In the Matter of the Termination of Parental Rights To: Rvr Kar and Rlr, Minor Children, Frank Landis Roberts, Iv v. State of Wyoming, Department of Family Services , 2022 WY 153 ( 2022 )

THE SUPREME COURT, STATE OF WYOMING
2022 WY 153OCTOBER TERM, A.D. 2022
December 6, 2022
IN THE MATTER OF THE TERMINATION
OF PARENTAL RIGHTS TO: RVR; KAR;
and RLR, minor children,
FRANK LANDIS ROBERTS, IV,
Appellant
(Respondent),
S-22-0032
v.
STATE OF WYOMING, DEPARTMENT OF
FAMILY SERVICES,
Appellee
(Petitioner).
Appeal from the District Court of Laramie County
The Honorable Peter H. Froelicher, Judge
Representing Appellant:
Donna D. Domonkos and Brittany N. Thorpe of Domonkos & Thorpe, LLC,
Cheyenne, Wyoming. Argument by Ms. Domonkos.
Representing Appellee:
Bridget L. Hill, Attorney General: Misha E. Westby*, Deputy Attorney General;
Shawnna M. Lamb, Senior Assistant Attorney General; Christina F. McCabe,
Senior Assistant Attorney General. Argument by Ms. Lamb.
Guardian ad Litem:
Joseph R. Belcher, Director, Wyoming Office of the Guardian ad Litem.
Appearance by Mr. Belcher.
* An Order Allowing Withdrawal of Counsel was entered on July 26, 2022.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.
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
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FENN, Justice.
[¶1] Frank Landis Roberts, IV, (Father) appeals from the district court’s order granting
the Wyoming Department of Family Services’ (DFS) petition to terminate his parental
rights. He asserts he received ineffective assistance of counsel, and the district court
abused its discretion when it denied his motion to set aside the entry of default. We affirm.
ISSUES
[¶2] Father presents two issues, which we rephrase as follows:
I. Does Wyoming Statute § 14-2-318(a) create a statutory
right to effective assistance of counsel in termination of
parental rights cases?
II. Did the district court abuse its discretion when it denied
Father’s oral motion to set aside the entry of default?
FACTS
[¶3] At 2:45 a.m. on April 11, 2019, Father called the Cheyenne Police Department to
report his three young children, RVR, KAR, and RLR, were out of control. When an
officer responded, he discovered the home was filthy and in disarray. The officer arrested
Father on an outstanding warrant and took the children into protective custody because
there were no other adults in the home who could provide care for the children. 1 The State
filed a neglect petition against Father that same day. The details of the underlying neglect
case are set forth in In re RR, 2021 WY 85, 492 P.3d 246 (Wyo. 2021), and will not be
recapped here.
[¶4] On February 11, 2021, DFS filed a petition to terminate Father’s parental rights
pursuant to Wyoming Statute § 14-2-309(a)(iii)2 and (a)(v).3 DFS served Father with the
petition and summons on March 26, 2021. The summons informed Father he needed to
answer the petition within 20 days or judgment by default could be taken against him.
1
The children’s mother, Bryanna Salinas, had not resided with the children since August 2017.
2
Under Wyoming Statute 14-2-309(a)(iii), the parent-child legal relationship may be terminated if DFS
proves by clear and convincing evidence “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[.]”
3
Under Wyoming Statute 14-2-309(a)(v), the parent-child legal relationship may be terminated if DFS
proves by clear and convincing evidence “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
Father did not file a timely response, and on April 16, 2021, DFS asked the Clerk of Court
to enter default against Father. The Clerk entered default against Father that same day.
DFS requested a default hearing on the petition against Father, which was set for June 16,
2021.
[¶5] On April 26, 2021, Father filed a pro se letter requesting a court-appointed attorney
and indicating his desire to oppose the petition. Father filed his financial affidavit two days
later. This affidavit indicated Father was homeless and unemployed. Court-appointed
counsel entered an appearance on Father’s behalf on April 30, 2021.
[¶6] On May 19, 2021, Father’s counsel filed a request for an extension of time to
respond to the petition, which included a proposed response he had drafted on Father’s
behalf. This pleading indicated counsel’s attempts to contact Father were unsuccessful,
but based on Father’s pro se letter, it appeared Father wanted to defend against the petition.
DFS objected to Father’s request for an extension of time on the grounds that Father had
not filed a motion to set aside the entry of default under Rule 55 of the Wyoming Rules of
Civil Procedure (W.R.C.P.). The district court denied Father’s request. The default
hearing was continued twice, once at the request of the Guardian Ad Litem (GAL) and
once at the request of DFS. It was ultimately heard on July 20, 2021.
[¶7] At the beginning of the default hearing, the district court explained the procedural
posture of the case and how it intended to proceed:
THE COURT: Okay. So at this point just so everybody knows
where we are, the Department of Family Services has obtained
an entry of default from the Clerk of District Court. Has since
asked for a default judgment hearing which is the purpose of
today’s hearing. There has been no move or motion -- written
motion to set aside the entry of default. So we’re going to
proceed with the hearing.
To the extent that Mr. Roberts wants to participate today, the
[c]ourt will allow some cross-examination and closing
argument, but not the presentation of any evidence by Mr.
Roberts in accordance with the case law and the fact that he
failed to answer timely and has been defaulted by entry of
default.
[¶8] When asked if he objected to this procedure, Father’s counsel stated:
[FATHER’S COUNSEL]: Your Honor, I had been prepared to
have Mr. Roberts take the stand to testify as to the events that
occurred, and I still would like to do that. However, if the
2
[c]ourt decides that isn’t appropriate then I think we can do
most of it just from the documents that have been filed. But I
prefer to put him on the stand.
[¶9] The district court said it would take up that issue when it was Father’s turn to present
evidence, but it reminded Father a short time had been set aside for the hearing because it
was not “a full-blown trial.” In his opening statement, Father’s counsel argued defaulting
a parent in a termination of parental rights case was “the most severe ruling the [c]ourt
could grant,” and Father should be given a chance to defend against the petition. He also
argued affording Father that opportunity would not create an undue or extra burden on DFS
because the case against the mother was still set for trial.
[¶10] DFS offered the testimony of the caseworker in the underlying juvenile neglect
action. She testified Father did not comply with or complete any of the goals in his case
plan. She also testified in detail about the services DFS offered to Father and the children
throughout the case. Father was resistant to several of these services, and some of the
service providers eventually refused to provide services for him due to his aggressive and
defiant behavior. Despite DFS’s efforts, Father was evicted from his apartment, and he
failed to tell DFS where he was living or if he was employed. The caseworker stated she
was concerned Father would be unable to meet the children’s ongoing needs if they were
returned to his care. She opined placing the children back with Father would seriously
jeopardize their health and safety.
[¶11] When given the opportunity to cross-examine the caseworker, Father’s counsel
asked the district court to allow Father to testify that “there [was] no culpable conduct on
his part for failing to answer.” The district court reiterated the purpose of the hearing was
to determine if DFS could present clear and convincing evidence that Father’s parental
rights should be terminated, and that termination was in the best interests of the children.
The district court noted the testimony Father’s counsel wished to present appeared to “go
to the question of whether the [c]ourt should set aside entry of default,” but the court did
not have before it “any motion to set aside entry of default.” The district court found that
setting aside the default was not properly before the court, and it could only consider DFS’s
request for default judgment. The district court denied counsel’s request to present this
testimony. Father’s counsel then informed the district court he had not filed a motion to
set aside the entry of default because he believed the purpose of the hearing was “to
determine whether or not the default should go through or be set aside.” The district court
did not reconsider its ruling. After Father’s counsel cross-examined the caseworker, there
was not enough time to allow DFS to finish presenting its evidence, and the district court
indicated it would reconvene the hearing at a later date.
[¶12] Later that day, in response to the district court’s comments, Father’s counsel filed a
written motion to set aside the entry of default. This motion asserted Father made
numerous attempts to obtain counsel, although it did not list specific dates for those
3
attempts. The motion admitted Father had not asked the district court to appoint counsel
for him until after default had been entered. Father argued the entry of default was not due
to his culpable conduct because he had done everything he could to obtain counsel. He
asserted DFS would not be prejudiced because the petition against the children’s mother
was set for trial, and DFS would have to present similar facts at that trial. Father also
asserted he had a meritorious defense, although he did not set forth any details about that
defense. DFS objected to this motion, claiming Father failed to show he was entitled to
relief under W.R.C.P. 55(c).
[¶13] The default hearing was set to reconvene at 9:00 a.m. on October 22, 2021. DFS
wanted the district court to hear Father’s motion to set aside the entry of default before the
default hearing reconvened, and it filed a request for a setting on the motion when it
realized Father’s counsel had not done so. On October 13, 2021, the district court issued
an order setting the hearing on the motion to set aside the entry of default for 8:30 a.m. on
October 22, 2021.
[¶14] Neither Father nor his counsel was present when the district court convened the
hearing at 8:30 a.m. The district court heard argument on Father’s motion, even though he
and his counsel were not present. DFS asked the district court to deny the motion because
it did not “contain sufficient grounds for this [c]ourt to set aside the entry of default.” After
hearing argument from DFS and the GAL, the district court denied the motion:
[THE COURT]: Based on what I heard, based on the fact that
neither Mr. Roberts nor [his counsel] are present to make any
sort of argument beyond what the written motion states, nor to
put on any evidence in regards to the three factors that are
generally applied in a motion to set aside entry of default, the
[c]ourt will deny the motion to set aside the entry of default.
Mr. Roberts has not demonstrated that the plaintiff in this
matter, petitioner in this matter will not be prejudiced by
setting aside entry of default. Maybe Mr. Roberts has a
meritorious defense, but that has not been demonstrated today.
And as far as his culpable conduct, certainly the evidence
reflects he didn’t file anything until a month after the entry of
default was granted by the Clerk of District Court. And his
excuses that were provided in there aren’t sufficient to
demonstrate that I should set aside entry of default at this point.
And, again, I’ll stress neither [his counsel] nor Mr. Roberts are
present for their motion.
4
[¶15] Father’s counsel arrived at approximately 8:46 a.m.4 This was after the district court
issued its ruling on the motion to set aside default and placed the caseworker back under
oath so DFS could begin its redirect examination. Father failed to appear at any time during
the hearing.
[¶16] The caseworker again testified about the services DFS and other agencies had
provided for Father. She also testified Father was very abusive towards her and other
members of the team, which led to some providers refusing to work with Father. DFS then
presented evidence from the new caseworker, who took over the case in September 2021.
She testified Father had recently participated in a family planning meeting, where she
reminded him about the default hearing. Father did not tell her where he was living. He
did tell her he had obtained a part-time job as a dishwasher, but he did not tell her who his
employer was or how much money he was earning. She opined it would be in the best
interest of the children to terminate Father’s parental rights and proceed with adoption.
After DFS rested and the GAL indicated he did not intend to present any evidence, the
district court renewed its ruling that Father was not going to be allowed to present any
evidence due to the entry of default.
[¶17] In his closing argument, Father’s counsel stated he told Father to be at the hearing
at 9:00 a.m., and counsel did not know why Father was not present. Father’s counsel stated
his client was difficult to get ahold of, and “[h]is poverty situation [was] as bleak as any
[he had] ever seen.” Counsel initially argued it would be a tragedy to take Father’s children
away simply because he was poor. However, he later admitted DFS presented “a lot of
evidence” demonstrating Father failed to complete his case plan.
[¶18] The district court granted DFS’s motion for default judgment and terminated
Father’s parental rights to all three children. It found DFS presented clear and convincing
evidence Father’s rights should be terminated pursuant to Wyoming Statute § 14-2-
309(a)(iii) and (a)(v). The district court further found terminating Father’s parental rights
was in the best interests of the children. The district court issued a written order terminating
Father’s parental rights and a separate order denying Father’s motion to set aside default.
This appeal timely followed.
DISCUSSION
I. Does Wyoming Statute § 14-2-318 create a statutory right to effective
assistance of counsel?
[¶19] Father asserts Wyoming Statute § 14-2-318(a) (LexisNexis 2021) secures his right
4
Toward the end of the hearing, Father’s counsel was given an opportunity to explain why he had been
late. Father’s counsel explained he had received the October 13, 2021, notice of setting, but he failed to
notice the time had been changed to 8:30 a.m.
5
to counsel in a termination of parental rights case, and this statutory right to counsel
includes a right to effective assistance of counsel. Father’s claim requires us to interpret
the statute.
[¶20] “When interpreting statutes, ‘we seek the legislature’s intent as reflected in the plain
and ordinary meaning of the words used in the statute,’ giving effect to every word, clause,
and sentence.” In re BC-K, 2022 WY 80, ¶ 11, 512 P.3d 634, 638 (Wyo. 2022) (quoting
Bernal-Molina v. State, 2021 WY 90, ¶ 13, 492 P.3d 904, 908 (Wyo. 2021)). “Where there
is plain, unambiguous language used in a statute there is no room for construction.” Id.(quoting Schneider v. State, 2022 WY 31, ¶ 9, 505 P.3d 591, 594 (Wyo. 2022)). None of
the parties in this case asserted Wyoming Statute § 14-2-318(a) is ambiguous.
[¶21] Wyoming Statute § 14-2-318(a) reads:
The court may appoint counsel for any party who is indigent.
Indigency shall be established by written affidavit signed and
sworn to by the party or sworn testimony made a part of the
record of the proceedings. The affidavit or sworn testimony
shall state that the party is without sufficient money, property,
assets or credit to employ counsel in his own behalf. The court
may require further verification of financial condition as it
deems necessary.
Father did not cite to any Wyoming authority interpreting this statute as creating a
mandatory right to counsel. Instead, Father relied on a case from Colorado, People ex rel.
A.R., 459 P.3d 645 (Colo. App. 2018), which interpreted a statute that is fundamentally
different from Wyoming’s. Colorado’s statute specifically provides: “After a motion for
termination of a parent-child legal relationship is filed . . . the [] parents shall be advised
of the right to counsel if not already represented by counsel of record; and counsel shall be
appointed in accordance with the provisions of section 19-1-105. . . .” Colo. Rev. Stat. §
19-3-602(2) (2021).
[¶22] Unlike the Colorado statute, Wyoming Statute § 14-2-318(a) uses the word “may”
not “shall.” “We have, in a number of instances, noted that the term ‘may’ connotes
permissive authority and does not structure a mandatory requirement.” In re WJH, 2001
WY 54, ¶ 14, 24 P.3d 1147, 1152–53 (Wyo. 2001) (quoting Rawson v. State, 900 P.2d
1136, 1138 (Wyo. 1995)). We have previously held Wyoming Statute § 14-2-318(a) gives
the district court the discretion to appoint counsel, but it does not require the court to do
so. In re CC, 2004 WY 167, ¶¶ 12–15, 102 P.3d 890, 894–95 (Wyo. 2004). We have also
previously upheld district courts’ decisions not to appoint counsel in termination of
parental rights cases. Id. at ¶ 15, 102 P.3d at 895; see also In re KMM, 957 P.2d 296, 298
(Wyo. 1998).
6
[¶23] This Court has only recognized a right to effective assistance of counsel in criminal
cases and at the adjudicatory stage of juvenile delinquency proceedings. See, e.g., Delgado
v. State, 2022 WY 61, ¶¶ 12–13, 509 P.3d 913, 919 (Wyo. 2022); In re JP, 2022 WY 94,
¶ 12, 514 P.3d 785, 789 (Wyo. 2022). In both criminal and juvenile cases, the right arises
from the Sixth and Fourteenth Amendments to the United States Constitution and Article
1 §10 of the Wyoming Constitution rather than from any statute. Delgado, ¶ 12, 509 P.3d
at 919; In re JP, ¶ 12, 514 P.3d at 789. Termination of parental rights cases are civil
matters, not criminal matters. In re TJH, 2021 WY 56, ¶ 12, 485 P.3d 408, 413 (2021)
(citations omitted). Father did not cite to any Wyoming authority holding a litigant has a
statutory right to effective assistance of counsel in a civil case. Because Wyoming Statute
§ 14-2-318(a) does not create a mandatory right to counsel, we conclude it does not create
a statutory right to effective assistance of counsel in termination of parental rights cases.
[¶24] Father did not assert the right to effective assistance of counsel in a termination of
parental rights case arises under either the United States Constitution or the Wyoming
Constitution. “This Court ‘will not frame issues for the litigants and will not consider
issues not raised by them and not supported by cogent argument and authoritative
citation.’” Ross v. State ex rel. Dept. of Workforce Servs., 2022 WY 11, ¶ 24, 503 P.3d 23,
31 (Wyo. 2022) (quoting Woods v. State, 2017 WY 111, ¶ 18, 401 P.3d 962, 969 (Wyo.
2017)). Therefore, we do not address whether such a right exists under either constitution.
II. Did the district court abuse its discretion when it denied the oral motion to
set aside the entry of default?
[¶25] “Because a termination of parental rights proceeding is a civil matter, the Wyoming
Rules of Civil Procedure apply.” In re EMM, 2018 WY 36, ¶ 10, 414 P.3d 1157, 1159
(Wyo. 2018) (citing In re HLL, 2016 WY 43, ¶¶ 22–24, 372 P.3d 185, 189–90 (Wyo.
2016)). W.R.C.P. 55(c) states: “The court may set aside an entry of default for good cause,
and it may set aside a final default judgment under Rule 60(b).” When determining whether
to set aside an entry of default, the district court considers three factors: “(1) whether the
plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; and (3)
whether the culpable conduct of the defendant led to the default.” In re EMM at ¶ 11, 414
P.3d at 1160 (quoting In re HLL, ¶ 36, 372 P.3d at 192). “As the proponent of the motion,
[Father] had the burden of proving [he was] entitled to relief.” Id. at ¶ 8, 414 P.3d at 1159
(quoting In re HLL, ¶ 33, 372 P.3d at 192).
[¶26] Father only challenges the district court’s decision to deny his “oral” motion to set
aside default, and he does not assert the district court erred when it subsequently denied his
written motion. DFS contends the district court appropriately denied the “verbal” motion
because Father failed to establish good cause to set aside the default. We review a district
court’s determination as to whether good cause exists to set aside an entry of default for an
abuse of discretion. In re EMM, ¶ 8, 414 P.3d at 1159 (quoting In re HLL, ¶ 32, 372 P.3d
at 192). We will not disturb the decision unless it was “clearly wrong.” Id. (quoting In re
7
HLL, ¶ 32, 372 P.3d at 192). “In determining whether there has been an abuse of discretion,
the ultimate issue is whether or not the court could reasonably conclude as it did. A court
does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason
under the circumstances.” In re AA, 2021 WY 18, ¶ 33, 479 P.3d 1252, 1261 (Wyo. 2021)
(quoting MMM v. AMMJ, 2018 WY 60, ¶ 10, 419 P.3d 490, 493 (Wyo. 2018)).
[¶27] Father admits his counsel never used “the magic words of ‘I move the [c]ourt for an
Order Setting Aside Default,’” but he argues counsel put the district court on notice that he
wanted to be heard on that issue. At the beginning of the hearing on July 20, 2021, the
district court informed the parties the purpose of the hearing was to determine if default
judgment should be entered, and no motion to set aside the entry of default had been filed.
Although Father’s counsel indicated he was prepared to have his client testify about the
events that occurred, he did not make an oral motion to set aside the entry of default at that
time. After the district court received evidence from the DFS caseworker in support of
entering default judgment, Father’s counsel asked to call Father to the stand “to show that
there [was] no culpable conduct on his part for failing to answer.” The district court
indicated that issue was not properly before it because there was no pending motion to set
aside the default. Father’s counsel admitted he did not file such a motion prior to the
hearing, but he believed the purpose of the hearing was to decide if the default should be
set aside. He then renewed his request to call Father to testify about his lack of culpable
conduct. When asked if he wanted to put anything else on record regarding this issue,
Father’s counsel declined to do so.
[¶28] W.R.C.P. 7(b)(1)(A) requires motions to “be in writing unless made during a
hearing or trial[.]” Assuming the statements made by Father’s counsel constituted a motion
“made during a hearing,” we conclude he failed to meet his burden of showing good cause
existed to set aside the entry of default. Although Father’s counsel indicated there might
be a question about the culpable conduct factor, he did not discuss whether setting aside
the entry of default would prejudice DFS. In his opening statement, he did opine there
would not be any “undue burden or extra burden” on DFS if Father were afforded the
opportunity to defend against the petition. “Undue burden” is not the standard we apply in
default cases. Father had the burden of showing DFS would not be prejudiced by setting
aside the entry of default. In re EMM, 2018 WY 36, ¶ 11, 414 P.3d at 1160. We have held
setting aside an entry of default can prejudice DFS “because the permanent placement of
[the children] would be delayed.” In re HLL, ¶ 37, 372 P.3d at 192. The children in this
case had already been in DFS custody for 27 months as of July 2021. Father failed to make
any showing that setting aside the entry of default would not further delay establishing
permanency for the children. Father also had the burden of establishing he had a
meritorious defense. In re EMM, ¶ 11, 414 P.3d at 1160. Father’s counsel did not offer
any argument or make an offer of proof to show Father had a meritorious defense to the
allegations in the petition. Because Father did not meet his burden of showing he was
8
entitled to relief under W.R.C.P. 55(c), the district court did not abuse its discretion when
it denied the oral motion.5
CONCLUSION
[¶29] Wyoming Statute § 14-2-318(a) does not create a statutory right to counsel or a
statutory right to effective assistance of counsel in termination of parental rights cases.
Father failed to meet his burden of showing he was entitled to relief under W.R.C.P.55(c),
and the district court did not abuse its discretion when it denied his motions to set aside the
entry of default. Affirmed.
5
Although Father’s brief does not challenge the district court’s denial of his written motion to set aside the
entry of default, we note that his written motion suffered from many of the same deficiencies as his oral
motion. Father’s written motion claimed the entry of default did not result from his culpable conduct
because he made multiple attempts to obtain counsel. The summons advised Father he had 20 days to
respond to the petition, but he did not file a response within that time, and he waited until after default had
been entered to request a court-appointed attorney. We have held a parent’s failure to timely respond to
the petition constitutes culpable conduct. In re EMM, 2018 WY 36, ¶ 15, 414 P.3d at 1161. “[I]gnorance
of the law or rules of procedure does not justify relief from an entry of default.” Id. (citing In re HLL, 2016
WY 43, ¶ 35, 372 P.3d at 192). Father’s written motion also failed to establish DFS would not be prejudiced
by setting aside the default because he again failed to show setting aside the default would not delay
establishing permanency for the children. See In re HLL, ¶ 37, 372 P.3d at 192. Although Father’s written
motion made a general assertion that he had a meritorious defense, it did not set forth any details pertaining
to that defense. By Father’s own admissions, he was homeless and unemployed at the time he asked for
court-appointed counsel. At the portion of the hearing that took place before the written motion was filed,
DFS presented evidence Father had been unable to provide a safe environment for the children or meet their
physical, emotional, nutritional, and medical needs. Father’s motion offered nothing to contradict this
evidence. He failed to meet his burden of proving he had a meritorious defense. Because Father failed to
meet his burden of establishing any of these factors, his written motion failed to establish good cause for
setting aside the entry of default under W.R.C.P. 55(c).
9