Matter of Parental Rights as to CJM

• Decision Date: 03 December 2002
• Docket Number: No. 38352.,38352.
• Citation: 58 P.3d 188
• Parties: In the Matter of the PARENTAL RIGHTS AS TO C.J.M., J.F.M., and E.G.P. Francisco M., Appellant, v. The State of Nevada, Division of Child and Family Services, Department of Human Resources, Respondent.
• Court: Nevada Supreme Court

58 P.3d 188

In the Matter of the PARENTAL RIGHTS AS TO C.J.M., J.F.M., and E.G.P.

Francisco M., Appellant, v. The State of Nevada, Division of Child and Family Services, Department of Human Resources, Respondent.

No. 38352.

Supreme Court of Nevada.

December 3, 2002.

Vincent Ochoa, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, and Kathryn Bliss Holt, Deputy Attorney General, Carson City, for Respondent.

Before SHEARING, LEAVITT and BECKER, JJ.

OPINION

PER CURIAM:

This case involves the termination of parental rights of Francisco M., who is incarcerated for the kidnapping of his wife. He contends that his rights were terminated solely based on his incarceration and that the Division of Child and Family Services failed to prove parental fault.

FACTS

E.G.P. was born on May 25, 1995, to Angela and Jose A. However, appellant Francisco M. testified that he was E.G.P.'s acting father. Angela and Francisco also had two children together. C.J.M. was born on June 9, 1997, and J.F.M. was born on May 12, 1999. On five separate occasions, Francisco was arrested for domestic battery upon Angela.¹ Angela reported that Francisco also beat the children, especially E.G.P.

Francisco's most recent arrest occurred on December 31, 1999, for obstructing a police officer, battery/domestic violence, and first-degree kidnapping for the abduction of his wife from a house where drug use was rampant. Francisco was allowed to plead guilty to second-degree kidnapping and was convicted on February 28, 2001. He was sentenced to two to five years' incarceration. An investigation revealed that at the time of his arrest, he admitted to the arresting officer that he ingested two lines of cocaine that evening. In his opening brief on appeal, Francisco states that Angela's "attitude" in abandoning her children was what "caused [Francisco] to act inappropriately by `kidnap[p]ing' and bringing her back to take care of the children."

C.J.M. and J.F.M., the two younger children, lived with their paternal aunt and uncle following Francisco's arrest. The aunt and uncle refused to take custody of E.G.P. On January 3, 2000, Angela voluntarily left E.G.P. in the custody of the Division of Child and Family Services ("DCFS"). Angela admitted that she was not able to care for E.G.P. due to her drug use. Further, Angela admitted that she lived with people who used cocaine, and she did not want E.G.P. to live in such an environment. The aunt and uncle eventually chose to transfer custody of the two younger children to DCFS on February 14, 2000, because they could not care for them.

A petition for abuse/neglect was filed with the juvenile division of the district court on January 19, 2000, against Angela and Francisco. Francisco contested the petition, but the court found that Angela's drug use and Francisco's domestic violence adversely affected their ability to parent the children.

As a result of the family court's recommendation, the district court conducted a report and dispositional hearing on March 8, 2000. All three children were in the custody of DCFS. The Child Protective Services ("CPS") specialist report indicated that Francisco admitted to cocaine usage and that he needed drug treatment as well as counseling to address domestic violence and self-esteem issues. Francisco attended the hearing and was introduced to Ingrid Ponce, the DCFS social worker. Francisco informed Ponce that he did not want to lose his children, but knew he would be "going away." Ponce testified that Francisco's plan was for Angela to work on a program to regain custody of the children. Ponce described her role in the case and provided Francisco with her name and telephone number. Ponce contacted the prison where Francisco was incarcerated a few months later to let the prison social worker know how to contact her and also to ascertain whether Francisco had made any progress regarding his drug treatment and counseling. At that time, Francisco had not completed any programs in prison to address his domestic violence, drug use, and self-esteem issues.

On April 5, 2000, DCFS developed a case plan with Angela. The case plan was based on recommendations in the Children's Resource Bureau Report, which provided an independent psychosocial assessment of the family. However, due to his incarceration, Francisco could not be interviewed for that assessment. The report contained no recommendations to reunite the children with Francisco.

On October 24, 2000, a foster care review hearing was conducted in the family division of the district court. Angela had not complied with her case plan, and Francisco had made no contact with DCFS or the children. The permanency plan was to terminate Francisco's parental rights, to find paternal relative placement for C.J.M. and J.F.M., and to reunify E.G.P. with Angela. A concurrent plan for termination of parental rights and adoption of all three children was being considered. At this hearing, the court found that continuation of reasonable efforts to reunify the entire family was inconsistent with the permanent placement plan and that DCFS was not required to make reasonable efforts to reunify the family as mandated by NRS 432B.393(1).² The court adopted the initial permanency plan presented by DCFS that placed C.J.M. and J.F.M. with paternal relatives and reunified E.G.P. with Angela on October 24, 2000.³ Ponce then referred the matter by filing a termination petition the last week of December 2000.

On January 23, 2001, a juvenile review was conducted in family court. The court affirmed its finding that DCFS was not required to make reasonable efforts to reunite the family. The permanency plan and concurrent termination plan remained the same.

On January 30, 2001, Angela relinquished her parental rights to all of the children. The petition to terminate Francisco's parental rights was filed on March 5, 2001. The petition alleged the parental fault of abandonment and unfitness against both Francisco and the biological father of E.G.P. Francisco was personally served with notice of the petition on March 23, 2001. Francisco then contacted DCFS regarding the termination of his parental rights despite his failure to demonstrate any effort to contact the children or DCFS since the dispositional hearing on March 8, 2000.

Both Ponce and Penny Kelly, another DCFS social worker, testified that Francisco had been instructed to contact DCFS upon completion of any courses such as parenting, anger management, and drug/alcohol assessments,⁴ but that there had been no such contact before the proceedings to terminate his parental rights. However, once Francisco was notified of the proceedings to terminate his parental rights, he sent DCFS documentation showing that he had been assessed for various classes, attended sixteen AA classes, and had begun an anger management program. Kelly testified that she found documentation that Francisco had been assessed, but she found nothing in Francisco's file that showed actual completion of any of the courses.

The most recent juvenile court review, prior to the termination of parental rights hearing, was conducted in family court on April 24, 2001. At that time, the children had been in DCFS's custody for a month because of problems in the previous foster home. Nevertheless, DCFS informed the court that a potential adoptive home had been identified for all three children.

A hearing on this matter was conducted on June 28, 2001, before Judge Gerald W. Hardcastle in the Family Court Division of the Eighth Judicial District Court. DCFS contended that Francisco's parental fault consisted of abandonment and unfitness. DCFS argued that Francisco provided neither a residence nor an income for the children. Further, DCFS claimed that the consequences of Francisco's actions are not only his incarceration, but also his inability to provide the nurturing and support that the children need. Prior to being placed in protective custody, Francisco had been arrested five times for domestic battery against Angela and an officer affidavit filed by Family Youth Services reported that Francisco had physically harmed the children as well. Also, DCFS alleged that Francisco had not shown that he could maintain sobriety, provide a stable home, or remain free from criminal activity upon release from prison. In addition, Francisco had not maintained a relationship with the children or kept in contact with DCFS during his incarceration.

DCFS offered evidence at trial that the children have needs that will require exceptional parenting skills. Kelly testified that E.G.P. and C.J.M., upon being assessed, showed that they had learned to solve problems with violence and that all of the children would need intensive care for several years. In addition, evidence was presented that the children have an extremely close bond to each other and separation would be detrimental. The children had been temporarily placed at the potential adoptive home. The mother in that home testified regarding the bond between her family and the children, and also regarding the plans she and her husband had to care for the children as adoptive parents. Ponce testified that her duties included recommending whether a termination proceeding is advised based on the parent's progress and reunification. When asked if she could make a recommendation regarding Francisco, Ponce testified that she could not, because she was not familiar with Francisco or his behavior around the children. Kelly testified that her job was to try to act in the children's best interests, but she never attempted to contact Francisco or E.G.P.'s biological father. Rebecca Foster, the Court Appointed Special Advocate, also testified that she had never attempted to contact Francisco and had not seen any interaction between him and the children.

Francisco testified that he had financially provided for the children when the family lived together. Francisco claimed that he did...