MATTER OF PARENTAL RIGHTS AS TO J.L.N. (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

The court reversed an order terminating an incarcerated mother's parental rights, holding the record lacked substantial evidence of best interest or parental fault. The parent-child relationship is a fundamental liberty interest, and termination is 'tantamount to imposition of a civil death penalty'; a petitioner must prove by clear and convincing evidence both that termination is in the child's best interest and parental fault, and terminations are upheld only on substantial evidence. Matter of Parental Rights as to N.J., 116 Nev. 790, 795, 801, 8 P.3d 126, 129, 133 (2000); 118 Nev. at 624-25, 55 P.3d at 957-58. Best interest. Under NRS 128.109(2) and NRS 432B.553(2), the best interest is presumed served by termination when a child has been placed outside the home for fourteen of any twenty consecutive months, but these are rebuttable presumptions; NRS 432B.553(2)(c) permits DCFS to forego termination for compelling reasons. 118 Nev. at 625-26, 55 P.3d at 958. The court held Diana rebutted the presumptions with compelling reasons: a strong, loving bond and the child's desire to reunite, an established relationship with the grandmother, a felony conviction unrelated to abuse or neglect, and imminent release. Parental fault / failure of adjustment. Failure of parental adjustment occurs under NRS 128.0126 when a parent is unable or unwilling within a reasonable time to correct the circumstances leading to placement; NRS 128.109(1)(b) creates a rebuttable presumption from failure to substantially comply with a case plan within six months. The court reaffirmed that a parent must be shown to be at fault and cannot be judged unsuitable for failing to comply with a plan impossible to satisfy. Champagne v. Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 857 (1984). Addressing incarceration for the first time in this posture, the court held that incarceration alone is insufficient to establish parental fault for failure of adjustment; courts must consider the nature of the crime, the sentence imposed, the victim, the parent's conduct toward the child before and during incarceration, and the child's needs. 118 Nev. at 627-29, 55 P.3d at 959-61. Because termination resulted solely from the passage of time triggered by Diana's incarceration - for writing bad checks - and DCFS conceded she complied with as much of the case plan as possible, the district court abused its discretion in finding parental fault. The court reversed.

In plain language

Diana N. was a single mother to her daughter J.L.N. She was on probation for old check-fraud and forgery convictions. After Diana left Wisconsin for Nevada without her probation officer's permission, her boyfriend reported her, and she was arrested and later incarcerated. When she was arrested, Diana asked that her children not be placed with the boyfriend because she believed he could not care for them. Despite her request, the court released the children to him, and the younger child was seriously injured, apparently abused by the boyfriend. The children then became wards of the state and were placed in foster care. The child welfare agency (DCFS) filed to terminate Diana's parental rights. But the agency itself acknowledged this was an 'unfortunate situation': J.L.N. had a strong, loving bond with Diana and wanted to reunite with her and the grandmother, Diana had completed as much of her case plan as possible while incarcerated (the plan was designed to be finished after her release), and Diana and the grandmother had stayed in constant contact. The agency said it only pursued termination because the child had been in state care long enough to trigger statutory time limits. The district court terminated Diana's rights anyway. The Nevada Supreme Court reversed. To terminate parental rights, the state must prove by clear and convincing evidence both that termination serves the child's best interest and that there is parental fault. The court held that the statutory presumptions favoring termination (triggered by a child being outside the home for fourteen of twenty months) are rebuttable, and Diana rebutted them with compelling reasons: the strong bond, the grandmother relationship, that Diana's crime was unrelated to child abuse, and that her incarceration would end soon. The court also held that a parent's failure to complete a case plan solely because of incarceration is not, by itself, parental fault. Most importantly, it held that incarceration alone is insufficient to establish failure of parental adjustment; courts must consider the nature of the crime, the sentence, the victim, the parent's conduct toward the child, and the child's needs. Because termination here rested essentially on the passage of time due to incarceration, the district court abused its discretion.