                 IN THE SUPREME COURT, STATE OF WYOMING

                                     2015 WY 25


                                                    OCTOBER TERM, A.D. 2014

                                                           February 19, 2015


IN THE MATTER OF THE TERMINATION OF
PARENTAL RIGHTS TO ARW, a minor child:

DRW,

Appellant
(Respondent),
                                                           S-14-0167
v.

DLP and MLP,

Appellees
(Petitioners).


                    Appeal from the District Court of Natrona County
                        The Honorable Daniel L. Forgey, Judge


Representing Appellant:
      Scott C. Murray, Attorney at Law, Casper, Wyoming.

Representing Appellees:
      John D. Chambers, John D. Chambers, P.C., Casper, Wyoming.

Guardian Ad Litem:
     Jacqueline K. Brown, Attorney at Law, Casper, Wyoming.


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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.
BURKE, Chief Justice.

[¶1] Appellant, DRW (Father), appeals from the district court’s order terminating his
parental rights pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iv). He contends the district
court erred in finding that the Indian Child Welfare Act did not apply to the termination
proceedings, and that the court erred in denying his request to set aside the entry of
default. He also claims there was insufficient evidence to support the district court’s
decision. We affirm.

                                        ISSUES

[¶2]   Appellant presents the following issues:

             1. Whether the district court erroneously concluded the
                provisions of the Indian Child Welfare Act did not apply
                to the termination proceedings.

             2. Whether the district court erred in denying Appellant’s
                Motion to Set Aside Default & For Leave to File His
                Answer Out of Time.

             3. Whether the district court properly concluded Appellees
                presented clear and convincing evidence that DRW was
                unfit to have care and custody of ARW.

Appellees phrase the issues in a similar manner.

                                         FACTS

[¶3] Appellant is the father of ARW, born in 2002. Appellees, DLP and MLP
(Adoptive Couple), have been involved in ARW’s life since she was three weeks old,
when ARW’s biological mother began living in Appellees’ home. After Appellant and
ARW’s mother divorced in 2004, Appellees exercised mother’s visitation with ARW
under mother’s shared custody arrangement with Appellant. Both Appellant and ARW’s
mother executed powers of attorney providing that Appellees could have physical
custody of ARW. In August 2012, ARW’s mother, who has had very little involvement
in ARW’s life, consented to termination of her parental rights and to adoption by
Appellees.

[¶4] During ARW’s lifetime, Appellant was incarcerated several times for drug-related
offenses. Due to his incarceration, he did not have contact with ARW until she was
approximately nine months old. On multiple occasions, Appellant or his adult children



                                            1
requested that Appellees retrieve ARW from Appellant’s home because Appellant was
too intoxicated to care for ARW. Appellant consumed alcohol to the point of inebriation
almost every day. On two occasions, the Department of Family Services contacted
Appellees to take care of ARW due to the condition of Appellant’s home. ARW knew
what a marijuana pipe was and had learned how to mix Appellant’s drinks by the time
she was five years old.

[¶5] On March 8, 2012, the mother of one of ARW’s friends reported to the police that
her daughter had been sexually assaulted by Appellant. After receiving the report, the
police went to Appellant’s house and found him to be extremely intoxicated. During
their interview with Appellant, ARW sat on Appellant’s lap and Appellant placed his
hand on ARW’s breast. The police removed ARW from the home and requested that
Appellees take physical custody of ARW. The following day, officers executed a search
warrant and found marijuana paraphernalia and items of pornography mixed in with
children’s books next to Appellant’s bed. Appellant was arrested. He was subsequently
charged with two counts of sexual abuse of ARW’s friend.

[¶6] On July 26, 2012, Appellees were appointed permanent guardians for ARW
without Appellant’s consent. Appellees enrolled ARW in counseling, and the counselor
recommended that Appellant have no contact with ARW. On February 8, 2013,
Appellant pled guilty to two counts of sexual abuse of a minor stemming from his contact
with ARW’s friend.1 He was sentenced to serve concurrent terms of four to seven years


1
 Appellant pled guilty to second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(ii)
and to third degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-316(a)(iv). Those statutes
provide as follows:

               § 6-2-315. Sexual abuse of a minor in the second degree; penalties.

               (a) Except under circumstance constituting sexual abuse of a minor in the
               first degree as defined by W.S. 6-2-314, an actor commits the crime of
               sexual abuse of a minor in the second degree if:

                       ...

                       (ii) Being sixteen (16) years of age or older, the actor engages in
                       sexual contact of a victim who is less than thirteen (13) years of
                       age[.]

               § 6-2-316. Sexual abuse of a minor in the third degree.

               (a) Except under circumstance constituting sexual abuse of a minor in the
               first or second degree as defined by W.S. 6-2-314 and 6-2-315, an actor




                                                   2
on each count.

[¶7] Appellees initiated this action to terminate Appellant’s parental rights on April 8,
2013. The petition alleged that Appellant’s parental rights should be terminated pursuant
to Wyo. Stat. Ann. § 14-2-309(a)(iv), which provides that parental rights may be
terminated if it is shown by clear and convincing evidence that “The parent is
incarcerated due to the conviction of a felony and . . . the parent is unfit to have the
custody and control of the child.” After Appellant failed to file a timely answer to the
petition, the clerk of court entered default against him on May 8, and set a hearing for
June 18. A week prior to the hearing, the court received a letter from Appellant
requesting a continuance. At the hearing, the district court ordered that the matter be
continued pending the appointment of a GAL and the completion of a home study.
Appellant was subsequently granted court-appointed representation on July 26, and on
August 29, he filed his answer and motion to set aside the entry of default.

[¶8] After a hearing, the district court denied the motion to set aside the default and
refused to accept Appellant’s answer to Appellees’ petition to terminate parental rights.
The court determined that Appellant had not demonstrated good cause under W.R.C.P.
55(c) for failing to file his answer in a timely manner.

[¶9] A hearing on Appellees’ petition to terminate parental rights was subsequently
held on February 11, 2014. Because default had been entered, Appellant was limited to
opening and closing remarks and cross-examination of witnesses. During the hearing,
counsel for Appellant informed the court that, according to Appellant, ARW might be an
Indian child, stating that ARW’s mother was “half Apache.” Accordingly, Appellant
claimed that he was entitled to the protections, including the notice requirements, of the
Indian Child Welfare Act.

[¶10] Following the hearing, the district court entered an order terminating Appellant’s
parental rights. The court found that Appellees had proven by clear and convincing
evidence Appellant was incarcerated for a felony conviction and that he was unfit to have
custody and control of ARW. The court also found that the Indian Child Welfare Act



             commits the crime of sexual abuse of a minor in the third degree if:

                     ...

                     (iv) Being seventeen (17) years of age or older, the actor
                     knowingly takes immodest, immoral or indecent liberties with a
                     victim who is less than seventeen (17) years of age and the
                     victim is at least four (4) years younger than the actor.




                                                 3
was inapplicable. Appellant filed a timely appeal.

                                      DISCUSSION

   I.     Application of Indian Child Welfare Act

[¶11] In his first issue, Appellant contends the district court erred in determining that the
Indian Child Welfare Act did not apply to the termination proceedings. Ultimately,
whether the ICWA applied to the termination proceedings is an issue of statutory
interpretation. Statutory interpretation raises questions of law, which we review de novo.
Wyoming Dep’t of Envtl. Quality v. Wyoming Outdoor Council, 2012 WY 135, ¶ 8, 286
P.3d 1045, 1048 (Wyo. 2012).

[¶12] According to Appellant, the district court was required to apply the provisions of
the Act after his counsel informed the court at the termination hearing that, according to
Appellant, ARW’s mother was “half Apache” and ARW was therefore an “Indian child”
under the terms of the ICWA. Accordingly, Appellant asserts that, pursuant to Sections
1912(a) and (f) of the Act, the court was required to “notify the parent or Indian
custodian and the Indian child’s tribe . . . of the pending proceedings and their right of
intervention,” and Appellees were required to demonstrate beyond a reasonable doubt
that “continued custody of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.” Appellees respond that, in
accordance with the United States Supreme Court’s recent decision in Adoptive Couple v.
Baby Girl, 133 S.Ct. 2552, 2562, 186 L.Ed.2d 729 (2013), because ARW’s mother
consented to the relinquishment of her parental rights, and because Appellant has not
claimed any Native American heritage of his own, the termination of Appellant’s parental
rights would not precipitate the “breakup of the Indian family” as contemplated by the
ICWA. We agree with Appellees.

[¶13] In Adoptive Couple v. Baby Girl, 133 S.Ct. at 2558, the biological father, a
member of the Cherokee Nation, agreed to relinquish his parental rights to his baby
daughter. The birth mother then decided to put the baby up for adoption. Id. The
morning after the baby was born, the birth mother signed forms relinquishing her parental
rights and consenting to an adoption by a non-Indian couple. Id. Approximately four
months later, the adoptive couple served the biological father with notice of the pending
adoption. The father signed papers stating that he accepted service and that he was “not
contesting the adoption.” The father subsequently requested a stay of the adoption
proceedings and asserted that he did not consent to the adoption. Id. at 2558-59. After a
trial, the South Carolina Family Court determined that the ICWA applied to the
proceedings and that the adoptive couple had not carried the heightened burden
under §1912(f) of proving that the baby would suffer serious emotional or physical
damage if the father had custody. Id. at 2559. Accordingly, the Family Court denied the



                                             4
adoptive couple’s petition for adoption and awarded custody to the father. Id. The South
Carolina Supreme Court affirmed the Family Court’s decision after determining that the
ICWA applied because the case involved a child custody proceeding relating to an Indian
child. Id. The United States Supreme Court subsequently granted the adoptive couple’s
petition for a writ of certiorari. Id.

[¶14] The U.S. Supreme Court reversed the judgment of the South Carolina Supreme
Court. The U.S. Supreme Court determined, first, that the text of the Act demonstrated
that it was designed primarily to counteract the unwarranted removal of Indian children
from Indian families. Id. at 2561. In light of this purpose, the Court concluded that when
“the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian
parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted
removal of Indian children and the dissolution of Indian families is not implicated.” Id.

[¶15] The Court further determined that the Act’s requirement that remedial services be
provided to prevent the breakup of the Indian family did not apply where an Indian
family’s “breakup” would not be precipitated by the termination of the parent’s rights.
Id. at 2562. The Court held as follows:

             Section 1912(d) provides that “[a]ny party” seeking to
             terminate parental rights to an Indian child under state law
             “shall satisfy the court that active efforts have been made to
             provide remedial services and rehabilitative programs
             designed to prevent the breakup of the Indian family and that
             these efforts have proved unsuccessful.” (Emphasis added.)
             The South Carolina Supreme Court found that Biological
             Father’s parental rights could not be terminated because
             Adoptive Couple had not demonstrated that Biological Father
             had been provided remedial services in accordance with
             §1912(d). 398 S. C., at 647-648, 731 S. E. 2d, at 562. We
             disagree.

             Consistent with the statutory text, we hold that §1912(d)
             applies only in cases where an Indian family’s “breakup”
             would be precipitated by the termination of the parent’s
             rights. The term “breakup” refers in this context to “[t]he
             discontinuance of a relationship,” American Heritage
             Dictionary 235 (3d ed. 1992), or “an ending as an effective
             entity.” Webster’s 273 (defining “breakup” as “a disruption or
             dissolution into component parts: an ending as an effective
             entity”). See also Compact OED 1076 (defining “break-up”
             as, inter alia, a “disruption, separation into parts,



                                            5
              disintegration”). But when an Indian parent abandons an
              Indian child prior to birth and that child has never been in the
              Indian parent’s legal or physical custody, there is no
              “relationship” that would be “discontinu[ed]” — and no
              “effective entity” that would be “end[ed]” — by the
              termination of the Indian parent’s rights. In such a situation,
              the “breakup of the Indian family” has long since occurred,
              and §1912(d) is inapplicable.

              Our interpretation of §1912(d) is, like our interpretation of
              §1912(f), consistent with the explicit congressional purpose
              of providing certain “standards for the removal of Indian
              children from their families.” §1902 (emphasis added); see
              also, e.g., §1901(4); Holyfield, 490 U. S., at 32-34, 109 S. Ct.
              1597, 104 L. Ed. 2d 29. In addition, the BIA’s Guidelines
              confirm that remedial services under §1912(d) are intended
              “to alleviate the need to remove the Indian child from his or
              her parents or Indian custodians,” not to facilitate a transfer
              of the child to an Indian parent. See 44 Fed. Reg., at 67592
              (emphasis added).

Id. at 2562-63.

[¶16] We note that Appellant does not provide any discussion of the U.S. Supreme
Court’s decision in Adoptive Couple v. Baby Girl. In any event, however, we would
agree with the reasoning of the Supreme Court and conclude that it applies with equal, if
not greater, force in the present case. In this case, Appellant has not asserted that he has
any Native American heritage that would qualify ARW as an “Indian child” under the
ICWA. Rather, he claims that ARW “might be” an “Indian child” because ARW’s
mother is “half Apache.” ARW’s mother, however, relinquished her parental
responsibilities to Appellees soon after ARW’s birth, and she allowed them to exercise
her custody and visitation rights after she was divorced from Appellant. Further, ARW’s
mother consented to termination of her parental rights in the adoption proceedings.
Accordingly, as in Adoptive Couple v. Baby Girl, the “breakup” of an Indian family
would not be precipitated by the termination of Appellant’s parental rights. We find no
error in the district court’s conclusion that the ICWA did not apply to the termination
proceedings.

   II.    Motion to Set Aside Default

[¶17] In his second issue, Appellant contends the district court abused its discretion in
refusing to set aside the entry of default against him. “Decisions resolving motions for



                                             6
setting aside the entry of default or a default judgment are made in the exercise of sound
discretion by the trial court.” Fluor Daniel, Inc. v. Seward, 956 P.2d 1131, 1134 (Wyo.
1998).

              Rules 55(c) and 60(b), W.R.C.P., are remedial and are
              intended to promote decisions on the merits when possible. A
              trial court has wide judicial discretion to grant or deny a
              defendant’s motion under these rules. We will not disturb the
              exercise of that discretion unless appellant demonstrates that
              the trial court abused it and was clearly wrong.

Nowotny v. L & B Contract Indus., 933 P.2d 452, 460 (Wyo. 1997) (quoting Claassen v.
Nord, 756 P.2d 189, 193 (Wyo. 1988)) (internal citations omitted). The proponent of a
motion to set aside default has the burden of proving that he is entitled to relief. Lykins v.
Habitat for Humanity, The Heart of Wyo., Inc., 2010 WY 118, ¶ 10, 237 P.3d 405, 408
(Wyo. 2010).

[¶18] W.R.C.P. 55(c) provides that “For good cause shown the court may set aside an
entry of default and, if a judgment by default has been entered, may likewise set it aside
in accordance with Rule 60(b).” Rule 60(b), in turn, provides in relevant part as follows:

              Rule 60. Relief from judgment or order.

              ...

              (b) Other reasons. — On motion, and upon such terms as are
              just, the court may relieve a party or a party’s legal
              representative from a final judgment, order, or proceeding for
              the following reasons: (1) mistake, inadvertence, surprise, or
              excusable neglect; (2) newly discovered evidence which by
              due diligence could not have been discovered in time to move
              for a new trial under Rule 59(b); (3) fraud (whether
              heretofore      denominated      intrinsic    or      extrinsic),
              misrepresentation, or other misconduct of an adverse party;
              (4) the judgment is void; (5) the judgment has been satisfied,
              released, or discharged, or a prior judgment upon which it is
              based has been reversed or otherwise vacated, or it is no
              longer equitable that the judgment should have prospective
              application; or (6) any other reason justifying relief from the
              operation of the judgment.

We have previously held that the factors described in Rule 60(b) are relevant to our



                                              7
determination of whether the defendant has shown “good cause.” Vanasse v. Ramsay,
847 P.2d 993, 999 (Wyo. 1993). If the defendant “cannot substantiate reasons under Rule
60(b) for setting aside the default judgment, then ‘good cause’ also does not exist to set
aside the entry of default under Rule 55(c).” Id.; see also M & A Constr. Corp. v. Akzo
Nobel Coatings, 936 P.2d 451, 454-55 (Wyo. 1997).

[¶19] Appellant contends that he provided good cause for relief from the entry of default
under W.R.C.P. 55(c) because he was transferred from the Wyoming Medium
Correctional Institution in Torrington, Wyoming to the Wyoming Honor Farm in
Riverton, Wyoming around the time that the petition to terminate parental rights was
filed. In his brief, he claims that “while incarcerated and being transferred to a new
facility, [he] did not have possession of the Petition and Summons, and was therefore
unable to respond in a timely manner.” We find no evidentiary support for Appellant’s
argument.

[¶20] In his motion to set aside the default, Appellant provided no indication as to why
he had not timely filed his response to the petition to terminate parental rights. At the
hearing on his motion, which was not reported, Appellant’s counsel apparently contended
that Appellant lacked “access” to the petition to terminate parental rights because he had
been transferred to another correctional facility. Appellant, however, presented no
evidence to support that contention. The record indicates that Appellant was served with
copies of the petition and summons on April 12, 2013 at the Wyoming Medium
Correctional Institution in Torrington. In light of these facts, the district court concluded
as follows:

              [Appellant] has never provided the Court any reason, let
              alone good cause, for why he did not respond to the petition
              until well after the default had been entered. Neither the
              letters [Appellant] wrote to the Court nor his formal motion
              seeking to set aside the default do so. [Appellant’s] counsel
              contended at the hearing that there may have been – that he
              may have been transferred to another institution during the
              relevant time period and not had access to his mail or papers,
              but there’s not much support for that in the record; and,
              essentially, it would be speculative to make that conclusion
              based on the record, although certainly counsel was doing her
              best to represent [Appellant’s] interests in this case.

              ...

              Based on the record before the Court, [Appellant] is entirely
              culpable for failing to respond to the petition in a timely



                                             8
              manner as previously stated.

We agree with the district court. Ultimately, Appellant presented no evidence to support
his contention that he did not have access to the petition when he was transferred to a
different correctional facility. Accordingly, we find no abuse of discretion in the district
court’s determination that Appellant failed to carry his burden of demonstrating his
entitlement to relief under Rule 55(c).

   III.   Sufficiency of the Evidence

[¶21] In his final issue, Appellant claims that Appellees presented insufficient evidence
to support the termination of his parental rights.

              We apply traditional principles of evidentiary review when a
              party challenges the sufficiency of the evidence supporting
              termination. R.L.A. v. State Dep’t of Family Services (In re
              L.A.), 2009 WY 109, ¶ 12, 215 P.3d 266, 268 (Wyo. 2009).
              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. Id. Because the right to associate with
              one’s family is fundamental, however, we strictly scrutinize
              petitions to terminate parental rights. M.L. v. Laramie County
              Dep’t of Family Servs. (In the Interest of L.L.), 2007 WY 92,
              ¶ 9, 159 P.3d 499, 501 (Wyo. 2007). 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. Id. 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. Id.

ZMETS v. State, 2012 WY 68, ¶ 8, 276 P.3d 392, 394-95 (Wyo. 2012).

[¶22] Appellees petitioned to terminate Appellant’s parental rights under Wyo. Stat.
Ann. § 14-2-309(a)(iv) (LexisNexis 2013). That statute provides as follows:

              § 14-2-309. Grounds for termination of parent-child
              relationship; clear and convincing evidence.

                     (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:



                                             9
                           ...

                           (iv) The parent is incarcerated due to the
                           conviction of a felony and a showing that the
                           parent is unfit to have the custody and control
                           of the child[.]

Appellant does not dispute that he was incarcerated for a felony conviction at the time of
the termination hearing. Appellant claims that the evidence was insufficient to establish
by clear and convincing evidence that he was unfit to have custody and control of ARW.
The termination statutes do not define the term “unfit.” However, we have previously
held that

             [F]itness includes the ability to meet the ongoing physical,
             mental and emotional needs of the child. Whether a parent is
             fit to have custody and control of a child is a decision that
             must be made within the context of a particular case and
             depends upon the situation and attributes of the specific
             parent and child.

AJJ v. State (In re KMJ), 2010 WY 142, ¶ 15, 242 P.3d 968, 971 (Wyo. 2010). A
parent’s fitness is measured at the time of the termination proceedings. That does not
mean, however, that the district court must ignore evidence of a parent’s previous
unfitness. Id., ¶ 17, 242 P.3d at 971.

[¶23] We find ample evidence in the record to support the conclusion that Appellant is
not fit to have custody and control of ARW. The fact that Appellant is incarcerated, by
itself, is not sufficient to establish unfitness. NLT v. State (In re KAT), 2012 WY 150, ¶
26, 288 P.3d 1217, 1224 (Wyo. 2012). “[I]ncarceration is, however, a reality that
severely impacts the parent-child relationship and therefore cannot be ignored.” Id.
(quoting CDB v. DJE, 2005 WY 102, ¶ 6, 118 P.3d 439, 441 (Wyo. 2005)). Ultimately,
Appellant’s ability to meet ARW’s ongoing physical, mental, and emotional needs will
be severely restricted during the period in which he is incarcerated. Further, the reason
for Appellant’s incarceration is also evidence that he is unfit to care for ARW. NLT, ¶
27, 288 P.3d at 1224. Appellant was convicted of two counts of sexual abuse of a minor.
While this behavior may not have been physically directed toward ARW, his crimes
indicate extreme moral delinquency, and suggest that he is not fit to care for ARW. Id.
(citing In re Adoption of JLP, 774 P.2d 624, 632 (Wyo. 1989)).

[¶24] Additionally, the evidence indicated that Appellant was unable to provide a clean
or safe home environment for ARW. While Appellant had custody of ARW, Appellees



                                           10
were called by various parties on numerous occasions to care for ARW due to the
condition of Appellant’s home and his level of intoxication. During ARW’s childhood,
Appellant consumed alcohol to the point of inebriation on a daily basis. As a result of
exposure to Appellant’s alcohol and drug use, ARW knew what a marijuana pipe was and
had learned how to mix Appellant’s drinks when she was five years old.

[¶25] The evidence also indicated that Appellant took no responsibility for ARW’s
schooling or medical needs. Appellant did not transport ARW to or from school, did not
participate in parent-teacher conferences, and did not plan or pay for extracurricular
activities. Appellant also did not schedule, attend, or transport ARW to doctor’s
appointments with her pediatrician, dentist, optometrist, or primary care physician.
Finally, the evidence indicated that Appellant has not respected the recommendation of
ARW’s counselor that Appellant have no contact with ARW. All of this evidence, in
addition to Appellant’s convictions for sexual abuse of a minor, indicates that he is
unable to meet ARW’s ongoing physical, mental, and emotional needs. We conclude that
Appellees presented clear and convincing evidence that Appellant is unfit to have custody
and control of ARW.

[¶26] Affirmed.




                                           11
