In re Parental Rights as to A.L. , 2014 NV 91 ( 2014 )

130 Nev., Advance Opinion 611
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 63311
RIGHTS AS TO A.L. AND C.B.,
MINORS.
KEAUNDRA D., FILED
Appellant,
NOV 1 3 2014
vs.
TN,A
CLARK COUNTY DEPARTMENT OF CI
FAMILY SERVICES, BY
CFilE
Respondent.
Appeal from a district court order terminating appellant's
parental rights as to the minor children. Eighth Judicial District Court,
Family Court Division, Clark County; Robert Teuton, Judge.
Reversed and remanded.
David M. Schieck, Special Public Defender, and Melinda E. Simpkins and
Deanna M. Molinar, Deputy Special Public Defenders, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Ronald L. Cordes, Chief Deputy District
Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANC,
OPINION
By the Court, PARRAGUIRRE, J.:
In this appeal from a district court order terminating parental
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rights, we are asked to decide whether the district court erred in relying
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on a juvenile court's determination that a minor child's injury was not
accidental, but rather was caused by appellant, the child's birth mother.
We conclude that respondent confessed error on this issue. We therefore
reverse and remand for a new trial as to appellant's parental rights.
FACTS
Appellant Keaundra D. is the mother of A.L. and C.B., the
minor children who are the subject of this proceeding. In April 2010,
respondent, the Clark County Department of Family Services (DFS),
received an anonymous call through its child abuse hotline alleging that
the children's safety was at risk because the parents used illegal drugs,
domestic violence was ongoing, and C.B.'s face had recently been burned.
At the time, A.L. was six years old and C.B. was one year old.
During an interview with a DFS investigator, Keaundra
stated that she was the only adult at home when C.B. was burned.
According to Keaundra's trial testimony, A.L. and C.B. were in the master
bedroom while she was preparing for work in the attached bathroom. She
had recently ironed her clothes and had placed the iron on her dresser.
She heard the iron fall and came out to investigate. A.L. told her that C.B.
had tried to kiss the iron.
Following this initial contact with DFS, Keaundra moved her
family to Louisiana, where her stepfather was stationed with the U.S. Air
Force. DFS characterized the move as a flight in an attempt to hide the
children from DFS. Upon learning that Keaundra had moved to
Louisiana, DFS sought help from U.S. Air Force authorities to gain
protective custody of the children. The children were removed from
Keaundra, and C.B. was taken to see Dr. Neuman, a physician in
Louisiana.
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In May 2010, DFS filed a petition for protective custody of
C.B. and A.L. under NRS Chapter 432B, alleging that Keaundra had
either physically abused or negligently supervised C.B. At a subsequent
adjudicatory hearing, the hearing master took testimony from Dr. Mehta,
a medical examiner who had reviewed photographs of C.B.'s injuries. Dr.
Mehta gave her opinion that the shape of the injury was inconsistent with
an accident and that the iron was deliberately held to C.B.'s face.
Keaundra offered a report by C.B.'s treating physician, Dr. Neuman, to
rebut Dr. Mehta's testimony. The hearing master excluded the report on
the ground that the report was not a certified copy. The hearing master
found that Keaundra physically abused C.B. and recommended sustaining
the abuse and neglect petition on that ground; the allegations concerning
drug use and domestic violence were dropped. The juvenile court affirmed
the hearing master's recommendation and concluded that the injury was
nonaccidental.
In light of these findings, Keaundra received a case plan that
required her to maintain stable housing and income, keep in contact with
DFS, and complete parenting classes. She was also required to complete a
physical abuse assessment and "be able to articulate in dialogue with the
Specialist and therapist(s) the sequence of events which result led] in
physical abuse, as sustained by the Court, and how he/she will be able to
ensure that no future physical abuse to [C.B.] occurs." One month after
giving Keaundra the case plan, DFS recommended termination of parental
rights as the goal for the children. DFS followed this recommendation
with a petition to terminate Keaundra's parental rights as to C.B. and
A.L.
At her six-month review, DFS reported that Keaundra had
completed her parenting classes, maintained housing, held regular jobs,
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and completed both her assessment and therapy. At that point, the
children had been placed with their maternal grandmother in Louisiana,
where Keaundra was also living. DFS stated that it was satisfied with
Keaundra's progress but nevertheless maintained its recommendation to
terminate her parental rights because she had not admitted that she
abused C.B., and the case plan required such an admission. DFS later
stated at trial that, with such an admission, it would not have sought
termination of parental rights.
At the next six-month review, DFS again noted that Keaundra
had completed her case plan in all other regards and that she
acknowledged that negligence and improper supervision caused C.B.'s
injury. Again, DFS maintained its recommendation to terminate parental
rights due to Keaundra's refusal to admit that she held the iron to C.B.'s
face.
In the meantime, Keaundra moved to South Carolina and was
referred to a new therapist, who was in regular contact with a DFS
caseworker. At the parental termination trial, the new therapist testified
that therapy resulted in a marked change in Keaundra's behavior and
demeanor. The therapist saw no signs that she would expect to see in an
abusive parent. She noted that despite signs of depression and anxiety at
the start of therapy, Keaundra's demeanor had substantially changed over
the course of treatment and her risk to reoffend was low.
Following the trial, the district court issued a decision
terminating Keaundra's parental rights as to C.B. and A.L. The district
court relied on the hearing master's findings, as affirmed by the juvenile
court, that Keaundra was at fault for C.B.'s injuries and that his injuries
were not accidental. Because Keaundra was unable to remedy the
circumstances, conduct, or conditions leading to C.B.'s removal, the
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district court terminated her parental rights based on token efforts, failure
of parental adjustment, and unfitness. The district court further found
that termination was in the children's best in interests. Keaundra now
brings this appeal.
DISCUSSION
On appeal, Keaundra argues that the hearing master erred in
excluding evidence proffered to rebut a statutory presumption and that
the district court improperly relied on the hearing master's resulting
findings in terminating her parental rights.'
"The purpose of Nevada's termination statute is not to punish
parents, but to protect the welfare of children." In re Termination of
Parental Rights as to N.J., 116 Nev. 790, 801, 8 P.3d 126, 133 (2000). "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). Because the termination of parental
rights "is 'an exercise of awesome power' that is 'tantamount to imposition
of a civil death penalty," a district court's order terminating parental
rights is subject to close scrutiny. Id. at 1423, 148 P.3d at 763 (quoting In
re N.J., 116 Nev. at 795, 8 P.3d at 129). Termination of parental rights
must be based on clear and convincing evidence. In re N.J., 116 Nev. at
795, 8 P.3d at 129. This court reviews the district court's findings of fact
'Keaundra also argues that the district court's sole basis for
terminating her parental rights was her refusal to admit intentionally
harming her child and that this requirement violated her Fifth
Amendment right against self-incrimination. We do not reach this issue
because it is not necessary to dispose of this matter.
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for substantial evidence. Id. We review questions of law de novo. Awada
v. Shuffle Master, Inc., 123 Nev. 613, 618, 173 P.3d 707, 711 (2007).
NRS 128.105 provides that a district court may terminate
parental rights if it finds that "[t] he best interests of the child would be
served by the termination of parental rights" and the parent is unfit, failed
to adjust, or only made token efforts to "support or communicate with the
child," "prevent neglect of the child," "avoid being an unfit parent," or
"eliminate the risk of serious physical, mental or emotional injury to the
child." The district court found that DFS established presumptions of
token efforts under NRS 128.109(1)(a) and that termination of parental
rights was in the best interests of the children under NRS 128.109(2). To
rebut NRS 128.109's presumptions, the parent must establish by a
preponderance of the evidence that the alleged parental fault does not
exist and termination is not in the children's best interests. In re Parental
Rights as to J.D.N., 128 Nev. „ 283 P.3d 842, 849 (2012). According
to the district court, Keaundra did not rebut these presumptions. The
district court also found clear and convincing evidence of unfitness and
failure of parental adjustment. Each of these findings was ultimately
derived from the district court's reliance on the hearing master's finding of
abuse.
According to NRS 432B.450, a presumption that a child is in
need of protection is raised when an expert testifies in a civil proceeding
that an injury to a child would not have occurred absent "negligence or a
deliberate but unreasonable act or failure to act by the person responsible
for the welfare of the child." During the NRS 432B proceedings, Keaundra
attempted to rebut the presumption raised by Dr. Mehta's report
(concluding that the iron burn was nonaccidental) by introducing the
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report of Dr. Neuman, who had personally examined C.B. in Louisiana.
The hearing master barred admission of this report on the ground that it
was not a certified copy.
Keaundra asserts that Dr. Neuman's report was improperly
excluded in the juvenile court proceedings, leading the district court to
find abuse without hearing material rebuttal evidence. DFS does not
address Keaundra's argument on appeal. We conclude, therefore, that
DFS has confessed error on this issue. NRAP 31(d); see also Bates v.
Chronister, 100 Nev. 675, 681-82, 691 P.2d 865, 870 (1984) (concluding
that respondent confessed error by failing to respond to appellant's
argument).
The district court's findings of parental fault—specifically,
failure of parental adjustment, unfitness, and token efforts—were all
premised on Keaundra's failure to comply with a portion of her case plan
requiring her to admit to intentionally abusing her child. Since the
finding of intentional abuse was based on a concededly improper failure to
admit evidence rebutting a statutory presumption, a new trial is required
to determine Keaundra's parental rights. See In re N.J., 116 Nev. at 804,
8 P.3d at 135 (concluding the district court's refusal to admit evidence
rebutting a statutory presumption constituted grounds for a new trial); see
generally In re A.B., 128 Nev. „ 291 P.3d 122, 127 (2012) (holding
that a district court may review a hearing master's findings de novo or
"may rely on the master's findings when the findings are 'supported by
credible evidence and [are] not, therefore, clearly erroneous" (alteration in
original) (quoting Wenger v. Wenger, 402 A.2d 94, 97 (Md. Ct. Spec. App.
1979))).
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Accordingly, we reverse the district court's termination order
as to Keaundra, and we remand this matter for a new tria1. 2
"4.A. CL sr-C,
Parraguirre
We concur.
If
C.J.
Gibbons
J.
Pickering
, J.
Hardesty
J.
Douglas
J.
Cherry .
Saitta
2 The
district court's order also terminated Christopher B.'s parental
rights. He has not filed an appeal in this matter; therefore, our
consideration of the issues in this case is limited solely to the termination
of Keaundra's parental rights.
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