Summary 2006 WY 130

Summary of Decision issued October 13, 2006

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Case Name: In the Matter of the Termination of Parental Rights to CS, Minor Child: LS a/k/a LA, v. Johnson County DFS
In the Matter of the Termination of Parental Rights to TS, Minor Child: LS a/k/a LA, v. Johnson County DFS

Citation: 2006 WY 130

Docket Number: C-05-16 & C-05-17

Appeal from the District Court of Johnson County, the Honorable John C. Brackley, Judge

Representing Petitioner (Appellee): Patrick J. Crank, Attorney General; Robin Session Cooley, Deputy Attorney General; and Jill E. Kucera, Senior Assistant Attorney General.

Representing Respondent (Appellant): Jan Flaharty of Sheridan, Wyoming.

Guardian Ad Litem: Tonia Hanson of Buffalo, Wyoming.

Issues: Whether it was established by clear and convincing evidence that LS abused or neglected her children within the meaning of “abuse” and “neglect” as those terms are defined by Wyo. Stat. Ann. §§ 14-3-202(a)(ii) and (vii). Whether LS was deprived of her due process right to a meaningful opportunity to be heard guaranteed under Article 1, § 6 of the Wyoming Constitution and the Fifth and Fourteenth Amendments of the United States Constitution, when the Department of Family Services refused at the last moment to transport LS to the termination hearing.

Holding: LS is the natural mother of CS and TS. DFS and law enforcement personnel investigated allegations of abuse reported by LS’s father. LS agreed to leave the children in foster care and a case plan with the goal of reuniting the family was established. LS failed to follow the case plans, did not maintain stable residences or employment and failed to pay child support. She only made about 40% of the scheduled visitations with the children. DFS filed a petition to terminate LS’s parental rights. Trial before a jury was scheduled. LS contacted a DFS employee to request a ride from Sheridan to Buffalo for the trial. Initially, DFS agreed to provide a ride but later that day informed LS that DFS would not provide transportation. LS was unable to arrange transportation and so missed the first day of trial but was able to attend the second and third days. After hearing the witnesses and evidence of both parties, the jury returned a verdict finding that LS’s parental rights to both children should be terminated.
Standard of Review: The strict scrutiny standard established by clear and convincing evidence must be applied in parental rights termination proceedings. The Court applied traditional principles of evidentiary review examining the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. The party claiming an infringement of his right to due process has the burden of demonstrating both that he has a protected interest and that such interest has been affected in an impermissible way.
Clear and Convincing Evidence: After reviewing the entire record and taking due consideration of the appropriate statutes, the Court concluded the jury’s determination was supported by clear and convincing evidence. Pursuant to § 14-2-3090(a)(iii), three elements have to be shown by clear and convincing evidence before a parent’s rights can be terminated: (1) the child has been abused or neglected by the parent; (2) reasonable efforts by an authorized agency or mental health professional have been unsuccessful in rehabilitating the family or the family has refused rehabilitative treatment; and (3) the child’s safety and health would be seriously jeopardized by remaining with or returning to the parent. LS only challenged whether or not there was abuse or neglect. There was testimony of both abuse and neglect presented at trial. In addition, LS failed to comply with the case plan which can be considered evidence of neglect. Considering the evidence in its entirety, there is clear and convincing proof sufficient to support the jury’s findings of abuse and neglect.
Due Process Rights: LS contended she was deprived of due process when DFS refused to transport her to the trial as they had initially promised. She argued that DFS had provided transportation in the past and relied upon their representation that they would do so for the trial and she claimed prejudice because it led the jury to question her commitment to her children. LS did not cite any authority that required DFS to provide her with transportation once the proceedings had progressed to the termination phase. LS did not request a continuation of the trial. The court and LS explained the reason for her absence. The jury verdict was supported by sufficient evidence. An error warrants reversal of a judgment only when it is prejudicial and affects a substantial right.

Affirmed.

J. Hill delivered the order for the court.

Link to the case: http://tinyurl.com/yh9hg4 .