Matter of Parental Rights as to DRH
| Decision Date | 12 July 2004 |
| Docket Number | No. 41352.,41352. |
| Citation | 92 P.3d 1230,120 Nev. 422 |
| Parties | In the Matter of the PARENTAL RIGHTS AS TO D.R.H., T.V.G., and C.A.G. Vincent L.G. and Cristan H., Appellants, v. The State of Nevada Division of Child and Family Services, Department of Human Resources, Respondent. |
| Court | Nevada Supreme Court |
Rick Lawton, Fallon, for Appellant Vincent L. G.
Michael L. Shurtz, Elko, for Appellant Cristan H.
Brian Sandoval, Attorney General, and Karen R. Dickerson, Deputy Attorney General, Carson City, for Respondent.
Before BECKER, AGOSTI and GIBBONS, JJ.
Appellant Cristan H. is the natural mother of minor children D.R.H., T.V.G. and C.A.G. At the time of the district court's hearing on the petition to terminate parental rights, D.R.H. was seven years old, T.V.G. was six years old and C.A.G. was four years old. All three children are boys. Appellant Vincent G. is the natural father of T.V.G. and C.A.G. Cristan and Vincent lived together on and off throughout the children's lives, but remained unmarried.
Respondent Division of Child and Family Services (DCFS) removed the children from Cristan's custody in April 2000. On April 6, law enforcement officers had found the children, unsupervised, playing on a busy highway. At that time, the children were ages five, four and two. Cristan was found asleep in her home. A drug test later that day revealed that Cristan had used amphetamines. The next day, C.A.G. stopped breathing and was taken to the hospital. Physicians discovered bruising on C.A.G. that was consistent with forceful grabbing. A physician contacted DCFS, requesting protective custody of C.A.G. DCFS took legal custody of all three children, placing physical custody of the children with Vincent. During the summer of 2000, after learning of Vincent's third domestic violence charge and because of his failure to comply with interstate placement restrictions, DCFS removed the children from his custody. After nearly 2½ years of attempts to return the children to Cristan and Vincent, DCFS petitioned the district court to terminate Cristan's and Vincent's parental rights. After conducting a termination proceeding, the district court issued an order terminating both Cristan's and Vincent's parental rights.
On appeal, Vincent argues that NRS 128.109(2) is unconstitutional as it infringes on his substantive due process rights. This statute establishes a presumption that children who have been placed outside of their homes for fourteen of twenty consecutive months have their best interest served by parental termination. Additionally, both parents argue that clear and convincing evidence did not support the district court's termination of their parental rights and that termination of their rights was not in the children's best interest. We conclude that NRS 128.109(2) is constitutional and that substantial evidence supports the district court's decision to terminate Cristan's and Vincent's parental rights.
Constitutionality of NRS 128.109(2)
Vincent contends that NRS 128.109(2) violates his substantive due process rights because it interferes with the parent-child relationship.
This court reviews questions of law de novo.1 We recognize that a parent's interest in raising his or her child is a fundamental right.2 Parental termination proceedings implicate this fundamental right. We analyze substantive due process challenges to statutes impinging on fundamental constitutional rights under a strict scrutiny standard.3 The statute in question, NRS 128.109(2), must therefore be "narrowly tailored to serve a compelling [state] interest."4 Pursuant to NRS 128.109(2), it is presumed that termination of parental rights will serve a child's best interest when "a child has been placed outside of his home pursuant to chapter 432B of NRS and has resided outside of his home pursuant to that placement for 14 months of any 20 consecutive months."
In determining whether the statute is narrowly tailored to serve a compelling state interest, we turn first to the state interest involved. We have previously held that NRS 128.109(2) expresses "the general public policy to seek permanent placement for children rather than have them remain in foster care."5 We observe that it makes good sense and exceedingly sound public policy for the district court, after the requisite time has passed, to evaluate whether continuing attempts to return a child to the home are in the child's best interest. Certainly the state has a compelling interest in assuring that abused and neglected children achieve safe, stable and permanent home environments within which to be reared. Both periodic placement reviews6 and the statute in question, which authorizes a presumption in favor of termination after a child has spent a significant time in foster care, address this compelling interest. Without placement reviews and without a statute granting a presumption in favor of termination when a child has been in foster care for a significant time, a child is susceptible to drift for an indefinite length of time within the foster care system. If a child has spent fourteen or more of twenty consecutive months outside the home of either or both parents, the presumption that termination of parental rights is in the child's best interest is more than justified.
Next, we turn to the question of whether NRS 128.109(2) is narrowly tailored. We observe first that the statute applies only where a child is removed from the home because of parental abuse or neglect pursuant to NRS Chapter 432B. Additionally, we note that the statute's presumption is rebuttable. Parents are free to present evidence showing that termination of their parental rights is not in a child's best interest. Also, the statute must be read in conjunction with NRS 128.105, which requires the court to examine the child's best interest and also to make a determination concerning parental fault. Moreover, the presumption addresses the compelling state interest of planning for safe, stable and permanent placements for abused and neglected children. Therefore, we conclude that NRS 128.109(2) is narrowly tailored to promote the state's compelling interest in the welfare of and permanency planning for children who have been taken from the physical shelter of their parents' custody. Accordingly, Vincent's argument is without merit.
Termination of parental rights
In order to terminate parental rights, a petitioner must prove by clear and convincing evidence that termination is in the child's best interest and that one of the enumerated parental fault factors set forth in NRS 128.105(2) exists.7 If substantial evidence in the record supports the district court's determination that clear and convincing evidence warrants termination, we will uphold the termination order.8 In the present case, the district court determined that terminating Vincent's and Cristan's parental rights was in the children's best interest. Although NRS 128.105(2) only requires a finding of one of the enumerated parental fault factors, the district court here found parental fault on the grounds of neglect, unfitness, failure of parental adjustment, risk of serious injury and token efforts to reunify with the children.9
Parental fault
The district court determined by clear and convincing evidence that, due to Cristan's persistent drug abuse and her neglect of the children's needs, Cristan failed to provide her children with proper parental care.10 Several instances supported the district court's determination. First, DCFS had found the children in a dirty condition and injured while in Cristan's care. Second, DCFS reported that the children were found unsupervised on two separate occasions. On one occasion, law enforcement officers found the children playing on a busy highway while Cristan was sleeping in her home. A drug test later that day revealed that Cristan had used drugs. Third, Cristan had tested positive for cannabinoids and amphetamines while pregnant with C.A.G. Finally, the district court noted several incidents of domestic violence had occurred in the home while the children were present and, as a result, the children were placed in harm's way.
The district court also determined by clear and convincing evidence that, in light of Vincent's inability to control his temper, his participation in numerous domestic violence incidents and his failure to consistently communicate with the children, Vincent failed to provide the proper care necessary for the children's emotional well-being. The district court found that Vincent had engaged in repeated instances of domestic violence. In one of these incidents, Vincent pushed Cristan while she held T.V.G. These incidents sometimes occurred in front of the children. Moreover, when the children were not in Vincent's immediate custody, he failed to consistently communicate with them. For example, when DCFS removed the children from Cristan's custody in 1997 and again in 1998, Vincent did not attempt to regain physical custody or request that DCFS return the children to his care. He also failed to consistently and meaningfully communicate with the children between June 2000 and June 2002, thereby disregarding the children's emotional needs.
Accordingly, we conclude that substantial evidence supports the district court's determination that Cristan and Vincent neglected their children.
Unfitness of parent
NRS 128.106(6) provides that, when determining parental unfitness, a court may consider felony convictions of the parent "if the facts of the crime are of such a nature as to indicate the unfitness of the parent to provide adequate care and control to the extent necessary for the child's physical, mental or emotional health and development." The district court noted that, despite a case plan tailored to treat Vincent's problems with anger management and domestic violence, at the time of the termination hearing, Vincent was serving a sentence of imprisonment for his...
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...scrutiny and will be invalidated unless it is “narrowly tailored to serve a compelling state interest.” In re Parental Rights as to D.R.H., 120 Nev. 422, 427, 92 P.3d 1230, 1233 (2004) (internal quotation marks omitted). If the statute does not abridge a fundamental right, it is reviewed un......
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