Quiana M.B. v. State Dep't of Family Servs. (In re Parental Rights D.N.)

• Decision Date: 30 August 2012
• Docket Number: No. 57746.,57746.
• Citation: 283 P.3d 842,128 Nev. Adv. Op. 44
• Parties: In the Matter of the Parental Rights as to J.D.N., Q.E.T., G.M.T., D.A.T., J.L.T., and J.F.T., Minors. Quiana M.B.; and Arthur L.T., Appellants, v. State of Nevada Department of Family Services, Respondent.
• Court: Nevada Supreme Court

283 P.3d 842

128 Nev. Adv. Op. 44

In the Matter of the Parental Rights as to J.D.N., Q.E.T., G.M.T., D.A.T., J.L.T., and J.F.T., Minors.Quiana M.B.; and Arthur L.T., Appellants,

v.State of Nevada Department of Family Services, Respondent.

No. 57746.

Supreme Court of Nevada.

Aug. 30, 2012.

David M. Schieck, Special Public Defender, and Melissa Elaine Oliver, Deputy Special Public Defender, Clark County, for Appellant Quiana M.B.

Mills & Mills Law Group and Gregory S. Mills and Daniel W. Anderson, Las Vegas, for Appellant Arthur L.T.

Steven B. Wolfson, District Attorney, and Ronald L. Cordes and Jennifer I. Kuhlman, Deputy District Attorneys, Clark County, for Respondent.

Before DOUGLAS, GIBBONS and PARRAGUIRRE, JJ.

OPINION

By the Court, GIBBONS, J.:

In this appeal, we address several issues relating to a termination-of-parental-rights proceeding. First, we determine whether an objection to the admission of the entire juvenile file (“J” file) as hearsay preserved the issue for appeal.¹ Next, we consider the applicable burden of proof imposed upon a parent in order to rebut the parental-fault and child's-best-interest presumptions contained in NRS 128.109. Finally, we decide whether substantial evidence supports the family division of the district court's order terminating appellants Quiana M.B.'s and Arthur L.T.'s parental rights.

We conclude that (1) Arthur waived his hearsay arguments regarding the “J” file by failing to lodge objections at trial to the specific portions of the “J” file he believed contained hearsay; (2) after it is determined that a presumption under NRS 128.109 applies, a parent can rebut that presumption by a preponderance of the evidence; and (3) substantial evidence supports the family division of the district court's order terminating Quiana's and Arthur's parental rights.

FACTS AND PROCEDURAL HISTORY

Quiana is the biological mother of six minor children. Arthur is the biological father of all of the children except J.D.N.²

On May 13, 2007, the Las Vegas Metropolitan Police Department (LVMPD) and a specialist from respondent State of Nevada Department of Family Services (DFS) responded to reports that Quiana had physically disciplined two of her children, G.M.T. and D.A.T., with a belt for soiling themselves. During their investigation, the LVMPD and the DFS specialist discovered marks and bruises on G.M.T. and D.A.T. consistent with the design of a belt. Quiana admitted to whipping the children with a belt when they soiled themselves during potty training. Based on these findings, the LVMPD arrested Quiana for child abuse and the DFS specialist placed all six children in protective custody. After conducting a background check and home visit, DFS placed the children in the care of Quiana's mother. During this time, Arthur was in prison for drug-related charges and was not set to be released until August 2009.

Following DFS's filing of an NRS Chapter 432B child abuse and neglect petition in the juvenile division of the district court, the court found that it would be contrary to the children's welfare to reside with Quiana. Accordingly, the juvenile division of the district court ordered that the children remain in the custody of Quiana's mother under the supervision of DFS. The next day, Quiana pleaded no contest to the child abuse charges brought against her. DFS then filed a case plan for Quiana with the ultimate goal of reunifying Quiana and her children. DFS did not file a case plan for Arthur. From November 2007 to May 2010, DFS filed seven reports with the juvenile division of the district court on a biannual basis updating the court on the family's progress with the case plan.

While Quiana initially demonstrated progress in completing her case plan, DFS's fourth report indicated that Quiana failed to show any further improvement. Quiana failed to provide DFS with proof of employment and failed to demonstrate sufficient housing for her and her children. Quiana also had yet to complete her individual counseling sessions, and her visitation with the children had become inconsistent. Consequently, DFS changed the permanency plan's goal to terminating parental rights, which the juvenile division of the district court approved. In August 2009, DFS petitioned the family division of the district court to terminate Quiana's and Arthur's parental rights.

Prior to the hearing on DFS's petition to terminate parental rights, DFS filed two more reports with the juvenile division of the district court concerning the family's progress. By this time, Arthur had been released from prison. Because Quiana's and Arthur's supervised visitations with their children had been going well, DFS allowed them to have two unsupervised home visits with the children. At the second visit, Arthur choked Quiana on two separate occasions in front of the children. Arthur later pleaded guilty to domestic violence charges and began taking domestic violence classes. Following the incident, DFS recommended that Quiana receive a domestic violence assessment, but Quiana did not begin the domestic violence classes until just before trial due to a scheduling conflict with her visitation days.

On October 7, 2010, the family division of the district court held a hearing on DFS's petition to terminate Quiana's and Arthur's parental rights. DFS called Quiana as its only witness. Quiana testified that she was seeking employment and living with a friend. While Quiana stated that she loved her children, she also expressed no concern over the children being around Arthur following the domestic violence incident and was unsure as to why all the children were in therapy.

Because the children were removed from their home pursuant to NRS Chapter 432B and had resided outside of the home for at least 14 of 20 consecutive months, the family division of the district court applied NRS 128.109(1)(a)' s presumption that Quiana and Arthur had demonstrated only token efforts to care for the children, and NRS 128.109(2)'s presumption that the best interest of the children would be served by the termination of Quiana's and Arthur's parental rights. The family division of the district court further found that pursuant to NRS 128.109(1)(b), Quiana's and Arthur's failure to substantially comply with the terms and conditions of the reunification plan within six months of the date the case plan commenced was evidence of a failure of parental adjustment. Thus, the family division of the district court allowed Quiana and Arthur to present evidence that would rebut these presumptions. The family division of the district court heard testimony from two DFS specialists, Arthur, and Quiana's counselor. During the termination proceeding, the family division of the district court also admitted the entire juvenile court record (“J” file) into evidence over Arthur's general hearsay objections.

Following the hearing, the family division of the district court granted DFS's petition. The family division of the district court found that neither Quiana nor Arthur rebutted NRS 128.109's presumptions. However, the family division of the district court did not articulate the burden of proof required for Quiana and Arthur to rebut those presumptions. The family division of the district court also did not expressly refer to NRS 128.107, which sets forth certain factors that a court must consider before terminating parental rights when children are not in the physical custody of a parent. The family division of the district court then determined that clear and convincing evidence established that parental fault existed in that Quiana and Arthur demonstrated only token efforts to care for the children, and that they failed to substantially comply with the plan to reunite the family, evidencing a failure of parental adjustment. Specifically, the family division of the district court found that Quiana failed to demonstrate any appreciation as to what had occurred in the children's lives over the past several years and only began to actively participate in counseling as the termination hearing approached. The family division of the district court further determined that Arthur had failed to show any initiative in caring for the children and only had done what his mother had asked him to do with regard to the children. Lastly, the family division of the district court concluded that the termination of Quiana's and Arthur's parental rights was in the children's best interest. In reaching this conclusion, the family division of the district court found that while the parents and children loved each other, neither parent was prepared to take care of all six children and prolonging the termination process would only cause more harm to the children.

Both Quiana and Arthur now appeal this decision. Arthur argues that (1) the family division of the district court improperly admitted the entire “J” file even though it contained hearsay and double hearsay statements, (2) the family division of the district court failed to consider the factors contained in NRS 128.106 through NRS 128.108, and (3) substantial evidence does not support the family division of the district court's order terminating his parental rights.³ Quiana contends that (1) a parent may rebut NRS 128.109's presumptions by a mere preponderance of the evidence, (2) the family division of the district court failed to consider NRS 128.107(4) before terminating her parental rights, and (3) because she rebutted the presumptions by a preponderance of the evidence, substantial evidence does not support the family division of the district court's decision to terminate her parental rights.

DISCUSSION

Arthur waived his hearsay arguments regarding the “J” file by failing to state a proper objection

Arthur argues that the family division of the district court abused its discretion by admitting the entire “J” file because the “J” file contains hearsay. DFS responds that the “J” file cannot be excluded as evidence based...