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 2013-09

in Re: Parental Rights as to J.E. ( 2013 )


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  •                                When a petition to terminate parental rights is filed, NRS
128.060(2) requires that notice of the petition and hearing must be
personally served on the parent unless his address is unknown, in which
case the notice must be personally served on the nearest known relative,
who is residing in this state and whose residence and relationship are
known to the petitioner. See NRS 128.060(2)(a). When the parent cannot
be found after the exercise of due diligence, the court may grant service by
publication.    See NRS 128.070. If the service of process is ineffective, a
default judgment may be set aside as void.     See NRCP 60(b)(4); Browning
v. Dixon,
    114 Nev. 213
    , 218,
    954 P.2d 741
    , 744 (1998) (finding that failure
to exercise due diligence rendered service of process improper and voided
the default judgment); Dobson v. Dobson,
    108 Nev. 346
    , 348,
    830 P.2d 1336
    , 1338 (1992). The district court's decision on whether to set aside a
default judgment is reviewed for an abuse of discretion.     Fagin v. Fagin,
    91 Nev. 794
    , 798,
    544 P.2d 415
    , 417 (1975). The policy of resolving cases
on their merits is heightened in domestic relations matters.         Price v.
Dunn,
    106 Nev. 100
    , 105,
    787 P.2d 785
    , 788 (1990), disapproved on other
grounds by NC-DSH, Inc. v. Garner,
    125 Nev. 647
    ,
    218 P.3d 853
     (2009).
Here, the district court found that appellant failed to comply
with NRS 128.060 and did not exercise due diligence in attempting to
locate respondent or his relatives in Nevada. The district court found that
appellant misled the court into approving service by publication and made
misrepresentations about the extent of her and the child's contact with
respondent and her knowledge of respondent's relatives living in Clark
County, Nevada. The district court also noted that deciding a termination
case on the merits would serve the child's best interest, which is the
primary consideration in parental termination cases.              See In re
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Termination of Parental Rights as to N.J.,
    116 Nev. 790
    , 799,
    8 P.3d 126
    ,
132 (2000).
Having reviewed the record, we conclude that the district
court's factual findings are supported by the record and the district court
did not abuse its discretion in setting aside the parental termination order
as void under NRCP 60(b)(4) for improper service. Moreover, respondent's
purported consent to the termination of his parental rights, which the
district court found was not witnessed or notarized, did not dispense of the
requirement that respondent be properly serve with the petition to
terminate his parental rights and have an opportunity to be heard in that
proceeding. A parent cannot voluntarily terminate his own parental
rights and obligations unless a court determines that such termination is
in the child's best interest.   See In re T.M.C.,
    118 Nev. 563
    , 569,
    52 P.3d 934
    , 937 (2002). Accordingly, because the district court properly set aside
the parental termination, we
ORDER the judgment of the district court AFFIRMED.
J.
Gibbons
t,-re            J.
Saitta
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cc:   Hon. Vincent Ochoa, District Judge
Steven R. Scow
Pecos Law Group
Eighth District Court Clerk
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