IN RE: PARENTAL RIGHTS AS TO S.V.

Statutes cited

Key holdings

Practitioner summary

The court applied the two-part termination framework under NRS 128.105(1) and In re Termination of Parental Rights as to N.J., 116 Nev. 790, 800-01, 8 P.3d 126, 132-33 (2000), requiring clear and convincing evidence of (1) at least one ground of parental fault and (2) that termination serves the child's best interest. Questions of law are reviewed de novo and factual findings for substantial evidence. 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). On parental fault, the court affirmed the abandonment finding, noting that the statutory presumption under NRS 128.012(2) was properly applied because Martina failed to communicate with or support S.V. for more than six months, and that application of the presumption "is not discretionary." In re N.J., 116 Nev. at 804, 8 P.3d at 135. The court held Martina did not rebut the presumption: intent is the decisive factor in abandonment and may be shown by the facts and circumstances of the case (citing In re Parental Rights as to Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996), superseded by statute on other grounds as recognized by In re N.J., 116 Nev. at 798-01, 8 P.3d at 131-33). Sporadic child-support payments before the termination filing, months-long gaps in contact (including during incarceration), absence of letters, cards, or gifts, and failure to oppose John's sole-custody motion supported the abandonment finding. See Sernaker v. Ehrlich, 86 Nev. 277, 280-81, 468 P.2d 5, 7 (1970). The court separately affirmed the unfitness finding under NRS 128.018, citing evidence of S.V.'s tardiness and absences from school while in Martina's care, repeated episodes of leaving S.V. with other caregivers, the Uber incident, drug-related arrests, failed drug tests, noncompliance with court-ordered substance abuse counseling, and a felony conviction for driving under the influence of illicit drugs. The court referenced NRS 128.105(1)(b) (conduct toward the child diminishing parental suitability) and NRS 128.106(1)(d), (f) (consideration of felony convictions and consistent inability to care for the child due to controlled substance use). Because only one ground of parental fault is required, NRS 128.105(1)(b), the court did not review the district court's remaining fault findings. On best interest, the court rejected Martina's argument that S.V. "objected" to termination, distinguishing his expressed desire to see her again from an objection to terminating her rights, and referencing NRS 125C.0035(4)(a) regarding consideration of a child's preference. The court found substantial evidence that S.V. has thrived with John and is bonded with John's wife, who intends to adopt him, citing In re N.J., 125 Nev. at 843, 221 P.3d at 1261, and NRS 128.005(2)(c) (child's continuing need for proper physical, mental, and emotional growth and development).

In plain language

This case involves the termination of a mother's legal rights to her 11-year-old son. S.V. was first removed from his mother Martina's care when he was two years old, after she left him with a babysitter and did not return. Once a paternity test confirmed John was S.V.'s biological father, child welfare authorities placed S.V. with John, and S.V. has lived with John and John's wife ever since. Over the following years, Martina had inconsistent contact with S.V. After the parties initially agreed to joint custody and a visitation schedule, Martina did not consistently follow it. In 2018, when S.V. was seven, Martina tried to put him alone into an Uber to send him back to John at the end of a visit, prompting another report to child welfare. When John sought sole custody, Martina did not appear at the hearing, and the court awarded John sole legal and physical custody. In July 2019, John petitioned to terminate Martina's parental rights altogether. Around the same time, Martina was in a car crash with her one-year-old daughter in the car while driving with a suspended license and under the influence of multiple illicit drugs. She then served roughly four months in jail for failing to comply with drug counseling ordered in a prior criminal case. Martina did not see S.V. between Spring 2018 and Spring 2021. After a hearing, the district court terminated Martina's parental rights, finding both that there were grounds of parental fault (including abandonment and unfitness) and that termination was in S.V.'s best interest. The Nevada Supreme Court affirmed. The court concluded there was substantial evidence that Martina had abandoned S.V. - she went long stretches without contact, sent no letters, cards, or gifts, and only paid child support sporadically until the termination action was filed. The court also concluded that her drug use, felony conviction for driving under the influence of illicit drugs, missed school days for S.V. while in her care, and pattern of leaving S.V. with others showed she was an unfit parent. Finally, the court agreed that termination was in S.V.'s best interest because S.V. has thrived with John and is bonded with John's wife, who intends to adopt him.