Gonzales v. Department of Human Resources

933 P.2d 198, 113 Nev. 324, 1997 Nev. LEXIS 33

• Court: Nevada Supreme Court
• Decided: February 26, 1997
• Docket: 28637
• Status: Published

Opinions

OPINION

By the Court,

Rose, J.:

FACTS

Gloria Gonzales (Gloria) and Benjamin Gonzales (Benjamin) met as teenagers growing up in a neighborhood in Indio, California. Gloria ran away from home and started living with Benjamin when they were fifteen years old, and she became pregnant with their first of six children,¹ Vanessa Andrea Gonzales (Vanessa), who was born January 1, 1979. At some point, Gloria and Benjamin married and had a second child, Crystal Monique Gonzales (Crystal), on July 25, 1982. Gloria and Benjamin later moved to Las Vegas where Gloria gave birth to the two children at issue in this appeal — Destiny Monet Gonzales (Destiny), born September 26, 1990, and Brittany Dominique Gonzales (Brittany), born August 9, 1991.

Vanessa and Crystal were removed from Gloria and Benjamin’s care and made wards of the State of California in 1985. At that time, both Gloria and Benjamin had heroin and cocaine addictions, and Benjamin was incarcerated in California for a drug-related offense. Vanessa and Crystal were returned to the Gonzaleses in 1987, but were subsequently removed after Gloria tested positive for opiates in 1988. After several more years in foster care, Vanessa and Crystal were returned to their parents, who had since moved to Las Vegas in September, 1992, with Interstate Compact in Nevada monitoring the placement.

By 1993, Vanessa, Crystal, Destiny, and Brittany were living with their parents in a Las Vegas apartment. Gloria was working at a convenience store and Benjamin was unemployed due to a job-related injury. On March 19, 1993, the Gonzaleses were evicted from their apartment. Gloria and Benjamin told the four girls to wait on the sidewalk outside of the apartment building while they went to seek alternate housing for the family.

The landlord called the police about the unattended children, the North Las Vegas Police came and talked with the girls, ascertained that they had not eaten in almost eight hours, and then transported the four children to Clark County Juvenile Court, where they were placed in protective custody. Vanessa and Crystal, who were still wards of the State of California, were sent to live with Benjamin’s mother in California, while two-year-old Destiny and one-year-old Brittany were placed in Child Haven and later in the custody of the Division of Child and Family Services (DCFS) which placed them in the foster home where they currently reside.

Because of Gloria and Benjamin’s documented history of drug abuse, Child Protective Services (CPS) listed abstinence and random drug-testing as a condition to be met before Destiny and Brittany would be returned. Vanessa and Crystal’s social worker tried to find a place for the family to live and transported Gloria to court proceedings and to drug test appointments. Gloria missed some appointments and tested positive for drugs at another. Shortly after Destiny and Brittany had been removed, Gloria and Benjamin got into a fight, and Benjamin was arrested for assault with a deadly weapon. Benjamin remained incarcerated for about a month. Meanwhile, Gloria had been arrested and jailed for outstanding traffic warrants, and on April 2, 1993, she tested positive for cocaine usage.

CPS filed a petition alleging that Destiny and Brittany were in need of protection due to Gloria’s drug abuse and the inability of the Gonzaleses to provide for the children. On April 15, 1993, Gloria and Benjamin admitted to the petition, and DCFS took custody of Destiny and Brittany on May 6, 1993. The juvenile court and DCFS developed a case plan for reunification, ordering the parents to do the following: (1) maintain stable housing and employment; (2) complete parenting classes; (3) attend Narcotics Anonymous meetings; (4) submit to random drug testing; (5) maintain regular visitation; (6) notify the social worker of any changed circumstances; and (7) pay child support.

By the first six month court review, in November of 1993, Gloria had enrolled in a methadone program at Nevada Treatment Center and had passed random drug tests administered at the Center. She and Benjamin were attending Alcoholics Anonymous and Narcotics Anonymous meetings and had partially completed parenting classes. Benjamin was receiving SIIS benefits, and he and Gloria had found a small studio apartment. They had been visiting Brittany and Destiny on a monthly basis, and increased visitation was recommended as reunification appeared to be a viable goal.

However, Gloria and Benjamin separated in December of 1993, and Gloria moved in with a boyfriend. She worked at a convenience store, kept house for an elderly couple, continued her methadone maintenance treatments, and visited Destiny and Brittany every six to eight weeks. On April 29, 1994, Benjamin was murdered while visiting Gloria at the residence she shared with her then boyfriend. Gloria had fought with her boyfriend earlier that day and acknowledged at the termination hearing that the police considered her boyfriend a suspect in Benjamin’s murder.

On May 3, 1994, several days after Benjamin’s murder, and just a few days before the second scheduled status check, Destiny and Brittany’s social worker, Carol Denley (Denley), called Gloria at her housekeeping position and encouraged Gloria to maintain contact with her; Denley testified that she had wanted Gloria to help her break the news of Benjamin’s death to Destiny and Brittany.² However, neither the children nor DCFS heard from Gloria again until April of 1995. Gloria testified that after speaking with Denley in May, 1994, she fled to California where she abused drugs for approximately six months. Gloria stated that she then entered a religious-based drug rehabilitation program, “Victory Outreach,” where she stayed for eight months.

On April 11, 1995, Gloria finally contacted Denley and told Denley of her whereabouts and activities over the past year. Gloria temporarily left the Victory program to attend a May, 1995 status check, where she asserted that the judge encouraged her to leave the inpatient program before completing the full year of treatment and to attempt to locate adequate housing. On July 1, 1995, Gloria withdrew from the Victory program and moved in with Benjamin’s mother and sister in California, where her older daughters, Vanessa and Crystal, had been living. She enrolled in an outpatient drug abuse program. Upon satisfactory completion of that program, her two older daughters, Vanessa and Crystal, were returned to Gloria’s physical custody.

Gloria then entered into a relationship with Richard Weber (Weber), and moved into his home with Vanessa and Crystal in September, 1995, after Gloria’s sister-in-law would no longer allow Gloria and the girls to stay in her home. At this time, sixteen-year-old Vanessa had a one-month-old child of her own and thirteen-year-old Crystal had had some delinquency problems (e.g., she ran away for three weeks). Gloria did not obtain employment following her return until two weeks before the termination hearing, and she continued to receive welfare benefits for her older girls.³

According to DCFS, following her year long absence from Destiny and Brittany’s lives, Gloria had seen the younger girls only once, in May of 1995. Gloria has not provided any financial support or given any cards or gifts to the girls since they were removed from her custody in 1993. Furthermore, the girls celebrated birthdays in August and September, 1995, following Gloria’s July 1, 1995 release from rehabilitation, yet they received no acknowledgment from their mother.

Denley testified that one of the biggest problems barring reunification was the fact that “the girls do not know who [Gloria] is.” DCFS contends that Destiny and Brittany have become bonded to their foster family (who seeks to adopt them) and that they no longer inquire about their natural mother. The foster family is also of hispanic background; the foster parents have been married for twenty years; the father has stable employment; and the mother stays at home with Destiny and Brittany and her other children (two other foster children, an eight-year-old adopted son, and a fifteen-year-old biological daughter). Denley testified that Destiny and Brittany appeared to be thriving in this environment. Due to Destiny and Brittany’s young age, in November, 1994, DCFS first considered initiating termination proceedings after six months had passed without any contact from Gloria. Denley testified that she would not have pursued such action had the girls been older. On July 17, 1995, DCFS filed a petition to terminate Gloria’s parental rights as to Destiny and Brittany, notwithstanding Gloria’s reappearance in April of 1995, and her apparent new-found stability. As grounds for termination, the petition asserted abandonment, neglect, unfitness of the parent, failure of parental adjustment, risk of harm to the girls, and “token efforts” as elaborated upon in NRS 128.105.

On September 28, 1995, the district court appointed counsel for Gloria. A contested hearing was held on December 29, 1995, wherein the district court found that Gloria had intentionally abandoned Destiny and Brittany for almost a year, as evidenced by the fact that she failed to contact DCFS and to support or contact the children “for at least six months concerning the children’s health, welfare or well-being.”

The district court also found a failure of parental adjustment, noting that:

[Gloria] has been “unable or unwilling within a reasonable time to correct substantially the circumstances, conduct or conditions which led to the placement of [her children] outside of [her] home, notwithstanding reasonable and appropriate efforts made by the state or a private person or agency to return the [children] home.” Although the mother had made recent efforts to remain free of drugs, she did not change her circumstances in a reasonable period of time and instead abandoned these children.

(quoting NRS 128.0126, which defines “failure of parental adjustment”). The district court concluded that the best interests of Destiny and Brittany would be served by terminating Gloria’s parental rights and entered an order so stating.

Gloria now challenges the district court’s termination of her parental rights. We conclude that Gloria’s contentions are without merit, and affirm the holding below.

DISCUSSION

Clear and convincing evidence established jurisdictional and dispositional grounds for the termination of appellant’s parental rights

NRS 128.105 sets forth the basic considerations relevant in determining whether to terminate parental rights.⁴ This court, in applying NRS 128.105, has stated that two kinds of grounds must be considered in termination proceedings. Champagne v. Welfare Division, 100 Nev. 640, 646-47, 691 P.2d 849, 854 (1984). “[Tjhere must be jurisdictional grounds for termination — to be found in some specific fault or condition directly related to the parents — and dispositional grounds — to be found by a general evaluation of the child’s best interest.” Id. at 647, 691 P.2d at 854. Both grounds must be established by clear and convincing evidence. Id. at 648, 691 P.2d at 854. NRS 128.105, as amended in June 1995, keeps intact the jurisdictional and dispositional categories, but places primary importance on the dispositional grounds, that is, the best interests of the child. This court will uphold an order of termination if it is based on substantial evidence and will not substitute its judgment for that of the trial judge who heard and observed the witnesses. Kobinski v. State, 103 Nev. 293, 296, 738 P.2d 895, 897 (1987). We conclude that DCFS presented substantial evidence upon which the termination of Gloria’s parental rights was based.

Jurisdictional grounds

In her “Pre-Trial Memorandum,” Gloria stated that, “If the Court applies a strict interpretation of the grounds set forth in the petition [abandonment, failure of parental adjustment, etc.] to the facts relating to Mrs. Gonzales’ compliance . . ., then Mrs. Gonzales is prepared to concede that [DCFS] will be able to establish jurisdictional grounds for termination. ’ ’ (Emphasis added.) Gloria’s brief continued, “there is no denying that during a nearly one (1) year period in 1994-95, Mrs. Gonzales dropped out of sight, did not keep in contact with the case worker and did not attempt to comply with the court-ordered case plan.” (Emphasis added.) Gloria urged the district court to, nonetheless, give her a second chance to parent Destiny and Brittany.

At the December 29, 1995 termination hearing, after hearing testimony and following the presentation of evidence, the district court concluded that:

Relative to the first grounds, the issue of jurisdictional grounds, I think it’s even conceded by everyone, I don’t think there’s really a dispute here that under the law, the ground of abandonment has been met. The statute does presume that if there is six months of no contact, failure to support, and failure to maintain any communication, that there is a presumption of abandonment under NRS 128.012.

Equally under NRS 128.109, there is a presumption that . . . within six months if the child is in the custody of [DCFS] and the parent fails to make the appropriate adjustment after being placed, that the ground of failure of parental adjustment ... is presumed, and the Court does make those findings.

(Emphasis added.) We conclude that the district court did not err in its conclusions.

Abandonment

NRS 128.012 defines abandonment as follows:

1. “Abandonment of a child” means any conduct of one or both parents of a child which evinces a settled purpose on the part of one or both parents to forego all parental custody and relinquish all claims to the child.

2. If a parent or parents of a child leave the child in the care and custody of another without provision for his support and without communication for a period of 6 months, ... the parent or parents are presumed to have intended to abandon the child.

In Sernaker v. Ehrlich, 86 Nev. 277, 280, 468 P.2d 5, 7 (1970), this court held that abandonment of a child is conduct on the part of the parent that is intentional and shows a settled purpose to relinquish all parental rights in the child.

On appeal, Gloria argues that while her one year disappearance from the children’s lives satisfied the presumption of abandonment and failure of parental adjustment, as enunciated in NRS 128.012 and 128.0126, DCFS failed to prove that Gloria had ever intended to abandon Destiny and Brittany. We conclude that Gloria’s conduct clearly and convincingly satisfied the definition of abandonment and that she did not rebut the presumption of NRS 128.012(2).⁵ In Pyborn v. Quathamer, 96 Nev. 145, 147, 605 P.2d 1147, 1148 (1980), this court upheld a district court finding of abandonment where the father made no attempt to communicate with his son for a period of ten months, coupled with “token efforts, to pay support for the child.” Additional evidence of abandonment has been recognized in a parent’s lack of support, failure to communicate, and failure to send gifts to his children. Sernaker, 86 Nev. at 280, 468 P.2d at 7.

Recently, in Greeson v. Barnes, 111 Nev. 1198, 1204, 900 P.2d 943, 947 (1995), this court terminated a father’s parental rights where the father failed to pay child support, exercised visitation rights for only six months during a five-year period, and gave his son only one Christmas gift. Although the court acknowledged that the father’s appeal was an indication that he did not have a “ ‘settled purpose ... to forego all parental custody and relinquish all claims to the child,’ ” this court upheld the district court’s termination of his parental rights, stating that, “there is no better illustration of the adage ‘actions speak louder than words.’” Greeson, 111 Nev. at 1204, 900 P.2d at 947 (quoting NRS 128.012(1)).

On the facts at bar, we conclude that Gloria’s admission that she “dropped out of sight” for a year, without contacting or providing support to Destiny and Brittany, supports the district court’s determination that Gloria had abandoned her children. The testimony shows that Gloria underwent extreme emotional trauma following the death of Benjamin, and thus was arguably unable to formulate a “settled purpose” to abandon her little girls. At the hearing below, the judge commended Gloria on her phenomenal progress. Nonetheless, while she may now lack the intent to abandon Brittany and Destiny, we conclude that her actions between May of 1994 and April of 1995 showed a clear intent to relinquish any and all parental rights. Even if Gloria was now prepared to parent Destiny and Brittany competently, we conclude that Gloria’s progress comes too late in the lives of these two children.

Failure of parental adjustment

NRS 128.0126 defines failure of parental adjustment as follows:

“Failure of parental adjustment” occurs when a parent or parents are unable or unwilling within a reasonable time to correct substantially the circumstances, conduct or conditions which led to the placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the state or a private person or agency to return the child to his home.

This court has recognized that failure of parental adjustment may provide jurisdictional grounds for termination; however, “it is fraught with difficulties and must be applied with caution.” Champagne v. Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 857 (1984). We have noted that the failure of parental adjustment comes into play in situations like the one at issue wherein a child has been placed in a foster home. Id. at 650, 691 P.2d at 856-57. The purpose is to evaluate the parent’s efforts to adjust “ ‘circumstances, conduct or conditions’ ” within a reasonable amount of time in order to justify the child’s return to the home. Id. at 651, 691 P.2d at 857. The main concern is permanency — a child should not be held in limbo indefinitely. Id.; see also Matter of Parental Rights of Montgomery, 112 Nev. 719, 917 P.2d 949 (1996).

In 1995, the Nevada Legislature amended NRS 128.109 to add certain new considerations of parental conduct. NRS 128.109(l)(b) states that:

If the parent or parents fail to comply substantially with the terms and conditions of a plan to reunite the family within 6 months after the date on which the child was placed or the plan was commenced, whichever occurs later, that failure to comply is evidence of failure of parental adjustment as set forth in paragraph (d) of subsection 2 of NRS 128.105.

Destiny and Brittany were taken from Gloria on March 19, 1993, and a case plan was developed that May. The testimony shows that Gloria understood the major provisions of her case plan and the consequences of failure to satisfy its mandates in a reasonable time. Gloria also acknowledged that having had substantial interaction with the foster care system and social workers, she knew that there were resources available to help her implement the case plan. Notwithstanding those resources, the terms of that case plan had yet to be satisfied, more than two years after its inception.

We conclude that clear and convincing evidence supports a finding of failure of parental adjustment. Gloria failed to comply with the case plan in that she disappeared for one year, during which time she failed to visit Destiny and Brittany, failed to maintain contact with DCFS, and failed to provide support for her children or comply with the case plan to any other extent. While it is true that just prior to Benjamin’s murder, Gloria was progressing and reunification seemed viable, part of parental adjustment is demonstrating the ability to put the welfare of one’s children above oneself during times of crisis. While we recognize Gloria’s anguish and vulnerability following her husband’s brutal killing, the fact is that Gloria would not or could not recognize that two little girls, who had just lost their father, were also vulnerable and suffering an emotional crisis at the simultaneous disappearance of both of their biological parents.

We conclude that the evidence clearly and convincingly proved the jurisdictional grounds of abandonment and failure of parental adjustment.⁶

Dispositional grounds

Dispositional grounds are present “[i]f under no reasonable circumstances the child’s best interest can be served by sustaining the parental tie.” Champagne v. Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 858 (1984). In 1995, the Nevada Legislature amended NRS 128.105 to state that “[t]he primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination.”

At the hearing, when asked whether she thought additional efforts from DCFS would make reunification with Gloria feasible, Denley replied “it could go in either direction.” In discussing the inevitable trauma that would occur should Destiny and Brittany be separated from their foster family, Denley explained that therapeutic intervention (i.e., counseling) could lead to a successful reunification with Gloria, but removal was just as likely to cause “reactive detachment disorders” in the girls because they could not remember that Gloria was their mother. Denley concluded, “I think that their removal would be very traumatic for them because of the fact that they’re now cognizant human beings . . . .” She also expressed concern over the potential for a return to drug dependence given Gloria’s long history of drug abuse.

At the conclusion of the termination hearing, the district judge stated that

[Rjelative to the dispositional grounds, and frankly this is the issue of the case that is . . . very difficult. It’s very difficult only if you review this case from the perspective of Mrs. Gonzales.

It would be very nice to award Mrs. Gonzales these children as an expression of what she has done with her life. I agree with [Gloria’s counsel] that as such an expression, you know maybe Mrs. Gonzales at this point has earned the right to have these children back. That, however is not the test. The test is what is in the best interest of these children. These children, while Mrs. Gonzales, and Mr. Gonzales during the time that he was alive, failed to make the adjustment that apparently now has been made. These children continue to grow.

They were placed in foster care, they got on with their lives. And frankly at this point there’s another family to consider and that is the potential adoptive family. They have bonded to that family and this Court was very impressed with the abilities of the foster parents and what they have done. And for all those days and mornings and weeks when these children had problems, it was the foster family that has been there for them and not the mother.

The Court does not find that it is in the best interests of the children to place them back with Mrs. Gonzales. The Court does find by clear and convincing evidence that the disposi-tional ground has been met by the State and that the best interests of these children is clearly served by ordering the termination in this case and allowing them to continue that life they have had without concern and without future worry from what may or may not happen in the very unstable life of Mrs. Gonzales.

We agree with the district court’s determination that it would be in the girls’ best interests to sever Gloria’s parental rights. During the first few months after Benjamin had died and Gloria had disappeared in May of 1994, Destiny and Brittany often asked their foster mother, “when will [we] see my Mommy and Daddy Gonzales?” Eventually, the girls stopped asking, and by the time Gloria reappeared in their lives (in May of 1995), Gloria was no more than a friendly stranger to the girls.

Destiny and Brittany have received nothing but support and affection from the foster family they have resided with these past few years. In the words of the social worker, Denley: “[Destiny and Brittany] are intelligent girls and they love these people [the foster family]. And do you take children away from a loving, happy family who have supported them for over two years?”

Gloria asked the lower court to show compassion and understanding by giving her a second chance to parent Destiny and Brittany, notwithstanding her year-long absence, where she admittedly “dropped out” of her children’s young lives. We note that the district court went out of its way to acknowledge the tragic circumstances that enveloped the Gonzales family. However, the district court ultimately followed the mandates of this state’s law in giving primary consideration to the best interest of Destiny and Brittany. Destiny and Brittany have been in a stable and loving home for four years — more than half of their young lifetimes — and they no longer know their biological mother.⁷ We conclude that the district court did not err in its determination that it would be patently against their best interests to reinstate Gloria’s parental rights.⁸

CONCLUSION

We conclude that clear and convincing evidence existed to support the district court’s conclusion that jurisdictional and dispositional grounds existed to support the termination of Gloria’s parental rights. Therefore, we affirm the judgment rendered below.⁹

Shearing, C. J., and Young, J., concur.

1 Two of the Gonzales’ children were taken from the home and relinquished to adoptive families due to the Gonzales’ problems with drug use.

2 Contrary to the facts recounted in the dissent, the record does not indicate that Brittany or Destiny witnessed the murder of Benjamin.

3 Notwithstanding the dissent’s contention that Weber was acting as a father to Gloria’s older children, it should be emphasized that Weber was not financially supporting Gloria or her children, who continued to receive government benefits. Moreover, at the time this case was argued before this court, Gloria could not be found and Weber did not have knowledge of her whereabouts.

4 NRS 128.105 states:

The primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination. An order of the court for termination of parental rights must be made in light of the considerations set forth in this section and NRS 128.106 to 128.109, inclusive, and based on evidence and include a finding that:

1. The best interests of the child would be served by the termination of parental rights; and

2. The conduct of the parent or parents demonstrated at least one of the following:

(a) Abandonment of the child;

(b) Neglect of the child;

(c) Unfitness of the parent;

(d) Failure of parental adjustment;

(e) Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains in, the home of his parent or parents;

(f) Only token efforts by the parent or parents:

(1) To support or communicate with the child;

(2) To prevent neglect of the child;

(3) To avoid being an unfit parent; or

(4) To eliminate the risk of serious physical, mental or emotional injury to the child; or

(g) With respect to termination of the parental rights of one parent, the abandonment by that parent.

5 We are perplexed by the dissent’s chastisement of the district court for applying this statutory presumption. The language of NRS 128.012 is not discretionary.

6 The dissent contends that there can be no failure of parental adjustment in this case because Gloria did not “willfully [have] a ‘purpose’ to relinquish her parental rights nor to flout the authority of [DCFS].” However, there is no willfulness requirement in our defining statute; NRS 128.0126 provides that this jurisdictional ground exists where a parent is unwilling or unable to adjust.

7 The dissent accuses the court of terminating Gloria’s parental rights “just because [Destiny and Brittany] have ‘bonded’ ” to their foster family. We agree with our colleague’s conclusion that it would be grave error to terminate this fundamental right “merely because [Destiny and Brittany] have ‘bonded’ with someone other than their natural parents.” However, the dissent trivializes the relationship between these little girls and the family they have lived with for four years by pejoratively referring to these ties as “pop psychology bonding.”

Destiny and Brittany consider their foster family to be their true and only family, as they have no memory of their short time (one and two years, respectively) with the Gonzaleses. The facts of this case clearly show that something more than “pop psychology bonding” has grown between the girls and their foster family.

8 In response to the dissent’s unsupported rhetoric accusing this court of an overweening desire to snatch children away from the “poor and handicapped,” we note that this decision is neither based upon Gloria’s financial status nor her physical capabilities, or any lack thereof.

9 The Honorable A. William Maupin, Justice, did not participate in the decision of this appeal.