Matter of Parental Rights As to A.J.G.

Decision Date28 December 2006
Docket NumberNo. 46438.,46438.
Citation148 P.3d 759
PartiesIn the Matter of the PARENTAL RIGHTS AS TO A.J.G. and A.C.W. Tammila G., A/K/A Tammala J.W., Appellant, v. The State of Nevada, Department of Human Resources, Division of Child and Family Services, Respondent.
CourtNevada Supreme Court

David M. Schieck, Special Public Defender, and Melinda E. Simpkins, Deputy Special Public Defender, Clark County, for Appellant.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Brigid J. Duffy, Deputy District Attorney, Clark County, for Respondent.

Before BECKER, HARDESTY and PARRAGUIRRE, JJ.

OPINION

BECKER, J.

In this appeal, we consider two issues. First, we consider whether the State must prove the existence of an adoptive placement for a child before a court can terminate a parent's rights to that child. Second, we decide which party has the burden to present evidence of a child's desires, under NRS 128.107(2), in a parental rights termination case when the State has established the presumption under NRS 128.109(2) that it is in the child's best interest for the parent's rights to be terminated.

We first conclude that neither state nor federal law on parental rights termination requires the State to prove the existence of an adoptive placement for a child before a court can terminate parental rights. We next conclude that once the State has established the presumption under NRS 128.109(2), the parent has the burden to offer evidence of the child's desires regarding termination of the parent's rights if the parent wishes the court to consider those desires.

FACTS

In May 2002, Child Protective Services (CPS) removed A.J.G., then twelve years old, and A.C.W., then eleven years old, from the home of their mother, appellant Tammila G. and her boyfriend, George L.1 CPS received a referral that the children were being bound with duct tape, slapped, and kicked by friends of Tammila and George while they were away from home. According to the children, such incidents occurred repeatedly. Although the children informed Tammila about the incidents, she did not take steps to prevent the abuse from recurring.

Following the children's removal from the home, a CPS specialist and a probation officer conducted a home visit at Tammila and George's residence. Tammila admitted to recently using methamphetamine, and officers arrested George for violation of his probation after finding methamphetamine and other drug paraphernalia at the house. The juvenile division of the district court ordered that the children remain in protective custody pending further proceedings.

The Children's Resource Bureau (CRB) of the Division of Child and Family Services (DCFS) conducted a clinical assessment of the children and their family. Reports from family members indicated that Tammila exhibited auditory and visual hallucinations and erratic behavior. Because Tammila did not participate in a CRB assessment, however, CRB was unable to determine the impact of Tammila's mental state on the children and whether her behavior was caused by drug use or a naturally occurring psychosis. CRB recommended that the children be placed in foster care and that they have regular visitation with Tammila.

Upon the filing of an appropriate petition by the State, the district court found that it would be contrary to the children's welfare to reside with Tammila and George. Accordingly, the district court ordered that the children be made wards of the State and placed in foster care.

Subsequently, DCFS devised a case plan for Tammila with the ultimate goal of reunifying her and the children.2 From November 2002 to May 2005, DCFS filed six reports with the district court on a biannual basis updating the court on Tammila's progress in completing her case plan and on the children's situation in their foster home. Each report indicated that Tammila was not fulfilling the objectives of her case plan. Specifically, she failed to (1) submit to drug tests, (2) submit to a psychiatric evaluation, (3) enroll in and complete a parenting class, (4) provide proof of economic and residential stability, and (5) submit to a CRB assessment. Tammila attempted to comply with the mental-health objective of her case plan, but the facility denied her treatment because she refused to see a psychiatrist or take medication if necessary. To Tammila's credit, she did attend visitations with her children regularly, only missing one visit.

Following the third DCFS report, the district court concluded that Tammila had made only token efforts in her attempt to reunify with the children. DCFS, with the district court's approval, changed the children's permanency plan from reunification to "Other Permanent Planned Arrangement." Under this new permanency plan, the children would reside in foster care until reaching the age of majority. Alternatively, they could be adopted. If adoption became a viable option, DCFS would seek termination of Tammila's parental rights.

At some point, the children's maternal aunt and uncle, in Louisiana, expressed an interest in and willingness to accept placement of the children with them in Louisiana. The aunt and uncle were open to either foster placement or adoption. Based on the aunt and uncle's interest in caring for the children, DCFS, with the district court's approval, changed the children's permanency plan to "relative adoption by the maternal aunt and uncle in Louisiana." DCFS, along with the aunt and uncle, began the process necessary for the children's adoption. In 2004, DCFS placed the children with their aunt and uncle in Louisiana. According to DCFS, at that time, the children adjusted well to their new environment, and DCFS would continue to monitor their progress.

In April 2005, the State petitioned the district court to terminate Tammila's parental rights. At a hearing, the State presented the district court with evidence of Tammila's failure to fulfill substantially the objectives of her case plan. The district court also heard testimony from the children's aunt, with whom they were living. The aunt testified that the children were doing well in their home in Louisiana and that they were or would be receiving some counseling. The aunt also testified that Tammila had not visited the children in Louisiana and offered them no support beyond sending some nonmonetary gifts. Tammila did telephone the children frequently, but she would not keep to a specific schedule, and the children were often upset after talking to her, which led DCFS to terminate Tammila's telephone privileges with the children.

The district court also heard testimony from Tammila, who expressed her desire to be reunited with her children but also acknowledged her failure to comply with her case plan. Tammila testified that she had been sober for two years but that she had not submitted proof of her sobriety to DCFS. She further testified that she was economically stable and in a stable residence, but she admitted that she never submitted proof of such stability to DCFS.

George, Tammila's boyfriend, also testified. He stated that he dealt with the friends who had abused the children by telling them never to do it again and by making them move off his property where they were living. He also admitted to not fulfilling his own case plan, stating that he would only work on his plan when Tammila worked on her plan.

Following the hearing, the district court granted the State's petition. The district court found that the State had established by clear and convincing evidence that it was in the children's best interest to terminate Tammila's parental rights and that parental fault existed. Specifically, the district court found that the presumption under NRS 128.109(2) applied, which established that it was in the children's best interest to terminate Tammila's parental rights. Additionally, the district court found that the presumptions under NRS 128.109(1)(a) and (b) applied, which established parental fault.

The district court also found that Tammila did not rebut these presumptions. Rather, the district court found that Tammila had failed within a reasonable time to remedy the conditions that led to the children's removal from her home, even though DCFS made reasonable efforts to reunite Tammila with her children, and that Tammila had failed to comply substantially with her case plan for over three-and-a-half years.

DISCUSSION

On appeal, Tammila argues that the evidence does not support terminating her parental rights because the State failed to prove that an adoptive placement existed for A.J.G. and A.C.W. She further argues that the State had the burden to, but did not, assert evidence of the children's desires to the district court. We conclude that Tammila's contentions lack merit for two reasons.

First, the State does not have a burden to prove the existence of an adoptive placement for a child before a court can terminate the parent's rights. Second, because the State established the presumption, under NRS 128.109(2), that termination of parental rights is in the children's best interests, the burden of evidencing A.J.G.'s and A.C.W.'s desires rested squarely on Tammila in order to overcome the presumption. Under these predicates, we conclude that substantial evidence supports the termination of Tammila's parental rights.

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.3 As we have stated previously terminating parental rights is "`an exercise of awesome power'"4 that is "`tantamount to imposition of a civil death penalty.'"5 Therefore, we "closely scrutinize[] whether the district court properly preserved or terminated the parental rights at issue."6 On appeal, we review the district court's factual findings in its order terminating parental rights for substantial evidence, and we will not substitute our own...

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