abuse risk assessment. Neither case plan required either appellant to 

explain the child's injuries. 

The record reflects that appellants completed their case plans, 

including attending V.H.W.'s medical appointments and completing 

parenting classes. During this time, appellants consistently visited with 

V.H.W. twice weekly, and they had begun to exercise unsupervised 

overnight visitation. Consequently, DFS recommended maintaining the 

permanency plan of reunifying the child with appellants. The 

recommendation was presented to a domestic master for approval, but the 

master declined to approve the recommendation, and directed that the 

permanency plan be changed from reunification to termination of parental 

rights because neither appellant could explain V.H.W.'s injuries. 

Appellants objected to the master's recommendation and requested 

reunification, but that request was denied. A petition to terminate 

appellants' parental rights was then filed. 

The termination petition was withdrawn, and there was no 

action on the abuse and neglect proceeding for several months, until DFS 

recommended to appellants and the district court that appellants undergo 

additional individual counseling. This recommendation was never agreed 

to by appellants in writingS or approved by the court as required under 

NRS 128.0155. After appellants failed to comply with this 

recommendation, DFS again filed a petition to terminate appellants' 

parental rights alleging that termination was in V.H.W.'s best interest, 

and DFS contended that parental fault existed based on abandonment, 

neglect, unfitness, failure of parental adjustment, and a posed risk of 

harm to V.H.W. At the trial on the termination petition, appellants both 

testified that they had been pressured by DFS to explain the injuries, but 

that they were unable to do so. They both maintained, however, their 

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belief that one of Maria L.'s relatives caused the child's injuries. The child 

protective services investigator who investigated V.H.W.'s injuries also 

testified at the trial that she did not interview all of Maria L.'s relatives 

who had contact with the child at the time that she sustained the injuries. 

Ultimately, the district court entered a written order granting 

the petition on the basis that terminating appellants' parental rights was 

in the child's best interest and that DFS had established by clear and 

convincing evidence parental fault based on neglect, unfitness, and failure 

of parental adjustment. In particular, the district court concluded that 

appellants had neglected V.H.W. and were unfit parents by reason of their 

faults or habits because they were unable to explain V.H.W.'s injuries and 

did not engage in the additional counseling. The district court, however, 

did not specify what faults or habits prevented appellants from providing 

proper parental care to V.H.W. The court did conclude that appellants' 

inability to explain KH.W.'s injuries and their failure to engage in 

additional counseling demonstrated their inability to adjust to the 

circumstances that led to V.H.W.'s removal. The district court also 

concluded that although there was no evidence that appellants caused 

V.H.W.'s injuries, there was evidence that appellants "had lived with one 

set of relatives at the time of the older injury, and with another set of 

relatives at the time of the more recent injury." Appellants now appeal 

from that order and contend that substantial evidence does not support 

the district court's finding that the state established parental fault or that 

termination was in the child's best interest. 

DISCUSSION 

To terminate parental rights, a petitioner must prove by clear 

and convincing evidence that termination is in the child's best interest and 

that parental fault exists. See In re Parental Rights as to A.J.G., 122 Nev. 

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1418, 1423, 148 P.3d 759, 762 (2006); see also NRS 128.105 (requiring that 

before parental rights can be terminated, the State must establish both 

parental fault and that termination of parental rights is in the child's best 

interest). 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 (internal quotation omitted). This 

court reviews a district court's decision to terminate parental rights for an 

abuse of discretion and will uphold a termination order only if the district 

court's factual findings that the termination is in the child's best interest 

and that parental fault exists are supported by substantial evidence. Id. 

Having considered the parties' arguments and the record on appeal, we 

conclude that substantial evidence does not support the district court's 

order granting the petition to terminate appellants'S parental rights. Id. 

In regards to parental fault, the district court relied on 

appellants' failure to complete the additional recommended counseling as 

an element of each of the parental fault findings, even though that 

counseling recommendation was never included in appellants' case plans 

approved by the court. The district court also relied on appellants' 

inability to explain the child's injuries as an element of each of the 

parental fault findings. 

NRS 128.0155 defines a case plan as either (1) a written 

agreement between the parents and the agency having custody of the 

child, or (2) written conditions and obligations imposed upon the parents 

by the court with the objective of reuniting the family. Here, appellants 

completed the case plans provided by DFS and approved by the district 

court. Appellants never agreed to the additional counseling, nor had the 

district court approved DFS's recommendation for additional counseling as 

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an obligation that appellants were required to meet before reunification 

was possible. Appellants were never required as part of their case plans to 

explain the child's injuries.' Champagne v. Welfare Div., 100 Nev. 640, 

652, 691 P.2d 849, 857 (1984) (providing that "[t]he parent cannot be 

judged unsuitable by reason of failure to comply with requirements and 

plans that are unclear or have not been communicated to the parent"), 

overruled on other grounds by In re Termination of Parental Rights as to 

N.J., 116 Nev. 790, 8 P.3d 126 (2000). 

More importantly, however, the burden was on DFS to 

establish, by clear and convincing evidence, that appellants' inability to 

explain the child's injuries, independent of additional circumstances, 

amounted to neglect, unfitness, or failure of parental adjustment, 

especially in light of the fact that appellants complied with all of the courtapproved case plan requirements intended to address any parental fault 

issues. See Champagne, 100 Nev. at 648, 691 P.2d at 854 (providing that 

"[b]ecause of the sacredness of parental rights a higher standard of proof, 

that of 'at least clear and convincing evidence,' is required before [a child] 

can be judicially taken away" (internal quotation omitted)). But, DFS 

failed to meet this burden because DFS did not allege that appellants 

abused V.H.W., DFS failed to interview all of the relatives appellants were 

living with at the time V.H.W. suffered the injuries, appellants complied 

with their case plans, and they successfully exercised unsupervised 

'Jonathan also contends that any requirement that he admit to 

causing the child's injuries as a condition of reunification violates his Fifth 

Amendment right against self-incrimination. DFS points out, however, 

that it stipulated that any statements made during the course of 

treatment could not be used against appellants in any criminal 

proceeding. 

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, C. J. 

Hardesty 

J. 

Cherry 

visitation. Thus, we conclude that substantial evidence does not support 

the district court's conclusion that DFS established by clear and 

convincing evidence that appellants' failure to undergo the additional 

recommended counseling or their failure to explain the child's injuries 

established parental fault. Parental Rights as to A.J.G., 122 Nev. at 1423, 

148 P.3d at 762. 

Because substantial evidence does not support the district 

court's conclusion that DFS established parental fault, we do not need to 

reach the issue of whether the termination of appellants' parental rights 

was in V.H.W.'s best interest. NRS 128.105. 

For the reasons discussed above, we conclude that the district 

court abused its discretion in granting the petition to terminate 

appellants' parental rights as to the child and we order the judgment of 

the district court reversed. 

It is so ORDERED. 

—DotAl 1 / 4 

Douglas 

cc: Hon. Cynthia N. Giuliani, District Judge 

Special Public Defender 

Stephanie M. Keels 

Clark County District Attorney/Juvenile Division 

Eighth District Court Clerk 

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