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Legally Speaking


Issue: December, 2008
Author: Stacey L. Obrecht

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Current Termination of Parental Rights Statute: An Incentive to Avoid the Court System

In 2006, the Supreme Court issued an opinion in the case In the Interest of ANO: SLB v. JEO, 2006 WY 74, 136 P.3d 797 regarding Wyo. Stat. § 14-2-309(a)(i). This decision affects many custodial parents, particularly those with a prior decree giving them custody and ordering the noncustodial parent to pay child support. For years, a provision of the Wyoming Termination of Parental Rights statute was interpreted to allow for the termination of the rights of a parent who has neither seen, nor cared for or supported his or her child for over one year. In support of the court’s decision, the Supreme Court properly relied on statutory interpretation guidelines and prior precedent (In the Matter of Parental Rights of SCN and NAN, 659 P.2d 568, 573-74 (Wyo. 1983)). However, when read with other statutes, the result seems inconsistent and the likely original intent thwarted.

The Supreme Court, resting on prior precedent, determined the phrases “left in the care of another,” and “without provision for the child’s support,” were being misinterpreted and misapplied by many, including some district court judges. The Court ruled that if a court in a divorce decree or other child custody order gives one parent physical custody of the child and the second parent visitation, and if the second parent does not exercise his or her visitation rights, thereby completely removing him/herself from that child’s life, it is not leaving the child in the care of another, because the district court ordered the first parent to have physical custody. Likewise, if there is a support order in place, even if the parent is not paying the child support, it is sufficient to meet the provision for support language in the statute. Specifically, the Court stated:

The facts in this case indicate that the two minor children were placed in the custody of [mother] by the court that granted the divorce. The children were not left in [mother]'s care by [father]. Further, the same order that placed the children in [mother]'s custody also provided for their support by ordering [father] to make monthly support payments. In view of those facts, the fact that [father] failed to make all but four monthly support payments is not relevant here where the court could not get past the threshold question presented in the statute. [Father]'s failure to pay regularly would be relevant under an adoption-without-consent proceeding or in an action to compel payment, but not here where the children have been placed in one parent's custody and the action to terminate parental rights is against the non-custodial parent. To hold otherwise would ignore our rule of strict construction in these cases and would allow § 14-2-309(a)(i) to be used in a manner for which it was not intended.

We agree with the interpretation of the phrase “left in the care of another” and decline the invitation to overrule SCN. The phrase “left in the care of another” as used in § 14-2-309(a)(i) suggests an element of control or action on the part of the absent parent, an element that is not present when the parents divorce and the divorce court awards custody to one of them. In SCN, the child was not “left in the care of another” but was placed in the custody of one parent as a result of a custody determination in a divorce proceeding. Under these circumstances, the mother was unable to show clear and convincing evidence the child was “left in the care of another” as the provision requires. Thus, dismissal of the petition was proper.

The legislature appears to have concurred with this interpretation. When this Court interprets a statute and the legislature makes no material legislative change in the provision thereafter, the legislature is presumed to acquiesce in the Court's interpretation. Bridle Bit Ranch Co. v. Basin Elec. Power Co-op., 2005 WY 108, ¶ 22, 118 P.3d 996, 1008 (Wyo.2005). If this Court incorrectly interpreted the legislature's intent, “legislative action to clarify the statutes and correct the court's decision would seem a likely result.” Albertson's, Inc. v. City of Sheridan, 2001 WY 98 ¶ 21, 33 P.3d 161 (Wyo.2001). Although the legislature has amended § 14-2-309 at various times, it has not changed subsection (a)(i). Absent some indication to the contrary from the legislature, we presume the Court correctly applied the provision in SCN and we will not overrule the decision.”

The current statute, and this reading of it, does not take into consideration a non-custodial parent who willfully and intentionally decides to exit from his/her child’s life and pay no child support. In essence, many of these non-custodial parents choose not to exercise their rights to visitation and many choose not to pay child support. In many instances, these parents chose to have no contact whatsoever with the child. Based on this Supreme Court decision and the current statute, a custodial parent cannot terminate the parental rights of the absconding non-custodial parent. This unintentionally punishes a parent for using the court system to ensure custody and support, because if there is no court order, but still the same facts, a custodial parent could proceed to request the termination of the non-paying, non-visiting parent's parental rights. Therefore, in a divorce case where one of the parents has decided to check out and not spend time nor provide any support to his or her child, the parent caring for the child should proceed with a termination of parental rights case prior to seeking a divorce. Once the divorce is complete, the court will have left the child in the care of one of the parents and will have provided some provision for support from the noncustodial parent.

The Court stated it had to rule in this manner, not because it was in the best interest of justice or of the children, but because the plain language of the statute required such a holding, and specifically stated in its opinion that this statute would need to be amended by the Legislature to return to the status quo that judges and attorneys have been following for years. A change to this statute would be minor in terms of the statutory text amended, but will have a major impact for single parent families and children in Wyoming.

W.S. § 14-2-309(a)(i) currently reads:

(a) The parent-child legal relationship may be terminated if any one (1) or more of the following facts is established by clear and convincing evidence:

(i) The child has been left in the care of another person without provision for the child's support and without communication from the absent parent for a period of at least one (1) year. In making the above determination, the court may disregard occasional contributions, or incidental contacts and communications.

Compare this language with that of the Adoption Without Consent Statute, W.S. §1-22-110(a)(iii) and (iv), which reads that an adoption may proceed with the parent or parents’ consent if

(T)he court finds that the putative father or the nonconsenting parent or parents have:

(iii) Willfully abandoned or deserted the child; or

(iv) Willfully failed to contribute to the support of the child for a period of one (1) year immediately prior to the filing of the petition to adopt and has failed to bring the support obligation current within sixty (60) days after service of the petition to adopt.

A proposed amendment to W.S. § 14-2-309(a)(i) would change the statute to read:

(a) The parent-child legal relationship may be terminated if any one (1) or more of the following facts is established by clear and convincing evidence:

(i) The parent has willfully abandoned or deserted the child by failing to provide reasonable support, regular personal contact and meaningful communication. Failure of the parent to maintain this relationship without just cause for a period of 1 year shall constitute prima facie evidence of abandonment. In making the above determination, the court may disregard occasional contributions, or incidental contacts and communications;

Of the fifty states, there are 36 states that have statutes allowing termination of parental rights on the grounds that the parent has failed to maintain contact with the child. See Child Welfare Information Gateway at www.childwelfare.gov/systemwide/laws_policies/state/index.cfm?event=stateStatutes.processSearch. Provisions for terminating a parent’s rights vary state to state; however, several allow termination after no contact from the parent for six months, whereas Wyoming requires at least one year. By amending W.S. 14-2-309 (a)(i), single parents will be able to terminate the rights of the other parent if they can show that the missing parent has willfully left or abandoned the child, willfully not paid child support and willfully not engaged in any form of communication with the child for over one year.

As the statute currently reads and is interpreted by case law, if a parent is given primary custody and ordered to receive child support, that parent cannot terminate the non-custodial parent’s parental rights under this statute unless he or she proceeds with an adoption without consent. If the parent proceeds with an adoption without consent proceeding, the absent or non-paying parent receives fewer protections than he or she would in a termination of parental rights proceeding. An amendment to the termination of parental rights statute is necessary to avoid this inconsistent language within Wyoming’s statutes.

Stacey L. Obrecht received her Bachelor’s Degree in Sociology/Criminal Justice from the University of Northern Colorado, and a Juris Doctorate from the University of Wyoming College of Law. She is currently the Director of the Wyoming Guardians Ad Litem Program within the Wyoming Office of the Public Defender. She is also a member of the National Association of Counsel for Children, a board member of Prevent Child Abuse Wyoming and serves on many committees regarding children, women and Wyoming’s juvenile justice system.

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