131 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
we
IN THE MATTER OF THE PARENTAL No. 64214
RIGHTS AS TO A.P.M. AND E.M.M.
ARLI P.M.,
Appellant, PILED
vs.
STATE OF NEVADA DEPARTMENT
SEP 1 0 2015
OF FAMILY SERVICES; AND A.P.M. Gr At 4.
t/E,4
OQUR
AND E.M.M., MINORS, BY
EiiiteraYircIt7i
Respondents.
Appeal from a district court order terminating parental rights.
Eighth Judicial District Court, Family Court Division, Clark County;
Frank P. Sullivan, Judge.
Affirmed.
David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy
Special Public Defender, Clark County,
for Appellant.
Steven B. Wolfson, District Attorney, and Janne M. Hanrahan and Ronald
L. Cordes, Deputy District Attorneys, Clark County,
for Respondent State of Nevada Department of Family Services.
Legal Aid Center of Southern Nevada and Mary F. McCarthy and Barbara
E. Buckley, Las Vegas,
for Respondents A.P.M. and E.M.M.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, GIBBONS, J.:
In this appeal, we consider two issues of first impression
arising from a termination of parental rights. First, we consider whether
the district court may terminate the parental rights of a parent who has
completed a case plan for reunification. Second, we consider whether the
district court must wait the entire 20 months before applying both the
presumption of token efforts in NRS 128.109(1)(a) and the presumption
that termination of parental rights is in the best interest of the child in
NRS 128.109(2).
We first conclude that the district court may terminate the
parental rights of a parent who has completed his or her case plan for
reunification, if termination is otherwise warranted under NRS 128.105.
Second, we conclude that the district court is not required to wait the
entire 20 months before applying the presumptions found in NRS
128.109(1)(a) and NRS 128.109(2), as long as the child has been removed
from his or her parents' home pursuant to NRS Chapter 432B for at least
14 months during any consecutive 20-month period. Having resolved
these legal issues, we further conclude that the record contains
substantial evidence supporting the district court's decision to terminate
appellant's parental rights.
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FACTUAL AND PROCEDURAL BACKGROUND
Appellant Arli M. and his wife Abigail M. had three children
together: J.M., 1 A.P.M., and E.M.M. From July 2006 to November 2011,
seven separate incidents occurred in which one of the three children
swallowed foreign objects, such as coins, magnets, and batteries. All of
these swallowing incidents happened while Arli was at work and Abigail
was at home with the children. On the latest occasion, doctors had to
surgically remove a large battery that was lodged in E.M.M.'s throat.
Following E.M.M.'s surgery, the doctors grew concerned that Abigail was
forcing her children to swallow foreign objects. The doctors explained that
three-year-old E.M.M. swallowing the large battery was the equivalent of
an adult swallowing a golf ball, making it highly unlikely that he
swallowed it on his own. Due to their concerns, the doctors initiated a
child protective services investigation.
In November 2011, the Clark County Department of Family
Services (DFS) removed A.P.M. and E.M.M. from their parents' home
pursuant to NRS Chapter 432B. In July 2012, the juvenile court entered
an order granting DFS legal custody of the children, and the children were
placed in foster care. Arli and Abigail were issued case plans containing
objectives for them to complete in order to regain custody of their children.
Arli's case plan required that he take parenting classes and participate in
counseling. Almost immediately, Arli successfully completed the
parenting classes and was participating in the required counseling.
'J.M. died on October 10, 2006, from undetermined causes.
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Despite these efforts, however, the juvenile court reviewed Arli's and
Abigail's progress and determined that the children should remain in
foster care.
On December 6, 2012, DFS filed a petition in the district court
to terminate the parental rights of Arli and Abigail pursuant to NRS
Chapter 128. On April 10, 2013, the district court began a five-day
evidentiary hearing on the matter. Evidence presented at the hearing
showed that Arli took almost no action to ensure the safety of his children
after any of the seven swallowing incidents. Throughout the proceedings,
Arli testified that he did not believe that Abigail was intentionally making
their children swallow foreign objects or improperly supervising them.
Instead, Arli claimed that the children's injuries were simply a result of
Abigail losing focus while caring for the children.
After the hearing, the district court granted the petition to
terminate the parental rights of Arli and Abigail. The district court found
that DFS established (1) parental fault by proving neglect, 2 and (2) that
2During oral argument, both parties agreed that the district court's
written order terminating Arli's parental rights contained discrepancies
regarding the district court's findings of parental fault on grounds other
than neglect. The parties claimed that the written order contained
unintentional errors that conflicted with the district court's oral findings.
Acknowledging these potential discrepancies, we conclude that the written
order is controlling in this case. See Rust v. Clark Cnty. Sch. Dist., 103
Nev. 686, 689, 747 P.2d 1380, 1382 (1987).
It is undisputed, however, that the district court found—both at the
hearing and in its written order—parental fault based on neglect under
NRS 128.105(2)(b). Because, as described below, we affirm the district
court's finding of neglect, and only one parental fault ground is needed to
continued on next page . . .
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termination of parental rights was in the best interests of the children.
The district court's findings regarding parental fault and the children's
best interests revolved around the danger posed by Abigail's supervision of
the children and Arli's failure to take protective action.
Both parents initially appealed from the district court's order,
but this court received a suggestion of death indicating that Abigail had
passed away, and her appeal was dismissed. Only Arli's appeal remains.
On appeal, Arli argues that (1) the district court should not have
terminated his parental rights because he completed his case plan, (2) the
district court erred in applying the presumptions in NRS 128.109(1)(a)
and NRS 128.109(2), and (3) substantial evidence does not support the
district court's findings of parental fault and that termination was in the
best interests of the children.
DISCUSSION
Standard of review
"A party petitioning to terminate parental rights must
establish by clear and convincing evidence that (1) termination is in the
child's best interest, and (2) parental fault exists." In re Parental Rights
as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 762 (2006). Termination
of parental rights is "an exercise of awesome power." In re Parental Rights
as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000); see also Drury v.
. . . continued
terminate parental rights under NRS 128.105(2), any possible
discrepancies in the district court's written order regarding the other
parental fault grounds are inconsequential to this case.
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Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989) (holding that severance
of the parent-child relationship is "tantamount to imposition of a civil
death penalty"). This court closely scrutinizes whether the district court
properly terminated the parental rights at issue. N.J., 116 Nev. at 795, 8
P.3d at 129. We will uphold a district court's order terminating parental
rights when it is supported by substantial evidence. In re Parental Rights
as to C.C.A., 128 Nev., Adv. Op. 15, 273 P.3d 852, 854 (2012).
This appeal also raises issues of statutory interpretation.
"The construction of a statute is a question of law, which this
court. . . reviews de novo." Matter of Petition of Phillip A. C., 122 Nev.
1284, 1293, 149 P.3d 51, 57 (2006). Generally, the plain meaning of the
words in a statute should be respected. Id. Thus, when a statute is clear
on its face, this court will not look beyond the plain language to determine
legislative intent. Id.
Prior to reaching the merits of the parental termination
decision, two legal issues must be decided: (1) whether the completion of a
case plan for reunification prohibits the district court from terminating
parental rights, and (2) whether the presumptions found in NRS
128.109(1)(a) and NRS 128.109(2) can be applied before a full 20 months
has elapsed.
Completing a case plan for reunification does not prohibit the district court
from terminating parental rights
Arli was given a case plan under NRS 128.0155 containing
written conditions and obligations imposed with the primary objective of
reunifying the family. Arli argues that the district court should not have
terminated his parental rights because he completed this case plan. We
disagree.
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We hold that a completed case plan does not prohibit the
district court from terminating parental rights if termination is otherwise
warranted under NRS Chapter 128. NRS 128.105 sets forth grounds for
terminating parental rights. Along with requiring a finding of parental
fault, the statute also states that "Mlle primary consideration in any
proceeding to terminate parental rights must be whether the best
interests of the child will be served by the termination." NRS 128.105.
Determining a child's best interest requires a consideration of many
factors stemming from the "the distinct facts of each case." N.J., 116 Nev.
at 800, 8 P.3d at 133; see also NRS 128.005(2)(c) ("The continuing needs of
a child for proper physical, mental and emotional growth and development
are the decisive considerations in proceedings for termination of parental
rights."). Nowhere in NRS Chapter 128, however, has the Legislature
stated that the district court is required to find that preserving parental
rights is in the best interest of the child if the parent has completed his or
her assigned case plan. While a completed case plan may be persuasive
evidence that termination of parental rights is not in the child's best
interest, by no means does it prohibit the district court from considering
additional factors and determining otherwise. 3
Accordingly, we conclude that the district court was not
prohibited from terminating Arli's parental rights even though Arli had
completed his case plan.
3 Similarly,nothing in NRS 128.105 prohibits the district court from
finding parental fault if a parent has completed his or her case plan.
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The presumptions in NRS 128.109(1)(a) and NRS 128.109(2) do not
require that a full 20 months elapse before they apply
NRS 128.109 sets forth presumptions that apply to findings of
parental fault and the best interest of the child when the child has resided
outside of the home for an extended period of time. The statute states in
relevant part:
1. If a child has been placed outside of his or
her home pursuant to chapter 432B of NRS, the
following provisions must be applied to determine
the conduct of the parent:
(a) If the child has resided outside of his or
her home pursuant to that placement for 14
months of any 20 consecutive months, it must be
presumed that the parent or parents have
demonstrated only token efforts to care for the
child as set forth in paragraph (f) of subsection 2 of
NRS 128.105.
2. If a child has been placed outside of his
or her home pursuant to chapter 432B of MRS and
has resided outside of his or her home pursuant to
that placement for 14 months of any 20
consecutive months, the best interests of the child
must be presumed to be served by the termination
of parental rights.
NRS 128.109.
The district court applied the presumptions in NRS
128.109(1)(a) and NRS 128.109(2) because the children were removed from
Arli's home pursuant to NRS Chapter 432B and had remained out of his
home for roughly 17 consecutive months at the time the termination
hearing had commenced.
Arli argues that the district court erred in applying these
presumptions because the children had been out of their parents' home for
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less than 20 months. Arli argues that even though the children had been
placed elsewhere for over 14 months, the language in NRS 128.109, "14
months of any 20 consecutive months," requires that the district court
wait the entire 20 months before applying the presumptions. We disagree.
Under the statute's plain language, the presumptions apply
whenever a child has been removed from his or her parents' home
pursuant to NRS Chapter 432B for at least 14 months during any
consecutive 20-month period. We hold that if the 14-month threshold has
been met in less than 20 months, the district court may apply the
presumptions in NRS 128.109(1)(a) and NRS 128.109(2) without waiting
for the entire 20 months to elapse. Indeed, waiting the additional time
would serve no purpose. For example, in the present case, the district
court applied the presumptions because the children had been removed
pursuant to NRS Chapter 432B for over 17 consecutive months. Thus,
waiting an additional 3 months—to reach a total of 20 months—before
applying the presumptions would be unnecessary, because the 14-month
threshold had already been satisfied. NRS 128.109(1)(a), (2). Accordingly,
because Arli's children had been removed pursuant to NRS Chapter 432B
for over 14 consecutive months, we conclude that the district court
correctly applied the presumptions in MIS 128.109(1)(a) and NRS
128.109(2).
Substantial evidence supports termination of Arles parental rights
With the two pressing legal issues resolved, we now turn our
attention to whether the district court's findings of parental fault and that
termination of parental rights was in the children's best interests were
supported by substantial evidence. NRS 128.105. We conclude that
substantial evidence supports these findings.
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The district court correctly found parental fault based on neglect
Arli contends that substantial evidence does not support the
district court's finding of neglect. Arli argues that he could not be
neglectful because he was not present during any of the swallowing
incidents. To support this argument, Arli cites Chapman v. Chapman, 96
Nev. 290, 294, 607 P.2d 1141, 1144 (1980), in which this court held that "a
finding of neglect must be based upon the treatment of the child while the
parent has custody" and "neglect is not established when the child is left
by the parent in an environment where the child is known to be receiving
proper care." 4 In response, DFS argues that Arli was neglectful because
he failed to take protective action after the seven serious swallowing
incidents involving all three of his children.
We conclude that substantial evidence supports the district
court's finding of neglect. NRS 128.014(2) defines a neglected child as a
child "[w]hose parent. . . refuses to provide proper or necessary
subsistence, education, medical or surgical care, or other care necessary
for the child's health, morals or well-being." Testimony during the
evidentiary hearing showed that Arli took almost no protective action
after repeated swallowing incidents—some of which sent his children to
the hospital, with the most recent incident causing serious harm to one
child. Arli's failure to take protective action shows that he "refus [ed] to
provide proper. . . care necessary for [his children's] health" NRS
4Arli also argues that DFS attempted to compel Abigail to admit
that she abused the children in order to regain custody, which violated her
Fifth Amendment right against self-incrimination. Arli does not explain,
however, how any alleged violations of Abigail's rights apply to his case.
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128.014(2). Further, we conclude that Arli's reliance on Chapman is
misplaced because although Arli was not present during any of the
swallowing incidents, he failed to leave his children "in an environment
where [they were] known to be receiving proper care." 96 Nev. at 294, 607
P.2d at 1144. Accordingly, the district court correctly found parental fault
based on neglect. NRS 128.105(2)(b).
The district court correctly found that termination of Arles parental
rights was in the best interests of the children
As explained above, we concluded that the district court
correctly applied the NRS 128.109(2) presumption that termination of
parental rights was in the best interests of the children based on the
length of their removal. Arli contends, however, that he rebutted the
presumption by visiting his children, completing parenting classes, and
participating in counseling.
We conclude that substantial evidence supports a finding that
Arli did not rebut the presumption that termination of his parental rights
was in the best interests of the children. The district court heard
extensive testimony from several witnesses, including evidence as to Arli's
limited relationship with his children and his failure to take any
meaningful protective action after seven serious swallowing incidents,
which were increasing in seriousness and harm The evidence further
established that the children did not ingest any foreign objects after they
were placed in protective custody. Also, the children's foster parent
testified that the children had been living with her for several months,
that they had a close relationship, and that she wished to adopt them.
We conclude that the sum of this evidence supports the
district court's finding that termination of Arli's parental rights was in the
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best interests of the children. This evidence further establishes that even
with the death of Abigail, who was apparently the cause of the swallowing
• incidents, Arli is unable to protect his children from danger, swallowing tor
otherwise.
Accordingly, because substantial evidence supports a finding
of parental fault and that termination of parental rights was in the best
interests of the children, we affirm the judgment of the district court.
J.
Gibbons
We concur:
/iCAs• C.J.
'esty
Parraguirre
J.
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DOUGLAS, J., with whom CHERRY, J., agrees, dissenting:
This termination of parental right's case cries out for remand
to the district court for a new hearing as to the best interests of the
children in light of their mother's death.
The district court findings regarding parental fault and the
children's best interests revolved around the danger posed by the mother,
Abigail, and her supervision of the children, as well as their father, Arli's
failure to take protective action.
As to Arli, the facts establish he successfully completed his
case plan. That is, he successfully completed parenting classes and
participated in the required counseling prior to the district court's
termination hearing. At the same time of the hearing, both parents
participated and both parents initially appealed the district court's order.
However, this court received a notice indicating that Abigail passed away
and that the appeal was dismissed.
I submit that "terminating parental rights is 'an exercise of
awesome power' that is 'tantamount to imposition of a civil death penalty"
and is subject to close scrutiny. In the MatterS of Parental Rights as to
A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 763 (2006) (footnote omitted)
(quoting In the Matter of Parental Rights as to N.J., 116 Nev. 790, 795, 8
P.3d 126, 129 (2000) (internal quotations omitted)).
It is my belief that close scrutiny is required due to the death
of Abigail and Arli's completion of his case plan. The district court's order
to terminate both parents' rights was due primarily to the actions of the
deceased mother. As such, this matter should be remanded to the district
court for a new hearing as to the children's best interests and Arli's
parental rights.
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Justice requires more than a mechanical application of the
presumptions as to the children's best interests and "token efforts" as
related to the care of the children.
1174
Douglas
I concur:
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SAITTA, J., concurring in part and dissenting in part:
Although I otherwise agree with the majority, I write
separately to express my concern about whether there was substantial
evidence to support the district court's finding of parental fault. The
majority opinion and the district court base their decisions on the fact that
Arli did not take what could be considered sufficient protective action to
prevent the children's mother from forcing them to swallow foreign objects
while he was not present. As the majority acknowledges, Arli testified
that he did not "believe" that Abigail was intentionally making their
children swallow foreign objects or improperly supervising them.
Although a close call, I am not convinced that this mistaken belief and
subsequent failure to protect, when combined with Arli's successfully
completed case plan, amount to substantial evidence that Arli has
"refuse[d] to provide proper or necessary subsistence, education, medical
or surgical care, or other care necessary for the child's health, morals or
well-being." NRS 128.014(2). Therefore, I dissent as to the majority's
holding that substantial evidence existed supporting the district court's
finding of the parental fault of neglect.
J.
Saitta
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