author: LEHMAN, Chief Justice.

text:
    2002 WY 76
    In the Matter of the ADOPTION OF TLC. TOC, Appellant (Respondent), v. TND and DLD, Appellees (Petitioners).
    No. C-00-5.
    Supreme Court of Wyoming.
    May 21, 2002.

      DaNece Day Koenigs and Daniel B. Bailey of Lubnau, Hand & Bailey LLC, Gillette, Wyoming, Representing Appellant. Argument by Ms. Koenigs.
    Michael N. Patchen, Gillette, Wyoming, Representing Appellees. Argument by Mr. Patchen.
    Before LEHMAN, C.J.; GOLDEN and KITE, JJ.; and SPANGLER, D.J., Ret.
   LEHMAN, Chief Justice.

[T1] Appellant TOC (Father) appeals from the district court's order granting the adoption of his seven-year-old daughter, TLC to TND (Stepfather) without Father's consent. We hold that the record does not demonstrate clear and convincing evidence to support either of the statutory factors relied upon by the district court to grant this adoption without the consent of Father. Accordingly, we reverse.

ISSUES

[12] Father presents the following issues for our analysis:

A. Did the District Court err in failing to strictly construe the provisions of W.S. § 1-22-101 et seq. and grant every reasonable intendment in favor of the father contesting the adoption of his child?
B. Was the District Court's finding that the father had willfully failed to pay child support pursuant to W.S. § 1-22-110(a)iv) and (ix) an abuse of discretion when the failure to pay child support was a result of the father's incarceration?
C. Was the District Court's finding that the father had abandoned the child pursuant to W.S. § 1-22-110(a)(iii) an abuse of discretion when there was no intent to abandon the child?
D. Without specific statutory authority, can the District Court find a parent's incarceration sufficient grounds for entering an adoption pursuant to W.S. § 1-22-1107

FACTS

[13] The record before this court contains no transcript of the hearing in this case. Additionally, Father has improperly invoked W.R.A.P. 3.03 by failing to follow its requirements. However, for the limited purpose of generating this contextual section of our opinion, we will utilize portions of the parties' agreed upon statement of proceedings as otherwise supported by the record.

On June 4, 1992, TLC was born to Father and DLD (Mother). Since her birth, the child has continuously lived with Mother. Mother and child resided with Father for various periods from the time of the child's birth until the spring of 1997. During one of these periods, Mother and Father purchased a home together. Mother and child have lived with petitioner Stepfather since May of 1997.

[15] In December of 1995, Father was sentenced to serve a term of three to six years in the Wyoming State Penitentiary for delivering a controlled substance. He was released on probation and ordered to serve a forty-five day split sentence on weekends. In April of 1996, his probation was revoked, and he was placed in the state penitentiary. He was transferred to the Campbell County Community Corrections Facility in August of 1996 where he stayed until March of 1997. In July of 1998, Father's parole was revoked and he was again placed in the state penitentiary until August of 1999 when he was again released to the corrections facility where he resided at the time of trial.

[T6] Father's paternity and parental obligations were judicially established by a court order that was entered on September 15, 1995. The paternity decree required Father to pay $192 per month in child support. In December 1999, Father owed $9,636.50 in child support arrearages. During periods of incarceration, Father was under thirty-five to sixty-five percent wage withholding for his child support obligations and while imprisoned failed to seek modification of his child support obligation.

[T7] In addition to the periods Mother and Father lived together, Father saw the child approximately twenty times from her birth until the spring of 1997. Since 1997, Father has purchased three gifts for the child including a bicycle and a clock. While in the penitentiary Father mailed his daughter three letters and made monthly collect calls to her lasting from two to five minutes.

[18] Stepfather and Mother filed a Petition for Adoption October 14, 1999, alleging that Father had abandoned the child and had willfully failed to provide court-ordered child support. Father objected to the petition. A hearing was conducted, and the district court entered its Final Decree of Adoption over Father's objection on January 21, 2000. This timely appeal followed.

STANDARD OF REVIEW

[19] This court reviews orders of adoption under an abuse of discretion standard. We succinetly stated this standard in Matter of Adoption of SMR, 982 P.2d 1246, 1248 (Wyo.1999):

The power to grant or deny a petition for adoption is within the discretion of the trial court. Matter of Adoption of BGH, 930 P.2d 371, 377 (Wyo.1996); Matter of Adoption of GSD, 716 P.2d 984, 988 (Wyo.1986). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria." Mintle v. Mintle, 764 P.2d 255, 257 (Wyo.1988) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably have concluded as it did." Matter of Adoption of BGH, 930 P.2d at 377-78 (quoting Matter of Adoption of CCT, 640 P.2d 73, 76 (Wyo.1982)). In the context of alleged abuse of disceretion, the assessment of the cireumstances in the case
is tantamount to an evaluation of whether the evidence is sufficient to support the decision of the district court. In review of the evidence, we accept the successful party's submissions, granting them every favorable inference fairly to be drawn and leaving out of consideration conflicting evidence presented by the unsuccessful party.

(Quoting Basolo v. Basolo, 907 P.2d 348, 353 (Wyo.1995).)

DISCUSSION

[110] It is within the following constitutional framework that we are constrained to review Father's case. First and foremost, we recognize that the right to familial association is a fundamental right protected by both the Wyoming and the United States Constitutions. DS v. Dep't of Public Assistance & Social Servs., 607 P.2d 911, 918 (Wyo.1980); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972) (integrity of the family unit protected by the due process clause of the Fourteenth Amendment, equal protection clause of the Fourteenth Amendment, and the Ninth Amendment). Accordingly, adoption statutes are strictly construed when the proceeding is against a nonconsenting parent, and every reasonable intendment is made in favor of that parent's claims. In re Adoption of Female Child X, 537 P.2d 719, 723 (Wyo.1975); In re Adoption of Narragon, 530 P.2d 413, 414 (Wyo.1975). This court has explored the substantial policies supporting that tenet in Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo.1976):

[TJhe earliest and most hallowed of the ties that bind humanity, in all countries considered sacred, is the relationship of parent and child. Therefore, parents have the first and natural right to their children. A decree of adoption tears asunder forever the parent-child relationship and for all legal and practical purposes, that child is the same as dead to the parent affected. The parent has lost the right to ever again see the child or even know of his whereabouts. Courts cautiously guard the parent-child relationship.

[T11] Adoptions can occur without the consent of a parent only under certain statutorily delineated cireumstances. Because of the fundamental liberty interest at stake, the applicable statutes must be strictly construed. Moreover, the party requesting adoption bears the burden of proving the existence of at least one of the statutory factors by clear and convincing evidence. In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862, 867 (Wyo.1948) ("When a parent refuses to consent, and the matter in controversy is whether he had abandoned the child so as to dispense with the necessity of his consent, the burden of proof is on the party seeking to justify the adoption on that ground, and the courts often say that the evidence to show abandonment must be clear and convincing."); In re Adoption of Female Child X, 537 P.2d at 722 ("Petitioners, seeking to establish an exception and facts which would justify the absence of parental consent, have the burden of this proof.")

[112] Subsequent to this court's decisions regarding the standard and burden of proof, the U.S. Supreme Court has also recognized the clear and convincing standard as the constitutionally mandated minimum standard for the termination of parental rights. In Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982) the Court determined that:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

[113] The Court next reasoned that, "Itlhe function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." 455 U.S. at 754-55, 102 S.Ct. at 1395 (quoting Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979)). It ultimately held: "In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a 'fair preponderance of the evidence' standard in such proceedings is inconsistent with due process." 455 U.S. at 758, 102 S.Ct. at 1397.

[114] Turning now to our review of the instant case, as a consequence of Father's failure to comply with W.R.A.P. 3.03, this court cannot consider the agreed statement of proceedings submitted by the parties or any facts contained therein in rendering our decision. Jackson v. State, 624 P.2d 751, 756 (Wyo.1981). We must, therefore, refer to the district court's findings of fact in its order for the purposes of this discussion. Under the circumstances of this appeal, all facts as found by the district court are required to be taken as adequately supported by the evidence presented at the hearing. G.C.I. Inc. v. Haught, 7 P.3d 906, 911 (Wyo.2000) ("When no transcript has been made of trial proceedings, this court accepts the trial court's findings as being the only basis for deciding the issues which pertain to the evidence.") Thus, the question before this court is whether the district court's findings of fact support its ultimate legal conclusion that the requirements of the applicable statutory subsections have been satisfied by clear and convincing evidence. Pursuant to the order, the district court granted the adoption without the consent of Father under two statutory sections, Wyo. Stat. Ann. § 1-22-110(a)(iii) and (a)(ix).

Abandonment

[T15] Section 1-22-110(a)(iii) provides for the grant of adoption over the objection of a nonconsenting parent if the nonconsenting parent has "willfully abandoned or deserted the child." The district court determined:

Pursuant to Wyoming Statute § 1-22-110(a)(iii), this court finds that [Father] has willfully abandoned or deserted the child pursuant to the following facts: a) [Father's] contact with the minor child has been sporadic over her life time. b) The testimony indicates that [Father] did not attempt to exercise regular visitation. c) His lack of contact with the minor child was a result, among other items, [sic] the lack of reasonable notice given to the petitioners to see the child. d) While in prison, he called collect to the minor child once a month with the calls being 2 to 5 minutes in length. Further, he sent the minor child 3 letters and 3 gifts since 1997. The Court can disregard such incidental contacts. e) [Father] had the opportunity to establish a relationship in the life of the child, but he never availed himself of the rights and responsibilities of a parent nor developed any meaningful systematic way to have contact with the child and as a result has willfully abandoned and deserted the child. £) The Court will not put the good intentions of a parent before the best interests of a child. The law does not allow a second chanee to a parent who has not met the demands of parenting.

The facts as related in the order do not clearly and convineingly support a finding of willfil parental abandonment. The trial court stated that Father had sporadic contact with his daughter over her lifetime. The trial court also found that Father failed to exercise regular visitation. Neither of these findings supports a determination that Father willfully abandoned his daughter. A certain degree of parental inattention, neglect or temporary absence is not enough to establish willful abandonment. In re Adoption of Female Child X, 537 P.2d at 721; In re Adoption of Strauser, 196 P.2d at 868. Infrequent but continuing contact with a child is sufficient to indicate an intent to maintain parental ties and prevent a finding of willfal abandonment. Matter of Adoption of SMR, 982 P.2d at 1249.

[116] A finding of "abandonment" requires "an actual intent manifested to sever parental relations." Matter of Adoption of Voss, 550 P.2d at 487. In this case, the facts in the order reflect that Father attempted to maintain contact with his daughter. This is implicit in the finding that one reason for the lack of contact between Father and his daughter was Father's failure to give reasonable notice to the petitioners (appellees) to see the child. It is explicit in the finding that Father made monthly telephone calls to his daughter while he was in prison. The trial court dismissed the telephone calls as "incidental" contact and thus irrelevant. However, we think that such consistent contact cannot be disregarded, especially under a proper statutory construction of Wyo. Stat. § 1-22-110(a)(iii). We note the legislature has not made specific provision for incidental contacts to be disregarded under this section as it has in the termination provision of Wyo. Stat. § 14-2-809(a)(i). Therefore, the better analytical approach would be to foeus on the definitions of "willful" and "abandonment" as established by this court. All contact should be analyzed within the context of these definitions.

{{17] In the instant case, the monthly telephone calls and occasional letters indicate an attempt by Father to maintain contact with his daughter to the best of his ability while incarcerated. We do not hold that incarceration tolls a nonconsenting parent's familial obligations; however, when determining "abandonment," the trial court should consider whether an incarcerated non-consenting parent, unable to fulfill the customary parental duties of an unrestrained parent, has nonetheless pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability. See generally, Annotation, Parent's Involuntary Confinement, or Failure to Care for Child as Result Thereof, as Permitting Adoption Without Parental Consent, 78 A.L.R.3d 712 (1977) and cases cited therein.

[118] The district court also concluded that it would "not put the good intentions of a parent before the best interests of the child." However, Father's intent was the crux of the issue before the district court on the subject of abandonment. Because of the fundamental nature of parental rights, the issue of the requirement of parental consent to an adoption is determined without regard for the best interests of the child. In re Adoption of Female Child X, 537 P.2d at 722; Matter of Adoption of RHA, 702 P.2d 1259, 1264 (Wyo.1985) (best interests of child irrelevant until the consent issue had been resolved).

[119] Presumably, the "good intentions" referred to by the court are Father's good intentions to maintain contact with his daughter. The facts as found in the order indicate that Father attempted to maintain contact, and at least while incarcerated did maintain consistent contact, with his daughter. Because there is no evidence, clear and convincing or otherwise, of an actual intent to terminate the parental ties and a purpose to relinquish parental ties, the finding of abandonment must be reversed.

Willful nonpayment of court-ordered support

[120] The district court also granted the petition for adoption without the consent of Father pursuant to § 1-22-110(a){ix). Though enacted in 1992, this subsection has not yet been subject to interpretation by this court. Additionally, our research discloses that no other state has adopted a comparable provision, thus there is no persuasive authority which might aid in our statutory analysis. Nevertheless, our rules of statutory construction are well established. "Statutory interpretation is a question of law, so our standard of review is de novo. If the conclusion of law is in accordance with the law, we affirm it; if it is not, we correct it." May v. May, 945 P.2d 1189, 1191 (Wyo.1997) (citation omitted). In interpreting statutes, our primary consideration is to determine the legislature's intent. State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983). All statutes must be construed in pari materia; and in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Id. at 735. Holtz explained our statutory construction rules: Id. at 736; see also Fontaine v. Board of County Comm'rs of Park County, 4 P.3d 890, 894-95 (Wyo.2000).

If the language is sufficiently clear, there is no need to resort to rules of construction. When the language is not clear or is ambiguous, the court must look to the mischief the statute was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conclusions of law, and other prior and contemporaneous facts and circumstances, making use of the accepted rules of construction to ascertain a legislative intent that is reasonable and consistent.

[121] Wyo. Stat. Ann. § 1-22-110(a)(ix) provides:

(a) In addition to the exceptions contained in W.S. 1-22-108 the adoption of a child may be ordered without the written consent of a parent ... if the court finds that the putative father or the nonconsenting parent or parents have:
(ix) Willfully failed to pay a total dollar amount of at least seventy percent (70%) of the court ordered support for a period of two (2) years or more and has failed to bring the support obligation one hundred percent (100%) current within sixty (60) days after service of the petition to adopt.

[T22] Unfortunately, subsection (ix) has not been crafted with the linguistic precision desired in a statute that substantially affects a fundamental liberty interest of the citizens of this state. Initially, we note that it fails to reference a focal point for the period of consideration comprising "two years or more" of willfal nonpayment of child support. The district court interpreted the statute to mean "two years or more" immediately prior to the filing of the petition to adopt. We agree that this is the proper interpretation and by doing so ensure that subsection (ix) is applied consistently with subsections (iv) and (v) which reference the filing of the petition to adopt as the appropriate focal point.

[123] Other courts likewise have construed adoption statutes in this manner determining that such constructions are proper because they are reasonable and because termination of one's parental rights is a drastic action requiring that statutes like the present one be narrowly construed. See e.g., Sale v. Leachman, 218 Ga. 834, 131 S.E.2d 185 (1963); In re Adoption of Sharp, 197 Kan. 502, 419 P.2d 812 (1966); Petition of R.H.N., 673 P.2d 805, 806 (Colo.App., 1983) (appeal after remand 678 P.2d 1070 (1984)), aff'd 710 P.2d 482 (Colo.1985). The Kansas Supreme Court, in interpreting a statute that included the phrase for "two consecutive years" but likewise referenced no focal point, reasoned thusly:

If the statute were construed to mean that any two-year period in which a parent failed or refused to assume parental duties was sufficient to dispense with consent, a parent, who through a change of heart or cireumstances had attempted to reassume such duties after the two-year period, would be placed in the difficult position of proving there had been in fact repentance. While there appears to be authority permitting a repentant parent to show a resumption of parental obligations and thus reacquire the right to object to adoption, we believe that by limiting the two-year period of consideration to that next preceding the filing of the petition a natural parent is placed in a more advantageous position to uphold his rights. In other words, the fulfillment of parental duties and obligations, is, in our thinking, more accurately gauged by the facts found to exist during the two-year period next preceding the initiation of the adoption proceedings.
In light of the foregoing rules of statutory construction, and the inclination of the courts to uphold the rights of the natural parent, we are of the opinion that it was reasonably intended by the legislature that the failure or refusal to assume the duties of a parent for two consecutive years ... refers to the period next preceding the filing of a petition for adoption.

In re Adoption of Sharp, 419 P.2d at 814-15 (citation omitted.).

[124] The next portion of subsection (ix) we must interpret is its language, "Lwlillfully failed to pay a total dollar amount of at least seventy percent (70%) of the court ordered support for a period of two (2) years or more." It is conceivable this language might be interpreted to mean that the non-consenting parent must have willfully failed to pay at least 70% of his monthly support payment for a period of at least twenty-four consecutive months; or alternatively, it could be interpreted to mean that the total dollar amount of his court-ordered support for a period of at least two years is aggregated and it is then determined whether he has willfully failed to pay at least 70% of that total dollar amount.

[125] To illustrate: if Parent has court-ordered support of $100 per month, if interpreted in the first manner, Parent may forfeit his right to withhold consent to the adoption of his child only if he fails to pay, at a minimum, $70 every month for at least twenty-four months. If interpreted in the second manner, Parent may forfeit his right if he willfully fails to pay, at a minimum, 70% of $2,400, or $1,680, for at least the two-year period. Ultimately, we think the second interpretation was the one intended by the legislature as demonstrated by its use of the term "total dollar amount." The inclusion of this phrase would seem to indicate that an aggregation of the monthly court-ordered support for at least a two-year period is contemplated.

[126] We further necessarily conclude that the term "willfully" continues to modify the remaining portion of the sentence including the term "for a period of two (2) years or more." The plain language of the statute provides that the petitioner may prevail only if he has shown by clear and convincing evidence that the nonconsenting parent has willfully failed to pay the court-ordered support and that such willfulness has occurred "for a period of two years or more" and that the parent has failed to bring the support obligation one hundred percent (100%) current within sixty (60) days after service of the petition to adopt. Stated another way, if within the two-year period the parent's nonpayment of child support is not proven as willful, a petitioner cannot meet his burden to prove the parent's willful nonpayment has occurred for the requisite period of time. Consequently, a petition for adoption pursuant to this subsection must fail, To hold otherwise would excise the language "for a period of two years or more" from the sentence in question and relieve petitioners of their burden to prove two years of continual willful nonpayment of court-ordered child support. The plain language of the statute adopted by the legislature and the rule of strict statutory construction that where two interpretations of the statute are reasonably possible, that interpretation which is most protective of the rights of the natural parent is to be selected further support this interpretation. As the Georgia Supreme Court noted in Sale v. Leachman:

The statute here construed imposes a harsh and severe penalty upon the father not abiding by and obeying the mandate of a decree or order previously entered requiring him to pay a designated amount periodically for the support of his minor children. The penalty is to take from his bosom his own children, blood of his blood and bone of his bone, and without his consent give them to another. Our laws abhor penalties and forfeitures, ... and a law imposing a penalty must be strictly construed.

Sale, 131 S.E.2d at 188 (citations omitted).

[127] Finally, it should be obvious without extensive elaboration that the penalty of the forfeiture of one's parental rights cannot be imposed on the basis of strict liability through the application of a crude monetary equation. Simple proof of a parent's failure to pay 70% of his or her court-ordered support for a period of two years or more immediately prior to the filing of the petition, is not, as a matter of law, sufficient to satisfy either the requirements of the statute itself or the protections guaranteed to the parent by the U.S. and Wyoming Constitutions. Clearly, by inclusion of the modifying term "willfully" the statute draws a distinction, as it must, between the parent who though financially able to pay his court-ordered child support is unwilling to do so, and the parent who though willing to pay his court-ordered child support is financially unable to do so. "A natural parent's failure to support his or her child does not obviate the necessity of the parent's consent to the child's adoption, where the parent's financial condition is such that he or she is unable to support the child." 2 Am.Jur.2d Adoption § 88 (1994). See Owens v. Griggs, 151 Ga.App. 730, 261 S.E.2d 463 (1979); Leithold v. Plass, 505 S.W.2d 376 (Tex.Civ.App.1974); In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 (1986); see generally Annotation Natural Parent's Indigence Resulting from Unemployment or Underemployment as Precluding Finding that Failure to Support Child Waived Requirement of Consent to Adoption 83 A.L.R.5th 375 (2000) and cases cited therein; and Annotation Natural Parent's Indigence as Precluding Finding that Failure to Support Child Waived Requirement of Consent to Adoption-Factors Other than Employment Status 84 A.L.R.5th 191 (2000) and cases cited therein.

[128]' Moreover, this court has defined willfully in the context of Wyo. Stat. Ann. § 1-22-110 as "intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly." Matter of Adoption of CCT, 640 P.2d 73, 76 (Wyo.1982); Matter of Adoption of CJH, 778 P.2d 124, 127 (Wyo.1989); Matter of Adoption of SMR, 982 P.2d at 1249. While analyzing an analogous provision, § 1-22-110(a)(iv) in Matter of Adoption of CCT, we said: "Appellant's failure to contribute to the support of the children was not accidental, inadvertent or financially impossible-at least not during the year immediately prior to the filing of the petitions for adoption. The failure was deliberate and voluntary. It was done consciously and intentionally and without justifiable excuse. It was not due to oversight or lack of means to make contributions." Id. at 76. (emphasis added).

[129] In the case at bar, applying Wyo. Stat. Ann. § 1-22-110(a)(ix), the district court in its order stated:

8. Under the Paternity Decree, [Father] is to pay $192.00 per month in child support. Through December 1999, [Father] should have paid $13,292.00 in child support, and currently owes of that amount $9,636.50.
9. The Court specifically finds [Father] willfully failed to pay at least 70% of the court ordered child support for a two year period prior to the filing of this petition and that he has not brought his support 100% current within 60. days after being served the petition as set forth in W.S. § 1-22-110(a)(ix). This finding. of willful failure to pay is supported by the following facts: a) [Father] for the year prior to the petition made minimal support contributions. However, since he entered the CAC in August 1999, in Gillette, Wyoming, his support has been reasonable and substantial. b) His failure to pay child support from October 8, 1998, through October 8, 1999, is a consequence of incarceration which was his own making and which was willful. c) [Father] was released on probation after he was sentenced in. 1995. His probation was revoked in 1996. He was then placed on probation in 1997, failed to make child support payments in 1997 and was held in contempt of court. His probation under a criminal case was revoked and he was incarcerated to the Wyoming State Penitentiary in July 1998. d) [Father] had the opportunity to avoid incarceration and pay support, but failure to pay support was a willful failure, as his acts which resulted in his sentence and probation revocation were willful acts.

[130] The petition for adoption was filed October 14, 1999, alleging two years of nonpayment of at least 70% of court-ordered child support. Thus, the period of time under consideration is from October 18, 1997, to October 14, 1999. The district court found: "[Father] for the year prior to the petition made minimal support contributions. However, since he entered the CAC in August 1999, in Gillette, Wyoming, his support has been reasonable and substantial.... His failure to pay child support from October 8, 1998, through October 8, 1999, is a consequence of incarceration which was his own making and which was willful."

[T81] Thus, the district court found that from October 8, 1998, through October 8, 1999, Father was incarcerated yet still during that time "made minimal support contributions." Evidence in the record before us on review also supports this finding. The district court further found that since August of 1999, Father's support had been "reasonable and substantial."

[182] As found by the district court, following his release from prison, and prior to the filing of the petition to adopt, Father made two child support payments well over the amount of his court-ordered support. As a consequence, the petitioner Stepfather cannot show that the statute has been satisfied because any willful nonpayment by Father has not occurred "for a period of two years or more" prior to the filing of the petition for adoption. See Matter of Adoption of A.F.M., 960 P.2d 602, 604-05 (Alaska 1998) (vacating the adoption decree because the lower court implicitly misinterpreted the statute and therefore miscalculated the period of nonsupport as a year and a day rather than eleven months.)

[183] Furthermore, the district court's reliance on Father's incarceration as providing the necessary grounds for dispensing with his consent to the adoption is clearly erroneous. We herein. expressly disapprove the reasoning used to decide that Father's nonpayment of child support was willful. The court determined that "[Father's] failure to pay child support from October 8, 1998, through October 8, 1999, is a consequence of incarceration which was his own making and which was willful." It concluded that Father, "had the opportunity to avoid incarceration and pay support, but failure to pay support was a willful failure, as his acts which resulted in his sentence and probation revocation were willful acts."

[134] The statute requires that a parent must have "willfully failed to pay" support. The act that must be willful is the failure to pay support. | Incarceration, standing alone, does not provide the direct intent necessary to constitute willful failure to pay under the pertinent statute. Otherwise, the granting of .an adoption without the consent of a parent can be based upon a mere desire to compound the sentence for a parent's past crime. The statutory language clearly does not support such a result.

[185] In Matter of Adoption of V.A.J., 660 P.2d 139 (Okla.1983), the Oklahoma Supreme Court reviewed the propriety of the granting of an adoption against the consent of an incarcerated parent on the statutory grounds of willful failure to contribute to the support of the minor. The Oklahoma Supreme Court reversed the order granting the adoption, finding that the incarcerated parent did not have the financial ability to pay any support. In discussing the requirement that any failure to pay must be "willful," the court stated:

The statutory language ... is clearly devoid of any explicit legislative intent that imprisonment for any crime or for any duration afford a ground for dispensing with a parent's consent. The statute requires willful failure or refusal to contribute. Imprisonment cannot be equated with wiliful failure to contribute to the child's support. The natural father is not to be deemed willful when, as here, incarceration prevents his making any contribution to the child's support. The proper inquiry to address in this case is whether the natural parent intentionally incapacitated himself for the purpose of avoiding the duty imposed by law; if so, then imprisonment may constitute justification for dispensing with his consent in the adoption proceeding. The evidence here does not support an inference that the father's commission of a felony, and subsequent incarceration therefor, was for the purpose of avoiding his support obligation. Thus his incapacity to earn income and pay support may not be deemed "willful."

Id. at 141. (Footnotes omitted).

[136] In so holding, we do not imply that incarceration provides total justification for nonpayment of child support. A parent must always pay child support according to his or her financial ability. Glenn v. Glenn, 848 P.2d 819, 821 (Wyo.1993) (the legislature intended child support obligations to be paid where reasonably possible, including out of funds received by an incarcerated parent). Rather, the focus must remain on the parent's intent and ability to pay. The courts should look at whether the parent has demonstrated, through whatever financial means available to him, that the parent has not forgotten his statutory obligation to his child. See Baker v. Nicholson, 158 Ga.App. 267, 279 S.E.2d 717 (1981) (overruled on other grounds) (reversing and remanding case for trial court finding that failure to support or communicate with child was without justifiable cause where father by reason of his incarceration was involuntarily prevented from supporting his children and involuntarily restricted in his communication with his children. "[We would be remiss in the exercise of judicial economy to fail to note that there is a paucity of evidence to support a finding that appellant was without justifiable cause in failing to support or communicate with his children. To hold otherwise would subject every prisoner without independent means to the loss of his parental rights." At 718.)

[137] Accordingly, the focus must be on Father's ability to provide court-ordered support, and, if he lacked the ability, the reason therefore. The order under review does contain affirmative findings regarding payments by Father for at least one year. The trial court found that Father made minimal support contributions for the year preceding the filing of the petition. The trial court concluded that Father was unable to make full child support payments during this period of time because of his incarceration. No other reason for nonpayment of the full amount of court-ordered support is given. There is no indication in the order under review that Father's acts resulting in his incarceration were in any way motivated by an intent to avoid payment of court-ordered child support. The court went on to specifically find that Father has made "reasonable and substantial" contributions since his release to CAC in August 1999. This suggests that the lack of payment of the full amount of court-ordered child support for a period of one year within the statutorily required "period of two years or more" was the result of a lack of ability to pay rather than a deliberate repudiation of parental responsibilities. See also In re Adoption of S.E.B., 257 Kan. 266, 891 P.2d 440 (1995) (stating that under applicable statute, courts are required to take into consideration the period of time that the father was incarcerated and unable to support the children and finding father's incarceration for seven of the required twenty-four months meant under the cireumstances the trial judge had improperly granted the adoption).

[138] For the foregoing reasons, we hold that the district court improperly interpreted and applied Wyo. Stat. Ann. § 1-22-110(a)(ix). We reverse the court's grant of adoption to petitioner pursuant to this subsection because, under the facts as found by the trial court, Stepfather cannot, as a matter of law, satisfy the requirements of the statute that he show by clear and convincing evidence that Father willfully failed to pay 70% of court-ordered child support for a period of two or more years prior to the filing of the petition to adopt.

CONCLUSION

[139] The district court abused its discretion in granting Stepfather's petition to adopt over the objection of the child's natural father. The court misinterpreted the applicable statutory subsections in determining that clear and convincing evidence supported Stepfather's claims pursuant to Wyo. Stat. Ann. § 1-22-110(a)(iii) and (ix). Accordingly, the court's order granting the adoption is vacated and this case is reversed.

      . The parties submitted an agreed statement of the proceedings. However, this attempted statement fails to comply with W.R.A.P. 3.03 in two regards. First, W.R.A.P. 3.03 can be utilized only to provide a settled statement of a proceeding if a transcript is unavailable. A transcript is unavailable only if the proceeding was not steno-graphically or otherwise recorded or if the recording is somehow lost or destroyed. 16A Charles A. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3956.3, at 341 (3d ed.1999). The record before us does not reflect whether the hearing was recorded, stenographically or otherwise. Father merely states in his Notice of Appeal that "no transcript of this proceeding was made." This statement is insufficient to invoke the use of W.R.A.P. 3.03. If the proceeding was recorded, it is mandatory for Father to have a transcript made and present to this court at least those sections of the transcript pertinent to the issues on appeal.
      The second problem with the process attempted by Father to provide a settled statement of the proceedings is that the statement, although signed by the attorneys for the parties, was never presented to the district court for its approval. W.R.A.P. 3.03 clearly requires trial court approval of a statement before it can properly be considered settled and become part of the record.

      . The Court held that determination of the precise burden equal to or greater than the "clear and convincing" standard is a matter of state law properly left to state legislatures and state courts.

      . Though Santosky v. Kramer involved state-initiated neglect proceedings, as this court has held, the requirement for clear and convincing evidence supporting termination is equally applicable to the parental rights terminations involved in stepparent-initiated adoption proceedings because the same fundamental liberty interest of the natural parent in the relationship with the child is involved and because the State, through its courts, acts to sever a parental tie.

      . Nor has this statutory subsection been subject to constitutional challenge.

      . If the petitioner chooses to allege nonpayment of court-ordered support for a period of time greater than two years, then he also must prove the nonpayment was willful for the entire time so chosen.

      . The record indicates that Father made the following payments.
      9/24/1999 $238.19
      10/8/1999 $264.98
      10/22/1999 $293.58
      11/5/1999 $192.63
      11/15/1999 $ 96.73

      . This court rejected similar reasoning in Wood v. Wood, 964 P.2d 1259 (Wyo.1998). There the district court refused to modify an incarcerated father's child support obligation finding that the father had "voluntarily" committed a criminal offense and had thus become "voluntarily underemployed" for the purposes of Wyo. Stat. Ann. § 20-6-302(b). In reversing the judgment we held, "(allthough this statute does not explain how to determine whether or not a parent is voluntarily underemployed, it illustrates what types of situations qualify a parent as being voluntarily underemployed. The legislature obviously did not contemplate voluntarily committing a crime when it enacted this statute." Id. at 1266.


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 77
    In the Matter of the Worker's Compensation Claim of Bob FRANKS, An Employee of Greybull Development Corp. Bob Franks, Appellant (Petitioner), v. State of Wyoming, ex rel, Wyoming Workers' Safety and Compensation Division, Appellee (Respondent).
    No. 01-98.
    Supreme Court of Wyoming.
    May 21, 2002.

      Representing Appellant: Bobbi D. Bron-nenberg of Garrison & Bronnenberg, P.C., Cody, WY.
    Representing Appellee: Hoke MacMillan, Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   LEHMAN, Chief Justice.

[T1] Appellant Bob Franks appeals from the final decision of the Office of Administrative Hearings which denied his request for workers' compensation benefits.

[T2] We affirm.

ISSUES

[13] Franks presents the following issues for our review:

1. Whether the hearing examiner erred when he ruled that the appellant Bob Franks failed to satisfy his burden of proving that his back condition was related to the work-related accident on May 17, 2000.
(a) Whether the hearing examiner erred when he ignored direct evidence that the injury to Appellant's back occurred as a result of the work-related accident on May 17, 2000 and/or that his back condition was materially aggravated as a result of the May 17, 2000 accident.

Appellee Wyoming Workers' Safety and Compensation Division (Division) phrases its issue in the following manner:

Did the Hearing Examiner correctly find that appellant failed to prove that the failure of his prior spinal fusion surgery was the result of a compensable work injury?

FACTS

[T4] On May 17, 2000, Franks was employed by Greybull Development as a construction worker. On that date, it was raining heavily and Franks was pulling a trailer behind a truck on a muddy road when the truck became stuck in the mud. Franks unhooked the trailer and pulled the truck forward. Franks went back to the trailer to set it on a round block of wood, but as he attempted to do so, the trailer slipped, pinning his left leg. He pushed the trailer off of his leg; and, when he did so, he felt his back pop and a burning sensation in his neck.

[T5] Franks went to the emergency room for treatment on May 18, 2000. The emer-geney room physician referred Franks to Steven Emery, M.D., an orthopedic surgeon in Cody, who saw Franks on May 26, 2000, and ultimately diagnosed "severe neural fora-minal stenosis bilaterally at and on the left at L4-5 multifactorial." In the meantime, Franks filed an injury report with the Worker's Compensation Division on May 19, 2000.

[16] At the hearing, both sides presented evidence regarding a work-related injury that Franks had suffered in 1991 while working as a laborer in Texas and, as a result of which, Franks underwent surgery to have a spinal fusion at the L5-S1 level. Franks was given a whole body impairment rating of 15 percent and was awarded worker's compensation benefits for that injury. Franks argued that the May 17, 2000 incident either reinjured his back or materially aggravated that preexisting condition. The Division countered that Franks' current symptoms were the result of the preexisting condition rather than from any new or aggravating injury.

[17] At the conclusion of the hearing, the Division concluded that Franks' back condition was preexisting and denied benefits. Franks appealed this decision to the district court, which certified the case here pursuant to W.R.A.P. 12.09(b).

STANDARD OF REVIEW

[18] An administrative agency's decision certified directly to this court is reviewed under the same appellate standards applicable to the reviewing court of the first instance. Wesaw v. Quality Maintenance, 2001 WY 17, ¶ 8 19 P.3d 500, ¶ 8 (Wyo.2001). Our judicial review is limited to those considerations specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001), which provides in pertinent part:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with lawl.]

[19] When we review findings of fact, we examine the entire record to determine if substantial evidence supports the agency's findings. Wesaw, ¶ 9. If the agency's decision is supported by substantial evidence, we will not substitute our judgment for that of the agency. Id. "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of the ageney. It is more than a scintilla of evidence." Id.

[¥10] An administrative agency's conclusions of law are affirmed only if this court determines that they are in accord with the law. Wesaw, ¶ 8. We do not defer to the agency's determination regarding conclusions of law, and we will correct any error the agency made in either interpreting or applying the law. Id.

DISCUSSION

{[T11] Franks claims that the hearing examiner erred by denying his claim on the basis that his injury was preexisting. The Division responds that the evidence supported the hearing examiner's decision. At the core of this case is a May 29, 1991 injury that Franks sustained while working as a laborer in Texas Dr. Curtis Thorpe, Franks' treating physician for that injury, noted on March 12, 1992;

X-rays of the lumbar spine do show a spondylolysis at LSG-S1 and a Grade I spondylolisthesis L5-S1. Myelogram done at St. Elizabeth Hospital shows a bulging dise at L4-L5 and a sensitive area because of his spondylo as L6-S1. Post-myelogram CT shows a large spondylitic ridge and bulging dise impingement the nerve root on the right at L5-S1. The dise at L4-Lb seems to be intact. There is a report of an MRI sean that does show degenerative dises at L4-L5b and LS5-S1. I have explained to this gentleman at length that he does have a rather severe back condition, that probably will prevent him to work as a laborer.

Dr. Thorpe operated on Franks on March 31, 1992, to fuse his spine together at the L5-S1 level. The Texas Workers' Compensation Commission declared that his injury was compensable and awarded Franks benefits for a 15% whole body impairment rating.

[T12] In 1998, a year after his surgery, Franks visited Dr. Thorpe complaining of back and leg pain. Franks visited Dr. Thorpe again in 1996 for continued back and leg pain. Dr. Thorpe expressed concern after both of those visits about whether Franks' fusion was solid or not.

[1183] Under the worker's compensation statutory scheme, an injury does not include "[alny injury or condition preexisting at the time of employment with the employer against whom a claim is made." Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) (Lexis 1999). A preexisting condition may, however, be com-pensable if the employment "aggravated, accelerated, or combined with the preexisting condition to produce the disability for which the employee is seeking benefits." Brees v. Gulley Enterprises, Inc., 6 P.3d 128, 131 (Wyo.2000).

[T14] Dr. Emery testified at the hearing by way of a deposition. During Dr. Emery's deposition, he testified that his physical exam of Franks left him skeptical of the extent of Franks' symptoms because Franks demonstrated give-way weakness of all muscle groups of the upper and lower extremities, which was inconsistent and impossible to rate. He explained that when you see give-way weakness in all musele groups, "it generally means the patient just isn't trying." He went on to say that "if he truly had the muscle weakness that I examined, if the muscle gave way at that point, he would have been unable to have walked in the room or back out or use his hands in any fashion."

[115] Dr. Emery ordered an MRI on May 31, 2000, which showed "severe neural foraminal stenosis bilaterally at L5-S1, and on the left at L4-5 mutifactorial. There is lateral recess stenosis bilaterally moderate at L4-5. There is a herniated dise at L4-5." He testified that based on these findings, Franks' stenosis condition was likely the cause of his back and leg pain. Dr. Emery testified with a level of medical certainty that this degeneration or spinal stenosis was not caused by the May 17, 2000 injury. Dr. Emery then stated that "[i]t is possible that the patient's injury was related to his work injury. However it's-it is my opinion that his work injury-or I'm sorry, his preexisting condition is probably more related to his condition than the work injury."

[T16] Franks' medical expert witness, Dr. Robert Wood, a neurosurgeon, also testified by way of deposition. Dr. Wood opined that since Franks was better after his surgery in 1991 and able to work until May 17, 2000, he believed that Franks' fusion was solid during that period of time. He then gave his opinion that the May 17, 2000 injury aggravated Franks' preexisting condition by causing the fusion to rupture.

[117] Dr. Wood's perceptions and opinions were based upon a history that Franks gave him that he had not had any problems since his surgery until the May 17, 2000 injury. This information is contrary to medical records kept by Dr. Thorpe, which indicate that Franks had visited him complaining of back and leg pain in 1993 and again in 1996. Dr. Thorpe's notes also reveal that he was not at all sure that the fusion was solid and indeed that he was fearful that it was not. Dr. Thorpe's notes finally document a discussion he had with Franks during which Dr. Thorpe explained to Franks that his injury was serious and that he probably would no longer be able to work as a laborer.

[118] We agree with the hearing examiner's decision to consider Dr. Wood's testimony to be less persuasive than Dr. Emery's testimony because Dr. Wood's opinions were based upon the incomplete and inaccurate information provided by Franks that he had no problems following his fusion. Dr. Thorpe's notes show otherwise We hold that Franks failed to prove by a preponderance of the evidence that the May 17, 2000 incident caused any new injury or materially aggravated his preexisting condition.

CONCLUSION

(1 19] The evidence demonstrated that Franks' current symptoms are the result of the preexisting condition rather than from a new injury or a material aggravation of that condition. We hold that substantial evidence supported the hearing examiner's decision.

[120] Affirmed.


author: KITE, Justice. VOIGT, Justice,

text:
    2002 WY 80
    Candi June ROBBINS, Appellant (Defendant), v. Denton Kirby ROBBINS, Appellee (Plaintiff).
    No. 01-217.
    Supreme Court of Wyoming.
    May 22, 2002.
    John P. LaBuda of Palmer & LaBuda, P.C., Rock Springs, Wyoming, Representing Appellant.
    John A. Thomas, Evanston, Wyoming, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[11] Denton Robbins (the father) filed for a divorce against Candi Robbins (the mother). At trial, the parties stipulated to the guardian ad litem (GAL) filing her report with the court and testifying concerning that report. The trial court essentially followed the GAL's recommendation and ordered physical custody to alternate every six months until the child enters school at which time the father will have primary custody with liberal visitation by the mother. The mother appeals. claiming the trial court should not have allowed the GAL to testify. We affirm.

ISSUES

[12] The mother presents the followin issue: - '

Did the district court err in permitting. the guardian ad litem to act as attorney and a fact witness? ‘

The father frames a somewhat distinct issue:

Whether the district court abused it[ Js discretion by acting in a manner which exceeded the bounds of reason in awarding joint legal and physical custody of the minor child to both parties on an alternating six month basis until either the child starts kindergarten or the mother leaves Uinta County at which time the father would have primary physical custody and the mother would have standard visitation?

FACTS

[¥3] The parties married in May 2000. The father filed a complaint for divorce on August 31, 2000, seeking custody of their sixteen-month-old son. The GAL was appointed to "represent the best interests of the child." Upon the parties' agreement, temporary custody was split on a weekly basis. The parties also substantially agreed with regard to the division of their property. A trial was ultimately held on the issue of permanent custody. The GAL provided her report to both parties who stipulated at trial to the admission into evidence of the report and the supplemental report,. The report described both parties as capable and loving parents. Each had made allegations against the other concerning infidelity which the GAL disregarded. The father had stable employment, and the mother worked part time. Both were admonished to refrain from using alcohol while they were with their son. The GAL recommended the joint custody continue but alternate every six months rather than weekly to enhance stability and consistency for the child. The supplemental report altered that recommendation slightly due to developments occurring between the preparation of the initial report and trial. The supplemental report stated that the mother had. been living with her parents and her brother. Certain problems had developed with the brother that caused the GAL to be concerned about the parties' son living in that environment. The mother then moved out of her parents' home, but the GAL had not inspected her new residence. In addition, the mother had been involved in an altercation in a bar, and the police had frequently observed her as they performed their "bar checks." The GAL continued to recommend joint custody; however, she indicated, if the court preferred a primary custodian, she recommended the father be the primary custodian with the mother having liberal visitation. She provided three reasons for that recommendation: (1) the father demonstrated stability in his home environment and employment in contrast to the mother's instability in those areas; (2) although both parties had exhibited problems with alcohol, the mother's employment provided more opportunities for a continued "drinking lifestyle"; (@) the father had proved himself to be a more diligent facilitator with respect to visitation than had the mother.

[14] At trial, the court received testimony from the mother, the father, and numerous individuals who were acquainted with both. The GAL was offered the opportunity to ask questions of the witnesses, but she declined referencing confusion in Wyoming case law concerning the GAL's proper role at trial. The mother's counsel then informed the trial court that he and the father's counsel had discussed the GAL's appropriate role and "thought it would be best if she was just called as a fact witness." He also indicated he was aware of Wyoming law in this area and, in fact, had a case pending before this court concerning the proper role of a GAL. Given that stipulation and the GAL's concerns, she did not participate as an attorney in the proceedings. Instead, the father's counsel called her as a witness with no objection from the mother's counsel. The GAL testified consistently with her report. In response to questions from both counsel, she provided more detail concerning her investigation and recommendations.

[15] Ultimately, the trial court ordered joint custody so long as both parents continued to live in Uinta County until the child reached school age. Specifically, it awarded custody to the mother from December 1 through May 31 and to the father from June 1 through November 30 with liberal visitation for the noncustodial parent. The court further ordered the father would have primary custody when the child reached school age or if the mother left Uinta County.

[16] On the day of trial, this court published its decision in Pace v. Pace, 2001 WY 43, 22 P.3d 861 (Wyo.2001), in which we confirmed our prior decision in Clark v. Alexander, 953 P.2d 145 (Wyo.1998), that the ethical rules prohibited attorneys from serving as GALs and also testifying as witnesses. Based upon that case, the mother filed a motion for a new trial claiming the trial court erred in allowing the GAL to testify. The trial court denied the motion, and the mother appealed.

DISCUSSION

[17] In Clark, this court held that attorneys serving as GALs may not serve as fact witnesses because of their ethical obligations under the Rules of Professional Conduct for Attorneys at Law. Instead, we ruled:

Recommendations can be made to the court through closing argument based on the evidence received. It is, therefore, unnecessary to allow the attorney/guardian ad litem to place his or her own credibility at issue. Consequently, we join those jurisdictions which hold that an attorney/guardian ad litem may not be a fact witness at a custody hearing.
This is not to say that the attorney/guardian ad litem may not submit a written report to the parties. A detailed report which timely informs the parties of the relevant facts and the basis of the guardian ad litem's recommendation may facilitate agreement prior to trial. If the parties so stipulate, the report may be presented to the court. However, the report should not be filed with the court or received into evidence without the express agreement of the parties. To the extent that prior Wyoming cases may conflict with this holding, they are here overruled.

Clark, 953 P.2d at 154 (citations omitted & emphasis added). Counsel for both parties in this case were fully aware of the Clark case, and yet they agreed the GAL could, and should, testify. After trial, the mother's counsel seemed to suggest that the recently issued Pace opinion established a new requirement which prohibited attorney GALs from testifying and also representing the best interest of the child. In fact, Pace created no additional requirement that had not previously been clearly articulated three years earlier in Clark.

[18] Clark also stands for the proposition that such an ethical violation not instigated by the prevailing party would not require reversal unless it somehow resulted in a manifest injustice.

In Moore [v. Moore], 809 P.2d [255,] 264 [(Wyo.1991) ], we held that an ethical violation, not brought about by the prevailing party, will be reversed only if it resulted in manifest injustice. In many district courts, it is not uncommon to allow the testimony of an attorney/guardian ad litem. Thus, in the absence of objection to the district court, we cannot say that the prevailing party in this case was responsible for the ethical violation. Therefore, we must determine whether the admission of the attorney/guardian ad litem's testimony and reports, as well as the tape recordings, resulted in manifest injustice under the totality of the cireumstances. Moore, 809 P.2d at 264.
Manifest injustice "contemplate[(s] a situation that is unmistakable or indisputable, was not foreseeable, and affects the substantial rights of a party." McCarthy v. State, 945 P.2d 775, 777 (Wyo.1997).

Id.

[T9] In this case, the mother cannot identify how the GAL's testimony created any injustice. It was certainly foreseeable that the trial court might consider the GAL's recommendation persuasive. That recommendation was already before the court in the form of the GAL's report, the admission to which the mother had stipulated. The parties introduced other substantial evidence, including testimony by both parents, that supported the trial court's conclusion the father was the more stable parent. At the hearing on the motion for a new trial, the trial court commented that the GAL's testimony actually convinced him in the mother's favor and dissuaded him from awarding full custody to the father. Finding no hint of injustice, we perceive no reason to reverse the trial court's ruling on permanent custody.

[110] An additional comment is in order. To the extent error occurred in this case, it is difficult to conceive of a more apparent example of invited error. These parties stipulated the GAL's report could be submitted to the trial court. They were fully aware of the cases addressing the propriety of attorney GALs testifying. The mother's counsel had actually argued in Pace, which was then pending before this court, that pri- or case law prevented the GAL from testifying. The GAL herself was well informed of the limitations on her role. Yet they all agreed to a procedure which allowed the GAL to testify. Now, having obtained a result that was fairly predictable-the trial court followed the GAL's recommendation-the mother and her counsel ery foul and seek another time at bat. We are decidedly unpersuaded. "[If a party requests or moves the court to make a ruling which is actually erroncous and the court does so, that party cannot take advantage of the error on appeal or review." Mayland v. Flitner, 2001 WY 69, ¶ 44, 28 P.3d 838, ¶ 44 (Wyo.2001).

[111] Affirmed.

VOIGT, Justice,

specially concurring, with which GOLDEN, Justice, joins.

[T 12] I concur with the result of the majority opinion because the parties stipulated to the role played by the guardian ad litem in this case, the appellant was not prejudiced by that role, and the guardian ad litem was careful not to also act as an attorney for the child. I write separately only because I believe this Court has taken a wrong turn along the way as we have continued to restrict the ability of guardians ad litem who happen to be attorneys to perform their duties.

[113] One does not need to be an attorney to be a guardian ad litem. At the same time, due to their training, experience in the judicial system, and familiarity with the issues involved in a typical custody dispute, attorneys often make excellent guardians ad litem. I do not understand why a person who has been appointed to act as a child's guardian ad litem, and who has not been appointed to act as that child's attorney, may not be called as a fact witness. The status of being an attorney does not render a person, as a general matter, incompetent to testify.

[114] As I read Pace v. Pace, 2001 WY 43, 22 P.3d 861 (Wyo.2001); Clark v. Alexander, 953 P.2d 145 (Wyo.1998); and Moore v. Moore, 809 P.2d 261 (Wyo.1991), it appears to me that the primary issue was how to deal with the dual role of someone appointed to be both attorney and guardian ad litem. The problem in Pace, for instance, was that the "GAL, who was a licensed attorney, impermissibly acted as both trial counsel and a witness." Pace, 2001 WY 48, ¶ 24, 22 P.3d at 869. It goes without saying that the same person should not be both witness and attorney in the same case. But we have now created a system wherein guardians ad litem who are not attorneys may testify, while guardians ad litem who happen to be attorneys may not testify, even if they do not appear as attorneys in the case. That makes no sense.

[T15]) Wyoming's small communities do not have an abundance of people willing to act as guardians ad litem in custody disputes. This Court should do all it can to make it easy for attorneys to fill that role. We have already stated what needs to be done to accomplish that goal: "A guardian ad litem, counsel, and the court should work together at the beginning of a case to develop and articulate clearly the seope and nature of the guardian ad litem's responsibilities." Pace 2001 WY 43, ¶ 26, 22 P.3d at 870. In truth, that could be accomplished with a form order of appointment, in which it is clearly spelled out that the person appointed is acting only in the capacity of a guardian ad litem and not as an attorney.

[116] In Clark, 953 P.2d at 151-52, we made the following statement:

In providing guidance to the role of an attorney appointed to represent a child while at the same time acting as guardian ad litem, we do not intend to usurp the role of the district court in appointing individuals to act solely as an attorney or as guardian ad litem. It is imperative, however, that the appointee request clarification from the appointing court if questions regarding the duties arise.

[T17]) That is exactly what happened in this case. The guardian ad litem was appointed to represent the best interests of the child. That is the traditional function of the guardian ad litem. She was not appointed to act as the child's attorney, and she was careful not to perform that function. I see nothing in this situation that violated the dictates of Clark or Pace.


author: KITE, Justice.

text:
    2002 WY 78
    Cleo COOPER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-76.
    Supreme Court of Wyoming.
    May 22, 2002.

      Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Ap-pellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Cleo Cooper pleaded guilty to one count of felony possession of a controlled substance under Wyo. Stat. Ann. § 35-7-1031 (LexisNexis 2001). He appeals his judgment and sentence arguing the trial court committed error when it allowed a substance abuse therapist to testify during sentencing regarding privileged communications she had with him. We hold that, although Mr. Cooper did not expressly waive his privilege as required by Wyo. Stat. Ann. § 33-38-113 (LexisNexis 2001), he impliedly did so and did not suffer any prejudice. Therefore, we affirm his sentence.

ISSUES

[12] Mr. Cooper presents the following issue for our review:

ISSUE I
Whether the district court committed reversible error when it violated Wyo. Stat. Ann. § 33-88-1138 by compelling Cooper's substance abuse counselor to testify regarding privileged information.

The State of Wyoming phrases the issue as:

Whether the district court abused its discretion when it directed Appellant's substance abuse counselor to answer questions on cross-examination?

FACTS

[13] On June 9, 2000, Casper police officers responded to a call which indicated three juveniles were making noise in a residential area. Upon arrival, the officers saw Mr. Cooper outside a residence with another individual. One officer knew Mr. Cooper and requested that an NCIC check be run on him. The NCIC check indicated a warrant had been issued for Mr. Cooper because he failed to appear at a court proceeding. The officer asked Mr. Cooper to put his hands behind his back; however, Mr. Cooper suddenly ran away. He subsequently tripped and fell, and, although he continued to resist, the officers were able to restrain him and place him under arrest. A search of his person revealed a small amount of marijuana and a spoon with cocaine residue.

[14] Mr. Cooper was initially charged with one count of felony possession of cocaine and one count of felony possession of marijuana, both under § 85-7-1081. Pursuant to a plea agreement, he pleaded guilty to the cocaine charge, and, in exchange, the state dismissed the marijuana charge. The trial court sentenced him to a term of not less than four years nor more than five years in the Wyoming State Penitentiary.

[15] At his sentencing hearing, Mr. Cooper called a substance abuse therapist to recommend that he be placed into the substance abuse treatment program rather than face imprisonment. The therapist knew Mr. Cooper in 1996 while he was a resident at the substance abuse treatment program where the therapist was employed. On direct examination, the defense, in an open-ended question, asked the therapist to generally explain what took place during Mr. Cooper's initial residency in the treatment program. On cross-examination, the prosecutor asked the therapist to discuss communications she had with Mr. Cooper, specifically whether Mr. Cooper told her he was involved in the sales of controlled substances. The therapist questioned the court as to whether she should answer the question due to her duty of confidentiality. The court replied that she "may answer that question." As a result, the therapist testified Mr. Cooper had in fact said he was involved in the sales of controlled substances. Mr. Cooper's trial counsel lodged no objection; however, on appeal, Mr. Cooper alleges error.

STANDARD OF REVIEW

[16] We will not disturb a sentence because of sentencing procedures unless the appellant can show an abuse of discretion, procedural conduct prejudicial to him, cireumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. Trusky v. State, 7 P.3d 5, 13 (Wyo.2000). Reversal is warranted only when the error is prejudicial and affects an appellant's substantial rights. Id. The appellant bears the burden to establish that an error was prejudicial. Id.

DISCUSSION

[17] Mr. Cooper called his therapist to convince the court he would benefit from being admitted into the substance abuse treatment program and to explain why he initially failed the same program in 1996. During the therapist's cross-examination, she hesitated to respond to certain questions and queried the trial court as to whether her responses would violate her duty to safeguard privileged communications.

Q. Okay. And, also, during the time that you have been involved, have you also been-treated other various people, including female clients, who have been involved with Mr. Cooper?
A. Yes, sir, I have.
@. And haven't numerous of them told you that Mr. Cooper was abusive towards them?
[DEFENSE COUNSEL]: Objection.
Q. (BY [PROSECUTOR]) That he provided drugs to them?
[DEFENSE COUNSEL]: Objection, Your Honor; hearsay.
THE COURT: Overruled. Rules of Evidence don't apply.
[DEFENSE COUNSEL]: Or lack of personal knowledge. I don't know if she would have personal knowledge about-
THE COURT: I'll allow the question.
THE WITNESS; Your Honor, may I break confidentiality?
[PROSECUTOR]: If she is doing so, Your Honor, I believe she may be entitled to.
THE COURT: What's that?
[PROSECUTOR]: If-I mean, she has indicated she would like to invoke confidentiality.
THE COURT: Yes. You may invoke that if you think that is appropriate.
Q. (BY [PROSECUTOR]) Let me reask the question.
Did you ever discuss with Mr. Cooper his relationship with these other women?
A. Yes, I have, sir.
Q. And, in fact, did you discuss with him his history of abuse and providing them drugs?
A. More his choice of females, sir.
Q. Okay. So-and did you discuss with him his long history of violence towards them?
A. Yes, sir, I did.
Q. Did he accept responsibility for that violence?
A. Yes, he did.
Q. And did he also tell you that he was involved in the sales of controlled substance as well as the use of controlled substance?
A. Again, we have this confidentiality, sir. I'm not sure-
Q. I'm referring to Mr. Cooper. I'm referring to only what Mr. Cooper told you. He has placed-
THE COURT: You may answer that question.
A. Okay. Yes, he did.

[18] Section 33-38-113 specifically applies to chemical dependency specialists who testify in criminal proceedings and provides:

(a) In judicial proceedings, whether civil, criminal, or juvenile, in administrative proceedings, and in proceedings preliminary and ancillary thereto, a patient or client, or his guardian or personal representative, may refuse to disclose and may prevent the disclosure of confidential information, including information contained in administrative records, communicated to a person licensed or otherwise authorized to practice under this act, and their agents, for the purpose of diagnosis, evaluation or treatment of any mental or emotional condition or disorder. A person licensed or otherwise authorized to practice under this act shall not disclose any information communicated as described above in the absence of an express waiver of the privilege except in the following circumstances:
(i) Where abuse or harmful neglect of children, the elderly or disabled or incompetent individuals is known or reasonably suspected;
(ii) Where the validity of a will of a former patient or client is contested;
(ii) Where such information is necessary to defend against a malpractice action brought by the patient or client;
(iv) Where an immediate threat of physical violence against a readily identifiable victim is disclosed to the person licensed or otherwise authorized to practice under this act;
(v) In the context of civil commitment proceedings, where an immediate threat of self-inflicted damage is disclosed to the person licensed or otherwise authorized to practice under this act;
(vi) Where the patient or client alleges mental or emotional damages in civil litigation or otherwise places his mental or emotional state in issue in any judicial or administrative proceeding concerning child custody or visitation;
(vii) Where the patient or client is examined pursuant to court order; or
(viii) In the context of investigations and hearings brought by the patient or client and conducted by the board where violations of this act are at issue. Information that is deemed to be of sensitive nature shall be inspected by the board in camera and the board shall determine whether or not the information shall become a part of the record and subject to public disclosure.

(Emphasis added.) Neither party disputes that this statute is applicable to the instant case. None of the exceptions to the statute apply; therefore, we must determine whether Mr. Cooper expressly waived his privilege.

A privilege is a limitation on a court's ability to compel testimony regarding confidential communications that occur in certain relationships. 8 Wigmore, [Evidence ] § 2285 at 527 [ (McNaughton rev. 1961) ]. Wigmore identifies four primary characteristics of a privileged communication. Id. According to Wigmore, for a statement to qualify as a privileged communication, it must originate in confidence; confidence must be essential to the continued vitality of the relationship; the relationship must be one society is prepared to recognize; and any injury to the relationship caused by the revelation of the confidential communication must be greater than any benefit that results from revealing the confidential communication. Id.

Curran v. Pasek, 886 P.2d 272, 275 (Wyo.1994). The policy underlying the statutory privilege at issue is to encourage full and frank disclosure between an individual and a person authorized to practice under Title 33, Chapter 38 for the purpose of effective diagnosis, evaluation, and treatment. Developments in the Law-Privileged Communications, 98 Harv. L. Rev. 1450, 1472-73 (1985). Similar privileges have been justified on the bases that (1) counseling relationships would suffer if people chose not to communicate essential information to professionals because they feared that the professionals would be compelled to disclose such information in court and (2) such relationships involve the professional and the individual in an intimate relationship in which personal information is communicated that should be protected from public disclosure. Id. at 1531. The Wyoming legislature codified this privilege, and our judicial system must act to protect its purpose.

[19] The state relies on Frias v. State, 722 P.2d 135 (Wyo.1986), wherein Mr. Frias appealed his second-degree murder conviction for the shooting death of his girlfriend. We held failure to object at trial to his physician's testimony constituted a waiver of his right to object. Mr. Frias' physician testified that, although he broke his arm in two places prior to the shooting, Mr. Frias could have held, operated, and fired a rifle using his injured arm. 722 P.2d at 140. The defense failed to object on the basis of the physician-patient privilege. Id. We cited the well established rule that the privilege must be claimed and the evidence objected to or the privilege is waived; therefore, we held his failure to object resulted in waiver. Id. Our holding in Frias is consistent with the general rule that "[oIne may not rely on the admission of privileged communications as ground for reversal where the record on appeal does not show the making of an objection on a definite ground." 81 Am.Jur.2d Witnesses § 293 at 280 (1992). We based our decision in Frias upon a statute with similar language which required the patient's express consent before a physician could testify concerning confidential communications. 722 P.2d at 140. Throughout the trial, the defense opened the door by questioning witnesses as to Mr. Frias' physical condition and ability to handle and fire a rifle. Id. In this case, we must apply the clear language of a different, though similar, statute and the particular circumstances which arose during the sentencing proceeding.

[110] This court interprets statutes by giving effect to the legislature's intent. Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, ¶ 13 (Wyo.2001). We look first to the language of the statute to determine whether it is ambiguous. Heinemann v. State, 12 P.3d 692, 697 (Wyo.2000), cert. denied, 532 U.S. 934, 121 S.Ct. 1386, 149 L.Ed.2d 310 (2001). If we determine that the statute is unambiguous, we give effect to its plain meaning without invoking any rules of interpretation. Id.

[111] Section 33-38-113 permits a patient or client to prevent the disclosure of confidential information communicated to a person licensed or otherwise authorized to practice under the act for the purpose of diagnosis, evaluation, or treatment of any mental or emotional condition or disorder and further provides that a person licensed or otherwise authorized to practice under the act (professional counselors, marriage and family therapists, social workers, and chemical dependency specialists) "shall not disclose any information communicated as described above in the absence of an express waiver of the privilege." (Emphasis added.) The statute is unambiguous, and the legislative intent is clear. Unless an exception applies, a patient or client's express waiver is required before a person licensed or otherwise authorized to practice under the act may divulge privileged communications. When the statutory language is applied to this case, only Mr. Cooper's express waiver could operate to terminate the privilege protecting the confidential communications and permit the therapist to testify concerning such privileged communications.

[112] Waiver is defined as "[the voluntary relinquishment or abandonment-express or implied-of a legal right or advantage. ... The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it." Black's Law Dictionary 1574 (7th ed.1999). Express is defined as "[ellearly and unmistakably communicated; directly stated." Id. at 601. By contrast:

An implied waiver can be established by acts and conduct from which an intention to waive may reasonably be inferred, or where a person has pursued such a course of conduct as to evidence an intention to waive a right, by implication through a party's conduct inconsistent with an intent to assert a right.

28 Am.Jur.2d Estoppel and Waiver § 209 at 612 (2000). An implied waiver may occur if the holder fails to object when an attempt is made to inquire into matters protected by the privilege coupled with the subsequent disclosure of those privileged communications. 25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5552 (1989).

[118] It is clear that Mr. Cooper impliedly waived his right to assert his statutory privilege when he failed to object to his therapist's testimony. However, his failure to object was not an express waiver that clearly and unmistakably conveyed his intent to relinquish his statutory right. Thus, it was error for the court to allow the therapist to disclose Mr. Cooper's privileged communications. At the moment the therapist queried the court as to whether she could reveal privileged communications, the court should have asked Mr. Cooper whether he desired to invoke the privilege or whether he wanted to make an express waiver. It was not the therapist's prerogative.

[114] The state contends Mr. Cooper waived his statutory privilege simply by calling his therapist to testify. However, the mere act of calling a witness bound by the privilege does not affect a waiver because the testimony can be confined to unprivileged matter. 2 Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges § 6.12 4c(4) (2002); see also Regan v. Garfield Ridge Trust and Savings Bank, 220 Ill.App.3d 1078, 163 Ill.Dec. 605, 581 N.E.2d 759, 768 (1991) (holding that, "if a client calls a former attorney to testify and that attorney reveals no privileged communications during direct examination, there is no waiver of the privilege"); Cheyenne Construction, Inc. v. Hozz, 102 Nev. 308, 720 P.2d 1224 (1986) (holding waiver of the attorney-client privilege did not result when a client called his attorney to the witness stand because the attorney testified only to acts that did not concern private communications, and thus his testimony did not fall within the attorney-client privilege). Although the defense came close to opening the door to privileged communications during the therapist's direct examination by asking an open-ended question, merely calling the therapist as a witness is not sufficient to result in an express waiver of the statutory privilege.

[115] Having found error, we must determine whether the procedural error resulted in prejudice to Mr. Cooper and whether the cireumstances manifested inherent unfairness and injustice or conduct which offends the public sense of fair play. See Trusky, 7 P.3d at 13. In light of Mr. Cooper's extensive eriminal record coupled with the presentence investigation recommendation that Mr. Cooper be sentenced to the maximum penalty, the therapist's reference to sales of controlled substances likely did not have a substantial impact on the trial court's sentencing determination. The pre-sentence investigation report detailed Mr. Cooper's numerous prior convictions, including more than twenty-five serious felony and misdemeanor convictions of which at least one was for possessing a controlled substance and one was for delivering a controlled substance. The report also recognized his propensity to reoffend even though the judicial system offered him several opportunities to receive treatment and change his behavior. Under these cireumstances, we conclude the error was not prejudicial.

[T16] Affirmed.