IN RE: PARENTAL RIGHTS AS TO M.M.L., JR.

Statutes cited

Key holdings

Practitioner summary

Standard of review: The grant or denial of a continuance lies within the district court's discretion and will not be reversed "except for the most potent reasons." S. Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978); Neven v. Neven, 38 Nev. 541, 546, 148 P. 354, 356 (1915). Doctrinal framework on competency: The Nevada Rules of Civil Procedure apply in termination proceedings. NRS 128.090(2). NRCP 17(c) requires a court to "appoint a guardian ad litem for an . . . incompetent person not otherwise represented in" a civil action "or shall make such other order as it deems proper for the protection of the . . . incompetent person." No Nevada statute or rule requires the district court to continue a termination trial indefinitely until the parent regains competence to stand trial. Due process framework: Parents possess a fundamental liberty interest in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981); U.S. Const. amend. XIV(1); Nev. Const. art. 1, § 8(5). Whether due process requires continuance until competence is determined under the Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), three-factor balancing test: (1) the parent's interest, (2) the risk of erroneous deprivation, and (3) the government's interest. Application: Although the district court did not explicitly invoke Mathews, the record demonstrated consideration of each factor. The court weighed the mother's interest, the State's and child's interest in permanency and a speedy resolution (citing NRS 128.005(2)(c), NRS 128.107(4), NRS 128.109(2); Bush v. State, Dep't of Human Res., 112 Nev. 1298, 1304, 929 P.2d 940, 944 (1996); In re Parental Rights as to Weinper, 112 Nev. 710, 716, 918 P.2d 325, 330 (1996), overruled on other grounds by In re Termination of Parental Rights as to N.J., 116 Nev. 790, 8 P.3d 126 (2000)), and the risk of erroneous deprivation given the prospect of perpetual continuances until the child reached majority. The court appointed a guardian ad litem pursuant to NRCP 17(c) and granted multiple continuances before reluctantly proceeding. The court canvassed approaches in other jurisdictions, citing Fatma E. Marouf, Incompetent but Deportable: The Case for a Right to Mental Competence in Removal Proceedings, 65 Hastings L.J. 929, 949 (2014). Several states (Georgia, Illinois, Missouri, Texas) hold that awaiting competency prejudices the child. See In re N.S.E., 666 S.E.2d 587, 589 (Ga. Ct. App. 2008); In re Charles A., 856 N.E.2d 569, 573 (Ill. App. Ct. 2006); In re W.J.S.M., 231 S.W.3d 278, 283 (Mo. Ct. App. 2007); In re R.M.T., 352 S.W.3d 12, 23 (Tex. App. 2011). Other courts have required continuance or pretrial competency hearings. See State ex rel. Juvenile Dep't v. Evjen, 813 P.2d 1092, 1094 (Or. Ct. App. 1991); In re Alexander V., 613 A.2d 780, 785 (Conn. 1992); but see In re Kaleb H., 48 A.3d 631, 640 (Conn. 2012). The court distinguished Connecticut's rule on the basis that, unlike Conn. Gen. Stat. § 45a-717(d) (2015), Nevada permits mental illness to be a factor in finding parental fault under NRS 128.106(1)(a), which would make a competency-prerequisite rule "a legal and logical inconsistency." Personal jurisdiction / service of process: NRS 128.060(2)(a) governs service when residence is known; NRS 128.070(1) permits service by publication, on affidavit and court permission, when the parent's whereabouts cannot be ascertained through due diligence. Defects in service or personal jurisdiction are waived if not raised by timely motion or in a responsive pleading. Hansen v. Eighth Judicial Dist. Court, 116 Nev. 650, 656, 6 P.3d 982, 986 (2000); NRCP 12(h)(1). Counsel for the mother repeatedly raised competency-related issues, sought the appointment of a guardian ad litem, and requested continuances, but never objected to service by publication or to personal jurisdiction in the district court. The challenge was therefore waived. Holding: The district court did not abuse its discretion in proceeding with the termination trial despite the mother's incompetence in her criminal case, and personal jurisdiction was properly established because any service-related defenses were waived.

In plain language

This case asks a question that Nevada's appellate courts had not previously answered head-on: can a court terminate a parent's rights to her child when the parent is so mentally ill that she would not be considered competent to stand trial in a criminal case? The Nevada Supreme Court held that, under the circumstances here, yes - the trial may go forward. The mother in this case had been diagnosed with schizoaffective bipolar disorder. Shortly after her son was born, hospital staff alerted the Department of Family Services because the mother insisted the baby was not hers and tried to take a different child. Two months later she brought the baby to the hospital claiming the infant had told her, in full sentences, that he had an earache. The child was placed in protective custody, adjudicated neglected, and made a ward of the court. The mother received a case plan focused on her mental health, but DFS observed that her condition did not improve. While the termination case was pending, she was arrested for allegedly boarding a bus and trying to take another child she believed was hers, and she was repeatedly found incompetent to stand trial in that criminal case. The district court did several things to protect the mother's interests. It appointed a guardian ad litem (a person appointed to look after the legal interests of someone who cannot represent themselves) under Rule 17(c) of the Nevada Rules of Civil Procedure. It granted multiple continuances - delays - hoping the mother would regain competence. When that did not happen, the court ultimately conducted the termination trial without her present in September 2015, with her guardian ad litem in attendance, and terminated her parental rights. On appeal, the mother argued that proceeding without her violated her constitutional right to due process. She pointed to a U.S. Supreme Court case, Mathews v. Eldridge, which requires courts to balance the private interest, the risk of an inaccurate result, and the government's interest before depriving someone of an important right. The Nevada Supreme Court rejected that challenge. It explained that, unlike criminal cases, civil cases - including termination cases - do not require a court to wait indefinitely for a party to regain mental competence. Nevada law actually allows mental illness itself to be a basis for finding parental fault, so it would be inconsistent to also require the court to halt the case forever because of that same illness. The court noted that children have a powerful interest in stability and permanency, and that holding a child "in limbo" until a parent might one day be well enough to participate is not what Nevada law contemplates. The district court had given the mother many chances and had effectively considered all the factors that due process required. The mother also argued that the State had improperly served her by publication (publishing notice in a newspaper rather than handing it to her directly) when it actually knew or could have known where she was. The Supreme Court did not decide whether the State's conduct was proper, but ruled that the mother's lawyer never raised this objection in the district court, so the issue was waived and could not be raised for the first time on appeal. The court therefore affirmed the order terminating her parental rights.