in Re: Parental Rights as to K.W. ( 2013 )

 The district court declined to continue the matter a second
time, and after the hearing, entered an order terminating appellant's
parental rights. The court found that appellant had been given sufficient
opportunity to present evidence and argument in response to the petition,
but failed to do so. The district court further found that appellant had
abandoned the child and was an unfit parent, and that the child's best
interest would be served by termination. This appeal followed.
In his civil proper person appeal statement, appellant
contends that he did not have an opportunity to file a response to
respondent's pre-hearing memorandum, which was filed one day before
the evidentiary hearing, and that the district court erred in rendering a
decision without appellant's presence at the hearing. Appellant also
contends that he did not purposefully abandon the child because
respondent did not advise him of her whereabouts and his attempts to
contact respondent's parents were rejected.
In terminating parental rights, the district court must find by
clear and convincing evidence that termination is in the child's best
interest and that at least one factor of parental fault exists. NRS 128.105;
Matter of Parental Rights as to N.J., 116 Nev. 790, 800, 8 P.3d 126, 132
(2000). Evidence of parental fault may include neglect, abandonment, and
parental unfitness. NRS 128.105(2)(a)-(c); Matter of Parental Rights as to
D.R.H., 120 Nev. 422, 428-30, 92 P.3d 1230, 1234-35 (2004). Additionally,
parental unfitness may be shown by a parent's felony criminal conviction
"if the facts of the crime are of such a nature as to indicate the unfitness of
the parent to provide adequate care and control to the extent necessary for
the child's physical, mental or emotional health and development." NRS
128.106(6); see also Matter of Parental Rights as to K.D.L., 118 Nev. 737,
2
746, 58 P.3d 181, 187 (2002). The purpose of terminating parental rights
is not to punish parents, but to protect the welfare of children. Matter of
N.J., 116 Nev. at 801, 8 P.3d at 133. This court will uphold the district
court's termination order if it is supported by substantial evidence.
Matter of D.R.H., 120 Nev. at 428, 92 P.3d at 1234.
As an initial matter, we conclude that appellant had an
adequate opportunity to respond to the petition. The district court allowed
appellant 30 days to file a response to the petition and specifically
instructed appellant on how to present documentary and written
testimonial evidence, but appellant failed to file a response setting forth
any opposing arguments or evidence. Additionally, due process does not
require the physical presence of a parent at the termination hearing when
that parent is incarcerated in another state. See In re Interest of L.V., 482
N.W.2d 250, 258 (Neb. 1992). Moreover, it is questionable whether
appellant had a protected liberty interest, for purposes of procedural due
process, given his lack of involvement in the child's life. See Lehr v.
Robertson, 463 U.S. 248, 261-62 (1983) (recognizing that the mere
biological connection of the nature father does not establish a protected
liberty interest when the father has not grasped the opportunity to
participate in the rearing of his child).
We further conclude that substantial evidence supports the
district court's order terminating appellant's parental rights. The district
court specifically found that appellant made no efforts to contact the child,
evincing an intention to abandon the child. See NRS 128.012. While
respondent did not advise appellant of her whereabouts because of
concerns for her safety, respondent provided evidence that appellant knew
of her parents contact information but made virtually no efforts to inquire
SUPREME COURT
OF
NEVADA
3
(0) 1947A
about his child or provide for her support. Additionally, the court found
that appellant, who was incarcerated for armed robbery, was an unfit
parent because he had not provided in any way for the child's physical,
mental, and emotional health, and well-being.
The district court further found that the child's best interest
would be served by termination. Respondent asserted without opposition
that the child has no knowledge of or relationship with appellant, that
respondent is now married, and that respondent's husband wishes to
adopt the child. Substantial evidence supports the district court's findings
of parental fault and that termination of appellant's parental rights was in
the child's best interest. See Matter of N.J., 116 Nev. at 800, 8 P.3d at
132; Matter of D.R.H., 120 Nev. at 428-30, 92 P.3d at 1234-35. Under
these circumstances, we
ORDER the judgment of the district court AFFIRMED. 1
Hardesty
,J.
Parraguirre
'In light of our order, we deny as moot appellant's proper person
motions for a stay.
4
cc: Tenth Judicial District Court Dept. 1
Shaun A.W.
The Law Office of Jacob N. Sommer
Churchill County Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A