Summary 2007 WY 23

Summary of Decision issued February 9, 2007

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Case Name: C.L. v. Wyoming Department of Family Services

Citation: 2007 WY 23

Docket Number: C-06-4

Appeal from the District Court of Platte County, Honorable John C. Brooks, Judge

Representing Appellant (Respondent): Cole N. Sherard, Wheatland, Wyoming

Representing Appellee (Petitioner): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General.

Guardian Ad Litem: Eric E. Jones, Wheatland, Wyoming.

Date of Decision: February 9, 2007

Issue: Whether the district court's decision that appellant's parental rights to the minor children should be terminated was established by clear and convincing evidence.

Holdings: Termination of parental rights pursuant to § 14-2-309(a)(iii) requires the "establishment of three elements: (1) abusive treatment or neglect by the parent; (2) unsuccessful efforts to rehabilitate the family; and (3) the child's health and safety would be seriously jeopardized by remaining with or returning to the parent." Appellant does not contest the district court's findings that the first two elements of subsection (iii) were satisfied. She focuses on the third element, claiming there was insufficient evidence to support the district court's conclusion that the children's health and safety would be seriously jeopardized if they were returned to her.

Under § 14-2-309(a)(v), the Department of Family Services (DFS) was charged with proving the children had been in foster care under the State's responsibility for fifteen of the most recent twenty-two months and that Appellant was unfit to have custody and control of the children. Appellant does not dispute the children have been in foster care, or otherwise under the State's responsibility, for at least fifteen of the twenty-two months preceding the hearing. However, she does take issue with the district court's finding that she was unfit to have custody and control of the children.

A case plan was developed that identified a number of objectives and required Appellant to fulfill certain tasks in advancement of the objectives. Appellant claims DFS failed to prove the disputed elements by clear and convincing evidence because the evidence adduced at the final hearing showed she had substantially complied with the case plan.
Although Appellant presented evidence that she had complied with several of the tasks assigned to her in the case plan, she did not complete all of the tasks and, more importantly, the evidence showed the overall objectives of the plan were not achieved.

Several of the objectives could not be measured by the sheer accomplishment of a specific task. For example, one objective required Appellant to achieve a healthy parent-child relationship with her children. She was given certain tasks in order to help her fulfill that objective, including attending individual and family therapy and completing parenting classes. These tasks were meant to provide her with tools to help her obtain the ultimate goal; however, the objective would not necessarily be accomplished by rote completion of the tasks. Instead, determination of whether the objective had been met required a qualitative measure. The therapists who testified on behalf of DFS stated that, while Appellant made an effort to complete the tasks, she did not achieve a healthy parent-child bond.

Similarly, another required Appellant to maintain a safe, stable and appropriate home. She claims she satisfied this objective by obtaining an appropriate home before the second hearing. Again, she misses the overall point. The case plan required she maintain a stable and acceptable home for the children without the presence of other family members. And yet, for part of the time she lived with her parents, in what had been determined an unacceptable environment. The determination of whether or not a home is "stable" requires a qualitative judgment. The fact that she had an appropriate home for a short period of time prior to the hearing was not sufficient to override the long history of multiple, inappropriate homes.

Because the determination of the ultimate issues in this case required a review of subjective, qualitative factors, the district court was required to gauge the credibility and sincerity of the witnesses. It was within the district court's province to weigh the evidence and judge the credibility of the witnesses. The district judge actually sat in the courtroom and observed the demeanor of the witnesses; consequently, he was in the best position to make those difficult factual determinations. In accordance with the appropriate standard of review, the court will defer to the district court's evidentiary findings and conclude sufficient evidence exists to support the district court's decision to terminate Appellant's parental rights.

This is a classic case where the best interests of the children diverge from the fundamental rights of the parent. When the rights of a parent and the rights of a child are on a collision course, the rights of the parent must yield. While parents have a fundamental right to raise their children, children have a right to stability and permanency in their family relationships. Wyo. Stat. 14-2-309(a) recognizes there must be limits on the amount of time DFS will attempt to rehabilitate a parent while the children remain in foster care. The time limits recognize that the children's right to stability and permanency is superior to the parent's right to familial association.

In the case at bar, although Appellant made significant efforts to rehabilitate herself, she did not, and perhaps could not, make sufficient progress within a reasonable amount of time. At the time of the hearing, the children had been placed out of the home for nearly three years. For much of that time, Appellant did not consistently comply with DFS requirements in order to be reunified with the children. As the district court recognized, at the time of the hearing there still was no clear indication of when, if ever, Appellant would be sufficiently rehabilitated to provide the children with the stability necessary to allow reunification. The lack of a clear resolution of the case was emotionally disturbing to the children and interfered with their progress in becoming healthy and well-adjusted. Under these circumstances, it was entirely appropriate for the district court to favor the children's right to permanency and terminate Appellant's parental rights.

The district court's order terminating Appellant's parental rights pursuant to Wyo. Stat. §§ 14-2-309(a)(iii) and (v), was supported by clear and convincing evidence. The district court properly considered DFS' efforts to reunify this family and Appellant's efforts to rehabilitate herself over the entire three year period these children were in foster care, and the district court reasonably concluded the interests of the children in a safe and stable home outweighed Appellant's rights as a parent.

Affirmed.

J. Kite delivered the opinion for the court.

Justice Hill, joined by Justice Golden dissented.

The record on appeal does not contain clear and convincing evidence that mandates the termination of Appellant's parental rights to her three children. Although Appellant did not comply 100% with the directives of the district court and the supervising DFS case worker, even the district court conceded that her efforts were to a large extent successful. Examination of that transcript leaves the impression that Appellant did about as well at complying with the district court's and DFS's directives as any person could have been expected to do. The following items are undisputed in the record. (1) Appellant is at once required to maintain full-time employment, and faulted that she will not be at home enough because she works full-time or more. (2) She is faulted for losing a part-time job, although she lost that job because she left work so as not to miss a visitation that was set on a new schedule. (3) She is faulted for going to her therapist only twice a month, even though her therapist testified that in her professional judgment Appellant had progressed so far that she required only every-other-week sessions (and also, thus, to avoid over dependence on the therapist). Appellant's home is characterized as being a "threat to her children's health and safety," and Appellant is characterized as "unfit" because she did not reach her goals 100%. However, there is no evidence to support those conclusions, much less clear and convincing evidence. The only evidence to support those conclusions is the minor failings detailed in the district court's decision letter.

I would remand this case to the district court with instructions that it direct DFS to continue to provide needed services to this family, including Appellant. It may be that those efforts will never result in the ideal of complete reunification. However, these children are now 14, 13, and 10 years-of-age, and it is difficult for me to grasp how termination of Appellant's parental rights is going to improve their lot.

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