[¶1] Ryan Hansen and Katrina Danforth share a child, SLD. Mr. Hansen filed a petition to terminate Ms. Danforths parental rights to SLD and Ms. Danforth answered the petition pro se. In her answer, she requested the appointment of a guardian ad litem for SLD and affirmatively requested the termination of Mr. Hansens parental rights. The district court ordered the termination of Ms. Danforths parental rights but did not address Ms. Danforths request to terminate Mr. Hansens parental rights. Ms. Danforth appealed. Because the district courts order terminating Ms. Danforths parental rights is not an appealable order under Rule 1.05 of the Wyoming Rules of Appellate Procedure, we dismiss the appeal for lack of jurisdiction.
ISSUES
[¶2] Ms. Danforth raises three issues which we rephrase as four:
1. Did the district court err in disregarding her counterclaim?
2. Did the district court abuse its discretion by denying her request for the appointment of a guardian ad litem for SLD?
3. Did the district court err in extending her punishment for a past crime?
4. Did the Department of Family Services’ social study inadequately consider SLDs best interests and did this deficiency prejudice Ms. Danforths case?
We address only the first issue. Because the district court did not rule on Ms. Danforths counterclaim, the district courts order terminating Ms. Danforths parental rights is not an appealable order.
FACTS
[¶3] Ms. Danforth gave birth to SLD in January 2014, and later that year an Idaho court established Mr. Hansens paternity. The court awarded joint legal and physical custody of SLD to Ms. Danforth and Mr. Hansen, but Ms. Danforth was the “on-duty parent” subject to Mr. Hansens visitation. Upon learning that Ms. Danforth worked in the adult entertainment industry and had dated over the Internet from home while SLD was with her, Mr. Hansen filed for custody modification. In January 2018, the Idaho court awarded temporary sole legal and physical custody to Mr. Hansen subject to Ms. Danforths visitation. Several months after this order was entered, Mr. Hansen discovered that Ms. Danforth had posted a video of SLD wearing only underwear and high heels to her “adult entertainment” Facebook page. After the Facebook post, Mr. Hansen filed an ex parte motion for modification of Ms. Danforths visitation. The Idaho court suspended all visitation by Ms. Danforth.
[¶4] Upset at this decision, Ms. Danforth hired a hitman to kill Mr. Hansen. Unknown to her, the hitman was an undercover police officer and did not execute the plan. Instead, Ms. Danforth was indicted in Idaho federal court for using interstate commerce in the commission of a murder-for-hire, in contravention of 18 U.S.C. § 1958. She pled guilty and in 2020, she was sentenced to 10 years in prison. Sometime after the indictment, Mr. Hansen and his wife relocated to Wyoming with SLD and their two other children.
[¶5] Mr. Hansen filed a petition to terminate Ms. Danforths parental rights to SLD. Ms. Danforth answered and in her answer affirmatively requested the termination of Mr. Hansens parental rights to SLD. Ms. Danforth also requested that a guardian ad litem be appointed for SLD. The district court entered an order terminating Ms. Danforths parental rights according to Wyo. Stat. Ann. § 14-2-309(a)(iv). In its order, the district court acknowledged that Wyoming law generally requires the appointment of a guardian ad litem in termination of parental right actions unless a district court makes specific findings that the appointment is not necessary. Wyo. Stat. Ann. § 14-2-312. The district court found SLDs interests were not adverse to Mr. Hansens, he could adequately represent her interests, and a guardian ad litem was not necessary. The district court did not address Ms. Danforths request that Mr. Hansens parental rights be terminated. Ms. Danforth timely filed this pro se appeal.
ANALYSIS
[¶6] Ms. Danforth argues that the district court erred because it disregarded her counterclaim. In her answer, Ms. Danforth stated:
II. Affirmative Defenses
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30.) That Petitioners parental rights, if this court finds he legally has any, at present time, be terminated with respect to Petitioner, Ryan Hansen. In the alternative, limit to supervised visitation only, to eliminate further sexual abuse to SLD, while in Petitioners care. Pursuant to Wyo. Stat. [Ann.] § 14-2-309(a)(iii), (a)(B), (c)(ii), (v), (a)(ix).
III. Prayer for Relief
WHEREFORE, Mother, Katrina Danforth ․ prays for judgment in this action ․ [a] decree terminating the Parent child relationship with respect to Ryan Hansen in and to the minor child [SLD] pursuant to Wyo. Stat. [Ann.] § 14-2-309(a)(iii), (a)(ix), (a)(B), (c)(ii), (v).
[¶7] Ms. Danforths answer requested the termination of Mr. Hansens parental rights. We construe this portion of her answer as a counterclaim. “Counterclaims differ from affirmative defenses in that counterclaims seek affirmative relief whereas affirmative defenses attempt to defeat the cause of action.” Matter of Phyllis V. McDill Revocable Tr., 2020 WY 99, ¶ 14, 468 P.3d 694, 699 (Wyo. 2020) (quoting JPMorgan Chase Bank, N.A. v. E.-W. Logistics, L.L.C., 2014 IL App (1st) 121111, ¶ 54, 380 Ill.Dec. 854, 9 N.E.3d 104, 118–19). Affirmative relief is that “relief sought by a defendant ․ that could have been maintained independently of the plaintiffs action.” Affirmative Relief, Blacks Law Dictionary (11th ed. 2019). Where justice requires, when a party mistakenly designates a counterclaim as a defense, the court must consider the claim as though it was correctly designated. W.R.C.P. 8(c)(2). See also McDill, ¶ 14, 468 P.3d at 699 (citing W.R.C.P. 8(c)(2) and McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490, 494 (1976)). Ms. Danforth designated her request to terminate Mr. Hansens parental rights as an affirmative defense. Her request did not seek to defeat Mr. Hansens petition to terminate her parental rights but rather sought to terminate his parental rights. Her request was independent of Mr. Hansens petition, and the district courts grant of Mr. Hansens petition to terminate Ms. Danforths parental rights did not dispose of Ms. Danforths request to terminate Mr. Hansens parental rights. Her request remains pending.
1
Because her request was for affirmative relief that could have been brought independent of Mr. Hansens petition, it was a counterclaim and we consider it as such.
[¶8] Under W.R.A.P. 1.05(a), an “appealable order” is “[a]n order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment[.]” To be appealable, an order must satisfy three characteristics: first, it must affect a substantial right; second, it must determine the merits of the controversy; and third, it must resolve all outstanding issues. See McDill, ¶ 13, 468 P.3d at 698; In re E.R.C.K., 2013 WY 160, ¶ 28, 314 P.3d 1170, 1176 (Wyo. 2013) (quoting In re KRA, 2004 WY 18, ¶ 10, 85 P.3d 432, 436 (Wyo. 2004)). See also Est. of McLean ex rel. Hall v. Benson, 2003 WY 78, ¶ 8, 71 P.3d 750, 753 (Wyo. 2003) (“To be final, the order must determine all liabilities of all parties and leave nothing for future consideration.” (citations omitted)). Ms. Danforths answer contained a counterclaim which remains unresolved. The Order Terminating Parental Rights is not an appealable order. We must dismiss for lack of jurisdiction. McDill, ¶ 16, 468 P.3d at 699.
CONCLUSION
[¶9] Because the district courts order terminating Ms. Danforths parental rights is not an appealable order, we dismiss the appeal for want of jurisdiction.
FOOTNOTES
1
. The situation here is distinguishable from, for example, counterclaims for custody or divorce, where a district courts grant of custody or divorce to one party countermands the others request even where the district court does not specifically address the counterclaim.
GRAY, Justice.