Wednesday, August 08, 2007

Summary 2007 WY 128

Summary of Decision issued August 8, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: In The Interest of FM: BA v. Laramie County Department of Family Services

Citation: 2007 WY 128

Docket Number: C-06-14

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Karen Ashcroft Byrne, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan Wilde, Senior Assistant Attorney General; Sue Chatfield, Senior Assistant Attorney General. Argument by Ms. Chatfield.

Issues: Whether the lower court used an incorrect legal standard in making the decision to terminate BA’s parental rights and base its decision on a misunderstanding of the consequences of its decision. Whether it was error not to consider appointing a guardian ad litem and compounding that error for Mr. Frentheway (whom the court thought had been appointed) to testify. Whether insufficient evidence was produced to legally support a termination of parental rights.

Facts/Discussion: BA (Mother) appealed the termination of her parental rights to FM, her biological son. Mother objected to the lack of an appointment of a GAL for FM in the termination proceedings and generally challenges the sufficiency of the evidence to support the termination.
Mother has three children, two girls and a son, FM. Fm is the youngest and has a different father than the girls.

Standard of Review:
The Court strictly scrutinizes any proceeding terminating parental rights. They apply their traditional principles of evidentiary review to Mother’s challenge to the sufficiency of the evidence supporting termination. The grounds for terminating parental rights must be established by clear and convincing evidence. The contention that the district court should have considered appointing a GAL for FM presents an issue of statutory construction which is reviewed de novo.
Evidence Supporting Termination Under Wyo. Stat. Ann. § 14-2-309(a)(iii):
Termination of Mother’s parental rights in this case required clear and convincing proof of three elements: abusive treatment or neglect; reasonable efforts by DFS that have been unsuccessful to rehabilitate the family; and that the child’s health and safety would be seriously jeopardized by remaining with or returning to the parent. Under the circumstances, even given Mother’s incarceration, the State did not present clear and convincing evidence that the DFS provided reasonable efforts to reunify Mother with FM which were ultimately unsuccessful.
Evidence Supporting Termination under Wyo. Stat. Ann. § 14-2-309(a)(v):
There is no question that FM was in foster care for fifteen of the twenty-two months preceding the filing of the termination petition. The question is whether the State presented clear and convincing evidence that Mother was unfit to have custody and control of FM as of the time of the trial. The trial court found the status of incarceration proved the absence of fitness as a parent. The Court stated that finding was in error. The Court stated the issue was Mother’s relationship with FM. The Court stated they wanted to make clear that they were only deciding that clear and convincing evidence was not produced by the State to support he termination of Mother’s parental rights to FM.
Appointment of a GAL:
While the Court’s reversal of the district court moots the need to discuss Mother’s second issue regarding the lack of appointment of a GAL for FM in the instant case, it raised a fundamental concern that is likely to arise again. The Court stated that in every termination case there must be an order either appointing a GAL or setting forth findings in accord with the statutory exception.

Holding: Parents facing the termination of their parental rights must be afforded every procedural and substantive protection the law allows. Termination of parental rights is the family law equivalent to the death penalty n a criminal case. As the evidence stands in the instant case, it was not clear that Mother’s parental rights should be absolutely, permanently, terminated.

Reversed and remanded.

J. Golden delivered the decision.

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