PILED 

SEP 1 0 2015 

GrAtt/E,44. 

OQUR 

BY EiiiteraYircIt7i 

131 Nev., Advance Opinion we 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

IN THE MATTER OF THE PARENTAL 

RIGHTS AS TO A.P.M. AND E.M.M. 

ARLI P.M., 

Appellant, 

vs. 

STATE OF NEVADA DEPARTMENT 

OF FAMILY SERVICES; AND A.P.M. 

AND E.M.M., MINORS, 

Respondents. 

No. 64214 

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., 1A.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, 2and (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. 

3Similarly, 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." 4In 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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/iCAs• 

'esty 

Parraguirre 

J. 

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. 

Gibbons 

We concur: 

J. 

C.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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