                                                         130 Nev., Advance Opinion 611
                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                       IN THE MATTER OF THE PARENTAL                         No. 63311
                       RIGHTS AS TO A.L. AND C.B.,
                       MINORS.

                       KEAUNDRA D.,                                               FILED
                       Appellant,
                                                                                    NOV 1 3 2014
                       vs.
                                                                                  TN,A
                       CLARK COUNTY DEPARTMENT OF                            CI

                       FAMILY SERVICES,                                     BY
                                                                                  CFilE
                       Respondent.



                                   Appeal from a district court order terminating appellant's
                       parental rights as to the minor children. Eighth Judicial District Court,
                       Family Court Division, Clark County; Robert Teuton, Judge.
                                   Reversed and remanded.

                       David M. Schieck, Special Public Defender, and Melinda E. Simpkins and
                       Deanna M. Molinar, Deputy Special Public Defenders, Clark County,
                       for Appellant.

                       Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                       Wolfson, District Attorney, and Ronald L. Cordes, Chief Deputy District
                       Attorney, Clark County,
                       for Respondent.




                       BEFORE THE COURT EN BANC,

                                                       OPINION
                       By the Court, PARRAGUIRRE, J.:
                                   In this appeal from a district court order terminating parental

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                       rights, we are asked to decide whether the district court erred in relying
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                 on a juvenile court's determination that a minor child's injury was not
                 accidental, but rather was caused by appellant, the child's birth mother.
                 We conclude that respondent confessed error on this issue. We therefore
                 reverse and remand for a new trial as to appellant's parental rights.
                                                   FACTS
                              Appellant Keaundra D. is the mother of A.L. and C.B., the
                 minor children who are the subject of this proceeding. In April 2010,
                 respondent, the Clark County Department of Family Services (DFS),
                 received an anonymous call through its child abuse hotline alleging that
                 the children's safety was at risk because the parents used illegal drugs,
                 domestic violence was ongoing, and C.B.'s face had recently been burned.
                 At the time, A.L. was six years old and C.B. was one year old.
                              During an interview with a DFS investigator, Keaundra
                 stated that she was the only adult at home when C.B. was burned.
                 According to Keaundra's trial testimony, A.L. and C.B. were in the master
                 bedroom while she was preparing for work in the attached bathroom. She
                 had recently ironed her clothes and had placed the iron on her dresser.
                 She heard the iron fall and came out to investigate. A.L. told her that C.B.
                 had tried to kiss the iron.
                              Following this initial contact with DFS, Keaundra moved her
                 family to Louisiana, where her stepfather was stationed with the U.S. Air
                 Force. DFS characterized the move as a flight in an attempt to hide the
                 children from DFS. Upon learning that Keaundra had moved to
                 Louisiana, DFS sought help from U.S. Air Force authorities to gain
                 protective custody of the children. The children were removed from
                 Keaundra, and C.B. was taken to see Dr. Neuman, a physician in
                 Louisiana.

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                            In May 2010, DFS filed a petition for protective custody of
                C.B. and A.L. under NRS Chapter 432B, alleging that Keaundra had
                either physically abused or negligently supervised C.B. At a subsequent
                adjudicatory hearing, the hearing master took testimony from Dr. Mehta,
                a medical examiner who had reviewed photographs of C.B.'s injuries. Dr.
                Mehta gave her opinion that the shape of the injury was inconsistent with
                an accident and that the iron was deliberately held to C.B.'s face.
                Keaundra offered a report by C.B.'s treating physician, Dr. Neuman, to
                rebut Dr. Mehta's testimony. The hearing master excluded the report on
                the ground that the report was not a certified copy. The hearing master
                found that Keaundra physically abused C.B. and recommended sustaining
                the abuse and neglect petition on that ground; the allegations concerning
                drug use and domestic violence were dropped. The juvenile court affirmed
                the hearing master's recommendation and concluded that the injury was
                nonaccidental.
                           In light of these findings, Keaundra received a case plan that
                required her to maintain stable housing and income, keep in contact with
                DFS, and complete parenting classes. She was also required to complete a
                physical abuse assessment and "be able to articulate in dialogue with the
                Specialist and therapist(s) the sequence of events which result led] in
                physical abuse, as sustained by the Court, and how he/she will be able to
                ensure that no future physical abuse to [C.B.] occurs." One month after
                giving Keaundra the case plan, DFS recommended termination of parental
                rights as the goal for the children. DFS followed this recommendation
                with a petition to terminate Keaundra's parental rights as to C.B. and
                A.L.
                           At her six-month review, DFS reported that Keaundra had
                completed her parenting classes, maintained housing, held regular jobs,
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                 and completed both her assessment and therapy. At that point, the
                 children had been placed with their maternal grandmother in Louisiana,
                 where Keaundra was also living. DFS stated that it was satisfied with
                 Keaundra's progress but nevertheless maintained its recommendation to
                 terminate her parental rights because she had not admitted that she
                 abused C.B., and the case plan required such an admission. DFS later
                 stated at trial that, with such an admission, it would not have sought
                 termination of parental rights.
                             At the next six-month review, DFS again noted that Keaundra
                 had completed her case plan in all other regards and that she
                 acknowledged that negligence and improper supervision caused C.B.'s
                 injury. Again, DFS maintained its recommendation to terminate parental
                 rights due to Keaundra's refusal to admit that she held the iron to C.B.'s
                 face.
                             In the meantime, Keaundra moved to South Carolina and was
                 referred to a new therapist, who was in regular contact with a DFS
                 caseworker. At the parental termination trial, the new therapist testified
                 that therapy resulted in a marked change in Keaundra's behavior and
                 demeanor. The therapist saw no signs that she would expect to see in an
                 abusive parent. She noted that despite signs of depression and anxiety at
                 the start of therapy, Keaundra's demeanor had substantially changed over
                 the course of treatment and her risk to reoffend was low.
                             Following the trial, the district court issued a decision
                 terminating Keaundra's parental rights as to C.B. and A.L. The district
                 court relied on the hearing master's findings, as affirmed by the juvenile
                 court, that Keaundra was at fault for C.B.'s injuries and that his injuries
                 were not accidental. Because Keaundra was unable to remedy the
                 circumstances, conduct, or conditions leading to C.B.'s removal, the
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                district court terminated her parental rights based on token efforts, failure
                of parental adjustment, and unfitness. The district court further found
                that termination was in the children's best in interests. Keaundra now
                brings this appeal.
                                               DISCUSSION
                            On appeal, Keaundra argues that the hearing master erred in
                excluding evidence proffered to rebut a statutory presumption and that
                the district court improperly relied on the hearing master's resulting
                findings in terminating her parental rights.'
                            "The purpose of Nevada's termination statute is not to punish
                parents, but to protect the welfare of children."      In re Termination of
                Parental Rights as to N.J., 116 Nev. 790, 801, 8 P.3d 126, 133 (2000). "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). Because the termination of parental
                rights "is 'an exercise of awesome power' that is 'tantamount to imposition
                of a civil death penalty," a district court's order terminating parental
                rights is subject to close scrutiny. Id. at 1423, 148 P.3d at 763 (quoting In
                re N.J., 116 Nev. at 795, 8 P.3d at 129). Termination of parental rights
                must be based on clear and convincing evidence.      In re N.J., 116 Nev. at
                795, 8 P.3d at 129. This court reviews the district court's findings of fact



                     'Keaundra also argues that the district court's sole basis for
                terminating her parental rights was her refusal to admit intentionally
                harming her child and that this requirement violated her Fifth
                Amendment right against self-incrimination. We do not reach this issue
                because it is not necessary to dispose of this matter.

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                for substantial evidence. Id. We review questions of law de novo. Awada
                v. Shuffle Master, Inc., 123 Nev. 613, 618, 173 P.3d 707, 711 (2007).
                            NRS 128.105 provides that a district court may terminate
                parental rights if it finds that "[t] he best interests of the child would be
                served by the termination of parental rights" and the parent is unfit, failed
                to adjust, or only made token efforts to "support or communicate with the
                child," "prevent neglect of the child," "avoid being an unfit parent," or
                "eliminate the risk of serious physical, mental or emotional injury to the
                child." The district court found that DFS established presumptions of
                token efforts under NRS 128.109(1)(a) and that termination of parental
                rights was in the best interests of the children under NRS 128.109(2). To
                rebut NRS 128.109's presumptions, the parent must establish by a
                preponderance of the evidence that the alleged parental fault does not
                exist and termination is not in the children's best interests. In re Parental
                Rights as to J.D.N., 128 Nev. „ 283 P.3d 842, 849 (2012). According
                to the district court, Keaundra did not rebut these presumptions. The
                district court also found clear and convincing evidence of unfitness and
                failure of parental adjustment. Each of these findings was ultimately
                derived from the district court's reliance on the hearing master's finding of
                abuse.
                            According to NRS 432B.450, a presumption that a child is in
                need of protection is raised when an expert testifies in a civil proceeding
                that an injury to a child would not have occurred absent "negligence or a
                deliberate but unreasonable act or failure to act by the person responsible
                for the welfare of the child." During the NRS 432B proceedings, Keaundra
                attempted to rebut the presumption raised by Dr. Mehta's report
                (concluding that the iron burn was nonaccidental) by introducing the

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                     report of Dr. Neuman, who had personally examined C.B. in Louisiana.
                     The hearing master barred admission of this report on the ground that it
                     was not a certified copy.
                                  Keaundra asserts that Dr. Neuman's report was improperly
                     excluded in the juvenile court proceedings, leading the district court to
                     find abuse without hearing material rebuttal evidence. DFS does not
                     address Keaundra's argument on appeal. We conclude, therefore, that
                     DFS has confessed error on this issue. NRAP 31(d); see also Bates v.
                     Chronister, 100 Nev. 675, 681-82, 691 P.2d 865, 870 (1984) (concluding
                     that respondent confessed error by failing to respond to appellant's
                     argument).
                                  The district court's findings of parental fault—specifically,
                     failure of parental adjustment, unfitness, and token efforts—were all
                     premised on Keaundra's failure to comply with a portion of her case plan
                     requiring her to admit to intentionally abusing her child. Since the
                     finding of intentional abuse was based on a concededly improper failure to
                     admit evidence rebutting a statutory presumption, a new trial is required
                     to determine Keaundra's parental rights. See In re N.J., 116 Nev. at 804,
                     8 P.3d at 135 (concluding the district court's refusal to admit evidence
                     rebutting a statutory presumption constituted grounds for a new trial); see
                     generally In re A.B., 128 Nev. „ 291 P.3d 122, 127 (2012) (holding
                     that a district court may review a hearing master's findings de novo or
                     "may rely on the master's findings when the findings are 'supported by
                     credible evidence and [are] not, therefore, clearly erroneous" (alteration in
                     original) (quoting Wenger v. Wenger, 402 A.2d 94, 97 (Md. Ct. Spec. App.
                     1979))).



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                                 Accordingly, we reverse the district court's termination order
                as to Keaundra, and we remand this matter for a new tria1. 2


                                                            "4.A. CL sr-C,
                                                          Parraguirre

                We concur.
                       If


                                                     C.J.
                Gibbons


                                                     J.
                Pickering


                                                 ,   J.
                Hardesty


                                                     J.
                Douglas


                                                     J.
                Cherry .




                Saitta




                         2 The
                           district court's order also terminated Christopher B.'s parental
                rights. He has not filed an appeal in this matter; therefore, our
                consideration of the issues in this case is limited solely to the termination
                of Keaundra's parental rights.

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