IN RE: PARENTAL RIGHTS AS TO A.D.L. AND C.L.B., JR.

Statutes cited

Key holdings

Practitioner summary

The court reviewed the district court's findings of fact for substantial evidence, applying close scrutiny because termination of parental rights is "tantamount to imposition of a civil death penalty." In re Parental Rights as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 763 (2006). Termination requires clear and convincing evidence of (1) the child's best interest and (2) parental fault. Id. On the Fifth Amendment issue, the court applied the rule that the privilege, incorporated against the states through the Fourteenth Amendment, applies in any proceeding where answers might incriminate the witness in future criminal proceedings. Estelle v. Smith, 451 U.S. 454, 462 (1981); Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). A person cannot be penalized for invoking the privilege, Spevack v. Klein, 385 U.S. 511, 514-15 (1967), and the State may not force a choice between the privilege and another important interest, Lefkowitz v. Cunningham, 431 U.S. 801, 805-08 (1977). Recognizing that the parent-child relationship is a fundamental liberty interest, In re Termination of Parental Rights as to N.J., 116 Nev. 790, 801, 8 P.3d 126, 133 (2000), and aligning with decisions from Illinois, Ohio, Oregon, Vermont, Iowa, Minnesota, and Arizona (In re A.W., 896 N.E.2d 316 (Ill. 2008); In re Amanda W., 705 N.E.2d 724 (Ohio Ct. App. 1997); Dep't of Human Servs. v. K.L.R., 230 P.3d 49 (Or. Ct. App. 2010); In re M.C.P., 571 A.2d 627 (Vt. 1989); In re C.H., 652 N.W.2d 144 (Iowa 2002); In re J.W., 415 N.W.2d 879 (Minn. 1987); Minh T. v. Ariz. Dep't of Econ. Sec., 41 P.3d 614 (Ariz. Ct. App. 2001)), the court held a parent cannot be compelled to admit a crime under threat of termination. The court drew a doctrinal distinction between case plans that mandate admission of culpability (impermissible) and case plans requiring meaningful therapy (permissible, even where refusal to acknowledge wrongdoing inhibits rehabilitation). The court declined to resolve tension between the privilege and meaningful-therapy requirements because DFS's six-month report confirmed Keaundra's therapy was effective without an admission. The approach is consistent with Nevada caselaw permitting Fifth Amendment invocation in civil proceedings. Francis v. Wynn Las Vegas, LLC, 127 Nev. 657, 664, 262 P.3d 705, 711 (2011). Because Keaundra's case plan required her to admit conduct constituting a criminal offense under NRS 200.508, and because the district court grounded termination on her continued insistence the burn was accidental, termination violated her Fifth Amendment rights. The court declined to address whether a grant of immunity could cure such a violation because no immunity was offered. On best-interest analysis, NRS 128.109(2) presumes termination is in the child's best interest where the child has been placed outside the home for 14 of any 20 consecutive months, rebuttable by preponderance of the evidence. In re Parental Rights as to J.D.N., 128 Nev. 462, 472, 283 P.3d 842, 849 (2012). The district court erred by failing to consider the children's "physical, mental or emotional condition and needs" and their desires under NRS 128.107(2). The record - regular contact, A.D.L.'s expressed desire to return home, financial support, the 17-month delay before relative placement - rebutted the presumption. On parental fault, NRS 128.105(1) requires findings, with factors including unfitness, failure of parental adjustment, and token efforts under NRS 128.105(1)(b)(3), (4), (6)(I)-(IV). NRS 128.109(1)(a) creates a token-efforts presumption (14 of 20 months out of home), and NRS 128.109(1)(b) creates a failure-of-parental-adjustment presumption when a parent fails to substantially comply with a reunification plan within six months. Keaundra completed every aspect of her case plan apart from the admission of physical abuse, and DFS itself documented she had "successfully completed her case plan." The court held she rebutted the NRS 128.109(1) presumptions by a preponderance, leaving no substantial evidence of parental fault.

In plain language

This case arose after the Clark County Department of Family Services (DFS) received an anonymous hotline call in April 2010 alleging that Keaundra D.'s infant son, C.L.B., Jr., had been burned on the face. Keaundra told investigators that the burn occurred when her two-year-old daughter, A.D.L., reported that C.L.B., Jr. had "tried to kiss" a hot iron that fell off a dresser while Keaundra was in another room. DFS removed both children from Keaundra's care. One physician who examined the child in person, Dr. Neuman, found "no evidence of abuse." A different doctor, Dr. Mehta, who reviewed only photographs, opined the burn was deliberate. The juvenile court found the injury was nonaccidental and ordered Keaundra to follow a "case plan" - a list of steps she had to complete to get her children back. She maintained housing and a job, kept in touch with DFS, completed parenting classes, and finished a physical-abuse assessment and therapy. Her therapist testified that her risk of reoffending was low and that she showed none of the signs typical of an abusive parent. DFS itself reported that she had "successfully completed her case plan and has the knowledge and tools to effectively parent her children." But DFS still wanted her parental rights terminated, and the district court still terminated them, for one reason: Keaundra would not admit that she had deliberately held the iron to her son's face. Her case plan required her to "articulate" the "sequence of events" leading to the abuse "as sustained by the Court." Because she insisted the burn was accidental, the court treated her as out of compliance. DFS confirmed at trial that, had Keaundra admitted intentional abuse, it would not have sought termination. The Nevada Supreme Court reversed. The Fifth Amendment to the U.S. Constitution protects people from being forced to incriminate themselves, not just in criminal trials but in any proceeding where their answers might be used against them in a future criminal case. Admitting that one held a hot iron to a child's face would expose a person to prosecution for child abuse under Nevada law (NRS 200.508). The court held that a parent cannot be forced to choose between admitting a crime and losing her children - that choice is unconstitutionally coercive. The court drew a line: a juvenile court may require a parent to participate in meaningful therapy, even if therapy works better when a parent acknowledges past conduct, and a parent who refuses meaningful therapy may face consequences. But a court cannot require, as a condition of keeping parental rights, that the parent expressly admit to a crime. The court also held that the evidence did not support termination on its own merits. Nevada law presumes termination is in a child's best interest when the child has been out of the home for 14 of 20 consecutive months, and presumes a parent has made only "token efforts" in similar circumstances. The court found Keaundra rebutted both presumptions: she stayed in regular phone contact, her mother brought the children to visit, A.D.L. cried and begged to go home to her mother, Keaundra helped support the children financially, and after the first termination order the children waited 17 months in foster care before being placed with relatives. Without the presumptions, there was not substantial evidence to terminate.