In Re Kmj
2010 WL 4351954
| Wyo. | 2010Background
- AJJ is the father of KMJ (born 2003) and JDAJ (born 2004); their mother died in 2007 while AJJ was incarcerated.
- DFS has had custody of the children since their mother's death due to AJJ's incarceration and prior history of inability to care for them.
- DFS's initial involvement began in 2003 with concerns about the home being unsafe and unsanitary, and KMJ's early protective custody concerns.
- AJJ has three felony convictions, including a 2004 federal sentence for being a felon in possession of a firearm and ammunition; he previously injured a child in a 1996 case and was convicted of battery in 1990 and grand larceny in 1994.
- In 2005-2006 DFS proposed reunification only after services to preserve the family; after the mother’s death, MDT recommended adoption due to ongoing concerns and AJJ's incarceration.
- From 2008 onward, a case plan sought housing, employment, counseling, and regular visitation; AJJ failed to consistently participate in counseling, education, and visitation, and rarely contacted the children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there clear and convincing proof of unfitness to have custody? | AJJ argues DFS failed to prove unfitness as of termination. | DFS contends the district court properly found unfitness based on history and current deficiencies. | Yes; unfitness supported by multiple factors and current conditions. |
| Did DFS need to prove less intrusive alternatives were impractical under §14-2-309(a)(v)? | AJJ asserts DFS must show less intrusive options were impractical. | DFS argues §14-2-309(a)(v) does not require such proof; only §14-2-309(a)(iii) does. | No; not required under §14-2-309(a)(v). |
Key Cases Cited
- In re AE, 208 P.3d 1323 (Wyo. 2009) (unfitness at time of termination; rehabilitation not required for all subsections)
- In re SJJ, 104 P.3d 74 (Wyo. 2005) (rehabilitation efforts only required for §14-2-309(a)(iii))
- TR v. Washakie County Dep't of Public Assistance, 736 P.2d 712 (Wyo. 1987) (reasonable efforts to rehabilitate required for §14-2-309(a)(iii))
- In re Parental Rights of PP, 648 P.2d 512 (Wyo. 1982) (guardian guardianship as less intrusive option not resolved here)
- Laramie County Dep't of Family Servs. v. BA, 163 P.3d 844 (Wyo. 2007) (standard for reviewing termination evidence; defer to district court demeanor)
- JLW v. CAB, 224 P.3d 14 (Wyo. 2010) (clear and convincing standard and evidence sufficiency in termination)
- In re AE, 208 P.3d 1323 (Wyo. 2009) (see above; repeated to emphasize current fitness evaluation)