                                                    131 Nev., Advance Opinion
                        IN THE SUPREME COURT OF THE STATE OF NEVADA
                                                                                        we
                 IN THE MATTER OF THE PARENTAL                        No. 64214
                 RIGHTS AS TO A.P.M. AND E.M.M.

                 ARLI P.M.,
                 Appellant,                                                   PILED
                 vs.
                 STATE OF NEVADA DEPARTMENT
                                                                              SEP 1 0 2015
                 OF FAMILY SERVICES; AND A.P.M.                         Gr   At 4.
                                                                                t/E,4
                                                                                             OQUR
                 AND E.M.M., MINORS,                                    BY
                                                                             EiiiteraYircIt7i
                 Respondents.



                            Appeal from a district court order terminating parental rights.
                 Eighth Judicial District Court, Family Court Division, Clark County;
                 Frank P. Sullivan, Judge.
                            Affirmed.



                 David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy
                 Special Public Defender, Clark County,
                 for Appellant.

                 Steven B. Wolfson, District Attorney, and Janne M. Hanrahan and Ronald
                 L. Cordes, Deputy District Attorneys, Clark County,
                 for Respondent State of Nevada Department of Family Services.

                 Legal Aid Center of Southern Nevada and Mary F. McCarthy and Barbara
                 E. Buckley, Las Vegas,
                 for Respondents A.P.M. and E.M.M.




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                BEFORE THE COURT EN BANC.


                                                OPINION
                By the Court, GIBBONS, J.:
                            In this appeal, we consider two issues of first impression
                arising from a termination of parental rights. First, we consider whether
                the district court may terminate the parental rights of a parent who has
                completed a case plan for reunification. Second, we consider 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).
                            We first conclude that the district court may terminate the
                parental rights of a parent who has completed his or her case plan for
                reunification, if termination is otherwise warranted under NRS 128.105.
                Second, we conclude that the district court is not required to wait the
                entire 20 months before applying the presumptions found in NRS
                128.109(1)(a) and NRS 128.109(2), as long as the 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. Having resolved
                these legal issues, we further conclude that the record contains
                substantial evidence supporting the district court's decision to terminate
                appellant's parental rights.




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                               FACTUAL AND PROCEDURAL BACKGROUND
                              Appellant Arli M. and his wife Abigail M. had three children
                  together: J.M., 1 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.



                        'J.M. died on October 10, 2006, from undetermined causes.



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                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, 2 and (2) that


                      2During oral argument, both parties agreed that the district court's
                written order terminating Arli's parental rights contained discrepancies
                regarding the district court's findings of parental fault on grounds other
                than neglect. The parties claimed that the written order contained
                unintentional errors that conflicted with the district court's oral findings.
                Acknowledging these potential discrepancies, we conclude that the written
                order is controlling in this case. See Rust v. Clark Cnty. Sch. Dist., 103
                Nev. 686, 689, 747 P.2d 1380, 1382 (1987).

                      It is undisputed, however, that the district court found—both at the
                hearing and in its written order—parental fault based on neglect under
                NRS 128.105(2)(b). Because, as described below, we affirm the district
                court's finding of neglect, and only one parental fault ground is needed to
                                                                  continued on next page . . .

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                    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 this court received a suggestion of death indicating that Abigail had
                    passed away, and her appeal was dismissed. Only Arli's appeal remains.
                    On appeal, Arli argues 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 does not support the
                    district court's findings of parental fault and that termination was in the
                    best interests of the children.
                                                      DISCUSSION
                    Standard of review
                                 "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). Termination
                    of parental rights is "an exercise of awesome power." In re Parental Rights
                    as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000); see also Drury v.


                    . . . continued

                    terminate parental rights under NRS 128.105(2), any possible
                    discrepancies in the district court's written order regarding the other
                    parental fault grounds are inconsequential to this case.



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                  Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989) (holding that severance
                  of the parent-child relationship is "tantamount to imposition of a civil
                  death penalty"). This court closely scrutinizes whether the district court
                  properly terminated the parental rights at issue. N.J., 116 Nev. at 795, 8
                  P.3d at 129. We will uphold a district court's order terminating parental
                  rights when it is supported by substantial evidence. In re Parental Rights
                  as to C.C.A., 128 Nev., Adv. Op. 15, 273 P.3d 852, 854 (2012).
                                 This appeal also raises issues of statutory interpretation.
                  "The construction of a statute is a question of law, which this
                  court. . . reviews de novo."   Matter of Petition of Phillip A. C., 122 Nev.
                  1284, 1293, 149 P.3d 51, 57 (2006). Generally, the plain meaning of the
                  words in a statute should be respected. Id. Thus, when a statute is clear
                  on its face, this court will not look beyond the plain language to determine
                  legislative intent. Id.
                                 Prior to reaching the merits of the parental termination
                  decision, two legal issues must be decided: (1) whether the completion of a
                  case plan for reunification prohibits the district court from terminating
                  parental rights, and (2) whether the presumptions found in NRS
                  128.109(1)(a) and NRS 128.109(2) can be applied before a full 20 months
                  has elapsed.
                  Completing a case plan for reunification does not prohibit the district court
                  from terminating parental rights
                              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 argues that the district court should not have
                  terminated his parental rights because he completed this case plan. We
                  disagree.

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                            We hold that a completed case plan does not prohibit the
                district court from terminating parental rights if termination is otherwise
                warranted under NRS Chapter 128. NRS 128.105 sets forth grounds for
                terminating parental rights. Along with requiring a finding of parental
                fault, the statute also states that "Mlle primary consideration in any
                proceeding to terminate parental rights must be whether the best
                interests of the child will be served by the termination." NRS 128.105.
                Determining a child's best interest requires a consideration of many
                factors stemming from the "the distinct facts of each case." N.J., 116 Nev.
                at 800, 8 P.3d at 133; see also NRS 128.005(2)(c) ("The continuing needs of
                a child for proper physical, mental and emotional growth and development
                are the decisive considerations in proceedings for termination of parental
                rights."). Nowhere in NRS Chapter 128, however, 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. 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. 3
                            Accordingly, we conclude that the district court was not
                prohibited from terminating Arli's parental rights even though Arli had
                completed his case plan.



                      3 Similarly,nothing in NRS 128.105 prohibits the district court from
                finding parental fault if a parent has completed his or her case plan.



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                 The presumptions in NRS 128.109(1)(a) and NRS 128.109(2) do not
                 require that a full 20 months elapse 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 MRS 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.
                 NRS 128.109.
                             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 argues that the district court erred in applying these
                 presumptions because the children had been out of their parents' home for
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                 less than 20 months. Arli argues 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," requires that the district court
                 wait the entire 20 months before applying the presumptions. We disagree.
                               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. We hold 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. Indeed, 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. NRS 128.109(1)(a), (2). Accordingly,
                 because Arli's children had been removed pursuant to NRS Chapter 432B
                 for over 14 consecutive months, we conclude that the district court
                 correctly applied the presumptions in MIS 128.109(1)(a) and NRS
                 128.109(2).
                 Substantial evidence supports termination of Arles parental rights
                               With the two pressing legal issues resolved, we now turn our
                 attention to whether the district court's findings of parental fault and that
                 termination of parental rights was in the children's best interests were
                 supported by substantial evidence. NRS 128.105. We conclude that
                 substantial evidence supports these findings.

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                         The district court correctly found parental fault based on neglect
                                 Arli contends that substantial evidence does not support the
                   district court's finding of neglect. Arli argues that he could not be
                   neglectful because he was not present during any of the swallowing
                   incidents. To support this argument, Arli cites Chapman v. Chapman, 96
                   Nev. 290, 294, 607 P.2d 1141, 1144 (1980), in which this 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." 4 In response, DFS argues that Arli was neglectful because
                   he failed to take protective action after the seven serious swallowing
                   incidents involving all three of his children.
                                 We conclude that substantial evidence supports the district
                   court's finding of neglect. NRS 128.014(2) defines a neglected child as a
                   child "[w]hose 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. Arli's failure to take protective action shows that he "refus [ed] to
                   provide proper. . . care necessary for [his children's] health" NRS

                         4Arli also argues that DFS attempted to compel Abigail to admit
                   that she abused the children in order to regain custody, which violated her
                   Fifth Amendment right against self-incrimination. Arli does not explain,
                   however, how any alleged violations of Abigail's rights apply to his case.



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                    128.014(2). Further, we conclude that Arli's reliance on Chapman is
                    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." 96 Nev. at 294, 607
                    P.2d at 1144. Accordingly, the district court correctly found parental fault
                    based on neglect. NRS 128.105(2)(b).
                          The district court correctly found that termination of Arles parental
                          rights was in the best interests of the children
                                As explained above, we 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 contends, however, that he rebutted the
                    presumption by visiting his children, completing parenting classes, and
                    participating in counseling.
                                We conclude that substantial evidence supports a finding that
                    Arli did not rebut the presumption that termination of his parental rights
                    was in the best interests of the children. 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 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.
                                We conclude that the sum of this evidence supports the
                    district court's finding that termination of Arli's parental rights was in the

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                     best interests of the children. This evidence further establishes that even
                     with the death of Abigail, who was apparently the cause of the swallowing
                 •   incidents, Arli is unable to protect his children from danger, swallowing tor
                     otherwise.
                                   Accordingly, because substantial evidence supports a finding
                     of parental fault and that termination of parental rights was in the best
                     interests of the children, we affirm the judgment of the district court.



                                                                                          J.
                                                          Gibbons

                     We concur:


                       /iCAs•                        C.J.
                         'esty




                     Parraguirre


                                                     J.




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                 DOUGLAS, J., with whom CHERRY, J., agrees, dissenting:
                             This termination of parental right's case cries out for remand
                 to the district court for a new hearing as to the best interests of the
                 children in light of their mother's death.
                             The district court findings regarding parental fault and the
                 children's best interests revolved around the danger posed by the mother,
                 Abigail, and her supervision of the children, as well as their father, Arli's
                 failure to take protective action.
                             As to Arli, the facts establish he successfully completed his
                 case plan. That is, he successfully completed parenting classes and
                 participated in the required counseling prior to the district court's
                 termination hearing. At the same time of the hearing, both parents
                 participated and both parents initially appealed the district court's order.
                 However, this court received a notice indicating that Abigail passed away
                 and that the appeal was dismissed.
                             I submit that "terminating parental rights is 'an exercise of
                 awesome power' that is 'tantamount to imposition of a civil death penalty"
                 and is subject to close scrutiny.    In the MatterS of Parental Rights as to
                 A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 763 (2006) (footnote omitted)
                 (quoting In the Matter of Parental Rights as to N.J., 116 Nev. 790, 795, 8
                 P.3d 126, 129 (2000) (internal quotations omitted)).
                             It is my belief that close scrutiny is required due to the death
                 of Abigail and Arli's completion of his case plan. The district court's order
                 to terminate both parents' rights was due primarily to the actions of the
                 deceased mother. As such, this matter should be remanded to the district
                 court for a new hearing as to the children's best interests and Arli's
                 parental rights.

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                                 Justice requires more than a mechanical application of the
                     presumptions as to the children's best interests and "token efforts" as
                     related to the care of the children.




                                                                  1174
                                                            Douglas


                     I concur:




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                    SAITTA, J., concurring in part and dissenting in part:
                                Although I otherwise agree with the majority, I write
                    separately to express my concern about whether there was substantial
                    evidence to support the district court's finding of parental fault. The
                    majority opinion and the district court base their decisions on the fact that
                    Arli did not take what could be considered sufficient protective action to
                    prevent the children's mother from forcing them to swallow foreign objects
                    while he was not present. As the majority acknowledges, Arli testified
                    that he did not "believe" that Abigail was intentionally making their
                    children swallow foreign objects or improperly supervising them.
                    Although a close call, I am not convinced that this mistaken belief and
                    subsequent failure to protect, when combined with Arli's successfully
                    completed case plan, amount to substantial evidence that Arli has
                    "refuse[d] to provide proper or necessary subsistence, education, medical
                    or surgical care, or other care necessary for the child's health, morals or
                    well-being." NRS 128.014(2). Therefore, I dissent as to the majority's
                    holding that substantial evidence existed supporting the district court's
                    finding of the parental fault of neglect.




                                                                                        J.
                                                         Saitta




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