MATTER OF PARENTAL RIGHTS AS TO BOW (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

Affirming termination, the court applied the Champagne framework requiring clear and convincing evidence of both jurisdictional grounds (a specific fault or condition of the parent) and dispositional grounds (the child's best interest), while recognizing termination as an 'awesome power' and 'civil death penalty' subject to close appellate scrutiny; nonetheless an order is upheld if based on substantial evidence, and the court will not substitute its judgment for the trial judge who heard the witnesses. Champagne v. Welfare Division, 100 Nev. 640, 645-48, 691 P.2d 849, 853-54 (1984); Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989); Kobinski v. State, 103 Nev. 293, 296, 738 P.2d 895, 897 (1987). The district court found two jurisdictional grounds. First, parental unfitness under NRS 128.105(2)(c) - an 'unfit parent' being one who by fault, habit, or conduct fails to provide proper care, guidance, and support (NRS 128.018) - requires unfitness that is 'severe and persistent' rendering the parent 'unsuitable.' Champagne, 100 Nev. at 648 & n.5, 691 P.2d at 855 & n.5. Coupled with the NRS 128.106(8) factor (agencies' inability to reunite the family despite reasonable efforts), the court found clear and convincing evidence of Recodo's 'irremedial inability to function as a proper and acceptable parent,' noting DCFS even arranged substitute care so she could establish stability yet she did little to do so. Second, failure of parental adjustment under NRS 128.105(2)(d) and NRS 128.0126, informed by NRS 128.109(1)(b) (failure to substantially comply with a reunification plan within six months): over well more than a year, Recodo failed to maintain steady employment or stable housing and had only sporadic contact with DCFS and Michael. The court held over one and one-half years was a substantial time to keep the child in suspense and nothing indicated additional services would bring lasting adjustment. On dispositional grounds, testimony that Michael was thriving in his prospective adoptive home, in stark contrast to prior instability, supported termination as in his best interest. Finally, on due process, the court reiterated that parents are entitled to notice, an opportunity to be heard, and the right to counsel, Matter of Parental Rights of Weinper, 112 Nev. 710, 713, 918 P.2d 325, 328 (1996), and held Recodo's rights were not violated because counsel represented her at the termination hearing itself.

In plain language

Adrina Recodo gave birth to Michael Bow in 1992. Recodo, a young mother living in poverty on and near a rural reservation, voluntarily placed Michael in foster care in 1993 because she could not meet his needs while trying to get her GED and find work in Las Vegas. Michael was eventually adjudicated a neglected child and placed in the custody of the Division of Child and Family Services (DCFS), and later with a foster family that wished to adopt him. A case plan required Recodo to maintain steady employment and housing, complete parenting training, visit Michael regularly, undergo therapy, keep DCFS informed of her whereabouts, and pay child support. Over the next year and a half, Recodo's life remained highly unstable: she went through several short-lived jobs (some ending because of her volatility), frequently changed residences, visited Michael only a handful of times, had long stretches of no contact with DCFS, and paid only $160 in support. She also became involved in a bank fraud case. In late 1994 she began making a more concerted effort, but the State petitioned to terminate her rights, and in May 1995 the district court terminated them, finding her an unfit parent who had failed to adjust within a reasonable time, and that termination served Michael's best interest. Recodo appealed, arguing there was not clear and convincing evidence and that her due process rights were violated because she was not appointed counsel at every stage. The Nevada Supreme Court affirmed. It held clear and convincing evidence supported both jurisdictional grounds - parental unfitness and failure of parental adjustment - given Recodo's chronic instability in employment, housing, and contact with Michael, and the reasonable but unsuccessful reunification efforts by the agencies. It held the dispositional (best interest) ground was also met because Michael was thriving in his prospective adoptive foster home in stark contrast to the instability with Recodo. On due process, the court held Recodo's rights were not violated because she was represented by counsel at the actual termination hearing, which adequately protected her liberty interest.