IN RE: PARENTAL RIGHTS AS TO M.F., M.F. & N.F.

Statutes cited

Key holdings

Practitioner summary

Standard of review. Constitutional questions, including the right to a jury trial, are reviewed de novo. Awada v. Shuffle Master, Inc., 123 Nev. 613, 618, 173 P.3d 707, 711 (2007). Termination orders are reviewed for substantial evidence; the court will not substitute its judgment for that of the district court. In re Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Federal constitutional analysis. The Seventh Amendment's civil jury-trial guarantee does not apply to the states. Hawkins v. Bleakly, 243 U.S. 210, 216 (1917); Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 217 (1916). While Stanley v. Illinois, 405 U.S. 645, 650-51 (1972), and Santosky v. Kramer, 455 U.S. 745, 753-54 (1982), require fundamentally fair procedures in termination cases, the U.S. Supreme Court has not held that due process requires a jury. Because no loss of personal liberty is at stake, the court applied the three-factor balancing test of Mathews v. Eldridge, 424 U.S. 319, 335 (1976), as adapted in Santosky and as used in Lassiter v. Dep't of Social Servs., 452 U.S. 18, 25-27 (1981) (no per se right to counsel in termination proceedings). Although the parent-child relationship is a fundamental interest under Lehr v. Robertson, 463 U.S. 248, 258 (1983), that status does not automatically generate a jury-trial right. Applying Eldridge, the court weighed the parent's interest in companionship, care, custody, and management of his children against the state's parens patriae interest, conservation of judicial resources, and accuracy. The court found the risk of erroneous decision in a bench trial minimal because (1) a jury is not a constitutionally required component of accurate factfinding, McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971); Duncan v. Louisiana, 391 U.S. 145, 158 (1968); see In re Weinstein, 386 N.E.2d 593, 596 (Ill App. Ct. 1979); (2) Jesus F. received notice, competent counsel, confrontation and cross-examination, and a clear-and-convincing standard, see McKeiver, 403 U.S. at 543-45; In re Parental Rights as to N.D.O., 121 Nev. 379, 383, 115 P.3d 223, 227 (2005) (citing NRS 128.100(2)); and (3) Jesus F. retained appellate review. Nevada constitutional analysis. Article 1, Section 3 of the Nevada Constitution preserves the jury-trial right "as the framers understood it when Nevada's Constitution was adopted in 1864." Awada, 123 Nev. at 621, 173 P.3d at 712; see also Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 870-74, 124 P.3d 550, 553-56 (2005); Aftercare of Clark Cty. v. Justice Court of Las Vegas Twp., 120 Nev. 1, 6-7, 82 P.3d 931, 934 (2004). Termination actions did not exist in 1864 and were created by the Legislature in 1975 without conferring a jury-trial right. The court also relied on policy considerations articulated in McKeiver, 403 U.S. at 547, 550 (delay, formality, undermining anonymity, lack of factfinding gain) and surveyed the national landscape, citing the NCJJ snapshot and decisions including In re M.H., 143 P.3d 103, 106 (Mont. 2006); Alyssa B. v. State, Dep't of Health & Soc. Servs., 123 P.3d 646, 648-49 (Alaska 2005); In re Lambert, 86 A.2d 411, 412-13 (D.C. 1952); Porter v. Watkins, 121 S.E.2d 120, 121-22 (Ga. 1961); E.P. v. Marion Cty. Office of Family & Children, 653 N.E.2d 1026, 1030-31 (Ind. Ct. App. 1995); In Interest of Baby Boy Bryant, 689 P.2d 1203, 1209 (Kan. Ct. App. 1984); In re Shane T., 544 A.2d 1295, 1297 (Me. 1988); Matter of Colon, 377 N.W.2d 321, 328 (Mich. Ct. App. 1985); State ex rel. Children, Youth & Families Dep't v. T.J., 934 P.2d 293, 297-98 (N.M. Ct. App. 1997); Matter of Ferguson, 274 S.E.2d 879, 880 (N.C. Ct. App. 1981); and State in Interest of T.B., 933 P.2d 397, 400 (Utah Ct. App. 1997). The court noted that the five minority states (Oklahoma, Wyoming, Wisconsin, Texas, and Virginia) provide jury trials by statute or express constitutional provision -- neither present in Nevada. See Matter of D.D.F., 801 P.2d 703, 705 (Okla. 1990); Matter of GP, 679 P.2d 976, 983 (Wyo. 1984); In re Keylen D.K., 828 N.W.2d 251, 258-60 (Wis. Ct. App. 2013); Gen. Motors Corp. v. Gayle, 924 S.W.2d 222, 226 (Tex. Ct. App. 1996); Hough v. Mathews Dep't of Social Servs., No. 2405-13-1 2014, WL 4412583, at *1 n.1 (Va. Ct. App. Sept. 9, 2014). Substantial evidence on termination. Termination requires clear and convincing proof of (1) at least one ground of parental fault and (2) that termination is in the child's best interest. NRS 128.105(1)-(2); In re N.J., 116 Nev. at 800-01, 8 P.3d at 132-33; In re Parental Rights as to C.C.A., 128 Nev. 166, 169, 273 P.3d 852, 854 (2012). NRS 128.109 creates two rebuttable presumptions when a child has resided outside the home for 14 of any consecutive 20 months: token efforts and best-interest. The parent must rebut by a preponderance of the evidence. In re Parental Rights as to J.D.N., 128 Nev. 462, 472, 283 P.3d 842, 849 (2012); see Brown v. State, 107 Nev. 164, 166, 807 P.2d 1379, 1381 (1991). The court held that substantial evidence supported the best-interest determination, that Jesus F. failed to rebut the presumption (no reasonable prospect of providing for the children's basic needs in a reasonable period), and that the district court adequately set forth five separate grounds of parental fault. See NRS 128.107(2)-(3).

In plain language

This case asks whether a parent facing the loss of his parental rights in Nevada is entitled to have a jury -- rather than a judge -- decide the case. The Nevada Supreme Court answered no. The Washoe County Department of Social Services (WCDSS) removed Jesus F.'s six children from his home in January 2010, citing drug use, safety hazards, and inadequate supervision. The children were placed in protective custody under NRS 432B.330 and lived in various out-of-home placements over the next four years. After the three older children reached adulthood, WCDSS petitioned to terminate Jesus F.'s parental rights as to the three remaining minor children. Jesus F. demanded a jury trial. The district court denied that demand, held a bench trial, and terminated his parental rights. On appeal, Jesus F. argued that both the U.S. Constitution and the Nevada Constitution gave him a right to a jury. The Nevada Supreme Court rejected both arguments. As to the federal constitution, the Seventh Amendment's civil jury-trial right does not apply to the states, and the U.S. Supreme Court has never held that due process requires a jury in termination cases. Applying the due-process balancing test from Mathews v. Eldridge, the court concluded that a bench trial here posed only a minimal risk of an erroneous decision because Jesus F. received notice, appointed counsel, the opportunity to confront and cross-examine witnesses, a clear-and-convincing-evidence standard, and the right to appeal. As to the Nevada Constitution, Article 1, Section 3 preserves the right to jury trial as it existed when Nevada's Constitution was adopted in 1864. Termination of parental rights actions did not exist in 1864 -- they were created by the Nevada Legislature in 1975 -- and the Legislature has not granted a jury-trial right in such proceedings. The court also noted that requiring jury trials would slow family courts, undermine the children's anonymity, and require structural changes that several Nevada family courts are not equipped to make. The court observed that the majority of states deny jury trials in termination cases. The court also upheld the termination on the merits. Under NRS 128.109, when a child has been placed outside the home for 14 of any consecutive 20 months, the law presumes that the parent has made only token efforts and that termination is in the child's best interest. The district court found that Jesus F. did not rebut the presumption and that there were five separate grounds of parental fault. The Supreme Court held those findings were supported by substantial evidence and affirmed.