                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                IN THE MATTER OF THE PARENTAL I                        No. 65659
                RIGHTS AS TO: D.J.M., A MINOR,

                DAMU M.; AND JESSICA W.,
                Appellants,
                vs.
                STATE OF NEVADA DEPARTMENT
                OF FAMILY SERVICES,
                Resnondent.

                                          ORDER OF AFFIRMANCE

                            This is an appeal from a district court order terminating
                appellants' parental rights. Eighth Judicial District Court, Clark County;
                Cynthia N. Giuliani, Judge.
                            Appellants Damu M. and Jessica W. are the biological parents
                of nine-year-old D.J.M. After a police search of Jessica W.'s home revealed
                drugs on the premises, respondent State of Nevada Department of Family
                Services (DFS) had D.J.M. removed from his parents' custody because of
                child abuse or neglect.
                            In February of 2010, the parents received case plans that
                identified the objectives they needed to complete for them to be reunited
                with their son. Since that time, both parents have struggled to comply
                with various components of their case plans.'




                       'Because the parties are familiar with the facts of this case, we will
                not elaborate on this history except as necessary for our disposition.


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                              In May of 2012, DFS filed a petition to terminate appellants'
                parental rights. After a trial on the matter, the district court concluded
                that (1) Damu M. had abandoned D.J.M., (2) Damu M. and Jessica W. had
                neglected D.J.M., (3) Damu M. and Jessica W. were unfit parents, (4)
                Damu M. and Jessica W. failed to adjust their behavior, and (5) it was in
                D.J.M.'s best interests to terminate Damu M.'s and Jessica W.'s parental
                rights. Therefore, the district court granted DFS's petition. Both parents
                now appeal.
                              On appeal, both parents argue that there is not substantial
                evidence to support the district court's decision to terminate their parental
                rights, and that they were provided with ineffective assistance of counsel
                in the termination proceedings. We hold that substantial evidence
                supports the district court's findings of parental fault and that
                termination was in the best interests of the child. Furthermore, we hold
                that neither Jessica W. nor Damu M. had a constitutional right to counsel
                in this case, and thus, their ineffective assistance of counsel claims must
                fail.
                Substantial evidence supports the district court's decision to terminate
                Jessica W. 's and Damu M.'s parental rights
                              A district court "must consider both the best interests of the
                child and parental fault" when "determining whether to terminate
                parental rights." In re Termination of Parental Rights as to N.J., 116 Nev.
                790, 800, 8 P.3d 126, 132 (2000). Both standards must be proven by clear
                and convincing evidence unless a statutory presumption applies.       See id.
                at 801, 8 P.3d at 133; see also NRS 128.090(2); NRS 128.109. The parties
                do not dispute that (1) D.J.M. had resided outside of his home "for 14
                months of any 20 consecutive months," and (2) appellants failed to
                substantially comply with their case plans "within 6 months after. .. the
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                  plan[s] [were] commenced."     See NRS 128.109(1)(a), (b). Therefore, the
                  following presumptions apply: the parents made token efforts to care for
                  the child, the parents failed to adjust the circumstances that led to the
                  child's removal, and the best interests of the child are served by
                  termination. See NRS 128.109.
                              To rebut these presumptions, the parents had to establish by a
                  preponderance of the evidence that termination was not in the child's best
                  interests and that the alleged parental fault did not exist.      See In re
                  Parental Rights as to A.L., 130 Nev., Adv. Op. 91, 337 P.3d 758, 761
                  (2014); see also NRS 47.180. In reviewing the district court's decision, we
                  do "not substitute [our] own judgment for that of the district court," and
                  we "will uphold termination orders based on substantial evidence." In re
                  N.J., 116 Nev. at 795, 8 P.3d at 129.
                        Substantial evidence supports a finding that termination was in
                        D.J.M.'s best interests
                              A child's need for 'proper physical, mental and emotional
                  growth and development are" important considerations in determining a
                  child's bests interests. In re Parental Rights as to D.R.H., 120 Nev. 422,
                  433, 92 P.3d 1230, 1237 (2004) (quoting NRS 128.005(2)(c)). In addition,
                  "[a]lthough the best interests of the child and parental fault are distinct
                  considerations, [determining] the best interests of the child necessarily
                  include[s] considerations of parental fault and/or parental conduct."   In re
                  N.J., 116 Nev. at 801, 8 P.3d at 133.
                              D.J.M. was removed from his parents' care when he was three
                  years old. D.J.M. is now nine years old, he has started attending school,
                  and he has lived apart from his parents since his removal in 2009.
                  D.J.M.'s chances of finding an adoptive resource become less promising as


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                   he gets older, and the district court found D.J.M. had been "languishing"
                   in foster care for four and a half years at the time of trial.
                                Throughout these four and a half years, Damu M. rarely
                   visited D.J.M., sometimes going in excess of a year without seeing him
                   Damu M. made no attempt to contact D.J.M. while he was incarcerated or
                   after he transitioned to a halfway house, despite the fact that testimony
                   revealed he had access to a telephone in prison and had an attorney whom
                   he could contact if he needed information regarding the children. Because
                   of this lack of contact, the evidence showed that D.J.M. had no memories
                   of Damu M. and had never shown curiosity about Damn M.'s whereabouts.
                   Furthermore, Damu M. tested positive for drugs on multiple occasions and
                   signed a confession acknowledging that he ingested cocaine during the
                   pendency of the case in violation of the case plan objectives.
                                Jessica W.'s long history of drug use, coupled with her failure
                   to test in August of 2013 and her lack of credibility on the stand suggests
                   she has not fully addressed her substance abuse problems. In addition,
                   the record is replete with instances where Jessica W. demonstrated her
                   unreliability: during certain periods of time she failed to consistently visit
                   D.J.M., she repeatedly failed to attend individual and group therapy
                   sessions, DFS reports showed that the agency would sometimes go weeks
                   without hearing from her, and organizations training parents to help their
                   behaviorally challenged kids struggled to keep in contact with her.
                   Furthermore, D.J.M.'s foster mother testified that D.J.M.'s attitude
                   towards Jessica W. changed over time; although he used to wait for his
                   mother at the visitation center with eager anticipation, he now sits calmly
                   and exhibits only indifference when she does not show up. There was also
                   evidence that suggests Jessica W. is not well equipped to deal with

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                       D.J.M.'s behavioral outbursts, potentially due to her own mental health
                       and anger issues.
                                    Although Damu M. claimed he never had substance abuse
                       problems, and although Jessica W. tested negative for drugs throughout
                       most of 2013, we conclude that substantial evidence supports the district
                       court's decision that Damu M. and Jessica W failed to overcome the
                       presumption that termination of parental rights best served D.J.M.'s
                       interests.
                             Substantial evidence supports a finding of parental fault
                                    Former NRS 128.105(2) (1999) 2 states the type of conduct that
                       constitutes parental fault:
                                    (a) [a]bandonment of the child; (b) [n]eglect of the
                                    child; (c) [u]nfitness of the parent; (d) [f] allure of
                                    parental adjustment; (e) [r]isk of serious physical,
                                    mental or emotional injury to the child if the child
                                    were returned to. . . the home of his or her parent
                                    or parents; [and] (f) [o]nly token efforts by the
                                    parent or parents: (1) [t]o support or communicate
                                    with the child; (2) [t]o prevent neglect of the child;
                                    (3) [t]o avoid being an unfit parent; or (4) [t]o
                                    eliminate the risk of serious physical, mental or
                                    emotional injury to the child.
                                    The record reflects that Damu M. had no relationship with
                       D.J.M., and that Damu M. would go without contacting D.J.M. for years at
                       a time. Furthermore, Damu M. did not make any attempts to see or
                       contact D.J.M. while incarcerated, or after he transitioned into a halfway
                       house, despite the fact that he had access to a phone and an attorney. It is


                             2 NRS  128.105 was amended and renumbered by the 2015
                       Legislature; the changes to the statute, however, do not affect our
                       analysis. See 2015 Nev. Stat., ch. 250, § 3, at 1184-85.


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                       not just the lack of contact with D.J.M. that is detrimental to Damu M.'s
                       case—it is also the lack of any effort to contact D.J.M.
                                   The most prominent issue Jessica W. has faced over the last
                       five years has been her struggle to comply with her case plan. "The task
                       in failure to adjust cases is to realistically evaluate the parent's efforts to
                       adjust circumstances, conduct or conditions within a reasonable amount of
                       time to justify the child's return home. The main concern is permanency
                       of adjustment—a child should not be held in limbo indefinitely." In re
                       Parental Rights as to Montgomery, 112 Nev. 719, 729, 917 P.2d 949, 956
                       (1996) (internal quotation omitted) (emphases added),           superseded by
                       statute on other grounds as recognized by In re N.J., 116 Nev. at 798-801, 8
                       P.3d at 131-33.
                                   As mentioned earlier, there is some evidence to suggest that
                       Jessica W. has not fully remedied her substance abuse issues. However,
                       even assuming this aspect of her case plan was fulfilled, other aspects
                       were not. Her communications with DFS were sporadic, and she failed to
                       consistently visit D.J.M., oftentimes failing to call and explain her absence
                       or lack of contact. Furthermore, Jessica W. failed to follow many of the
                       reasonable recommendations made by DFS. For example, when Jessica
                       W. failed to control herself or D.J.M. during her first group therapy
                       session, DFS recommended that she undergo some individual therapy
                       sessions before she continue with group therapy, and Jessica W. agreed.
                       In addition, when DFS recommended that she undergo a mental health
                       assessment because she claimed to suffer from ADHD, depression, and




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                    potentially bipolar behavior, Jessica W. agreed. Jessica W. failed to follow
                    through on these obligations. 3
                                In sum, Jessica W. failed to make meaningful, reasonable
                    and/or consistent efforts to adjust the circumstances that led to D.J.M.'s
                    removal, and Damu M. has failed to support or communicate with D.J.M.
                    For the foregoing reasons, we conclude that substantial evidence supports
                    the district court's findings of parental fault, and thus, substantial
                    evidence supports the district court's decision to terminate appellants'
                    parental rights.
                    Appellants do not have a constitutional right to counsel in this case
                                A party may only bring an ineffective assistance of counsel
                    claim if the party has a constitutional right to counsel.     In re Parental
                    Rights as to N.D.O.,     121 Nev. 379, 384, 115 P.3d 223, 226 (2005).
                    Although this court has noted that "procedural due process for termination
                    proceedings requires .. . the right to counsel," we have subsequently
                    clarified that there is "no absolute right to counsel in termination
                    proceedings," and that NRS 128.100(2) "contemplates a case-by-case
                    determination of whether due process demands the appointment of
                    counsel." Id. at 382-83, 115 P.3d at 225 (internal quotation omitted); see
                    also NRS 128.100 (a district court has discretion to appoint counsel for an
                    indigent parent in a termination of parental rights proceeding).


                          3 Although  we recognize that additional, unwritten requirements to
                    an individual's case plan may generate due process concerns, we reject
                    Jessica W.'s argument that she was provided inadequate notice of the
                    requirements for reunification in violation of her due process rights. The
                    record reflects that Jessica W. was fully aware of DFS's recommendations
                    that she obtain a mental health assessment and attend individual therapy
                    sessions.


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                            In making that determination, this court applies the test from
                Mathews v. Eldridge, 424 U.S. 319 (1976); In re N.D.O., 121 Nev. at 384,
                115 P.3d at 226. The Mathews test requires the balancing of the parents'
                interests, the government's interest, and the risk that the procedures used
                will lead to erroneous decisions. In re N.D.O., 121 Nev. at 383, 115 P.3d at
                225. In N.D.0 , this court applied the Mathews test to a similar set of
                facts and held that counsel was not constitutionally required.      Id. at 386,
                115 P.3d at 227. After reviewing the record, we conclude that appellants
                have failed to meaningfully distinguish this case from            N.D.O., and
                therefore, appellants do not have a constitutional right to counsel in this
                case. Because Damu M. and Jessica W. do not have a constitutional right
                to counsel in this case, their ineffective assistance of counsel claim fails as
                a matter of law. Further, because we conclude they lack the necessary
                basis to assert an ineffective assistance of counsel claim, we decline to
                address their arguments regarding what standard should be employed to
                assess such a claim in termination proceedings.
                            ORDER the jt ment of the district court AFFIRMED.


                                                                 , C.J.
                                         Parrag-uirre


                                           ,J.                        I Las              J.
                Hardesty                                    Douglas


                         tUtta_                                                          J.
                Cherry                                      Saitta


                                                                                         J.
                 ibbons

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                cc: Hon. Cynthia N. Giuliani, District Judge
                     Howard Kim & Associates
                     Cobeaga Law Firm
                     Clark County District Attorney/Juvenile Division
                     Eighth District Court Clerk




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