TN,A 

CI 

BY 

CFilE 

130 Nev., Advance Opinion 611 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

IN THE MATTER OF THE PARENTAL 

RIGHTS AS TO A.L. AND C.B., 

MINORS. 

KEAUNDRA D., 

Appellant, 

vs. 

CLARK COUNTY DEPARTMENT OF 

FAMILY SERVICES, 

Respondent. 

No. 63311 

FILED 

NOV 1 3 2014 

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, 

SUPREME COURT 

OF 

NEVADA 

OPINION 

By the Court, PARRAGUIRRE, J.: 

In this appeal from a district court order terminating parental 

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 

Gibbons 

Pickering 

, J. 

Hardesty 

Douglas 

C.J. 

J. 

J. 

J. 

Cherry . 

Saitta 

2The 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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