IN RE: PARENTAL RIGHTS AS TO R.B.J. (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the constitutional challenge to NRS 128.109 de novo, citing Hernandez v. Bennett-Haron, 128 Nev. 580, 586, 287 P.3d 305, 310 (2012), and applied the presumption of validity from Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev. 502, 509, 217 P.3d 546, 551 (2009) (quoting Silvar v. Eighth Jud. Dist. Ct., 122 Nev. 289, 292, 129 P.3d 682, 684 (2006)). On procedural due process, the court applied the Mathews v. Eldridge, 424 U.S. 319, 335 (1976), three-factor balancing test. Although parental rights are a paramount private interest under Santosky v. Kramer, 455 U.S. 745, 758-59 (1982), the court relied on In re J.D.N., 128 Nev. 462, 472-73, 283 P.3d 842, 849 (2012), to hold that NRS 128.109's rebuttable presumptions do not impermissibly risk erroneous deprivation where applicability is proven by clear and convincing evidence and rebuttable by a preponderance. The State's interest is the "compelling interest in assuring that abused and neglected children achieve safe, stable and permanent home environments within which to be reared." In re Parental Rts. as to D.R.H., 120 Nev. 422, 427, 92 P.3d 1230, 1233 (2004) (which had previously upheld NRS 128.109(2) against substantive due process challenge). The court distinguished In re Erin, 823 N.E.2d 356, 361 (Mass. 2005), and aligned with jurisdictions upholding rebuttable presumptions against parents: In re K.R., 233 P.3d 746, 752 (Kan. Ct. App. 2010); Sampson v. Div. of Fam. Servs., 868 A.2d 832, 835-36 (Del. 2005); and In re T.M.G., 283 S.W.3d 318, 325-26 (Tenn. Ct. App. 2008). The Equal Protection argument was deemed waived because not raised in the opening brief, citing Bongiovi v. Sullivan, 122 Nev. 556, 569 n.5, 138 P.3d 433, 443 n.5 (2006). On the bias claim, the court applied A Minor v. State, 86 Nev. 691, 694, 476 P.2d 11, 13 (1970), holding the issue waived for failure to move for recusal below. On the inattentiveness claim, the court rejected appellant's reliance on the Sixth Amendment Confrontation Clause, noting termination proceedings are civil. The court observed that the trial judge appeared by video during portions of the trial and reminded courts of ADKT 581 (Order Adopting Recommendations of the Commission to Study Best Practices for Virtual Advocacy in Nevada's Courts, Dec. 22, 2023), under which termination trials are presumptively in person, including the judicial officer. On sufficiency, the court applied substantial-evidence review under In re Parental Rts. as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 763 (2006), and the two-part framework requiring clear and convincing evidence of best interests and at least one ground of parental fault under NRS 128.105(1) and In re Termination of Parental Rts. as to N.J., 116 Nev. 790, 800-01, 8 P.3d 126, 132-33 (2000). The fault findings (unfitness, neglect, token efforts) drew on NRS 128.106(1)(d) regarding excessive use of intoxicating liquors or controlled substances rendering a parent consistently unable to care for the child.

In plain language

This case concerns a father, identified as Jason V., whose parental rights to his child R.B.J. were terminated by a Clark County family court. R.B.J. was taken into protective custody at birth because the child's mother had a prior history with the Clark County Department of Family Services (DFS). Jason began working on a reunification plan, but his probation was revoked after a DUI arrest, and he was incarcerated. DFS then asked the court to terminate his parental rights, and after a trial, the court did so. Jason raised two main arguments on appeal. First, he argued that a Nevada statute - NRS 128.109 - is unconstitutional because it creates "rebuttable presumptions" against parents whose children have been in protective custody for 14 or more of the last 20 months. A rebuttable presumption means the law starts by assuming something is true (here, that termination is in the child's best interest, and that the parent has only made "token efforts"), and the parent then bears the burden of disproving it. Jason argued this shifts the burden onto parents in a way that violates due process - the constitutional guarantee of fair procedures before the government takes away something important. The Nevada Supreme Court disagreed. It explained that while parental rights are extremely important, the court has previously held that these presumptions do not create an unacceptable risk of mistaken termination, as long as the State first proves the presumption applies by clear and convincing evidence and the parent can rebut it by a preponderance (the lower "more likely than not" standard). The court also pointed out that Nevada has a strong interest in giving abused and neglected children stable, permanent homes, and that many other states have upheld similar presumptions. The court declined to consider Jason's equal-protection argument because he did not raise it in his opening brief. Second, Jason claimed the trial judge was biased and not paying attention. The court held he waived the bias claim by not asking the trial judge to step aside during the case. As for inattentiveness, the court found none: the trial judge had simply reconsidered two evidentiary rulings - admitting some dependency court records and rejecting a Sixth Amendment Confrontation Clause objection (which the court explained does not apply in civil cases like termination proceedings). The court did note, without changing the outcome, that the trial judge sometimes appeared by video while the parties and witnesses appeared in person. The court reminded lower courts that, under rules adopted after Jason's trial (ADKT 581), termination trials are presumptively to be held in person, including the judge. Finally, the court reviewed the record and found "substantial evidence" supporting termination. R.B.J. was bonded with a foster family that included his biological half-sister and wished to adopt both children, and R.B.J. was thriving in a stable home where he received occupational therapy. The trial court's findings of parental unfitness, neglect, and token efforts were supported by Jason's long history of drug use, criminal activity including domestic violence, repeated incarceration, and relapse. The court acknowledged Jason had completed some programs in prison but gave that limited weight because he had no concrete plan to address his substance abuse after release and had relapsed after similar programs before.