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In re Termination of Parental Rights to LDB

Supreme Court of Wyoming

December 18, 2019


          Appeal 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.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.



         [¶1] 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.


         [¶2] 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 not substantiated?


         [¶3] In January 2016, Mother was sole custodian of her three minor daughters, LDB, TJB, and JCB.[1] 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 school.

         [¶4] 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 (DUI).[2]

         [¶5] 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.

         [¶6] 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 protective custody.

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.

         [¶7] 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 stepmother.

         [¶8] 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 plan.
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 § 14-2-309(a)(iii).
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 § 14-2-309(a)(iv).
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.

         [¶9] 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).[3] 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 parental rights.

         [¶10] 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 this Court.


         A. Allocation of Peremptory Challenges

         1. Standard of Review

         [¶11] 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)).

         2. Framework for Allocating Peremptory Challenges

         [¶12] 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.

W.R.C.P. 47(e).

         [¶13] 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 common interests."

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)).

         [¶14] 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 peremptory challenges.

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).

         [¶15] 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 (1979).
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.").

         [¶16] 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 ...

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