IN RE: PARENTAL RIGHTS AS TO A.J.B.

Statutes cited

Key holdings

Practitioner summary

The court reviewed the procedural due process challenge de novo, citing Callie v. Bowling, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007), for the requirement that a party receive notice and an opportunity to be heard. On service of process, Natasha argued that DFS's affidavit failed to satisfy NRS 128.070(1)(a)-(c) because it did not aver where she last resided, that this was the last place she resided to the affiant's knowledge, or that she no longer resided there. The court applied the substantial-compliance framework from Markowitz v. Saxon Special Servicing, 129 Nev. 660, 664, 310 P.3d 569, 572 (2013), and Leven v. Frey, 123 Nev. 399, 408, 168 P.3d 712, 718 (2007), holding that NRS 128.070's "form and content" requirements were substantially complied with where DFS averred it did not know where Natasha last resided and was conducting concurrent diligent searches as permitted by NRS 432B.5902(2). The record showed Natasha had previously listed an address at 2252 McCoig Avenue but no longer resided there, lacked stable housing for six months, and had stopped communicating with DFS - information sufficient to support service by publication under NRS 128.070(1). The court declined to address Natasha's NRCP 4.4(c) and EDCR 1.46(g) arguments, citing NRCP 81(a) and Joanna T. v. Eighth Judicial District Court, 131 Nev. 766, 770 n.1, 357 P.3d 932, 934 n.1 (2015), for the principle that NRCP does not govern Chapter 432B proceedings where it conflicts with the statute. The court also found no abuse of discretion in the district court declining to order additional searches under NRS 128.070(4), noting Natasha cited no authority requiring more, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court further held that Natasha had legal notice through her court-appointed counsel, citing Huckabay Properties, Inc. v. NC Auto Parts, LLC, 130 Nev. 196, 208, 322 P.3d 429, 437 (2014) (quoting Lange v. Hickman, 92 Nev. 41, 43, 544 P.2d 1208, 1209 (1976)), and McMurtry v. McMurtry, 92 Nev. 630, 630-31, 555 P.2d 959, 959 (1976), and that she had actual knowledge, evidenced by her text to the child's paternal grandmother during the hearing. An argument that the district attorney failed to file a diligent search affidavit as conditioned by the order allowing publication was deemed waived because raised for the first time in reply, citing Khoury v. Seastrand, 132 Nev. 520, 530 n.2, 377 P.3d 81, 88 n.2 (2016). On opportunity to be heard, the district court delayed the hearing to allow Natasha to appear, but she did not. The court relied on Sw. Gas Corp. v. Pub. Utils. Comm'n of Nevada, 138 Nev., Adv. Op. 5, 504 P.3d 503, 511-12 (2022), and Smith v. County of San Diego, 109 Nev. 302, 304, 849 P.2d 286, 287 (1993), to hold that due process is satisfied where a party fails to avail itself of the opportunity to be heard. The court declined under Rust v. Clark County School District, 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987), to consider any challenge to the district court's oral denial of Natasha's motion to set aside the termination. On the merits, applying the substantial-evidence standard from In re Termination of Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000), the court upheld findings of token efforts under NRS 128.105(1)(b)(6) and best interests under NRS 128.105(1)(a)-(b). Because the child had been placed outside the home for over 15 consecutive months, the presumptions in NRS 128.109(1)(a) (token efforts) and NRS 128.109(2) (best interests) applied and were not rebutted. Only one parental-fault ground is required under NRS 128.105(1)(b), so the court did not review the district court's other parental-fault findings.

In plain language

This case involves a mother, identified as Natasha F.B., whose parental rights to her minor child were terminated by a Nevada family court. She appealed, arguing that the process was unfair because she was not properly notified about the hearing and did not get a real chance to participate. The Nevada Supreme Court disagreed and upheld the termination. The Department of Family Services (DFS) had been unable to find Natasha's current address - she had stopped communicating with DFS, had been without stable housing for about six months, and had reportedly stayed at times in what was described as a "known drug home." Because DFS could not locate her, it sought permission to give notice through publication (publishing the notice rather than handing it to her in person). Natasha argued that the affidavit DFS filed to support service by publication did not contain all the specific statements required by Nevada's termination-of-parental-rights statute. The court agreed that the affidavit did not strictly track the statute's language, but concluded that DFS had "substantially complied" - meaning it followed the statute closely enough to achieve its purpose. The court also pointed out that Natasha actually knew about the hearing. Her court-appointed attorney was on notice, and Natasha herself texted the child's paternal grandmother during the hearing saying she was on her way. The district court even delayed the hearing to give her more time to show up. She never did. Because she had notice and a chance to be heard but did not appear, the court held there was no due-process violation. On the merits, the court held that there was substantial evidence supporting termination. The child had been placed outside the home for more than 15 consecutive months, Natasha had not provided support or maintained consistent communication with the child, had not participated in reunification services, lacked stable housing, and had refused to address substance abuse issues. Under Nevada law, when a child has lived outside the home for 14 of any 20 consecutive months, the parent is presumed to have made only "token efforts" to care for the child, and termination is presumed to be in the child's best interests. Natasha did not rebut those presumptions.