IN RE: K.M.S.

Statutes cited

Key holdings

Practitioner summary

The court reviewed the guardianship appointment for abuse of discretion under In re Guardianship of N.M., 131 Nev. 751, 758, 358 P.3d 216, 220 (2015), and addressed appealability under NRS 159A.375(1), which expressly permits appeals from orders granting letters of guardianship. Due process: The court applied Smith v. Cty. of San Diego, 109 Nev. 302, 304, 849 P.2d 286, 287 (1993), holding due process satisfied where the citation to appear was served on appellant and his court-appointed counsel, the citation listed the hearing date, and counsel appeared. Arguments concerning a wardship hearing not raised below were waived under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), and a claim concerning a hearing absent from the record was not considered under Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). Right to counsel: Citing Lassiter v. Dep't of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 26 (1981), and In re Parental Rights as to N.D.O., 121 Nev. 379, 386, 115 P.3d 223, 227 (2005), the court reiterated that there is generally no right to counsel in proceedings not implicating physical liberty, including child custody matters involving termination of parental rights. Without a right to counsel, ineffective-assistance claims fail under McKague v. Whitley, 112 Nev. 159, 164-65, 912 P.2d 255, 258 (1996); the remedy for a private litigant is a malpractice action, Huckabay Props. v. NC Auto Parts, 130 Nev. 196, 205-06, 322 P.3d 429, 435 (2014). The court noted refusal-to-cooperate does not justify substitute counsel, citing Gallego v. State, 117 Nev. 348, 363, 23 P.3d 227, 237 (2001), abrogated on other grounds by Nunnery v. State, 127 Nev. 749, 263 P.3d 235 (2011). Fifth Amendment: Per In re A.D.L., 133 Nev. 561, 565, 402 P.3d 1280, 1285 (2017), the privilege applies in civil proceedings only where testimony could affect a future criminal proceeding; here, the civil proceedings post-dated the criminal conviction. Negative inferences from improper invocation in civil cases are permitted under Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 128 Nev. 635, 647, 289 P.3d 201, 209 (2012). The double-jeopardy argument failed because the underlying matter was civil, citing Hudson v. United States, 522 U.S. 93, 99 (1997). Wardship findings: Under NRS 432B.530, a petition that a child is in need of protection requires preponderance-of-the-evidence showing at the time of removal; under NRS 432B.330(2)(a), incarceration of the responsible person can support such a finding. The district court's findings were supported by substantial evidence including appellant's incarceration, his two domestic violence convictions, and the prior substantiated abuse/neglect by the mother. Review of factual findings followed Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009), and Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007). Stay pending criminal appeal: Reviewed for abuse of discretion under Aspen Fin. Servs., 128 Nev. at 651, 289 P.3d at 211. The court applied the framework in Fed. Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989), and emphasized the child-permanency rationale of Matter of M.M.L., Jr., 133 Nev. 147, 150, 393 P.3d 1079, 1082 (2017), holding that a parent's interest in resolving the issues leading to removal does not override the child's interest in permanency and stability. Evidence: Appellant's video recording and police report were excluded as inadmissible hearsay under NRS 51.035 because no authenticating witnesses were called. Review followed M.C. Multi-Fam. Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008). Guardianship appointment: Appellant identified no procedural error or error in the application of NRS Chapter 159A, and the court found no abuse of discretion under In re Guardianship of N.M. The court resolved the appeal without oral argument pursuant to NRAP 34(f)(1).

In plain language

This case involves a child, K.M.S., who was taken into protective custody after authorities determined that her mother had abused or neglected her. The Nevada Department of Family Services (DFS) then filed and proved an abuse-and-neglect petition against the father, Kwame A.S., who was incarcerated at the time. Eventually, the child's paternal grandmother, Asha Colson, asked the court to appoint her as the child's general guardian. After a hearing, the district court granted that request. The father appealed. On appeal, the father raised several arguments. He claimed he did not get notice of the guardianship hearing, but the Nevada Supreme Court found that the record showed he and his court-appointed attorney had been served with a citation listing the hearing date, and his attorney attended the hearing. He argued he was denied a right to counsel, but the court explained that there is generally no constitutional right to a court-appointed attorney in a case like this, where the litigant's physical liberty is not at stake. Because there was no right to counsel, his related claim that his attorney performed ineffectively also failed. The father also argued that the trial court forced him to incriminate himself at the abuse-and-neglect trial. The court rejected that argument, explaining that the Fifth Amendment privilege against self-incrimination applies in civil cases only when the testimony could affect a future criminal proceeding, and here the criminal case had already concluded. The court added that judges may draw negative inferences in civil cases when a witness improperly invokes the Fifth Amendment. His double-jeopardy argument was rejected because the underlying matter was civil, not criminal. On the non-constitutional side, the father argued the court should not have made K.M.S. a ward of the juvenile court, that it should have stayed the civil case while his criminal appeal continued, that it improperly excluded evidence (a video and police report he wanted admitted), and that the guardianship itself was wrongly granted. The court found substantial evidence supported the protective-custody finding (the father was incarcerated and had two domestic-violence convictions); a stay was not required because a child's need for permanency and stability outweighed the parent's interest in waiting for criminal proceedings to conclude; the proffered video and police report were inadmissible hearsay because no witness was called to authenticate them; and the father identified no procedural error in the guardianship appointment itself. The Nevada Supreme Court affirmed the district court's order.