IN RE: PARENTAL RIGHTS AS TO A.P.M. AND E.M.M.

Statutes cited

Key holdings

Practitioner summary

Standard of review. A party petitioning to terminate parental rights must establish by clear and convincing evidence that termination is in the child's best interest and that parental fault exists, citing In re Parental Rights as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 762 (2006). Termination is "an exercise of awesome power" subject to close scrutiny. In re Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000); see also Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989). The district court's order will be upheld if supported by substantial evidence. In re Parental Rights as to C.C.A., 128 Nev., Adv. Op. 15, 273 P.3d 852, 854 (2012). Statutory construction is reviewed de novo, and plain language controls when clear. Matter of Petition of Phillip A.C., 122 Nev. 1284, 1293, 149 P.3d 51, 57 (2006). Effect of completed case plan. The court held that a parent's completion of a case plan issued under NRS 128.0155 does not bar termination if termination is otherwise warranted under NRS Chapter 128. NRS 128.105 requires both parental fault and a finding that termination serves the child's best interest, with the child's "continuing needs" being the "decisive considerations." NRS 128.005(2)(c). Determining best interest requires consideration of factors stemming from "the distinct facts of each case." N.J., 116 Nev. at 800, 8 P.3d at 133. The Legislature has not made case-plan completion dispositive, although such completion may be persuasive evidence weighing against termination. The opinion further notes that nothing in NRS 128.105 prohibits a finding of parental fault even if a case plan was completed. NRS 128.109 presumptions and the 14-of-20-months trigger. Construing the phrase "14 months of any 20 consecutive months" in NRS 128.109(1)(a) and NRS 128.109(2), the court held that once the 14-month threshold has been met within any consecutive 20-month period, the district court may apply the presumptions of token efforts and that termination is in the child's best interest, without waiting the full 20 months. The children here had been out of the home pursuant to NRS Chapter 432B for approximately 17 consecutive months, satisfying the trigger. Application - parental fault (neglect). NRS 128.014(2) defines a neglected child as one whose 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." Arli relied on Chapman v. Chapman, 96 Nev. 290, 294, 607 P.2d 1141, 1144 (1980), for the rule that "a finding of neglect must be based upon the treatment of the child while the parent has custody" and that 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." The court found Chapman distinguishable because Arli failed to leave the children in an environment known to be safe; after seven serious swallowing incidents - including one requiring surgery - Arli took "almost no protective action," supporting the neglect finding under NRS 128.105(2)(b). Because only one parental-fault ground is needed under NRS 128.105(2), the court declined to address discrepancies between the district court's oral and written findings on other grounds, citing Rust v. Clark Cnty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987), for the principle that the written order controls. The court also declined to consider Arli's argument concerning Abigail's Fifth Amendment privilege, because he did not explain how alleged violations of her rights applied to his case. Application - best interests. The presumption under NRS 128.109(2) was triggered. The court held substantial evidence supported the conclusion that Arli failed to rebut the presumption: testimony showed Arli's limited relationship with his children, his failure to act after escalating swallowing incidents, the absence of further ingestion incidents after removal, and the foster parent's expressed desire to adopt. Abigail's death did not displace the conclusion that Arli "is unable to protect his children from danger, swallowing or otherwise." Dissents. Justice Douglas, joined by Justice Cherry, would have remanded for a new best-interests hearing in light of Abigail's death and Arli's completed case plan, quoting A.J.G. and N.J. on the "awesome power" of termination. Justice Saitta concurred in part but dissented from the parental-fault holding, viewing the evidence as insufficient under NRS 128.014(2) given Arli's mistaken belief and completed case plan.

In plain language

This case involves the termination of a father's parental rights to his two surviving children. Between 2006 and 2011, the family experienced seven separate incidents in which one of the three children swallowed foreign objects such as coins, magnets, and batteries. All occurred while the father, Arli, was at work and the mother, Abigail, was home with the children. One son, J.M., died in 2006 from undetermined causes. After three-year-old E.M.M. required surgery to remove a large battery lodged in his throat, doctors became concerned that Abigail was forcing the children to swallow objects and contacted child protective services. The doctors compared the size of the battery, for a child E.M.M.'s age, to an adult swallowing a golf ball. In November 2011, DFS removed A.P.M. and E.M.M. from the home and placed them in foster care. The juvenile court gave each parent a "case plan" - a written list of things they had to do (such as parenting classes and counseling) to try to get their children back. Arli completed his case plan quickly. Even so, in December 2012, DFS asked the court to terminate both parents' rights permanently. After a five-day hearing, the district court ordered termination, finding that Arli had been neglectful by not taking action to protect his children after the repeated swallowing incidents - including continuing to leave them alone with Abigail - and that termination was in the children's best interests. Abigail died while the appeal was pending, leaving only Arli's appeal. The Nevada Supreme Court addressed two new legal questions. First, it held that finishing a court-ordered case plan does not, by itself, prevent a court from terminating parental rights. A completed case plan can be persuasive evidence in the parent's favor, but Nevada law does not make it a shield against termination if the other legal grounds are satisfied. Second, it interpreted a Nevada statute that creates two legal presumptions when a child has lived outside the home "for 14 months of any 20 consecutive months": (1) the parent is presumed to have made only token efforts, and (2) termination is presumed to be in the child's best interest. Arli argued the district court had to wait the full 20 months before applying these presumptions. The Supreme Court disagreed - once the 14-month threshold is hit, the presumptions can apply right away. Here the children had been out of the home about 17 months, which was enough. Finally, the court held that "substantial evidence" - meaning enough credible evidence that a reasonable factfinder could agree - supported termination. The court pointed to Arli's failure to take protective action after seven serious swallowing incidents, his limited relationship with the children, and the foster parent's testimony that she had a close relationship with the children and wished to adopt them. The court noted that even with Abigail's death, Arli remained "unable to protect his children from danger, swallowing or otherwise." Two justices dissented in whole or in part. Justice Douglas, joined by Justice Cherry, would have remanded for a new best-interests hearing because Abigail - the apparent source of the danger - had died and Arli had completed his case plan. Justice Saitta agreed with most of the majority opinion but wrote separately to dissent on the parental-fault finding, viewing Arli's mistaken belief about Abigail and his completed case plan as not enough to amount to neglect.