IN RE: PARENTAL RIGHTS AS TO M.J.

Statutes cited

Key holdings

Practitioner summary

The court addressed whether the district court erred in declining to appoint a guardian ad litem for the parent-respondent in a termination-of-parental-rights proceeding without making the findings required by NRS 432B.46803(3). Withdrawing counsel represented to the court that Clifford did not understand the proceedings, the court process, or counsel's role, and suggested a guardian ad litem was needed. The district court engaged Clifford in colloquy, concluded he was "competent enough," and proceeded to trial with Clifford pro se. The State conceded on appeal that the district court did not specifically address the NRS 432B.46803(3) factors governing the determination of parental incapacitation. The Supreme Court held that the failure to consider those statutory factors rendered the record inadequate for appellate determination of whether a guardian ad litem was required, and noted that the record suggested appointment "may have been appropriate." Citing the due-process concern recognized in In re Two Minor Children, 95 Nev. 225, 230, 592 P.2d 166, 169 (1979), that proceeding to trial against an incompetent party violates due process, the court vacated the termination order. On remand, the district court is directed to apply each factor in NRS 432B.46803(3), determine whether Clifford is incapacitated, and if so, appoint a guardian ad litem before retrying the termination motion.

In plain language

This case involves a father, Clifford, whose parental rights to his child were terminated by a Nevada district court. Clifford appealed, arguing that the trial court should have appointed him a guardian ad litem - a person assigned by the court to look out for the interests of someone who may not be able to understand or participate in legal proceedings on their own. At the termination trial, Clifford's own attorney asked to withdraw and, before doing so, told the court she believed Clifford needed a guardian ad litem because he did not understand what was happening, did not understand the court process, and did not understand her role as his lawyer. The judge questioned Clifford directly about why his child was not living with him and why he did not seem to understand the case despite having attended most of the hearings. The judge concluded Clifford did not need a guardian ad litem, stating, "I don't know that at this point that he's not competent enough. I just don't think he likes your answers or - or understands what - - what's going on here, not because we haven't explained to him." The trial then went forward with Clifford representing himself, and his parental rights were terminated. The Nevada Supreme Court vacated that termination. Nevada law (NRS 432B.46803(3)) sets out specific factors a district court must consider when deciding whether a parent in a child-protection case is incapacitated and therefore needs a guardian ad litem. The State conceded, and the record confirmed, that the district court never went through those required factors. The Supreme Court said the record actually suggests appointing a guardian ad litem "may have been appropriate," but because the trial court skipped the required analysis, the appellate court could not decide that question itself. The Supreme Court therefore vacated the termination order and sent the case back. On remand, the district court must walk through each factor in NRS 432B.46803(3), determine whether Clifford is incapacitated, and - if he is - appoint a guardian ad litem before holding a new termination trial.