Where is there a more sensitive place in the law than that area where courts must undertake to decide whether or not a child will be taken from its mother? We know of none. That is the issue in this appeal. This is a contest for custody of a child, X, between the child's natural mother, DS, and her husband, RS, on the one hand, and the State Department of Public Assistance and Social Services (sometimes referred to as D-PASS), on the other hand. In reversing the trial court's termination of parental rights, we will:
This case was commenced on April 3, 1978, in the District Court at Sheridan, Wyoming, when the county attorney petitioned the court to terminate the parental rights of appellants, DS and RS, with respect to three-year-old child X on the statutory ground of neglect. The petition also sought termination of DS's and RS's parental rights with respect to twin children Y and Z. While this appeal concerns only X, the treatment of the twins was admitted as evidence of the parental unfitness of DS and RS. We will treat sparingly with the issue of parental interplay between the appellants and children Y and Z, since the issue tends to border on the irrelevant to any questions properly before us.
X was born to DS when she was 15 or 16 years old and unmarried. RS
On April 13, 1978, temporary custody of the three children was awarded to the Sheridan County Department of Public Assistance and Social Services. Trial, initiated by the county attorney's petition to terminate parental rights, was had and, on July 6, 1978, the district court used language which appellees and the guardian ad litem argue had the effect of awarding permanent custody of the three children to D-PASS. However, this same order further provided that the court would allow a review of its decision within one year. No appeal was taken from this order.
In May of 1979, DS and RS moved the court for a review of its July 6, 1978, decision. In the hearing on the motion, DS and RS waived whatever rights they had to seek reconsideration of termination of parental rights with respect to Y and Z because they required medical and other special treatment which appellants felt they could not provide. The movants did seek, however, to prove that their situation had improved — that the State had not and could not show that X had been neglected and they they were fit to have custody of this child. The district court, having heard the evidence on these issues, ordered that the parental rights of DS and RS be finally terminated. This case comes to us on appeal from that decision.
Appellants DS and RS, as well as appellee-D-PASS, limit their statement of the issues to the question of whether or not the evidence justified the district court's termination of the parental rights of DS and RS and its refusal to modify that decision. X's guardian ad litem, who sides with D-PASS, raises two other issues which call for our attention: The guardian argues that the court should dismiss this appeal because service of the notice of appeal on the guardian ad litem was defective. The guardian also urges that the district court's 1978 order was a final order which terminated all parental rights as between X and his mother and RS, and, since there was no appeal from this order, there can be no issue of terminating parental rights properly before the court at this time.
SERVICE OF THE NOTICE OF APPEAL
Although the appellants timely filed a notice of appeal, the guardian ad litem was not served with this notice and did not learn of it until a week later. He has not, however, shown any prejudice to his handling of the appeal arising from his failure to receive timely notice. The guardian argues that under Rule 2.01, W.R.A.P.
Rule 1.02, W.R.A.P., says:
Rule 1.02 means that failure to timely file a notice of appeal is an incurable jurisdictional defect. However, jurisdiction of this court to the appeal itself is not obtained simply by filing a notice of appeal. Jurisdiction of the appeal, according to Rule 3.01, W.R.A.P., is obtained when the record on appeal is filed. Notions of elementary fairness, as well as our case law, require that
Reading the rule of the above case, as well as Rule 3.01, supra, in para materia with Rule 1.02, supra, we conclude that there are certain appellate obligations which must be discharged before this court acquires jurisdiction, but it does not follow that the tardy observance of all of these requirements will automatically result in dismissal of the appeal.
Although the First National Bank of Thermopolis opinion, supra, predates the adoption of the Wyoming Rules of Appellate Procedure and concerns an administrative appeal to the district court, its result is in accord with the above interpretation of Rule 1.02, supra, as the First National Bank of Thermopolis opinion relates to the failure to properly serve a party with a notice of appeal. In the bank case, this court chastised the appellant's counsel for failing to timely serve upon one of his opponents his petition to review the administrative proceedings. We indicated that the defective service could have been held fatal but declined to dismiss the appeal and, instead, held that the defective service was a good-faith mistake which had been cured. First National Bank of Thermopolis, supra, at pp. 50-51.
In the matter here for decision, we have noted that the guardian ad litem does not show any prejudice by reason of the fact that a week elapsed before receiving notice of the appeal. Appellants' counsel represents that he inadvertently failed to serve the guardian. In view of the lack of prejudice to the guardian ad litem, the relatively short delay between filing and serving him (cf., the delay of several months in First National Bank of Thermopolis, supra), and the apparent good faith of appellants' counsel, we will exercise our discretion to reach the merits of this important case. We do so with the admonition to all concerned that failure to serve notice of appeal upon all parties contemporaneously with the filing of the notice may, and probably will, in most cases, result in dismissal of the appeal.
EFFECT OF NOT APPEALING THE 1978 ORDER
In pertinent part, the July 6, 1978, order provided:
This writing is, on its face, internally contradictory. If the order is interpreted as having awarded "permanent care and custody"
If it were to be concluded that the 1978 order was a final order which permanently terminated parental rights and awarded custody to the State, then the case law of other jurisdictions strongly suggests that an appeal from a subsequent custody-modification hearing will not substitute for an appeal from the original custody proceedings.
The guardian argues that the second above-quoted paragraph of the 1978 order is without force and effect, in support of which he cites § 14-2-307(c), W.S. 1977, from the article on termination of parental rights. That subsection states:
We have previously held that the state has power to regulate the termination of parental rights in proper cases and upon valid grounds. Matter of C.M., Wyo., 556 P.2d 514, 517 (1976). It is within the legislature's power to enact a statute requiring that an order terminating parental rights be final and not subject to reconsideration within a year. However, we cannot agree with the guardian that § 14-2-307(c), supra, is controlling as we seek to interpret the trial judge's contradictory 1978 order. In this case, we must concern ourselves with what the trial judge did, not with what he should have done. This does not mean we approve of what the judge did.
The literal language of the order suggests that it is inconclusive — that it does not undertake to finally sever the parental relationship between the child and its mother. The guardian seemed to admit this where he said in oral argument to this court (Tape of argument, Side B at 95-97) that the language of the 1978 order allowing for reconsideration within a year "prevented [X's] adoption as a matter of fact." The guardian thus finds himself taking contradictory positions where, on the one hand, he concedes that the 1978 order was inconclusive so as to prevent adoption, while at the same time arguing that the order was conclusive
We conclude that the 1978 proceeding was in the nature of a temporary hearing and the order emanating therefrom must be considered as a temporary order. Taken in this context, it follows that that order did not intend that the parental rights of the appellants should be permanently terminated. We construe the 1978 order as interlocutory and one which effectively awarded temporary custody of the child to the State, while reserving to the court the right of final decision-making for a period of one year. Accordingly, the failure to appeal the 1978 order does not prevent the appellants from disputing the evidentiary basis of the final 1979 order.
Defining the Standard
The termination-of-parental-rights statutes under which this action was brought, §§ 14-2-301 to 14-2-307, W.S. 1977, provide in part:
However, § 14-2-306, W.S. 1977, provides:
At the outset, this presents us with a problem of statutory construction: How do we harmonize the "best interest" language of § 14-2-306(a) with the abandonment, abuse or neglect standards of § 14-2-306(b) and § 14-2-301? (Section 14-2-307(a) also contains best-interest language but is prefaced with the phrase, "upon petition of any parent... ." See fn. 5, supra.)
We believe that the best-interest language must be read in para materia with the abuse, neglect or abandonment standard. This means, for example, that if the State seeks to terminate parental rights because of neglect, the State must show that the interests of the child require termination of the parental rights in order to protect the child from neglect. It will not do for the State to fail to prove neglect but to argue that the natural parents, because of a low socio-economic standing, cannot provide the child with all the advantages that more affluent, better-educated foster parents could provide. This conclusion follows from a literal reading of § 14-2-301, supra. In addition, as discussed below, federal and state constitutional considerations would also mandate this conclusion.
However, we are still left with a difficult question. Because this case involves a challenge to the sufficiency of the evidence to support the trial judge's finding, we must resolve the question of what standard is used to determine if the natural parent has abused or neglected her child, so as to justify and require termination of parental rights in order to protect the child's interests.
This issue was before us in Matter of C.M., supra, at 556 P.2d 518; and see In re Shreve, Wyo., 432 P.2d 271 (1967). However, we did not, in those appeals, undertake to define the standard against which a claim of parental abuse or neglect will be examined. Because of the extremely delicate nature of parental-rights-termination matters, we seize upon this opportunity to establish, for bench and bar, guides and standards which will, hopefully, point the way in this and future cases.
In addition, we are helped in our task by a large body of state and federal constitutional law defining the interests individuals have in their family associations. The right to associate with one's immediate family is a fundamental liberty protected by the state and federal constitutions. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (integrity of the family unit protected by the due-process clause of the Fourteenth Amendment); and Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (implication that liberties guaranteed by the federal constitution are fundamental). See, also, State ex rel. Heller v. Miller, 61 Ohio St. 6, 399 N.E.2d 66 (1980). Analysis of the Wyoming Constitution and case law also leads to the conclusion that the right to associate with one's family is a fundamental liberty. Article 1, Sections 2, 6, 7 and 36, Wyoming Constitution; Washakie County School District Number One v. Herschler, Wyo., 606 P.2d 310 (1980); Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976); and In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862 (1948).
In analyzing legislative classifications, we have held that if a fundamental liberty interest is infringed the classification will be subject to strict scrutiny. Washakie County School District Number One, supra. See, also, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The constitutionality of the parental-rights-termination statutes is not in issue in this case and the two cases just cited are, therefore, not strictly applicable. However, it appears to us that the same considerations which require strict scrutiny of the statute require strict scrutiny of the statute's application. In other words, the trial judge trying a parental-rights-termination case must strictly scrutinize a claim of abuse or neglect or abandonment before terminating parental rights (a fundamental liberty). The trial judge is not free to terminate parental rights merely because the State or other petitioner shows that it is more probable than not that the natural parent is abusing or neglecting the child.
We have not found support in the case law for a standard cast in terms of "strict scrutiny." However, where courts have undertaken to terminate the parent-child relationship, the scrutiny has, to say the least, in fact been strict.
In Matter of Adoption of Voss, supra, and In re Adoption of Strauser, supra, we were called upon to determine if, as a matter of law, the natural father could be said to have abandoned his child or children. In Voss, we said:
In In re Adoption of Strauser, supra, we held that the welfare of the child (his best interests) is a question which should not be reached until parental abandonment is actually proved. 196 P.2d at 868.
Similarly, the United States Supreme Court recently observed:
See, also, Linn v. Linn, Neb., 286 N.W.2d 765 (1980).
It may be that in matters such as this, lawyers, judges, parents — all of us — should digress from the ordinary course of things to contemplate how deeply seated the child-parent relationship is in the warp and woof of the American fabric. In this matter, where the law must decide whether a child will be separated from his mother, we have looked to the Declaration of Independence for guidance. We find the following familiar language to be helpful:
While no complete listing of the "unalienable rights" endowed upon us can be easily defined — it is not, we suggest, too fantastic to assume that the rearing of our children might be one example of the pursuit of happiness that the founding fathers envisioned. If we accept this hypothesis, then it becomes important to recognize that the rights described in both the state and federal constitutions were formulated to protect the Declaration of Independence. This surely adds significance to the strict-scrutiny concept in matters affecting the rights of parents to rear their children.
In view of the above authorities and reasoning, we hold that a court may not terminate parental rights because of abuse or neglect unless the abuse or neglect renders the parent unfit in the context that such abuse or neglect poses a serious danger to the child's physical or mental well-being, i.e., clearly detrimental to the child. Thus, for example, punishment which may seem severe but which does not harm, is not such abuse as will suffice under § 14-2-301 to terminate parental rights. Similarly, slovenliness in keeping a young child clean or his home in good order may offend many of us and may, by some, be characterized as neglect, but is not such neglect — assuming no serious health effect or risk — as will justify termination of parental rights.
We admonish that the burden of proving neglect or abuse is upon him who seeks to take the child from the parent. We emphasize that the trial court and the appellate court will strictly scrutinize claims that a natural parent is unfit because of abuse or neglect. This means that the court's duty to protect the child will be balanced against its duty to protect democratic values. It means that termination of parental rights cannot be ordered on the grounds of abuse or neglect unless the showing is clear and unequivocal that the child's health — mental or physical — and/or his social or educational well-being has actually been placed in jeopardy through the neglect or abuse by the parent.
The Facts of This Case
In reviewing the facts of this case to ascertain if the standards above discussed have been met, we do so with all of the applicable appellate directives in mind, which include these rules: We will
A D-PASS social worker who saw X on several occasions when he was with his mother at the D-PASS office testified that sometimes X was clean; sometimes there was dirt around his face and hands and his clothes were not always clean. This witness visited the home and found it in disarray and smelly because of stacks of waste that had not been removed. On another occasion, this witness found the disarray to be creating a fire hazard. A later visit to the home by this witness led to the conclusion that it had been cleaned up. He testified that the twins were soiled and there was matter in their eyes, milk on their faces, and their hands had dirt underneath the fingernails. This witness said that after the twins were moved to a foster home they were cleaner. X had diarrhea, but this cleared up in the foster home. X was happy, more responsive, and was toilet trained while in the foster home. The witness did not know what caused X's unresponsiveness. The mother, he said, did not talk a lot to her children.
Another witness, an employee of D-PASS, saw X at the D-PASS office with his grandmother. He seemed more withdrawn after the birth of the twins. She did not observe him interacting with other children or elders — he did not talk as well as he should for his age. After moving to a foster home, X seemed cleaner, happier and more verbal. The improvement that this witness observed in his foster home could have been due to the removal from his life of rival siblings. She testified that the mother was resistant about placing and keeping X in a day-care center.
Another witness, an employee of D-PASS, testified that the mother did not like the social worker and was reluctant to accept help. She confirmed other witnesses' opinions that the house was unkept. On one occasion when she visited, the mother was in bed; X had the flu and was with his grandmother. She observed the boy spoke poorly and observed a lack of interaction between the boy and his mother. She had not recommended a speech therapist to X's mother.
The State called a pediatrician who had treated X for respiratory infection, gastroenteritis, and stomach flu. He testified that X had not been given all of the recommended childhood immunizations but did not know if X was caught up. He said the mother sometimes kept the children's appointments — sometimes did not — and sometimes called without an appointment. He observed the type of bruises children commonly get but none that he would characterize as having been inflicted through punishment. He said the mother seemed "quite slow" and he had, for this reason, gone over the twins' medication schedule several times with her. The doctor testified that X was physically normal and his withdrawal after the birth of the twins could be a common jealous reaction. He had observed nothing to indicate that either of the appellants was unfit to care for X.
At one juncture, the doctor was asked, and he answered, as follows:
Another D-PASS witness had attempted many visits to the home and first found the
A Sheridan County nurse testified that she met DS when X's maternal grandmother was undertaking much of X's care — she was concerned that X was not receiving normal immunization shots — X's speech concerned her and X had a toilet-training problem. X was given a developmental screening test in Denver when he was three years old and tested well, except that his speech was deficient. She observed that X was closer to the grandmother than he was to his mother. The mother did not seem motivated to give medication to the twins on time. The weeks when the twins first arrived were difficult for DS because it was then that her mother was in the hospital and she had all those responsibilities come to her at once. The nurse was not sure that baby bottles were being properly sterilized and DS was observed transferring bottles from baby to baby.
The nurse testified that both DS and her mother told her that DS's husband, RS, beat or spanked X when he messed his pants. (Up until this point, all the other witnesses had disclaimed knowledge of any beatings.) Asked about the term "beating," the nurse replied, "I must assume they meant spanking because [X] showed no evidence of being abused physically."
The next witness was LT, X's foster parent at the time of the 1978 hearing. X was shy upon entering the LT home and "seemed like an intimidated child." His diarrhea cleared up within a week after he was taken off milk and milk products. Spanking wasn't effective in toilet training so other methods were tried and toilet training was accomplished. During his stay in the foster home, X became more affectionate. His speech improved. LT thought it odd that the child didn't cry, even when being spanked. He seldom talked about his mother and associated seeing his grandparents with being told that he would visit his folks.
BW, DS's mother, was called as a witness for the State. She provided much of the chronology of X's upbringing described earlier. She answered, "Yes" to the following question:
In describing what she did for X, DS's mother said:
DS's mother also stated that DS's husband hit X once with a belt to discipline him for going too close to a creek. She described the hit as "a love pat ... It wasn't very hard."
DS's mother also testified that X had called her "mom" for a period but was now calling her "grandma."
Asked about her care of the child during DS's first marriage, DS's mother stated that DS had not abandoned the child and stated, "I wanted her marriage to work first before she took [X], and make sure that everything was going to be all right before involving a child into the marriage."
A speech pathologist of the Sheridan County Day Care Center was called as a witness by the State. She testified that X tested somewhat behind the norm on his expressive skills. She stated, "We would guess that he needs to be talked to more. He needs to be read to. He needs to be challenged to think." On cross-examination, the witness testified that in the majority of children the expressive skills lag behind the receptive skills. (She had previously testified that X's auditory receptive skills were normal.)
The State and guardian also attach significance to the fact that DS testified that she did not give X any gifts through D-PASS, although D-PASS had given her this opportunity. However, DS also testified that her relationship with D-PASS was quite strained after the 1978 hearing.
Accepting the State's evidence in its entirety, we are unable to say that the State has established abuse or neglect sufficient to show that DS is an unfit parent. We are disturbed that DS delegated a great deal of her parental duties to her mother. However, we think it appropriate to quote from Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 504-505, 97 S.Ct. 1932, 1938-39, 52 L.Ed.2d 531 (1977):
Grandparents traditionally have often had important roles in rearing their grandchildren. Just because a grandparent assumes a dominant role in rearing a child does not by itself establish the unfitness of a parent or the State's right to terminate the parental rights.
We recognize that extreme sloppiness in keeping house can create serious fire and disease risks. However, the State has not demonstrated that sanitary and fire risks are a customary condition in the natural mother's household.
The evidence of DS's failure to properly administer medication to the twins is disturbing in view of the twins' critical need for the medication. However, this appeal concerns DS's fitness to care for a healthy child. DS's refusal to cooperate with social workers is evidence of the State's inability to correct problems without obtaining custody of X;
It would, indeed, be a sad commentary upon the law if it were unable to come to
Under the standards established herein, we must conclude that as a matter of law neither abuse nor neglect has been established. The judgment of the trial court is reversed and remanded for issuance of an order restoring custody of X to DS.
" Even assuming that a change in circumstances is shown, undue relitigation of the same factual issues will be minimized by the exclusion of irrelevant evidence from the distant past and by the application of the doctrine of res judicata to decided controversy. Where, for example, the original decree contains an express finding of fact of child abuse by the mother, the truth of this finding could not be re-litigated."
However, in fairness to the trial judge, we should point out that this apparent legislative directive is somewhat muddied by language in § 14-2-307(a), W.S. 1977, which begins with the phrase, "Upon the petition of any parent ..." (Emphasis supplied). Section 14-2-304(a), W.S. 1977, provides that a proceeding to terminate parental rights can be commenced by the county attorney or any interested person. In its original form, Ch. 169, 1955 S.L. of Wyoming, the section providing for conclusiveness of an order (§ 6), is distinct from § 5, which provides, "Upon the application of any parent ...," and § 2, which allows the county attorney or any interested person to commence the action.