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Johnson v. Calkins

Supreme Court of Wyoming

May 10, 2017

JASON MICHAEL JOHNSON, Appellant (Respondent),
BRETTENY MARIE CALKINS, Appellee (Petitioner).

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

          Representing Father: Timothy C. Cotton of Cotton Legal

          Representing Appellee: Richard H. Peek

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

          KAUTZ, Justice.

         [¶1] Jason Michael Johnson (Father) appeals the district court's order terminating his parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(i) and (iv) (LexisNexis 2015). He claims the evidence presented at trial was insufficient to establish grounds for termination under that statute by clear and convincing evidence. He also claims that the district court should have required Bretteny Marie Calkins (Mother) to pursue remedies other than termination of parental rights. We affirm.


         [¶2] Father presents the following issues:

1. Whether the district court erred in terminating the parental rights of the non-custodial parent, [Father], under Wyoming Statute § 14-2-309(a)(i) because there was insufficient evidence of no contact and support; and the evidence established the custodial parent interfered with the non-custodial parent's attempts to communicate with the minor child.
2. Whether sufficient evidence was presented to support the Natrona County District Court's decision to terminate [Father's] parental rights under § 14-2-309(a)(iv) when the evidence established the non-custodial parent made successful and substantive efforts to become and be a fit and responsible parent.
3. Whether the district court erred by failing to consider whether less intrusive or restrictive methods of protecting the child were employed and exhausted before terminating [Father's] parental rights.


         [¶3] Father and Mother had a child in February 2006. On March 11, 2015, Mother filed an action seeking to terminate Father's parental rights under § 14-2-309(a)(i) and (iv). The district court appointed an attorney to represent Father, and held a bench trial on January 28, 2016 and March 29, 2016. Father participated in the trial by telephone because he was incarcerated.

          [¶4] The parties lived together in Mother's home from 2005 to 2006. Father left the home in the fall of 2006, about six months after the parties' son, KSJ, was born. Father saw his son approximately once a month over an unknown period after the parties separated in 2006. This contact was not a typical visitation, and was not directed toward a relationship with KSJ. Instead, Father asked Mother "can I come over" and did not spend time with KSJ. Father would "eat or use the computer, shower, sometimes sleep . . . and then when he left, he would say bye and hug him."

         [¶5] After the parties separated, Mother obtained a child support order which required Father to pay $286.00 per month in child support. Father made no child support payments until 2010, as indicated below.

         [¶6] Also after the parties separated, Father developed a relationship with Rose Rocco. In 2009, while Ms. Rocco was pregnant, Father struck her, breaking her jaw in two places. He pled guilty to aggravated assault, and on January 5, 2010, was sentenced to a term of 18 to 48 months in the Wyoming State Penitentiary.

         [¶7] After Father went to the Penitentiary, the district court modified his child support order, reducing the child support obligation to $50.00 per month. While in prison, Father made eleven child support payments ranging from $23.76 to $41.57.

         [¶8] Father was incarcerated on the aggravated assault charge from June 2009 to May 2011, first in the county jail and then in prison. During that time he did not see or request any visits with KSJ. He sent letters to Mother, but the focus of those letters was toward Mother, and only "vaguely" referenced KSJ. There is no evidence that Father sent cards, letters, or any other communication to KSJ while he was incarcerated.

         [¶9] In May 2011, Father was transferred from prison to CAC (a halfway house) in Casper. He remained there until December 15, 2011. During his first three months at CAC, Father visited weekly with Mother and KSJ, for about an hour at a time. As before, Father's focus was primarily on Mother during those visits. Mother's testimony about the visits was that Father was more interested in talking with her than in visiting with KSJ.

         [¶10] Father worked for Applebee's while at CAC. Applebee's withheld child support from Father's pay and submitted it directly to the state child support authority from August 2011 through January 6, 2012. Shortly after Father was released from CAC, he was terminated from his job at Applebee's. ...

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