Arli P.M. v. State Dep't of Family Servs. (In re A.P.M.)

• Decision Date: 10 September 2015
• Docket Number: No. 64214.,64214.
• Citation: 356 P.3d 499,131 Nev. Adv. Op. 66
• Parties: In the Matter of the PARENTAL RIGHTS as to A.P.M. and E.M.M. Arli P.M., Appellant, v. State of Nevada Department of Family Services; and A.P.M. and E.M.M., Minors, Respondents.
• Court: Nevada Supreme Court

356 P.3d 499

131 Nev. Adv. Op. 66

In the Matter of the PARENTAL RIGHTS as to A.P.M. and E.M.M.Arli P.M., Appellant

v.State of Nevada Department of Family Services; and A.P.M. and E.M.M., Minors, Respondents.

No. 64214.

Supreme Court of Nevada.

Sept. 10, 2015.

Rehearing Denied Oct. 22, 2015.

David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy Special Public Defender, Clark County, for Appellant.

Steven B. Wolfson, District Attorney, and Janne M. Hanrahan and Ronald L. Cordes, Deputy District Attorneys, Clark County, for Respondent State of Nevada Department of Family Services.

Legal Aid Center of Southern Nevada and Mary F. McCarthy and Barbara E. Buckley, Las Vegas, for Respondents A.P.M. and E.M.M.

Before the Court En Banc.

OPINION

By the Court, GIBBONS, J.:

In this appeal, we consider two issues of first impression arising from a termination of parental rights. First, we consider whether the district court may terminate the parental rights of a parent who has completed a case plan for reunification. Second, we consider whether the district court must wait the entire 20 months before applying both the presumption of token efforts in NRS 128.109(1)(a) and the presumption that termination of parental rights is in the best interest of the child in NRS 128.109(2).

We first conclude that the district court may terminate the parental rights of a parent who has completed his or her case plan for reunification, if termination is otherwise warranted under NRS 128.105. Second, we conclude that the district court is not required to wait the entire 20 months before applying the presumptions found in NRS 128.109(1)(a) and NRS 128.109(2), as long as the child has been removed from his or her parents' home pursuant to NRS Chapter 432B for at least 14 months during any consecutive 20–month period. Having resolved these legal issues, we further conclude that the record contains substantial evidence supporting the district court's decision to terminate appellant's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Arli M. and his wife Abigail M. had three children together: J.M.,¹ A.P.M., and E.M.M. From July 2006 to November 2011, seven separate incidents occurred in which one of the three children swallowed foreign objects, such as coins, magnets, and batteries. All of these swallowing incidents happened while Arli was at work and Abigail was at home with the children. On the latest occasion, doctors had to surgically remove a large battery that was lodged in E.M.M.'s throat. Following E.M.M.'s surgery, the doctors grew concerned that Abigail was forcing her children to swallow foreign objects. The doctors explained that three-year-old E.M.M. swallowing the large battery was the equivalent of an adult swallowing a golf ball, making it highly unlikely that he swallowed it on his own. Due to their concerns, the doctors initiated a child protective services investigation.

In November 2011, the Clark County Department of Family Services (DFS) removed A.P.M. and E.M.M. from their parents' home pursuant to NRS Chapter 432B. In July 2012, the juvenile court entered an order granting DFS legal custody of the children, and the children were placed in foster care. Arli and Abigail were issued case plans containing objectives for them to complete in order to regain custody of their children. Arli's case plan required that he take parenting classes and participate in counseling. Almost immediately, Arli successfully completed the parenting classes and was participating in the required counseling. Despite these efforts, however, the juvenile court reviewed Arli's and Abigail's progress and determined that the children should remain in foster care.

On December 6, 2012, DFS filed a petition in the district court to terminate the parental rights of Arli and Abigail pursuant to NRS Chapter 128. On April 10, 2013, the district court began a five-day evidentiary hearing on the matter. Evidence presented at the hearing showed that Arli took almost no action to ensure the safety of his children after any of the seven swallowing incidents. Throughout the proceedings, Arli testified that he did not believe that Abigail was intentionally making their children swallow foreign objects or improperly supervising them. Instead, Arli claimed that the children's injuries were simply a result of Abigail losing focus while caring for the children.

After the hearing, the district court granted the petition to terminate the parental rights of Arli and Abigail. The district court found that DFS established (1) parental fault by proving neglect,² and (2) that termination of parental rights was in the best interests of the children. The district court's findings regarding parental fault and the children's best interests revolved around the danger posed by Abigail's supervision of the children and Arli's failure to take protective action.

Both parents initially appealed from the district court's order, but this court received a suggestion of death indicating that Abigail had passed away, and her appeal was dismissed. Only Arli's appeal remains. On appeal, Arli argues that (1) the district court should not have terminated his parental rights because he completed his case plan, (2) the district court erred in applying the presumptions in NRS 128.109(1)(a) and NRS 128.109(2), and (3) substantial evidence does not support the district court's findings of parental fault and that termination was in the best interests of the children.

DISCUSSION

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.” In re Parental Rights as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 762 (2006). Termination of parental rights is “an exercise of awesome power.” In re Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000) ; see also Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989) (holding that severance of the parent-child relationship is “tantamount to imposition of a civil death penalty”). This court closely scrutinizes whether the district court properly terminated the parental rights at issue. N.J., 116 Nev. at 795, 8 P.3d at 129. We will uphold a district court's order terminating parental rights when it is supported by substantial evidence. In re Parental Rights as to C.C.A.,

128 Nev., Adv. Op. 15, 273 P.3d 852, 854 (2012).

This appeal also raises issues of statutory interpretation. “The construction of a statute is a question of law, which this court ... reviews de novo.” Matter of Petition of Phillip A.C., 122 Nev. 1284, 1293, 149 P.3d 51, 57 (2006). Generally, the plain meaning of the words in a statute should be respected. Id. Thus, when a statute is clear on its face, this court will not look beyond the plain language to determine legislative intent. Id.

Prior to reaching the merits of the parental termination decision, two legal issues must be decided: (1) whether the completion of a case plan for reunification prohibits the district court from terminating parental rights, and (2) whether the presumptions found in NRS 128.109(1)(a) and NRS 128.109(2) can be applied before a full 20 months has elapsed.

Completing a case plan for reunification does not prohibit the district court from terminating parental rights

Arli was given a case plan under NRS 128.0155 containing written conditions and obligations imposed with the primary objective of reunifying the family. Arli argues that the district court should not have terminated his parental rights because he completed this case plan. We disagree.

We hold that a completed case plan does not prohibit the district court from terminating parental rights if termination is otherwise warranted under NRS Chapter 128. NRS 128.105 sets forth grounds for terminating parental rights. Along with requiring a finding of parental fault, the statute also states that “[t]he primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination.” NRS 128.105. Determining a child's best interest requires a consideration of many factors stemming from the “the distinct facts of each case.” N.J., 116 Nev. at 800, 8 P.3d at 133 ; see also NRS 128.005(2)(c) (“The continuing needs of a child for proper physical, mental and emotional growth and development are the decisive considerations in proceedings for termination of parental rights.”). Nowhere in NRS Chapter 128, however, has the Legislature stated that the district court is required to find that preserving parental rights is in the best interest of the child if the parent has completed his or her assigned case plan. While a completed case plan may be persuasive evidence that termination of parental rights is not in the child's best interest, by no means does it prohibit the district court from considering additional factors and determining otherwise.³

Accordingly, we conclude that the district court was not prohibited from terminating Arli's parental rights even though Arli had completed his case plan.

The presumptions in NRS 128.109(1)(a) and NRS 128.109(2) do not require that a full 20 months elapse before they apply

NRS 128.109 sets forth presumptions that apply to findings of parental fault and the best interest of the child when the child has resided outside of the home for an extended period of time. The statute states in relevant part:

1. If a child has been placed outside of his or her home pursuant to chapter 432B of NRS, the following provisions must be applied to determine the conduct of the parent:

(a) If the child has resided outside of his or her home pursuant to that placement for 14 months of any 20 consecutive months, it must be presumed that the parent or parents have demonstrated only token efforts to care for the child as set forth in paragraph (f) of subsection 2 of NRS 128.105.

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2. If a child has been placed outside of his

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