In the Matter of the Termination of Parental Rights To: Tjh, Minor Child, Christine Dawn Herden v. State of Wyoming, Ex Rel. Department of Family Services ( 2021 )

IN THE SUPREME COURT, STATE OF WYOMING
2021 WY 56APRIL TERM, A.D. 2021
April 27, 2021
IN THE MATTER OF THE
TERMINATION OF PARENTAL
RIGHTS TO: TJH, minor child,
CHRISTINE DAWN HERDEN,
Appellant
(Respondent),
S-20-0180
v.
STATE OF WYOMING, ex rel.
DEPARTMENT OF FAMILY
SERVICES,
Appellee
(Petitioner).
Appeal from the District Court of Natrona County
The Honorable Daniel L. Forgey, Judge
Representing Appellant:
Timothy C. Cotton, CottonLegal, Casper, Wyoming.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney
General; Jill E. Kucera, Senior Assistant Attorney General; Allison E. Connell,
Assistant Attorney General. Argument by Ms. Connell.
Guardian ad Litem:
Joseph R. Belcher, Director & Chief Trial & Appellate Counsel, and Kimberly A.
Skoutary-Johnson, Wyoming Guardian ad Litem Program. No argument.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
KAUTZ, J., delivers the opinion of the Court; DAVIS, C.J., files a specially concurring
opinion, in which FOX, J., joins.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] The Wyoming Department of Family Services (DFS) filed a petition to terminate
Christine (Cristy) Dawn Herden’s (Mother) parental rights to TJH (Child). Because
Mother failed to timely respond, the clerk of the district court entered default against her.
After a default hearing, the district court terminated her parental rights. Mother claims the
district court violated her right to due process by holding the default hearing by video
conference and by refusing to allow her to present evidence on the best interests of Child.
We affirm.
ISSUES
[¶2] The issues on appeal are:
1. Did the district court violate Mother’s due process rights when it held the
evidentiary default hearing in the parental rights termination action by
video conference?
2. Did the district court violate Mother’s due process rights when it refused
to allow her to present evidence regarding Child’s best interests during
the default hearing?
FACTS
[¶3] On November 18, 2019, the State filed a petition to terminate Mother’s and the
unknown father’s parental rights to Child.1 The State asserted Mother’s parental rights
should be terminated under Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v) (LexisNexis 2019).2
1
Because the unknown father did not appear after being served by publication, the district court terminated
his parental rights following a default hearing. There is no issue in this appeal regarding that ruling.
2
Section 14-2-309(a)(iii) and (v) state:
(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: . . .
(iii) The child has been abused or neglected by the parent and reasonable
efforts by an authorized agency or mental health professional have been unsuccessful in
rehabilitating the family or the family has refused rehabilitative treatment, and it is shown
that the child’s health and safety would be seriously jeopardized by remaining with or
returning to the parent; . . . [or]
(v) The 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[.]
1
According to the petition, Child was born to Mother and an unknown father in June 2018.
At the time of his birth, Child tested positive for methamphetamine and Mother admitted
she was a heavy drug user. Consequently, a physician took protective custody of Child
and the State filed a neglect petition against Mother. At a shelter care hearing held two
days after his birth, Child was placed in DFS legal custody, where he has remained. DFS
developed a case plan which, among other things, required Mother to complete substance
abuse treatment, sustain sobriety, and cease criminal activity. Although Mother attended
some supervised visits with Child, she never made enough progress on her case plan for
DFS to allow her unsupervised visitation.
[¶4] On January 2, 2020, Mother was served with the termination petition and a
summons while incarcerated at the Natrona County Detention Center. She did not respond
to the petition, and the clerk of the district court entered a default against her on February
27, 2020. The State requested a default hearing, which was set for May 11, 2020.
[¶5] In March 2020, Mother filed a handwritten request that the entry of default against
her be set aside, an answer, and a request for the district court to appoint counsel to
represent her. Appointed counsel filed a supplemental motion, claiming the default should
be set aside for good cause in accordance with Wyoming Rule of Civil Procedure
(W.R.C.P.) 55(c). The district court combined the hearing on Mother’s motion to set aside
the entry of default with the previously set default hearing.
[¶6] Mother agreed to the district court’s plan to hold the combined hearing by video
conference rather than in person because of the COVID-19 pandemic. She later filed a
motion to continue the evidentiary default hearing, stating she mistakenly believed the
setting for the video conference hearing pertained only to her motion to set aside the entry
of default, not the evidentiary hearing. Mother, who was still incarcerated, claimed
conducting the evidentiary hearing by video, rather than in person, would violate her right
to due process. Specifically, she asserted a video conference would deprive her of the
ability to effectively cross-examine the State’s witnesses and make it impossible for her to
communicate with counsel during the hearing. Mother also argued a continuance was
necessary to allow her to present evidence of Child’s best interests even though she was in
default.
[¶7] The district court began the May 11, 2020, hearing by considering Mother’s motion
to set aside the entry of default under W.R.C.P. 55(c). It denied the motion, concluding
Mother had not established good cause to justify setting aside the entry of default. The
court turned next to Mother’s motion to continue the evidentiary default hearing. It denied
the motion to continue and limited Mother’s participation at the default hearing to giving
an opening statement (which she waived), cross-examining the State’s witnesses, objecting
to the State’s evidence, and making a closing argument. She was not allowed to present
her own evidence.
2
[¶8] During the evidentiary default hearing, the State presented only one witness, the
DFS caseworker who worked to reunite Mother and Child. The caseworker testified about
the statutory grounds for termination of Mother’s parental rights and Child’s best interests.
At the conclusion of the hearing, the district court granted the State’s petition to terminate
Mother’s parental rights to Child. It ruled the State had proven by clear and convincing
evidence the statutory bases for termination under § 14-2-309(a)(iii) and (v) and it was in
Child’s best interests to terminate Mother’s parental rights. Mother filed a timely notice
of appeal.
DISCUSSION
[¶9] Mother claims the district court violated her right to due process by holding the
evidentiary default hearing through video conference rather than in person and by not
giving her a meaningful chance to be heard regarding Child’s best interests. The
government may not deprive any person of “life, liberty, or property, without due process
of law.” U.S. Const. amends. V; XIV, § 1. See also, Wyo. Const. art. 1, § 6. “The liberty
of a parent to the care, custody and control of [her] child is a fundamental right that resides
first in the parent.” Wyo. Stat. Ann. § 14-2-206(a) (LexisNexis 2019). See also, RA v.
State (In re AA), 2021 WY 18, ¶ 11, 479 P.3d 1252, 1256 (Wyo. 2021) (“[t]he right of
familial association is fundamental”) (citing Clark v. Dep’t of Family Servs. (In re
GGMC), 2020 WY 50, ¶ 22, 460 P.3d 1138, 1145 (Wyo. 2020); JLW v. CAB (In re WDW),
2010 WY 9, ¶ 17, 224 P.3d 14, 19 (Wyo. 2010); and TF v. State, Dep’t of Family Servs.
(In re Adoption of CF), 2005 WY 118, ¶ 26, 120 P.3d 992, 1002 (Wyo. 2005)).
[¶10] “Procedural due process requires the government to provide a parent with
reasonable notice and a meaningful opportunity to be heard before interfering with [her]
fundamental right to familial association.” RA, ¶ 15, 479 P.3d at 1257 (citing JA v. State,
Dep’t of Family Servs. (In re DSB), 2008 WY 15, ¶ 27, 176 P.3d 633, 639 (Wyo. 2008); DH
v. Dep’t of Family Servs. (In re “H” Children), 2003 WY 155, ¶ 38, 79 P.3d 997, 1008
(Wyo. 2003)). The required process varies depending upon “the nature of the proceeding
and the interests involved.” KC v. State (In re GC), 2015 WY 73, ¶ 32, 351 P.3d 236, 245
(Wyo. 2015). “The question of whether an individual was afforded due process is one of
law subject to de novo review.” RA, ¶ 9, 479 P.3d at 1256 (citing ST v. State (In re
DT), 2017 WY 36, ¶ 23, 391 P.3d 1136, 1143 (Wyo. 2017); and Verheydt v. Verheydt, 2013
WY 25, ¶ 20, 295 P.3d 1245, 1250 (Wyo. 2013)).
Default Hearing by Video Conference
[¶11] Although her argument is not completely clear, Mother indicates the video
conference was insufficient to protect her due process right to be heard because she was
unable to effectively cross-examine the DFS caseworker and could not communicate with
her attorney during the hearing. Mother frames the issue as one of due process; however,
the bulk of her argument is based upon the right of confrontation under the Sixth
3
Amendment to the United States Constitution. The relevant portion of the Sixth
Amendment states: “In all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” U.S. Const. amend. VI. As Mother
explains, we have recognized “a defendant’s inability to meaningfully cross-examine a
witness may violate his right of confrontation.” Tamblyn v. State, 2020 WY 76, ¶ 50, 465
P.3d 440, 453 (Wyo. 2020) (citing In Interest of CB, 749 P.2d 267, 271 (Wyo. 1988)). She
also quotes the following passage from Bush v. State, 2008 WY 108, ¶ 49, 193 P.3d 203,
214-15 (Wyo. 2008):
The Sixth Amendment protects the right of an accused
to confront the witnesses against him. Generally, this means
witnesses who testify against a defendant in a criminal
proceeding must appear at trial. The right, however, is not
absolute and may be compromised under limited
circumstances. . . . Accordingly, the presentation of witness
testimony by video teleconference is not permissible unless: 1)
it is necessary to further an important public policy, and 2) the
reliability of the testimony is otherwise assured.
(Citation omitted).
[¶12] Mother’s argument regarding the Sixth Amendment’s Confrontation Clause is
misguided. Under the clear language of the Confrontation Clause, criminal defendants are
afforded the right to confront the witnesses against them. See also, Maryland v. Craig, 497
U.S. 836, 844, 110 S.Ct. 3157, 3162-63, 111 L.Ed.2d 666 (1990) (reiterating the right to
confrontation belongs to criminal defendants); Bush, ¶ 49, 193 P.3d at 214 (generally
“witnesses who testify against a defendant in a criminal proceeding must appear at trial”).
A proceeding to terminate parental rights is not a criminal action. CLB v. State, Dep’t of
Family Servs. (In re HLL), 2016 WY 43, ¶ 23, 372 P.3d 185, 190 (Wyo. 2016) (“We are
here involved with a civil matter—namely, the termination of parental rights and this
litigation may not be interpreted as a ‘criminal case[.]’” (quoting LP v. Natrona Cnty. Dep’t
of Pub. Assistance & Soc. Servs. (In re GP), 679 P.2d 976, 985 (Wyo. 1984) (some
quotation marks omitted)). Therefore, the Confrontation Clause does not apply in this case.
[¶13] Other than her Confrontation Clause claim, Mother provides no cogent argument or
citation to pertinent legal authority establishing the district court violated her right to due
process by conducting the termination hearing by video conference. We could, therefore,
decline to consider the matter. See Willey v. Willey, 2016 WY 116, ¶ 30, 385 P.3d 290,
299-300 (Wyo. 2016) (“‘We need not consider issues which are not supported by proper
citation of authority and cogent argument or which are not clearly defined.’”) (quoting
Hamburg v. Heilbrun, 889 P.2d 967, 968 (Wyo. 1995)). Nevertheless, we will address the
adequacy of the video conference procedure but note such review is difficult because we
must anticipate the arguments Mother might have made, but did not.
4
[¶14] In FH v. State (In re ECH), 2018 WY 83, ¶ 46, 423 P.3d 295, 308 (Wyo. 2018), we
stated a “majority of states have held that the extent of an incarcerated parent’s right to be
present at a termination hearing should be determined in the discretion of the trial court
while finding that representation by counsel and the opportunity to appear [in some form]
are the two key components[.]” Id. (citations and quotation marks omitted) (brackets in
original). In re ECH clearly indicates an incarcerated parent’s due process right to be heard
may be protected by allowing appearance at termination hearings by some means other
than in person. See also, In re Child of Raul R., 209 A.3d 757, 761-62 (Me. 2019) (allowing
participation by an incarcerated parent at a termination hearing “in person, by telephone or
video, through deposition, or by other means that will reasonably ensure an opportunity for
the parent to be meaningfully involved in the hearing” (citation omitted)); In re Hill, No.
349583, 2020 WL 506685, *2 (Mich. Ct. App. 2020) (unpublished) (the court did not
violate the incarcerated father’s due process rights when it required him to appear at the
termination hearing by telephone rather than in person or by video); State v. W.V. (In re
LV), 482 N.W.2d 250, 259 (Neb. 1992) (incarcerated parent’s participation in termination
hearing by telephone satisfied due process); Latham v. State (In re KNL), 154 P.3d 1276,
1280 (Okla. Civ. App. 2007) (telephone and video technology allow incarcerated parents
to actively participate in termination trials).
[¶15] We recognize that most cases concerning an incarcerated parent’s right to appear at
a termination of parental rights hearing involve the parent appearing remotely, while
defense counsel is in the courtroom. See, e.g., In re ECH, ¶ 42, 423 P.3d at 307 (the
incarcerated parent appeared by telephone, while his attorney was in the courtroom); In re
Hill, 2020 WL 506685, *2 (the incarcerated parent appeared by telephone at the hearing,
and defense counsel was present in the courtroom); In re KNL, 154 P.3d at 1279-80 (parent,
who was incarcerated in another state, testified by deposition and court-appointed counsel
represented him personally at the trial). Here, the COVID 19 pandemic resulted in the
hearing participants, including Mother’s counsel, appearing separately by video. We will,
therefore, determine whether the district court violated Mother’s due process rights by
conducting the hearing entirely through video conference rather than in person.
[¶16] The United States Supreme Court set out the test for determining whether a
particular procedure violates the litigant’s due process rights in Mathews v. Eldridge, 424
U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). See BSC v. Natrona Cnty.
Dep’t of Family Servs. (In re CC), 2004 WY 167, ¶ 17, 102 P.3d 890, 895 (Wyo. 2004)
(when there is no precedent mandating a certain procedure, “the factors identified in
[Mathews] must be evaluated in determining whether due process [was given] in a
particular case”). Under the Mathews test, we balance several factors to determine whether
the litigant received due process: “(1) the nature of ‘the private interest . . . affected,’ (2)
the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without
‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any
countervailing interest in not providing ‘additional or substitute procedural
5
requirement[s].’” Turner v. Rogers, 564 U.S. 431, 444-45, 131 S.Ct. 2507, 2517-18, 180
L.Ed.2d 452 (2011) (quoting Mathews, 424 U.S. at 335, 96 S.Ct. at 903). Stated more
plainly, “[t]hree elements should be taken into account: ‘the private interests at stake, the
government’s interest, and the risk that the procedures used will lead to erroneous
decisions.’” In re CC, ¶ 17, 102 P.3d at 895 (quoting Lassiter v. Dep’t of Social Servs. of
Durham Cnty., N.C., 452 U.S. 18, 26, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981)). See
also, State, Dep’t of Family Servs. v. Currier, 2013 WY 16, ¶ 13, 295 P.3d 837, 840-41
(Wyo. 2013) (quoting Turner and Mathews); JJF v. State, 2006 WY 41, ¶ 10, 132 P.3d
170, 174 (Wyo. 2006) (separating the Mathews test into four factors: “(1) the private
interest affected by the official action; (2) the risk of the erroneous deprivation of such
interest through the procedures used; (3) the probable value of any alternative procedures;
and (4) the government’s interest”). The overall goal of the Mathews test is to determine
“what specific safeguards the Constitution’s Due Process Clause requires in order to make
a civil proceeding fundamentally fair.” Currier, ¶ 13, 295 P.3d at 840-41 (citation omitted).
[¶17] Starting with the first factor – the private interests at stake – the United States
Supreme Court has ruled parents have a strong personal stake in termination of parental
rights actions because they risk suffering “a unique kind of deprivation.” Lassiter, 452
U.S. at 27, 101 S.Ct. at 2160. See also, Santosky v. Kramer, 455 U.S. 745, 758-59, 102
S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (citing Lassiter regarding the strength of the
parent’s interest in a termination proceeding); In re CC, ¶ 18, 102 P.3d at 895 (same). “A
parent’s interest in the accuracy and justice of the decision to terminate his or her parental
status is, therefore[,] a commanding one.” Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160
(footnote omitted). The parent, however, is not the only party with a private interest at
stake in a termination case. The child also has a significant interest in the accuracy and
justice of the decision, and in the timeliness of a decision. See generally, CL v. Wyo. Dep’t
of Family Servs. (In re AD), 2007 WY 23, ¶¶ 31-32, 151 P.3d 1102, 1109-10 (Wyo. 2007)
(children have the right to obtain stability and permanency in their family relationships
within a reasonable amount of time). Although the JFF iteration of the Mathews factors
does not specifically include the nature and magnitude of any countervailing interests (the
third Mathews factor), we will address Child’s interest in conjunction with the
government’s interest, below.
[¶18] Next, we consider the comparative risk of an erroneous deprivation of Mother’s
familial interest both with and without additional or substitute procedural safeguards.
Turner, 564 U.S. at 444-45, 131 S.Ct. at 2517-18; Mathews, 424 U.S. at 335, 96 S.Ct. at
903. Mother suggests the video conference procedure deprived her of the ability to
effectively cross-examine the State’s witnesses and made it impossible for her to
communicate with defense counsel during the hearing. In support of her motion to continue
the termination hearing until it could be conducted in person, Mother stated it was
“impractical” to present documents to impeach the State’s witness “over a video.” The
district court refuted Mother’s contention, stating a video hearing “is even a better option
than a telephonic hearing where we can all see and hear each other.” It pointed out the
6
video conference technology made it possible to share documents with the hearing
participants, and, in any event, the parties had not identified any exhibits they intended to
use at the hearing. Cf. Adoption by Jessica M., 239 A.3d 633, 642-43 (Me. 2020)
(incarcerated father, who appeared by telephone, was not denied due process by the court’s
refusal to grant a continuance to allow him to arrange to appear by video). The record
clearly shows Mother’s attorney conducted an extensive cross-examination of the State’s
only witness, the DFS caseworker, during the hearing. Mother failed to identify, either at
the trial or on appeal, any specific problems she had with cross-examining the caseworker.
[¶19] There is also nothing in the record showing Mother was denied the opportunity to
communicate with defense counsel. Although Mother and her counsel never asked the
district court for the opportunity to speak privately during the hearing, they could have
requested a recess to communicate with one another. See, e.g., Adoption of Jessica M., 239
A.3d at 643 (court permitted recesses at a termination hearing to allow a father, who
appeared by telephone, to consult privately with his attorney); In re Hill, 2020 WL 506685,
*2 (the court permitted “defense counsel to confer with [the incarcerated parent] regarding
any matters that arose during the proceedings in private”). Furthermore, the record
indicates the video hearing was held using the Microsoft Teams platform, which allows
participants to “chat” in private during a video conference. Under these circumstances,
there is no evidence the video conference procedure heightened the risk Mother would be
erroneously deprived of her fundamental right to associate with Child or that an in-person
hearing would have made an erroneous decision less likely.
[¶20] Finally, we consider the countervailing interests. “[T]he government has ‘an urgent
interest in the welfare of the child, [and, therefore,] shares the parent’s interest in an
accurate and just decision.’” In re CC, ¶ 18, 102 P.3d at 895 (quoting Lassiter, 452 U.S.
at 27, 101 S.Ct. at 2160). The State also seeks an economical and timely resolution of the
matter. Lassiter, 452 U.S. at 28, 101 S.Ct. at 2160-61. See also, Davis v. Page, 714 F.2d
512, 516 (5th Cir. 1983) (“The state desires an accurate and just decision that can be made
as economically and as efficiently as possible.”). Delaying the hearing would certainly
require the expenditure of additional resources, although we recognize that, compared to
the relative enormity of the parent’s potential loss, the economic hardship is de minimus.
Lassiter, 452 U.S. at 28, 101 S.Ct. at 2160-61 (delayed proceedings increase the total costs
of a termination decision, but the State’s pecuniary interest is “hardly significant enough
to overcome private interests as important as those here”).
[¶21] Of greater importance is the passage of time. Due to the uncertainties associated
with the COVID 19 pandemic and Mother’s continued incarceration, it was unknown at
the time of the hearing how long it would be before an in-person termination hearing could
be held, if one could be held at all. It was, however, certain a continuance would result in
a delay in a permanency decision for Child. See In re AH, 950 N.W.2d 27, 38 (Iowa Ct.
App. 2020) (continuance of a termination hearing during the COVID 19 pandemic until it
could be held in person would result in an indeterminable delay). Child had spent his entire
7
life, nearly two years, in DFS custody having minimal interaction with Mother. Child
clearly had a significant interest in an accurate, just, prompt and final permanency decision.
The State similarly had a significant interest in a prompt and final permanency decision for
Child. See SD v. Carbon Cnty. Dep’t of Family Servs. (In re SED), 2002 WY 168, ¶ 27,
57 P.3d 1235, 1241 (Wyo. 2002) (“‘When the rights of a parent and the rights of a child
are on a collision course, the rights of the parent must yield.’” (quoting Matter of MLM, 682
P.2d 982, 990 (Wyo. 1984)). See also, In re Hill, 2020 WL 506685, *2 (incarcerated
parent’s “interest in being physically present or participating by video conference [at the
termination hearing] does not outweigh the state’s strong interest in adjudicating child
protective proceedings in a timely and efficient manner”). “[C]hildren have a right to
stability and permanency in their family relationships.” In re AD, ¶ 31, 151 P.3d at 1109.
[¶22] Based on the record before us, without the benefit of any cogent argument
otherwise, we conclude Mother’s due process rights were not violated when the district
court held the default evidentiary hearing by video conference, rather than in person.
Although Mother’s interest in associating with Child was strong, there was no greater risk
her interest would be erroneously deprived through a video hearing than an in-person
hearing. The State had a weighty interest in achieving permanency for Child in a timely
manner, and Child had a weighty interest in an accurate, just and timely decision. On
balance, these factors support the district court’s use of a video hearing in this case.
Meaningful Opportunity to be Heard Regarding Child’s Best Interests
[¶23] In Niland v. State, Dep’t of Family Servs. (In re NRAE), 2020 WY 121, ¶ 14, 472
P.3d 374, 378 (Wyo. 2020), we described a two-step process for severing the parent-child
relationship.
First, [the State] must establish [the statutory] grounds for
termination by clear and convincing evidence. Wyo. Stat. Ann.
§ 14-2-309(a). Next, if the Department establishes grounds for
termination, the court must determine whether termination of
parental rights is in the best interests of the child. The
requirement to consider the best interests of the child arises
from case law. The district court is required to hold a hearing
on a termination of parental rights petition. . . . Both statutory
grounds for termination and the child’s best interests are
essential findings and must be examined by the court.
Id. (some citations omitted). See also, BA v. Laramie Cnty. Dep’t of Family Servs. (In re
FM), 2007 WY 128, ¶ 22, 163 P.3d 844, 850 (Wyo. 2007) (“the determination of the child’s
best interests comes into play only after statutory grounds for termination of parental rights
have been established by clear and convincing evidence”). The district court is not,
however, required to hold separate hearings on each step. In re NRAE, ¶ 15, 472 P.3d at
8
378. “There is no reason that the best interests inquiry cannot be part of the same hearing
where the court considers the statutory grounds for termination.” Id.
[¶24] Mother acknowledges that, because she was in default, it was appropriate for the
district court to restrict her participation when the State presented evidence on the statutory
grounds for termination. However, she argues the district court violated her due process
right to be heard by refusing to allow her to present evidence on Child’s best interests. She
claims the divorce case of Linch v. Linch, 2015 WY 141, 361 P.3d 308 (Wyo. 2015),
supports her view.
[¶25] In Linch, ¶ 4, 361 P.3d at 310, the husband filed a divorce complaint against the
wife. When the wife failed to answer, the husband sought and obtained an entry of default.
Id., ¶¶ 4-6, 361 P.3d at 310. Thereafter, he presented to the district court a form of divorce
decree, which the court entered without first holding a default hearing. Id., ¶¶ 6, 35, 361
P.3d at 310, 317. Several years later, the wife filed a motion to set aside the decree,
claiming, inter alia, the judgment was void because the district court did not hold a default
hearing and make findings regarding the grounds for divorce and the disposition of marital
property. Id., ¶¶ 16, 30-35, 361 P.3d at 313, 316-17.
[¶26] We concluded the district court should have held a default hearing, but the error did
not render the judgment void. Id., ¶ 35, 361 P.3d at 317. In so ruling, we distinguished
between an entry of default and a default judgment. Id., ¶ 33, 361 P.3d at 316-17. “‘Entry
of default is normally a clerical act which may be performed by the clerk of court, and it
does not constitute a judgment.’” Id., ¶ 33, 361 P.3d at 316 (quoting Spitzer v. Spitzer, 777
P.2d 587, 592 (Wyo. 1989)). The entry of default against a defendant or respondent
forecloses any further defense or assertion with respect to liability. Id. While “‘the entry
of default generally establishes the fact of liability according to the complaint, it does not
establish either the amount or the degree of relief.’” Id. (quoting Spitzer, 777 P.2d at 592).
“‘[T]he court abuses its discretion by simply entering a form of judgment tendered by one
of the parties’” without obtaining the necessary information to determine the proper relief.
Id., ¶ 34, 361 P.3d at 317 (quoting Spitzer, 777 P.2d at 593).
[¶27] The salient holding of Linch is the district court cannot enter a form of judgment
provided by the non-defaulting party in a divorce action without holding a default hearing
to determine the proper relief. There was no child custody issue in Linch, and nothing in
that decision indicates the district court must allow defaulting parties the opportunity to
present evidence on the best interests of the children when custody is at issue.
[¶28] Brush v. Davis, 2013 WY 161, 315 P.3d 648 (Wyo. 2013), is more to the point.
During a default hearing on the father’s petition to modify custody of the parties’ children,
the district court allowed the defaulting mother to cross-examine the father’s witnesses and
make a closing statement concerning the child’s best interests, but it did not allow her to
present her own evidence. Id., ¶ 23, 315 P.3d at 654-55 (“‘The clear import of [Rule
9
55(b)(2)] . . . is to require the district court to base its findings of fact regarding property
distribution, child custody, visitation, and support on some evidence in the record. An
entry of default prevents the defaulted party from appearing and presenting evidence; it
does not relieve the non-defaulting party of its obligation to produce an evidentiary basis
for the desired relief, nor does it relieve the district court of its obligation to base its findings
of fact upon such evidence.’” (quoting Noonan v. Noonan, 2005 WY 145, ¶ 7, 122 P.3d
964, 965-66 (Wyo. 2005) (other citation omitted)). We ruled the district court’s procedure
was consistent with our precedent and gave the mother “the process she was due.” Id., ¶
23, 315 P.3d at 655.
[¶29] The district court in the present case did not enter the State’s proposed termination
order without a default hearing. It required the State to present evidence on the statutory
grounds for termination of Mother’s parental rights and the best interests of Child. The
court permitted Mother to participate in the default hearing by making an opening
statement (which she waived), cross-examining the State’s witnesses, objecting to the
State’s evidence, and making a closing argument. C.f. In re NRAE, ¶ 19, 472 P.3d at 379
(“The termination of [the father’s] parental rights [on summary judgment] before he had
the opportunity to respond to [DFS’s] motion to present evidence or to examine, explain,
or rebut evidence on NRAE’s best interests was a denial of fundamental fairness
guaranteed by Wyoming law.”) (quotation marks and citations omitted). That is all the
process Linch and Brush require.
[¶30] Linch and Brush were divorce/custody cases, not termination of parental rights
cases. We have not specifically addressed whether a defaulting parent should be allowed
to present evidence on the child’s best interests during a default hearing in a termination
action. In DMM v. State, Dep’t of Family Servs. (In re ZMETS), 2012 WY 68, 276 P.3d
392 (Wyo. 2012), we ruled the district court was required to hold a hearing on the
termination petition, even though the mother was in default. Id., ¶ 11, 276 P.3d at 395
(citing Wyo. Stat. Ann. § 14-2-312 (“When a petition is filed and presented to the judge,
the judge shall set the petition for hearing.”)). Regarding the defaulting mother’s right to
participate at the default hearing, we stated:
Although the district court denied the motion to set
aside the entry of default, the court allowed Appellant to
participate at the hearing through counsel. Counsel for
Appellant was invited to make an opening statement, and was
permitted to cross-examine the Department’s witness, object to
evidence, and make closing arguments. Appellant was not
permitted to testify or call witnesses on her behalf. No party
objected to that procedure, and Appellant does not challenge
that procedure in this appeal.
10
Id., ¶ 12, 276 P.3d at 395. We observed “[t]he procedure used by the district court is
consistent with the procedure we have previously approved in civil cases” where
determination of the relief or damages was required. Id., ¶ 14, 276 P.3d at 395-
96. However, it was unnecessary to “consider whether this is the proper procedure in an
action terminating parental rights” because the issue was not before us. Id., ¶ 14 n.3, 276
P.3d at 396 n.3.
[¶31] In In re HLL, ¶¶ 25, 27-28, 372 P.3d at 190-91, we stated “with the appropriate
notice, default can be entered against a non-appearing parent” in a termination action, but
the State is still required to present clear and convincing evidence of a basis for termination
under § 14-2-309(a) at the default hearing. We continued:
If the defaulting parent does appear at the termination hearing,
the district court has broad discretion in determining the extent
to which the parent can participate. For example, in ZMETS,
the parent was not permitted to present evidence, but was
allowed to cross-examine the Department’s witness, object to
the entry of evidence, and present opening and closing
statements. In re ZMETS, ¶ 7, 276 P.3d at 394. ZMETS did not,
however, set a limit on the extent of participation a defaulting
parent could properly be permitted in the exercise of judicial
discretion. In the instant case, Mother does not directly
challenge the district court’s ruling in this regard, and so we
must leave this issue for another case in which it is raised and
fully briefed by the parties.
Id., ¶ 28 n.6, 372 P.3d at 191 n.6.
[¶32] In re HLL clearly gives district courts discretion to allow defaulting parents greater
participation at default hearings in termination actions. However, Mother makes no
argument the district court abused its discretion by limiting her participation at the default
hearing. She also does not provide any authority supporting her view that due process
requires greater participation by the defaulting parent in a termination of parental rights
case. As stated above, we do not ordinarily consider issues which are not supported by
proper citation of authority and cogent argument. Willey, ¶ 30, 385 P.3d at 299-300;
Hamburg, 889 P.2d at 968.
[¶33] Nevertheless, we will address the default procedure used by the district court under
the factors set out in Mathews. Again, Mother has a strong interest in preserving the family
relationship. As to the second factor, there is nothing in the record showing Mother’s
comparative risk of losing her parental rights was increased by the district court’s refusal
to allow her to provide evidence on Child’s best interests. The district court required the
State to provide clear and convincing evidence of the statutory bases for termination of
11
Mother’s parental rights. The State complied by providing proof of two grounds for
termination of Mother’s parental rights. First, it showed Mother had neglected Child,
DFS’s reasonable efforts to rehabilitate the family were unsuccessful, and Child’s health
and safety would be seriously jeopardized by returning him to Mother’s custody. Section
14-2-309(a)(iii). Second, it proved Child had been in foster care under DFS responsibility
for fifteen of the most recent twenty-two months and Mother was unfit to have custody and
control of Child. Section 14-2-309(a)(v). The State was also required to demonstrate it
was in Child’s best interests to terminate Mother’s parental rights. Mother was given the
opportunity to make an opening statement, cross-examine the State’s witness, object to the
State’s evidence, and provide a closing argument that the State had not satisfied its burden.3
[¶34] Furthermore, a “party claiming an infringement of [her] right to due process has the
burden of demonstrating both that [she] has a protected interest and that such interest has
been affected in an impermissible way.” Brush, ¶ 16, 315 P.3d at 653 (citation omitted)
(emphasis added). Mother did not make an offer of proof outlining the evidence she would
have presented concerning Child’s best interests had the district court allowed it; nor, does
she provide that information on appeal. Thus, we have no way to determine whether
permitting her to present such evidence would have reduced the risk of an erroneous
deprivation of her parental rights. See Rush v. Golkowski, 2021 WY 27, ¶ 34, 480 P.3d
1174, 1182 (Wyo. 2021) (“‘Because Father did not make an offer of proof to establish the
relevance of the child’s testimony to the motions hearing, we have no way to gauge its
admissibility or any prejudice that may have resulted from its exclusion.’” (quoting Fleet
v. Guyette, 2020 WY 78, ¶ 29, 466 P.3d 812, 821 (Wyo. 2020)); In re Child of Raul R.,
209 A.3d at 762 (mother, who complained she was not present on the first day of a
termination of parental rights hearing because she was arrested on the way to the hearing,
did not make an offer of proof explaining how her participation would have affected the
trial court’s determination of her parental fitness).
[¶35] Regarding the third factor of the Mathews test, as discussed above, both Child and
the State had a strong interest in a prompt resolution of the termination issue. At the default
hearing, Mother did not indicate she had or could obtain evidence of Child’s best interests.
Continuance of the hearing would have delayed permanency for Child and, considering
Mother failed to provide any information about the evidence she would have presented
concerning Child’s bests interests, it is impossible to gauge how long the delay would be,
3
Mother is critical of the meagerness of the State’s evidence on the best interests of Child. She does not,
however, raise an independent issue challenging the sufficiency of the evidence, nor does she analyze the
hearing evidence in accordance with our standard for reviewing the sufficiency of the evidence. See, e.g.,
In re ZMETS, ¶ 8, 276 P.3d at 394-95 (citing RLA v. State, Dep’t of Family Servs. (In re LA), 2009 WY
109, ¶ 12, 215 P.3d 266, 268 (Wyo. 2009); ML v. Laramie Cnty. Dep’t of Family Servs. (In re LL), 2007
WY 92, ¶ 9, 159 P.3d 499, 501 (Wyo. 2007) (setting out the standard for reviewing sufficiency of the
evidence in a parental rights termination action). We will not, therefore, analyze the sufficiency of the
evidence to support the district court’s conclusion it was in Child’s best interests to terminate Mother’s
parental rights.
12
or if any such evidence would ever exist. The State was justly intent upon moving forward
with the hearing so it could provide a permanent home for Child, who had never had one.
[¶36] Balancing the Mathews factors, it is clear Mother received adequate process under
the circumstances of this case even though she was not permitted to present evidence on
Child’s best interests. Mother, Child, and the State each had important interests at stake in
the termination action, but the deciding factor is the comparative value of providing Mother
the opportunity to present best interests evidence. The record does not support a conclusion
that Mother incurred a greater risk of an erroneous deprivation of her constitutional right
to associate with Child because the district court did not allow her to present evidence on
Child’s best interests.
CONCLUSION
[¶37] Mother has failed to establish her due process rights were violated when the district
court held the default hearing on the State’s petition to terminate her parental rights by
video conference or when it limited her participation at the hearing.
[¶38] Affirmed.
13
DAVIS, Chief Justice, specially concurring, in which FOX, Justice, joins.
[¶39] I concur in the majority opinion, and I have no disagreement with the reasoning
contained in it. I write separately to address what I believe based on rulings and briefing
to be a misunderstanding on the part of the bench and bar as to the significance of In re
ZMETS, 2012 WY 68, 276 P.3d 392 (Wyo. 2012). It has apparently come to be viewed as
either a standard or a safe harbor in cases of defaulting parents in termination of parental
rights and custody cases. I believe the case provides neither.4
[¶40] In ZMETS, the mother failed to file a timely answer. “Due to the default, [mother]
was not permitted to present evidence, but she was allowed to cross-examine the
Department’s witness, object to the entry of evidence, and present opening statements and
closing arguments.” In re ZMETS, ¶ 7, 276 P.3d at 394. Neither party objected to this
procedure, and the appellant did not challenge it on appeal. Id. ¶ 12, 276 P.3d at 395. We
upheld the district court’s exercise of discretion, but we did not address whether this
procedure violated mother’s due process rights or whether it was an appropriate procedure
in an action terminating parental rights because no one challenged it. Id. ¶ 14 n.3, 276 P.3d
at 396 n.3.
[¶41] We followed ZMETS in In re HLL, 2016 WY 43, 372 P.3d 185 (Wyo. 2016), in
which we held that “a default judgment that terminates the rights of the parent cannot be
entered by the district court without (1) holding the required hearing and (2) the
Department presenting clear and convincing evidence of the grounds to terminate the
parental rights, all in accordance with §§ 14-2-308 et seq.” Id. ¶ 29, 372 P.3d at 191. We
noted that “depending on the type of civil case before it, the court has discretion to hold an
evidentiary hearing, and in some circumstances it may even have to hold a jury trial if the
applicable statute so requires.” Id. ¶ 26, 372 P.3d at 191.
[¶42] Relying on ZMETS, we emphasized that when a parent has defaulted, “the district
court has broad discretion in determining the extent to which the parent can participate.”
Id. ¶ 28 n.6, 372 P.3d at 191 n.6. Once again, we did not rule on whether the procedure
used by the district court—limiting mother’s participation to an opening statement, cross-
examining the Department’s witnesses, making objections, and delivering a closing
argument—constituted an abuse of discretion because the issue was not raised and fully
briefed by the parties. Id.; see also In re E.R.C.K., 2013 WY 160, ¶ 10 n.5, 314 P.3d 1170,
1173 n.5 (Wyo. 2013) (noting the procedure used in ZMETS was not objected to or
challenged on appeal).
4
The following discussion assumes that there are no grounds to lift a default entirely, which is an issue
governed by another body of law and which involves decisions we also review for an abuse of discretion.
See, e.g., Rush v. Golkowski, 2021 WY 27, ¶ 19, 480 P.3d 1174, 1178 (Wyo. 2021)
14
[¶43] Unfortunately, in my view, ZMETS has come to be viewed as what it was never
intended to be and is not by its express language—a case endorsing a procedure to be
utilized whenever a parent defaults, or at least one providing a safe harbor from reversal
when it is used. It is true that we generally recognize that “[o]nce default has been entered,
the party in default is precluded from making any defense or assertion with respect to
liability or an asserted claim.” Peak v. Peak, 2016 WY 109, ¶ 8, 383 P.3d 1084, 1088
(Wyo. 2016); see also Rosty v. Skaj, 2012 WY 28, ¶ 20, 272 P.3d 947, 954 (Wyo. 2012).
However, we have also recognized that “[w]hile default judgments are appropriate in some
instances involving child custody and visitation, the best interests of the child may not
necessarily be served by the strictest application of the default provisions.” Esquibel v.
Esquibel, 917 P.2d 1150, 1152 (Wyo. 1996).
[¶44] We of course do and should afford the district court broad discretion in dealing with
defaults in termination and other cases, but we must remember the context in which that
discretion must be exercised in a case affecting parental rights. Those decisions at trial
must still be reviewed individually on appeal to determine whether there was a legitimate
basis in a particular case to limit a defaulting parent’s participation as was done in ZMETS,
and whether all parties’ rights were protected, including the rights of the child whose
relationship with his or her parent may be terminated or altered. In re HLL, ¶¶ 26-29, 372
P.3d at 191; Santosky v. Kramer, 455 U.S. 745, 760-61, 102 S. Ct. 1388, 1398, 71 L. Ed.
2d 599 (1982) (“[T]he child and his parents share a vital interest in preventing erroneous
termination of their natural relationship. Thus, at the factfinding, the interests of the child
and his natural parents coincide to favor use of error-reducing procedures.”) (footnote
omitted).
[¶45] The ultimate goal in a termination case and in similar proceedings must be to serve
the child’s best interests, not to punish the defaulting parent.
Default requests must be approached with particular
caution when parental rights are at issue. A court’s primary
concern in parental rights matters must be the best interests of
the child, and resolution of the issues affecting children is
accomplished most appropriately if both parents can be heard,
unless one parent has evidently abandoned the field.
Smith v. Rideout, 1 A.3d 441, 443-44 (Me. 2010); see also Flynn v. May, 852 A.2d 963,
976 (Md. App. 2004) (“As sorely tempted as we are to hold flatly that the default judgment
procedure . . . is not applicable to child custody disputes, it is not necessary to go so far.
We are content to hold that, . . . in the circumstances of this case, [the trial court] abused
its discretion when it ordered a change in the primary physical custody of [the child]
without permitting witnesses to testify or other evidence to be offered.”).
15
[¶46] Defaulting parties are allowed to participate more fully and to testify in other civil
cases than was allowed in ZMETS. See Wunsch v. Pickering, 2011 WY 59, ¶ 30, 249 P.3d
717, 725 (Wyo. 2011) (consistent with our precedent when there are unliquidated damages
in civil cases defaulting party could fully participate and submit evidence in the evidentiary
proceeding on damages owed); Schaub v. Wilson, 969 P.2d 552, 556 (Wyo. 1998) (finding
we are unaware of any reason or policy to distinguish a comparative fault situation where
a defaulting defendant can still participate when the issue is the apportionment of damages
among sequential events); McGarvin–Moberly Constr. Co. v. Welden, 897 P.2d 1310, 1317
(Wyo. 1995) (finding that under the comparative negligence statute, for example, where a
defendant is only liable for that portion of the damages for which he is at fault, a defaulted
defendant must be allowed to defend the fault issue). Other courts have extended this
reasoning to termination proceedings.
Parents have a fundamental interest in the care, custody,
and control of their children, which interest is protected by the
Due Process Clause of the United States Constitution. Mara M.
v. Ariz. Dep’t of Econ. Sec., 201 Ariz. 503, 507, ¶ 24, 38 P.3d
41, 45 (App.2002) (citing Santosky v. Kramer, 455 U.S. 745,
753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Thus, “when the
State acts to terminate this right, it must provide appropriate
fair procedures.” Id. Mother argues that such fair procedures
include having a right to be present and to participate at an
evidentiary hearing concerning termination of parental rights,
and we agree.
Although not controlling, we again find guidance in
established case law concerning the entry of default judgments.
Arizona courts have previously held that, even when a default
has been entered, a defaulted party has a right to participate in
any further proceedings that will culminate in a judgment. For
example, in personal injury cases, “[an] entry of default
constitutes only a judicial admission of liability and not of the
amount of recovery when the claim is unliquidated”; therefore,
the trial court should allow a defaulting party to “cross-
examine and even present counterproof.” Dungan v. Superior
Court, 20 Ariz.App. 289, 290, 512 P.2d 52, 53 (1973); see
Mayhew v. McDougall, 16 Ariz.App. 125, 130, 491 P.2d 848,
853 (1971) (holding that a defaulted defendant has the right to
contest the issue of damages). Arizona courts have also
extended the Dungan rule to tax appeals. See Ariz. Dep’t of
Revenue v. Superior Court, 165 Ariz. 47, 50, 796 P.2d 479, 482
(App.1990).
16
Considering the above, and in light of a parent’s
fundamental parenting interest, we hold the entry of default or,
more properly stated, a finding of waiver of rights, precludes
Mother from affirmatively presenting testimony or other
documentary evidence to contest the statutory bases for
termination, but the requirement of fair procedures mandates
giving Mother the opportunity to remain in the courtroom and
participate. That right of participation includes cross-
examination of ADES’s witnesses and testifying if she so
desires as it relates to the issue of the best interests of the
children.
Christy A. v. Arizona Dep’t of Econ. Sec., 173 P.3d 463, 470 (Ariz. Ct. App. 2007)
(footnotes omitted); see also Brenda D. v. Dep’t of Child Safety, 410 P.3d 419, 428 (Ariz.
2018) (“[T]o avoid serious constitutional issues, we hold that if a parent appears late for a
hearing, but at a stage of the proceedings where an opportunity to contest and present
evidence still exists, it would be an abuse of the juvenile court’s discretion to impose the
full-waiver sanctions, including finding a waiver of the parent’s right to contest the factual
allegations in the motion.) (internal citation omitted); In re Termination of Parental Rts. to
Torrance P., 711 N.W.2d 690, 693 (Wis. Ct. App. 2006), aff’d sub nom. In re Torrance P.,
Jr., 724 N.W.2d 623 (Wis. 2006); Jones v. Jones, 591 S.W.3d 831, 834 (Ark. App. 2019)
(abuse of discretion when technical failure became primary consideration and best interest
of the child was secondary); Smith, 1 A.3d at 443-44; Flynn, 852 A.2d at 975-76 (children
should not be made to suffer because of a parent’s procedural breaches and default);
Childers v. Riley, 823 So. 2d 246, 246-47 (Fla. Dist. Ct. App. 2002) (“[W]hen we are
dealing with the question of custody, this Court must have information from all sides in
order to render an ultimate decision that will truly be in the best interest of the child. This
can never be done if matters are conducted on a default basis with only one side presenting
testimony.”) (citation omitted).
[¶47] Nothing in this concurrence is intended to suggest that the trial judge should not
take into account other factors, including the importance of timely achieving permanency
in termination cases, the court’s obligation to move cases through its docket without
unreasonable delay, and the need to assure that the rights of the non-defaulting party are
protected. Balancing all of these factors against achieving a result based on full
information is undoubtedly a difficult task, but ZMETS does not provide a means to cut
that Gordian knot with a mandatory procedure or provide a safe harbor from close review.
[¶48] However, as is the case here and as has been true in other cases that have come
before us, there is no way for this Court or the trial judge to determine whether allowing a
parent to testify and present evidence would have made a difference because no offer of
proof was made, as required under W.R.E. 103(a)(2) (a party is required to make a showing
that “a substantial right [was] affected” and “the substance of the evidence was made
17
known to the court by offer or was apparent from the context within which questions were
asked.”). Without an offer of proof, neither we nor the trial judge have any way of knowing
what evidence a defaulting parent might be able to present, and whether it could make a
difference. Fleet v. Guyette, 2020 WY 78, ¶¶ 28-29, 466 P.3d 812, 821 (Wyo. 2020); In
re LDB, 2019 WY 127, ¶ 48, 454 P.3d 908, 922 (Wyo. 2019). Assertions and speculation
in an appellate brief cannot be a substitute for an explicit offer of proof. Johnson v. Sikorski,
2004 WY 137, ¶ 24, 100 P.3d 420, 427 (Wyo. 2004).
[¶49] Making an offer of proof is not difficult. An offer may be made in at least three
ways, all of which require prior preparation to determine what evidence is available and
whether it can legitimately be argued to be admissible in this context. The most common
method is for counsel to simply obtain the trial court’s permission to make an offer of proof
on the record, and then orally describe what evidence would be presented if it would be
allowed. The statement must be definite and specific and not conclusory, and it must
describe sufficient facts to demonstrate the admissibility of the evidence, and in this
situation, why receiving that evidence is required in the default context given the unique
and final nature of decisions terminating or altering the parental relationship. See, e.g.,
United States v. Adams, 271 F.3d 1236, 1242 (10th Cir. 2001); 75 Am. Jur. 2d Trial § 365
(2d ed. Feb. 2021 update); 23A C.J.S. Criminal Procedure and Rights of Accused § 1694
(Mar. 2021 update).
[¶50] Secondly, the trial court may permit a written offer of proof meeting the above
requirements. This can be in the form of an affidavit. Finally, particularly in jury trials,
offers of proof can be made by allowing the proposed witness to be questioned under oath
out of the presence of the jury. Silva v. State, 2012 WY 37, ¶ 20, 271 P.3d 443, 450 (Wyo.
2012) (quoting Bloomfield v. State, 2010 WY 97, ¶ 20, 234 P.3d 366, 374 (Wyo. 2010));
Johnson, ¶ 24, 100 P.3d at 427.
[¶51] Determining what evidence a defaulting parent should be allowed to present does
not lend itself to a mechanical adherence to the process that was used in ZMETS. On a
proper record, adherence to that procedure could be an abuse of discretion.
18