*1 710 Rights
In The Matter Parental as To WEINPER, ARVIN CORTNEY ANNE CORY WEINPER, Appellant, STATE v. THE NEVADA RESOURCES, DEPARTMENT OF HUMAN DIVISION Respondent. SERVICES, OF FAMILY No. 27047 May P.2d 325 Henry, L. Vegas, Appellant. Las Jennifer Anderson, General, Papa, Attorney Frankie Sue Del Linda C. General, Deputy Attorney City, Respondent. Carson
OPINION By Court, Rose, J.: 3,
On 1992, April Cortney Anne Weinper (Cortney) was removed from the home of her paternal grandmother and her father, Cory Arvin Weinper (Weinper). Cortney was seven months old at the time. Cortney was removed because of Weinper’s admitted drug use and allegations that had Weinper physically abused the grandmother. A case plan was for adopted reunification that required (1) Weinper: to submit to random drug (2) testing; to obtain substance abuse counseling; (3) to complete individual counseling with a of Division Child Family and Serv- (DCFS) ices approved agency; (4) to pay (5) child support; obtain and maintain legal months; employment for a of period six (6) to obtain and suitable independent for a housing period of six months; (7) exercise with visitation Cortney. The first review Weinper’s progress under the plan was 4, conducted on November 1992. did Weinper appear not at the hearing, but the report stated he no progress. made Additionally, no support child had been The paid. hearing master recommended that DCFS file a petition to terminate Weinper’s parental rights 1993, by April unless Weinper made substantial effort toward compliance with the plan. 1993, In January Weinper was years sentenced three proba- on
tion drug charges, and his release from the County Clark Jail was conditioned upon his enrollment in a drug program. He enrolled in and completed a at the program Treatment Nevada Center, thereby satisfying not a only condition of his probation, but also one of the conditions of his case plan reunification for with Cortney. After his release from the program, treatment Weinper went to for work a telemarketing firm. It is unclear from firm, long telemarketing
the record how worked for Weinper there, “I replied, but when how he worked long Weinper asked recall, at least six really steady, probably can’t it seemed pretty visiting months if not a was steady, year.” Although Weinper month, Cortney he still not child paying about once was $156.00 received was which support. only support The was was the result action initiated while wage garnishment Ace Cab Weinper briefly working Company. was at July again September was arrested in Weinper under the influence of a controlled substance. time, the Nevada During Weinper apparently attending this basis, discharged Treatment Center on an but was on outpatient 7, in Decem- drugs December 1993. tested Weinper positive ber February and twice in 1994. again May matter was reviewed on 1994. warned that fully comply plan, if did not with termination of his would be considered. 21, 1994, General, Attorney On the Nevada September acting DCFS, through filed a to terminate on the petition parental rights, unfitness, neglect, remedy failure to Weinper’s *3 substantially Cortney’s the conditions that led to removal. A 10, hearing on termination was held on November 1994. late be Weinper appeared appointed. that counsel requested The appointed attorney, court an and the matter was continued. The normally-scheduled next review of the case occurred plan 22, on November report 1994. DCFS filed the same that it filed in date had been altered. previously May, except that the The court noticed report actually updated, that the had not been and refused to consider the hearing. of the review part The February termination trial was held on At the 1995. trial, time of the charges assaulting held on Weinper mother, his Mary, deadly with a A revocation weapon. probation hearing had also been scheduled. alia, trial, testified,
At the termination inter that he Weinper was familiar with the for reunification. On March case 1995, the district court entered an order terminating Weinper’s parental rights. (1) due Weinper appeals, arguing right procedural that: violated; (2)
process jurisdictional were not estab- evidence; by (3) lished clear and convincing dispositional grounds were not by established clear and evidence. convincing We although hold that performance DCFS’ in this case was slipshod, Weinper received due and that process jurisdictional and dispositional grounds were adequately established. first argues right that his due procedural process,
713
pursuant
to the Fourteenth Amendment to the United States
Constitution, was
by
violated
the actions of DCFS and the district
court. Specifically,
that the
Weinper alleges
district court erred
by terminating his parental rights
having
without
a current review
of the case by DCFS.
prepared
The
between
relationship
parent and child has
been
long
recog-
See,
nized as a
liberty
e.g.,
fundamental
interest.
v.
Santosky
Kramer,
Illinois,
(1982);
455
Stanley
U.S. 745
v.
In the instant Weinper was afforded all of the above rights. He received a clear and definite statement of the allega- tions, at admitting trial that was familiar with the case plan and the conditions for reunification. He was at the termi- present nation hearing, and he had the benefit of counsel. The appointed fact that the caseworker submitted a to the duplicate report prior *4 termination did hearing Weinper’s right not violate to due proc- ess. A current from the report requirement caseworker is not a where, here, due process, especially the is in court and parent able to inform the any change court of in circumstances occurring since the last report. case,
In this the especially, absence of a current case did not work an injustice. at the ample opportunity hearing apprise any the court of he had made toward progress and he was unable to show plan, any progress. Weinper that the complains reports old did not reflect the fact that he had worked sporadically, that had suffered an on the or injury job,
714 However, at the jury.
that he had served weeks on a federal seven time of the informed the court of all these hearing, Weinper things. fully the the court was informed Despite duplicate report, hearing. as to situation at the time of the We hold Weinper’s violated, negli- were not the Weinper’s process rights despite due gence of DCFS in this case.
Turning to contention that DCFS failed to establish Weinper’s jurisdictional grounds, sufficient we hold that dispositional correctly the district court both. This court has previously found interpreted NRS 128.1051 as follows:
[Tjhere be considered grounds necessary are two kinds of parental in termination One relates to conduct proceedings. suitability or and the as a the incapacity parent’s parent; the child. other relates to the best interest of way: jurisdictional it another there must be Putting be found in some fault grounds specific termination —to directly parents disposi- or condition related to —and evaluation of the by general tional be found a —to child’s best interest. 640, 646-47, Division, v. Nev. P.2d Champagne Welfare 691 Further, “[bjecause (1984) (footnote omitted). of the sacredness of standard of that of parental rights higher proof, evidence,’ ‘at least clear and is before the convincing required children judicially away.” can be taken Id. at 691 P.2d at (citation omitted). provides: 1NRS 128.105 terminating parental 128.105 rights: Grounds Basic consid- erations. An order parental rights of the court for termination of must light be made in of the considerations set forth in this section and NRS 128.106, 128.107, 128.108, primary with the initial and consider- being ation by whether the best interests of the child would be served termination, requiring finding parent but that the conduct of the or following: demonstrated at one least of the child; 1. Abandonment of the child; Neglect 2. of the 3. parent; Unfitness of the parental adjustment; 4. Failure of 5. physical, Risk of serious injury mental or emotional to the child to, in, if he were returned or remains parent parents; the home of or Only by 6. token parents: efforts or (a) child; support To or communicate with the (b) child; prevent neglect To of the (c) parent; To avoid an unfit or (d) mental, To physical, eliminate the risk serious or emotional child;
injury to the or 7. respect With parent, to termination of the of one parent. abandonment *5 The district court found that jurisdictional grounds existed parent) pursuant (1) to: 128.105(3) NRS (Weinper’s unfitness as a (2) 128.105(4) NRS (Weinper’s failure to adjust). Weinper argues that neither of these proven clear and convincing evidence. NRS 128.106 sets forth specific considerations in determining the unfitness of a parent. Among “[ejxcessive these is use intoxicating liquors, controlled substances dangerous or drugs which renders the parent consistently unable to care for the child.” 128.106(4). NRS The district court specifically found that Weinper was unfit a parent as because of his “drug use and criminal activity.” There was clear and convincing evidence of both. Weinper positive tested drugs three times during the years three preceding termination hearing; the last just time seven months before the hearing. Additionally, had a misdemeanor drug conviction while on probation. As criminal activity, at the time Cortney was removed from the home, Weinper had been arrested for the theft of his car mother’s and credit cards. At the time of the termination hearing, Weinper was incarcerated pending resolution of charges of assault with a deadly weapon. The alleged victim of the assault was Weinper’s mother, with whom he had living been since Cortney’s birth. There be can no question that there was clear and convincing evidence Weinper’s unfitness a parent.
There was also clear and convincing evidence of Weinper’s failure to adjust. NRS provides 128.109 that:
If a child has been placed in the custody of the division child and family services of the department of human resources and or fail to comply substan- tially with the terms and conditions of a reunite family within 6 months after the date on which the child so placed commenced, or the plan later, [sic] whichever occurs that failure to comply is evidence of failure of parental adjustment.
Despite the fact that the statute allows a determination to be made of parental months, failure to adjust after only six DCFS tried to get Weinper to comply the case plan nearly with three years starting before termination proceedings. Weinper testified that he was with familiar plan, yet he was unable to identify any in area he which had complied, or even made progress toward compliance, except he had completed drug However, program. treatment we note that he entered the program aas condition of his release from It jail. included also this condition coincidental to be appears if would wonder but help We cannot for reunification. been forced not had he program treatment drug undertaken have *6 note we Additionally, jail. from released to be in order to do so the completion of after his drug-free to remain he was unable that drug treatment completing of the Certainly point program. living life without begin necessary to the skills gain is to program complete to nearly pointless It is substances. the aid of controlled changes. lifestyle significant any make still not and program the of evidence convincing and clear sum, there was find that In we a parent. to adjust failure
Weinper’s terminating parental is whether question “The dispositional . The . . the child. of in the best interest would be rights will be which placement on the focuses [dispositional question] at 100 Nev. Champagne, the child.” to beneficial most home, has she where foster in her thriving is Cortney at 854. P.2d nine was she years, since and a half last two for resided the by Weinper. challenged never was This assertion old. months to discussed, evidence ample there already Additionally, as interest Cortney’s best finding that court’s the district support because rights parental terminating by Weinper’s be served would and inability and parent as a continuing unfitness Weinper’s to then be free Cortney would Cortney. care for unwillingness to has known family she family; only the by the foster adopted be life. most of her for very It is two reasons. troubling, primarily is case This irresponsibly negligently and to act DCFS chose that unfortunate before review at the final an updated to by failing submit however, change behavior, does not hearing. Its the termination dispositional and jurisdictional are clear that there the fact also It is rights. terminating Weinper’s told repeatedly who was us a have before troubling that we the and assume with comply to if he failed subject were rights his parental parenthood, responsibilities reunify trying that DCFS the three years In termination. unwilling to make or was unable Cortney, Weinper meantime, In reunification. to allow necessary changes have is fortunate limbo. She been in Cortney’s life has It permanent. be now made which can placement foster beneficial to remain limbo Cortney to force injustice grave be a would ready he is decides as her father such a time indefinitely until the order Accordingly, activity. and criminal to give up drugs is Weinper’s parental terminating the district court affirmed. Young Shearing, JJ., concur. J.,
Steffen, C. Springer, J., dissenting:
This is another yet spate in the of recent cases in which an ever-increasing number of natural are their chil- losing dren to the State because are their “reunification they flunking test.”
The Adoption Assistance and Child Welfare Act of 620-628, U.S.C. duty, the states a imposes upon 670-679 §§ homes, when the state removes children from their to use “rea- sonable efforts” to “make it for the child to return to his possible home.” system” The Act that a “case review be set requires up by states. In to the federal has response legislation, state set up standards and which regulations require “continued assessment” of child any placement and the revi- “development, (“Substitute sion and implementation” of a “written case plan.” Manual,” Division). Care by issued Nevada State Welfare referred-to, written federally case is of the mandated part requirement that states use reasonable efforts to return to their homes children who have been removed from their homes *7 welfare officials. The case is sometimes to as a referred “reunification plan.”
The mentioned Substitute Care Manual emphasizes peri- odic evaluation is an of the casework and “integral part process” that the provides of evaluation of case is purpose periodic plans “to the goals measure extent to which treatment have been or are words, being realized.” In other the of Welfare in primary duty cases where children have been from their homes is to removed monitor or lack of it with to the case parental progress respect plan. home,
When Mr. child was removed from his Wel- Weipner’s fare set about the arranged formulation of reunification for periodic they court reviews of the “reasonable efforts” that were supposedly in so that the child be returned engaging might to its father. When this matter came before the district court for 22, 1994, review on startling November the court made a discov- ery. The case manager presented to the court the identical report that had been at the presented previous, May, hearing, only the date had been changed. manager’s case failure to file a proper and current is not an of official just example father, laziness and it to the neglect, goes basic of this who was denied the right to earn the return of his child his compliance given with the reunification The trial court had plan. May this father an “ultimatum” in and told him that if he did not (to “shape vernacular), use the up” danger losing was in ultimatum, his child permanently. judge’s In to the response father did a number to his things improve having his chances of returned, work; child to he suffered including attempts get but
set-backs in his employment by injuries having reason of and his served jury. seven weeks on a federal
The trial court decried the fact that the case manager to an submit exact of a rather duplicate prior report “chosefn] than inform the during court of the events the review period.” This, court, concluded the made it to review the “impossible efforts of or of the DCFS when this is done. It is particularly when the regrettable Court has stated an ultimatum to comply.”
The district court further observed that this was the second time that this case particular worker had tried to hoodwink the court. The court commented that proceedings these were not “meant to be a sham” and that case workers have the duty to act “responsibly” when submitting these kinds of Said the reports. court: tolerated, tolerated,
This conduct cannot be will not be as far as I’m my concerned that conduct puts today decision in substantial . . . jeopardy that conduct creates a difficulty that cannot be overcome. my
In judgment the proceedings leading up to this termination were, “sham”; decree as recognized by the court a I agree with the trial court that it is “impossible review efforts of the parents” or the agents welfare when welfare are agents guilty was, course, of this kind of misconduct. The trial judge correct, when he recognized that his decision put “sub- stantial jeopardy” by mentioned misconduct and that it “cre- a difficulty that cannot be overcome.” ate[d] Here we have a father who trying. Here we have a father who does not deserve to lose his child. Given the gross miscon- case, duct of the agents Welfare in this I would remand the matter back the trial court and order that the trial court provide the father with another six month’s trial after which period, *8 made, efforts would be reviewed and a decision based upon non-fraudulent welfare as to whether report, he is a fit parent as to whether he “deserves”1 to lose his child. parent liberty right does not deserve parent 1“[A] to forfeit sacred
hood persistent unless such unfitness is shown be severe and and such as to render unsuitable to maintain the relationship.” Division, 640, 648, Champagne v. Welfare 100 Nev. 691 P.2d (1984) (footnote omitted).