               IN THE SUPREME COURT, STATE OF WYOMING

                                       2016 WY 117

                                                          OCTOBER TERM, A.D. 2016

                                                                  December 9, 2016

IN THE INTEREST OF: RAA, AMA,
and CMA, Minor Children,

RA,

Appellant
(Defendant),
                                                     S-16-0109
v.

AW,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                        The Honorable Steven K. Sharpe, Judge

Representing Appellant:
      Deborah Ford Mincer, Attorney at Law, Cheyenne, Wyoming

Representing Appellee:
      Mark A. Bishop, Bishop Law Offices, Cheyenne, Wyoming

Guardian ad Litem:
     Carol A. Serelson, Attorney at Law, Cheyenne, Wyoming

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.
DAVIS, Justice.

[¶1] RA (Father) appeals a district court decision terminating his parental rights. He
argues that the statutory requirements for termination in Wyo. Stat. Ann. § 14-2-309(a)(i)
(LexisNexis 2015) were not met. We agree with Father that communications he directed
to his children were not merely incidental. As a result, the requirement that there be no
communication from the absent parent for a period of at least one year was not proven by
clear and convincing evidence. We must therefore reverse.

                                                 ISSUE

[¶2] While Father presents a number of issues, we find the following narrow question
dispositive: Were Father’s communications to his children merely incidental so as to
allow his parental rights to be terminated pursuant to § 14-2-309(a)(i)?

                                                FACTS

[¶3] Father and AW (Mother) married in 1998. They had three children together.
While the family was living in Texas, Father was arrested in August of 2006 on federal
charges involving white collar crimes. Eventually he pled guilty to two counts of the
indictment against him: conspiracy to commit wire fraud and aggravated identity theft,
and conspiracy to commit money laundering.1 Father was sentenced to 120 months in
prison.

[¶4] Mother and the children visited Father in county jail at least once right after his
arrest, and Mother also wrote him letters for a while. As time went on, Mother felt it was
best to protect the children by moving on and putting some distance between them and
Father. Mother became the gatekeeper of the communications between Father and the
children. She filed for divorce in Texas, and a divorce decree was entered in February of
2007. Father did not participate in the proceedings, so the decree was entered by default.
It provided in part:

                [RA] is currently incarcerated in the Hunt County Jail,
                Greenville, Texas awaiting trial on several criminal offenses
                and that his release therefrom is not imminent. It is therefore
                ordered that in the event [RA] is released from detention that


1
  Later on, Father tried to withdraw his plea based on a claim that he was the victim of misrepresentations
by his court-appointed attorney, and that he was in fact innocent of the charges. He pursued efforts to
have his conviction set aside through various procedures in the federal courts in Texas. Those courts
found his claims to be without merit. The court in this termination case likewise found the claims to be
incredible, and the record certainly contains support for that conclusion. However, lack of remorse has no
bearing on the statutory provisions for termination of parental rights.


                                                     1
                he may petition the court for access and possession with the
                children.

                                            *       *       *

                [RA] is currently incarcerated in the Hunt County Jail,
                Greenville, Texas awaiting trial on several criminal offenses
                and that his release therefrom is not imminent. It is therefore
                ordered that in the event [RA] is released from detention that
                either of the parties may petition the court for child support
                and provisions for healthcare for the children.

[¶5] Mother remarried in 2008, and she and the children moved from Texas to
Wyoming with her new husband. Mother, the children, and her new husband were able
to pick up the pieces and make a new life for themselves.2

[¶6] During the years he was in prison, Father sent letters and cards to the children.
From 2008 until his release in 2014, he sent over forty letters and cards to his children.
The substance of those communications varied from a few sentences to full-page letters
to each child. The content is about what one might expect from a person in Father’s
position. He sent cards on various holidays and birthdays, reminded the children of
things they had done together before he was arrested, and wrote of how he looked
forward to seeing them again when he got out of prison.

[¶7] Whether these communications reached the children was for Mother to decide.
She withheld some of them because Father referred to law enforcement as the “bad
police,” and Mother felt such statements were inappropriate for the children to see.3 The
children did not write back after Father was in prison – Mother testified that this was
because they did not want to do so, and she did not make them.




2
  After Father was arrested, Mother and the children were left without a home or any funds to support
themselves. Mother was forced to file for bankruptcy, to seek public assistance in the form of food
stamps and Medicaid, and to move into her parent’s home with the children. To her great credit, Mother
went back to school to become a dental hygienist so that she could provide for the children. She then met
her current husband, with whom she moved to Wyoming. By all accounts, Mother’s current husband has
treated the children as his own (the couple has since had children between them), and has been a good
father to all. He expressed willingness to adopt the children if Father’s parental rights were terminated.
3
  In 2009, the children’s paternal grandparents’ petitioned a Texas court to be able to communicate with
the children because Mother had cut off their access. That court entered an order finding it in the
children’s best interest to have contact with the grandparents and allowing them to communicate with
their grandchildren under certain conditions.


                                                     2
[¶8] Father was granted supervised release from federal prison in November of 2014.4
That same month, he had his attorney email Mother about visitation, which the Texas
divorce decree indicated he might be granted upon release from his charges. See supra, ¶
4. Mother, acting through her attorney, would not agree to any visitation (including by
phone), which prompted Father to file a petition in Laramie County (where Mother and
the children now reside) to establish visitation on January 9, 2015. In response, on
January 30, 2015, Mother filed a petition to terminate Father’s parental rights.5

[¶9] The district court held a trial on the petition for termination, planning to proceed
with a later hearing on visitation if Father’s rights were not terminated. Various
witnesses testified, including Father and Mother. A number of exhibits were also
received. The district court found that Mother had proven grounds to terminate Father’s
parental rights under § 14-2-309(a)(i) by clear and convincing evidence, and that it was
also in the children’s best interest to do so. It determined that Father had left his children
in the care of Mother without provision for support and without communication for a
period of at least a year. With regard to Father’s letters and cards to his children, the
district court found them to be incidental communications which did not prevent
termination.6

[¶10] Father timely perfected this appeal.

                                   STANDARD OF REVIEW

[¶11] The issue before us presents a mixed question of law and fact. We must first
interpret the word “incidental” as set forth in Wyo. Stat. Ann. § 14-2-309(a)(i). Statutory
interpretation raises a question of law, which we review de novo. In re ARW, 2015 WY
25, ¶ 11, 343 P.3d 407, 410 (Wyo. 2015). We then need to decide whether the evidence
was sufficient to clearly and convincingly prove grounds for termination of parental
rights under the aforementioned statute.

                We apply traditional principles of evidentiary review when a
                party challenges the sufficiency of the evidence supporting
                termination. We examine the evidence in the light most
                favorable to the party prevailing below, assume all favorable
                evidence to be true, and disregard conflicting evidence
                presented by the unsuccessful party. Because the right to

4
  This is similar to parole in our state system. Father evidently received some form of good time or other
credit to shorten his ten-year sentence.
5
  In August of 2015, Father tried to see one of his children at school in Cheyenne, but that attempt was
unsuccessful.
6
  In her petition, Mother also claimed that Father’s parental rights should be terminated on the grounds
stated in Wyo. Stat. Ann. §§ 14-2-309(a)(iii) and (a)(iv). The district court found that neither of these
grounds fit or applied to the facts before it. Mother did not appeal that determination.


                                                     3
              associate with one’s family is fundamental, however, we
              strictly scrutinize petitions to terminate parental rights. As
              part of our strict scrutiny standard, we require that a case for
              termination of parental rights must be established by clear and
              convincing evidence. Clear and convincing evidence is that
              kind of proof that would persuade a trier of fact that the truth
              of the contention is highly probable.

In re HLL, 2016 WY 43, ¶ 39, 372 P.3d 185, 193 (Wyo. 2016) (quoting In re ARW, ¶ 21,
343 P.3d at 413).

                                      DISCUSSION

[¶12] This Court is well aware that termination of parental rights is an extremely
important and highly emotional issue. In re FM, 2007 WY 128, ¶ 27, 163 P.3d 844, 851
(Wyo. 2007). We have expressed our belief “that parents should not be given numerous
chances after failing to adequately care for their children” because the “children are the
victims in these situations and are being forced to suffer needlessly.” Id. Bringing a
child into this world is not simply a right, but a right with great responsibilities. Id.

[¶13] We have tempered that pronouncement by recognizing that “parents facing the
termination of their parental rights—fundamental constitutional rights—must be afforded
every procedural and substantive protection the law allows.” Id., ¶ 28, 163 P.3d at 851.
Indeed, “[t]ermination of parental rights is the family law equivalent of the death penalty
in a criminal case.” Id.

[¶14] With this delicate and difficult balance in mind, we turn to Father’s contentions.
Section 14-2-309(a)(i) provides one of several statutory bases for termination of parental
rights:

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

                     (i) The child has been left in the care of another person
              without provision for the child’s support and without
              communication from the absent parent for a period of at least
              one (1) year. In making the above determination, the court
              may disregard occasional contributions, or incidental
              contacts and communications. For purposes of this paragraph,
              a court order of custody shall not preclude a finding that a
              child has been left in the care of another person[.]



                                              4
Wyo. Stat. Ann. § 14-2-309(a)(i) (emphasis added). When we break this section down,
we find that there are three conditions that must be satisfied by clear and convincing
evidence: (1) the children have been left in the care of another; (2) without provision for
support; and (3) without communication from the absent parent. In re Termination of
Parental Rights to IH, 2001 WY 100, ¶ 19, 33 P.3d 172, 180 (Wyo. 2001). All three
conditions must have occurred for a period of at least one year. Id.

[¶15] We need not consider whether Father left the children in the care of another when
he was incarcerated, nor do we need to decide whether he failed to provide for their
support.7 The narrow issue upon which this cases hinges is whether Mother established
by clear and convincing evidence that there was no communication from Father for a
period of at least one year. Interwoven into this overarching question is whether Father
did communicate with his children, and whether any such communications were
incidental and could therefore be disregarded.

[¶16] Addressing the legal question first, our task is to determine what the word
“incidental” means in the context of Wyo. Stat. Ann. § 14-2-309(a)(i). The legislature
did not define this term in the statute, so we must employ our usual tools of statutory
interpretation. We first look to the language used to determine how the legislature
intended the statute to be applied. In re CDR, 2015 WY 79, ¶ 19, 351 P.3d 264, 268-69
(Wyo. 2015). If the language is sufficiently clear and unambiguous, we simply apply the
statute’s words according to their ordinary and obvious meaning. Id.

[¶17] We find the language is sufficiently clear and unambiguous and the ordinary and
obvious meaning of “incidental” as used in the statute is a casual minor occurrence that is
insignificant and of little consequence. See Matter of Adoption of McMullen, 691 P.2d
17, 20 (Kan. 1984) (“[T]the term ‘incidental’ as used in the statute means ‘casual; of
minor importance; insignificant; of little consequence.’”); see also In re Adoption of Baby
Girl P., 242 P.3d 1168, 1175 (Kan. 2010) (finding father’s conduct more than incidental).
We must make clear that “incidental” is not limited to something occurring merely by
chance or without any intention. In other words, even intentional communications can be
considered incidental, just as those that happen by chance can. To exclude intentional
contacts from the scope of the term “incidental” would be contrary to the legislative
intent of Wyo. Stat. Ann. § 14-2-309(a)(i) and our precedent. See infra, ¶¶ 18-20.

[¶18] When we examine the evidence presented in the light favorable to Mother, the
prevailing party below, we cannot find clear and convincing evidence that Father’s
communications to the children were merely incidental. Father consistently tried to
7
  These are difficult questions. The district court held that Father had left the children in Mother’s care by
committing a crime which led to incarceration. This is not a basis specifically identified in the TPR
statutes. It also held that Father had failed to provide support, even though the Texas divorce decree did
not specify any child support obligation during incarceration. As noted, we do not address those rulings,
and in refraining from doing so, we do not tacitly approve them.


                                                       5
communicate with his children by sending letters and cards to them during his years in
prison.8 See supra, ¶ 6. We have carefully reviewed these communications and are
convinced that their consistency and substance are enough to take them out of the realm
of the merely incidental.

[¶19] It is helpful to compare a few cases in which this Court found communication so
lacking as to be incidental, and therefore to warrant termination of parental rights under §
14-2-309(a)(i). In the case of In re SJJ, we found the district court’s conclusion that the
absent parent had very limited, sporadic contact with the children for five years was
supported by sufficient evidence. 2005 WY 3, ¶¶ 27-29, 104 P.3d 74, 81-82 (Wyo.
2005). During the first year the parent called the children two or three times and that
during the entire five years the parent visited them only once for approximately forty-five
minutes. Id.

[¶20] Likewise, in In Interest of DG, this Court again had occasion to elucidate
circumstances where a parent’s communications could be considered incidental. 916
P.2d 991, 996 (Wyo. 1996). We determined that DFS had demonstrated the parent had
only sporadic and minimal telephone and physical contact with her children after they
were taken into protective custody. Id. Specifically, over the course of the first year, the
parent had only incidental contact with her children consisting of four telephone contacts,
two letters and two short visits. Id. The next year, the parent participated in two visits
with her children and failed to visit them on several other occasions. Id. And the five
years after that, the parent had only five telephone conversations with her children. Id.;
see also Matter of SKJ, 673 P.2d 640, 643 (Wyo. 1983) (finding parent’s
communications incidental).

[¶21] The record in this case demonstrates that Father made more than token efforts to
maintain a relationship with his children while he was incarcerated.9 From 2008 through
2014, he consistently sent letters and cards to his children. He did so in spite of the fact
that he was sending them into a void from which no communication from the children
came back. As soon as he was placed on supervised release, he attempted to initiate
communication through visitation, as the Texas decree provided he could.10 In summary,
Father did just enough to avoid satisfying the statute’s requirements.


8
  These communications are in the record, and do not require any type of credibility determination. The
issue is the fact of communication proven by the letters and cards, the authenticity of which was not
disputed.
9
  Confinement does not discharge a parent’s obligation to continue a relationship with his or her children
through such communications as are possible under the circumstances.
10
   Father also testified that he tried to telephone his children, but those calls went unanswered. The
district court noted that Father did not provide any phone records of his attempts, and found Father’s
testimony incredible. Accordingly, viewing the evidence in a light most favorable to Mother, we do not
give much weight to his alleged attempts to call his children.


                                                     6
[¶22] We might in a case not involving the fundamental right of familial association
defer to a greater degree to the district court’s findings. However, if our promise to
strictly scrutinize findings in these cases means anything, it must be that we will closely
examine those findings in relation to the evidence presented. When we do so, we find
that the evidence falls short of meeting Mother’s burden to prove grounds for termination
under § 14-2-309(a)(i) by clear and convincing evidence.

[¶23] Wyoming’s termination statutes were not intended as a path for a divorced parent
to deprive his or her incarcerated former spouse of that fundamental right, except in those
situations expressly provided for in the statutes, and those must be strictly construed. See
In re ANO, 2006 WY 74, ¶ 23, 136 P.3d 797, 803 (Wyo. 2006). The district court’s
finding that termination might be in the children’s best interest may very well be socially
desirable, given Father’s background, Mother’s provision for them, and Mother’s current
husband’s admirable qualities as a stepfather. However, courts cannot reach the question
of best interest until grounds for termination are proven by clear and convincing
evidence, which they were not here. In re FM, ¶ 22, 163 P.3d at 850.

[¶24] This is a difficult situation for all involved, and this ruling certainly does not
resolve these inherent difficulties. But on the evidence before us, Father’s parental rights
cannot be irrevocably terminated. We recognize that Mother has valid concerns about
Father exercising visitation with the children. District courts have a great deal of
discretion in fashioning visitation that is in the best interest of the children. See Arnott v.
Arnott, 2012 WY 167, ¶ 11, 293 P.3d 440, 444 (Wyo. 2012). There are ways to do so
that minimize any risks, including supervised visitation, monitored telephone visitation,
graduated visitation, and others. We trust the district court will choose the method of
visitation which serves the children’s best interests in these difficult circumstances.

[¶25] Reversed and remanded for further proceedings consistent with this opinion.




                                               7
