When can a court terminate parental rights?

Parental Rights

In re Parental Rights as to A.P.M. (Nev. Supreme Ct. – Sep. 10, 2015)

The issues are (1) whether the district court may terminate the parental rights of a parent who has completed a case plan for reunification and (2) 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).

Arli and his wife Abigail had three children together: J.M., 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, 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 the Nevada Supreme Court received a suggestion of death indicating that Abigail had passed away, and her appeal was dismissed. Only Arli’s appeal remained. On appeal, Arli argued 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 did not support the district court’s findings of parental fault and that termination was in the best interests of the children.

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 argued that the district court should not have terminated his parental rights because he completed this case plan.

Completion of a case plan for reunification

NRS 128.105 sets forth grounds for terminating parental rights. Along with requiring a finding of parental fault, the statute also states that the primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination. Determining a child’s best interest requires a consideration of many factors stemming from the the distinct facts of each case. The Court noted that nowhere in NRS Chapter 128, 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. The Court explained that 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.

Accordingly, the Court concluded that the district court was not prohibited from terminating Arli’s parental rights even though Arli had completed his case plan.

Do the presumption in NRS 128.109(1)(a) and NRS 128.109(2) require a full 20 months 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.
. . .

2. If a child has been placed outside of his or her home pursuant to chapter 432B of NRS and has resided outside of his or her home pursuant to that placement for 14 months of any 20 consecutive months, the best interests of the child must be presumed to be served by the termination of parental rights.

The district court applied the presumptions in NRS 128.109(1)(a) and NRS 128.109(2) because the children were removed from Arli’s home pursuant to NRS Chapter 432B and had remained out of his home for roughly 17 consecutive months at the time the termination hearing had commenced.

Arli argued that the district court erred in applying these presumptions because the children had been out of their parents’ home for less than 20 months. Arli argued that even though the children had been placed elsewhere for over 14 months, the language in NRS 128.109, 14 months of any 20 consecutive months, required that the district court wait the entire 20 months before applying the presumptions.

The Court explained that under the statute’s plain language, the presumptions apply whenever a 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. The Court held that if the 14-month threshold has been met in less than 20 months, the district court may apply the presumptions in NRS 128.109(1)(a) and NRS 128.109(2) without waiting for the entire 20 months to elapse. The Court believed that waiting the additional time would serve no purpose. For example, in the present case, the district court applied the presumptions because the children had been removed pursuant to NRS Chapter 432B for over 17 consecutive months. Thus, waiting an additional 3 months—to reach a total of 20 months—before applying the presumptions would be unnecessary, because the 14-month threshold had already been satisfied. Accordingly, because Arli’s children had been removed pursuant to NRS Chapter 432B for over 14 consecutive months, the Court concluded that the district court correctly applied the presumptions in NRS 128.109(1)(a) and NRS 128.109(2).

Arli’s parental rights

Arli contended that substantial evidence did not support the district court’s finding of neglect. Arli argued that he could not be neglectful because he was not present during any of the swallowing incidents. To support this argument, Arli cited Chapman v. Chapman, 96 Nev. 290, 607 P.2d 1141 (1980), in which the Nevada Supreme Court held that a finding of neglect must be based upon the treatment of the child while the parent has custody and neglect is not established when the child is left by the parent in an environment where the child is known to be receiving proper care. In response, DFS argued that Arli was neglectful because he failed to take protective action after the seven serious swallowing incidents involving all three of his children.

The Court in Arli’s case concluded that substantial evidence supported the district court’s finding of neglect. The Court explained that NRS 128.014(2) defines a neglected child as a child whose parent refuses to provide proper or necessary subsistence, education, medical or surgical care, or other care necessary for the child’s health, morals or well-being. Testimony during the evidentiary hearing showed that Arli took almost no protective action after repeated swallowing incidents—some of which sent his children to the hospital, with the most recent incident causing serious harm to one child. The Court believed that Arli’s failure to take protective action showed that he refused to provide proper care necessary for his children’s health. Further, the Court concluded that Arli’s reliance on Chapman was misplaced because although Arli was not present during any of the swallowing incidents, he failed to leave his children in an environment where they were known to be receiving proper care. Accordingly, the Court believed that the district court correctly found parental fault based on neglect.

As explained above, the Court concluded that the district court correctly applied the NRS 128.109(2) presumption that termination of parental rights was in the best interests of the children based on the length of their removal. Arli contended, however, that he rebutted the presumption by visiting his children, completing parenting classes, and participating in counseling.

The Court concluded that substantial evidence supported a finding that Arli did not rebut the presumption that termination of his parental rights was in the best interests of the children. The Court explained that the district court heard extensive testimony from several witnesses, including evidence as to Arli’s limited relationship with his children and his failure to take any meaningful protective action after seven serious swallowing incidents, which were increasing in seriousness and harm. The Court believed that the evidence further established that the children did not ingest any foreign objects after they were placed in protective custody. Also, the children’s foster parent testified that the children had been living with her for several months, that they had a close relationship, and that she wished to adopt them.

The Court concluded that the sum of this evidence supported the district court’s finding that termination of Arli’s parental rights was in the best interests of the children. The Court believed this evidence further established that even with the death of Abigail, who was apparently the cause of the swallowing incidents, Arli was unable to protect his children from danger.

Because substantial evidence supported a finding of parental fault and that termination of parental rights was in the best interests of the children, the Court affirmed the judgment of the district court.

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