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No. 27557
May 30, 1996, FILED
Ronald W. Rovacchi Las Vegas for Appellant.
Frankie Sue Del Papa Counsel General and Linda C. Anderson Deputy Counsel General Carson City for Respondent.
Steffen C.J. We concur: Springer J. Rose J. SHEARING J. with whom YOUNG J. joins dissenting.
The Hon. Justice Steffen

Appellant Cherrel A. Montgomery challenges the district court's order terminating her parental rights. Cherrel contends that the district court lacked the requisite jurisdictional and dispositional grounds to terminate her rights as a parent. We agree and reverse.


Vanessa Nicol Montgomery was born to Cherrel on September 10 1989 in Yakima Washington. *fn1 In February 1993 Cherrel and then three-year-old Vanessa moved to Las Vegas.

Clark County Child Protective Services ("CCCPS") first became involved with Cherrel and Vanessa on May 7, 1993. Police officers responding to a family fight call at the apartment where Vanessa was living with Cherrel and her boyfriend Rob Coleman took Vanessa to Child Haven because Cherrel was intoxicated and unable to care for the child. As a result of Cherrel's cooperation with CCCPS a case officer determined that family preservation was the best approach and involved Cherrel in Home Base Family Services ("Home Base") for Counseling on issues of parenting and alcohol abuse. *fn2 Additionally Cherrel left her boyfriend and found a place to live. Vanessa was returned to Cherrel's custody.

On June 10,1993 Vanessa was taken to Clark County Juvenile Hall after she was found wandering around her apartment complex and police were unable to locate Cherrel. The mother had left Vanessa with a babysitter and the child wandered away from the sitter's apartment.Candace Bennett a protective officer with Family Youth Services ordered Cherrel to secure appropriate supervision for Vanessa and referred the case to Cherrel's ongoing caseworker with a recommendation that Cherrel continue with family preservation Counseling. Again Vanessa remained in her mother's custody.

On August 10, 1993 Cherrel was arrested for DUI while en route to pick up Vanessa at a day care center and Vanessa was transported to Child Haven. The following day Cherrel voluntarily admitted herself to the VITA Day Treatment Program at the Nevada Treatment Center.

After the August incident Bennett talked to both Cherrel and Vanessa. Bennett described Vanessa as very well-adjusted developed mentally and quite bonded with Cherrel. Bennett also visited Cherrel's residence and found it to be "clean and appropriate for a child." Bennett felt that alcohol was at the heart of Cherrel's problem; she also recognized that Cherrel was cooperative and seemed sincere in her desire to overcome her alcoholism. At the time Cherrel was still involved with Home Base. According to Bennett Cherrel was a good mother when sober and she would have no problem recommending that Vanessa live with her mother once the alcohol problem was resolved. However Bennett also believed that it would take long-term sobriety to demonstrate Cherrel's commitment and therefore recommended that Vanessa be made a ward of Court and placed with the Department of Child and Family Services ("DCFS").

On August 18, 1993 CCCPS filed a petition to declare Vanessa a ward of Court because Cherrel's "use of alcohol adversely affects her parenting abilities." Cherrel admitted to the allegations of the petition and on September 15, 1993 Vanessa was adjudicated a neglected child and made a ward of Court.

Linda Kennedy the DCFS social worker assigned to the case agreed that Cherrel's alcohol abuse was the main obstacle to Vanessa remaining with Cherrel. Accordingly Kennedy developed a case plan for reunification that would deal with this issue. The plan required that Cherrel: (1) remain in the VITA program to address alcohol abuse; (2) enter individual Counseling; (3) submit to random urine analyses (UAs); (4) secure a stable job; (5) attend AA meetings; (6) secure day care; and (7) pay child support.

Cherrel immediately started complying with the reunification plan. At the periodic review on February 15, 1994 Kennedy assessed Cherrel's compliance during the first six months as excellent. Although Cherrel had one relapse in November she took appropriate steps to get back on track. According to Kennedy "relapse is a part of treatment. I mean you expect people to relapse so I didn't have a problem with that." During this initial evaluative period Cherrel had regular visits with Vanessa which increased over time. On March 31, 1994 Vanessa went home with Cherrel.

Kennedy visited Cherrel's home every other month and generally found that the home was clean there was sufficient food and Vanessa was in good physical condition. However at some point Kennedy began having problems contacting Cherrel to monitor her progress. On June 6, 1994 Kennedy tried to make a home visit after receiving a call from Rob saying that Cherrel had been drinking and had left with Vanessa. When Kennedy arrived at the apartment the apartment was a "mess" and Rob told her that Cherrel was at another address. Kennedy went there and saw Cherrel's truck but was unable to locate Cherrel. Kennedy and another social worker returned to Cherrel's apartment. Although Rob initially said Cherrel was out he eventually let them enter the apartment where they found Cherrel in an apparently intoxicated state. Consequently Vanessa was removed from the home and placed in foster care.

Thereafter Cherrel wrote a letter to DCFS stating that she was no longer drinking and had left Rob. She also called and asked to talk with or see Vanessa; however this request was denied. Occasionally Kennedy received collect calls from Cherrel which she could not accept. When Kennedy tried to return the calls Cherrel either wasn't at the number or the number had been disconnected. At some point in July 1994 Cherrel disappeared. Kennedy testified that Cherrel had no contact with DCFS and provided no financial support for Vanessa from July to December 1994.

During this time Cherrel went with Rob to Texas and then to Florida. Cherrel claimed that she was sober throughout this time but was not in treatment. Eventually she decided to leave Rob and returned to Las Vegas around Thanksgiving. When she returned to Las Vegas she secured a job as a certified nurse assistant ("CNA") at Life Care Center a convalescent home.

On December 2,1994 Kennedy filed a petition to terminate Cherrel's parental rights. *fn3 The petition alleged as jurisdictional grounds neglect unfitness and failure of Parental adjustment.

Also in December Cherrel contacted Kennedy. She explained that she had been back since Thanksgiving had left Rob was now working two jobs and attending AA meetings. During this call Cherrel learned of the action to terminate her rights and expressed her intent to oppose the petition. Cherrel thereafter appeared at a hearing on February 16, 1995 to oppose the petition and Court appointed an Counsel to represent her.

A contested hearing on the termination petition was held on March 17, 1995. Kennedy testified that if Cherrel could be rehabilitated it would be best for Vanessa to be with her mother. *fn4 However based on Cherrel's prior history Kennedy concluded that Cherrel could not be rehabilitated and that further efforts by DCFS would not change Cherrel's situation because of her chronic alcoholism and Vanessa's fear of her mother's drinking.

Denise Bydlowski a licensed practical nurse and Cherrel's supervisor over a period of four months rated Cherrel as one of her best CNAs. Bydlowski said she was aware of Cherrel's problems with alcohol but that as far as she knew Cherrel was sober. *fn5 Cherrel's husband Richard James Good *fn6 testified that he is prepared both emotionally and financially for the responsibility of raising Vanessa and would be willing to adopt the child. Good is a non-drinker and also works at Life Care Center.

Cherrel explained that she has been sober since December 9, 1994. She testified that she goes to AA meetings at least every other night and has a sponsor who has been sober for thirteen years. When asked why Court should now believe that she will remain sober Cherrel responded that this time she was doing it for herself whereas before she had achieved sobriety in order to be reunited with her daughter. She asked Court to give her an opportunity to demonstrate that she could stay sober.

At the conclusion of the March 17, 1995 hearing the district court stated that jurisdictional grounds of abandonment and unfitness had been proved "without a doubt." The Court said that "to some degree" he was "impressed with the fact the mother is trying." However the Court was concerned about the damage that had already been done to Vanessa and the damage that would result if she were returned to Cherrel only to have the mother suffer another relapse. The Court explained that he was inclined to go ahead and terminate Cherrel's rights. However the Court also expressed concern that on appeal the supreme court might conclude there was not clear and convincing evidence to support the termination. Further "the mother made a promise to us. Promise was that she'd be able to resolve this matter within a short period of time. To the degree reunification could occur." Consequently the Court decided to continue the case for four months to explore whether Cherrel could "sustain an effort longer than just a few months. Even though then this Court may very well abide by its earlier decision after consideration."

Cherrel and DCFS entered into a revised case plan on April 27, 1995. Under the revised case plan Cherrel had to: (1) attend Counseling to deal with patterns of relapse; (2) submit to random UAs; (3) attend AA meetings at least three times per week; (4) attend parent training classes; (5) pay child support of $100 per month; and (6) provide a background check on Mr. Good.

The hearing continued on July 14 1995. Kennedy testified that Cherrel had complied with the plan. Although Cherrel had attended only two drug Counseling sessions this was because she had to wait for an opening in the program. DCFS had requested eight UAs all of which were clean. Kennedy had verified at least fifteen AA meetings per month. Cherrel was on a waiting list for parenting classes because the classes required that the child be in the home. Cherrel had paid the required support and the background check on Good indicated no criminal history. Kennedy also visited the home which was clean.

Despite Cherrel's compliance with the revised reunification program Kennedy testified that she remained concerned about a relapse based on Cherrel's history. Consequently she still recommended termination.

Jacqueline Harris a mental health Counselor at DCFS also testified. Harris had six sessions with Vanessa since April 25, 1995. Vanessa had expressed fear and insecurity when asked about living with her mother. Harris diagnosed Vanessa as suffering from chronic post-traumatic stress requiring a high level of care in a structured nurturing environment. She explained that if reunification were attempted it would be traumatic at first for Vanessa and would have to proceed at Vanessa's pace. Harris opined that such a reunification would take at least six months to complete. Finally Harris testified that if there were a reunification a relapse on Cherrel's part would have a "severe" impact on Vanessa.

Cherrel testified that she was still doing well at work and that she was attending AA. She explained that she has learned to deal with stress by talking to her AA sponsor or a Counselor rather than drinking. She testified that in the next month she would begin paying the arrearage in support.

At the conclusion of the July 14 hearing the district court decided to terminate Cherrel's parental rights. The Court was still concerned about a relapse and felt that Vanessa deserved some sort of permanency in her life:

Now is the time to say I have to look after Vanessa. That my--my concern here is not the success or the failures of this mother. My concern here must be to protect Miss Vanessa. Vanessa has moved on in her life. She has found a stable placement. She has in fact found a family. A family who loves her provides her with everything that she needs to a child that has high needs. It very well may be that--that the mother has succeeded but so long as there is any risk.

Accordingly the district court then concluded that jurisdictional grounds of unfitness and failure of parental adjustment had been demonstrated by clear and convincing evidence and that termination was in Vanessa's best interest.

On July 27, 1995 the district court entered its findings of fact conclusions of law and order terminating parental rights. The district court found that Cherrel was an unfit parent had placed Vanessa at risk and had failed to adjust her situation. The conclusions of law also set forth abandonment as a basis for the termination.


Cherrel contends that there was insufficient evidence to support a termination based on abandonment unfitness or failure of parental adjustment. *fn7 We agree.

The power to terminate parental rights is an "awesome power." Champagne v. Welfare Division 100 Nev. 640 645 691 P.2d 849 853 (1984). It is tantamount to a civil death penalty. Drury v. Lang 105 Nev. 430 433 776 P.2d 843 845 (1989). Consequently actions of this nature and severity must be closely scrutinized. Kobinski v. State 103 Nev. 293 296 738 P.2d 895 897 (1987). However we will uphold termination orders if they are based on substantial evidence and will not substitute our judgment for that of the trial Court who hear and observe the witnesses. Id. (citations omitted).

In order to terminate a parent's rights both jurisdictional and dispositional grounds must be clearly and convincingly satisfied. The jurisdictional aspect of an action for termination involves a specific fault or condition directly related to the parent; whereas the dispositional aspect of the action focuses on the best interest of the child. Champagne 100 Nev. At 646-47 691 P.2d at 854. As previously indicated and repeated for purposes of emphasis both grounds must be established by clear and convincing evidence. Id. at 648 691 P.2d at 854.


The term "abandonment of a child" as used in NRS 128.105 is defined as "any conduct of one or both parents of a child which evinces a settled purpose on the part of one or both parents to forego all parental custody and relinquish all claims to the child." NRS 128.012(1). Intent is the decisive factor in abandonment and may be shown by the facts and circumstances. Smith v. Smith 102 Nev. 263 266 720 P.2d 1219 1221 (1986). However a presumption of abandonment arises when "a parent . . . leave[s] the child in the care and custody of another without provision for his support and without communication for a period of 6 months . . . ." NRS 128.012(2).

In the present case it is undisputed that Cherrel was out of contact for less than six months. Thus the statutory presumption is inapplicable. Additionally our review of the record demonstrates anything but a settled purpose on Cherrel's part to forego all parental custody and relinquish all claims to Vanessa. Prior to her absence Cherrel made significant strides to overcome her problems with alcohol. It appears that her absence was in part due to a belief that she would be unable to regain custody of Vanessa; however during that time she made several unsuccessful attempts to contact DCFS. When Cherrel returned to Nevada she immediately obtained suitable employment and housing. She began attending AA meetings. She also contacted DCFS and when informed of the action to terminate her rights as a parent Cherrel made it abundantly clear that she would oppose the petition. She appeared at all hearings and complied with the revised case plan. The evidence substantially indicates that Cherrel intended to maintain a relationship with Vanessa and fight to regain custody of her daughter. Under these circumstances we conclude that there was not clear and convincing evidence to support a jurisdictional finding based on abandonment.


The term "unfit parent" as used in NRS 128.105 is defined as "any parent of a child who by reason of his fault or habit or conduct toward the child or other persons fails to provide such child with proper care guidance and support." NRS 128.018. Pursuant to NRS 128.106 certain conditions "diminish suitability as a parent " including:

4. Excessive use of intoxicating liquors controlled substances or dangerous drugs which renders the parent consistently unable to care for the child.

8. Inability of appropriate public or private agencies to reunite the family despite reasonable efforts on the part of the agencies.

In the past we have recognized that "all parents are guilty of failure to provide proper care on occasion; and a parent does not deserve to forfeit the sacred liberty right of parenthood unless such unfitness is shown to be severe and persistent and such as to render the parent unsuitable to maintain the parental relationship." Champagne 100 Nev. at 648 691 P.2d at 855 (footnote omitted) (emphasis added). The term "unsuitable" describes "a parent who by reason of persistent fault or state of incapacity deserves to have his or her parental rights terminated or who must sacrifice such parental rights in the interest of the child by reason of irremediable inability to function as a proper and acceptable parent." Id. at 648 n.5 691 P.2d at 855 n.5 (emphasis added).

After reviewing the record in the present case we are unable to conclude that there was clear and convincing evidence of Cherrel's unfitness. Every social worker involved with this case identified Cherrel's alcoholism as the sole issue bearing on Cherrel's suitability as a mother. It is uncontroverted that Cherrel is a chronic alcoholic. What is controverted is whether her condition is irremediable. Kennedy testified that in her opinion Cherrel would not be able to maintain her sobriety. This conclusion is belied by the record; in particular by Cherrel's conduct since December 1994. Once again we note that Cherrel has a stable job where she has been successful. She has married a man who has a stable job no criminal background and does not drink. When given an additional four months to demonstrate her commitment to remaining sober Cherrel fully complied with the revised case plan. Alcoholism is a devastating disease with tragic consequences for both alcoholics and their families and friends. Here however we are faced with a mother who although struggling has made significant progress. In light of the total record we are simply unable to conclude that Cherrel's condition was irremediable. In fact her recent conduct demonstrates otherwise.

Failure of Parental Adjustment

"Failure of parental adjustment" as used in NRS 128.015 arises

when a parent or parents are unable or unwilling within a reasonable time to correct substantially the circumstances conduct or conditions which led to the placement of their child outside of their home notwithstanding reasonable and appropriate efforts made by the state or a private person or agency to return the child to his home.

NRS 128.0126. Although failure of parental adjustment may provide a jurisdictional ground for termination "it is fraught with difficulties and must be applied with caution." Champagne 100 Nev. at 652 691 P.2d at 857. The task in failure to adjust cases is to realistically evaluate the parent's efforts to adjust "circumstances conduct or conditions" within a reasonable amount of time to justify the child's return home. The main concern is permanency of adjustment--a child should not be held in limbo indefinitely. Id. at 651 691 P.2d at 857.

We agree with the district court's concern for the amount of time that Vanessa has been in Court's custody. However we are disturbed by the district court's decision to give Cherrel four months to demonstrate that she could remain sober and thereafter concluding that her full compliance with the revised case plan was insufficient to demonstrate she could remain sober. During the approximately twenty-two months (September 1993 to July 1995) that Vanessa was made a ward of Court there was a five-month period (July to December 1994) where Cherrel did not make efforts to adjust and a three-month period (January to March 1995) where Cherrel made partial efforts to adjust; otherwise Cherrel made substantial efforts to adjust.

The present case is completely unlike that of Kobinski v. State 103 Nev. 293 738 P.2d 895 (1987) wherein this court upheld the termination of a mother's parental rights for inter alia failure of parental adjustment despite evidence that the mother had found employment a home a fiancée and had conquered her drinking problem. In Kobinski the mother had made this progress only after ten years of frequent state intervention during which time she completely failed to meet minimal requirements to retain custody of her children. As noted above Cherrel's situation is much different.

In light of the total record we are unable to conclude that Cherrel has reached the point where society must give up on her motherhood. See Champagne 100 Nev. at 651 691 P.2d at 857. We further conclude that there was not clear and convincing evidence that Cherrel had failed within a reasonable amount of time to correct the condition (her drinking) which led to Vanessa's removal.

Because none of the jurisdictional findings were supported by clear and convincing evidence we conclude that the district court erred in finding jurisdictional grounds for termination of Cherrel's parental rights. Therefore we need not address the district court's findings with respect to dispositional grounds for termination. See id. at 647 691 P.2d at 854.

We note however that the record indicates Vanessa still loves Cherrel and wants to visit her although Vanessa is afraid to live with Cherrel because of Cherrel's drinking problem. Testimony during the second hearing indicates that reunification would be possible but that it must progress at a pace consistent with Vanessa's ability to handle such a transition without undue trauma. We conclude that Cherrel deserves a chance to show her daughter that she can remain sober and care for her. *fn8 We emphasize however that we fully respect and encourage whatever measures may be necessary to attempt a reunification that will bless rather than injure the long-suffering child.


For the reasons set forth above we conclude that jurisdictional grounds for termination were not proved by clear and convincing evidence. Vanessa shall remain in the custody of the district court while DCFS develops a plan to reunify Cherrel and Vanessa if at all possible.

Accordingly we reverse the termination of Cherrel's parental rights and remand the case to the district court for further proceedings.

Steffen C.J.

We concur:

Springer J.

Rose J.

Dissenting: The Hon .Justice Shearing

I dissent because I believe that there was sufficient evidence to support the trial court's decision. On appeal our review is limited to determining whether there was clear and convincing evidence to support the judgment. Kobinski v. State 103 Nev. 293 296 738 P.2d 895 897 (1987). This court may not substitute its own evaluation of the evidence for that of the district court where the district court had an opportunity to hear the witnesses and Court their demeanor. Id.

I sympathize with the majority view that Vanessa's mother has valiantly attempted to conquer her alcoholism and to act as a mother to Vanessa. However she has also frequently lapsed and disappeared from Vanessa's life for months at a time. Termination of parental rights cases in which the parent is struggling with substance abuse are some of the most difficult. Often the parent truly wants to be a good parent and can be one for awhile but then relapses into a state in which the drugs or alcohol have greater importance than the child. The child is then abandoned. The question becomes how long is it fair to the child to continue in a life of instability and periodic abandonment? This is the difficult question with which a district court must wrestle. The district court is in a better position to make that determination than this court.

I do not agree that there was insufficient evidence of parental unfitness. In May 1993 police officers responded to a call concerning a family fight. Vanessa was found with bruises on her face and legs; her mother was so intoxicated she was unable to care for Vanessa. Vanessa was taken to Child Haven. At first Vanessa's mother denied having a drinking problem but smelled of alcohol while making this declaration. She eventually admitted that she had a drinking problem and was referred for Counseling on issues of parenting and alcohol. Vanessa was returned to her mother's home. In June 1993 four-year-old Vanessa was found wandering around her apartment complex while her mother was out drinking and gambling. Vanessa was still allowed to remain in her mother's home. In August 1993 Vanessa's mother was arrested for DUI while en route to pick up Vanessa from a day-care center.

After this incident in September 1993 Vanessa was made a ward of the State because she was at risk due to her mother's ongoing drinking problem. Vanessa's mother admitted in court that her use of alcohol adversely affected her parenting abilities. The Department of Child and Family Services (DCFS) developed a case plan and Vanessa's mother generally complied for a few months. She had a relapse in November but she took appropriate steps to resume her compliance. In March 1994 Vanessa was returned to her mother's home. In June the DCFS caseworker received a call that Vanessa was in danger because her mother was drunk. After an extensive search the caseworker found Vanessa with her mother who was intoxicated. Vanessa expressed relief that the caseworker had come for her. Vanessa was returned to a foster home. The caseworker was repeatedly unable to reach Vanessa's mother and sometime in July Vanessa's mother disappeared. It was later discovered that she had moved to Texas and then Florida. Vanessa's mother had no more contact with the DCFS until December 1994. In December after there had been no contact for six months the DCFS filed the petition to terminate parental rights.

Later in December Vanessa's mother contacted DCFS to inform them that she was employed and attending AA meetings. She stated that she had been in the area for over a month but had failed to contact DCFS or attempt to contact Vanessa. In March 1995 a contested termination hearing was held in March 1995. The two Child Protective Service caseworkers who had the initial contacts with Vanessa and had unsuccessfully tried to work with Vanessa's mother testified at the hearing. The DCFS caseworker testified regarding her experience with Vanessa's mother. A former foster parent and the present foster parent of Vanessa a registered nurse specializing in pediatric emergency nursing testified about the problems that Vanessa had with insecurity nightmares screams in her sleep and emotional needs. The foster mother described how Vanessa was particularly needy and required constant reassurance that her foster family would be there for her. Vanessa told the family that she wanted to stay with them "forever and forever." The foster mother testified as follows:

The responses that I get from Vanessa are that she wants to visit her mother at the welfare office but she said to me on many occasions she does not want to live with her mother. That she makes statements such as her mother drinks and that she fights. She says things such as My mother says she will stop drinking but she lies.

She has said many, many times over to me that there were times when her mother would not wake up. There was one instant she was talking with my children telling them that there was a cup of milk or whatever they lived in a home with a lot of bugs and that she was drinking a glass of milk and a bug got on her face and she couldn't wake her mother up and she was scared.

Vanessa's mother and her new husband testified as to the improvements Vanessa's mother had made in her life.

At the conclusion of the March hearing the district Court stated that if the best interests of the child were the only issue there would be no question that he would grant termination. Nevertheless he continued the hearing for four months to monitor the mother's actions and then to receive additional testimony.

In July the hearing continued and a mental health Counselor testified that she had evaluated Vanessa; she concluded that Vanessa suffered from chronic post-traumatic stress and needed a high level of structured care and a safe nurturing environment. The Counselor testified that if reunification with her mother were commenced and the mother had a relapse the impact on Vanessa would be severe. Both Vanessa's mother and the DCFS caseworker testified that a case plan had been developed after the first hearing in March. Vanessa's mother had maintained sobriety and had complied with all of the Counseling requirements to the extent possible during the intervening four months.

The district Court found that there was clear and convincing evidence that Vanessa's mother was unfit and unable to adjust as a parent and that Vanessa's best interests would be served by terminating her mother's parental rights. It does seem somewhat unfair for the Court to have given the mother an extra four months to show her stability and then when she did so demonstrate terminate her rights anyway. Nevertheless the evidence of Vanessa's mother's chronic problem was in the record and even though she had made significant progress the evidence of frequent prior relapses is sufficient to conclude that the problem was irremediable. Moreover the Court was particularly concerned with Vanessa's best interests her two years of instability her need for security and the devastating consequences to her if her mother relapses. There may be a legitimate difference of opinion as to which course is in Vanessa's best interests but this court should not substitute its own judgment for that of the district court.

Shearing J.

I concur:

Young J.

court further stated that this court "may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Id.; see also NRS 233B.135(3). Furthermore this court must "affirm the decision of the administrative agency on questions of fact if the decision is supported by substantial evidence in the record." SIIS v. Thomas 101 Nev. 293 295 701 P.2d 1012 1014 (1985).

Accordingly because the present issue deals with a question of fact our review is limited to determining whether the appeals officer's decision was supported by substantial evidence in the record.

"Substantial evidence has been defined as that which 'a reasonable mind might accept as adequate to support a conclusion.'" State Emp. Security v. Hilton Hotels 102 Nev. 606 608 729 P.2d 497 498 (1986) (citing Richardson v. Perales 402 U.S. 389 28 L. Ed. 2d 842 91 S. Ct.1420 (1971)).

In the present case the appeals referee made the following findings of fact: (1) the preponderance of the evidence establishes that hair drug testing done properly is an accepted form of drug testing; and (2) the testimony indicates that Holmes' hair drug testing was done properly. These findings of fact were subsequently adopted in whole by the Board of Review in affirming the appeals referee's decision.

Although we recognize that innovative scientific technologies are always susceptible to criticism our review of the record indicates that the Board of Review's decision was supported by substantial evidence. Consequently we must reverse the district court's order and reinstate the Board of Review's decision.

In the present case the appeals referee based her decision that RIA testing was an acceptable manner of drug testing on the holding in United States v. Medina 749 F. Supp.59 (E.D.N.Y. 1990) the testimony of two experts and scientific journals presented by appellants. Considered as a whole we conclude that this evidence satisfies this court's definition of substantial evidence. See Hilton Hotels 102 Nev. at 608 729 P.2d at 498.

In Medina Court had to determine whether RIA hair analysis was an acceptable form of drug testing and whether a positive RIA test warranted revocation of an individual's probation. Medina 749 F. Supp. at 60. The Medina court stated that "[a] court should take judicial notice of the relevant body of scientific literature to assist it in evaluating advances in scientific techniques such as RIA hair analysis." Id. at 61. The Medina court further stated that "extensive scientific writings on RIA hair analysis establishes both its reliability and its acceptance in the field of forensic toxicology when used to determine cocaine use." Id. (citing Arnold Radioimmunological Hair Analysis for Narcotics and Substitutes 25 J. Clinical Chemistry and Clinical Biochemistry 753 (1987) (hair analysis is an effective method for detecting narcotics); Balabanova Brunner & Nowak Radioimmunological Determination of Cocaine in Human Hair 98 Z Rechtsmed.229 (1987) (RIA hair analysis is an accurate method for determining the presence of cocaine); Baumgartner Baer Hill & Blahd Hair Analysis for Drugs of Abuse in Parole/Probation Populations National Institute for Justice Final Report (grant 86-IJ-CX-0029) (study compared the results of RIA hair analysis with urinalysis and determined that hair analysis provided more accurate detection rates); Baumgartner Hill & Blahd Hair Analysis for Drugs of Abuse 34 J. Forensic Sciences 1433 (1989) (hair analysis is an effective means for identifying drug abusers); Graham Koren Klein Schneiderman & Greenwald Determination of Gestational Cocaine Exposure by Hair Analysis 262 J.A.M.A. 3328 (1989) (RIA hair analysis may remedy the disadvantages of standard blood and urine tests); Harkey & Henderson Hair Analysis for Drugs of Abuse in 2 Advances in Analytical Toxicology 298 (R. Baselt ed. 1989) (hair analysis can provide a more accurate history of drug use than conventional urinalysis)). The Medina court concluded that "the results of the hair analysis report are accepted as some proof that probationer violated the conditions of his probation." Medina 749 F. Supp. At 62.

The first expert witness San Remo presented at the hearing before the appeals referee was Chris Berka ("Berka"). Berka was vice-president of marketing for Psychemedics Corporation ("Psychemedics") the company that developed RIA testing procedures trained San Remo's personnel and conducted the actual testing of the hair samples. Berka who was also a research scientist and a candidate for a Ph.D. in neurosciences at the University of California San Diego testified that a recent report concluded that Psychemedics' RIA testing was 100 percent accurate in avoiding false positives on 400 "blind samples" submitted by an independent quality assurance organization. San Remo's second expert witness was Dr. Arthur McBay ("McBay"). McBay was a research toxicologist a Professor Emeritus School of Pharmacology and an adjunct professor Department of Pathology at the University of North Carolina. Although McBay recognized the potential for inaccuracies in all drug testing procedures including blood and urine testing he testified that the RIA drug testing methodology employed by San Remo was widely accepted in the scientific community.

In addition to the plethora of articles cited by the Medina court the record further reflects that the appeals referee relied upon several articles from various scientific and medical journals to support her conclusion that RIA testing was a valid and reasonable drug testing methodology.

Although not necessary for our conclusion that the appeals referee's finding was supported by substantial evidence we note that our ruling is consistent with several recent cases decided by other courts regarding the veracity of RIA test results. See Bass v. Florida Dep't of Law Enforcement 627 So. 2d 1321 1322 (Fla. Dist. Ct. App. 1993) (concluding that RIA analysis of hair is generally accepted in the scientific community); In re Adoption of Baby Boy L 157 Misc. 2d 353 596 N.Y.S.2d 997 1000 (N.Y. Fam. Ct.1993) (concluding that the process of RIA testing in human hair when used in conjunction with GC/MS confirmatory testing "has been accepted by the scientific community as a reliable and accurate method of ascertaining and measuring the use of cocaine by human subjects.").

We acknowledge that there are arguably no certainties in science. See Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579 113 S. Ct.2786 2795 125 L. Ed. 2d 469 (1993). Nonetheless we conclude that RIA testing especially when coupled with a confirmatory GC/MS test is now an accepted and reliable scientific methodology for detecting illicit drug use. Accordingly we conclude that the administrative agency's factual finding was supported by substantial evidence and that the district court erroneously substituted its own judgment for that of the administrative agency regarding a question of fact. See Hilton Hotels 102 Nev. at 607-08 729 P.2d at 498.

Whether Holmes' violation of San Remo's drug-free workplace policy constitutes misconduct

Pursuant to NRS 612.385 a person is ineligible for unemployment benefits if he has engaged in misconduct. *fn1 This court has stated that an employee is guilty of "misconduct connected with his work" when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer or when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer.

Clevenger v. Employment Security Dep't 105 Nev. 145 150 770 P.2d 866 868 (1989) (quoting Branch v. Virginia Employment Comm'n 219 Va. 609 249 S.E.2d 180 182 (Va. 1978)).

This court has indicated that when analyzing the concept of misconduct the trier of fact must consider the legal definition in context with the factual circumstances surrounding the conduct at issue. Garman v. State Employment Security Dep't 102 Nev. 563 565 729 P.2d 1335 1336 (1986). This court has stated that "questions of statutory interpretation are subject to de novo review by this court on appeal." SIIS v. Snyder 109 Nev. 1223 1227 865 P.2d 1168 1170 (1993). However "an agency's conclusions of law which are closely related to the agency's view of the facts are entitled to deference and should not be disturbed if they are supported by substantial evidence." SIIS v. Khweiss 108 Nev. 123 126 825 P.2d 218 220 (1992).

In the present case the appeals referee determined that Holmes' failure of her RIA screening and GC/MS confirmatory test constituted misconduct pursuant to NRS 612.385 thereby warranting a denial of her unemployment benefits. Although this court has never specifically addressed the present issue we have on several occasions examined employers' efforts to ensure that their employees are drug-free. See Blankenship v. O'Sullivan Plastics Corp. 109 Nev. 1162 866 P.2d 293 (1993); Clevenger 105 Nev. at 145 770 P.2d at 866; Fremont Hotel v. Esposito 104 Nev. 394 760 P.2d 122 (1988).

In Blankenship an at-will employee was terminated for refusing to sign a substance abuse employee agreement. Blankenship 109 Nev. at 1163 866 P.2d at 293. The employee contended that a provision in the agreement violated his constitutional rights against self-incrimination and was therefore in violation of the public policy exception to the at-will employment doctrine. Id. at 1163 866 P.2d at 294. We affirmed the propriety of the employee's dismissal which was based solely on "his noncompliance with company policy i.e. refusing to sign the agreement." 109 Nev. at 1163-64 866 P.2d at 294. The Blankenship court stated that "we are unaware of any prevailing public policy against employers seeking to provide safe and lawful working conditions through testing programs designed to identify and eliminate the use of illicit drugs and alcohol." Id. at 1166 866 P.2d at 295.

In Clevenger an employee who was involved in an industrial accident was ordered per company policy to submit to a drug screening. Clevenger 105 Nev. at 147 770 P.2d at 867. The results of the drug screening were positive showing the presence of THC metabolites an element of marijuana. Id. The employee was later allowed to return to work subject to random drug tests. Id. at 148 770 P.2d at 867. The results from a subsequent random drug test were positive and the employee was terminated. Id. The employee's request for unemployment benefits was denied by NESD because she was terminated for misconduct within the meaning of NRS 612.385. Id. In affirming the denial of the employee's unemployment benefits due to her misconduct connected with work we stated:

When off-the-job conduct violates an employer's rule or policy such as prohibiting the use of marijuana an analysis must be made to determine if the employer's rule or policy has a reasonable relationship to the work to be performed; and if so whether there has been an intentional violation or willful disregard of that rule or policy.

Id. at 150 770 P.2d at 868.

In Fremont Hotel an employer suspected an employee of being under the influence and ordered her to undergo an immediate drug test. Fremont Hotel 104 Nev. at 395 760 P.2d at 122-23. When the employee refused to undergo the drug test the employee was terminated. Id. at 395 760 P.2d at 122. The Board of Review subsequently denied the employee's unemployment benefits because she was fired for misconduct i.e. her refusal to take an immediate drug test. Id. at 395 760 P.2d at 123. We affirmed the Board of Review's decision to deny unemployment benefits to the employee because she was discharged for misconduct pursuant to NRS 612.385. Id. at 398 760 P.2d at 124. We stated that "misconduct may be established by 'a deliberate violation or disregard on the part of the employee of standards of behavior which his employer has the right to expect.'" Id. at 397 760 P.2d 123-24 (quoting Barnum v. Williams 84 Nev. 37 41 436 P.2d 219 222 (1968)); see also Lellis v. Archie 89 Nev. 550 553 516 P.2d 469 470-71 (1973) (concluding that misconduct is generally understood as any improper conduct or behavior).

Admittedly the facts of the cases described above are somewhat different from the facts of the present case. However we conclude that the cases illustrate this court's general philosophy regarding illicit drugs in the workplace: employers have compelling reasons both economic and social to test their employees for drugs.

We conclude that San Remo's drug-free policy had a reasonable relation to the work performed by Holmes. The record indicates that Holmes was entrusted with San Remo's computer system its Money Club and oftentimes handled large amounts of San Remo's cash. Additionally Holmes' job duties included a substantial amount of personal interaction with San Remo's guests. Accordingly we conclude that San Remo had a justifiable reason for demanding that Holmes refrain from using cocaine.

We further note that Holmes intentionally violated San Remo's drug-free workplace policy. Holmes was given ninety days notice that she would be tested for drug use. The ninety-day warning allowed Holmes the opportunity to comply with the company policy had she abstained from using cocaine. Yet the RIA screening and GC/MS test revealed that Holmes used cocaine within the preceding ninety-day period. Accordingly we conclude that Holmes' ingestion of cocaine within that ninety-day period was an intentional and willful violation of a valid and reasonable company policy.

Based upon our earlier conclusion that RIA testing coupled with a confirmatory GC/MS test is a valid drug-testing methodology we conclude that Holmes' ingestion of cocaine subsequently proven by the RIA screening and confirmatory GC/MS test constitutes misconduct within the definition of NRS 612.385. Therefore we conclude that the appeals referee's conclusion of law should not have been disturbed by the district court because it was amply supported by evidence that Holmes was terminated for misconduct due to her violation of San Remo's drug-free workplace policy.

We have considered Holmes' other contentions on appeal and conclude that they are without merit.


For the reasons stated above we reverse the district court's order reversing the Board of Review's decision and reinstate the board of review's decision to deny Holmes unemployment benefits.

Steffen C.J.

Young J.

Springer J.

Shearing J.

Rose J.


*fn1 Cherrel has two other children who are living with their respective fathers in Washington. According to Cherrel these children were taken from her because of her drinking but Washington protective services did not attempt to reunite her with her children and at the time Cherrel thought the children would be better off with their fathers.

*fn2 Cherrel started drinking when she was fifteen years old.

*fn3 The petition also sought the termination of the father's parental rights. Cherrel identified Thomas Thompson as the father; however their relationship consisted of a single evening and DCFS has been unable to locate him. The father's rights are not at issue in this appeal.

*fn4 Vanessa had expressed love for her mother and a desire to visit her but did not want to live with her. Kennedy explained that Vanessa might have developmental problems and needed a stable secure home environment. Kennedy also testified that Vanessa might suffer from Fetal Alcohol Syndrome. However Vanessa has not been tested for the condition and there was no evidence other than Kennedy's testimony that Vanessa actually suffers from FAS.

*fn5 Life Care Center conducts random drug testing of its employees.

*fn6 Cherrel and Good were married on February 14 1995. They had known each other for approximately eighteen months prior to the marriage.

*fn7 NRS 128.105 sets forth the basic considerations relevant to determining whether to terminate parental rights. It provides in relevant part:

An order of Court for termination of parental rights must be made in light of the considerations set forth in this section and NRS 128.106 128.107 and 128.108 with the initial and primary consideration being whether the best interests of the child would be served by the termination but requiring a finding that the conduct of the parent or parents demonstrated at least one of the following:

  1. Abandonment of the child;
3. Unfitness of the parent;
  1. Failure of parental adjustment;
  1. Only token efforts by the parent or parents:
  1. To support or communicate with the child;
  1. To avoid being an unfit parent; or
  1. To eliminate the risk of serious physical mental or emotional injury to the child; or
  1. With respect to termination of the parental rights of one parent the abandonment by that parent.
*fn8 Because of the pending termination petition Cherrel has not been allowed contact with Vanessa since December 1994.

----------------------------------DISSENTING NOTES (SHEARING)-----------------------

*fn1 Specifically NRS 612.385 states that [a] person is ineligible for [unemployment] benefits for the week in which he has filed a claim for benefits if he was discharged from his last or next to last employment for misconduct connected with his work and remains ineligible until he earns remuneration in covered employment equal to or exceeding his weekly benefit amount in each of not more than 15 weeks thereafter as determined by the administrator in each case according to the seriousness of the misconduct.