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October 01, 2015

Applying Statutory Presumptions When Child Lived Outside the Home for 14 of Last 20 Months Did Not Require Full 20 Months to Elapse

Eva Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re A.P.M., 2015 WL 5286155 (Nev.).

Father’s completion of his case plan for reunification did not prohibit trial court from terminating his parental rights based on neglect. As a matter of first impression, statutory presumptions that apply to findings of parental fault and the best interest of the child when the child lived outside the home for 14 months during consecutive 20-month period do not require full 20 months to elapse. Evidence supported finding of father’s neglect and that termination of father’s parental rights was in children’s best interests.

Appellant father and his wife had three children. Over five years, the children swallowed a foreign object on seven separate occasions, including coins, magnets, and batteries. All of these swallowing incidents happened while the father was at work and the mother was at home with the children. After the last occasion, doctors had to surgically remove a large battery that was lodged in the three-year-old son’s throat. Following his surgery, the doctors suspected the mother was forcing her children to swallow the objects. Given the boy’s young age and the size of the object, the doctors believed it unlikely he swallowed it on his own and initiated a child protective services investigation.

The child welfare agency removed the children, the juvenile court entered an order granting the agency legal custody, and the children were placed in foster care. The mother and father were issued case plans to regain custody of their children. The father’s case plan required he take parenting classes and participate in counseling. Although the father successfully completed the case plan, the court reviewed his progress and determined the children should remain in foster care.

The court found the evidence supported finding the father neglected the children, and that he took almost no protective action after repeated swallowing incidents. The father testified that he did not believe the mother was intentionally making their children swallow foreign objects or improperly supervised them. Instead, he claimed the children’s injuries resulted from the mother losing focus while caring for the children.

The trial court later granted the agency’s petition to terminate the parents’ rights. It found the agency established parental fault by proving neglect, and that termination of parental rights was in the best interests of the children. Both parents initially appealed, but the mother died while the appeal was pending and only the father’s appeal remained. The father argued that even though the children had been in care for over 14 months, the language “14 months of any 20 consecutive months” requires the trial court to wait the entire 20 months before applying the statutory presumptions. 

Even though the mother had died, the children had been in foster care for 17 straight months. There was evidence of the father’s limited relationship with the children and failure to take protective action, with evidence further establishing the children did not ingest any foreign objects after they were placed in protective custody, and the children’s foster parent testified that they had been living with her for several months, had a close relationship, and she wished to adopt them.

The Nevada Supreme Court considered two issues of first impression. First, whether the trial court may terminate the parental rights of a parent who has completed a case plan for reunification. Second, whether the court must wait the entire 20 months before applying both the statutory presumption of token efforts and the presumption that termination of parental rights is in the best interest of the child.

The court found the father’s completion of his case plan for reunification does not prohibit the juvenile court from terminating parental rights. The statute does not state that the 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, the court can still consider additional factors and determine otherwise. The court also held that if the 14–month threshold has been met in less than 20 months, the trial court may apply the statutory presumptions without waiting for the entire 20 months to elapse.

The court found that evidence supports the trial court’s finding that terminating the father’s parental rights was in the best interests of the children and that even with the death of their mother, who was apparently the cause of the swallowing incidents, the father was unable to protect his children from danger, swallowing, or otherwise.

Two judges dissented, arguing that the case called for greater scrutiny and remand to the trial court for a new hearing as to the children’s best interests in light of their mother’s death since she was primarily responsible for the swallowing incidents. Another judge, who concurred in part and dissented in part, did not believe the father’s mistaken belief regarding his wife’s intentions and later failure to protect amounted to substantial evidence that the father refused to provide proper care.