dissenting.
In this case, the father, while incarcerated in the penitentiary, asked for an opportunity to testify in court before a decision was made to terminate his parental rights, which was denied. In the myriad of prior summary judgment cases, we had previously not gone so far as to define relations between parent and child to be excluded from at least the opportunity of the parent to present live testimony to defend a constitutional interest as parent. See Payne v. Superior Court of Los Angeles County, 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d *633565 (1976) and In Interest of F. H., 283 N.W.2d 202 (N.D.1979). In the nature of the family relationship, I do not believe that a denial of testimonial defense can ever be justifiably entrusted to summary judgment without leaving at least a scintilla of fact issue unchallenged. Cordova v. Gosar, 719 P.2d 625 (Wyo.1986).
The issue here is not termination of parental rights; it is the use of summary judgment against a person incarcerated in the penitentiary who is physically denied the opportunity to provide personal testimony. Furthermore, the issue is not even appearance in person, since at least the deposition testimony of the father should have been permitted and required. Matter of Adoption of Quenette, 341 N.W.2d 619 (N.D.1983); In Interest of F. H., 283 N.W.2d 202. The proper test of summary judgment is not whether the trial court might make the same decision after holding a hearing; it is that an issue of fact exists in recognition that parental rights always cultivate some foliage of factual inquiry from its constitutional stem requiring a trial with a live record to assess where justice is to be found. State ex rel. Gladden v. Sloper, 209 Or. 346, 306 P.2d 418 (1957).
It would have been appropriate and responsive in this case, if the cost of appearance under guard was unacceptable, to provide deposition testimony by telephone arrangements which are an efficient and inexpensive mechanism. I can certainly recognize within the factual analysis comprehensively made by the majority why termination could be clearly justified. However, summary judgment should neither be elongated nor parental rights diluted by the use of affidavit instrumentation of that non-trial mechanism to terminate the most fundamental relationship — parental status. My concern is equal protection and due process as a right of a parent to defend.
The significance of the opportunity of the father to testify was forcefully recognized in analysis of a termination proceeding where this court was defendant in a Tenth Circuit Court of Appeals case, Blair v. Supreme Court of State of Wyo., 671 F.2d 389 (10th Cir.1982). In Blair, the federal court recognized as procedural attributes:
It is apparent from Blair’s complaint and exhibits attached thereto that Judge Spangler held a full hearing at which Blair testified and was represented by counsel.
Id. at 391.
For the law to then be applied in denial of federal court relief:
We recently recognized in Wise v. Bravo, 666 F.2d 1328 at 1331 (10th Cir.1981), that the relationship between parent and child is constitutionally protected. As such, “[t]he state’s power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial and visitation rights, is subject to scrutiny by the federal judiciary within the reach of the Due Process and/or Equal Protection Clauses of the Fourteenth Amendment.” Id. at 1332.
Recent Supreme Court opinions make it plain that the state has a compelling interest in the welfare of minor children and his authority to terminate parental rights under certain limited circumstances, so long as it makes that determination in the best interest of the child and after a hearing. See Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).
Id. at 390.
The consideration of summary judgment in termination of parental rights cases is not lacking in available precedent. There are well-considered cases which until now appear to be without converse persuasion which reject the affidavit-based process for final issue determination in this character of constitutional right inquiry.1 A detailed *634analysis is found in Matter of Christina T., 590 P.2d 189 (Okl.1979), which involved the similar situation of the incarcerated father. That court observed in regard to the termination proceedings pursued against the father by summary judgment:
The question for determination in this case is whether a juvenile court action brought to adjudicate a child dependent and neglected may be decided on motion for summary judgment.
* * * * * *
Summary judgment is not applicable to juvenile proceedings. Our statutes and this Court’s past decisions make it absolutely clear that a hearing on a juvenile petition is mandatory. This is, as we have stated on many occasions, a matter of highest constitutional magnitude for the fundamental integrity of the family unit which has found protection in the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Ninth Amendment, may not be intruded upon without affording parent and child due process of law. “The fundamental requisite of due process is the right to be heard, [citations omitted] The hearing required by the Due Process Clause must be ‘meaningful’ [citation omitted] and ‘appropriate to the nature of the case’ [citation omitted]. These requisites are all the more important when the judicial procedure concerns the continuance of the parent-child relationship.” York v. Halley, supra, [534 P.2d 363 (Okl.1975)] at 365.
The trial court’s sustention of the state’s motion for summary judgment deprived appellant and his minor daughter of their rights to due process of law.
Id. at 190-92 (footnotes omitted).
Similar conclusions denying access to summary judgment for termination of parental right cases are found in Matter of Matthew S., 201 Cal.App.3d 315, 247 Cal.Rptr. 100 (1988); In re Mark K., 159 Cal.App.3d 94, 205 Cal.Rptr. 393 (1984); and In re Henson, 77 Misc.2d 694, 354 N.Y.S.2d 774 (1974). Cf. State v. James, 38 Wash.App. 264, 686 P.2d 1097 (1984) for paternity analysis.
The policy concepts expressed by those authorities are not singularly different from what we earlier said in DS and RS v. Department of Public Assistance and Social Services, 607 P.2d 911, 919 (Wyo.1980):
We admonish that the burden of proving neglect or abuse is upon him who seeks to take the child from the parent. We emphasize that the trial court and the appellate court will strictly scrutinize claims that a natural parent is unfit because of abuse or neglect. This means that the court’s duty to protect the child will be balanced against its duty to protect democratic values.
To me, this strict scrutiny defines an actual hearing with live witnesses and the father afforded at least a chance to appear by deposition, if not in person. See review of law journals directed generally to the subject of parental rights in In Interest of J.L., 761 P.2d 985, 987 n. 2 (Wyo.1988). The foundational law has been established in a course of constitutional decisions by the United States Supreme Court as founded upon Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), followed by the commitment case of Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), and more recently including Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed. 2d 640, reh’g denied 453 U.S. 927, 102 S.Ct. *635889, 69 L.Ed.2d 1023 (1981) and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See also, Annotation, Parent’s Involuntary Confinement, or Failure to Care for Child as Result Thereof, as Evidencing Neglect, Unfitness, or the Like in Dependency or Divestiture Proceeding, 79 A.L.R.3d 417 (1977 & 1988 Supp.).
I respectfully dissent but further point out anxiously that unexpended and unexcused efforts to at least provide deposition testimony in the future should indeed confine this decision “to a few other situations,” but preferably to leave it as only one of a kind.
. In offering this conclusion, I do not ignore majority opinion citations. In People v. Ray, 88 Ill.App.3d 1010, 44 Ill.Dec. 182, 185, 411 N.E.2d 88, 91 (1980), appeal dismissed 452 U.S. 956, 101 S.Ct. 3102, 69 L.Ed.2d 967 (1981), where the mother was convicted of murder in the death of *634another child, the subsequent use of summary judgment in a termination proceeding was not presented as an appellate issue after the court had "affirmed the respondent’s conviction of murder and cruelty to children on evidence of common design and participation in her boyfriend’s course of torture and abuse that resulted in the death of her child. (People v. Ray [, 80 Ill.App.3d 151, 35 Ill.Dec. 688, 399 N.E.2d 977 (1979) ]).” The presented appellate issue of the second case was constitutional equal protection in challenging statutory grounds for the finding of parental unfitness. Ray, 44 Ill.Dec. at 184, 411 N.E.2d at 90. In the Colorado case, People in Interest of S.B., 742 P.2d 935 (Colo.App.1987), cert. denied sub nom. N.B. v. People, 754 P.2d 1177 (Colo.1988), termination was not then an issue where the father was in jail awaiting trial for the first degree murder of the mother and the dependent and neglected status of the daughter was clearly self-evident with one parent jailed and the other deceased.