IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 68469
RIGHTS AS TO K.M.C. AND M.M.C.,
A/K/A M.D., MINORS.
CLARK COUNTY DEPARTMENT OF FILED
FAMILY SERVICES, APR 1 5 2016
Appellant,
vs. ND,EMAN
EPE..Q0
KRYSTAL D.; AND WILL C.,
Respondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a petition
to terminate parental rights. Eighth Judicial District Court, Family
Division, Clark County; Cynthia N. Giuliani, Judge.
K.M.C. was initially removed from respondents' care in May
2012, and was reunified in March 2013. Later that March, however,
Krystal D. gave birth to M.M.C. and both tested positive for
methamphetamine. As a result, K.M.C. and M.M.C. were removed from
respondents' care. The main concern regarding respondents' parenting
was their drug use. Will C. engaged in his case plan, attended substance
abuse treatment programs, attended parenting classes, and submitted
drug tests as required by appellant. Except for one relapse in the summer
of 2014, Will C.'s drug test results showed no recent drug use and he
testified that he was not using drugs and had a strong support system in
place to maintain his sobriety. He also generally maintained employment
and consistently visited the children. At the termination hearing, the
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district court found that appellant had failed to establish parental fault
grounds as to Will C. by clear and convincing evidence and denied the
petition. This court reviews questions of law de novo and will uphold
district court factual findings when they are supported by substantial
evidence. In re Parental Rights as to A.L., 130 Nev., Adv. Op. 91, 337 P.3d
758, 761 (2014).
Appellant first argues that the district court erred because it
did not address in its order the presumption of token efforts in NRS
128.109(1)(a) (1999), which is triggered when the child has been removed
from his or her home under NRS Chapter 432B and resided outside of the
home for 14 of 20 consecutive months.' Because appellant did not cite
NRS 128.109(1)(a) (1999) or otherwise reference or invoke this
presumption in either its petition or at the termination hearing, appellant
failed to properly raise this issue in the district court and we need not
consider it on appea1. 2 Old Aztec Mine, Inc. u. Brown, 97 Nev. 49, 52, 623
P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to
the jurisdiction of that court, is deemed to have been waived and will not
be considered on appeal."); see In re A.S., 134 Cal. Rptr. 3d 664, 669 (Ct.
'Because the district court independently determined that it was in
thefl children's best interest to terminate respondents' parental rights, any
error by the district court in failing to apply the best-interest presumption
in NRS 128.109(2) (1999) does not affect the outcome of this appeal.
Similarly, the district court's failure to enter specific written findings of
neglect as to Krystal D. is inconsequential to the outcome of this appeal,
as the district court found other parental fault grounds as to Krystal D.
2 The
district court noted that the children had not been out of the
home for 14 consecutive months, but made no express determination
under NRS 128.109 (1999).
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App. 2011) (holding that child welfare agency forfeited the application of a
statutory presumption when it did not cite to the presumption or argue to
the district court that the presumption applied); see also In re KR., 233
P.3d 746, 751 (Kan. Ct. App. 2010) (explaining that reliance on a
presumption of parental unfitness without pretrial notice that the State
would invoke the presumption was improper).
Appellant next asserts that the district court erred when it
determined that it was barred from considering testimony presented at
the termination hearing regarding two physical altercations between
respondents. Although the district court was not barred from considering
this testimony, appellant has failed to develop any argument addressing
how this testimony was directly relevant to any particular ground of
parental unfitness and thus that this issue warrants reversal. See NRS
128.105(2) (1999). These incidents were not adjudicated in the NRS
Chapter 432B proceeding, and addressing domestic violence was not part
of respondents' case plans. See NRS 128.105(2) (1999). Additionally,
contrary to appellant's assertions, the record demonstrates that the
district court considered the NRS 128.106 factors to the extent that they
were relevant. See In re J.D.N., 128 Nev., Adv. Op. 44, 283 P.3d 842, 850
(2012) (providing that the district court need not expressly refer to
statutory factors when the order demonstrates that the district court
considered the appropriate factors). Appellant's remaining arguments
lack merit as substantial evidence supports the district court findings. 3 In
3Appellant's termination petition and the district court's order only
reference NRS 128.014 (defining a neglected child) without reference to
NRS 128.105(2)(b) (1999) (identifying neglect as a parental fault ground).
Because the district court order resolves the allegation of neglect as to Will
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re Parental Rights as to A.L., 130 Nev., Adv. Op. 91, 337 P.3d at 761.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
Saitta
cc: Hon. Cynthia N. Giuliani, District Judge, Family Court Division
Clark County District Attorney/Juvenile Division
Christopher R. Tilman
Special Public Defender
Eighth District Court Clerk
...continued
C. that was presented in appellant's petition, the district court did not err
when it did not explicitly reference NRS 128.105(2)(b) (1999).
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