In re Parental Rights as to A.P.M. , 2015 NV 66 ( 2015 )


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  •                                                     131 Nev., Advance Opinion
    IN THE SUPREME COURT OF THE STATE OF NEVADA
    we
    IN THE MATTER OF THE PARENTAL                        No. 64214
    RIGHTS AS TO A.P.M. AND E.M.M.
    ARLI P.M.,
    Appellant,                                                   PILED
    vs.
    STATE OF NEVADA DEPARTMENT
    SEP 1 0 2015
    OF FAMILY SERVICES; AND A.P.M.                         Gr   At 4.
    t/E,4
    OQUR
    AND E.M.M., MINORS,                                    BY
    EiiiteraYircIt7i
    Respondents.
    Appeal from a district court order terminating parental rights.
    Eighth Judicial District Court, Family Court Division, Clark County;
    Frank P. Sullivan, Judge.
    Affirmed.
    David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy
    Special Public Defender, Clark County,
    for Appellant.
    Steven B. Wolfson, District Attorney, and Janne M. Hanrahan and Ronald
    L. Cordes, Deputy District Attorneys, Clark County,
    for Respondent State of Nevada Department of Family Services.
    Legal Aid Center of Southern Nevada and Mary F. McCarthy and Barbara
    E. Buckley, Las Vegas,
    for Respondents A.P.M. and E.M.M.
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    BEFORE THE COURT EN BANC.
    OPINION
    By the Court, GIBBONS, J.:
    In this appeal, we consider two issues of first impression
    arising from a termination of parental rights. First, we consider whether
    the district court may terminate the parental rights of a parent who has
    completed a case plan for reunification. Second, we consider whether the
    district court must wait the entire 20 months before applying both the
    presumption of token efforts in NRS 128.109(1)(a) and the presumption
    that termination of parental rights is in the best interest of the child in
    NRS 128.109(2).
    We first conclude that the district court may terminate the
    parental rights of a parent who has completed his or her case plan for
    reunification, if termination is otherwise warranted under NRS 128.105.
    Second, we conclude that the district court is not required to wait the
    entire 20 months before applying the presumptions found in NRS
    128.109(1)(a) and NRS 128.109(2), as long as the child has been removed
    from his or her parents' home pursuant to NRS Chapter 432B for at least
    14 months during any consecutive 20-month period. Having resolved
    these legal issues, we further conclude that the record contains
    substantial evidence supporting the district court's decision to terminate
    appellant's parental rights.
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    FACTUAL AND PROCEDURAL BACKGROUND
    Appellant Arli M. and his wife Abigail M. had three children
    together: J.M., 1 A.P.M., and E.M.M. From July 2006 to November 2011,
    seven separate incidents occurred in which one of the three children
    swallowed foreign objects, such as coins, magnets, and batteries. All of
    these swallowing incidents happened while Arli was at work and Abigail
    was at home with the children. On the latest occasion, doctors had to
    surgically remove a large battery that was lodged in E.M.M.'s throat.
    Following E.M.M.'s surgery, the doctors grew concerned that Abigail was
    forcing her children to swallow foreign objects. The doctors explained that
    three-year-old E.M.M. swallowing the large battery was the equivalent of
    an adult swallowing a golf ball, making it highly unlikely that he
    swallowed it on his own. Due to their concerns, the doctors initiated a
    child protective services investigation.
    In November 2011, the Clark County Department of Family
    Services (DFS) removed A.P.M. and E.M.M. from their parents' home
    pursuant to NRS Chapter 432B. In July 2012, the juvenile court entered
    an order granting DFS legal custody of the children, and the children were
    placed in foster care. Arli and Abigail were issued case plans containing
    objectives for them to complete in order to regain custody of their children.
    Arli's case plan required that he take parenting classes and participate in
    counseling. Almost immediately, Arli successfully completed the
    parenting classes and was participating in the required counseling.
    'J.M. died on October 10, 2006, from undetermined causes.
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    Despite these efforts, however, the juvenile court reviewed Arli's and
    Abigail's progress and determined that the children should remain in
    foster care.
    On December 6, 2012, DFS filed a petition in the district court
    to terminate the parental rights of Arli and Abigail pursuant to NRS
    Chapter 128. On April 10, 2013, the district court began a five-day
    evidentiary hearing on the matter. Evidence presented at the hearing
    showed that Arli took almost no action to ensure the safety of his children
    after any of the seven swallowing incidents. Throughout the proceedings,
    Arli testified that he did not believe that Abigail was intentionally making
    their children swallow foreign objects or improperly supervising them.
    Instead, Arli claimed that the children's injuries were simply a result of
    Abigail losing focus while caring for the children.
    After the hearing, the district court granted the petition to
    terminate the parental rights of Arli and Abigail. The district court found
    that DFS established (1) parental fault by proving neglect, 2 and (2) that
    2During oral argument, both parties agreed that the district court's
    written order terminating Arli's parental rights contained discrepancies
    regarding the district court's findings of parental fault on grounds other
    than neglect. The parties claimed that the written order contained
    unintentional errors that conflicted with the district court's oral findings.
    Acknowledging these potential discrepancies, we conclude that the written
    order is controlling in this case. See Rust v. Clark Cnty. Sch. Dist., 
    103 Nev. 686
    , 689, 
    747 P.2d 1380
    , 1382 (1987).
    It is undisputed, however, that the district court found—both at the
    hearing and in its written order—parental fault based on neglect under
    NRS 128.105(2)(b). Because, as described below, we affirm the district
    court's finding of neglect, and only one parental fault ground is needed to
    continued on next page . . .
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    termination of parental rights was in the best interests of the children.
    The district court's findings regarding parental fault and the children's
    best interests revolved around the danger posed by Abigail's supervision of
    the children and Arli's failure to take protective action.
    Both parents initially appealed from the district court's order,
    but this court received a suggestion of death indicating that Abigail had
    passed away, and her appeal was dismissed. Only Arli's appeal remains.
    On appeal, Arli argues that (1) the district court should not have
    terminated his parental rights because he completed his case plan, (2) the
    district court erred in applying the presumptions in NRS 128.109(1)(a)
    and NRS 128.109(2), and (3) substantial evidence does not support the
    district court's findings of parental fault and that termination was in the
    best interests of the children.
    DISCUSSION
    Standard of review
    "A party petitioning to terminate parental rights must
    establish by clear and convincing evidence that (1) termination is in the
    child's best interest, and (2) parental fault exists." In re Parental Rights
    as to A.J.G., 
    122 Nev. 1418
    , 1423, 
    148 P.3d 759
    , 762 (2006). Termination
    of parental rights is "an exercise of awesome power." In re Parental Rights
    as to N.J., 
    116 Nev. 790
    , 795, 
    8 P.3d 126
    , 129 (2000); see also Drury v.
    . . . continued
    terminate parental rights under NRS 128.105(2), any possible
    discrepancies in the district court's written order regarding the other
    parental fault grounds are inconsequential to this case.
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    Lang, 
    105 Nev. 430
    , 433, 
    776 P.2d 843
    , 845 (1989) (holding that severance
    of the parent-child relationship is "tantamount to imposition of a civil
    death penalty"). This court closely scrutinizes whether the district court
    properly terminated the parental rights at issue. 
    N.J., 116 Nev. at 795
    , 8
    P.3d at 129. We will uphold a district court's order terminating parental
    rights when it is supported by substantial evidence. In re Parental Rights
    as to C.C.A., 128 Nev., Adv. Op. 15, 
    273 P.3d 852
    , 854 (2012).
    This appeal also raises issues of statutory interpretation.
    "The construction of a statute is a question of law, which this
    court. . . reviews de novo."   Matter of Petition of Phillip A. C., 
    122 Nev. 1284
    , 1293, 
    149 P.3d 51
    , 57 (2006). Generally, the plain meaning of the
    words in a statute should be respected. 
    Id. Thus, when
    a statute is clear
    on its face, this court will not look beyond the plain language to determine
    legislative intent. 
    Id. Prior to
    reaching the merits of the parental termination
    decision, two legal issues must be decided: (1) whether the completion of a
    case plan for reunification prohibits the district court from terminating
    parental rights, and (2) whether the presumptions found in NRS
    128.109(1)(a) and NRS 128.109(2) can be applied before a full 20 months
    has elapsed.
    Completing a case plan for reunification does not prohibit the district court
    from terminating parental rights
    Arli was given a case plan under NRS 128.0155 containing
    written conditions and obligations imposed with the primary objective of
    reunifying the family. Arli argues that the district court should not have
    terminated his parental rights because he completed this case plan. We
    disagree.
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    We hold that a completed case plan does not prohibit the
    district court from terminating parental rights if termination is otherwise
    warranted under NRS Chapter 128. NRS 128.105 sets forth grounds for
    terminating parental rights. Along with requiring a finding of parental
    fault, the statute also states that "Mlle primary consideration in any
    proceeding to terminate parental rights must be whether the best
    interests of the child will be served by the termination." NRS 128.105.
    Determining a child's best interest requires a consideration of many
    factors stemming from the "the distinct facts of each case." 
    N.J., 116 Nev. at 800
    , 8 P.3d at 133; see also NRS 128.005(2)(c) ("The continuing needs of
    a child for proper physical, mental and emotional growth and development
    are the decisive considerations in proceedings for termination of parental
    rights."). Nowhere in NRS Chapter 128, however, has the Legislature
    stated that the district court is required to find that preserving parental
    rights is in the best interest of the child if the parent has completed his or
    her assigned case plan. While a completed case plan may be persuasive
    evidence that termination of parental rights is not in the child's best
    interest, by no means does it prohibit the district court from considering
    additional factors and determining otherwise. 3
    Accordingly, we conclude that the district court was not
    prohibited from terminating Arli's parental rights even though Arli had
    completed his case plan.
    3 Similarly,nothing in NRS 128.105 prohibits the district court from
    finding parental fault if a parent has completed his or her case plan.
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    The presumptions in NRS 128.109(1)(a) and NRS 128.109(2) do not
    require that a full 20 months elapse before they apply
    NRS 128.109 sets forth presumptions that apply to findings of
    parental fault and the best interest of the child when the child has resided
    outside of the home for an extended period of time. The statute states in
    relevant part:
    1. If a child has been placed outside of his or
    her home pursuant to chapter 432B of NRS, the
    following provisions must be applied to determine
    the conduct of the parent:
    (a) If the child has resided outside of his or
    her home pursuant to that placement for 14
    months of any 20 consecutive months, it must be
    presumed that the parent or parents have
    demonstrated only token efforts to care for the
    child as set forth in paragraph (f) of subsection 2 of
    NRS 128.105.
    2. If a child has been placed outside of his
    or her home pursuant to chapter 432B of MRS and
    has resided outside of his or her home pursuant to
    that placement for 14 months of any 20
    consecutive months, the best interests of the child
    must be presumed to be served by the termination
    of parental rights.
    NRS 128.109.
    The district court applied the presumptions in NRS
    128.109(1)(a) and NRS 128.109(2) because the children were removed from
    Arli's home pursuant to NRS Chapter 432B and had remained out of his
    home for roughly 17 consecutive months at the time the termination
    hearing had commenced.
    Arli argues that the district court erred in applying these
    presumptions because the children had been out of their parents' home for
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    less than 20 months. Arli argues that even though the children had been
    placed elsewhere for over 14 months, the language in NRS 128.109, "14
    months of any 20 consecutive months," requires that the district court
    wait the entire 20 months before applying the presumptions. We disagree.
    Under the statute's plain language, the presumptions apply
    whenever a child has been removed from his or her parents' home
    pursuant to NRS Chapter 432B for at least 14 months during any
    consecutive 20-month period. We hold that if the 14-month threshold has
    been met in less than 20 months, the district court may apply the
    presumptions in NRS 128.109(1)(a) and NRS 128.109(2) without waiting
    for the entire 20 months to elapse. Indeed, waiting the additional time
    would serve no purpose. For example, in the present case, the district
    court applied the presumptions because the children had been removed
    pursuant to NRS Chapter 432B for over 17 consecutive months. Thus,
    waiting an additional 3 months—to reach a total of 20 months—before
    applying the presumptions would be unnecessary, because the 14-month
    threshold had already been satisfied. NRS 128.109(1)(a), (2). Accordingly,
    because Arli's children had been removed pursuant to NRS Chapter 432B
    for over 14 consecutive months, we conclude that the district court
    correctly applied the presumptions in MIS 128.109(1)(a) and NRS
    128.109(2).
    Substantial evidence supports termination of Arles parental rights
    With the two pressing legal issues resolved, we now turn our
    attention to whether the district court's findings of parental fault and that
    termination of parental rights was in the children's best interests were
    supported by substantial evidence. NRS 128.105. We conclude that
    substantial evidence supports these findings.
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    The district court correctly found parental fault based on neglect
    Arli contends that substantial evidence does not support the
    district court's finding of neglect. Arli argues that he could not be
    neglectful because he was not present during any of the swallowing
    incidents. To support this argument, Arli cites Chapman v. Chapman, 
    96 Nev. 290
    , 294, 
    607 P.2d 1141
    , 1144 (1980), in which this court held that "a
    finding of neglect must be based upon the treatment of the child while the
    parent has custody" and "neglect is not established when the child is left
    by the parent in an environment where the child is known to be receiving
    proper care." 4 In response, DFS argues that Arli was neglectful because
    he failed to take protective action after the seven serious swallowing
    incidents involving all three of his children.
    We conclude that substantial evidence supports the district
    court's finding of neglect. NRS 128.014(2) defines a neglected child as a
    child "[w]hose parent. . . refuses to provide proper or necessary
    subsistence, education, medical or surgical care, or other care necessary
    for the child's health, morals or well-being." Testimony during the
    evidentiary hearing showed that Arli took almost no protective action
    after repeated swallowing incidents—some of which sent his children to
    the hospital, with the most recent incident causing serious harm to one
    child. Arli's failure to take protective action shows that he "refus [ed] to
    provide proper. . . care necessary for [his children's] health" NRS
    4Arli also argues that DFS attempted to compel Abigail to admit
    that she abused the children in order to regain custody, which violated her
    Fifth Amendment right against self-incrimination. Arli does not explain,
    however, how any alleged violations of Abigail's rights apply to his case.
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    128.014(2). Further, we conclude that Arli's reliance on Chapman is
    misplaced because although Arli was not present during any of the
    swallowing incidents, he failed to leave his children "in an environment
    where [they were] known to be receiving proper 
    care." 96 Nev. at 294
    , 607
    P.2d at 1144. Accordingly, the district court correctly found parental fault
    based on neglect. NRS 128.105(2)(b).
    The district court correctly found that termination of Arles parental
    rights was in the best interests of the children
    As explained above, we concluded that the district court
    correctly applied the NRS 128.109(2) presumption that termination of
    parental rights was in the best interests of the children based on the
    length of their removal. Arli contends, however, that he rebutted the
    presumption by visiting his children, completing parenting classes, and
    participating in counseling.
    We conclude that substantial evidence supports a finding that
    Arli did not rebut the presumption that termination of his parental rights
    was in the best interests of the children. The district court heard
    extensive testimony from several witnesses, including evidence as to Arli's
    limited relationship with his children and his failure to take any
    meaningful protective action after seven serious swallowing incidents,
    which were increasing in seriousness and harm The evidence further
    established that the children did not ingest any foreign objects after they
    were placed in protective custody. Also, the children's foster parent
    testified that the children had been living with her for several months,
    that they had a close relationship, and that she wished to adopt them.
    We conclude that the sum of this evidence supports the
    district court's finding that termination of Arli's parental rights was in the
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    best interests of the children. This evidence further establishes that even
    with the death of Abigail, who was apparently the cause of the swallowing
    •   incidents, Arli is unable to protect his children from danger, swallowing tor
    otherwise.
    Accordingly, because substantial evidence supports a finding
    of parental fault and that termination of parental rights was in the best
    interests of the children, we affirm the judgment of the district court.
    J.
    Gibbons
    We concur:
    /iCAs•                        C.J.
    'esty
    Parraguirre
    J.
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    DOUGLAS, J., with whom CHERRY, J., agrees, dissenting:
    This termination of parental right's case cries out for remand
    to the district court for a new hearing as to the best interests of the
    children in light of their mother's death.
    The district court findings regarding parental fault and the
    children's best interests revolved around the danger posed by the mother,
    Abigail, and her supervision of the children, as well as their father, Arli's
    failure to take protective action.
    As to Arli, the facts establish he successfully completed his
    case plan. That is, he successfully completed parenting classes and
    participated in the required counseling prior to the district court's
    termination hearing. At the same time of the hearing, both parents
    participated and both parents initially appealed the district court's order.
    However, this court received a notice indicating that Abigail passed away
    and that the appeal was dismissed.
    I submit that "terminating parental rights is 'an exercise of
    awesome power' that is 'tantamount to imposition of a civil death penalty"
    and is subject to close scrutiny.    In the MatterS of Parental Rights as to
    A.J.G., 
    122 Nev. 1418
    , 1423, 
    148 P.3d 759
    , 763 (2006) (footnote omitted)
    (quoting In the Matter of Parental Rights as to N.J., 
    116 Nev. 790
    , 795, 
    8 P.3d 126
    , 129 (2000) (internal quotations omitted)).
    It is my belief that close scrutiny is required due to the death
    of Abigail and Arli's completion of his case plan. The district court's order
    to terminate both parents' rights was due primarily to the actions of the
    deceased mother. As such, this matter should be remanded to the district
    court for a new hearing as to the children's best interests and Arli's
    parental rights.
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    Justice requires more than a mechanical application of the
    presumptions as to the children's best interests and "token efforts" as
    related to the care of the children.
    1174
    Douglas
    I concur:
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    SAITTA, J., concurring in part and dissenting in part:
    Although I otherwise agree with the majority, I write
    separately to express my concern about whether there was substantial
    evidence to support the district court's finding of parental fault. The
    majority opinion and the district court base their decisions on the fact that
    Arli did not take what could be considered sufficient protective action to
    prevent the children's mother from forcing them to swallow foreign objects
    while he was not present. As the majority acknowledges, Arli testified
    that he did not "believe" that Abigail was intentionally making their
    children swallow foreign objects or improperly supervising them.
    Although a close call, I am not convinced that this mistaken belief and
    subsequent failure to protect, when combined with Arli's successfully
    completed case plan, amount to substantial evidence that Arli has
    "refuse[d] to provide proper or necessary subsistence, education, medical
    or surgical care, or other care necessary for the child's health, morals or
    well-being." NRS 128.014(2). Therefore, I dissent as to the majority's
    holding that substantial evidence existed supporting the district court's
    finding of the parental fault of neglect.
    J.
    Saitta
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