IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: LDB, TJB, and JCB, minor children, SHERYL LYNN ELLIS, Appellant (Respondent),
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner).
from the District Court of Laramie County The Honorable
Thomas T.C. Campbell, Judge
Representing Appellant: Donna D. Domonkos, Domonkos Law
Office, LLC, Cheyenne, Wyoming
Representing Appellee: Bridget Hill, Wyoming Attorney
General; Misha Westby, Deputy Attorney General; Jill E.
Kucera, Senior Assistant Attorney General; Rashell Read,
Assistant Attorney General. Argument by Ms. Read.
Guardians ad Litem: Dan S. Wilde, Deputy State Public
Defender; Hope Mead, Guardian ad Litem, Wyoming Guardian ad
Litem Program. Argument by Ms. Mead.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Following a jury trial, the district court entered an order
terminating the parental rights of Sheryl Ellis (Mother) to
her three minor daughters. Mother contends the court erred in
allocating peremptory challenges and in admitting evidence of
the children's sexual abuse allegations. We find no
reversible error and affirm.
Mother presents two issues on appeal, which we restate as:
I. Did the district court abuse its discretion when it failed
to equalize peremptory challenges by either giving Mother
additional challenges or requiring the Department of Family
Services and guardian ad litem to share challenges,
and if so, is the error reversible?
II. Did the district court abuse its discretion when it
admitted evidence of the children's sexual abuse
allegations and excluded evidence that the allegations were
In January 2016, Mother was sole custodian of her three minor
daughters, LDB, TJB, and JCB. LDB was born in 2002, and TJB and
JCB were twins born in 2004. On January 4, 2016, law
enforcement received a call from one of the daughters seeking
help because Mother was intoxicated. Deputies Mark Yocum and
Aaron Scott of the Laramie County Sheriff's Office
responded to the Ellis home and found Mother extremely
intoxicated. Because Mother had done nothing criminal by
being intoxicated in her home, the officers did not arrest
her. They informed her that they would take the girls to
school and would arrange for them to ride the bus home after
At around 3:30 to 3:45 that afternoon, Deputy Yocum received
a report that Mother had driven to the girls' schools to
look for them. He then set out for the Ellis home to ensure
that the girls had arrived home safely, and on the way he
found Mother in her vehicle parked in the middle of the road.
He pulled over and approached her and found that she still
appeared intoxicated, with slurred speech, glassy and
bloodshot eyes, and a strong odor of alcohol. Mother denied
having consumed alcohol that afternoon, but she admitted to
having taken Percocet. Deputy Yocum then conducted field
sobriety tests, and after Mother failed those, he arrested
her on a charge of felony driving under the influence
During Deputy Yocum's interaction with Mother, Deputy
Scott arrived to provide backup. Deputy Scott then went to
the Ellis home and confirmed that the children had made it
home safely by bus. The deputies then arranged to have
Mother's mother take custody of the girls.
The next day, Officer Daniel Zabriskie of the Cheyenne Police
Department, the school resource officer at LDB's junior
high, spoke with LDB concerning her mother's arrest. He
thereafter decided to take LDB and her sisters into
Obviously, I checked in with [LDB], going to see how the
evening had gone, discovered that Ms. Ellis had been arrested
by the deputies that evening. Confirmed that [the girls] had
gone to their grandma's, so you know, they had a safe
place to be, you know, warm and fed and all of that. However,
knowing that [their] father had passed away and that Ms.
Ellis was the only person who had legal custody of the
children, I consulted with my sergeant throughout the day,
and then confirmed with the Detention Center that Ms. Ellis
was not being released that day; that there was a bond that
could be posted, and I couldn't contact anybody who -
anybody in Ms. Ellis' life who was willing to post that
bond at the time.
Because there was nobody immediately available, you know, to
make legal decisions or medical decisions or educational
decisions for those three kids, I took them into protective
custody, you know, contacted the District Attorney, did the
paperwork and contacted DFS.
On January 6, 2016, the Laramie County district attorney
filed a petition in juvenile court alleging neglect by
Mother, and on January 7, 2016, the juvenile court entered an
order continuing shelter care and placing Mother's
daughters in the care and custody of the Department of Family
Services (the Department) for placement in foster care. The
girls were then placed in foster care with their former
In September 2016, Mother was convicted of felony DUI for the
January 4, 2016 incident, and she was sentenced to a prison
term of six to seven years. On February 7, 2018, the
Department filed a petition to terminate Mother's
parental rights to LDB, TJB, and JCB. As grounds for
termination, the petition alleged:
10. Sheryl Ellis has been convicted numerous times of Driving
While Under the Influence (DWUI). She attempted to drive the
minor children home from school on January 4, 2016. Had a
school official not stopped her, Sheryl Ellis would have
driven the minor children while she was under the influence
of alcohol. Sheryl Ellis was arrested and charged with a
felony DWUI on January 4, 2016. She was convicted and
sentenced to 6-7 years of incarceration for that DWUI in late
September 2016. The minor children spent the night with their
grandmother on January 4, 2016. On January 5, 2016, the minor
children were taken into protective custody by law
enforcement because Sheryl Ellis's January 4, 2016 arrest
and incarceration left the minor children without a
caretaker. The minor children now reside with their late
father's wife, due to their grandmother not being in the
best condition to fully take care of the minor children.
11. The minor children do not feel safe at Sheryl Ellis's
residence due to her live-in boyfriend. The minor children
have alleged sexual abuse by Sheryl Ellis and her live-in
boyfriend, which allegations are under investigation.
12. On September 8, 2016, while on bond for her January 4,
2016 DWUI, Sheryl Ellis was arrested on another felony DWUI
charge, failure to yield, hit and run, and various other
charges. Throughout the duration of this case, Sheryl Ellis
has been incarcerated and in different treatment facilities.
Sheryl Ellis has a significant alcohol dependency and has not
successfully completed treatment to address her dependency
issues. Sheryl Ellis has also failed to complete her case
13. The Agency has made reasonable efforts to reunify Sheryl
Ellis with [the minor children], but those efforts have been
unsuccessful. The Agency's reasonable efforts include,
but are not limited to: developing a case plan with Sheryl
Ellis; working towards the goals of the case plan; providing
foster care placement of the minor children; participation
and recommendations to the multidisciplinary team and
juvenile court; and supervising the juvenile case.
14. The Agency has also recommended evaluations and treatment
for Sheryl Ellis's alcohol dependency, as well as mental
health evaluations, which included a psychosexual evaluation.
Sheryl Ellis did participate in two treatment programs for
her alcohol dependency as part of her DWUI criminal
proceedings. However, due to her actions while she was at the
facilities, she was discharged from both programs before her
completion dates and was returned to jail.
15. Sheryl Ellis remains unable to care for [LDB, TJB, and
JCB] due to her continued alcohol dependency and her
inability to provide a stable life for [them]. The Agency is
unable to return [the children] to the care and custody of
Sheryl Ellis due to Sheryl Ellis's actions over the
course of the juvenile case as well as her actions before the
juvenile case began.
16. The health and safety of [LDB, TJB, and JCB] would be
jeopardized if they are returned to Sheryl Ellis's care.
Therefore, the parental rights of Sheryl Ellis to [LDB, TJB,
and JCB] should be terminated under Wyoming Statute §
17. Sheryl Ellis has been sentenced to 6-7 years in prison
and is currently incarcerated due to the conviction of a
felony DWUI. Sheryl Ellis is unfit to have custody and
control of the minor children as demonstrated by her alcohol
dependency, her failure to complete her case plan, her
inability to provide a safe and stable living environment for
the minor children, and her continued incarcerations.
Therefore, the parental rights of Sheryl Ellis to [LDB, TJB,
and JCB] should be terminated under Wyoming Statute §
18. The minor children have been in the Agency's legal
custody since January 5, 2016, approximately 24 months.
Sheryl Ellis is unfit to have the custody and control of the
minor children as demonstrated by her alcohol dependency, her
failure to complete her case plan, her inability to provide a
safe and stable living environment for the minor children, as
well as her continued incarcerations. Therefore, the parental
rights of Sheryl Ellis to [LDB, TJB, and JCB] should be
terminated under Wyoming Statute § 14-2-309(a)(v).
19. It would be in the best interests of the minor children
for this Court to terminate the parental rights of the
natural mother, Sheryl Ellis.
On June 29, 2018, the district court issued a scheduling
order setting the trial to be conducted before a six-person
jury as requested by Mother. On October 3, 2018, the
Department withdrew the ground for termination set forth in
Wyo. Stat. Ann. § 14-2-309(a)(iii), and the case then
proceeded on two grounds, Wyo. Stat. Ann. §§
14-2-309(a)(iv) and (v). On November 26, 2018, a six-day jury
trial began and resulted in a verdict that the Department had
proved both grounds. The court then heard argument on the
best interests of the children and found that their best
interests would be served by terminating Mother's
On December 11, 2018, the district court entered a written
order terminating Mother's parental rights to LDB, TJB,
and JCB. Mother thereafter filed a timely notice of appeal to
Allocation of Peremptory Challenges
Standard of Review
We review a district court's rulings on the allocation of
peremptory challenges for an abuse of discretion. Smyth
v. Kaufman, 2003 WY 52, ¶ 13, 67 P.3d 1161, 1165
(Wyo. 2003) (citing Cargill, Inc. v. Mountain Cement
Co., 891 P.2d 57, 65 (Wyo. 1995)). In determining
whether the court abused its discretion, we consider whether
it "could reasonably conclude as it did, and whether it
acted in an arbitrary and capricious manner." Sparks
v. State, 2019 WY 50, ¶ 34, 440 P.3d 1095, 1106
(Wyo. 2019) (quoting Moser v. State, 2018 WY 12,
¶ 40, 409 P.3d 1236, 1248 (Wyo. 2018)).
Framework for Allocating Peremptory Challenges
Wyo. Stat. Ann. § 1-11-202 (LexisNexis 2019) provides
that "[i]n the trial of civil cases in the district
courts of this state, each side is allowed three (3)
peremptory challenges." W.R.C.P. 47 provides:
Each party shall be entitled to three peremptory challenges.
Several defendants or several plaintiffs may be considered as
a single party for the making of challenges or the court may
allow additional peremptory challenges and permit them to be
exercised separately or jointly.
The allocation of peremptory challenges depends on the sides
to a dispute and how the parties are aligned. We have said:
Section 1-11-202 starts from the premise that each
"side" to a controversy is entitled to an equal
number of peremptory challenges. "Side," as that
term is understood in the context of litigation, means
"litigant or a group of litigants having essentially
Wardell v. McMillan, 844 P.2d 1052, 1060-61 (Wyo.
1992) (quoting Patterson Dental Co. v. Dunn, 592
S.W.2d 914, 917 (Tex. 1979)).
A trial court's task in allocating peremptory challenges
is to determine whether "a good-faith controversy"
exists between multi-party litigants "regarding factual
issues that will be determined by the jury."
Cargill, 891 P.2d at 64 (citing Wardell,
844 P.2d at 1061). Only when such a good faith controversy is
found will the parties' interests be considered
antagonistic to each other, thus entitling them to separate
Allocation of peremptory challenges, although resting within
the sound discretion of the district court, still requires
the district court to determine that a good faith controversy
exists between multi-party litigants, be they plaintiffs or
defendants, before peremptory challenges are awarded. This
rule is intended to prevent multi-party litigants, on the
same side, from stockpiling peremptory challenges if their
interests are not antagonistic.
Smyth, ¶ 16, 67 P.3d at 1165 (quoting
Cargill, 891 P.2d at 65).
We have explained the importance of preventing parties whose
interests are not antagonistic to each other from pooling
their peremptory challenges.
Multi-party defendants' interests are antagonistic when a
good-faith controversy exists, vis-a-vis each other, over an
issue of fact which the jury will decide. See Patterson
Dental Company, 592 S.W.2d at 918. When such a
controversy exists, the defendants constitute separate
"sides" within the meaning of § 1-11-202 and
are entitled to have additional peremptory challenges. This
result is justified by the rationale that certain of the
extra challenges will be used to select a jury for the case
against the other defendant, rather than against the
plaintiff. See Daniel J. Sheehan, Jr. & Cynthia
C. Hollingsworth, Allocation of Peremptory Challenges
Among Multiple Parties, 10 St. Mary's L.J. 511, 530
When, on the other hand, no good-faith controversy exists
between multi-party defendants and they are yet awarded extra
peremptory challenges, the single-party plaintiff is placed
in a distinct tactical disadvantage. The multi-party
defendants, having no motive to exercise their additional
challenges against a co-defendant, are able to pool their
challenges against the plaintiff. As we have previously
recognized, peremptory challenges are of substantial
importance in constructing a fair and impartial jury.
Theoretically, peremptory challenges may be used in an
arbitrary and capricious manner. In practice, however, a
party exercises peremptory challenges to reject jurors
perceived to be unsympathetic to his case. To allow
nonantagonistic, multi- party defendants a two-, three- or
four-to-one advantage in the exercise of peremptory
challenges affords them undue influence over the composition
of the jury and implicates the single-party plaintiff's
right to a fair trial.
Wardell, 844 P.2d at 1061; see also Roberts v.
State, 2018 WY 23, ¶ 10, 411 P.3d 431, 436 (Wyo.
2018) ("The peremptory challenge-that is, a party's
removal of a potential juror without showing cause-lies at
the heart of jury selection in the American trial.").
As we observed in Cargill and Smyth, these
fair trial concerns are the same whether the multi-party
litigants are plaintiffs or defendants. Smyth,
¶ 16, 67 P.3d at 1165 (quoting Cargill, 891
P.2d at 65). Additionally, the concerns are the same, and the
analysis the same, when ...