                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 IN THE MATTER OF THE PARENTAL                             No. 69068
                 RIGHTS AS TO D.D.; S.D. AND J.D.,
                 MINOR CHILDREN.

                 SUZANNE J.,                                                FILED
                 Appellant,
                 vs.                                                        JUL 2 8 2016
                 WASHOE COUNTY DEPARTMENT OF                               TRACIE K. Llt4DEMAN
                                                                      CLERK F S UPREME COURT
                 SOCIAL SERVICES,                                     BY
                                                                                \
                                                                             DEPUTY CLERK
                 Respondent.

                                  ORDER OF REVERSAL AND REMAND
                             This is an appeal from a district court order terminating
                 appellant's parental rights as to three of her minor children. Second
                 Judicial District Court, Washoe County; Egan K. Walker, Judge.
                             The children were removed from the home because of
                 appellant's drug use and failure to meet the children's needs. Nine
                 months after the children were removed, respondent filed a petition to
                 terminate appellant's parental rights as to the three children. After a
                 trial, the district court entered an order terminating appellant's parental
                 rights finding that the children's best interests would be served by
                 termination of appellant's parental rights as well as three grounds of
                 parental fault including abandonment, neglect, and risk of serious injury if
                 the children were returned to the home. This appeal followed.
                             To terminate parental rights, the district court must find clear
                 and convincing evidence that (1) at least one ground of parental fault
                 exists, and (2) termination is in the child's best interest. NRS 128.105
                 (1999); In re Termination of Parental Rights as to N.J., 116 Nev. 790, 800-
                 01, 8 P.3d 126, 132-33 (2000). On appeal, this court reviews questions of
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                law de novo and the district court's factual findings for substantial
                evidence. In re Parental Rights as to A.L., 130 Nev., Adv. Op. 91, 337 P.3d
                758, 761 (2014).
                            Having considered the parties' arguments and the record on
                appeal, we conclude substantial evidence does not support the district
                court's findings regarding parental fault. While there was a presumption
                that appellant abandoned the children pursuant to NRS 128.012(2)
                because she did not provide for the children's care or communicate with
                the children for a period of six months, the record demonstrates that
                appellant rebutted that presumption by demonstrating that she did not
                have a settled purpose "to forego all parental custody and relinquish all
                claims to the child[ren]." NRS 128.012; In re N.J., 116 Nev. at 803-04, 8
                P.3d at 134-35 (explaining that the application of the statutory
                presumption of abandonment is not discretionary, and once it is applied
                the parent has the duty to prove that he or she did not intend to abandon
                the child). Appellant repeatedly requested visitation with the children
                from November 2014 through May 2015 and was denied that visitation.
                She provided them letters and gifts. Further, while appellant failed to
                complete four consecutive therapy sessions prior to her visitation with the
                children, as requested by respondent, that requirement was never
                approved by the court and the suggestion that family therapy was even
                necessary was based, at least in part, on the permanency plan being
                changed from reunification to termination, which occurred only four
                months after appellant was provided a case plan. Accordingly, substantial
                evidence does not support the district court's finding that appellant
                intended to abandon her children and the district court erred by



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                 concluding that respondent established abandonment as a ground of
                 parental fault by clear and convincing evidence.
                             Additionally, substantial evidence does not support the district
                 court's finding that the children were neglected at the time of trial. The
                 record demonstrates that prior to January 2015, appellant had neglected
                 the children by failing to provide proper parental care by reason of her
                 fault or habits because of her drug addiction. At the time of the trial in
                 August 2015, however, appellant had been drug-free for over eight
                 months, she was caring for her newborn son, who had never been removed
                 from her care, and was enjoying overnight visitation with her other son
                 and appeared to be moving toward reunifying with him. While appellant
                 was not employed at the time of trial, she did testify that she had recently
                 had a very promising job interview and that she was residing in adequate
                 housing for the children. Furthermore, because the three children receive
                 $966 monthly in death benefits, appellant would be able to use those funds
                 to help her provide adequate care for the children. Thus, while the
                 children had been previously neglected by appellant, at the time of trial,
                 respondent failed to demonstrate by clear and convincing evidence that
                 the children would be neglected if returned to appellant's care.
                             Similarly, there is not substantial evidence demonstrating
                 that the children were at a serious risk of injury if returned to appellant's
                 care. NRS 128.105(2)(e) (1999) recognizes that parental fault may be
                 established if there is a "[disk of serious physical, mental or emotional
                 injury to the child if tRe child were returned to, or remains in, the home of
                 his or her parent." Appellant never abused the children and because at
                 the time of trial she had been drug-free for over eight months and had an
                 adequate home for the children, there was not a serious risk of injury to

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                the children if they were returned to her care at that time. Therefore,
                none of the district court's parental fault findings are supported by
                substantial evidence and the district court erred by terminating
                appellant's parental rights. 1 Accordingly, we
                              ORDER the judgment of the district court REVERSED AND
                REMAND this matter to the district court for proceedings consistent with
                this order.



                                                                                           J.



                                                                                           J.
                                                            Dou


                                                                                       ,



                                                            Gibbons




                cc: Hon. Egan K. Walker, District Judge
                     Washoe County Public Defender
                     Washoe County District Attorney
                     Washoe District Court Clerk




                      1 Because substantial evidence does not support the district court's
                conclusion that respondent established parental fault, we do not need to
                reach the issue of whether the termination of appellant's parental rights
                was in the children's best interest. NRS 128.105.

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