Monday, August 22, 2011

Summary 2011 WY 119

Summary of Decision August 22, 2011

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

Citation: 2011 WY 119

Docket Number: S-10-0254


Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Respondent): Gregory L. Winn, Laramie, Wyoming

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

Date of Decision: August 22, 2011

Facts: Appellant appeals from the district court’s order terminating her parental rights. She claims the State of Wyoming, Department of Family Services (DFS) failed to present clear and convincing evidence that it made reasonable efforts to rehabilitate the family, the children’s health and safety would be seriously jeopardized by returning the children to her, or that she was unfit to have care and custody of the children.

Issues: Whether DFS proved, by clear and convincing evidence that Appellant was an unfit parent. Whether DFS proved, by clear and convincing evidence that it made reasonable efforts to rehabilitate the family as required by Wyo. Stat. 14-2-309(a)(iii). Whether DFS proved, by clear and convincing evidence that the children’s health and safety would be seriously jeopardized if they returned to Appellant.

Holdings: Under Wyo. Stat. 14-2-309(a)(iii) DFS is charged with proving three elements in order to justify a termination action: (1) abusive treatment or neglect by the parent; (2) unsuccessful [reasonable] 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 challenge the finding of neglect on appeal. Appellant does challenge the district court’s finding that clear and convincing evidence showed DFS provided reasonable efforts to rehabilitate her.

The record reflects that DFS prepared two family service plans for Appellant. The plans included provisions for Appellant to obtain and maintain sobriety, including substance abuse assessment, treatment and testing to monitor her progress. DFS assisted her with obtaining the assessment and making arrangements for intensive outpatient treatment. Although Appellant completed the assessment, she did not complete her intensive outpatient program and was terminated, twice. In addition, DFS attempted to help her obtain inpatient treatment. Further, DFS entered into a contract with a drug testing service for Appellant to undergo the required testing, but she appeared for testing only occasionally. The family service plans provided for Appellant to complete parenting classes and domestic violence counseling. She did not, however, avail herself of those opportunities. In addition, DFS provided other services to the children and Appellant, including multidisciplinary team (MDT) meetings, foster care, counseling, and supervised visitation.

Appellant challenges the reasonableness of DFS’s efforts by stating that DFS did not maintain the drug testing contract, did not tell her about the children’s school and medical appointments, did not hold an MDT meeting for over a year, and did not inspect her house to see the work she had done to make it suitable for the children.

It was reasonable for DFS not to renew the drug testing contract considering Appellant appeared for testing so infrequently. An employee of the drug testing service testified that Appellant could have made her own arrangements for drug testing even after the contract was terminated, but did not. There was evidence that DFS did not always provide her with information about the children’s school and medical appointments and it failed to hold an MDT meeting for over a year. Even if it is assumed that DFS could have done more in those respects, its overall efforts were not unreasonable. Appellant apparently did not request that the MDT be convened and although she had the opportunity to meet with at least some of the team members at court hearings she did not attend the hearings. The DFS case worker testified that, had Appellant complied with the other parts of her family service plan, DFS would have inspected her home when it started the reunification process. Until the time when actual family reunification was drawing closer, there was no reason to inspect her home. Under these circumstances, the district court properly concluded that DFS presented clear and convincing evidence it made reasonable efforts to reunite her with the children.

Appellant makes an additional argument regarding DFS’s efforts at reunifying her with the children. She claims DFS did not show that it attempted means less intrusive than termination of parental rights. In particular, she asserts DFS should have instituted a guardianship proceeding instead of terminating her parental rights. The state is required to use the least intrusive means to accomplish the goal of protecting the children. Appellant argues that DFS was required to pursue guardianship because it was less intrusive on her fundamental right to family association than termination of her parental rights. It has never been determined whether guardianship is a less intrusive alternative to termination, and it is unnecessary to resolve the issue in this action because it is clear that DFS did, at one point, pursue a guardianship with relatives. That never came to fruition because the relatives’ biological daughter had trouble adapting to having the foster children in their home. Nevertheless, it is clear that the guardianship option was considered and pursued. Appellant does not direct us to any evidence that she specifically requested guardianship be considered after that. Under these circumstances, DFS did not fail to pursue less intrusive means of protecting the children.

The last element Wyo. Stat. 14-2-309(a)(iii) requires a clear and convincing showing that the health and safety of the children would be seriously jeopardized by returning them to Appellant. The reason the children were removed from the home in the first place involved the parents’ use of illegal drugs, including marijuana and methamphetamine, and the fact that drugs and paraphernalia were found in the house within reach of the children. Thus, the family service plans focused on addressing the drug issue. Appellant was directed to demonstrate that she was not using illegal drugs by submitting to testing six times per week. Over a several month period, she only occasionally showed up for testing, many of which were positive for illegal drug use. Appellant testified that she had not used drugs since the end of May 2009, but she did not submit any objective evidence of that. In addition, Appellant was directed to undergo treatment, both intensive outpatient and inpatient. She was terminated twice from the intensive outpatient program for failing to attend sessions. Although she eventually went to inpatient treatment, she did not do so until June 2009, many months after the family service plan required her to attend. Even then, she did not fully engage in the program and failed to complete it. Her discharge summary stated that her prognosis was “extremely poor due to her lack of willingness to accept responsibility and practice the recovery skills needed to maintain a long-term, quality sobriety.” There was no evidence that she entered any type of treatment program after her unsuccessful stint at inpatient treatment.

Appellant argues that a parent’s use of illegal drugs is not a sufficient basis for terminating parental rights. However, the children were removed because the parents’ drug use presented a health and safety concern for the children. There was an obvious connection between the welfare of the children and Appellant’s drug use. Wyoming law specifically recognizes the danger to children from illegal drugs, especially methamphetamine, which was Appellant’s drug of choice. Wyo. Stat. 6-4-405 (2011) makes it a crime to allow children to remain in a dwelling where methamphetamine is possessed. Given the prevalence of methamphetamine (and other drugs) in the home when the children were taken into custody and Appellant’s unwillingness to properly address her substance abuse problem, her drug use was an appropriate basis for DFS intervention and termination of her parental rights. All in all, the record demonstrates, especially with regard to Appellant’s use and dependency on illegal drugs, nothing had changed from the time the children were removed from the home in March 2008 until the hearing in May 2010. While she claimed that she was not using illegal substances, the district court doubted her veracity about her drug use and there was absolutely no objective evidence in the record to support her claim. Moreover, and of equal importance, she had not successfully completed treatment to address the underlying issues that led to her substance abuse problem in the first place. The record, therefore, supports the district court’s conclusion that DFS proved by clear and convincing evidence the children’s health and safety would be seriously jeopardized by returning to Appellant.

Although termination was justified under Wyo. Stat.14-2-309(a)(iii), there is an alternative method for termination under Wyo. Stat, 14-2-309(a)(v). Under this section DFS was required to prove two elements: the children had been in foster care under the State’s responsibility for at least fifteen of the most recent twenty-two months; and the Appellant was unfit to have custody and control of them. There is no dispute regarding the first element. At the time of the hearing, the children had been in foster care under the State’s responsibility for nearly twenty-six months. Finding Appellant was unfit to have custody and control of the children, the district court correctly stated that the same factors which supported a finding that the children’s health and safety would be seriously jeopardized if they were returned to Appellant supported a finding that she was unfit. However, the district court also found that one child has a serious medical condition that requires close monitoring and failure to meet her special needs would place her at greater risk. At the time DFS took the children into custody, their weights were low for their ages. While they were in foster care their percentiles raised significantly, indicating that their environment played a strong role in their overall health conditions. Given that history and Appellant’s drug use, it was understandable that the district court would be concerned that the medical condition may not be sufficiently monitored or treated by Appellant. The district court properly found there was clear and convincing evidence that Appellant’s parental rights should be also terminated under §14-2-309(a)(v).


C.J. Kite delivered the opinion for the court.

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