abuse risk assessment. Neither case plan required either appellant to
explain the child's injuries.
The record reflects that appellants completed their case plans,
including attending V.H.W.'s medical appointments and completing
parenting classes. During this time, appellants consistently visited with
V.H.W. twice weekly, and they had begun to exercise unsupervised
overnight visitation. Consequently, DFS recommended maintaining the
permanency plan of reunifying the child with appellants. The
recommendation was presented to a domestic master for approval, but the
master declined to approve the recommendation, and directed that the
permanency plan be changed from reunification to termination of parental
rights because neither appellant could explain V.H.W.'s injuries.
Appellants objected to the master's recommendation and requested
reunification, but that request was denied. A petition to terminate
appellants' parental rights was then filed.
The termination petition was withdrawn, and there was no
action on the abuse and neglect proceeding for several months, until DFS
recommended to appellants and the district court that appellants undergo
additional individual counseling. This recommendation was never agreed
to by appellants in writing or approved by the court as required under
NRS 128.0155. After appellants failed to comply with this
recommendation, DFS again filed a petition to terminate appellants'
parental rights alleging that termination was in V.H.W.'s best interest,
and DFS contended that parental fault existed based on abandonment,
neglect, unfitness, failure of parental adjustment, and a posed risk of
harm to V.H.W. At the trial on the termination petition, appellants both
testified that they had been pressured by DFS to explain the injuries, but
that they were unable to do so. They both maintained, however, their
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belief that one of Maria L.'s relatives caused the child's injuries. The child
protective services investigator who investigated V.H.W.'s injuries also
testified at the trial that she did not interview all of Maria L.'s relatives
who had contact with the child at the time that she sustained the injuries.
Ultimately, the district court entered a written order granting
the petition on the basis that terminating appellants' parental rights was
in the child's best interest and that DFS had established by clear and
convincing evidence parental fault based on neglect, unfitness, and failure
of parental adjustment. In particular, the district court concluded that
appellants had neglected V.H.W. and were unfit parents by reason of their
faults or habits because they were unable to explain V.H.W.'s injuries and
did not engage in the additional counseling. The district court, however,
did not specify what faults or habits prevented appellants from providing
proper parental care to V.H.W. The court did conclude that appellants'
inability to explain V.H.W.'s injuries and their failure to engage in
additional counseling demonstrated their inability to adjust to the
circumstances that led to V.H.W.'s removal. The district court also
concluded that although there was no evidence that appellants caused
V.H.W.'s injuries, there was evidence that appellants "had lived with one
set of relatives at the time of the older injury, and with another set of
relatives at the time of the more recent injury." Appellants now appeal
from that order and contend that substantial evidence does not support
the district court's finding that the state established parental fault or that
termination was in the child's best interest.
DISCUSSION
To terminate parental rights, a petitioner must prove by clear
and convincing evidence that termination is in the child's best interest and
that parental fault exists See In re Parental Rights as to A.J.G., 122 Nev.
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1418, 1423, 148 P.3d 759, 762 (2006); see also NRS 128.105 (requiring that
before parental rights can be terminated, the State must establish both
parental fault and that termination of parental rights is in the child's best
interest). Because the termination of parental rights "is an exercise of
awesome power that is tantamount to imposition of a civil death penalty,"
a district court's order terminating parental rights is• subject to close
scrutiny. Id. at 1423, 148 P.3d at 763 (internal quotation omitted). This
court reviews a district court's decision to terminate parental rights for an
abuse of discretion and will uphold a termination order only if the district
court's factual findings that the termination is in the child's best interest
and that parental fault exists are supported by substantial evidence. Id.
Having considered the parties' arguments and the record on appeal, we
conclude that substantial evidence does not support the district court's
order granting the petition to terminate appellants' parental rights. Id.
In regards to parental fault, the district court relied on
appellants' failure to complete the additional recommended counseling as
an element of each of the parental fault findings, even though that
counseling recommendation was never included in appellants' case plans
approved by the court. The district court also relied on appellants'
inability to explain the child's injuries as an element of each of the
parental fault findings.
NRS 128.0155 defines a case plan as either (1) a written
agreement between the parents and the agency having custody of the
child, or (2) written conditions and obligations imposed upon the parents
by the court with the objective of reuniting the family. Here, appellants
completed the case plans provided by DFS and approved by the district
court. Appellants never agreed to the additional counseling, nor had the
district court approved DFS's recommendation for additional counseling as
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an obligation that appellants were required to meet before reunification
was possible. Appellants were never required as part of their case plans to
explain the child's injuries. 1 Champagne v. Welfare Div., 100 Nev. 640,
652, 691 P.2d 849, 857 (1984) (providing that "[t]he parent cannot be
judged unsuitable by reason of failure to comply with requirements and
plans that are unclear or have not been communicated to the parent"),
overruled on other grounds by In re Termination of Parental Rights as to
N.J., 116 Nev. 790, 8 P.3d 126 (2000).
More importantly, however, the burden was on DFS to
establish, by clear and convincing evidence, that appellants' inability to
explain the child's injuries, independent of additional circumstances,
amounted to neglect, unfitness, or failure of parental adjustment,
especially in light of the fact that appellants complied with all of the court-
approved case plan requirements intended to address any parental fault
issues. See Champagne, 100 Nev. at 648, 691 P.2d at 854 (providing that
Iblecause of the sacredness of parental rights a higher standard of proof,
that of 'at least clear and convincing evidence,' is required before [a child]
can be judicially taken away" (internal quotation omitted)). But, DFS
failed to meet this burden because DFS did not allege that appellants
abused V.H.W., DFS failed to interview all of the relatives appellants were
living with at the time V.H.W. suffered the injuries, appellants complied
with their case plans, and they successfully exercised unsupervised
'Jonathan also contends that any requirement that he admit to
causing the child's injuries as a condition of reunification violates his Fifth
Amendment right against self-incrimination. DFS points out, however,
that it stipulated that any statements made during the course of
treatment could not be used against appellants in any criminal
proceeding.
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visitation. Thus, we conclude that substantial evidence does not support
the district court's conclusion that DFS established by clear and
convincing evidence that appellants' failure to undergo the additional
recommended counseling or their failure to explain the child's injuries
established parental fault. Parental Rights as to A.J.G., 122 Nev. at 1423,
148 P.3d at 762.
Because substantial evidence does not support the district
court's conclusion that DFS established parental fault, we do not need to
reach the issue of whether the termination of appellants' parental rights
was in V.H.W.'s best interest. NRS 128.105.
For the reasons discussed above, we conclude that the district
court abused its discretion in granting the petition to terminate
appellants' parental rights as to the child and we order the judgment of
the district court reversed. We are confident that reunification of this
family will be swift and that the district court will take the utmost care to
create a safety plan to ensure the child's well-being.
It is so ORDERED.
ILA dat.A.2„ , J.
Hardesty
Douglas
cc: Hon. Cynthia N. Giuliani, District Judge
Special Public Defender
Stephanie M. Keels
Clark County District Attorney/Juvenile Division
Eighth District Court Clerk
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