In re Parental Rights as to A.L.

Statutes cited

Key holdings

Practitioner summary

The Nevada Supreme Court, sitting en banc in an opinion by Justice Parraguirre, reversed a district court order terminating a mother's parental rights and remanded for a new trial, holding that DFS confessed error under NRAP 31(d) by failing to respond to the appellant's argument that material rebuttal evidence was improperly excluded in the underlying NRS Chapter 432B proceedings. Standard of review: The court reviews the district court's findings of fact for substantial evidence, In re Termination of Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000), and questions of law de novo, Awada v. Shuffle Master, Inc., 123 Nev. 613, 618, 173 P.3d 707, 711 (2007). Because termination of parental rights "is 'an exercise of awesome power' that is 'tantamount to imposition of a civil death penalty,'" termination orders are subject to close scrutiny. In re Parental Rights as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 763 (2006) (quoting In re N.J.). Termination requires clear and convincing evidence that termination is in the child's best interest and that parental fault exists. In re A.J.G., 122 Nev. at 1423, 148 P.3d at 762. Framework: NRS 128.105 permits termination upon findings that the child's best interests would be served and that the parent is unfit, failed to adjust, or made only token efforts. The district court found that DFS established presumptions of token efforts under NRS 128.109(1)(a) and that termination was in the children's best interests under NRS 128.109(2); to rebut those presumptions, the parent must establish by a preponderance of the evidence that the alleged fault does not exist and that termination is not in the children's best interests. In re Parental Rights as to J.D.N., 128 Nev. __, __, 283 P.3d 842, 849 (2012). Separately, NRS 432B.450 raises a presumption that a child is in need of protection when an expert testifies in a civil proceeding that the injury would not have occurred absent negligence or a deliberate but unreasonable act or failure to act by the person responsible for the child's welfare. Application: In the NRS 432B proceedings, Keaundra attempted to rebut the presumption raised by Dr. Mehta's report (concluding the iron burn was nonaccidental) by introducing the report of Dr. Neuman, who had personally examined C.B. The hearing master excluded the report because it was not a certified copy, found physical abuse, and the juvenile court affirmed. The district court's parental-fault findings - failure of parental adjustment, unfitness, and token efforts - were all premised on Keaundra's failure to comply with a case-plan provision requiring her to admit to intentionally abusing her child, and each finding was ultimately derived from the hearing master's abuse finding. On appeal, Keaundra argued the report was improperly excluded; DFS did not address the argument. The court concluded DFS confessed error, citing NRAP 31(d) and Bates v. Chronister, 100 Nev. 675, 681-82, 691 P.2d 865, 870 (1984). Holding: "Since the finding of intentional abuse was based on a concededly improper failure to admit evidence rebutting a statutory presumption, a new trial is required to determine Keaundra's parental rights." The court cited In re N.J., 116 Nev. at 804, 8 P.3d at 135 (refusal to admit evidence rebutting a statutory presumption constituted grounds for a new trial), and noted generally In re A.B., 128 Nev. __, __, 291 P.3d 122, 127 (2012), on the district court's authority to review a hearing master's findings de novo or rely on them when supported by credible evidence. The court expressly declined to reach Keaundra's argument that conditioning termination on her refusal to admit intentionally harming her child violated her Fifth Amendment right against self-incrimination, as resolution of that issue was unnecessary. The court also limited its consideration to Keaundra's rights because Christopher B., whose rights were also terminated, did not appeal.

In plain language

This case is about a mother, Keaundra D., who lost her parental rights to her two children after her one-year-old son, C.B., was burned in the face by an iron. Keaundra told investigators she was the only adult home at the time; according to her trial testimony, she was in an attached bathroom getting ready for work when she heard the iron fall, and her older child told her that C.B. had tried to kiss the iron. After an anonymous call to a child abuse hotline, DFS investigated. Keaundra moved her family to Louisiana, which DFS characterized as a flight in an attempt to hide the children. The children were removed from her care, and DFS filed a petition for protective custody, alleging that Keaundra had either physically abused or negligently supervised C.B. At a hearing, a medical examiner, Dr. Mehta, testified that the shape of the burn was inconsistent with an accident and that the iron was deliberately held to C.B.'s face. Keaundra tried to counter that testimony with a report from Dr. Neuman, the physician who had personally examined C.B. in Louisiana. The hearing master - a court officer who conducts hearings and makes recommendations to a judge - refused to admit the report because it was not a certified copy, found that Keaundra physically abused C.B., and the juvenile court affirmed, concluding the injury was not accidental. Keaundra was then given a "case plan" - a set of requirements a parent must satisfy to be reunited with her children. She completed nearly all of it: parenting classes, stable housing and jobs, an assessment, and therapy. Her therapist testified that her behavior and demeanor had markedly changed and that her risk to reoffend was low. But DFS continued to recommend terminating her parental rights for one reason: she would not admit that she had deliberately held the iron to her son's face. DFS stated at trial that, with such an admission, it would not have sought termination. The district court ultimately terminated her rights, relying on the earlier finding that the injury was not accidental. On appeal, the Nevada Supreme Court did not decide whether Keaundra abused her child. Instead, it focused on a procedural point: Keaundra argued that Dr. Neuman's report was improperly excluded, and DFS never responded to that argument. Under Nevada's appellate rules, failing to respond to an argument can be treated as a "confession of error" - effectively conceding the point. The court concluded that DFS confessed error. Because every finding of parental fault in the case traced back to the abuse finding - which in turn rested on the improperly excluded rebuttal evidence - the court reversed the termination order and sent the case back for a new trial on Keaundra's parental rights. The court noted, but did not decide, Keaundra's separate argument that conditioning her parental rights on an admission of intentional harm violated her Fifth Amendment right against self-incrimination. The order terminating the father Christopher B.'s parental rights was not before the court because he did not appeal.