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Gifford v. State

Supreme Court of Wyoming

August 10, 2017

DONNA ROSE GIFFORD, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff). MICHAEL ARCHIE TIBBETS, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

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

          Representing Appellant, S-16-0240: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

          Representing Appellee, S-16-0240: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Philip M. Donoho, Assistant Attorney General. Argument by Mr. Donoho.

          Representing Appellant, S-16-0241: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

          Representing Appellee, S-16-0241: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Philip M. Donoho, Assistant Attorney General; Darrell D. Jackson, Director, Kevin T. Farrelly, Student Director, and Kendra D. Winslow, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law. Argument by Ms. Winslow.

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

          BURKE, CHIEF JUSTICE.

         [¶1] Appellants, Michael Archie Tibbets and Donna Rose Gifford, were each convicted after a joint trial of three counts of child abuse in violation of Wyo. Stat. Ann. § 6-2-503(b)(ii), in relation to injuries inflicted on their children. They contend the State produced insufficient evidence to support the convictions. We affirm.

         ISSUE

         [¶2] Appellants present the same issue:

Did the State produce sufficient evidence to prove beyond a reasonable doubt that Appellants recklessly caused mental injury to their children?

         FACTS

         [¶3] Appellants had three children together: a daughter, J.T., born in 2003, and two sons, M.T. and C.T., born in 2004 and 2007. Dr. Mary Bowers served as pediatrician for M.T. and C.T. from their birth, and for J.T. from the age of nineteen months. When M.T. was six months old, he was nearly four pounds underweight. Dr. Bowers diagnosed him with "non-organic failure to thrive"[1] and concluded that his growth had been impaired because he was not being fed enough. She advised Appellants to supplement M.T.'s feedings with baby formula. Appellants, however, "decided against" using baby formula and instead fed M.T. a mixture of whipping cream and molasses. When Dr. Bowers saw M.T. again when he was six months old, he was anemic and weighed 50% less than the average for his birth-weight.

         [¶4] The same pattern repeated itself after C.T.'s birth in 2007. When Dr. Bowers saw C.T. when he was four months old, he was significantly underweight. Dr. Bowers diagnosed C.T. with non-organic failure to thrive resulting from inadequate nutrition. Although Appellants believed that C.T. was lactose intolerant, they also fed him a mixture of molasses and whipping cream. C.T. was subsequently hospitalized for a week on two separate occasions due to failure to thrive. When C.T. was five months old, he suffered a traumatic brain injury when he suffocated in loose blankets on his bed. Following this incident, C.T. had reduced vision and required a substantially higher level of care.

         [¶5] Dr. Bowers referred C.T. for rehabilitative and therapeutic services at the local Child Development Center. She made the referrals necessary for Appellants to acquire a helmet to protect C.T. when he became more mobile, but Appellants failed to obtain one. Dr. Bowers also referred C.T. to two different ophthalmologists, but Appellants failed to obtain prescription glasses for C.T. Appellants also disagreed with Dr. Bowers' conclusion that C.T. was having seizures following his brain injury.

         [¶6] The Wyoming Department of Family Services ("Department") first became involved with the family in 2006 when M.T., who was two years old at the time, was discovered by law enforcement to be wandering alone outside. The Department subsequently received reports from Dr. Bowers and other care providers that M.T. and C.T. had been diagnosed with failure to thrive. The Department also received reports from the Child Development Center that Appellants were not following through with services, including speech therapy, occupational therapy, and physical therapy, provided for C.T.'s special needs. When Department personnel visited Appellants' home in 2009, they found that its condition was "out of control." There was rotting food on the floor and on the kitchen table, and there were only small pathways through clothes, boxes, and other items in the living room. There was also rotting food and trash on the floor in the children's rooms.

         [¶7] Due to the fact that Appellants were not following through with Dr. Bowers' recommendations, and because of concern about the children's behaviors, she reported to the Department the possibility that the children were being neglected. Department personnel worked with the family to develop a plan to meet the children's needs. Ultimately, however, Appellants refused to accept parenting services from the Department and failed to follow through with the plan or provide a suitable home environment for the children. In 2010, the children were going to school "smelling of urine, [wearing] dirty clothes . . . defecating in their pants, and then there were concerns again that the house had disintegrated again." Employees from the Child Development Center were forced to stop therapy in Appellants' home due to its condition.

         [¶8] Local law enforcement subsequently reported to the Department that a friend of one of Ms. Gifford's older children requested that J.T. and M.T. "touch his penis." The friend was convicted of two counts of public indecency. In counseling, J.T. confirmed that the incident occurred and indicated that she was angry. J.T. also manifested sexualized behavior. Ms. Gifford, who was in the house at the time of the incident, characterized the incident as "a prank, in bad humor."

         [¶9] In 2012, after significant efforts to treat a severe rash on C.T.'s bottom and groin, Jacqueline Coulter, C.T.'s special education teacher, contacted the Department to report the issue. Unlike other students in his class who wore diapers, C.T. had a consistent problem with diaper rash. Ms. Coulter would bathe C.T. at school and wash his clothing because he came to school in dirty and undersized clothes that "frequently smelled of feces and mold." She observed "red bumps, whiteheads throughout his private region, and up - sometimes up to his stomach" from duct tape that Appellants used to attach his diapers to his body. By putting ointment on C.T. "every hour when [school staff] took him to the bathroom throughout the week, " the rash would be nearly healed by the end of the week. She explained to Ms. Gifford that duct tape should not be used, and "sent less-invasive tape home, like medical tape." Although Ms. Coulter talked to Ms. Gifford about the need to continue treatment over the weekend, C.T.'s rash would return by the next school week. By October 2012, C.T.'s rash had become so severe that

his skin was actually peeling off of his bottom; it was red, it was cracked, and it was bleeding. Inside of the crack of his bottom was also red and cracked and bleeding. . . . [H]is testes and his penis [were] also red and cracked and ...

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