author: LEHMAN, Justice.

text:
    2002 WY 168
    In the Matter of the Termination of Parental Rights to SED, Jr., minor child. SD, Appellant, (Respondent), v. CARBON COUNTY DEPARTMENT OF FAMILY SERVICES, Appellee (Petitioner). In the Matter of the Termination of Parental Rights to SED, Jr., minor child. TD, Appellant (Respondent), v. Carbon County Department of Family Services, Appellee (Petitioner).
    Nos. C-02-3, C-02-4.
    Supreme Court of Wyoming.
    Nov. 19, 2002.

      David C. Clark, Rawlins, WY; and P.M. “Mike” Roberts of Erickson and Roberts, Rawlins, WY, Representing Appellants. Argument by Mr. Clark.
    Hoke MacMillan, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Dan S. Wilde, Senior Assistant Attorney General, Representing Appellee. Argument by Mr. Wilde.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and SANDERSON, D.J.
   LEHMAN, Justice.

[¶ 1] The parents of SED, Jr., a minor child (Minor Child), appeal the district court order terminating their parental rights. In this consolidated appeal, both parents claim that the court erred when it found clear and convincing evidence upon which to terminate their parental rights. We find clear and convincing evidence to support the district court’s order and accordingly affirm.

ISSUE

[¶ 2] Appellants assert eight issues on appeal. All eight issues challenge the facts as found by the district court. We therefore view the issue as:

Was the district court’s finding that parental rights to Minor Child should be terminated established by clear and convincing evidence?

FACTS

[¶ 3] Minor Child was born on March 16, 1996. Prior to his birth, the Carbon County Public Health Nursing Agency (Public Health) and the Department of Family Services (DFS) began various programs with his parents due to concern over the parents’ ability to care for a child. These programs included nutritional support, health care, budgeting instruction, and housekeeping instruction. The services continued after Minor Child’s birth in an effort to provide a safe and healthy environment for the child. However, Minor Child was removed from his parent’s home in March of 1997, immediately before his first birthday. Minor Child has remained in foster care since that time.

[¶ 4] A petition to terminate parental rights was filed on February 8, 2001. In October of 2001, a three-day trial was held on the petition. At the time of trial, Minor Child was five years of age. On November 16, 2001, the district court granted the petition and ordered the parental rights to Minor Child terminated.

STANDARD OF REVIEW

[¶ 5] When setting forth our standard of review for the granting of a petition to terminate parental rights we have said:

Due to the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children, application of statute’s for termination of parental rights is a matter for strict scrutiny. TR v. Washakie County Dep’t of Pub. Assistance & Soc. Servs., 736 P.2d 712, 715 (Wyo.1987). As part of this strict scrutiny standard, a case for termination of parental rights must be established by clear and convincing evidence. Wyo. Stat. Ann. § 14-2-309(a) (Michie 1997); In Interest of JG, 742 P.2d 770, 773 (Wyo.1987); D.S. v. Dep’t of Pub. Assistance & Soc. Servs., 607 P.2d 911, 919 (Wyo.1980). 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. Matter of GP, 679 P.2d 976, 982 (Wyo.1984). Rigorous though this standard may be, we apply our traditional principles of eviden-tiary review when a party .challenges the sufficiency of the evidence supporting termination. Matter of SYM, 924 P.2d 985, 987 (Wyo.1996). Thus, we examine the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. Id; D.S. v. Dep’t of Pub. Assistance & Soc. Servs., 607 P.2d at 919-20; In Interest of JG, 742 P.2d at 773.

In Re ZKP, 979 P.2d 953, 956 (Wyo.1999). See also In re IH, 2001 WY 100, 33 P.3d 172 (Wyo.2001); Matter of TLC, 2002 WY 76, 46 P.3d 863 (Wyo.2002).

DISCUSSION

[¶ 6] The State’s petition for termination of parental rights requested termination be ordered based on three separate grounds. The allegations in support of these grounds rested upon Wyo. Stat. Ann. §§ 14-2-309(a)®, 14 — 2—309(a)(iii), and 14-2-309(a)(v) (LexisNexis 2001). Although parental rights may be terminated on a finding of just one of the above-stated subsections’, the district court found clear-and convincing evidence to support termination on all three grounds. We agree and will discuss each subsection in turn.

Wyo. Stat. Ann. § 14-2-309(a)(i)

[¶ 7] We begin with Wyo. Stat. Ann. § 14-2-309(a)(i) which allows the p'arent-child legal relationship to be terminated if “[t]he 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 this case, the issue is not whether the parents contributed to the support of Minor Child as the record indicates that they did not; rather the issue focuses on lack of communication. The parents claim the failure to maintain contact with the minor child was not a result of their actions, but instead they were denied and discouraged from visitation. The facts appear contrary to their assertions.

[¶ 8] The first foster home for the child was located in Rawlins, Wyoming, the same town in which the parents lived. According to the notice of visitation plan, visitation was to occur twice weekly, once with the foster mother and once at Project Reach. The foster mother’s testimony showed the parents cancelled most of the visitations scheduled with her. Ms. Thompson, from Project Reach, testified the parents attended the Project Reach class with Minor Child only one or two times. Thé DFS social worker in charge of the case testified that in the first year in which visitation was to occur twice weekly, the parents visited Minor Child between eight and ten times.

[¶ 9] Approximately one year and two months after Minor Child was removed from the parents’ home, the parents moved from Rawlins to Cheyenne, Wyoming. DFS advised the parents such a move would make visitation considerably more difficult. The parents moved anyway. DFS tried to arrange transportation for the parents to come to Rawlins and visit, but the family chose not to take advantage of those visitations. Furthermore, not only was there no physical visitation, but there was no communication through telephone calls, cards, or letters either. From the record, it appears the last visitation with Minor Child was just before the parents left for Cheyenne over three years prior to the termination hearing.

[¶ 10] In June of 2000, Minor Child was placed in a second foster home. This foster home was located in Cheyenne, with the intent to arrange and facilitate visitation with the parents. However, visitation still did not occur. Testimony indicated the parents requested visitation immediately after Minor Child’s move to Cheyenne. DFS asked for additional time to get Minor Child adjusted to his new home before visitation began. At that time, Minor Child suffered from severe separation anxiety. When visitation did not occur immediately as requested, the parents quit asking. After that, no arrangement could be made for visitation because of the unstable living environment of the parents. The parents also point to an incident in December of 1998, when the parents requested that the child be brought to Cheyenne for Christmas. The foster mother could not take Minor Child to Cheyenne at that time so visitation did not occur. These instances do not amount to the denial of visitation. With the few exceptions provided above, lack of visitation was a direct result of the parents’ own actions. Therefore, on these facts, we find the requirements of § 14-2-309(a)(i) are shown by clear and convincing evidence.

Wyo. Stat. Ann § 14-2-309(a)(iii)

[¶ 11] The second ground for termination found by the district court is § 14-2-309(a)(iii). Termination of parental rights pursuant to this section requires the petitioner to establish by clear and convincing evidence three elements: 1) abuse or neglect by the parents; 2) unsuccessful reasonable efforts to rehabilitate the family; and 3) the child’s health and safety are seriously jeopardized by remaining with or returning to the parents. In Re ZKP, 979 P.2d at 957 (citing Matter of SYM, 924 P.2d 985, 987 (Wyo.1996)). We consider the elements in turn.

[¶ 12] The petition does not contain allegations of abuse so we focus our discussion on neglect. “Neglect” means “a failure or refusal by those responsible for the child’s welfare to provide adequate care, maintenance, supervision, education or medical, surgical or any other care .necessary for the child’s well being.” Wyo. Stat. Ann. § 14-3-202(a)(vii) (LexisNexis 2001).

[¶ 13] While under the care of his parents, Minor Child was significantly developmentally delayed. His gross motor skills were in the first percentile, and his fine motor skills were in the second percentile. These developmental delays were attributed to the parents’ failure to provide a nurturing or stimulating environment. Testimony revealed that social workers never saw the parents or extended family interact with the child, the house was so cluttered and filthy that the child could not roll over if placed on the floor, and the child was constantly observed in his stroller. At the age of one, the child could not hold up his own head, could not crawl, could not talk, and did not know how to use his fingers. Furthermore, after a period of placement in foster care, Minor Child improved dramatically. His gross motor skills improved to the seventieth percen-" tile and his fine motor skills increased to the fifty-second percentile. Hence, it is reasonable to conclude that the developmental deficiencies displayed by Minor Child were the result of neglect by his parents.

[¶ 14] Testimony showed that the parents did not provide Minor Child with proper nourishment. The parents gave Minor Child half-strength formula despite being- told repeatedly that infants need whole strength formula to provide the nourishment critical for brain development and despite being shown numerous times how to properly mix the formula. The parents continually gave Minor Child Kool-Aid at two months of age after being advised that Kool-Aid was not appropriate for a child that age. Against the advice of doctors and numerous service providers, the parents also fed the child solid foods at six months of age resulting in hospitalization and digestive problems.

[¶ 15] . Furthermore, Minor Child was diagnosed with ear infections for which antibiotics were prescribed. The parents failed to fill the prescription, and Minor Child went untreated for three days after diagnosis. Minor Child was diagnosed with asthma. The parents were repeatedly cautioned not to smoke around Minor Child because the smoke would aggravate his condition. However, the parents continued to smoke around Minor Child. These instances are adequate to show a failure to provide adequate care necessary for Minor Child’s well being, thus neglect.

[¶ 16] We now turn to the second element, unsuccessful reasonable attempts to rehabilitate the family. When family reunification is the case plan goal, DFS has the responsibility reasonably to provide the services necessary to accomplish the specific goals and tasks called for before reunification can occur. MB v. Laramie County Dep’t of Family Servs. in Interest of LB, 933 P.2d 1126, 1129-30 (Wyo.1997). The record is filled with instances of DFS meeting this responsibility. A summary indicates a community-wide response by nearly every available resource made up of individuals committed to family reunification. Services began months before the birth of Minor Child and continued to be provided. The organizations providing services to this family include soup kitchen, faith-based services, DFS, Public Health, Carbon County Extension Office, Project Reach, Carbon County Counseling, Southeast Mental Health, Needs, Inc., and the Department of Vocational Rehabilitation.

[¶ 17] Public Health was first assigned to work with the parents when the mother was seven weeks pregnant with Minor Child. While providing pre-natal care, the nurses became concerned that the parents’ home was an unsafe environment for a newborn as the home had no heat or hot water, there was garbage everywhere, and the parents were out of food in the middle of the month. This concern led the nurses to make a referral to DFS. DFS took immediate action even cleaning the parents’ house before the Minor Child was brought home from the hospital.

[¶ 18] After Minor Child was born, DFS provided daily visits trying to teach the parents nutrition, scheduling, budgeting, and housekeeping. Public Health continued to conduct weekly home visits focusing on the child’s health. The nurses concentrated on teaching the mother how to care for a newborn child. They focused on nutrition for the baby, teaching the mother how to mix formula for the child. Even though the mother would say that she understood how to mix the formula, and would show the nurse how to do it, on follow-up visits, she would be mixing the formula at half strength again.

[¶ 19] The parents claim the instructions and the case plan goals were too complicated, and they were unable to understand them. Yet, the evidence presented at trial describes how the agencies all utilized simplistic incremental steps in teaching the parents. For instance, Lori Olson, a DFS home service aid, was in the home almost every day for three months going over and over cooking and nutrition. Testimony at trial detailed the extensive attempts made to equip these parents with the skills they needed to effectively raise their child. Nevertheless, the parents seemed to resist the rehabilitative efforts. Depending on the service, they missed thirty to fifty percent'of their pre-set appointments. While Minor Child was in the home, the parents made no significant progress and failed to follow through with most of the programs.

[¶20] After Minor Child had been removed from the home, both parents submitted to psychological evaluations, which revealed the mother as possessing borderline intellectual functioning, and the father only slightly higher. Specifically, the mother was evaluated as being overwhelmed by trying to accomplish multiple goals at one time. While those facts were not presented by the State as a basis for termination, the parents rely upon them to show that there was no refusal of rehabilitative treatment, but rather an inability to understand the demands made by the State in the case plan for family reunification.

[¶ 21] Yet, after this evaluation, the record is full of further instances of teaching in incremental steps, one task at a time. The lengths to which the service providers went to assist the parents in achieving the case plan goals indicates the use of every feasible education approach to teach the parents in elementary steps. Attempts were made to instruct this family over five years on a weekly, and at times daily, basis. The case plan had eleven headings, but the goals related to each heading were never worked on all at once. These eleven headings included very specific elementary steps like enroll and attend parenting classes, enroll and attend counseling, find a preschool for Minor Child, and arrange transportation. Furthermore, the mother testified that some of these tasks the parents already knew how to do.

[¶22] The psychological evaluation further indicated that with the proper monitoring both parents could learn parenting skills over time if motivated, interested, and willing to take the time to learn. But the parents placed no importance on learning or implementing the tasks required to provide a safe environment for their son. They seemed non-cooperative and resistant to all efforts. For instance, when learning how to clean their house, they would just sit and watch the in-home aid clean. They never cleaned for themselves even though they understood how. When the in-home aid returned the next time, the house would be worse than before. The mother even stated that DFS has a stack of files on the parent’s lack of effort.

[¶23] We don’t know of any other approach that could have been utilized. There is a limit to what we ask of DFS in the absence of parental cooperation. We have previously recognized that at some point rehabilitative efforts become unreasonable. “[I]t would seem unreasonable and not for the best interests of the child that professional welfare workers should be furnished to care for this child in the parental home on a twenty-four-hour basis for the many years until the child herself can be self-sufficient.” Matter of C.M., 556 P.2d 514, 519 (Wyo.1976). The record indicates that the parents, even after four years of training, instruction, and supervision, would not be able to care for the child without further instruction. We are not penalizing the parents for lack of mental capacity, we are simply considering the best interests and welfare of the child. Id., at 517. The parents have failed to take advantage of the services provided to them, failed to meaningfully participate in the case plan, and failed to implement what they have learned. Thus, we find the evidence was clear and convincing that the reasonable rehabilitative efforts were unsuccessful.

[¶ 24] Finally, we consider the last element of § 14—2—309(a)(iii), that the child’s health and safety would be seriously jeopardized should he be returned to the parents’ custody. The parents, after all this time, show no willingness to respond to the needs of their child. They are unable to consistently provide appropriate housing, .food, clothing, and medical treatment. They believe the lifestyle they provided in the first year of Minor Child’s life is a proper environment. This lifestyle was described at trial as “survival mode,” and it remains substantially the same. The parents have no stable home or consistent environment and seem to depend on public assistance for their own basic living essentials. They require intensive external resources in the home to maintain a safe environment for the child; but, as discussed above, those have failed.

[¶ 25] The State provided evidence to show the parents incapable of properly caring for their child. Dr. Martha Schilling, a psychologist who evaluated the parents in the spring of 1997, testified: “I did not think that there was a very good prognosis for the couple together being able to provide a safe environment.” She further stated that the parents do not have the stability to care for Minor Child and it would be detrimental to him to leave his foster home to live with total strangers. We find clear and convincing evidence to show this final element.

Wyo. Stat. Ann. § 14-2-309(a)(v)

[¶ 26] The last ground alleged in the petition is § 14-2-309(a)(v), “[t]he 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[.]” At the time of trial, Minor Child had been in foster care for forty-two continuous months. As we indicated above, the evidence showed that the parents were unfit to have custody or control of Minor Child. We find this ground for termination was also proved by clear and convincing evidence.

[¶ 27] We are not unsympathetic to the disabilities and hardships of the parents. However, this case demonstrates a situation in which the best interest of the child and the fundamental rights of the parents diverge. While we zealously guard the fundamental right of parents to care for and associate with their children, we also recognize that a child has the fundamental right to live in an environment free from filth, health hazards, and danger; he also has the right to nourishment, education, and necessary medical attention. Matter of MLM, 682 P.2d 982, 990 (Wyo.1984). “When the rights of a parent and the rights of a child are on a collision course, the rights of the parent must yield.” Id.

CONCLUSION

[¶28] For the reasons stated above we find that there was clear and convincing evidence presented to support the termination of parental rights. We, therefore, affirm the judgment of the district court.

      . Because the issues raised by the parents are essentially challenges to the factual findings of the trial court, further facts will be included in the body of this opinion.

      . Project Reach is a program that screens and evaluates motor skills, language skills, and speech. The program also helps parents learn how to interact, stimulate, and provide therapy to developmentally challenged toddlers.

      . Wyo. Stat. Ann. § 14 — 2—309(a)(iii) reads:
      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!.]


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 170
    Ronald Arbie TANNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-53.
    Supreme Court of Wyoming.
    Nov. 20, 2002.

      Kenneth M. Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel, Representing Appellant. Argument by Ms. Domonkos.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore Lauer, Director, Prosecution Assistance Program; and Hugh J. Linnehan, Student Intern, Representing Appellee. Argument by Mr. Linne-han.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] Appellant Ronald A. Tanner (Tanner) seeks reversal of his conviction for one count of burglary arising from his entry into a Casper bar, through an unlocked door, during business hours. Having determined that the record discloses insufficient evidence to support the conviction as instructed to the jury: we reverse the conviction, vacate the judgment and sentence entered by the district court, and remand with instruction that a judgment of acquittal be entered.

ISSUES

[¶ 2] Tanner presents the following issues for review:

I. Whether there was sufficient evidence to support Tanner’s burglary conviction?
II. Whether the prosecutor committed prosecutorial misconduct when she argued facts not in evidence and used inadmissible hearsay evidence during the closing argument?
III. Whether the trial court erred when it denied Tanner’s request for a jury instruction on petit larceny as a lesser-included offense of burglary?

FACTS

[¶ 3] Tanner was convicted of one count of burglary in violation of Wyo. Stat. Ann. § 6-3-301(a) (LexisNexis 2001) following a two-day jury trial in Natrona County. The evidence adduced at trial indicated that on Friday, July 14, 2000, he and two female companions went to the Sandbar Lounge located at 100 N. Ash Street in Casper intending to buy some drinks. At approximately 10:30 p.m., Tanner, his girlfriend Char Lee Brown, and Kathy Davis, parked in the. parking area by the Sandbar’s drive up window, but soon discovered that the glass doors facing First Street were locked. However, when the trio proceeded to the Ash Street entrance, they found the wooden door unlocked and entered the lounge. Tanner and Brown were new to Casper; but Davis testified at trial that, on the other occasion that she had been to the Sandbar Lounge, she had found the same conditions: the glass door was locked, the wooden door was unlocked, the lights were dim, and the bar was open for business.

[¶ 4] Upon entry, Davis and Brown went directly to the ladies restroom while Tanner approached the bar. While the women were in the restroom, Tanner called in, “come on, there’s no one here, let’s go.” Before leaving the Sandbar, Tanner urged the women to take several bottles of beer and a bottle of bourbon that had been placed beside the door. He also asked Davis what she drank, and then went behind the bar. Davis and Brown left the establishment with the liquor and were immediately confronted by the Sandbar’s manager, Roger Hessler. He and his girlfriend, Michelle Bouzis, had returned to the Sandbar Lounge after being alerted by another customer to the unlocked door.

[¶ 5] Brown and Davis unsuccessfully attempted to flee from Hessler, who subsequently flagged down Officer Eulberg. Meanwhile, Bouzis entered the tavern through the glass doors and confronted Tanner behind the bar near the register. Upon asking what he was doing there, Tanner replied he was “waiting for somebody to get him a drink.” When Bouzis expressed skepticism at this statement, Tanner responded, “I just want to leave, I don’t want any hassles.” Instead, he and Bouzis went outside to join Hessler, Brown, and Davis in being questioned by Officer Eulberg. Tanner was subsequently arrested for burglary.

[¶ 6] Following Tanner’s conviction for burglary, the district court entered its judgment and sentence on March 2, 2001, sentencing Tanner to a prison term of eighteen to eighty-four months. This timely appeal followed.

DISCUSSION

[¶ 7] Tanner asserts three claims of error on appeal. Finding the first to be dispositive, we will confine our discussion to the issue of whether there was sufficient evidence to support, beyond a reasonable doubt, his conviction for burglary in violation of Wyo. Stat. Ann. § 6-3-301. We review this claim under our usual standard:

When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Jennings v. State, 806 P.2d 1299, 1302 (Wyo.1991) (quoting Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989)). We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party’s evidence. Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996). We have consistently held that it is the jury’s responsibility to resolve conflicts in the evidence. Id. (citing Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993)). “We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.” Id. (citing Hodges v. State, 904 P.2d 334, 339 (Wyo.1995)).

Williams v. State, 986 P.2d 855, 857 (Wyo.1999).

[¶ 8] In asserting his claim that the evidence adduced at trial was insufficient to support his conviction, Tanner directs our attention to the Amended Information, the jury instructions, and the general verdict form signed by the presiding juror. He contends the information and the jury instructions failed to particularize which portions of the burglary statute the State was relying upon for conviction. He cites to the line of cases, including Bush v. State, 908 P.2d 963, 966 (Wyo.1995), which addresses jury instruction in the alternative and holds that a “verdict must be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” (Citations omitted.) We agree that those cases are controlling on the subject and generally accept Tanner’s analysis of the issue.

[¶ 9] The Amended Information, filed July 21, 2000, charged that:

Ronald Arbie Tanner III, late of the County aforesaid, on or about the 14th day of July, 2000, in the County of Natrona, in the State of Wyoming, did unlawfully, and without authority, enter or remain in a building, occupied structure, or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein, in violation of W.S.1977, as amended, § 6-3-301(a) and (b) contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.

As is .obvious, the Amended Information was couched in the language of the statute itself with no indication of which of the foregoing circumstances was in fact being charged. Next, we review the jury instructions, including jury instructions numbers 4 and 6. Number 4 reads exactly the same as the Amended Information. Instruction number 6 provided in pertinent part that:

The elements of the crime of Burglary, as charged in this case, are:
1. On or about the 14th day of July, 2000
2. In Natrona County, Wyoming
3. The Defendant, Ronald Arbie Tanner III
4. Without authority
5. Entered or remained in a building or occupied structure or vehicle, or separately secured or occupied portion of a building, occupied structure or vehicle
6. With intent to commit larceny or a felony therein.

(Emphasis added.) Lastly, we note that the jury returned its guilty verdict on the general verdict form.

[¶ 10] Turning to the law, the rule Tanner relies on has been summarized by a Wyoming commentator in this fashion:

Whenever a jury is permitted to return a general verdict of guilty to a charge which contains alternatives, either one of which will suffice, it is possible that all the jury will not have found the same alternative. If all members of the jury have not agreed to find at least one of the alternatives necessary to convict, a unanimous verdict has not been returned.

Lauer, Barbara L., Jury Agreement and the General Verdict in Criminal Cases, XIX Land & Water L.Rev. 207 (1984). Early support for this proposition can also be found in the case of State v. Tobin, 31 Wyo. 355, 226 P. 681, 685 (Wyo.1924).

[¶ 11] More direct support is found in a number of modern cases. Beginning with Cloman v. State, 574 P.2d 410, 412 (Wyo.1978) (citing Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957)) this court has expressly recognized the rule set out above. In Fife v. State, 676 P.2d 565 (Wyo.1984), we applied the proposition to a burglary case and reversed the defendant’s conviction for aggravated burglary when the jury had been instructed in the alternative and we could not determine whether its general verdict was based upon the intent to steal or the intent to commit assault with a deadly weapon. This court wrote:

If both theories of intent submitted to the jury were sufficiently supported by the evidence, we could uphold the general verdict on the aggravated burglary charge. However, there was insufficient evidence as a matter of law to support the intent to assault element. We cannot uphold a general jury verdict when one of the alternate theories upon which the jury could have relied is in error. If one of the alternate theories submitted to the jury is unsupported by substantial evidence, the general verdict must be set aside unless the court can ascertain that the verdict was founded upon a theory supported by substantial evidence. State v. Carothers, 84 Wash.2d 256, 525 P.2d 731 (1974).

Fife, 676 P.2d at 568 (citations omitted).

[¶ 12] Similarly, in Bush v. State, 908 P.2d 963 (Wyo.1995), we reversed the defendant’s conviction for burglary. There, we reviewed the Information, the jury instruction listing the elements of the crime, and the general jury verdict form and stated:

Count I of the Information, Jury Instruction No. 10, and the general verdict form all fail to particularize the underlying crime that supports the burglary conviction. It is impossible to tell whether the jury relied on the crime of felony accessory or the crime of larceny when it convicted Bush of burglary. Therefore, the burglary conviction will stand, only if evidence in the record proves that Bush entered Schantz’s apartment with the intent to commit both a felony and the crime of larceny. Price v. State, 807 P.2d 909, 912 (Wyo.1991).

Id. at 967 (emphasis in original). With insufficient evidence to support the intent to commit a larceny, this court reversed Bush’s burglary conviction. Id. at 968.

[¶ 18] Just as in Bush, due to the general verdict, this court is left to speculate on which ground the jury found Tanner guilty of burglary. Thus, Tanner’s burglary conviction will stand only if evidence in the record establishes that he had the intent to commit both a felony and the crime of larceny. However, the instructions in this case create more serious problems than the single problem in Bush. This case compels reversal even more strongly than Bush due to the fifth element recited in Instruction Number 6, where the jury was instructed that the State must prove that Tanner: “[e]ntered or remained in a building or occupied structure or vehicle, or separately secured or occupied portion of a building.” (Emphasis supplied.) Thus, as Tanner points out in his brief, it is also unclear whether the jury found that he entered the Sandbar without authority or whether he remained in the Sandbar without authority. Further, it is unclear which sort of structure was intended in the charge. Despite these additional problems, we will confine our discussion to the Bush issue, because that issue is dispositive.

[¶ 14] The State attempts to avoid application of the simple rule recited above by asserting that, unlike Bush, it is clear in the instant case that the State proceeded upon only one “theory of guilt.” It contends the prosecutor’s opening and closing statements show there was only one State “theory” ever presented to the jury: that of the intent to commit larceny. Even assuming arguendo this were true, the State’s reasoning is flawed because it inappropriately equates prosecutorial argument with the State’s alternative theories of guilt as that term of art is used in cases on the subject such as Fife v. State, Yates v. United States, and Bush v. State. As is clear from studying those opinions, courts determine the State’s theories from its charging documents, its requested jury instructions, etcetera-from official record evidence, not from argument by counsel. Indeed, this court has repeatedly held that prosecutorial argument is not evidence and consistently emphasized that jurors are so instructed, as was this jury. See e.g., Christian v. State, 883 P.2d 376, 381 (Wyo.1994); Talbott v. State, 902 P.2d 719, 722 (Wyo.1995). We decline to reverse that view. Instead of accepting the State’s invitation to rely upon the prosecutor’s oratory to determine precisely how the jury was charged with its task to find the defendant guilty or not guilty, we will continue to resolve this issue as we have consistently done in the past, i.e., by reviewing the information, the jury instructions, and the form of the jury’s verdict.

[¶ 15] We also reject the State’s contention that jury instructions 4 and 6 should be reviewed for plain error because Tanner did not object to those instructions. This court has not held that it is “error” to instruct the jury in the alternative. Rather, we have held that if a jury is instructed in the alternative, and if that jury returns a general verdict of guilty, then upon appellate review of the sufficiency of the evidence to support the conviction, the record must support each alternative beyond a reasonable doubt. Having reiterated how we analyze the sufficiency issue, we now turn to the evidence adduced at trial to resolve whether, when viewed in the light most favorable to the State, the record sufficiently supports beyond a reasonable doubt that Tanner had the intent to commit larceny and a felony therein.

[¶ 16] Upon review of the transcripts, we find that the State called six witnesses to testify at trial and entered exhibits of photographs of the interior and exterior of the Sandbar Lounge into evidence. The State’s first and lengthiest witness, Michelle Bouzis, testified generally to her knowledge of the Sandbar Lounge, the events that transpired which led her to confront Tanner within the Lounge, and his subsequent conduct, demeanor, and remarks made to her. Nothing in her testimony allows the reasonable inference that Tanner had the intent to commit “a felony therein.” Likewise, neither does the testimony of bar manager Roger Hessler or Officer Tim Eulberg. Nor does the testimony of Tammy Sue, “Sam” Hatcher, one of the bar employees who closed early that evening, give rise to such an inference. Neither still does the testimony of Tanner’s co-defendant, Kathleen Davis, support even the reasonable inference that Tanner possessed the intent to commit “a felony therein.” Lastly, the brief testimony of Detective Karen Watson cannot support the alternative element charged. The State essentially concedes as much in its appellate brief when it states, “the State proceeded on a single theory, that Appellant committed burglary by remaining in a building without authority with intent to commit larceny, and presented sufficient evidence relating to that theory from which the jury could find Appellant guilty beyond a reasonable doubt. No rational jury could have convicted Appellant on any other yround. ” Accordingly, we conclude the record is insufficient to support Tanner’s felony conviction for burglary with intent to commit a felony.

[¶ 17] We must now consider the appropriate disposition of the charge. In Longstreth v. State, 890 P.2d 551, 553 (Wyo.1995), we wrote that “Longstreth correctly argues that jeopardy attached when his conviction for burglary was reversed due to the State’s failure to prove the unlawful entry element of the crime charged. Edwards v. State, 815 P.2d 670, 672 (Okla.Crim.App.1991) (quoting Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978)) (jeopardy attaches when a conviction is overturned due to insufficiency of the evidence).” The United States Supreme Court in Burks wrote:

Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only “just” remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.

437 U.S. at 18, 98 S.Ct. at 2150-51. Based on this precedent, this court will direct the district court to enter a judgment of acquittal on the burglary charge against Tanner.

[¶ 18] The court cannot leave this case without some comments and some (we hope) helpful guidance. It is with a great deal of frustration that we reverse Tanner’s conviction. Simply put, this error should almost never arise in Wyoming courts. Avoiding the problem begins with a more carefully drafted charging document. In this case, it is clear Tanner did not enter a vehicle. Yet, that portion of the burglary statute was included in the information (and later, the jury instruction). Just as importantly, carefully crafted instructions to the jury are required. This court’s precedent and the Wyoming Criminal Pattern Jury Instructions advise practitioners on how to instruct in the alternative. In his article, Burglary in Wyoming, XXXII Land & Water L.Rev. 721, 780-82 (1997), referencing the pattern instructions, Professor Theodore E. Lauer explains:

The appropriate terms within the brackets, which are charged in the information and supported by the evidence, should be included in the instruction. Other terms which are not charged, or are not supported by the evidence should not be included in the instruction
It is very important that only those alternative bracketed terms in the foregoing instruction which are supported by the evidence in the case be included in the instruction given to the jury. In too many instances, the elements instruction given to the jury simply restates the content of the information, setting forth, for example, that the defendant “entered or remained in a building, occupied structure or vehicle or separately secured or occupied portion thereof,” and “with intent to commit larceny or a felony therein.” Such instructions are inadequate, and should lead to reversal of convictions. The instruction must conform to the crime as charged in the information, and must also conform to the evidence which has been introduced.
Thus under Fife, an elements instruction in the general language of the burglary statute, stating “with intent to commit larceny or a felony therein” when there was no evidence to support a finding of intent to commit larceny, would be reversible error. Likewise, if the State is relying upon intent to commit some felony therein, that felony must be specifically stated. Thus if intent to commit sexual assault is relied upon, the instruction must say so. It is not proper to give the jury a roaming commission to pick out which undefined and unspecified felony it might think the evidence supports.

CONCLUSION

[¶ 19] Based on the foregoing, we reverse Tanner’s conviction and vacate the Judgment and Sentence entered by the district court. We remand this matter to the district court for entry of a judgment of acquittal on the burglary charge against Tanner.

      . Testimony introduced at trial disclosed that the Sandbar's employees had closed the bar early without authorization and left, inadvertently leaving the wooden door unlocked in the process.

      . The missing liquor was later valued at about $16.

      .
      § 6-3-301. Burglary; aggravated burglary; penalties.
      (a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.
      (b) Except as provided in subsection (c) of this section, burglary is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

      . As the Washington Supreme Court later recognized in a subsequent alternative instruction case. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980), the substantial evidence test can no longer be applied to sufficiency of the evidence analysis following the U.S. Supreme Court's holding in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Accordingly, the appropriate test for determining the sufficiency of the evidence of kidnapping is not that applied in Green I, i.e., whether, after viewing the evidence most favorable to the State, there is substantial evidence to support kidnapping. The issue, as framed in Jackson v. Virginia, supra, is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of kidnapping beyond a reasonable doubt." State v. Green, 616 P.2d at 632 (emphasis in original).

      . Appellant argues that Tanner did not "without authority” enter or remain within the Sandbar Lounge because it was a place of business open during business hours. He relies upon cases from several jurisdictions which do not allow such an inference. As the South Dakota Supreme Court said in Matter of TJE, 426 N.W.2d 23, 24 (S.D.1988): “To interpret the word "remains” in [the statute] to hold a person commits second degree burglary whenever he is present in an occupied structure with the intent to commit a crime therein would make every shoplifter a burglar. It would make the commission of any crime indoors, no matter how severe, subject to a felony burglary charge.” (Citation omitted.) We agree this argument has some merit especially following examination of Longstreth v. State, 832 P.2d 560, 564 (Wyo.1992), where this court wrote:
      In order to review appellant's sufficiency of evidence claim, we first examine what the phrase 'without authority] means in Wyoming’s burglary statute. No Wyoming cases have directly addressed this element of the burglary statute.
      In discussing burglary statutes in their treatise on criminal law, LaFave and Scott note,
      [t]he most common statutory term is "unlawfully,” but some jurisdictions use other language, such as “unauthorized,” by "trespass,” "without authority,” "without consent,” or "without privilege.”
      Though these statutory formulae are not in all respects identical, they generally require that the entry be unprivileged. A more precise way of describing this situation is by excluding those entries of premises when they are open to the public or by a person licensed or privileged to enter.
      2 W. LaFave & A. Scott, Substantive Criminal Law § 8.13 at pp. 466-67 (1986) (emphasis added and footnotes omitted).
      Nevertheless, we decline to address these contentions on their merits because our holding on other grounds is dispositive.


text:
    2002 WY 171
    Kathleen TRABING, Appellant (Plaintiff), v. KINKO’S, INC., Appellee (Defendant).
    No. 02-3.
    Supreme Court of Wyoming.
    Nov. 22, 2002.

      John B. “Jack” Speight and Amanda Hun-kins of Speight, McCue & Associates, P.C., Cheyenne, WY, Representing Appellant. Argument by Ms. Hunkins.
    Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, WY, Representing Appellee. Argument by Mr. Scott.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] Appellant Kathleen Trabing appeals the district court’s order of summary judgment, which disposed of her claims for breach of implied-in-fact contract, promissory estoppel, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress.

[¶ 2] We affirm.

ISSUES

[¶3] Trabing offers the following issues for our analysis:

A. Do genuine issues of material fact exist which preclude summary judgment in favor of Kinko’s on the issue of whether an implied-in-fact contract existed by virtue of the Kinko’s Co-worker Handbook?
1. Does the Employment Agreement executed on the day Trabing began work for Kinko’s fail for lack of consideration as it pertains to provisions negating its Co-worker Handbook’s promises of job security?
2. Is it bad public policy to allow employers to escape contractual liability for handbook provisions by simply distributing employee handbooks prior to date employee commences working?
B. Do genuine issues of material fact exist regarding Trabing’s alleged “actual knowledge” of the at-will provisions of the Handbook as it pertains to her be[ing] “sufficiently informed” that her employment was at-will?
C. Do genuine issues of material fact exist regarding Kinko’s course of conduct with respect to its emphasis on “Positive Discipline” as a mandatory process such that it negated its Co-worker Handbook disclaimer and moreover the presumption of at-will employment?
D. Do genuine issues of material fact exist regarding whether Kinko’s “Positive Discipline” process and course of dealing constituted specific promises to Trabing upon which she detrimentally relied?
E. Do genuine issues of material fact exist as to whether a special relationship existed between Trabing and Kinko’s and also as to whether Kinko’s then breached the implied covenant of good faith and fair dealing by terminating Trabing’s employment based on a few disgruntled employees’ comments?
F. Do genuine issues of material fact exist as to whether Trabing suffered severe emotional distress when Kinko’s terminated her solely on the basis of her employees’ anonymous and unsubstantiated comments during a time in which she was grieving over the recent loss of her mother?

Appellee Kinko’s states its issue as follows:

Was summary judgment properly granted by the District Court upon Appellant Trab-ing’s claims for breach of implied in fact contract; promissory estoppel; breach of the covenant of good faith and fair dealing; and the intentional infliction of emotional distress?

FACTS

[¶ 4] Trabing began working for Kinko’s as a branch manager of the Laramie, Wyoming store on December 21, 1992. She signed an Employment Agreement on that date, which provided in part:

Kinko’s and the co-worker understand that the co-worker is employed at will, which means that the co-worker or Kinko’s may terminate the employment at any time, with or without cause and with or without advance notice.

A few days earlier, either on December 18 or 19, 1992, it is unclear what the handwritten numeral is, Trabing signed a Co-Worker Agreement, in which she acknowledged that she had received the Co Worker Handbook. The handbook outlined Kinko’s policies and procedures, which included the company’s positive discipline system. The handbook also contained an employment-at-will provision.

[¶5] During the nearly eight years that Trabing was employed by Kinko’s, she received several “above-standard” performance evaluations. In 1998, however, the store’s sales revenues began to decline, and Trab-ing experienced difficulties maintaining good working relationships with her subordinates. Her Management Effectiveness Survey (MES) scores, which are anonymous evaluations the manager’s staff completes regarding the manager’s capabilities and management style, got consistently worse. The surveys also contained numerous critical comments regarding the way Trabing performed her job and treated her employees. Trabing admits that she was having difficulties during this time, but attributes her problems in part to the fact that her mother was fighting and ultimately lost a long battle with cancer.

[¶ 6] Concerned about Trabing’s recent low MES score, Trabing’s regional manager and a Kinko’s human resources specialist traveled to the Laramie store. They placed Trabing on decision-making leave, during which time Trabing was instructed to devise a plan for improving her performance. During those three days, Trabing made various attempts to contact her regional manager for assistance in drafting her plan. When she finally got in touch with him, he advised Trabing that he could not discuss the situation with her. At the conclusion of the three-day period, the three met again. Trabing had not drafted a plan for improvement, and she was terminated at that time.

[¶ 7] Trabing filed suit, asserting claims for breach of implied-in-fact contract, promissory estoppel, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Kinko’s moved for summary judgment. The district court granted Kinko’s motion, and this appeal followed.

STANDARD OF REVIEW

[¶8] Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 10, 25 P.3d 511, ¶ 10 (Wyo.2001); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense that has been asserted by the parties. Williams Gas Processing-Wamsutter Co. v. Union Pacific Resources Co., 2001 WY 57, ¶ 11, 25 P.3d 1064, ¶ 11 (Wyo.2001). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Scherer Constr., LLC v. Hedquist Constr., Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001). We do not accord any deference to the district court’s decisions on issues of law. Id.

DISCUSSION

A. Implied-In-Fact Contract

[¶ 9] Trabing first contends that summary judgment was inappropriatély granted to Kinko’s because genuine issues of material fact exist regarding whether an implied-in-fact contract had been formed by virtue of Kinko’s Co-Worker Handbook. She maintains that the Co-Worker Handbook created an implied-in-fact contract whereby termination could occur only for cause and only by following the positive discipline process. Kinko’s insists that an implied-in-fact contract did not exist because Trabing signed an express, written employment agreement when she began her employment on December 21,1992.

[¶ 10] In Wyoming, employment is presumed to be at will. Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000); Bear v. Volunteers of America, Wyoming, Inc., 964 P.2d 1245, 1250 (Wyo.1998). This presumption may, however, be modified by either an express or implied-in-fact contract. Id.

The contract of employment is created by either an express contract or a contract implied in fact. Express contracts are ones in which the terms are declared by the parties either in writing or orally at the time the contract is formed....
The implied in fact contract of employment arises from a mutual agreement and intent to promise which is found in the acts or conduct of the party sought to be bound. Contracts of employment which are found from employee handbooks or policies are implied in fact contracts. Both express and implied in fact contracts of employment are enforceable to the same degree.

Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216-17 (Wyo.1994) (citations omitted).

[¶ 11] On December 18 or 19, 1992, two or three days before she began work, Trab-ing received a copy of the employee handbook. The provisions of the handbook implied cause was required for termination. Although the handbook contains provisions stating it is not intended to create a contract and employment is at will, Kinko’s concedes these disclaimers are not sufficiently conspicuous. Absent any other writings or representations prior to beginning employment, a question of fact would exist as to whether the handbook creates an implied contract altering the presumption of at-will employment and requiring cause for termination. However, on December 21, 1992, the day she began work, Trabing was given a copy of the employment agreement which provided as follows:

Kinko’s and the co-worker understand that the co-worker is employed at-will, which means that the co-worker or Kinko’s may terminate the employment at any time, with or without cause and with or without advance notice....
I understand that this agreement constitutes the full and extent of the agreement between myself and Kinko’s regarding the terms of my employment. I understand that Kinko’s will not be bound by any oral statements or promises that are inconsistent with this agreement and this agreement can only be modified or amended in writing by an authorized representative of the Company.

[¶ 12] Trabing signed the agreement, acknowledging that:

I have read and understand this Employment Agreement and agree to the terms and conditions contained herein. I understand that this agreement super-cedes all previous agreements and that the company may change, rescind or cancel this agreement at any time, in its sole and absolute discretion. I further acknowledge that this Agreement has not been executed in reliance upon any representation or promise except those contained herein and that Kinko’s has made no guarantee regarding my employment for a specified period of time.

[¶ 13] Parties to a contract are presumed to have knowledge of the terms of the contract and its effects. First State Bank v. American Nat’l Bank, 808 P.2d 804, 806 (Wyo.1991). When parties sign an express contract, the terms within that signed writing control. Generally, an implied contract may not be found if there exists an express contract between the same parties on the same subject matter. 42 C.J.S., Implied Contracts, § 34 (1991). When these principles are applied, the express agreement supercedes any implied contract which otherwise may have existed by virtue of the employee handbook.

[¶ 14] Trabing claims that the Co-Worker Handbook that she was given on December 18 or 19, 1992, and asked to review and sign supercedes the Employment Agreement that she signed on the day she began working for the company on December 21, 1992, and that the Employment Agreement fails for lack of consideration. She cites Brodie v. General Chemical Corp., 934 P.2d 1263 (Wyo.1997) in support of her claim. Trabing’s reliance on Brodie is misplaced.

[¶ 15] In Brodie, the employee began work governed by a handbook containing promises implying job security. Some time later in the course of his employment, the employer attempted to revoke the handbook to restore at-will status. The question presented was whether additional consideration was required when an employer modifies an implied job security provision to restore at-will status. Under the facts presented, the court answered the question in the affirmative. However, in determining whether there was sufficient consideration to support the revocation as it occurred in that case, the court expressly distinguished representations made after employment begins from those made at the time employment begins. The court said:

Our analysis today assumes that the representations are made after employment has begun and is, therefore, a modification. A different situation is presented when the representation is made at the time that employment begins. In that case, the representation, if enforceable, is a term of the implied employment contract along with the other usual terms specifying pay, benefits, working hours, and job responsibilities under the rule that a single consideration can support several promises.

Brodie, at 1265 n. 1 (citation omitted; emphasis added).

[¶ 16] In the present case, unlike Brodie, the representation made in the express agreement that Trabing’s employment was at will was not made after employment had begun but rather at the time employment began. Under Brodie, therefore, it is not a modification requiring separate consideration; rather, it is a term of the employment relationship along with all the other terms and is supported by the same consideration. Contrary to Trabing’s argument, therefore, the employment agreement does not fail for lack of sufficient consideration.

[¶ 17] In Wyoming, employment is presumed to be at will. Worley, 1 P.3d at 620; Bear, 964 P.2d at 1250. The handbook provided to Trabing two to three days before she began her employment stated it was not intended to be a contract, the employer reserved the right to change or revise the policies at any time, employment was at will, and employment could be terminated at any time with or without cause and with or without advance notice. That these provisions alone may not be sufficiently conspicuous under Wyoming law to preserve Trabing’s at-will status does not end the discussion in this case. The day Trabing began her employment, she signed a co-worker agreement which further provided that the employer could unilaterally change the policies at any time and terminate the employment relationship at any time with or without cause or notice. That same day, Trabing received and signed a copy of the employment agreement, acknowledging she had read and understood it, which reiterated that her employment was at will.

[¶ 18] These employment documents were given to Trabing in the same time frame, separated only by a couple of days, before she began work, making them in essence part of one transaction. Moreover, the express agreement accomplished what a conspicuous disclaimer appearing in the handbook itself would have accomplished — it informed Trabing she was employed at will, Kinko’s could terminate her employment at any time with or without notice or cause, it constituted the full agreement between herself and Kinko’s, Kinko’s was not bound by any inconsistent agreement or representations, and it superceded any previous agreements. Any ambiguity created by the absence of a conspicuous disclaimer in the handbook was resolved upon issuance of the employment agreement to Trabing when she began work on December 21,1992.

[¶ 19] Trabing claims that by emphasizing the positive discipline procedures, Kin-ko’s course of conduct negated the at-will employment. We disagree. The express Employment Agreement provided that Kin-ko’s would not be bound by any oral statements or promises that were inconsistent with the agreement and further that the agreement could only be modified in writing by an authorized representative of Kinko’s. Given this term, any course of conduct that occurred subsequent to the execution of the Employment Agreement could not have been reasonably relied upon or interpreted as a modification of the contract by Trabing.

[¶ 20] We find that Trabing and Kinko’s entered into an express, written employment contract on December 21, 1992. When the language in a written contract is unambiguous, the intention of the parties shall be ascertained from the plain language of the contract. Busch Dev., Inc. v. City of Cheyenne, 645 P.2d 65, 71 (Wyo.1982). The interpretation of an unambiguous contract is a question of law for the court and may properly be disposed of by summary judgment. Sowerwine v. Keith, 997 P.2d 1018, 1020 (Wyo.2000). The unambiguous terms of the Employment Agreement provided that Trabing’s employment was at will. We hold that the district court’s decision to enforce that provision by way of summary judgment was appropriate.

B. Promissory Estoppel

[¶21] Trabing contends that the positive discipline procedure outlined in the Co Worker Handbook constituted a promise that Trabing would be terminated only for cause and only after the positive discipline procedures had been complied with. Kinko’s counters that a promissory estoppel claim requires that the party invoking the doctrine have acted reasonably in justifiable reliance on the promise that was allegedly made.

[¶ 22] In Worley v. Wyoming Bottling Co., Inc., 1 P.3d at 623, this court explained the remedy of promissory estoppel and outlined the required elements of a promissory estoppel claim:

Promissory estoppel provides relief for an “injury arising from actions or declarations which have been acted on in good faith and which would be inequitable to permit a party to retract.” Davis v. Davis, 855 P.2d 342, 347-48 (Wyo.1993) (quoting Jankovsky v. Halladay Motors, 482 P.2d 129, 132 (Wyo.1971)). In the employment context, promissory estoppel works to prevent injustice to employees who in good faith detrimentally rely upon an employer’s actions, in turn binding the employer to fulfill a promise to an employee despite the lack of an employment contract. Promissory estoppel may be useful when, because of lack of consideration, an employee is unable to bring a breach of contract claim. As long as a promise is present, promissory estoppel can be used to satisfy the consideration element. Terry v. Pioneer Press, Inc., 947 P.2d at 277 (citing 1 Henry H. Perritt, Jr., Employee Dismissal Law And Practice § 4.39 (3d ed.1992)).
Promissory estoppel is detailed in the Restatement, Second, Contracts § 90(1) (1981), which we recently quoted:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
Bouwens v. Centrilift, 974 P.2d at 947; Michie v. Board of Trustees of Carbon County School Dist. No. 1, 847 P.2d 1006, 1009 (Wyo.1993). The required elements of a promissory estoppel claim are: the existence of a clear and definite agreement; proof that the party urging the doctrine acted to its detriment in reasonable reliance on the agreement; and the equities support the enforcement of the agreement. Loghry, 927 P.2d at 710; Michie, 847 P.2d at 1009.

This court has held that a conspicuous disclaimer that indicates at-will employment defeats a promissory estoppel claim because such a disclaimer makes it unreasonable for an employee to rely on any subsequent understanding that her employment would be anything other than at will. Loghry v. Unicover Corp., 927 P.2d 706, 711 (Wyo.1996).

[¶ 23] Although Trabing asserts that the disclaimer in the Co Worker Handbook was not conspicuous, we do not address this claim because the evidence in this case demonstrates that Trabing routinely read the at-will provision to new employees, and she, therefore, had actual knowledge of the at-will policy whether it was conspicuous or not. Furthermore, Trabing is deemed by contract law to have knowledge of the terms included in the Employment Agreement that she signed. Her contract contained both the at-will provision and the provision that explained that Kinko’s would not be obligated by any oral statements or promises that were inconsistent with the Employment Agreement. We hold, therefore, that Trabing could not have reasonably relied upon any statements or practices that indicated that she was anything other than an at-will employee and that Kinko’s was entitled to a summary judgment on this issue.

C. Implied Covenant of Good Faith and Fair Dealing

[¶ 24] Trabing next asserts that her eight years of dedicated service to Kin-ko’s along with the separate consideration of her dedication to outstanding customer service that went above and beyond the call of duty created a special relationship of trust and reliance between herself and Kinko’s and that Kinko’s breached its duty to act in good faith and fair dealing when it terminated her employment. Kinko’s replies that Trabing has failed to establish the requisite special relationship of trust and reliance for her breach of implied covenant of good faith and fair dealing claim.

[¶25] Kinko’s is correct in its assertion that a special relationship of trust and reliance must be demonstrated before an employee can recover on an implied covenant of good faith and fair dealing claim. VanLente v. University of Wyoming Research Corp., 975 P.2d 594, 598 (Wyo.1999). Previous Wyoming cases have indicated the type of factors that will give rise to a special relationship: separate consideration, common law, statutory rights, or the existence of rights accruing with longevity of service. Worley, 1 P.3d at 624.

[¶ 26] With regard to longevity of service, this court has stated that the mere longevity of service is not sufficient to create the special relationship leading to tort remedy. VanLente, 975 P.2d at 598. “Usually, the special relationship ... stems from a long term employment relationship coupled with a discharge calculated to avoid employer responsibilities to the employee, e.g., benefits or commissions.” Garcia v. UniWyo Federal Credit Union, 920 P.2d 642, 646 (Wyo.1996). Trabing does not allege, nor does the evidence suggest, that Kinko’s terminated her employment in order to avoid giving her any benefits that she earned during her employment. We, therefore, are not moved to find that Trabing’s eight years of service to Kin-ko’s created the special relationship necessary to sustain this type of claim.

[¶ 27] Trabing’s assertion that her dedication to outstanding customer service constitutes additional consideration also fails to establish the special relationship requirement. Being dedicated to outstanding customer service was simply a part of her job as branch manager. Kinko’s company policy states: “Our primary objective is to take care of our customer.” To establish separate consideration, Trabing would have to show that she provided something other than “merely performing the duties of the job.” Worley, 1 P.3d at 626. Indeed, this court has specifically stated that “[[longevity, coupled with performance of job duties, is not sufficient to structure the special relationship required by Wilder.” VanLente, 975 P.2d at 598. We hold that the facts of this case do not create a special relationship of trust and confidence necessary for Trabing to pursue a breach of the implied covenant of good faith and fair dealing claim. Kinko’s was, therefore, entitled to a summary judgment on this issue.

D. Intentional Infliction of Emotional Distress

[¶ 28] Trabing finally alleges that Kinko’s termination of her employment based solely on the basis of her employees’ anonymous and unsubstantiated comments during a time in which she was grieving over the recent loss of her mother caused her severe emotional distress. Kinko’s responds that it was simply exercising its legal rights when it terminated Trabing’s employment.

[¶ 29] Wyoming has acknowledged that certain conduct in employment situations may be outrageous enough to provide the terminated employee with a claim for intentional infliction of emotional distress. Worley, 1 P.3d at 628. We have adopted the tort as it is defined in the Restatement, Second, Torts § 46(1) (1965):

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Worley, 1 P.3d at 628. However, if an employee’s mental distress is caused solely by a termination that was permitted by the contract, then the employer has a complete defense even if the employer knows that the termination will cause the employee emotional distress. Terry v. Pioneer Press, Inc., 947 P.2d 273, 278 (Wyo.1997).

[¶ 30] In light of our holding that Trab-ing’s employment with Kinko’s was at will, we find that Kinko’s did nothing more than act within its legal rights when it terminated Trabing’s employment. Accordingly, Kinko’s has a complete defense to this claim, and summary judgment was appropriate.

CONCLUSION

[¶ 31] We hold that there does not exist any genuine issues of material fact and that Kinko’s was entitled to a judgment as a matter of law. We, therefore, affirm the district court’s order of summary judgment.

      . Trabing presented many issues for our review in this appeal. Our decisions on several of her issues made others moot; and we, therefore, did not address them.