Summary 2009 WY 78

Summary of Decision issued June 15, 2009

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

Case Name: In re: JD and SE

Citation: 2009 WY 78

Docket Number: S-08-0246

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Respondents): Jakob Norman and Jamie Woolsey, Center Street Law Offices, Casper, Wyoming; Hampton Young, Jr., Law Office of Hampton M. Young, Jr., Casper, Wyoming.

Representing Appellee (Petitioner): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General.

Guardian Ad Litem: Corinne A. Burke Miller, Casper, Wyoming

Issues: Whether the State of Wyoming, Department of Family services (DFS), established by clear and convincing evidence that reasonable efforts were made to reunify the family, and that the health and safety of the children would be jeopardized by returning them to the Mother and Father. Whether DFS established by clear and convincing evidence that Mother and Father are unfit parents. Whether DFS followed applicable rules and statutes.

Holdings: Wyo. Stat. 14-2-309 (2007) sets forth seven different bases on which parental rights may be terminated. These bases are separate and independent. Accordingly, while DFS may seek to terminate parental rights on more than one basis, it need not prove more than one. Proof of any one of those bases by clear and convincing evidence supports the termination of parental rights.

Wyo. Stat. 14-2-309(a)(i) (2007) requires proof that the parent has not communicated with the children for a period of at least one year. The record reflects that Mother often wrote to her children, and received letters and photographs in return. On this basis, the district court declined to terminate her parental rights pursuant to subsection (i). However, the termination of her parental rights must still be affirmed if there was clear and convincing proof that Mother’s rights should be terminated under another subsection of the statute.

Wyo. Stat. 14-2-309(a)(iii) (2007) requires proof that reasonable efforts have been unsuccessful in rehabilitating the family or the family has refused rehabilitative treatment. In their appeals, Mother and Father devote substantial attention to arguments that DFS did not make reasonable efforts to rehabilitate the family. Father, in particular, asserts that DFS violated applicable statutory, regulatory, and policy requirements relating to rehabilitation efforts. DFS counters that its rehabilitation efforts were reasonable, though it admits that the incarceration of Mother and Father rendered such efforts more difficult. It should be noted, however, that subsection (iii) of the statute is the only subsection that lists unsuccessful rehabilitation efforts as a requirement for terminating parental rights. The remaining six subsections of § 14-2-309(a) do not require DFS to make rehabilitation efforts. Accordingly, the need not consider the parents’ arguments concerning rehabilitation efforts if there is another subsection of the statute under which their parental rights were properly terminated.

Wyo. Stat. 14-2-309(a)(iv) (2007) provides that parental rights may be terminated upon clear and convincing proof that the parent is incarcerated due to the conviction of a felony and a showing that the parent is unfit to have the custody and control of the child. It is undisputed that Mother and Father were incarcerated due to felony convictions. However, the fact of incarceration is, by itself, insufficient to establish that a person is unfit as a parent. There must still be clear and convincing evidence that Mother and Father were unfit to have custody and control of the children.

The district court must consider the parents’ fitness at the time of the hearing on the petition to terminate parental rights, because the “statute unambiguously requires a finding of present unfitness.” However, evidence of their fitness at earlier times need not be overlooked. By itself, such evidence may not be sufficient to justify the termination of parental rights. Evidence of past behavior is, however, plainly relevant in determining current parental fitness. The evidence concerning their past parenting behavior demonstrates clearly and convincingly that Mother and Father were unfit. Mother and Father had been convicted on charges that included the manufacture of methamphetamine in the presence of the children. Convictions for crimes involving harm to or endangerment of children are strongly indicative that the parents are unfit to have custody and control of their children.

The parents assert that, while incarcerated, they made efforts toward rehabilitation and improving their parenting skills. Both Mother and Father testified that they had completed parenting classes, attended drug addiction therapy sessions, and participated in other beneficial classes and programs. Mother was working toward her GED. Father was working toward an associate’s degree in carpentry. In accordance with the applicable standard of review, however, this evidence must be discounted somewhat because Mother and Father were the unsuccessful parties below. Examining the evidence in a light favorable to DFS, the prevailing party below, there is clear and convincing evidence that the parents’ efforts yielded little progress in enhancing their fitness as parents. The guardian ad litem urges that the parents were clearly and convincingly shown to be unfit. The parents’ responses to questioning, she says, indicate that they have gained no insight into parenting and have not acquired the tools to parent. The parents appear completely oblivious to the responsibilities of parenting.

A review of the record reveals that neither Mother nor Father presented testimony or other evidence indicating that they had achieved any comparable changes or improvements. What the record does contain is proof that Mother and Father were incarcerated on felony charges relating to the endangerment of the children, evidence of their past parenting failures, and indications that their parenting skills have not improved since then. Together, this evidence provided the district court with clear and convincing proof that Mother and Father were incarcerated due to the conviction of a felony and, at the time of the hearing, were unfit to have custody or control of the children. Their parental rights were properly terminated pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iv).

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/nx2rj7 .

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