IN RE: PARENTAL RIGHTS AS TO J.B.J.

Statutes cited

Key holdings

Practitioner summary

Standard of review: Questions of law are reviewed de novo, and the district court's factual findings are reviewed for substantial evidence - "that which 'a reasonable person may accept as adequate' to support a conclusion." In re Parental Rights as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Witness credibility is not reweighed on appeal. Ellis, 123 Nev. at 152, 161 P.3d at 244. Doctrinal framework: Termination of parental rights requires clear and convincing evidence of (1) at least one ground of parental fault and (2) that termination serves the child's best interest. NRS 128.105(1); In re Termination of Parental Rights as to N.J., 116 Nev. 790, 800-01, 8 P.3d 126, 132-33 (2000). Unfitness is a recognized fault ground under NRS 128.105(1)(b)(3) and is defined by NRS 128.018. NRS 128.106(1)(h) directs courts considering unfitness to consider, without limitation, the "[i]nability of appropriate public or private agencies to reunite the family despite reasonable efforts on the part of the agencies." NRS 128.107 requires the court to consider the services offered to and efforts made by the parents and whether additional services would bring about lasting change. NRS 432B.393(5)(f)-(g) directs the court, in determining whether reasonable efforts have been made, to base its determination on the circumstances of the particular family and any other matters the court deems relevant. Application - parental fault: Because only one fault ground is required under NRS 128.105(1)(b), the majority addressed only unfitness. The court relied on: (a) the aborted trial reunification when Johney allowed unvetted individuals into the home contrary to DFS's express requirement, and his minimization of that conduct; (b) the licensed psychologist's testimony that Johney was "not suited to be the primary child-care provider," was operating at his "absolute highest level," and that further services would not increase "his functioning beyond where it is now"; (c) the psychologist's testimony that Johney's protective-capacity issues from prior DFS petitions persisted, including his suggestion that a girlfriend could watch J.B.J.; and (d) Johney's failure to articulate a workable plan for daytime supervision given his night-shift employment. Contradictory testimony from Johney and his therapist did not require a different result because credibility determinations belong to the district court. Application - best interest: NRS 128.109(2) creates a rebuttable presumption that termination is in the child's best interest when the child has been placed outside the home pursuant to chapter 432B for 14 of any 20 consecutive months. The presumption applied because J.B.J. had been in protective placement for nearly his entire life - approximately three years - by the time of trial. Johney did not rebut the presumption. Affirmative best-interest evidence included J.B.J.'s bond with and integration into the foster placement with a maternal relative since shortly after birth, the meeting of his developmental, cognitive, and psychological needs in that placement, and the presence of four siblings already adopted by the same relative who was willing to be a permanent placement. Dissent: Justice Lee would reverse, invoking the heightened scrutiny owed in termination appeals. In re Parental Rts. as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 762-63 (2006); In re Termination of Parental Rts. as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000). Drawing on Champagne v. Welfare Div. of Nevada State Dep't of Hum. Res., 100 Nev. 640, 648, 691 P.2d 849, 855 (1984), and In re Parental Rights as to Montgomery, 112 Nev. 719, 728, 917 P.2d 949, 956 (1996), the dissent argued that unfitness must be "severe and persistent" and that DFS did not produce clear and convincing evidence that Johney's parenting deficiencies cleared that bar. The dissent emphasized that DFS introduced no evidence the unvetted individuals were an actual threat, that Johney's prior DFS history involved leaving children with their mother (from whom he had since separated), and that Johney complied substantially with his case plan, progressed through video visits to supervised and then unsupervised at-home placement, had no criminal or drug-abuse history, and maintained stable housing and employment. The dissent would also have rejected the token-efforts ground (citing NRS 128.109(1)(a), NRS 128.105(1)(b)(6)(II), (III), and In re Parental Rts. as to A.D.L., 133 Nev. 561, 568-69, 402 P.3d 1280, 1287 (2017)), the failure-of-parental-adjustment ground (citing NRS 128.109(1)(b) and noting DFS's concession of substantial compliance), and the neglect and risk-of-serious-injury grounds (because J.B.J. was removed at birth and there was evidence of a parent-child bond).

In plain language

This case is about whether a Nevada district court was right to permanently end a father's legal relationship with his young son. In Nevada, ending a parent's rights - sometimes called "termination" - requires the state to prove two things by "clear and convincing evidence" (a high level of proof, though not as high as the criminal standard): first, that the parent is at fault in some way the law recognizes, and second, that ending the relationship is in the child's best interest. The child, J.B.J., was placed outside Johney's home essentially from birth and had lived with a maternal relative - alongside four of his siblings who had already been adopted by that relative - for nearly three years by the time of the termination trial. DFS had earlier been involved with Johney's other children, and one of its central concerns was Johney's "protective capacity" - his ability to recognize danger and keep his children safe. DFS gave Johney a chance at trial reunification, but ended it after caseworkers found people in the home with Johney and J.B.J. whom Johney had not first cleared with DFS, as he had been required to do. According to the majority, Johney downplayed this and could not explain why having unvetted strangers around a not-quite-three-year-old could be unsafe. A licensed psychologist who evaluated Johney testified that he was already functioning at his highest level, was "not suited to be the primary child-care provider," and that more services would not improve his parenting. The psychologist also noted that when asked about daycare plans, Johney said a girlfriend could watch the child. There were also unresolved questions about how Johney, who worked nights, would supervise a toddler during the day on only four hours of sleep. The majority concluded that this evidence was enough to support the district court's finding that Johney was an "unfit" parent and that DFS could not reunify the family despite reasonable efforts. Because Nevada law requires only one ground of parental fault, the court did not need to address the other grounds the district court found. On the best-interest question, a Nevada statute creates a presumption that termination is in a child's best interest when the child has lived outside the home for 14 of any 20 consecutive months pursuant to chapter 432B placement; J.B.J. had been out of the home for nearly his entire life. The majority held Johney did not rebut that presumption, and that the child's bond with the maternal relative who had already adopted four of his siblings supported termination. Justice Lee dissented. She would have reversed, characterizing termination as "an exercise of awesome power that is tantamount to imposition of a civil death penalty" and arguing that DFS did not carry its heavy burden. She emphasized that Johney had no criminal or drug-abuse history, maintained stable housing and employment, separated from the mother whose care issues had driven prior cases, complied substantially with his case plan, made progress with his therapist, and had progressed from video visits to unsupervised at-home placement before reunification was halted. She also noted DFS produced no evidence that the unvetted individuals in the home were actually a threat, and that Johney testified he had given DFS a name and never received a response.