Quiana M. B. v. State Department of Family Services

283 P.3d 842, 128 Nev. 462, 128 Nev. Adv. Rep. 44, 2012 WL 3745717, 2012 Nev. LEXIS 87
CourtNevada Supreme Court
DecidedAugust 30, 2012
DocketNo. 57746
StatusPublished
Cited by42 cases

This text of 283 P.3d 842 (Quiana M. B. v. State Department of Family Services) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quiana M. B. v. State Department of Family Services, 283 P.3d 842, 128 Nev. 462, 128 Nev. Adv. Rep. 44, 2012 WL 3745717, 2012 Nev. LEXIS 87 (Neb. 2012).

Opinion

OPINION

By the Court,

Gibbons, J.:

In this appeal, we address several issues relating to a termination-of-parental-rights proceeding. First, we determine whether an objection to the admission of the entire juvenile file [465]*465(“J” file) as hearsay preserved the issue for appeal.1 Next, we consider the applicable burden of proof imposed upon a parent in order to rebut the parental-fault and child’s-best-interest presumptions contained in NRS 128.109. Finally, we decide whether substantial evidence supports the family division of the district court’s order terminating appellants Quiana M. B.’s and Arthur L. T.’s parental rights.

We conclude that (1) Arthur waived his hearsay arguments regarding the “J” file by failing to lodge objections at trial to the specific portions of the “J” file he believed contained hearsay; (2) after it is determined that a presumption under NRS 128.109 applies, a parent can rebut that presumption by a preponderance of the evidence; and (3) substantial evidence supports the family division of the district court’s order terminating Quiana’s and Arthur’s parental rights.

FACTS AND PROCEDURAL HISTORY

Quiana is the biological mother of six minor children. Arthur is the biological father of all of the children except J.D.N.2

On May 13, 2007, the Las Vegas Metropolitan Police Department (LVMPD) and a specialist from respondent State of Nevada Department of Family Services (DFS) responded to reports that Quiana had physically disciplined two of her children, G.M.T. and D.A.T., with a belt for soiling themselves. During their investigation, the LVMPD and the DFS specialist discovered marks and bmises on G.M.T. and D.A.T. consistent with the design of a belt. Quiana admitted to whipping the children with a belt when they soiled themselves during potty training. Based on these findings, the LVMPD arrested Quiana for child abuse and the DFS specialist placed all six children in protective custody. After conducting a background check and home visit, DFS placed the children in the care of Quiana’s mother. During this time, Arthur was in prison for drug-related charges and was not set to be released until August 2009.

Following DFS’s filing of an NRS Chapter 432B child abuse and neglect petition in the juvenile division of the district court, the [466]*466court found that it would be contrary to the children’s welfare to reside with Quiana. Accordingly, the juvenile division of the district court ordered that the children remain in the custody of Quiana’s mother under the supervision of DFS. The next day, Quiana pleaded no contest to the child abuse charges brought against her. DFS then filed a case plan for Quiana with the ultimate goal of reunifying Quiana and her children. DFS did not file a case plan for Arthur. From November 2007 to May 2010, DFS filed seven reports with the juvenile division of the district court on a biannual basis updating the court on the family’s progress with the case plan.

While Quiana initially demonstrated progress in completing her case plan, DFS’s fourth report indicated that Quiana failed to show any further improvement. Quiana failed to provide DFS with proof of employment and failed to demonstrate sufficient housing for her and her children. Quiana also had yet to complete her individual counseling sessions, and her visitation with the children had become inconsistent. Consequently, DFS changed the permanency plan’s goal to terminating parental rights, which the juvenile division of the district court approved. In August 2009, DFS petitioned the family division of the district court to terminate Quiana’s and Arthur’s parental rights.

Prior to the hearing on DFS’s petition to terminate parental rights, DFS filed two more reports with the juvenile division of the district court concerning the family’s progress. By this time, Arthur had been released from prison. Because Quiana’s and Arthur’s supervised visitations with their children had been going well, DFS allowed them to have two unsupervised home visits with the children. At the second visit, Arthur choked Quiana on two separate occasions in front of the children. Arthur later pleaded guilty to domestic violence charges and began taking domestic violence classes. Following the incident, DFS recommended that Quiana receive a domestic violence assessment, but Quiana did not begin the domestic violence classes until just before trial due to a scheduling conflict with her visitation days.

On October 7, 2010, the family division of the district court held a hearing on DFS’s petition to terminate Quiana’s and Arthur’s parental rights. DFS called Quiana as its only witness. Quiana testified that she was seeking employment and living with a friend. While Quiana stated that she loved her children, she also expressed no concern over the children being around Arthur following the domestic violence incident and was unsure as to why all the children were in therapy.

Because the children were removed from their home pursuant to NRS Chapter 432B and had resided outside of the home for at least 14 of 20 consecutive months, the family division of the district court applied NRS 128.109(l)(a)’s presumption that Quiana [467]*467and Arthur had demonstrated only token efforts to care for the children, and NRS 128.109(2)’s presumption that the best interest of the children would be served by the termination of Quiana’s and Arthur’s parental rights. The family division of the district court further found that pursuant to NRS 128.109(l)(b), Quiana’s and Arthur’s failure to substantially comply with the terms and conditions of the reunification plan within six months of the date the case plan commenced was evidence of a failure of parental adjustment. Thus, the family division of the district court allowed Quiana and Arthur to present evidence that would rebut these presumptions. The family division of the district court heard testimony from two DFS specialists, Arthur, and Quiana’s counselor. During the termination proceeding, the family division of the district court also admitted the entire juvenile court record (“J” file) into evidence over Arthur’s general hearsay objections.

Following the hearing, the family division of the district court granted DFS’s petition. The family division of the district court found that neither Quiana nor Arthur rebutted NRS 128.109’s presumptions. However, the family division of the district court did not articulate the burden of proof required for Quiana and Arthur to rebut those presumptions. The family division of the district court also did not expressly refer to NRS 128.107, which sets forth certain factors that a court must consider before terminating parental rights when children are not in the physical custody of a parent.

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Cite This Page — Counsel Stack

Bluebook (online)
283 P.3d 842, 128 Nev. 462, 128 Nev. Adv. Rep. 44, 2012 WL 3745717, 2012 Nev. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quiana-m-b-v-state-department-of-family-services-nev-2012.