Richard J. K. v. State, Division of Child & Family Services

58 P.3d 181, 118 Nev. 737, 118 Nev. Adv. Rep. 75, 2002 Nev. LEXIS 89
CourtNevada Supreme Court
DecidedDecember 3, 2002
DocketNo. 38816
StatusPublished
Cited by25 cases

This text of 58 P.3d 181 (Richard J. K. v. State, Division of Child & 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
Richard J. K. v. State, Division of Child & Family Services, 58 P.3d 181, 118 Nev. 737, 118 Nev. Adv. Rep. 75, 2002 Nev. LEXIS 89 (Neb. 2002).

Opinion

OPINION

Per Curiam:

Appellant Richard contends that the district court erred in terminating his parental rights because there was no clear and con[739]*739vincing evidence that termination would serve his children’s best interests or that there was parental fault. We disagree. The record includes substantial evidence that termination is in the children’s best interests, and Richard failed to overcome the statutory presumption that his children’s best interests would be served by termination. Additionally, unlike our recent cases, Matter of Parental Rights as to Q.L.R.1 and Matter of Parental Rights as to J.L.N.,2 the district court did not rely solely upon Richard’s incarceration in determining parental fault. We therefore affirm the judgment of the district court terminating Richard’s parental rights.

FACTS

K.D.L. was born to Mary and Richard on October 14, 1996. S.P.K. was born to Mary and Richard on January 1, 1998. Mary and Richard were never married; however, there is no dispute that Richard is the father of both children.

On August 28, 1998, Las Vegas Metropolitan Police Department (LVMPD) officers were dispatched to the University Medical Center in reference to a domestic violence call. Hospital personnel had contacted the police due to injuries sustained by Mary, who had multiple contusions and bruises all over her body, including a two-inch gash on the top of her head. Mary, who arrived at the emergency room with her then eight-month-old child, S.P.K., reported to medical personnel that she had been beaten six days prior by her boyfriend of five years, Richard. Mary stated that K.D.L., nearly two years old at the time, had witnessed the attack.

Despite being diagnosed with a bi-lateral jaw fracture requiring surgery, Mary declined to press charges and stated she would return to the parties’ shared home. Mary also indicated that the parties’ child, K.D.L., was with Richard at that time. Based on Mary’s intent to return to the parties’ home, the severity of Mary’s injuries, the fact that K.D.L. allegedly witnessed the attack on Mary, and the potential for harm to the children if Richard attacked Mary again, LVMPD decided to take the children into protective custody.

A subsequent investigation by the Nevada Division of Child and Family Services (DCFS) revealed that in addition to the issues involving domestic violence, both Mary and Richard admitted to substance abuse and Richard tested positive for cocaine and marijuana. In addition, Richard also had previous misdemeanor convictions for offenses related to substance abuse and domestic violence dating back to 1994. Richard also had prior arrests for willfully aiming a firearm and driving under the influence. DCFS [740]*740reported that two-year-old K.D.L. had started imitating Richard’s battering behaviors and that Richard had appeared at Child Haven to visit his children smelling of alcohol and acting in a confrontational manner towards Child Haven staff members. Charges of abuse and neglect were sustained against Mary and Richard, and the children were made wards of the State. A case plan for reunification was developed.

The case plan required Richard to: (1) attend weekly anger management therapy sessions, (2) take and continue to take psychotropic medication, (3) attend parenting classes, (4) submit to random urinalysis, and (5) obtain a drug and alcohol assessment from a Bureau of Alcohol and Drug Abuse (BADA) certified counselor and follow any recommendations made by that counselor.

On May 2, 1999, approximately six months later, Richard was again arrested. He was charged with resisting a peace officer, unlawful use/possession of drug paraphernalia, possession of a controlled substance, and carrying a concealed weapon. The record does not reflect the disposition on these charges.

On May 7, 1999, in its periodic review to the district court, DCFS indicated that, as required by the case plan, Richard had followed through with assessment and treatment by a psychiatrist, was taking medication as prescribed by the psychiatrist on a regular basis, had completed all but one parenting class through DCFS, and was attending counseling with Mary. The case specialist reported that Richard and Mary had made significant progress in the counseling process. Richard had not, however, submitted proof of assessment from a BADA certified drug and alcohol program as required by the case plan. The May 1999 arrests were not discussed.

DCFS reported that the children had been placed in foster care and had received physical, emotional, and educational evaluations. The report indicated that S.RK. was too young to evaluate for educational delays, but K.D.L. evinced a combination of expressive and receptive language/speech delays, as well as fine and gross motor skill delays. The report stated that both children had responded favorably to the care and direction provided by the foster parents in conjunction with services provided by Early Childhood Services. At the time of the report, case specialist Terry Lowery indicated that reunification of the family was a goal of the case plan.

A Court Appointed Special Advocate (CASA), Pamela McGaha, submitted her evaluation of K.D.L. and S.P.K. on May 7, 1999, as well. McGaha expressed concern that Richard had difficulty adhering to the visitation rules mandated by DCFS. She also expressed concern about Richard’s apparent lack of control. [741]*741Following review of the submitted evaluations, however, the district court, based on the partial completion of the case plan, ordered the children returned to the care of Mary and Richard.3

On July 28, 1999, Richard pleaded guilty to battery with substantial bodily harm arising out of the August 1998 incident involving Mary. Richard’s sentence for this offense was suspended and he was placed on probation.4 However, at some point between June 1999 and September 1999, Richard committed an act of battery/domestic violence against his mother, thus violating the terms of his probation agreement.5 Because of the new arrest, and Mary’s inability to adequately care for K.D.L. and S.P.K., the children were again placed in foster care.

On September 30, 1999, as a result of the second arrest for domestic violence, Richard’s probation was revoked by the district court. On December 14, 1999, Richard pleaded guilty to battery with a deadly weapon arising out of the incident involving his mother. Richard was sentenced to a maximum of one hundred twenty months with minimum parole eligibility in forty-eight months. The court ordered the sentence to run concurrently with the battery with substantial bodily harm conviction stemming from the August 1998 crimes against Mary. As of the time of the termination proceedings, Richard’s projected discharge date was April 2006. The earliest projected date at which Richard could petition for parole was March 2004.

On November 4, 1999, DCFS provided the court with a report for permanency review. On November 9, 1999, the district court concluded that reasonable efforts had been made to return K.D.L. and S.P.K. to the parental home, but that returning the children to the parental home would be contrary to their welfare. The district court further concluded that: (1) K.D.L. and S.P.K.

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Cite This Page — Counsel Stack

Bluebook (online)
58 P.3d 181, 118 Nev. 737, 118 Nev. Adv. Rep. 75, 2002 Nev. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-j-k-v-state-division-of-child-family-services-nev-2002.