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In re Termination of Parental Rights To L-MHB

Supreme Court of Wyoming

January 2, 2020

IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: L-MHB, minor child, DENISE LYNN METS, f/k/a DENISE LYNN FENSTERMACHER, Appellant (Respondent),
v.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner).

          Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          Tyler J. Garrett and Katie J. Koski, Hathaway & Kunz LLP, Cheyenne, Wyoming. Argument by Ms. Koski. Representing Appellant

          Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Wendy S. Ross, Senior Assistant Attorney General. Argument by Ms. Ross. Representing Appellee

          Dan Wilde, Deputy State Public Defender; Joseph R. Belcher, Chief Trial and Appellate Counsel, Wyoming Guardian ad Litem Program, a division of the Office of the State Public Defender. Appearance by Mr. Belcher. Guardians ad Litem

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

          GRAY, Justice.

         [¶1] Denise Lynn Mets (Mother) appeals the district court order terminating her parental rights. A jury returned a verdict finding clear and convincing evidence for termination on two separate statutory grounds, Wyo. Stat. Ann. § 14-2-309(a)(iii) (parental neglect of the child and reasonable efforts to rehabilitate the family unsuccessful) and Wyo. Stat. Ann. § 14-2-309(a)(v) (child in foster care fifteen of the most recent twenty-two months and parent unfit to have custody). See infra ¶¶ 17-18. The district court entered its order terminating parental rights on February 8, 2019. Mother contends the district court abused its discretion when it admitted privileged evidence through physician testimony and an associated medical record. We affirm.

         ISSUE

         [¶2] Was Mother prejudiced by the admission of her physician's testimony or the related 2011 medical record?

         FACTS

         [¶3] Mother gave birth to L-MHB on April 15, 2014, and, almost immediately, the child was placed in protective custody because of concerns that Mother posed a danger to the child and was unable to properly care for her. In Interest of L-MHB, 2017 WY 110, ¶ 1, 401 P.3d 949, 951 (Wyo. 2017). Shortly thereafter, the Department of Family Services (DFS) filed a neglect petition in the juvenile court and L-MHB was placed in foster care. Matter of Adoption of L-MHB, 2018 WY 140, ¶ 3, 431 P.3d 560, 563 (Wyo. 2018). The juvenile court adjudicated L-MHB neglected. In Interest of L-MHB, ¶¶ 11- 12, 401 P.3d at 953. Initially, the permanency goal was reunification but eventually changed from reunification to adoption. Id. ¶¶ 13-14, 20, 401 P.3d at 954, 956. Mother appealed that decision and it was affirmed. Id. ¶ 44, 401 P.3d at 962. DFS filed a petition to terminate Mother's parental rights on May 3, 2017. In January 2019, a five-day trial resulted in a jury determination that clear and convincing evidence existed to support terminating Mother's parental rights.

         Relevant Procedural Background: Dr. Collison and the Cheyenne Regional Medical Center (CRMC) Motion to Quash

         [¶4] Prior to trial, DFS issued subpoenas for several CRMC employees, including Dr. Jason Collison.[1] CRMC moved to quash those subpoenas based upon the Wyoming Hospital Records Act and Mother's refusal to consent to the testimony. In a prior juvenile court action, In Interest of L-MHB, Mother had signed a release giving her juvenile action attorney access to her medical records, including records from 2011 when she was under the supervision of Dr. Collison. In addition to Mother's release to her attorney, the juvenile court in that proceeding had also ordered Mother to release her psychological records to DFS and the guardian ad litem (GAL). In Interest of L-MHB, ¶¶ 12-13, 401 P.3d at 954. Mother produced these records to DFS through her attorney. In 2014, Mother expressly revoked "any further release of medical records" previously granted to DFS. In 2015, Mother executed a separate release in favor of DFS for Dr. Kenneth Bell, a psychologist.

         [¶5] On the first day of the 2019 termination trial involving L-MHB, DFS responded to CRMC's motion to quash, asserting Mother had waived any claims of privilege because her attorney in the preceding juvenile neglect case had provided Mother's medical records to DFS. CRMC withdrew its motion. Mother did not separately object in writing to potential CRMC witnesses identified by DFS, including Dr. Collison.

         Dr. Collison's Testimony and Exhibit 8

         [¶6] Dr. Collison testified on the second day of the trial. At the commencement of his testimony, Mother objected, asserting the physician-patient privilege. Mother claimed she had consistently refused to sign a release of medical records. DFS assured the district court that it had an express release from Mother authorizing disclosure, and that these medical records had been previously produced in the separate juvenile action. DFS claimed that Mother's prior release amounted to a complete release and waiver of the CRMC medical records, including Dr. Collison's testimony. The district court overruled Mother's objection.

         [¶7] Dr. Collison did not recall when he first encountered Mother, and DFS counsel introduced Exhibit 8-an August 6, 2011 history and physical report prepared by Dr. Collison. Mother objected to the report, asserting privilege, and the district court overruled the objection.

         [¶8] Dr. Collison testified that Mother was admitted to CRMC Behavioral Health Services in 2011 because of a "suicide attempt." At that time, Mother was "agitated" and was given medications to control her behavior and her potassium levels. Dr. Collison was "unsuccessful" in gathering information from Mother because she "refused" to talk to him, and he documented that he had "limited information." He noted the crisis therapist reported that Mother had been living in a park and that Mother's insight and judgment appeared to be poor. His assessment was that she had "depressive disorder not otherwise specified." He "rated her suicide risk . . . as high due to the recent suicide attempt." He had no recollection of when Mother was released and no recall of any interactions with Mother during her stay because "[i]n all likelihood" the regular inpatient attending physician (and not Dr. Collison) would have been her doctor during her hospitalization. Dr. Collison also had no recollection of Mother's January 2013 admission to CRMC Behavioral Health Services. He had no recollection of how many times he saw Mother, but had documentation of seeing her only once, in 2011. He testified generally about the symptoms of depression, what it means to have poor insight and judgment, and the definition of dysphoric mood and labile behavior.[2] Dr. Collison's actual testimony, excluding the privilege objections and rulings, comprises less than fifteen pages of the 1156-page trial transcript. Exhibit 8 is a two-page history and physical report. It documents Dr. Collison's interaction with Mother and contains the same information as Dr. Collison's testimony.

         Overview of Other Evidence

         [¶9] DFS called a total of seventeen witnesses at trial. DFS presented other evidence of Mother's mental health issues and her past and ongoing failures to address her mental health needs, obtain counseling, or take prescribed medications. DFS presented evidence that Mother continually failed to cooperate with reunification efforts, ignored her case plan and its requirements, and threatened DFS caseworkers. She did nothing to create or maintain a bond with L-MHB. DFS also presented evidence that Mother struggled in many areas of her life: she had constant conflict with neighbors, DFS, healthcare providers, romantic interests, her eventual husband Sean Mets (Mr. Mets), and Mr. Mets's family. She frequently lived in inappropriate, dangerous, or unclean housing. Her younger children were "unkempt" and "odorous" at the time of trial. Her home at the time of trial was messy and unsanitary. She and Mr. Mets had repeated encounters with law enforcement officers in Cheyenne, Casper, and South Dakota. In addition to Mother's history and current issues, DFS presented evidence of Mr. Mets's past and continuing violent nature and the associated safety concerns for L-MHB. This evidence is discussed in more detail later in this opinion.

         Jury Verdict and the Current Appeal

         [¶10] Following trial, the jury returned a verdict finding clear and convincing evidence that grounds existed to terminate Mother's parental rights under Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v). The district court concluded that it was in the best interests of L-MHB to terminate Mother's parental rights and entered its order on February 8, 2019. Mother timely appeals.

         DISCUSSION

         Was Mother prejudiced by the admission of her physician's testimony or the related 2011 medical record?

         [¶11] Mother argues that the district court abused its discretion when it admitted her medical record from three years prior to the birth of L-MHB and in allowing Dr. Collison to testify. DFS argues that Mother waived the physician-patient privilege. Our review of the record uncovered an abundance of evidence in support of termination. Little purpose would be served in tracing the complicated history of Mother's releases, revocation of releases, and claims of waiver and privilege because, even if the district court erred in admitting privileged information, Mother suffered no prejudice.

         A. Standard of Review

         [¶12] The district court's decision on the admission of evidence is reviewed for an abuse of discretion. Matter of GAC, 2017 WY 65, ¶ 32, 396 P.3d 411, 419 (Wyo. 2017). "A trial court's rulings on the admissibility of evidence are entitled to considerable deference, and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal. The appellant bears the burden of showing an abuse of discretion." Id. (quoting Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo. 2015)). To determine whether there has been an abuse of discretion, we consider "whether the court could reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner." Gonzalez-Chavarria v. State, 2019 WY 100, ¶ 11, 449 P.3d 1094, 1097 (Wyo. 2019) (citation omitted).

         [¶13] Even when a trial court abuses its discretion in admitting evidence, reversal is only warranted if the error was prejudicial; reversal is not warranted if the error is harmless. Dixon v. State, 2019 WY 37, ¶ 40, 438 P.3d 216, 231 (Wyo. 2019). "An error is deemed prejudicial when there is a reasonable probability that, in the absence of the improper evidence, the verdict would have been more favorable to the appellant." Swett v. State, 2018 WY 144, ¶ 12, 431 P.3d 1135, 1140 (Wyo. 2018) (citations omitted); see also Lauderman v. State, Dep't of Family Servs., 2010 WY 70, ¶¶ 16-17, 232 P.3d 604, 609 (Wyo. 2010).

         B. Analysis

         [¶14] Mother argues that Dr. Collison's testimony and Exhibit 8 were protected by the physician-patient privilege codified in Wyo. Stat. Ann. § 1-12-101(a)(i), and the admission of this evidence prejudiced her.[3] Here, the record shows that Mother was not prejudiced by the admission of the evidence. Rudy v. Bossard, 997 P.2d 480, 484 (Wyo. 2000) (foregoing analysis of whether trial court erred in admitting letter when letter did nothing more than corroborate testimony); Lauderman, ¶ 17, 232 P.3d at 609 (declining to analyze whether trial court erred in ruling on the admissibility of evidence where mother was not prejudiced by such evidence); MSH v. ALH, 2012 WY 29, ¶ 7, 271 P.3d 983, 985 (Wyo. 2012) (foregoing determination of whether report was admitted erroneously where father failed to prove that, if there was error, it was prejudicial).

         [¶15] Mother argues that "[w]ithout Dr. Collison's testimony, the State never would have met its burden of proof," and "Dr. Collison's testimony and the 2011 Medical Record were necessary for the State to prove by clear and convincing evidence ...


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