Daniels, Matter of

Decision Date22 January 1998
Docket NumberNo. 28704,28704
Citation114 Nev. 81,953 P.2d 1
PartiesIn the Matter of the Parental Rights as to Leandre Lamar DANIELS, Deandre Lamar Daniels, Andrea Renay Kidwell, Allen Michael Kidwell, and Christopher Lanier Kidwell, Andre KIDWELL and Pamela Renay Daniels, Appellants, v. DEPARTMENT OF HUMAN RESOURCES, DIVISION OF CHILD AND FAMILY SERVICES, Respondent.
CourtNevada Supreme Court
OPINION

SHEARING, Justice:

Appellant Andre Rene Kidwell contends that the district court violated his procedural due process rights. 1 We conclude that the assignments of error are without merit and therefore affirm.

FACTS

Pamela Renay Daniels ("Daniels") and Andre Rene Kidwell ("Kidwell") contest the termination of parental rights of five of Daniels' eleven children. The five children who are the subject of these proceedings include two sets of twins. The twins, Leandre and Deandre, were born January 22, 1988. Unmarried at the time of the twins' conception, Daniels listed either Robert McDaniel or Robert Jones as their father. Neither putative father appeared at any proceedings.

The remaining three children who are the subject of this appeal are claimed by the putative father, Kidwell. However, Kidwell has never established paternity or listed his name on their birth certificates. Andrea Kidwell was born February 7, 1989, and the second set of twins, Allen and Christopher Kidwell, were born December 7, 1989.

Child Protective Services ("CPS") had received nine referrals on Daniels' children; however, most of the supporting allegations were either untrue or unconfirmed. CPS substantiated improper supervision and physical and medical neglect in September of 1988. On March 2, 1992, Douglas Wasden, an officer with CPS, received a final referral after North Las Vegas police officers discovered five unattended children in Kidwell's filthy and unkempt apartment. Despite the police entry and search of the apartment, Kidwell slept undisturbed. The house had very little furniture and it appeared that the children had no food. Kidwell explained that he was in the process of moving from one apartment to another.

Ten children who ranged in age from three to twelve resided in the apartment. Apparently one of Daniels' children lived elsewhere. The mother's whereabouts were unknown; therefore, the officers immediately removed the five children who were present and also the remaining five (not at issue herein) who were attending school. Neither parent appeared at the protective custody hearing held the following day, nor did either parent contact CPS regarding their children.

A petition was filed alleging improper supervision of the children and that neither parent attempted to resume custody of the children. Both parents attended the hearing held before the juvenile court on March 11, 1993, and admitted to improper supervision. On March 15, 1993, Andrea, Allen, and Christopher were released to Kidwell.

CPS sent a letter to Daniels requesting her prompt response concerning the disposition of her children. Daniels failed to respond and made no effort to communicate with CPS while Leandre and Deandre remained under the agency's care. Leandre and Deandre and the remaining five children were then placed into the custody of the Division of Child and Family Service ("DCFS") after CPS determined that Daniels no longer had an interest in caring for her children and alternative placements were not available.

Relevant facts pertaining to Kidwell

Kidwell signed a parental treatment agreement drafted by CPS which required Kidwell to provide his children with proper care, participate in the Parent Education Program, and submit to periodic monitoring by the agency. The record reflects that Kidwell was informed that the parenting classes were without cost and that additional free counseling was available.

Despite an understanding with CPS that Kidwell was to avoid living with Daniels, Kidwell ignored this admonition and continued the cohabitation.

Kidwell's custody of Andrea, Christopher and Allen was short-lived. At trial, Kidwell testified that he gave Daniels the rent money, but unbeknownst to Kidwell, Daniels allegedly spent it on drugs. They were evicted on May 19, 1993. Kidwell was homeless and unable to care properly for his children. The inability of the protective services' officer to place the children with their paternal grandmother hastened the children's placement with DCFS on June 24, 1993.

Kidwell acceded to the DCFS case plan which required him to: (1) maintain adequate and stable housing; (2) secure stable employment; (3) seek counseling; (4) pay child support in the amount of $300.00 per month; (5) obtain safe child care and utilize community resources; and (6) avoid contact with Daniels during her drug use.

The DCFS social worker instructed Kidwell to sever his ties with Daniels. According to DCFS, Kidwell was jeopardizing the children's welfare by fueling Daniels' drug habit with money that he received from Aid to Dependent Children ("ADC"). Kidwell, however, was unwilling to sever the relationship and claimed that he planned to marry Daniels shortly.

Kidwell had sporadic contact with DCFS during the two-and-a-half-year period that followed. The DCFS social worker testified that her inability to contact Kidwell and Daniels posed a formidable problem. For example, the social worker testified that Kidwell's mother was her best contact because Kidwell was frequently changing jobs and residences. Kidwell visited his children on only one occasion during the two-and-a-half-year period, and despite his caseworker's efforts to arrange another visit, Kidwell failed to confirm the arrangement.

Kidwell, however, testified that he saw his children approximately six or seven times between June of 1993 and February of 1996. Other than Kidwell's testimony, there is no record of these additional visits. One verified visit occurred at DCFS and the others were allegedly at Child Haven. During his visits, Kidwell testified that the children were hateful towards him and said they had other parents. Kidwell testified that he thought his rights were terminated; therefore, he did not stay in touch with the children.

Kathleen Petit ("Petit"), a DCFS social worker assigned to the case in January 1995, testified at trial that Kidwell failed to make any progress on his case plan. Kidwell was unemployed, without a permanent residence, and living with his mother. Petit suggested to Kidwell that he enroll in a parental training class as a show of good faith. Petit instructed Kidwell to call her the following day and she would arrange a visit with his children. Petit had no further contact with Kidwell. Moreover, Kidwell failed to pay any child support, establish paternity, or comply with the DCFS case plan.

Kidwell married a woman other than Daniels in October 1995. Notwithstanding his recent one-month marriage, he tried to reconcile with Daniels following her release from prison. At the time of trial, Kidwell lived with his newlywed and mother-in-law, and relied on their incomes because he was unemployed. Kidwell stated that he earned only $2,600.00 in the previous year. Relevant facts pertaining to the children

When DCFS gained custody of Leandre and Deandre on April 21, 1993, the DCFS caseworker testified that the twins had numerous behavioral problems. The girls exhibited significant anger and violence and possessed atypical sexual knowledge. Another social worker employed by Specialized Alternative for Family and Youth of America ("SAFY"), an agency specializing in placing children in therapeutic foster homes, who was assigned to Leandre and Deandre, testified at trial that the girls had uncontrollable behavior and required structured therapeutic foster care. DCFS immediately placed the girls in counseling and attended to their special educational needs. The girls generally responded well following their placement in a structured setting and stable home environment. The SAFY social worker testified that these two girls were adoptable.

Allen and Christopher also exhibited behavioral and developmental problems. The caseworker testified that the boys were extremely violent with each other. Prior to gaining custody of the boys, DCFS observed bruises and scars on the boys that were attributed to the twins hitting each other with bats. Further, Allen and Christopher smeared feces on the wall and urinated inappropriately.

Allen and Christopher were deemed fire starters and were subsequently referred to SAFY in November 1995. SAFY also determined that the twins had developmental and behavioral problems which required a environment that was more structured than a typical foster home. When the boys were initially referred to SAFY they were approximately four years old, yet engaged in such dysfunctional behavior as finger sucking and baby talk.

After a year of therapy at Child Behavioral Services and the combined efforts of the boys' foster parents, the caseworker testified that Allen and Christopher progressed significantly. For example, their vocabulary increased tremendously, their personal hygiene rose to an acceptable level, and they were able to interact with each other without constant battling. According to the SAFY caseworker, the children received superb foster care. Moreover, both boys were attending regular school.

Given their significant improvement in several areas, the caseworker concluded that the boys were ready for adoption. The caseworker acknowledged, however, that the twins' mixed race could complicate their chances for adoption.

The DCFS social worker initially assigned to Andrea, age four, testified that she lagged developmentally behind all of the other children. She was...

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