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),
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner).
from the District Court of Laramie County The Honorable
Thomas T.C. Campbell, Judge
J. Garrett and Katie J. Koski, Hathaway & Kunz LLP,
Cheyenne, Wyoming. Argument by Ms. Koski. Representing
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
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
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
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.
Was Mother prejudiced by the admission of her physician's
testimony or the related 2011 medical record?
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.
Procedural Background: Dr. Collison and the Cheyenne Regional
Medical Center (CRMC) Motion to Quash
Prior to trial, DFS issued subpoenas for several CRMC
employees, including Dr. Jason Collison. 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.
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's Testimony and Exhibit 8
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.
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.
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. 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
of Other Evidence
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
Verdict and the Current Appeal
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.
Mother prejudiced by the admission of her physician's
testimony or the related 2011 medical record?
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
Standard of Review
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).
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).
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. 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).
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 ...