Tammila G. v. State, Department of Human Resources

Statutes cited

Key holdings

Practitioner summary

Standard of review: A party petitioning to terminate parental rights must establish by clear and convincing evidence that (1) termination is in the child's best interest and (2) parental fault exists, citing NRS 128.105 and Matter of Parental Rights as to N.J., 116 Nev. 790, 8 P.3d 126 (2000). The court reiterated that termination is "an exercise of awesome power" that is "tantamount to imposition of a civil death penalty" (quoting Smith v. Smith and Drury v. Lang through N.J.), and that it will "closely scrutinize[ ] whether the district court properly preserved or terminated the parental rights at issue." Factual findings in a termination order are reviewed for substantial evidence, and the appellate court will not substitute its own judgment for that of the district court (citing Kobinski v. State, 103 Nev. 293, 738 P.2d 895 (1987)). Adoptive placement: Tammila argued that the Federal Adoption and Safe Families Act of 1997 (ASFA), with which Nevada law complies via A.B. 158 (1999) in order to receive federal funding under 42 U.S.C. § 671(a) (2000), requires the petitioning party to prove the existence of an adoptive placement. Applying a plain-meaning reading (citing Matter of William S., 122 Nev. ___, 132 P.3d 1015 (2006)), the court held that 42 U.S.C. § 675(5)(E) (2000) does not impose such a burden; rather, it directs state agencies to "identify, recruit, process, and approve a qualified family for an adoption" concurrently with filing a termination petition, and expressly permits the state to forgo the concurrent search when "the child is being cared for by a relative" - as here. Nor does Nevada law contemplate such a burden: under NRS 128.110(1), upon termination the child is placed with "some person or agency qualified by the laws of this State to provide services and care to children," and nothing in the Nevada statutes requires proof of an adoptive placement before termination. Because proof of adoptive placement is not required, the court declined to address Tammila's related argument under NRS 127.020 concerning consent to adoption by children over fourteen. Child's desires under NRS 128.107(2): When the child is not in the parent's physical custody, the district court shall consider the child's "desires regarding termination, if the court determines he is of sufficient capacity to express his desires," but the statute does not assign a burden of production. NRS 128.109(2) presumes termination is in the child's best interest where the child has been placed outside the home pursuant to chapter 432B of NRS and has resided outside the home for 14 of any 20 consecutive months; that presumption is rebuttable and shifts the burden to the parent (citing Matter of Parental Rights as to D.R.H., 120 Nev. 422, 92 P.3d 1230 (2004); Matter of Parental Rights as to K.D.L., 118 Nev. 737, 58 P.3d 181 (2002); Matter of Parental Rights as to J.L.N., 118 Nev. 621, 55 P.3d 955 (2002)). Reading the statutes in harmony (citing Albios v. Horizon Communities, Inc., 122 Nev. ___, 132 P.3d 1022 (2006), quoting Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 860 P.2d 720 (1993)), the court held that when the NRS 128.109(2) presumption applies, the burden to adduce evidence of the child's desires under NRS 128.107(2) lies with the parent, as part of rebutting the presumption. The court expressly reserved the question of which party bears that burden when the NRS 128.109(2) presumption does not apply. Application: The children were removed under NRS Chapter 432B on May 21, 2002, and had resided outside the home for over forty consecutive months by the October 7, 2005 termination hearing, so the NRS 128.109(2) presumption applied. Tammila offered no evidence of the children's desires; a CASA report from approximately two years before the hearing (and predating placement with the prospective adoptive relatives) indicated the children did not wish to be adopted, and the district court considered it. On best interests, Tammila's claims of sobriety and stability lacked independent evidentiary support, she continued to live with her boyfriend in the same house where the abuse occurred, and the children were flourishing with their aunt and uncle. On parental fault, substantial evidence supported both presumptions under NRS 128.109(1)(a) (token efforts under NRS 128.105(2)(f) - communication and nonmonetary gifts without financial support were insufficient) and NRS 128.109(1)(b) (failure of parental adjustment under NRS 128.105(2)(d) - noncompliance with the case plan within six months of its July 24, 2002 commencement and continuing for three years). The court concluded the district court did not abuse its discretion and affirmed.

In plain language

This case is about when a court may permanently end a parent's legal rights to her children, and who has to prove what before that happens. In May 2002, Child Protective Services removed two children, then twelve and eleven years old, from the home of their mother, Tammila G., and her boyfriend, George L. CPS had received a report that friends of the couple were binding the children with duct tape, slapping, and kicking them while the adults were away. According to the children, this happened repeatedly, and although they told their mother, she did not take steps to stop it. During a follow-up home visit, Tammila admitted to recent methamphetamine use, and George was arrested for a probation violation after officers found methamphetamine and drug paraphernalia in the house. The children were made wards of the State and placed in foster care. The Division of Child and Family Services (DCFS) gave Tammila a "case plan" - a list of steps she had to complete to be reunited with her children, such as drug testing, a psychiatric evaluation, parenting classes, and proof of a stable home and income. Over roughly three and a half years, DCFS filed six reports with the court, each showing that Tammila was not completing the plan. To her credit, she visited the children regularly while they were in Nevada, missing only one visit. Eventually the children were placed with their maternal aunt and uncle in Louisiana, who were interested in adopting them, and the State petitioned to end Tammila's parental rights. After a hearing, the district court granted the petition, finding both that termination was in the children's best interests and that "parental fault" existed - the two things Nevada law requires before parental rights can be terminated. On appeal, Tammila made two main arguments. First, she said the State had to prove that an actual adoptive placement existed for the children before her rights could be terminated, relying on the Federal Adoption and Safe Families Act of 1997 (ASFA), a federal law Nevada follows in order to receive federal child-welfare funding. The Nevada Supreme Court rejected this. Reading the federal statute's plain language, the court explained that it requires states to begin looking for an adoptive family at the same time as they seek to terminate parental rights - not to prove one exists first - and the statute even excuses that concurrent search when "the child is being cared for by a relative," which was the situation here. The court also found nothing in Nevada's own statutes requiring proof of an adoptive placement before termination. Second, Tammila argued that the State should have presented evidence of what the children themselves wanted. Nevada law (NRS 128.107(2)) tells courts to consider a child's desires about termination if the child is capable of expressing them, but the statute does not say which side must produce that evidence. Separately, another statute (NRS 128.109(2)) creates a "presumption" - a legal starting assumption - that termination is in a child's best interest once the child has lived outside the parent's home under a protective placement for 14 of any 20 consecutive months. Here, the children had been out of the home for over forty consecutive months. The court held that once that presumption kicks in, it is the parent's burden - not the State's - to offer evidence of the children's desires if the parent wants the court to consider them, because such evidence is part of rebutting the presumption. Tammila offered no such evidence. The court noted that a CASA report from about two years before the hearing indicated the children did not wish to be adopted, but that report predated their move to their aunt and uncle's home, and the district court considered it and terminated the rights anyway. Finally, the court reviewed the record and concluded that substantial evidence supported the termination. Tammila claimed two years of sobriety and a stable home but presented no independent proof of either; she still lived with her boyfriend in the same house where the abuse occurred, and the record did not show the threat had been eliminated. Meanwhile, the children were described as flourishing with their aunt and uncle in Louisiana, with improved school performance and behavior. The Nevada Supreme Court affirmed the termination.