April 01, 2013

Nonoffending Parent Not Required to Complete Case Plan

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re A.G., 295 P.3d 589 (Nev. 2013)

Where child was removed from mother for substance abuse, trial court properly dismissed termination petition alleging father failed to complete case plan. The only evidence of his unfitness arose after he was improperly made to engage in drug tests after the child’s removal, despite lack of a petition against him.

Two-year-old A.G. was removed when she was found in a campsite with her mother who was intoxicated. Her mother was the subject of an open child protective services investigation at the time and told a relative she was taking her to a party because she feared she would lose custody. Her relative was concerned because she had a history of drug use and suicidal thoughts.

The child’s father did not have custody of the child at the time of the incident but had been her primary caretaker for most of her life, up until a month before the removal when the mother filed a temporary protection order (TPO) against him.

Upon removal, the father was required to complete a drug test, which was positive for marijuana and methamphetamines. At the shelter hearing, the master removed the child from the mother and found the child could not be placed with the father because of the pending TPO.

At the adjudication, the mother stipulated to the allegations. The father denied the only allegations against him, the allegations underlying the pending TPO. As a result, the master set the petition involving the father to an evidentiary hearing.

Before that hearing occurred, the agency agreed to dismiss the petition against the father. However, it later filed a case plan which requiring substance abuse and domestic violence evaluations.

At the dispositional hearing, the father was ordered to comply with the case plan and engage in supervised visitation. Shortly thereafter the TPO was dismissed and the father moved to have the dependency case dismissed and the child placed in his care. The master denied that motion finding it could not place the child with the father until it could verify he was drug free.

A year later the agency filed for termination. The petition against the father was based on the ground that the child had been in care for 14 of the last 20 months and the father had not complied with reunification services.

The district court denied the petition finding that neither grounds or best interests were met given father’s status as a nonoffending parent.

The child welfare agency appealed to the Nevada Supreme Court.

The Nevada Supreme Court noted that parents have a constitutional right to care for their children and a afforded a presumption that they are fit. The court detailed that a number of states have expressed a preference for placing the child with a nonoffending or noncustodial parent and these were based on constitutional concerns and/or statutory preferences for relative placements.

Under Nevada statute, the court can obtain jurisdiction based on abuse or neglect of a caretaker, including either parent. The Nevada Supreme Court noted the court cannot go further to require a case plan or deny placement to a parent who has not abused or neglected the child.

The agency argued on appeal that dependency jurisdiction was proper because of the father’s drug use. The Nevada Supreme Court found several flaws in this argument. First, substance abuse was not included in any petition against the father and he had cared for her for most of the two years of her life without incident. Second, the concerns over substance abuse only arose when the father submitted to a drug test before the protective hearing and before having counsel.

The Nevada Supreme Court therefore affirmed the district court order denying the termination petition.