In Re: Parental Rights as to A.J.E. ( 2015 )

 it was in the best interests of the child to terminate Sylvia's parental
rights.
Sylvia appeals and raises the following issues: (1) whether
substantial evidence supported the termination of her parental rights; (2)
whether her due process rights were violated by the district court's failure
to appoint counsel, and (3) whether her due process rights were violated
by the failure to serve upon her notice of the hearing master's
recommendation.
Substantial evidence supported the termination of Sylvia's parental rights
When terminating a person's parental rights, the district court
must consider the best interests of the child and
must find at least one of the enumerated factors
for parental fault: abandonment of the child;
neglect of the child; unfitness of the parent; failure
of parental adjustment; risk of injury to the child
if returned to, or if left remaining in, the home of
the parents; [or] only token efforts by the parents.
In re Termination of Parental Rights as to N.J., 116 Nev. 790, 801, 8 P.3d
126, 133(2000); see also NRS 128.105 (stating the factors). "[T]he best
interests of the child and parental fault must both be shown by clear and
convincing evidence." In re N.J., 116 Nev. at 801, 8 P.3d at 133. "This
court will uphold termination orders based on substantial evidence, and
will not substitute its own judgment for that of the district court." Id. at
795, 8 P.3d at 129.
Substantial evidence supported the district court's finding of
abandonment
"Lack of support plus other conduct such as a failure to
communicate by letter or telephone, or absence of sending of gifts is
sufficient to uphold the trial court's conclusion that a child had been
abandoned." Sernaker v. Ehrlich, 86 Nev. 277, 280, 468 P.2d 5, 7 (1970).
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Between A.J.E.'s placement with her foster parents in April
2012 and the termination trial in April 2013, Sylvia visited A.J.E. a total
of 12 times—six times between April and June 2012, four times in October
2012, and two visits between March and April 2013. Sylvia argues that
she did not abandon the child between June and October 2012 because she
was incarcerated or in drug rehab. Sylvia does not, however, address why
she did not communicate this with DFS or why she did not visit between
October 2012 and March 2013. Furthermore, during this time, Sylvia did
not communicate with the child or the foster parents, send gifts, or
otherwise provide support for the child. Therefore, we hold that
substantial evidence supported the district court's finding that Sylvia
abandoned A.J.E. 1
Substantial evidence supported the district court's finding that
A.J.E.'s best interests would be served by terminating Sylvia's
parental rights
"When resolving a child custody dispute involving a child's
natural parent, the child's best interest is paramount, even though the
parent may have a competing constitutionally protected interest in the
parent-child relationship." Clark Cnty. Dist. Attorney v. Eighth Judicial
Dist. Court, 123 Nev. 337, 346 n.23, 167 P.3d 922, 928 n.23 (2007). In •
determining the best interests of the child, the "continuing needs of a
child for proper physical, mental and emotional growth and development
1 Because we hold that substantial evidence supported the district
court's finding that Sylvia abandoned A.J.E., we do not reach the issue of
whether substantial evidence supported the district court's finding of
token efforts or failure of parental adjustment because a finding of a single
enumerated factor is sufficient. See In re N.J., 116 Nev. at 801, 8 P.3d at
133 (requiring that only one of the enumerated factors of parental fault be
found to support termination of parental rights).
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are the decisive considerations." In re N.J., 116 Nev. at 800, 8 P.3d at
132-33 (quoting NRS 128.005(2)(c)).
When evaluating A.J.E.'s best interests, the district court
considered evidence of Sylvia's lengthy drug history; A.J.E.'s exposure to
controlled substances at the time of her birth; Sylvia's failure to comply
with drug testing, substance abuse counseling, and the case plan; and
Sylvia's failure to communicate or support A.J.E. It also considered
evidence that A.J.E.'s foster parents have been married for five years, the
foster father has stable employment, and the foster parents have bonded
with A.J.E. and wish to adopt her. Therefore, we hold that substantial
evidence supported the district court's finding that A.J.E.'s best interests
were served by the termination of Sylvia's parental rights
Sylvia's due process rights were not violated when she was not appointed
counsel
"If the parent or parents of the child desire to be represented
by counsel, but are indigent, the court may appoint an attorney for them."
NRS 128.100(2) (emphasis added). Due process does not necessarily
require the appointment of counsel at a termination hearing. In re
Parental Rights as to N.D.O., 121 Nev. 379, 382-83, 115 P.3d 223, 225-26
(2005). However, when a case is particularly complex or when expert
testimony is involved, the refusal to appoint counsel can violate due
process. Id. at 383-84, 115 P.3d 226.
Here, Sylvia did not request counsel, and her case was not
complex nor did it involve expert testimony. Therefore, we hold that
Sylvia has not demonstrated that her due process rights were violated
when the district court failed to appoint counsel to represent her.
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Sylvia's due process rights were not violated by the failure to serve notice of
the hearing master's recommendation of waiver of reasonable efforts
Eighth Judicial District Court Rule 1.46 requires that notice of
a hearing master's findings and recommendations be served upon the
parties, at which point any party has five days in which to object. EDCR
1.46(g)(1), (5).
An order terminating parental rights "must be made in light of
the considerations set forth in [NRS 128.105] and NRS 128.106 to 128.109,
inclusive." NRS 128.105. Under NRS 128.106, in determining whether a
parent is unfit, "the court shall consider, without limitation," the
"[i]nability of appropriate public or private agencies to reunite the family
despite reasonable efforts on the part of the agencies," which may
diminish one's suitability as a parent. NRS 128.106(8). Thus, while the
district court generally must consider the services offered to the parent, no
specific termination statute requires reasonable efforts by the state as a
condition for termination.
The hearing master recommended that DFS's duty to make
reasonable efforts to reunite the family be waived. The record does not
show that notice was served on Sylvia of either DFS's motion for such a
waiver or of the hearing master's recommendation. However, providing
notice of the waiver of reasonable efforts is not a condition for the
termination of parental rights. For example, under NRS 128.109(3),
evidence of failure by the state to provide services to the family cannot be
used to overcome the presumption of parental unfitness that arises if the
parent does not substantially comply within six months with the case
plan. See NRS 128.109. As Sylvia fails to identify any statute or caselaw
that requires notice of waiver of reasonable efforts as a condition of
termination, she has not demonstrated that such an omission would
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violate her right to due process. Therefore, we hold that Sylvia's due
process rights were not violated when her parental rights were terminated
by the district court after the hearing master waived reasonable efforts
without providing notice to her.
Conclusion
Substantial evidence supported the district court's termination
of Sylvia's parental rights. Furthermore, Sylvia's due process rights were
not violated by the district court's failure to appoint counsel to represent
her and the failure to serve the notice of the hearing master's
recommendation upon her. Therefore, we
ORDER the judgment of the district court AFFIRMED.
/Cita-% Sac , C.J.
Hardesty
I , J.
Douglas
J.
Gibbons
cc: Hon. Robert Teuton, District Judge, Family Court Division
A.M. Santos Law, Chtd.
Clark County District Attorney/Juvenile Division
Eighth District Court Clerk
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