Summary 2010 WY 142

Summary of Decision November 4, 2010

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Case Name: AJJ v. The State of Wyoming, Department of Family Services

Citation: 2010 WY 142

Docket Number: S-10-0038

URL: http://tinyurl.com/2cxftrx

Appeal from the District Court of Sheridan County, Honorable John G. Fenn, Judge

Representing Appellant (Respondent): John M. Burman, Director Legal Services, UW College of Law; Benjamin Hewett, Student Intern

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

Guardian Ad Litem: Jan K. Flaharty, Sheridan, Wyoming

Date of Decision: November 4, 2010

Facts: Appellant challenges the district court order terminating hi parental rights contending that there

Issues: Whether the district court’s determination that Appellant’s parental rights should be terminated was established by clear and convincing evidence. Whether DFS was required, under Wyo. Stat. Ann. § 14-2-309(a)(v), to prove that less intrusive alternatives to termination of Appellant’s parental rights were impractical.


Holdings: The district court terminated Appellant’s parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v) which provides for termination when a child has been in foster care under the responsibility of the state of Wyoming for fifteen (15) of the most recent twenty-two (22) months, and a showing that the parent is unfit to have custody and control of the child. In the present action, Appellant does not dispute that the children have been in foster care for the requisite number of months. He asserts, however, that DFS did not prove by clear and convincing evidence that he was “unfit to have custody and control” of the children. The term “unfit” is not defined in the statute, but the court has have previously recognized that fitness includes the ability to meet the ongoing physical, mental and emotional needs of the child. Whether a parent is fit to have custody and control of a child is a decision that must be made within the context of a particular case and depends upon the situation and attributes of the specific parent and child. Here, the district court found Appellant unfit to have custody and control of the children based on several factors, including his criminal history, inability to care for the special needs of his children, and failure to participate in counseling or parenting education.

At trial, the district court observed that the Appellant had a prior child abuse conviction. Appellant asserts the district court erred by focusing on the previous child abuse conviction rather than his current fitness as a parent. Appellant does correctly state that the statute requires a finding of unfitness at the time of the termination proceedings. That does not mean, however, that the district court must ignore evidence of a parent’s previous unfitness. Appellant has three felony convictions. He also has a battery conviction and documented involvement in two domestic disputes. Appellant argues he has been rehabilitated following the child abuse conviction, but evidence demonstrates he refuses to take responsibility for the incident. Appellant’s attempt to minimize the event and his failure to take responsibility for his past abusive conduct was important and relevant evidence that the district court could properly take into account in determining Appellant’s current parental fitness. It is appropriate for a district court to consider a parent’s history and pattern of behavior over time in determining whether rights should be terminated.” There was no error in the district court’s consideration of this evidence. Additionally, the district court did not rely solely on Appellant’s criminal history in determining unfitness. It also found that Appellant was not fit to meet the specific physical, mental and emotional needs of the children. Both children have special needs. Appellant was offered counseling and training to help him understand and meet the special needs of his children, but he did not accept this help. At trial, he testified that the childcare providers and doctors did not understand the needs of his children. When asked about the condition of his children he testified that “they ain’t that fragile” and “nobody knows” their needs. The district court further determined that Appellant did not meet other requirements of the DFS case plan. He did not maintain steady employment or establish a suitable home for the children. When given the opportunity to visit the children more than once a week, Appellant declined, even though he was unemployed for the six months prior to the termination of his parental rights, and DFS offered vouchers to help him with travel expenses. Appellant rarely called the children at their foster home, though he was encouraged to call every night. He contacted the children’s teachers only twice during the period of time between his release from incarceration and the termination of his parental rights. He seldom met with his counselors. Thus, the district court’s decision is supported by clear and convincing evidence.


In evaluating whether parental rights were properly terminated under 14--309(a)(iii), DFS must prove it has attempted “less intrusive” alternatives as part of its “reasonable efforts” to rehabilitate the family. . However, when termination is sought pursuant to other subsections of Wyo. Stat. Ann. § 14-2-309, “reasonable efforts to rehabilitate the family” are not required. Appellant’s parental rights were terminated pursuant to Wyo. Stat. Ann. § 14-2-309(a)(v). Under this statutory subsection, DFS must prove that the children have been in foster care for fifteen of the most recent twenty-two months and that the parent is unfit to have custody and control of the children. DFS satisfied that burden by clear and convincing evidence.

Affirmed.


J. Burke delivered the opinion for the court.