IN RE: PARENTAL RIGHTS AS TO J.S.S. AND J.S.S. (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The court applied the two-prong termination framework requiring clear and convincing evidence of (1) parental fault and (2) best interest of the child. NRS 128.105(1); In re Termination of Parental Rts. as to N.J., 116 Nev. 790, 800-01, 8 P.3d 126, 132-33 (2000). Standard of review: questions of law de novo, factual findings for substantial evidence. In re Parental Rts. as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014). On the expert-testimony challenge, the court applied an abuse-of-discretion standard. Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 (2008). The appellant had stipulated to Pacult's designation, triggering the invited-error doctrine. Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994). Failure to object to admission of the expert report waived the issue absent plain error, which was not argued. Lioce v. Cohen, 124 Nev. 1, 19, 174 P.3d 970, 981-82 (2008). On best interest, the court emphasized that Joshua's documented abuse and incarceration were weighed against his successful pre-incarceration visitation, low-risk assessment scores, status as a first-time parent, and Pacult's recommendation favoring conditional reunification. The court invoked Nevada's policy preference for both-parent involvement, NRS 125C.001(1), and cited persuasive authority that "Two parents are better than one, even if one parent falls far below the ideal," New Jersey Div. of Youth & Fam. Servs. v. D.S.H., 40 A.3d 734, 742-43 (N.J. Super. Ct. App. Div. 2012), as well as In re Dakota C.R., 404 S.W.3d 484, 503 (Tenn. Ct. App. 2012). The court reiterated that "[t]he purpose of Nevada's termination statute is not to punish parents, but to protect the welfare of children," In re Termination of Parental Rights as to N.J., 116 Nev. at 801, 8 P.3d at 133, and that termination is "tantamount to imposition of a civil death penalty," In re Parental Rts. as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 763 (2006). Because best interest was not established, the court did not reach parental fault. NRS 128.105. The court declined an invitation to revisit Matter of L.R.S., 140 Nev., Adv. Op. 62, 555 P.3d 1175, 1179 (2024), which held that the considerations in NRS 128.107 and presumptions in NRS 128.109 do not apply to private termination proceedings. On attorney fees, the court applied abuse-of-discretion review under EDCR 5.219(b), which permits fees as a sanction for "[m]ultiplying the proceedings in a case so as to increase costs unreasonably and vexatiously." Mack-Manley v. Manley, 122 Nev. 849, 860, 138 P.3d 525, 532-33 (2006). The district court's finding that neither party litigated unreasonably, frivolously, or vexatiously was unrebutted by the record.

In plain language

Christina S. and Joshua S. were never married but share two minor children. Christina asked the family court to terminate Joshua's parental rights - that is, to legally end his status as the children's father. The district court refused, finding that ending Joshua's parental rights would not be in the children's best interest. Christina appealed, and the Nevada Supreme Court affirmed the district court's decision. To terminate parental rights in Nevada, a parent must prove two things by "clear and convincing evidence" (a high standard, more than the usual civil burden but less than the criminal "beyond a reasonable doubt"): (1) that there is at least one ground of "parental fault," and (2) that termination is in the children's best interest. Because Christina lost on the second prong, the appellate court did not need to reach the first. The court acknowledged that Joshua had serious problems. He was incarcerated at the time of trial for abusing one of the children and Christina, he had a history of domestic abuse, and he continued to minimize that history. On the other hand, the district court found that Joshua had successfully completed supervised and unsupervised visits before incarceration, was assessed as low-risk to reoffend, and was a first-time parent. A licensed clinical social worker, John S. Pacult, evaluated Joshua and concluded that reunification - subject to conditions - was preferable to termination. Christina also already has sole legal and physical custody, so Joshua poses no immediate risk to the children. Christina raised three issues on appeal. First, she objected to Pacult's expert testimony, but the Supreme Court held she could not complain on appeal because she had stipulated to his designation as an expert and did not object when his report was admitted. Under the "invited error" doctrine, a party cannot complain about errors she helped cause. Second, she argued the district court got the best-interest analysis wrong. The Supreme Court disagreed, finding "substantial evidence" supported the district court's careful weighing of the evidence, and noted that Nevada's termination statute is meant to protect children, not punish parents. Third, she argued the district court should have ordered Joshua to pay her attorney fees because he allegedly filed a motion in bad faith to remove her lawyer. The Supreme Court found no abuse of discretion in the district court's conclusion that neither party had litigated unreasonably or vexatiously. The Supreme Court also declined Christina's request to reconsider a recent decision (Matter of L.R.S.) holding that certain statutory considerations and presumptions in NRS 128.107 and NRS 128.109 do not apply to private (parent-versus-parent) termination cases.