In Re: Parental Rights As To S.V. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 83008
RIGHTS AS TO S.V., MINOR CHILD.
MARTINA C.V.,
Appellant, FILE
vs.
AUG 1 2022
JOHN G.E.,
E ZAII A BROWN
Respondent.
EPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a district court order terminating
appellant's parental rights. Eighth Judicial District Court, Family Court
Division, Clark County; Soonhee Bailey, Judge."
Appellant Martina C.V. is the biological mother of 11-year-old
S.V. When S.V. was two years old, Child Protective Services (CPS) removed
S.V. from Martina's care because she left S.V. with a babysitter and did not
return. Once a paternity test established respondent John G.E. as S.V.'s
biological father, CPS placed S.V. with John; S.V. has lived with John and
his wife ever since. After approximately two years without any contact with
Martina, John obtained a court order for Martina to pay child support. In
separate proceedings, the parties agreed to joint custody and established a
visitation schedule, by which Martina inconsistently abided. In the spring
of 2018, when S.V. was seven years old, another report was filed with CPS
because Martina attempted to place S.V., unaccompanied, into an Uber to
return him to John at the end of their scheduled visit. John moved to modify
their custody agreement and, when Martina failed to appear at the hearing
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'Pursuant to NRAP 34(f)(1), we have determined that oral argument
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on the matter, the district court awarded John sole legal and physical
custody of S.V.
In July 2019, John filed a petition to terminate Martina's
parental rights. Within a matter of months of that filing, Martina was
involved in a car accident with her one-year-old daughter in the car while
driving with a suspended license and under the influence of multiple illicit
substances.2 Days later, Martina began serving a jail sentence for her
failure to abide by the drug counseling requirements ordered in a former
criminal matter.3 In Spring 2021, Martina and her mother visited with S.V.
at the Family Mediation Center; it was the first time Martina had seen S.V.
since Spring 2018. After an evidentiary hearing, the district court granted
John's petition and terminated Martina's parental rights, finding multiple
grounds of parental fault and that termination was in S.V.'s best interest.
Martina now appeals.
To terminate parental rights, the district court must find clear
and convincing evidence that (1) at least one ground of parental fault exists,
and (2) termination is in the child's best interest. NRS 128.105(1); In re
Termination of Parental Rights as to N.J., 116 Nev. 790, 800-01, 8 P.3d 126,
132-33 (2000). On appeal, this court reviews questions of law de novo and
the district court's factual findings for substantial evidence. In re Parental
Rights as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014). Substantial
evidence is that which "a reasonable person might accept as adequate" to
support a conclusion. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242
(2007).
2 Martina was charged with a felony for leaving the scene of the
accident, but she later pleaded to a felony reckless driving charge.
3Martina was sentenced to serve 120 days in jail but ended up serving
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118 days from September to December 2019.
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Martina argues that the district court erred in terminating her
parental rights because John failed to prove grounds of parental fault by
clear and convincing evidence and because it was not in S.V.'s best interest.
See NRS 128.105(1). Turning first to the grounds of parental fault, we
conclude that the district court's findings of abandonment and unfitness are
supported by substantial evidence.4 As a preliminary matter, the district
court properly applied the statutory presumption that Martina abandoned
S.V. because she failed to communicate with him or provide for his support
for more than six months. NRS 128.012(2); see also In re N.J., 116 Nev. at
804, 8 P.3d at 135 ("[A]pplication of the statutory presumption of
abandonment contained in NRS 128.012(2) is not discretionary."). And
although Martina contends that she presented sufficient evidence to rebut
the presumption, we agree with the district court that her evidence of
infrequent and inconsistent contact attempts did not rebut the presumption
that she intended to abandon S.V. See In re Parental Rights as to
Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996) (explaining that
"[i]ntent is the decisive factor in [determining] abandonment and may be
shown by the facts and circumstances" of the case), superseded by statute on
other grounds as recognized by In re N.J., 116 Nev. at 798-01, 8 P.3d at 131-
33. Indeed, Martina's child support payments were only sporadic until John
filed the underlying termination action, and the record reflects that Martina
frequently went months without contacting S.V., including while she was
incarcerated. And Martina produced no evidence that she sent S.V. any
letters, cards, or presents while he was living with John. See Sernaker v.
4 Because only one ground of parental fault is required to support the
termination of parental rights, see NRS 128.105(1)(b) (requiring a finding
of at least one ground of parental fault), we need not review the district
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court's other findings of parental fault.
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Ehrlich, 86 Nev. 277, 280-81, 468 P.2d 5, 7 (1970) (holding that "[flack 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" a district
court's abandonment finding). Moreover, Martina neither opposed or
appeared at the hearing on John's motion for sole custody, nor did she
attempt to modify custody at any point thereafter.
We also agree with the district court that John demonstrated
that Martina is an unfit parent by clear and convincing evidence, as the
record contains ample evidence of Martina's "fail[ure] to provide [S.V.] with
proper care, guidance and support." NRS 128.018 (defining an "unfit
parent"). While Martina has not been actively involved in much of S.V.'s
day-to-day life, the record demonstrates her diminished suitability as a
parent, such as the number of times S.V. was either late to or absent from
school while in Martina's care, her history of leaving S.V. with other
caregivers and not returning for extended periods of time, and her attempt
to place S.V. unaccompanied in an Uber vehicle at a young age. See NRS
128.105(1)(b) (providing that the court may consider whether a parent's
conduct toward the child dirninishes their suitability as a parent). And
Martina's numerous arrests for drug-related offenses, failed drug tests, and
failure to participate in court-ordered substance abuse counseling, as well
as her felony conviction for driving under the influence of illicit drugs,
confirm that her use of controlled substances has "render[ed] her
consistently unable to care for [S.V.]." NRS 128.106(1)(d), (f) (requiring the
district court to consider a parent's felony convictions when determining
whether that parent is unfit).
We next reject Martina's argument that the district court
improperly found termination was in S.V.'s best interest. Although the
record demonstrates that S.V. indicated he would like to see Martina again
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after a court-ordered supervised visitation, the record does not support her
contention that S.V. "objected" to having her rights terminated. Cf. NRS
125C.0035(4)(a) (providing that, when considering the best interest of the
child, the district court may consider the child's wishes if he "is of sufficient
age and capacity to form an intelligent preference as to his" custody). We
further conclude that the record supports the district court's finding that
terminating Martina's parental rights was in S.V.'s best interest, as the
record demonstrates that S.V. has thrived while living with John and he is
well-bonded to John's wife, who intends to adopt S.V. See In re N.J., 125
Nev. at 843, 221 P.3d at 1261 ("In determining what is in a child's best
interest, the district court must consider the child's continuing need for
'
proper physical, mental and emotional growth and development." (quoting
NRS 128.005(2)(c))). For the reasons set forth above, we
ORDER the judgment of the district court AFFIRMED.5
Parraguirre
, J. r.
Silver Gibbon
cc: Hon. Soonhee Bailey, District Judge, Family Court Division
The Law Offices of Frank J. Toti, Esq.
Marathon Law Group
Eighth District Court Clerk
5TheHonorable Mark Gibbons, Senior Justice, participated in the
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decision of this matter under a general order of assignment.
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