IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS TO: L-MHB, minor child, DENISE LYNN METS, f/k/a DENISE LYNN FENSTERMACHER, Appellant (Respondent), v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner).
S-19-0079
IN THE SUPREME COURT, STATE OF WYOMING
January 2, 2020
2020 WY 1
OCTOBER TERM, A.D. 2019
January 2, 2020
IN THE MATTER OF THE
TERMINATION OF PARENTAL
RIGHTS TO: L-MHB, minor child,
DENISE LYNN METS,
f/k/a DENISE LYNN
FENSTERMACHER,
Appellant
(Respondent),
v.
STATE OF WYOMING, DEPARTMENT
OF FAMILY SERVICES,
Appellee
(Petitioner).
S-19-0079
Appeal from the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellant:
Tyler J. Garrett and Katie J. Koski, Hathaway & Kunz LLP, Cheyenne, Wyoming.
Argument by Ms. Koski.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney
General; Jill E. Kucera, Senior Assistant Attorney General; Wendy S. Ross, Senior
Assistant Attorney General. Argument by Ms. Ross.
Guardians ad Litem:
Dan Wilde, Deputy State Public Defender; Joseph R. Belcher, Chief Trial and
Appellate Counsel, Wyoming Guardian ad Litem Program, a division of the Office
of the State Public Defender. Appearance by Mr. Belcher.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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.
[¶1] Denise Lynn Mets (Mother) appeals the district court order terminating her
parental rights. A jury returned a verdict finding clear and convincing evidence for
termination on two separate statutory grounds,
(parental neglect of the child and reasonable efforts to rehabilitate the family
unsuccessful) and
most recent twenty-two months and parent unfit to have custody). See infra ¶¶ 17–18.
The district court entered its order terminating parental rights on February 8, 2019.
Mother contends the district court abused its discretion when it admitted privileged
evidence through physician testimony and an associated medical record. We affirm.
ISSUE
[¶2] Was Mother prejudiced by the admission of her physician’s testimony or the
related 2011 medical record?
FACTS
[¶3] Mother gave birth to L-MHB on April 15, 2014, and, almost immediately, the
child was placed in protective custody because of concerns that Mother posed a danger to
the child and was unable to properly care for her. In Interest of L-MHB, 2017 WY 110,
¶ 1, 401 P.3d 949, 951 (Wyo. 2017). Shortly thereafter, the Department of Family
Services (DFS) filed a neglect petition in the juvenile court and L-MHB was placed in
foster care. Matter of Adoption of L-MHB, 2018 WY 140, ¶ 3, 431 P.3d 560, 563 (Wyo.
2018). The juvenile court adjudicated L-MHB neglected. In Interest of L-MHB, ¶¶ 11–
12, 401 P.3d at 953. Initially, the permanency goal was reunification but eventually
changed from reunification to adoption. Id. ¶¶ 13–14, 20, 401 P.3d at 954, 956. Mother
appealed that decision and it was affirmed. Id. ¶ 44, 401 P.3d at 962. DFS filed a
petition to terminate Mother’s parental rights on May 3, 2017. In January 2019, a five-
day trial resulted in a jury determination that clear and convincing evidence existed to
support terminating Mother’s parental rights.
Relevant Procedural Background: Dr. Collison and the Cheyenne Regional Medical
Center (CRMC) Motion to Quash
[¶4] Prior to trial, DFS issued subpoenas for several CRMC employees, including Dr.
Jason Collison.1 CRMC moved to quash
Hospital Records Act and Mother’s refusal to consent to the testimony. In a prior
previously provided treatment to Mother.
juvenile court action, In Interest of L-MHB, Mother had signed a release giving her
juvenile action attorney access to her medical records, including records from 2011 when
she was under the supervision of Dr. Collison. In addition to Mother’s release to her
attorney, the juvenile court in that proceeding had also ordered Mother to release her
psychological records to DFS and the guardian ad litem (GAL). In Interest of L-MHB,
¶¶ 12–13, 401 P.3d at 954. Mother produced these records to DFS through her attorney.
In 2014, Mother expressly revoked “any further release of medical records” previously
granted to DFS. In 2015, Mother executed a separate release in favor of DFS for Dr.
Kenneth Bell, a psychologist.
[¶5] On the first day of the 2019 termination trial involving L-MHB, DFS responded to
CRMC’s motion to quash, asserting Mother had waived any claims of privilege because
her attorney in the preceding juvenile neglect case had provided Mother’s medical
records to DFS. CRMC withdrew its motion. Mother did not separately object in writing
to potential CRMC witnesses identified by DFS, including Dr. Collison.
Dr. Collison’s Testimony and Exhibit 8
[¶6] Dr. Collison testified on the second day of the trial. At the commencement of his
testimony, Mother objected, asserting the physician-patient privilege. Mother claimed
she had consistently refused to sign a release of medical records. DFS assured the district
court that it had an express release from Mother authorizing disclosure, and that these
medical records had been previously produced in the separate juvenile action. DFS
claimed that Mother’s prior release amounted to a complete release and waiver of the
CRMC medical records, including Dr. Collison’s testimony. The district court overruled
Mother’s objection.
[¶7] Dr. Collison did not recall when he first encountered Mother, and DFS counsel
introduced Exhibit 8—an August 6, 2011 history and physical report prepared by Dr.
Collison. Mother objected to the report, asserting privilege, and the district court
overruled the objection.
[¶8] Dr. Collison testified that Mother was admitted to CRMC Behavioral Health
Services in 2011 because of a “suicide attempt.” At that time, Mother was “agitated” and
was given medications to control her behavior and her potassium levels. Dr. Collison
was “unsuccessful” in gathering information from Mother because she “refused” to talk
to him, and he documented that he had “limited information.” He noted the crisis
therapist reported that Mother had been living in a park and that Mother’s insight and
judgment appeared to be poor. His assessment was that she had “depressive disorder not
otherwise specified.” He “rated her suicide risk . . . as high due to the recent suicide
attempt.” He had no recollection of when Mother was released and no recall of any
interactions with Mother during her stay because “[i]n all likelihood” the regular inpatient
attending physician (and not Dr. Collison) would have been her doctor during her
hospitalization. Dr. Collison also had no recollection of Mother’s January 2013
admission to CRMC Behavioral Health Services. He had no recollection of how many
times he saw Mother, but had documentation of seeing her only once, in 2011. He
testified generally about the symptoms of depression, what it means to have poor insight
and judgment, and the definition of dysphoric mood and labile behavior.2 Dr. Collison’s
actual testimony, excluding the privilege objections and rulings, comprises less than
fifteen pages of the 1156-page trial transcript. Exhibit 8 is a two-page history and
physical report. It documents Dr. Collison’s interaction with Mother and contains the
same information as Dr. Collison’s testimony.
Overview of Other Evidence
[¶9] DFS called a total of seventeen witnesses at trial. DFS presented other evidence
health needs, obtain counseling, or take prescribed medications. DFS presented evidence
that Mother continually failed to cooperate with reunification efforts, ignored her case
plan and its requirements, and threatened DFS caseworkers. She did nothing to create or
maintain a bond with L-MHB. DFS also presented evidence that Mother struggled in
many areas of her life: she had constant conflict with neighbors, DFS, healthcare
providers, romantic interests, her eventual husband Sean Mets (Mr. Mets), and Mr.
Mets’s family. She frequently lived in inappropriate, dangerous, or unclean housing.
Her younger children were “unkempt” and “odorous” at the time of trial. Her home at
the time of trial was messy and unsanitary. She and Mr. Mets had repeated encounters
with law enforcement officers in Cheyenne, Casper, and South Dakota. In addition to
Mother’s history and current issues, DFS presented evidence of Mr. Mets’s past and
continuing violent nature and the associated safety concerns for L-MHB. This evidence
is discussed in more detail later in this opinion.
Jury Verdict and the Current Appeal
[¶10] Following trial, the jury returned a verdict finding clear and convincing evidence
that grounds existed to terminate Mother’s parental rights under
309(a)(iii) and (v). The district court concluded that it was in the best interests of
L-MHB to terminate Mother’s parental rights and entered its order on February 8, 2019.
Mother timely appeals.
That might be someone’s facial expression appearing sad.” He characterized labile behavior as “typically
mean[ing] that one’s affect or expression of mood is quick to change, or unpredictable.”
DISCUSSION
Was Mother prejudiced by the admission of her physician’s testimony or the related
2011 medical record?
[¶11] Mother argues that the district court abused its discretion when it admitted her
medical record from three years prior to the birth of L-MHB and in allowing Dr. Collison
to testify. DFS argues that Mother waived the physician-patient privilege. Our review of
the record uncovered an abundance of evidence in support of termination. Little purpose
would be served in tracing the complicated history of Mother’s releases, revocation of
releases, and claims of waiver and privilege because, even if the district court erred in
admitting privileged information, Mother suffered no prejudice.
A. Standard of Review
[¶12] The district court’s decision on the admission of evidence is reviewed for an abuse
of discretion. Matter of GAC, 2017 WY 65, ¶ 32, 396 P.3d 411, 419 (Wyo. 2017). “A
trial court’s rulings on the admissibility of evidence are entitled to considerable
deference, and, as long as there exists a legitimate basis for the trial court’s ruling, that
ruling will not be disturbed on appeal. The appellant bears the burden of showing an
abuse of discretion.” Id. (quoting Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12
(Wyo. 2015)). To determine whether there has been an abuse of discretion, we consider
“whether the court could reasonably conclude as it did, and whether it acted in an
arbitrary and capricious manner.” Gonzalez-Chavarria v. State, 2019 WY 100, ¶ 11, 449
P.3d 1094, 1097 (Wyo. 2019) (citation omitted).
[¶13] Even when a trial court abuses its discretion in admitting evidence, reversal is only
warranted if the error was prejudicial; reversal is not warranted if the error is harmless.
Dixon v. State, 2019 WY 37, ¶ 40, 438 P.3d 216, 231 (Wyo. 2019). “An error is deemed
prejudicial when there is a reasonable probability that, in the absence of the improper
evidence, the verdict would have been more favorable to the appellant.” Swett v. State,
2018 WY 144, ¶ 12, 431 P.3d 1135, 1140 (Wyo. 2018) (citations omitted); see also
Lauderman v. State, Dep’t of Family Servs., 2010 WY 70, ¶¶ 16–17, 232 P.3d 604, 609
(Wyo. 2010).
B. Analysis
[¶14] Mother argues that Dr. Collison’s testimony and Exhibit 8 were protected by the
physician-patient privilege codified in
admission
prejudiced by the admission of the evidence. Rudy v. Bossard, 997 P.2d 480, 484 (Wyo.
2000) (foregoing analysis of whether trial court erred in admitting letter when letter did
nothing more than corroborate testimony); Lauderman, ¶ 17, 232 P.3d at 609 (declining
to analyze whether trial court erred in ruling on the admissibility of evidence where
mother was not prejudiced by such evidence); MSH v. ALH, 2012 WY 29, ¶ 7, 271 P.3d
983, 985 (Wyo. 2012) (foregoing determination of whether report was admitted
erroneously where father failed to prove that, if there was error, it was prejudicial).
[¶15] Mother argues that “[w]ithout Dr. Collison’s testimony, the State never would
have met its burden of proof,” and “Dr. Collison’s testimony and the 2011 Medical
Record were necessary for the State to prove by clear and convincing evidence that
Mother’s parental rights ought to be terminated.”
[¶16] Establishing prejudice is fact-intensive, requiring analysis of the alleged error
“with reference to the entire record.” Hill v. State, 2016 WY 27, ¶ 47, 371 P.3d 553, 566
(Wyo. 2016) (citation omitted).
In determining whether an appellant was prejudiced by the
trial errors, we consider the entire record. See, e.g., Law v.
State, 2004 WY 111, ¶¶ 25–29, 98 P.3d 181, 190–91 (Wyo.
2004) (reviewing the entire record to determine if appellant
was prejudiced by erroneous admission of evidence); Wilks v.
State, 2002 WY 100, ¶ 21, 49 P.3d 975, 984–85 (Wyo. 2002)
(reviewing the entire record to determine if appellant was
prejudiced by improper testimony).
Weston v. State, 2019 WY 113, ¶ 38, 451 P.3d 758, 768–69 (Wyo. 2019) (emphasis
added).
[¶17] DFS sought to terminate Mother’s parental rights under
309(a)(iii) and (v), which provide:
(a) The following persons shall not testify in certain respects:
(i) An attorney or a physician concerning a communication made
to him by his client or patient in that relation, or his advice to his
client or patient. The attorney or physician may testify by
express consent of the client or patient, and if the client or
patient voluntarily testifies the attorney or physician may be
compelled to testify on the same subject[.]
(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:
. . .
(iii) 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;
. . .
(v) 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[.]
[¶18] The jury determined that there was clear and convincing evidence of both statutory
grounds for termination. On review, we need find only there was clear and convincing
evidence of the elements of one ground for termination. Matter of ASA, 2018 WY 5,
¶ 14, 408 P.3d 791, 794 (Wyo. 2018). Accordingly, our analysis here will focus on
termination under
clear and convincing evidence that: (1) L-MHB was in foster care for fifteen of the most
recent twenty-two months; and (2) that Mother was unfit to have custody and control of
her.4
of the most recent twenty-two months. She had been in foster care for nearly five years.5
The second element of
Mother was unfit to have custody and control of L-MHB. A parent’s fitness to parent a
child “will depend upon the situation and attributes of the specific parent and child.” In
re KMO, 2012 WY 100, ¶ 20, 280 P.3d 1216, 1222–23 (Wyo. 2012) (citation omitted).
termination under
1106 (Wyo. 2007) (“[E]vidence pertaining to whether [a child’s] health and safety would be seriously
jeopardized if returned to Mother [an element for termination under § 14-2-309(a)(iii)] is also relevant to
the determination of whether she is unfit.”).
birth.
[¶20] “[F]itness includes the ability to meet the ongoing physical, mental and emotional
needs of the child.” KMO, ¶ 20, 280 P.3d at 1223 (citation omitted); Matter of LCH,
2019 WY 13, ¶ 11, 434 P.3d 100, 103 (Wyo. 2019). “[A] parent’s fitness is to be
determined at the time of the termination trial,” but “[e]vidence of past behavior is
‘plainly relevant in determining current parental fitness.’” KMO, ¶ 20, 280 P.3d at 1223
(citation omitted); LCH, ¶ 11, 434 P.3d at 103. Some of the relevant factors we have
considered when evaluating fitness include: 1) “lack of contact with and expressed lack
of desire to take custody of the child”; 2) “unstable living situation relating to
employment or maintenance of a suitable home”; 3) “failure to take responsibility for
past conduct”; 4) “lack of emotional bond with the child”; 5) “failure to develop child-
rearing skills”; 6) “inability to monitor or make healthy nutritional choices or to provide a
safe environment”; and 7) “a history of surrounding [oneself] and the children with
unsafe individuals.” LeBlanc v. State Dep’t of Family Servs., 2017 WY 107, ¶ 23, 401
P.3d 932, 936 (Wyo. 2017) (citations omitted).
1. L-MHB’s Birth
[¶21] Mother gave birth to L-MHB on April 15, 2014. Mother had received inpatient
treatment at CRMC Behavioral Health Services twice during her pregnancy. L-MHB’s
pediatrician was aware of Mother’s mental health history and was concerned for the
health and safety of L-MHB because during her pregnancy, Mother expressed thoughts of
suicide and infanticide; indicated she used drugs; and had not followed through with
mental health treatment or medication recommendations. The pediatrician placed
L-MHB into protective custody immediately after her birth, and Mother was supervised
while with L-MHB. On April 17, 2014, following an investigation by DFS, the State
filed a petition alleging neglect.6 The same day, the juvenile court held a shelter care
hearing, which Mother and her attorney attended. Following that hearing, the juvenile
court issued a shelter care order directing that legal custody of L-MHB remain with the
State and that she be placed in foster care upon discharge from the hospital. In Interest of
L-MHB, ¶¶ 4–5, 401 P.3d at 951–52.
[¶22] DFS filed a petition to terminate Mother’s parental rights in 2017, and the trial
began in January 2019. On the first day of trial, DFS called Jenni Nath and Peggy Rice,
both registered nurses who cared for L-MHB at CRMC after she was born. Ms. Nath
explained that Mother’s medical history indicated that she had asked “how to harm the
baby while it was still in utero” and that Mother’s interactions with the baby had to be
supervised. Ms. Nath recalled that when she told Mother it was time to feed the baby,
investigation included observations made by doctors and nurses at CRMC and CRMC Behavioral Health
Services and also Mother’s own statements after L-MHB was born.
Mother walked out of the nursery, and Ms. Nath had to feed her. Ms. Rice testified that
when she attempted to talk with Mother about using medication to stabilize her mental
health, Mother got angry and said that she did not need any medication.
2. Events in 2014
[¶23] DFS also called Stacey Dunlay, the first caseworker assigned to the case. Ms.
Dunlay testified that Mother had threatened to harm herself and L-MHB both prior to and
after L-MHB’s birth. Ms. Dunlay testified
Mother, she had stressed to Mother the importance of visits with L-MHB and the need to
make sure Mother’s mental health needs were met so that she could safely parent
L-MHB. Mother had “a lot of reasons why she said she couldn’t participate or wouldn’t
participate” in the case plan.
[¶24] Ms. Dunlay expressed concerns about Mother’s unstable living situations, her
involvement in abusive relationships, and her hostile relationship with L-MHB’s foster
parents.7 Mother began supervised visits with L-MHB but brought a knife to the second
visit. Afterward, Mother refused to work with a third party for supervised visits, and
visitation ceased due to safety concerns.8 Mother failed to accomplish the tasks needed
to recommence visitation with L-MHB. Mother refused to sign the case plan. Mother
threatened Ms. Dunlay and her team to the extent that Ms. Dunlay feared for her own
safety.
[¶25] Ms. Dunlay discussed Mother’s tendency to lie and make “off-the-wall”
statements.9 By November 2014, when Ms. Dunlay ceased working with Mother, Mother
tried to kill her or threatened to kill her and L-MHB. Officer Heather Townsend of the Cheyenne Police
Department, who had several interactions with Mother, testified that in June 2014, the hotel room where
Mother had been living was not a safe place for a child.
children in DFS custody and their family members. Ms. Trujillo supervised one of Mother’s two visits
with L-MHB in April 2014. During the drive to the visit, Mother told Ms. Trujillo that her family had a
farm and knew how to clean up crime scenes. Mother detailed how to get away with the “perfect murder”
using pigs to eat the victims’ bodies and goats to eat the victims’ clothing. The conversation alarmed Ms.
Trujillo. On their way home, Mother complained about DFS and said, they “were messing” with “the
wrong family.” Mother stated she was in a “south side gang,” and that she was Wiccan and was going to
get a Wiccan tattoo so that “everybody in court and everybody knew who they were messing with.” Ms.
Trujillo testified that the discussions caused her to fear for her own safety, and she refused to supervise
more visits with Mother.
conversation would say, “that’s not true, I lied.” Ms. Dunlay estimated that Mother made false statements
in “90 percent of the[ir] conversations.” Mother also accused the staff at the hospital of falsifying
records, described incidents where her friends saw someone exchange money with the doctor who put
L-MHB in protective custody, and told Ms. Dunlay that her ex-boyfriend had purchased weapons to kill
was less cooperative than she had been initially. Ms. Dunlay testified they had been
unable to establish that Mother did not pose a danger to herself or L-MHB, they had not
reestablished visitation, and Mother had not followed the case plan.
[¶26] Mother married Mr. Mets in September 2014. She and Mr. Mets moved to Casper
the following month. Athena Loftus was the caseworker assigned to Mother’s case after
she moved to Casper. Early in Ms. Loftus’s involvement, Mother had asked DFS to
move the case to the Casper area from Cheyenne because, she stated, “there was no way
in hell she was going to be traveling to Cheyenne in order to work on the reunification
efforts.” Ms. Loftus testified that she found providers and services for Mother in Casper
which would have enabled Mother to comply with the case plan.
3. Events in 2015
[¶27] Mother missed scheduled meetings and appointments with providers. Mother
refused to provide her address in Casper and failed to notify Ms. Loftus when she moved
back to Cheyenne for a brief period.10
[¶28] Ms. Loftus also set up urinalysis testing for Mother in Casper. Mother refused that
testing, claiming she was unavailable because she was working two jobs and had
transportation issues. Ms. Loftus told Mother that DFS would pay for transport to her
urinalysis testing and other services. Mother still refused.
[¶29] Ms. Loftus expressed concerns about Mother’s husband, Mr. Mets. She testified
voice would rise, and he would sound very aggressive.” In approximately July 2015, Ms.
Loftus learned that Mr. Mets had assaulted Mother. After the assault, Ms. Loftus again
attempted to visit the Mets’s home, and Mother told her that Mr. Mets would not allow
her to visit.11 Mr. Mets’s behavior caused Ms. Loftus concern for L-MHB’s safety if she
were to be returned to Mother. Mother and Mr. Mets threatened Ms. Loftus throughout
the case.12 Mother threatened to sue Ms. Loftus more than once and told her that she
knew her home address and her family members.
her, her baby, and “everyone from the judge on down.” Ms. Dunlay described these conversations as
“standard.”
in Cheyenne, she did not request visits with L-MHB.
“was a health hazard,” noting it had holes in the floor, dirty clothes scattered throughout, and was
“extremely filthy.”
with his van as she crossed the street. She explained,
I saw Mr. Mets in his van at [the] corner waiting for the light to make a
turn. We made eye contact. The light authorize[d] me to walk. I
[¶30] Psychologist Dr. Kenneth Bell, a mental health provider, testified about his 2015
evaluation of Mother.13 It was difficult for him to perform a complete assessment
because Mother declined to provide releases for previous treatment records. Mother told
him that she “faked most of those records.” Moreover, Dr. Bell had difficulty obtaining a
history because Mother “often required repeated questions,” and the history she did
provide contradicted itself.
[¶31] Dr. Bell was able to glean limited information summarized here. Mother’s mother
physically abused her throughout her childhood. Mother was placed into foster care at
approximately nine years of age. Mother remained in facilities until she graduated from
high school. She was given several psychiatric medicines and mental health therapies
during that period. Mother had a history of cutting, suicidal thinking, and illicit
substance abuse—including methamphetamine—from early adolescence through April
2014. After high school, Mother was hospitalized several times for psychiatric treatment.
During those hospitalizations, she was provided with psychotropic medications which she
discontinued upon release and has not taken since 2012. When she was not in treatment,
Mother occasionally lived with her mother, her brother, and at a shelter, but was
homeless for extended periods of time. Mother had “conflictual relationships” with
romantic partners, some of whom physically assaulted her. Mother married Mr. Mets in
September 2014. They lived in various places, including with friends, in a car, and
finally at Mr. Mets’s parents’ home in Casper, where they lived at the time of Dr. Bell’s
evaluation.
[¶32] Dr. Bell diagnosed Mother with disruptive mood dysregulation disorder and “other
specified personality disorders” with narcissistic borderline and antisocial disorder
traits.14 Based on his diagnoses, Dr. Bell recommended that Mother engage in individual
psychotherapy, obtain drug testing, and be evaluated by a physician to determine whether
she would benefit from medication. Dr. Bell recommended that before L-MHB could be
returned to Mother’s home, Mother should demonstrate stability in several areas,
including emotional stability, housing, and resources. Dr. Bell’s prognosis was
“guarded,” and he believed Mother’s motivation for treatment was “poor.” He testified
beg[an] walking through the walkway, and as [I was] getting closer to
the court building[,] Mr. Mets increase[d] his speed to come around the
corner and [was] within inches of me.
attorney in 2015. At trial, Mother did not object to the admission of Dr. Bell’s 2015 evaluation.
statements,” and he had to remind her several times to put her cell phone away. Dr. Bell performed
several psychological tests which revealed that Mother has an IQ of 82, reads at the sixth-grade level, and
experiences difficulties with interpersonal relationships. She has problems with authority, stress and
coping, and an “ongoing sense of irritability.”
that the “long-term changes and behavior that were necessary” were “unlikely” to occur
given Mother’s “overall ability” and her diagnoses.
[¶33] Corporal Vincent testified he had “multiple” encounters with Mother during
time she was living with Mr. Mets and his family.15 He testified that the Mets “family
dynamics were . . . dysfunctional” and that they could not “manage any type of
conversation without it turning into an argument” or “any type of controversy” without it
“turning to violence.”16
[¶34] Beginning in October 2015, Ms. Loftus recommended that the permanency goal
be changed to adoption due to the lack of progress by Mother.17 In November or
December 2015, Ms. Loftus testified that Mother refused Skype visits with L-MHB
because she claimed the DFS office in Casper was too far away. Mother also refused to
give consent for L-MHB to have her tonsils and adenoids removed, which was necessary
because without the surgery L-MHB was not able to get enough oxygen. Even after the
court granted DFS’ motion to allow the surgery, Mother stated she was not going to allow
the surgery to happen.
4. Events in 2016
[¶35] In June 2016, Mother, Mr. Mets, and his family moved to South Dakota. Ms.
Loftus attempted to establish services for Mother there. Ms. Loftus organized a contract
for drug testing, but Mother refused to attend. Ms. Loftus also attempted to set up mental
health services, but Mother failed to sign the necessary releases. Even so, Ms. Loftus
located a facility where Mother could obtain mental health services. She provided
Mother this option, along with information on Medicaid-paid transit. Mother “didn’t
want to” avail herself of the service.18
another occasion, Mr. Mets and his father had engaged in a physical altercation which resulted in
domestic battery charges against Mr. Mets. On a third occasion, Mr. Mets had a “pushing match” with
his father.
Mets because he had been in contact with him on more than one call, including an encounter when Mr.
Mets had engaged in a “fistfight” with a 17-year-old which resulted in disturbing the peace charges
against Mr. Mets.
Special Advocate (CASA). Mr. Schei attended court hearings, participated in MDT meetings, and
communicated with Mother about L-MHB and the case plan. He testified that Mother was generally
uncooperative and unwilling to comply with the case plan. He explained that Mother declined services
offered by DFS and never asked him about L-MHB’s wellbeing. Mr. Schei testified that initially he
recommended that L-MHB be reunited with Mother but changed his recommendation at the “15-month
mark” because of Mother’s “lack of participation.”
[¶36] In October 2016, Ms. Loftus developed an updated case plan for Mother.19
Mother refused to discuss the amended case plan with Ms. Loftus. Both Mother and Mr.
Mets refused to sign the amended plan. Both Mother and Mr. Mets failed to comply with
the individual counseling requirement in the plan.20 The permanency plan changed to
adoption in November 2016.
[¶37] At trial, Ms. Loftus also described L-MHB’s current demeanor, her past and
present health issues, the progress she made at her foster home, and the care she will need
in the future. She described L-MHB as an “outgoing,” “joyous little girl” who thrives in
her current home. L-MHB has also had health issues. She received occupational
therapy,
at the time of trial, L-MHB has progressed to where she no longer needs any of the
developmental services and therapies. L-MHB “still has health related issues,” such as
vision problems, asthma, and ongoing concerns about her brain development. Ms. Loftus
testified that currently there is no bond or connection between Mother and L-MHB.21
5. Mother’s Testimony
[¶38] DFS also presented testimony from Mother. Mother, Mr. Mets, and the two
children they have together (one aged two and the other three months at the time of the
trial) live in a trailer home in Belle Fourche, South Dakota. They were “hav[ing]
problems” with someone who recently moved to their trailer park and planned to move to
a new trailer park. The new trailer park is where Mr. Mets’s parents live. Mr. Mets’s
parents provide child care when Mother cannot. Mother’s two youngest children reside
with Mother and Mr. Mets and qualify for Medicaid, but the parents have not applied for
coverage. Their two-year-old has special needs and attends physical therapy. Mother has
scheduled by DFS in Rapid City, even though DFS arranged transport, and that she had refused to go to
counseling scheduled in Wyoming when she lived there. Mother also told Ms. Loftus that she no longer
had to comply with the case plan because “it was done”; she had signed paperwork allowing L-MHB to
be adopted.
be L-MHB’s father figure) in the plan. The new plan directed Mr. Mets and Mother to attend individual
mental health counseling. Ms. Loftus also amended the drug testing goal so it would be easier for Mother
to meet this requirement. The amended case plan required Mother and Mr. Mets to attend 90 days of
individual counseling and sign releases so that DFS could talk to providers, verify compliance, and pay
for the services. Ms. Loftus testified that Mother and Mr. Mets had recently attended marriage
counseling, but the only information Mother would release to DFS was the dates of attendance.
counseling, as required by the case plan.
what L-MHB is like today but believes L-MHB would know who she is. Mother testified she believes it
would not be traumatic for L-MHB to transition out of foster care and into her home.
had conflicts with this child’s providers in the past. Mother also has a thirteen-year-old
child who has been adopted outside of the home. Mother testified that she currently
receives social security disability benefits. She has never held regular employment. Mr.
Mets is employed at Hardee’s.
[¶39] Mother testified that she has been hospitalized three times in mental health
inpatient facilities since the birth of L-MHB: twice in Cheyenne, in April and July 2014;
and once in Casper, in August 2015. Mother testified she attended counseling in Casper
from October 2015 through June 2016, when she and Mr. Mets moved to South Dakota.
Mother also stated that she has attended monthly counseling in South Dakota beginning
in 2017. However, she admitted she had only gone to three appointments and that she
does not go to individual therapy recommended by her mental health providers and
required by the case plan. She and Mr. Mets attend group marriage counseling and take
their two young children with them. The marriage counselor’s record of attendance
showed they had attended four sessions since 2017.
[¶40] Mother also testified that she had received a psychiatric diagnostic evaluation at
Behavior Management Systems in South Dakota. Mother was diagnosed with personality
disorder, post-traumatic stress disorder, depression, and schizophrenia. Mother never
took any of the medications prescribed as a result of the diagnoses.
[¶41] Mother testified that she had protection orders against three previous romantic
partners. She also testified regarding an incident of domestic violence in July 2015 when
Mr. Mets grabbed her by the back of the neck and attempted to wrap his hand around her
throat. Mr. Mets was arrested for assaulting her. Mother also admitted that the Belle
Fourche Police Department has had numerous contacts with her and her family, but she
could not recall any specific details.
[¶42] Mother confirmed she did not provide mental health evaluations to DFS, address
her mental health needs, or attend individual counseling, as required by her case plan.
Mother also testified that she never signed the case plan. Mother has not seen L-MHB
since she was two weeks old and has not provided her financial support.
6. Mr. Mets’s Testimony
[¶43] Next, Mr. Mets testified regarding his numerous interactions with law enforcement
in Wyoming and South Dakota. He stated that he has not had any incidents of domestic
violence since May 2016, and the last time he physically abused Mother was in 2015. He
characterized his relationship with Mother as “rocky,” but “recently . . . a lot better.”
[¶44] Mr. Mets did not sign L-MHB’s case plan but is aware that the case plan requires
him to attend individual counseling. He did
“forgot all about it really,” and he “figured marriage counseling would suffice.” Mr.
Mets testified that his family support system consists of his church and his parents and
sister, who live nearby and with whom he and Mother have had frequent conflicts.
7. Mother’s Evidence at Trial
[¶45] After DFS presented its case, Mother testified herself and called Mr. Mets and
Rebecca Larson, a South Dakota Head Start home visitor. Mother testified that Ms.
Loftus had not been to see her current residence in South Dakota. She stated that she had
not attended all of L-MHB’s MDT meetings, that she had not participated in individual
counseling, and that she did not recall law enforcement encounters in South Dakota. Mr.
Mets generally testified regarding his recollection of when he almost struck Ms. Loftus
with his van. Ms. Larson testified regarding her observations of the Mets family. She
expressed concerns about one of the children receiving appropriate care and stated that
she had reported these concerns to the South Dakota Department of Social Services. She
also testified that Mother struggled to find providers that she could work with.
CONCLUSION
[¶46] After five days of trial, the jury concluded that DFS had presented clear and
convincing evidence that Mother was unfit to have custody and control of L-MHB. The
jury’s conclusion is unassailable. There was ample evidence without Dr. Collison’s
testimony and Exhibit 8 to show that, despite DFS’ ongoing efforts, Mother was unfit to
have custody and control of L-MHB as required by
[¶47] “An error is deemed prejudicial when there is a reasonable probability that, in the
absence of the improper evidence, the verdict would have been more favorable to the
appellant.” Swett, ¶ 12, 431 P.3d at 1140. There is no reasonable probability the verdict
would have been more favorable to Mother in the absence of Dr. Collison’s testimony
and Exhibit 8. Even assuming Dr. Collison’s testimony and Exhibit 8 were privileged
and the district court erred in admitting them, the error was harmless. We affirm.
alternative ground for termination under
testimony and Exhibit 8.