IN RE: PARENTAL RIGHTS AS TO WEINPER (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

By the Court, Rose, J. (Steffen, C.J., Young and Shearing, JJ., concurring). The court affirmed an order terminating parental rights, rejecting due-process, jurisdictional, and dispositional challenges. Due process. Recognizing the parent-child relationship as a fundamental liberty interest (Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois, 405 U.S. 645 (1972); Meyer v. Nebraska, 262 U.S. 390 (1923)), and addressing for the first time what process is due in a Nevada termination proceeding, the court held that parents are entitled to (1) a clear and definite statement of the petition's allegations, (2) notice and an opportunity to be heard or defend, and (3) the right to counsel, surveying out-of-state authority. Weinper received all three; he admitted familiarity with the case plan, appeared at the hearing, and had appointed counsel. DCFS's submission of a duplicate, un-updated report did not offend due process because a current caseworker report is not a due-process requirement, particularly where the parent is present and able to apprise the court of any changed circumstances - which Weinper did, without showing any progress. Jurisdictional and dispositional grounds. Applying the two-tier framework of Champagne v. Welfare Division, 100 Nev. 640, 646-48, 691 P.2d 849, 854 (1984), the court required clear and convincing evidence of both a specific parental fault/condition (jurisdictional) and the child's best interest (dispositional). Under NRS 128.105, jurisdictional grounds were established via NRS 128.105(3) (unfitness) and NRS 128.105(4) (failure of adjustment). Unfitness was supported under NRS 128.106(4) (excessive use of controlled substances rendering the parent consistently unable to care for the child) given repeated positive drug tests, a misdemeanor drug conviction while on probation, and pending assault charges. Failure of adjustment was established under NRS 128.109, which treats failure to comply substantially with a reunification plan within six months as evidence of failure of parental adjustment; DCFS had allowed nearly three years, and Weinper identified no meaningful compliance beyond a court-compelled drug program followed by relapse. Dispositionally, termination served Cortney's best interest: she had thrived in foster placement for two and a half years and could be adopted by the only family she had known. Order affirmed.

In plain language

Cortney Weinper was removed from her father Cory Weinper's home in April 1992, at seven months old, because of his admitted drug use and allegations he had physically abused the grandmother. The State's child-welfare agency (DCFS) set up a reunification plan requiring Weinper to, among other things, get clean, complete counseling, keep a job and housing, pay child support, and visit Cortney. Over nearly three years Weinper repeatedly failed: he tested positive for drugs several times, was arrested more than once, paid essentially no support (only $156 through a wage garnishment), and at the time of trial was jailed on a charge of assaulting his mother with a deadly weapon. The one plan requirement he met - completing a drug program - he did only as a condition of getting out of jail, and he relapsed afterward. DCFS petitioned to terminate his parental rights, and after a February 1995 trial the district court did so. Weinper appealed, arguing (1) he was denied due process, (2) the 'jurisdictional' grounds (his own fault or condition) were not proven by clear and convincing evidence, and (3) the 'dispositional' grounds (the child's best interest) were not proven. The Supreme Court affirmed. It criticized DCFS for being 'slipshod' - most notably for submitting a duplicate, un-updated report before the termination hearing - but held this did not violate due process. Due process in a termination case requires a clear statement of the allegations, notice and a chance to be heard, and the right to counsel; Weinper received all three, appeared at the hearing with appointed counsel, and could tell the court about any progress himself. A current caseworker report is not a due-process requirement, especially when the parent is present. The Court also held both required kinds of grounds were proven by clear and convincing evidence. On unfitness, Weinper's persistent drug use and criminal activity qualified. On failure of parental adjustment, he could point to no meaningful compliance with the plan over nearly three years, far beyond the six-month statutory benchmark. And terminating his rights served Cortney's best interest: she had thrived for two and a half years in a foster home that could now adopt her, and it would be unjust to leave her in limbo indefinitely.