In Re: Parental Rights as to I.G.C. ( 2015 )

 P.3d 1259, 1262 (2012) (quoting McClanahan u. Raley's, Inc., 117 Nev.
921, 924, 34 P.3d 573, 576 (2001)).
Termination of 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." In re Parental Rights
as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 762 (2006); NRS 128.105.
Because "terminating parental rights is an exercise of awesome power
that is tantamount to imposition of a civil death penalty," the district
court's determination of whether it "properly preserved or terminated the
parental rights at issue" is subject to close scrutiny. Id. at 1423, 148 P.3d
at 763 (internal quotations omitted) (quoting In re Termination of Parental
Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000)).
NRS 128.109(2) creates a rebuttable presumption that the
child's best interests are served by terminating parental rights if the child
has been placed outside the home for 14 of any 20 consecutive months.
"To rebut NRS 128.109's presumptions, the parent must establish by a
preponderance of the evidence that . . . termination is not in the children's
'Although the district court found parental fault as to Travis
pursuant to several of the conditions set forth in NRS 128.106, DFS
argues that the district court erred by failing to also find parental fault as
to Travis for neglect pursuant to NRS 128.105(2)(b) and NRS 128.014, and
failing to find parental fault as to Marites on any grounds pursuant to
128.105(2). However, termination of parental rights requires a finding of
parental fault and a finding that termination is in the child's best
interests. In re A.J.G., 122 Nev. at 1423, 148 P.3d at 762; NRS 128.105.
Because we agree with the district court's determination that terminating
parental rights in this case was not in the best interests of I.G.C., we need
not address the issue of parental fault.
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best interests." In re Parental Rights as to A.L., 130 Nev., Adv. Op. 91,
337 P.3d 758, 761 (2014). We have previously stated that a
"preponderance of the evidence' merely refers to 'Mlle greater weight of
the evidence." McClanahan, 117 Nev. at 925-26, 34 P.3d at 576
(alteration in original) (quoting Black's Law Dictionary 1201 (7th ed.
1999)).
Here, the district court found that the statutory presumption
that termination of parental rights as to Marites and Travis was in
I.G.C.'s best interests applied because I.G.C. had been out of the home for
27 consecutive months, which is well beyond the period set forth in NRS
128.109(2). As a result of this presumption, the burden shifted to Marites
and Travis to demonstrate by a preponderance of the evidence that their
parental rights should not be terminated. The district court concluded
that both Marites and Travis had rebutted the presumption, and therefore
preserving the parental rights of both parents was in I.G.C.'s best
interests. We agree.
The district court did not err by concluding that it is in the best interests of
I.C.C. to preserve Marites' and Travis' parental rights
DFS argues that the district court's findings and conclusions
for preserving parental rights were not in I.G.C.'s best interests because:
(1) Travis' conduct shows he is an unfit parent, and Marites continues to
believe Travis does not pose a risk to I.G.C.; (2) the district court placed
too much weight on Marites' bond with I.G.C.; (3) the district court placed
too much focus on financial considerations; and (4) the district court erred
by considering the lack of an adoptive home. This court "presume[s] that
the district court properly exercised its discretion in determining the best
interests of the child," Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224,
1226-27 (2004), and "will not substitute its own judgment for that of the
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district court" when the district court's order is supported by substantial
evidence. In re N.J., 116 Nev. at 795, 8 P.3d at 129.
NRS Chapter 128 provides several factors for the district
court to consider when evaluating the child's best interests and
termination of parental rights. NRS 128.105 ("An order of the court for
the termination of parental rights must be made in light of the
considerations set forth in this section and NRS 128.106 to 128.109 ...
see Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005). "The
termination statute sets forth factors to be considered in determining the
best interests of the child[, particularly] . . that the 'continuing needs of a
child for proper physical, mental, and emotional grown and development
are the decisive considerations in proceedings for termination of parental
rights." In re N.J., 116 Nev. at 800, 8 P.34 at 132-33 (quoting NRS
128.005(2)(c)). This court has stated that "[a]lthough the best interests of
the child and parental fault are distinct considerations, the best interests
of the child necessarily include considerations of parental fault and/or
parental conduct." Id. at 801, 8 P.3d at 133.
Travis' conduct and Marites' support
DFS argues that the district court erred in its best-interest
analysis by failing to consider Travis' conduct and Marites' refusal to
recognize Travis as a danger to I.G.C. Although DFS cites to cases from
other jurisdiction to support its argument, we determine that those cases
are distinguishable and thus inapplicable here. 2
2 See,e.g., In re J.D.A., 598 S.E.2d 842, 843-44 (Ga. Ct. App. 2004)
(affirming termination of parental rights when an infant suffered multiple
broken bones while in the custody of both parents and the causes of the
injuries went unexplained); In re J.V., 526 S.E.2d 386, 392-93 (Ga. Ct.
App. 1999) (same); In re Ellis, 817 N.W.2d 111, 112-13 (Mich. Ct. App.
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As part of its best-interests analysis, the district court found
that Marites would quit work to care for I.G.C, and that I.G.C.'s safety
could be appropriately maintained by Marites. See In re N.J., 116 Nev. at
800, 8 P.3d at 132-33 (a child's physical needs are proper considerations in
the best interest analysis). Because substantial evidence supports the
district court's factual findings, we conclude that the district court's
analysis was not in error.
Marites' strong and loving bond with LG.C.
DFS next contends that the district court's finding that
Marites has a strong and loving bond with I.G.C. was an improper
consideration when analyzing I.G.C.'s best interests. It reasons that the
court improperly considered the best interests of Marites rather than
I.G.C., and that I.G.C. is incapable of bonding due to his neurological
impairments. This contention is flawed.
A mother's loving bond with her child is clearly relevant to the
child's best interest. See In re Parental Rights of J.L.N., 118 Nev. 621,
626, 55 P.3d 955, 958 (2002) (considering the "strong, loving bond"
between the parent and child when assessing the best interests of a child).
...continued
2011) (same); In re Interest of Natasha H., 602 N.W.2d 439, 449 (Neb.
1999) (affirming termination of parental rights for both parents following
the abuse of a child by the father because, although the mother was not
accused of abuse, the mother was "psychologically dependent" on the
father and was thus "unable to protect her children from the threat he
represent[ed]"); In re E.T.M., 279 P.3d 306, 313 (Or. Ct. App. 2012)
(affirming termination of parental rights as to both parents because, while
the mother did not abuse the child, she was unfit as a parent due to her
"unwavering allegiance" to the father caused by the mother's mental
condition).
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And the district court is in the best "position to observe the demeanor of
the parties and weigh their credibility." In re Parental Rights as to
C.J.M., 118 Nev. at 732, 58 P.3d at 194. Here, not only did the district
court observe Marites' demeanor when testifying during various court
proceedings, but the court took note of a report for permanency and
placement prepared by DFS in which DFS also observed the bond Marites
had formed with I.G.C. Accordingly, we conclude that the district court's
consideration of such a bond was appropriate, and there is substantial
evidence to support that such a bond exists.
Financial considerations
DFS further contends that in considering I.G.C.'s best
interests the district court placed too much weight on the parents'
financial ability to help with I.G.C.'s care. We conclude that this
argument is without merit.
The district court noted in its order that Marites and Travis
have provided financial support to reimburse the foster parents for some
of I.G.C.'s expenses, including bedding and clothing, as well as Travis's
ability to provide supplemental health care insurance for I.G.C.'s medical
expenses. Whether the parents have "provide[d] the child with adequate
food, clothing, shelter, education or other care and control necessary for
the child's physical, mental and emotional health and development" are
proper considerations in the best interest analysis. NRS 128.106(5); see
NRS 128.105 (incorporating NRS 128.106 through 128.109 into the
termination analysis); In re N.J., 116 Nev. at 801, 8 P.3d at 133
(discussing the application of NRS 128.106 in a best interest analysis).
Therefore, the district court properly considered the parents' financial
support of I.G.C.
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4,
The absence of a meaningful relationship between the child and an
adoptive resource
DFS next argues that the district court mistakenly determined
that it could consider the absence of a meaningful relationship between
I.G.C. and an adoptive resource when deciding whether termination of
parental rights was in I.G.C.'s best interests. We disagree.
NRS 128.108 requires the district court to consider certain
factors before a placement is finalized when a child has been placed in a
foster home and the foster parents become prospective adoptive parents.
One factor the court must consider is the bond formed between the child
and prospective adoptive family as compared to that between the child and
biological parents. NRS 128.108(1). Although I.G.C.'s foster parent was
not considering adoption, the statute does not prohibit the district court's
consideration of the mother-son bond. Because I.G.C. remained with the
foster parent at the time the district court took the matter under
submission, we conclude that the district court did not err in considering
whether a meaningful relationship exists between I.G.C. and the adoptive
resource.
We conclude that the district court properly evaluated I.G.C.'s
best interests, that Marites and Travis "establish[ed] by a preponderance
of the evidence that . . . termination is not in the children's best interests,"
In re A.L., 130 Nev., Adv. Op. 91, 337 P.3d at 761, and that DFS failed to
establish by clear and convincing evidence that terminating the parental
rights of Marites and Travis was in I.G.C.'s best interests. See In re
Parental Rights as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 762
(2006); see also NRS 128.105. Accordingly, because the district court's
order is "not clearly erroneous and [is] supported by substantial evidence,"
Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009), we
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ORDER the judgment of the district court AFFIRMED.
.1 OJLO.guilIe
C.
Douglas
cc: Hon. Robert Teuton, District Judge, Family Court Division
Clark County District Attorney/Juvenile Division
Aaron Grigsby
Special Public Defender
Eighth District Court Clerk
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