WASHOE COUNTY DSS VS. KORY L.G. (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

By the Court, Douglas, J. (Pickering, C.J., and Gibbons, Hardesty, Parraguirre, Cherry, and Saitta, JJ., concurring; en banc). The court addressed whether a nonoffending parent - whose child was placed in state custody based on the other parent's neglect and against whom no neglect was substantiated - may be required to comply with a case plan for reunification under NRS 432B.560, and whether presumptions arising in the dependency proceeding may operate against that parent in a subsequent termination proceeding. Constitutional framework: Parents have a fundamental liberty interest in the care, custody, and control of their children, protected by the Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Parental Rights as to C.C.A., 128 Nev. 166, 169, 273 P.3d 852, 854 (2012). Substantive due process prohibits depriving parents of custody without a finding of unfitness, and requires a legitimate basis for subjecting parents to dependency procedures. Santosky v. Kramer, 455 U.S. 745 (1982); Licari v. Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994). When a petition alleges neglect by only one parent, the other parent retains constitutional protections and must be treated individually. See NRS 432B.457; NRS 432B.510(4)(c); NRS 432B.520(1). Dependency and termination presumptions: Under NRS 432B.590(4) and NRS 128.109(1)(a), (2), placement outside the home for 14 of any 20 consecutive months triggers a presumption of token efforts (parental fault) and that termination serves the child's best interest; NRS 128.109(1)(b) and NRS 128.105(2)(d) create a failure-of-parental-adjustment presumption for failure to substantially comply with a reunification plan within six months. These presumptions are rebuttable and shift the burden to the parent. In re Parental Rights as to J.L.N., 118 Nev. 621, 625-26, 55 P.3d 955, 958 (2002). Holding: The juvenile court properly had jurisdiction over A.G. based on the mother's neglect (NRS 432B.330(1)(b) requires neglect by only 'a person' responsible for the child). But requiring Kory to complete a reunification case plan after the neglect petition was dismissed as to him, and denying return of the child, violated his constitutional rights as a nonoffending parent - one against whom no allegations of abuse, neglect, or unfitness were substantiated. While NRS 432B.560 may permit ordering services for a parent, it does not permit requiring a noncustodial nonoffending parent to complete a reunification case plan on these facts. Because the out-of-home placement (14 of 20 months) and the case-plan noncompliance flowed from that unconstitutional requirement, the NRS 128.109 presumptions could not be applied against Kory; doing so would be fundamentally unfair. If the agency had concerns about Kory's drug use, it should have maintained a neglect petition and sought to substantiate neglect under NRS 432B.330. The court recognized a parental placement preference where the child was removed due to the other parent's conduct. See, e.g., In re D.S., 52 A.3d 887 (D.C. 2012). Clear and convincing evidence: In the absence of the presumptions, the district court also correctly found Social Services failed to prove parental fault (NRS 128.105(2)) or that termination served A.G.'s best interest (NRS 128.105; NRS 128.106; NRS 128.108) by clear and convincing evidence, given A.G.'s continuing love and ties with Kory and his ability to care for her. The court affirmed, reviewing for substantial evidence. Matter of Parental Rights as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 763 (2006).

In plain language

This is a leading Nevada case on the rights of a 'nonoffending parent' - a parent whose child ends up in state custody because of the OTHER parent's conduct, not because of anything that parent did. In May 2009, two-year-old A.G. was placed in the protective custody of Washoe County Department of Social Services after her mother, Rachael, was found extremely intoxicated while caring for her at a campsite. A.G.'s father, Kory, was not present and had nothing to do with the events leading to the removal. In fact, Kory had been A.G.'s primary caretaker since birth and she was well cared for; at the time, the child was temporarily with Rachael because Rachael had obtained a temporary protective order (TPO) against Kory. That TPO was later modified and then dismissed for lack of evidence. Even though the only allegation against Kory in the neglect petition was the TPO - which was dismissed - and Social Services agreed to dismiss the neglect petition as to Kory, the agency still gave Kory a 'case plan' requiring drug testing, a substance abuse evaluation, and a domestic violence evaluation (because a drug test taken before he even had a lawyer came back positive). The court kept the child out of Kory's custody based on concerns about his drug use, and Kory did not fully comply with the case plan. Because the child was out of the home for more than 14 of 20 months and Kory did not complete the plan, Social Services invoked legal 'presumptions' that a parent who does these things is at fault and that termination is in the child's best interest, and petitioned to terminate Kory's parental rights. After a three-day trial, the district court denied the petition, finding Kory was a nonoffending parent whose constitutional rights had been violated. The Supreme Court affirmed. It held that keeping a child from a parent who did not cause the removal, was never found to have neglected the child, and as to whom the neglect petition was dismissed, violates that parent's fundamental constitutional right to parent. Because the out-of-home placement and the failure to complete the case plan resulted from an unconstitutional requirement, the termination presumptions under NRS 128.109 could not be used against Kory. The Court explained that if the agency had genuine concerns about Kory's drug use, the proper course was to maintain and prove a neglect petition against him - not to impose a reunification case plan on a parent who should never have been required to complete one. The Court also agreed that, without the presumptions, Social Services failed to prove parental fault or that termination was in A.G.'s best interest by clear and convincing evidence.