abandonment by respondent based on her sporadic contact with the
children and limited child support payments made only through wage
garnishment. Appellant further asserts that termination is in the
children's best interests because respondent's sporadic contact is confusing
and harmful to the children, and because appellant along with his new
wife, who seeks to adopt the children, can provide a stable and positive
living environment for them.
In terminating parental rights, the district court must find by
clear and convincing evidence that termination is in the children's best
interests 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). Parental fault may include abandonment, when the
parent's conduct has demonstrated an intention to abandon the child and
relinquish all parental rights. NRS 128.105(2)(a); Smith v. Smith, 102
Nev. 263, 266, 720 P.2d 1219, 1221 (1986), overruled on other grounds by
Matter of N.J., 116 Nev. at 800 n.4, 8 P.3d at 132 n.4. A parent may be
presumed to have abandoned a child if the parent leaves "the child in the
care and custody of another without provision for the child's support and
without communication for a period of 6 months." NRS 128.012(2). This
court will uphold the district court's order regarding termination if it is
supported by substantial evidence. Matter of Parental Rights as to
D.R.H., 120 Nev. 422, 428, 92 P.3d 1230, 1234 (2004).
Having reviewed appellant's arguments along with the trial
court record, we conclude that substantial evidence supports the district
court's findings that appellant failed to establish by clear and convincing
evidence parental fault or that termination was in the children's best
interests. Concerning parental fault, the district court found that
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appellant did not establish that respondent abandoned the children by
failing to communicate with them and by failing to provide for their
support for a six-month time period. The district court also found that
appellant's credibility was an issue and that the lack of contact was
primarily caused by appellant. It is the duty of the trier of fact, not an
appellate court, to weigh the credibility of witnesses. Castle v. Simmons,
120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004). As for the children's best
interests, the district court found that while appellant and his new wife
provided a stable living environment for the children, respondent simply
wanted a continuing relationship with them and there was no evidence
that allowing such a relationship would have adverse effects on the
children. As substantial evidence supports the district court's decision
that termination was not warranted, we
ORDER the judgment of the district court AFFIRMED.
,J
Hardesty
Parraguirre
J.
cc: Hon. Mathew Harter, District Judge
Juan R.
Hansen Rasmussen, LLC
Eighth District Court Clerk
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