Matter of Parental Rights as to Bow

930 P.2d 1128, 113 Nev. 141, 1997 Nev. LEXIS 5

• Court: Nevada Supreme Court
• Decided: January 4, 1997
• Docket: 27315
• Status: Published

Opinions

OPINION

By the Court,

Rose, J.:

On May 31, 1995, the district court terminated the parental rights of appellant Adrina Francis Decespedes Recodo (Recodo) after concluding that Recodo was an unfit parent and had failed to adjust to become a suitable parent within a reasonable period of time. Recodo challenges the district court’s conclusion, arguing that no clear and convincing evidence existed to support such a conclusion. Recodo also argues that her due process rights were violated because she was not appointed counsel at all stages of the termination proceedings.

We conclude that clear and convincing evidence existed to support the district judge’s conclusion and that Recodo’s due process rights were not violated.

FACTS

Michael William Bow (Michael) was born to Recodo on February 21, 1992.¹ Recodo is an American Indian enrolled with the Goshute/Shoshone tribe who at the time of the termination hearing was twenty-six years old. Until she was approximately three years old, Recodo lived on a reservation in Arizona, and in 1981, Recodo moved with her grandparents, her guardians, to rural Southern Nevada. In addition to Michael, Recodo has four other children. At the time of the termination proceeding, Michael was living in a prospective adoptive foster home. Three of her other children, Maria, Victor, and Fernando, were in the custody of Victor and Fernando’s father, Recodo’s ex-husband Fernando Decespedes. Recodo’s marriage to Decespedes ended because he beat her. Her daughter Lupita was living with her at her grandmother’s house.

Michael came to the attention of Debra McEwan, the social worker for the Moapa Band of Paiutes. According to McEwan, on approximately April 1, 1993, Recodo voluntarily placed Michael in foster care due to her financial inability to meet his needs. At the time of the placement, Recodo was living with her grandmother who could not adequately care for Michael due to her health and age and Michael’s special medical needs at birth. As a result, McEwan agreed to place Michael in courtesy foster care for a short period of time so that Recodo could obtain her GED at the Indian Center and look for employment in Las Vegas on weekdays and still care for Michael on the weekends. This arrangement was scheduled to last for six months. Recodo testified that during this period, she drove her grandfather’s car into Las Vegas but that after a while she was unable to afford gas for the daily trips between Las Vegas and her grandmother’s house on the reservation. As a result, she would stay with friends in Las Vegas, or when that was not possible she would study and sleep in the car. Recodo also testified that at this point her financial situation was so bad that often she would not eat for days just so she could afford to drive to Las Vegas to attend school and to try to find a job. Around May 1993, Recodo’s car broke down, and her grandparents sold it to her aunt and uncle. Recodo stated that she would either ride her bike or try to get rides with friends into Las Vegas to look for work, to appear in court, and to visit Michael at Childhaven, the state facility where Michael was eventually placed.

Michael was initially placed temporarily with Native American foster parents. McEwan testified that because Michael was not a large enough percentage of Native American, he did not fall under the Indian Child Welfare Act and was not eligible for enrollment in any tribe. Technically, McEwan should not have been funding his placement, but she placed Michael because Recodo was Native American, because Michael needed help, and because it was for the purpose of family reunification. Michael’s placement with the foster family was supposed to allow Recodo to maintain contact with Michael while she obtained her GED and sought employment and also to allow Michael to be in a safe environment in which he would be taken care of. According to McEwan, during Michael’s stay in foster care, Recodo did not maintain regular contact with Michael, take Michael back on weekends, look for a job, or go to counseling. Cynthia Blaya, Recodo’s DCFS caseworker, stated that she believed that Recodo had received her GED despite being involved in an altercation with another student and the teacher and being asked to leave the class, but McEwan testified that she did not believe that Recodo obtained a GED.

In the middle of June 1993, Michael’s stay with the foster family ended because of problems in the foster home. Because, as noted above, McEwan could not fund Michael’s placement in a foster home, McEwan contacted Roger Thiriat of Clark County Child Protective Services (CCCPS) on June 21, 1993, regarding placing Michael under state care. Michael stayed at his great-grandmother’s house for a week before CCCPS picked him up and placed him in Childhaven. During that week, Michael’s great-grandmother was unable to properly care for him because of her health problems, and most of Michael’s care was being provided by his fifteen-year-old aunt. Recodo’s grandmother told McEwan that Recodo had threatened to kill McEwan if she tried to move Michael from the home.

On June 25, 1993, Thiriat contacted Recodo about Michael’s impending placement in Childhaven. Recodo told him that she was living with a male friend in Las Vegas and was unable to care for Michael. Accordingly, Thiriat filed a petition pursuant to NRS Chapter 432B alleging that Michael was a neglected child. Recodo admitted the petition on July 8, 1993.

On August 4, 1993, Michael was adjudicated a neglected child and made a ward of the Eighth Judicial District Court, Juvenile Division. He was placed into legal custody of the Division of Child and Family Services (DCFS) on August 4, 1993. On August 31, 1993, a case plan was established for Recodo. The plan required that Recodo: (1) maintain steady employment; (2) maintain steady, suitable, and appropriate housing; (3) complete a parent effectiveness training program; (4) maintain regular visits with Michael; (5) undergo individual and family therapy; (6) at least monthly, keep DCFS apprised of her address and telephone number; and (7) pay child support of $100 a month.

In September 1993, Michael was removed from Childhaven and placed with a second foster family. Recodo saw Michael in February 1994 on his second birthday, one time in October 1994, one time in December 1994, and one other unspecified time at the CCCPS office.

The initial judicial review of Recodo’s case was held on October 5, 1993. The district judge found that Recodo had made regular visits to see Michael during his time at Childhaven but that she had not made any great progress toward reunification.

In October 1993, Recodo married Joachim Recodo (Joachim), a native of the Philippines, but Joachim was in this country illegally.² In February 1994, Recodo told Cynthia Blaya that Joachim was being deported to the Philippines and that she was now ready to work towards reuniting with Michael.

Between February and April of 1994, Recodo apparently had two different jobs. First, she was working as an unarmed security guard at Wells Fargo. That employment lasted only about three months because Recodo was terminated when she allegedly made threatening remarks to a fellow employee. For a brief period, Recodo also worked at the Santrop Convenience Market as a clerk and cashier. This employment ended because Recodo was allegedly rude to a customer. According to Recodo, she remained unemployed for the next six to eight months.

In April 1994, DCFS had a second hearing in district court regarding Recodo’s progress. The DCFS report indicated that Recodo had not contacted it for five of the six months in the reporting period. During this hearing, the court warned Recodo that if she did not make progress between that time and the next hearing, DCFS would begin the termination of Recodo’s parental rights.

In September 1994, Recodo was indicted for the non-probationary offense of bank fraud along with her ex-husband, Fernando Decespedes, and another man. At the time of the termination proceeding, another hearing on the bank fraud charges was scheduled for May 22, 1995. According to Recodo, Decespedes coerced her into participating in the crime by holding a gun to her head and telling her that she was a lousy mother who would never amount to anything. Then he pulled the trigger on an empty chamber. He then persuaded Recodo to assist him in the crime by confronting her with her inability to fulfill the case plan by obtaining transportation and insinuating that after the crime was committed she would be able to afford to obtain transportation.

On November 30, 1994, the State filed a petition to terminate Recodo’s parental rights. The State claimed that under NRS 128.014 Recodo had neglected Michael by failing to provide him with such things as proper parental care, necessary subsistence, education, and medical care. The State also charged that Recodo was an unfit parent for failing to provide Michael with proper care, guidance, and support. The State noted in its petition that Recodo had been given a substantial amount of time to remedy the conditions that led Michael to being placed in foster care.

At the time of the petition, Michael had been residing in a prospective adoptive foster home since September of 1993. Ruth, the foster mother, testified at the termination hearing that she and her husband wished to adopt Michael.

The termination proceedings commenced on April 21, 1995. McEwan testified that after Michael had been placed in state custody in 1993, she did not hear from Recodo for “many, many months.” Then Recodo contacted her in late 1994, and from November 1994 through February 1995, McEwan had “very heavy contact” with Recodo. McEwan testified that since November 1994, she had seen more of an effort on Recodo’s part to turn her life around: with the financial help of her grandmother, Recodo had bought a car; she had been seeing a psychologist; she had made a more concerted effort to maintain employment; and between November 1994 and April 1995 she only lost contact with DCFS one or two times. McEwan also testified that she worked with Recodo to help reunite her with Michael by helping Recodo budget her money so that she could get her own place to live and a regular means of transportation, setting up a specific schedule to visit Michael while he was in the custody of the state, and referring Recodo to Dr. Waldmeyer, a psychologist for the tribe. Recodo also saw another therapist fairly regularly from November 1994 until February 1995. In March 1995, Recodo applied and was accepted for unemployment benefits, and McEwan stated that a day care facility suitable for Michael’s needs had opened on the reservation and that social services, such as Indian general assistance and McEwan’s service section, were available to help both Recodo and Michael. As far as terminating Recodo’s rights to Michael, McEwan testified that although Recodo had been unreliable in the past in following through on required adjustments, she would like to see her have another chance.

Veronica Jean Amiano, a social work supervisor with DCFS, testified at the termination hearing as follows. On June 3, 1994, Recodo came to the division office and was agitated, upset, and used quite a bit of profanity. She requested to talk to Amiano privately, and in Amiano’s office Recodo expressed her annoyance with the termination proceedings and her frustration that she did not seem to have a way to actually get Michael back. She told Amiano that she had a good mind to blow up the division office and take her son. She told Amiano that she was out of her anti-anxiety prescription and that the Indian Affairs Office had not helped her to renew it. Recodo told Amiano that she felt like she was giving up on her son and that the DCFS should draw up the relinquishment papers and let her know when to come in and sign them, and on September 24, 1994, Recodo called Amiano again and repeated this request.

Cynthia Blaya, Recodo’s DCFS caseworker, testified that the biggest impediment to Recodo’s possible reunion with Michael was her inconsistencies. These included her inability to maintain steady employment, find appropriate housing, and maintain a regular visitation schedule with Michael. Blaya stated that from August 1993, when the State obtained custody over Michael, to April 1995, the time of the termination hearing, she saw very little progress from Recodo. She also stated that since the initial October 5, 1993 court review, Recodo had not provided verification of progress on her case plan, although Recodo had completed parenting classes in February 1994. Additionally, by the time of the termination proceeding, Recodo had only paid $160 in child support.

On May 31, 1995, the district court granted the State’s petition to terminate Recodo’s parental rights to Michael. The district court concluded that Recodo was an unfit parent as defined by NRS 128.018 (defining unfit parent as one who has by his or her own fault failed to provide the child with proper care) and NRS 128.106 (listing specific considerations in determining neglect by unfit parents). Additionally, the district court found that Recodo had failed to adjust to become a reasonable parent within a reasonable period of time as defined by NRS 128.0126.

Recodo now argues that no clear and convincing evidence existed to support the district judge’s conclusion and further that her due process rights were violated because she was not afforded counsel throughout the entire termination process.

DISCUSSION

The power to terminate parental rights is an “awesome power.” Champagne v. Welfare Division, 100 Nev. 640, 645, 691 P.2d 849, 853 (1984). This court has characterized the termination of parental rights as a civil death penalty. Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989). Consequently, a termination of parental rights must be scrutinized closely on appeal. Kobinski v. State, 103 Nev. 293, 296, 738 P.2d 895, 897 (1987).

Two kinds of grounds must be considered in termination proceedings. Champagne, 100 Nev. at 646-47, 691 P.2d at 854. “[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. However, 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, 103 Nev. at 296, 738 P.2d at 897.

The district court found that jurisdictional grounds existed pursuant to two factors listed in NRS 128.105. The first was Recodo’s parental unfitness. See NRS 128.105(2)(c). The term “unfit parent” as used in NRS 128.105 is defined as “any parent of a child who, by reason of his fault or habit or conduct toward the child or other persons, fails to provide such child with proper care, guidance and support.” NRS 128.018. This court has explained that

all parents are guilty of failure to provide proper care on occasion; and a parent does not deserve to forfeit the sacred liberty right of parenthood unless such unfitness is shown to be severe and persistent and such as to render the parent unsuitable to maintain the parental relationship.

Champagne, 100 Nev. at 648, 691 P.2d at 855 (footnote omitted). The term “unsuitable” is used to describe “a parent who by reason of persistent fault or state of incapacity deserves to have his or her parental rights terminated or who must sacrifice such parental rights in the interest of the child, by reason of irremedial inability to function as a proper and acceptable parent.” Id. at 648 n.5, 691 P.2d at 855 n.5.

Pursuant to NRS 128.106(8), a condition which diminishes the suitability of a parent is the

Inability of appropriate public or private agencies to reunite the family despite reasonable efforts on the part of the agencies.

After reviewing the record in the present case, we conclude that clear and convincing evidence of Recodo’s unfitness existed. The district judge concluded that the efforts of DCFS were reasonable and that they even found substitute care for Michael so that Recodo could find housing and employment and could establish stability in her life. The district judge also concluded that testimony proved that even after Recodo was relieved of the obligations of caring for Michael she did nothing to help establish stability in her life which she needed to care for Michael. This constitutes clear and convincing evidence of Recodo’s irremedial inability to function as a proper and acceptable parent.

The second jurisdictional ground was a failure of parental adjustment. NRS 128.105(2)(d). The district court concluded that Recodo was unable or unwilling within a reasonable time to substantially correct the conditions which led Michael to be placed outside her home. In August 1993, Michael was adjudicated to be a neglected child and was placed in the custody of DCFS. A case plan for Recodo to follow in order to achieve reunification with Michael was formulated at that time. Termination proceedings were commenced in November 1994. NRS 128.109(l)(b) allows a finding of failure of parental adjustment if a parent fails to substantially comply 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.”

Recodo was given well over a year to adjust and provide a suitable and stable environment for Michael. The evidence indicates that Recodo’s overarching and uncorrected problem was chronic instability in her employment, housing, and contacts with Michael. From the time the case plan was formulated in August 1993 until the final termination hearing in April 1995, Recodo did not maintain steady employment or stable housing, and she went through at least three jobs, two of which ended because of her volatility. She frequently changed her living arrangements and was unable to maintain a stable living arrangement to bring Michael back into. Throughout these two years, her contact with DCFS and with Michael was sporadic; between approximately October 1993 and April 1994, it was non-existent.

We conclude that over one and one-half years was a substantial amount of time to keep Michael in suspense while his mother tried to adjust. Champagne v. Welfare Division, 100 Nev. 640, 651, 691 P.2d 849, 857 (1984). Nothing indicates with any certainty that additional services would bring about a lasting parental adjustment on the part of Recodo. Id. at 652, 691 P.2d at 858. Therefore, we conclude that the evidence constituted sufficient jurisdictional grounds to allow an evaluation of the disposi-tional grounds.

We have also considered the district court’s analysis of the dispositional grounds. Testimony was presented that Michael is thriving in his foster home, where he has been since 1993, and that the foster parents wish to adopt Michael. Additionally, testimony indicated that Michael’s present living situation is in stark contrast to the instability he experienced prior to being placed in the foster home. Veronica Amiano explained why she felt the termination and subsequent adoption of Michael by his foster parents was in the child’s best interest.

Michael is a very bright little boy. When he first was placed in foster care, he didn’t have a lot of structure. He needed someone with strong parenting skills to keep him in control. He’s very assertive and to take that energy from being aggressive to assertive. This family has been able to work with him along that line.

... I feel that these foster parents have strong parenting skills. They certainly have incorporated him into their family. He calls them Mom and Dad, which is typical of any foster child, so that’s not unusual. And, he’s just feeling very a part of them.

We therefore conclude that clear and convincing evidence existed to support the district judge’s conclusion that Michael’s best interests would be served by terminating Recodo’s parental rights.

Finally, Recodo argues that her due process rights were violated because she did not have counsel appointed at all stages of the proceedings. This court has stated that as a matter of due process, “parents are entitled to: (1) a clear and definite statement of the allegations of the petition; (2) notice of the hearing and the opportunity to be heard or defend; and (3) the right to counsel.” Matter of Parental Rights of Weinper, 112 Nev. 710, 713, 918 P.2d. 325, 328 (1996).

Recodo did not have an attorney until the final termination proceeding, but she did have an attorney present at that hearing to protect her interests. Therefore, we conclude that Recodo’s due process rights were not violated and that her liberty interest was properly protected at the actual termination hearing.

CONCLUSION

The district judge’s determination that both jurisdictional and dispositional grounds existed was supported by clear and convincing evidence. Furthermore, Recodo’s due process rights were not violated because she was represented by counsel at the final termination hearing. Accordingly, we affirm the district court’s order.

Steffen, C. J., and Young, J., concur.

1 Recodo was unmarried at the time of Michael’s birth, and no father is listed on Michael’s birth certificate. Recodo named Steven Michael Bourgoise as the putative father, but the actual identity of Michael’s father is unknown. The putative father was deemed, pursuant to NRS 128.012, to have abandoned Michael by conducting himself in a manner evincing an intent to relinquish all claims to Michael for a period of six months.

2 Recodo testified that the marriage was null and void because she had never obtained a legal divorce from Decespedes.