In the Matter of the Guardianship of: JR, Minor Child.

Tina Eshleman v. Randy Rosenberg and Jennifer Rosenberg ( 2016 )


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  •                 IN THE SUPREME COURT, STATE OF WYOMING
    
    2016 WY 37
    OCTOBER TERM, A.D. 2015
    March 14, 2016
    IN THE MATTER OF THE
    GUARDIANSHIP OF: JR, Minor Child.
    TINA ESHLEMAN,
    Appellant
    (Petitioner),
    S-15-0219
    v.
    RANDY ROSENBERG and JENNIFER
    ROSENBERG,
    Appellees
    (Respondents).
    Appeal from the District Court of Laramie County
    The Honorable Steven K. Sharpe, Judge
    Representing Appellant:
    Carrol S. Nelson of Priority Legal, LLC, Cheyenne, Wyoming.
    Representing Appellees:
    Pro se.
    Guardian Ad Litem:
    No appearance.
    Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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.
    FOX, Justice.
    [¶1] Tina Eshleman,1 the maternal aunt of JR, filed petitions for temporary and
    permanent guardianship of the child. After a hearing on her petition for permanent
    guardianship, the district court concluded that she had not established that Mother and
    Father were unfit parents and denied her petition. Ms. Eshleman appeals and we affirm.
    ISSUE
    [¶2] Did the district court correctly find that Ms. Eshleman did not establish that
    Mother and Father were unfit?
    FACTS
    [¶3] JR was born on April 2, 2013, to Jennifer and Randy Rosenberg (Mother and
    Father). On March 27, 2014, Mother left JR in the care of Ms. Eshleman, Mother’s sister
    and the Appellant here. Ms. Eshleman filed a petition for emergency guardianship on
    April 25, 2014, and a petition for permanent guardianship on April 29, 2014, and was
    appointed temporary guardian. A full evidentiary hearing on the petition for permanent
    guardianship was held on May 20, 2015.
    [¶4] At that hearing, Ms. Eshleman presented very little evidence as to Father. She
    presented evidence regarding Mother’s past behavior, but presented little evidence as to
    her current fitness as a parent. Ms. Eshleman testified that Mother had struggled to raise
    her children, that she does not live with any of her other three children, that she used
    methamphetamine in the past, that she has a long history of drug use, and that she served
    time in prison in the past year. Ms. Eshleman testified that she had concerns with JR’s
    care while she was with Mother: JR did not receive proper nutrition, she was not clean
    when she was given to Ms. Eshleman by Mother in March of 2014, and Ms. Eshleman
    questioned whether she had been molested. She also testified that neither Mother nor
    Father attempted to contact or financially support JR while she was in Ms. Eshleman’s
    care from March of 2014 through May of 2015. Ms. Eshleman also offered evidence that
    JR received excellent care while living with her and that JR had been thriving.
    [¶5] Mother and Father, who appeared pro se, testified that they currently reside in
    Spokane, Washington. Mother testified that she was pregnant with her fifth child at the
    time of the hearing and was a stay-at-home mom. She testified that Father was a cook at
    a local restaurant, and that he made a sufficient amount of money to pay their bills and
    allow Mother to stay home. She admitted to using methamphetamine in the past and to
    serving 242 days in jail for attempted robbery. She also testified that she had made
    1
    Throughout the record Ms. Eshleman’s name was spelled “Eshleman,” “Eschelman,” and “Eschleman.”
    We will use “Eshleman” as that spelling appears on the caption.
    1
    mistakes in the past, but that her life was now on track, and she was presently clean and
    not using drugs. Father testified that while he did not have custody of his other minor
    children, he remained involved in their lives and had been working to make up arrears in
    child support payments. He also testified that he previously used both methamphetamine
    and marijuana, but that he had stopped using drugs and did not drink.
    [¶6] After the hearing on the matter, the district court ruled that Ms. Eshleman failed to
    establish by a preponderance of the evidence that Mother and Father are unfit as parents.
    Ms. Eshleman timely appealed.
    STANDARD OF REVIEW
    [¶7]    Our standard of review in guardianship cases is well established.
    We presume the district court’s findings of fact are
    correct and will not set them aside unless they are
    inconsistent with the evidence, clearly erroneous or contrary
    to the great weight of the evidence. KO v. LDH (In re MEO),
    
    2006 WY 87
    , ¶ 17, 
    138 P.3d 1145
    , 1150 (Wyo. 2006). We
    review a district court’s conclusions of law de novo. 
    Id.
    Construction of the guardianship statutes involves a question
    of law which we also review de novo. 
    Id.
    DJM v. DM (In re SRB-M), 
    2009 WY 22
    , ¶ 8, 
    201 P.3d 1115
    , 1117 (Wyo. 2009).
    Whether the district court applied the correct burden of proof is also a question of law
    which we review de novo. Wise v. Ludlow, 
    2015 WY 43
    , ¶ 19, 
    346 P.3d 1
    , 7 (Wyo.
    2015).
    DISCUSSION
    [¶8] The district court concluded that Ms. Eshleman “has not showed that either
    [Mother or Father] are presently unfit. Without being provided evidence necessary to
    make that critical finding, this Court cannot legally grant the petition for permanent
    guardianship.” Ms. Eshleman contends that she proved by a preponderance of the
    evidence that Mother and Father are unfit and she complains that, because Mother and
    Father appeared pro se, the district court held her to a higher standard.2
    2
    We note that while Ms. Eshleman’s attorney cited several cases regarding the standard of review, she
    cited to no legal authority and made minimal reference to the record or other authority in the argument
    portion of her brief. When a brief fails to present a “valid contention supported by cogent or pertinent
    authority, we consistently have refused to consider such cases[.]” Berg v. Torrington Livestock Cattle
    Co., 
    2012 WY 42
    , ¶ 14, 
    272 P.3d 963
    , 966 (Wyo. 2012) (citation omitted). We have stated that when a
    party violates W.R.A.P. 7.01, this Court may take such action as it “deems appropriate, including but not
    limited to: refusal to consider the offending party’s contentions; assessment of costs; dismissal; and
    2
    [¶9]    The guardianship statutes provide:
    Appointment of guardian.
    (a) The court may appoint a guardian if the
    allegations of the petition as to the status of the proposed
    ward and the necessity for the appointment of a guardian are
    proved by a preponderance of the evidence.
    
    Wyo. Stat. Ann. § 3-2-104
    (a) (LexisNexis 2015).
    [¶10] In In re Guardianship of MEO, 
    2006 WY 87
    , ¶¶ 43-56, 
    138 P.3d 1145
    , 1157-61
    (Wyo. 2006), we considered the question of what circumstances constitute a “necessity
    for the appointment of a guardian” of a minor in the context of an involuntary
    guardianship proceeding. Underscoring constitutional principles, we stated:
    The constitutional protections afforded to parents are
    not reserved for those who are perfect. “The fundamental
    liberty interest of natural parents in the care, custody, and
    management of their child does not evaporate simply because
    they have not been model parents. . . .” Santosky [v. Kramer],
    455 U.S. [745,] 753-54, 102 S.Ct. [1388,] 1394-95[, 
    71 L.Ed.2d 599
     (1982)]. “Even when blood relationships are
    strained, parents retain a vital interest in preventing the
    irretrievable destruction of their family life.” 
    Id.
     “[S]o long
    as a parent adequately cares for his or her children (i.e., is fit),
    there will normally be no reason . . . to further question the
    ability of that parent to make the best decisions concerning
    the rearing of that parent’s children.” Troxel v. Granville,
    
    530 U.S. 57
    , 68-69, 
    120 S.Ct. 2054
    , 2061, 
    147 L.Ed.2d 49
    (2000).
    The district court’s determination that a guardianship
    was warranted was based solely upon an analysis of MEO’s
    best interests. However, courts have denounced use of the
    affirmance.” MTM v. State (In re KD), 
    2001 WY 61
    , ¶ 7, 
    26 P.3d 1035
    , 1036 (Wyo. 2001) (citing
    W.R.A.P. 1.03). In spite of her non-compliance with W.R.A.P. 7.01, because we can discern the issues
    raised by Ms. Eshleman, we will address them. See Three Way, Inc. v. Burton Enters., 
    2008 WY 18
    ,
    ¶ 15, 
    177 P.3d 219
    , 224 (Wyo. 2008) (declining to summarily affirm appeal despite failure of appellant to
    cite record because court was “readily able to discern the relevant facts”).
    3
    best interests standard as the sole justification for altering a
    family unit, finding it at odds with a parent’s rights.
    We have little doubt that the Due Process Clause
    would be offended “[if] a State were to attempt to
    force the breakup of a natural family, over the
    objections of the parents and their children, without
    some showing of unfitness and for the sole reason that
    to do so was thought to be in the children’s best
    interest.”
    Quilloin v. Walcott, 
    434 U.S. 246
    , 255, 
    98 S.Ct. 549
    , 554, 
    54 L.Ed.2d 511
     (1978) (quoting Smith v. Organization of Foster
    Families, 
    431 U.S. 816
    , 862-863, 
    97 S.Ct. 2094
    , 
    53 L.Ed.2d 14
     (1977) (Stewart, J., concurring in judgment)).
    Id. at ¶¶ 50-51, 138 P.3d at 1159-60.
    [¶11] We held that “[a] child with a parent has a natural guardian and is not in need of a
    court-appointed guardian, unless the court determines that the child’s natural guardian is
    not fit. Thus, once the natural parent is deemed fit, the issue of custody is decided.” Id.
    at ¶ 55, 138 P.3d at 1161 (internal quotation marks and citation omitted). We went on to
    explain that “the district court did not find that Mother was an unfit parent. At that point,
    Grandparents’ petition should have been denied. In the absence of a finding of parental
    unfitness, the district court’s finding that a guardianship was necessary for MEO was
    clearly erroneous.” Id. at ¶ 56, 138 P.3d at 1161.
    [¶12] In In re SRB-M, the maternal grandmother of SRB-M filed a petition for
    emergency temporary and permanent guardianship of SRB-M because the child had been
    in the grandmother’s care from early on, Mother was incarcerated in Colorado and could
    not care for the child, and both Mother and Father consented to the appointment. 
    2009 WY 22
    , ¶¶ 3-4, 201 P.3d at 1116. When Mother was released from prison, she filed a
    motion to terminate the guardianship, alleging that she could care for her child and was
    never adjudicated to be unfit. Id. at ¶ 5, 201 P.3d at 1117. The district court concluded
    that it was in the best interests of the child to continue the guardianship, but set forth a
    visitation schedule intended to gradually increase parental responsibility, while protecting
    the child’s need for stability at the same time. Id. at ¶ 7, 201 P.3d at 1117. On appeal,
    we reversed, holding that because the district court did not find Mother to be unfit, the
    child could not be placed with the grandmother over Mother’s objection. Id. at ¶ 19, 201
    P.3d at 1119-20.
    [¶13] In short, in order to determine whether a guardian should be appointed, the court
    must first determine whether the parents are unfit. If a determination of unfitness is
    4
    made, then the court must look to the best interests of the child to determine an
    appropriate guardian. In re Guardianship of MEO, 
    2006 WY 87
    , ¶ 56, 
    138 P.3d at 1161
    ;
    In re SRB-M, 
    2009 WY 22
    , ¶ 23, 
    201 P.3d at 1121
    . The district correctly applied this
    analysis. The district court examined the question of whether Ms. Eshleman had proven
    Mother and Father unfit by a preponderance of the evidence and concluded she had not.
    [¶14] The district court explained:
    What is most troubling to the Court is the testimony
    that the Court did not hear. The Court did not hear any
    testimony to refute the Rosenberg[s’] claim[s] that they are
    clean and not presently using drugs. The Court heard no
    evidence at all as to any current drug usage by either parent.
    The Court did not hear nor see any documentation
    pertaining to Mrs. Rosenberg’s criminal conviction and her
    jail sentence and whether or not she is still under any kind of
    court supervision.
    The Court did not hear or see any court documentation
    establishing that Mrs. Rosenberg did not have custody or any
    right to visitation with any of her other children. The Court
    did not hear any testimony at all as to the alleged unfitness of
    Mr. Rosenberg. Mr. Rosenberg is the father of this child, and
    his fitness must also be established. There was a surprising
    lack of evidence presented by the Petitioner as to Mr.
    Rosenberg.
    The Court also did not hear any testimony to support
    some of the essential allegations that are contained in the
    petition. For example, there was a complete dearth of
    evidence to suggest that JR has been molested, which
    appeared to be a critical allegation in the original petition. No
    evidence at all was presented to substantiate that allegation.
    ....
    In short, the Court finds that the Petitioner has failed to
    meet her burden of proof.
    [¶15] Ms. Eshleman offers no basis for her contention that the district court held her to a
    higher standard than required by law. The law required her to establish, by a
    preponderance of the evidence, that both parents were unfit at the time of trial. See In re
    5
    SRB-M, 
    2009 WY 22
    , ¶ 23, 
    201 P.3d at 1121
    . Our review of the record reveals that the
    district court was correct in concluding that no evidence was introduced at the hearing
    regarding the present fitness of Mother or Father. The evidence concerning Mother was
    a year old, and there was very little evidence concerning Father at all. Given the lack of
    evidence on the current unfitness of either parent, the district court’s determination was
    not inconsistent with the evidence, clearly erroneous, or contrary to the great weight of
    the evidence. The district court’s legal standard was correct as a matter of law.
    [¶16] Ms. Eshleman also contends that it was error for the district court to disregard the
    testimony and recommendations of the guardian ad litem. The guardian ad litem argued,
    “So my position is that we’ve heard enough to know that they are not fit parents at this
    time. They are not going to be fit parents without help.” She went on to urge the court to
    grant the permanent guardianship to Ms. Eshleman and allow the parents to “get to
    know” their child, and “once they get their act together” they could seek termination of
    the guardianship.
    [¶17] “A court is not required to accept the recommendations of a guardian ad litem. As
    this Court has often said, our rule is that the credibility of witnesses, the weight of the
    evidence, and conflicts in the evidence must be resolved by the finder of fact.” Olsen v.
    Olsen, 
    2013 WY 115
    , ¶ 22, 
    310 P.3d 888
    , 894 (Wyo. 2013) (internal quotation marks and
    citations omitted); see also FFJ v. ST, 
    2015 WY 69
    , ¶ 21, 
    348 P.3d 415
    , 421-22 (Wyo.
    2015) (district court was not required to follow recommendation of guardian ad litem).
    In this instance, based on the evidence before it, the district court disagreed with the
    conclusion urged by the guardian ad litem. The district court found that Ms. Eshleman
    had not met her burden of showing unfitness. For the reasons discussed above, we affirm
    that decision. Just because the guardian ad litem argued that unfitness had been
    established does not make it so. The district court did not abuse its discretion in reaching
    a different conclusion than the guardian ad litem as to whether Mother and Father were
    unfit.
    CONCLUSION
    [¶18] At the hearing on this matter, Ms. Eshleman provided no evidence regarding the
    present fitness of Mother and Father as parents of JR. The district court applied the
    correct burden of proof when it evaluated whether Ms. Eshleman had proven that Mother
    and Father were unfit. The district court’s finding that Ms. Eshleman did not establish by
    a preponderance of the evidence that Mother and Father were unfit was not inconsistent
    with the evidence, clearly erroneous, or contrary to the great weight of the evidence.
    Affirmed.
    6
    

Document Info

Docket Number: S-15-0219

Judges: Burke, Hill, Davis, Fox, Kautz

Filed Date: 3/14/2016

Precedential Status: Precedential

Modified Date: 3/2/2024