IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 69068
RIGHTS AS TO D.D.; S.D. AND J.D.,
MINOR CHILDREN.
SUZANNE J., FILED
Appellant,
vs. JUL 2 8 2016
WASHOE COUNTY DEPARTMENT OF TRACIE K. Llt4DEMAN
CLERK F S UPREME COURT
SOCIAL SERVICES, BY
\
DEPUTY CLERK
Respondent.
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order terminating
appellant's parental rights as to three of her minor children. Second
Judicial District Court, Washoe County; Egan K. Walker, Judge.
The children were removed from the home because of
appellant's drug use and failure to meet the children's needs. Nine
months after the children were removed, respondent filed a petition to
terminate appellant's parental rights as to the three children. After a
trial, the district court entered an order terminating appellant's parental
rights finding that the children's best interests would be served by
termination of appellant's parental rights as well as three grounds of
parental fault including abandonment, neglect, and risk of serious injury if
the children were returned to the home. This appeal followed.
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
(1999); 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
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law de novo and the district court's factual findings for substantial
evidence. In re Parental Rights as to A.L., 130 Nev., Adv. Op. 91, 337 P.3d
758, 761 (2014).
Having considered the parties' arguments and the record on
appeal, we conclude substantial evidence does not support the district
court's findings regarding parental fault. While there was a presumption
that appellant abandoned the children pursuant to NRS 128.012(2)
because she did not provide for the children's care or communicate with
the children for a period of six months, the record demonstrates that
appellant rebutted that presumption by demonstrating that she did not
have a settled purpose "to forego all parental custody and relinquish all
claims to the child[ren]." NRS 128.012; In re N.J., 116 Nev. at 803-04, 8
P.3d at 134-35 (explaining that the application of the statutory
presumption of abandonment is not discretionary, and once it is applied
the parent has the duty to prove that he or she did not intend to abandon
the child). Appellant repeatedly requested visitation with the children
from November 2014 through May 2015 and was denied that visitation.
She provided them letters and gifts. Further, while appellant failed to
complete four consecutive therapy sessions prior to her visitation with the
children, as requested by respondent, that requirement was never
approved by the court and the suggestion that family therapy was even
necessary was based, at least in part, on the permanency plan being
changed from reunification to termination, which occurred only four
months after appellant was provided a case plan. Accordingly, substantial
evidence does not support the district court's finding that appellant
intended to abandon her children and the district court erred by
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concluding that respondent established abandonment as a ground of
parental fault by clear and convincing evidence.
Additionally, substantial evidence does not support the district
court's finding that the children were neglected at the time of trial. The
record demonstrates that prior to January 2015, appellant had neglected
the children by failing to provide proper parental care by reason of her
fault or habits because of her drug addiction. At the time of the trial in
August 2015, however, appellant had been drug-free for over eight
months, she was caring for her newborn son, who had never been removed
from her care, and was enjoying overnight visitation with her other son
and appeared to be moving toward reunifying with him. While appellant
was not employed at the time of trial, she did testify that she had recently
had a very promising job interview and that she was residing in adequate
housing for the children. Furthermore, because the three children receive
$966 monthly in death benefits, appellant would be able to use those funds
to help her provide adequate care for the children. Thus, while the
children had been previously neglected by appellant, at the time of trial,
respondent failed to demonstrate by clear and convincing evidence that
the children would be neglected if returned to appellant's care.
Similarly, there is not substantial evidence demonstrating
that the children were at a serious risk of injury if returned to appellant's
care. NRS 128.105(2)(e) (1999) recognizes that parental fault may be
established if there is a "[disk of serious physical, mental or emotional
injury to the child if tRe child were returned to, or remains in, the home of
his or her parent." Appellant never abused the children and because at
the time of trial she had been drug-free for over eight months and had an
adequate home for the children, there was not a serious risk of injury to
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the children if they were returned to her care at that time. Therefore,
none of the district court's parental fault findings are supported by
substantial evidence and the district court erred by terminating
appellant's parental rights. 1 Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
J.
Dou
,
Gibbons
cc: Hon. Egan K. Walker, District Judge
Washoe County Public Defender
Washoe County District Attorney
Washoe District Court Clerk
1 Because substantial evidence does not support the district court's
conclusion that respondent established parental fault, we do not need to
reach the issue of whether the termination of appellant's parental rights
was in the children's best interest. NRS 128.105.
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