convicted of assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) and (b) for the baseball bat attack, for which she received a sentence of three to six years in prison. She was incarcerated at the Wyoming Women's Center in Lusk, Wyoming at the time of briefing and argument in this case.[2]

          [¶12] This case began when the Department filed a Petition for Termination of Parental Rights (petition) against Mother on October 23, 2014. It alleged two grounds for termination pursuant to Wyo. Stat. Ann. § § 14-2-309(a)(iv) and (v). Mother was personally served with the petition at the Women's Center on November 5, 2014. However, she failed to timely answer, plead, or otherwise defend.

          [¶13] On December 8, 2014, the clerk of court entered default against Mother. The district court then set the matter for a default hearing on March 19, 2015. On February 17, 2015, Mother filed a document which the parties have treated as a motion to set aside the default, and she also requested that the court appoint her counsel. The motion was heard on March 19, the date set for the default hearing. Mother attended telephonically without an attorney. The district court heard from Mother regarding her reasons for failing to answer, which it did not find convincing. Accordingly, it determined that Mother failed to present a prima facie case of good cause to set aside the default, and it denied her request for that relief. Nevertheless, it appointed Mother an attorney for the default hearing on termination of her parental rights, and reset that hearing to May 8, 2015 to allow counsel time to prepare.

          [¶14] At the hearing on May 8, the Department presented testimony and evidence intended to establish clearly and convincingly that Mother's parental rights to HLL and KSG should be terminated. The district court permitted Mother's appointed attorney to give an opening statement, cross-examine the Department's witnesses, make objections, and deliver a closing argument. The court found that clear and convincing evidence established that Mother's parental rights to HLL and KGS should be terminated under Wyo. ...


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