IN RE: PARENTAL RIGHTS AS TO S.L., N.R.B., H.R.B., W.C.B. C/W 71889

Statutes cited

Key holdings

Practitioner summary

The court applied the familiar two-part termination framework: clear and convincing evidence of (1) at least one ground of parental fault and (2) that termination serves the child's best interests. NRS 128.105(1); In re Parental Rights as to N.J., 116 Nev. 790, 800–01, 8 P.3d 126, 132–33 (2000). Legal questions were reviewed de novo and factual findings for substantial evidence. In re Parental Rights as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014). On the Fifth Amendment issue, the court reaffirmed In re Parental Rights as to A.D.L., 133 Nev., Adv. Op. 72, 402 P.3d 1280 (2017), which held that "a parent may not be compelled to admit a crime under the threat of the loss of parental rights." Id. at 1285. The privilege against self-incrimination, applicable to the states via the Fourteenth Amendment (Allen v. Illinois, 478 U.S. 364, 368 (1986)), may be invoked in civil proceedings when testimony could incriminate in future criminal proceedings (Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)), and the state may not impose "potent sanctions" to force its surrender (Lefkowitz v. Cunningham, 431 U.S. 801, 805–06 (1977)). The court distinguished A.D.L. on the facts. In A.D.L., the injury was an isolated event, the therapist saw no signs of abusive parenting, family services confirmed the mother could effectively parent, and termination was based entirely on the refusal to admit. Here, by contrast, the abuse was "significantly more egregious and pervasive"; Donald repeatedly abused S.L. over years; Melissa was aware; the children had been instructed to lie; the Red Rock assessments showed a high risk to reoffend; and the parents continued to insist injuries were self-inflicted. The supporting therapist, Dr. Gennis, had not spoken with the children or their therapists, had not seen the injuries, believed the allegations were unsubstantiated, and proposed a safety plan aimed at protecting the parents from "future allegations," not the children from harm. Citing In re Parental Rights as to J.D.N., 128 Nev. 462, 477, 283 P.3d 842, 852 (2012), the court deferred to the district court's credibility determinations. The rule the court articulated: termination based on a parent's failure to engage in meaningful therapy designed to ensure child safety — as distinct from termination based purely on refusal to confess — does not offend the Fifth Amendment. Quoting In re J.W., 415 N.W.2d 879, 884 (Minn. 1987), the court characterized the loss of children for failure to undergo meaningful therapy as "simply a consequence of the reality that it is unsafe for children to be with parents who are abusive and violent." In a footnote, the court acknowledged DFS's representation that appellants had been offered immunity for statements made during treatment, and noted authorities suggesting a proper grant of immunity can avoid Fifth Amendment friction. See In re Amanda W., 705 N.E.2d 724, 727 (Ohio Ct. App. 1997); Dep't of Human Servs. v. K.L.R., 230 P.3d 49, 54 (Or. Ct. App. 2010). The record was insufficient for the court to decide whether the immunity offered eliminated the Fifth Amendment issue. On parental fault, the district court found unfitness, failure to adjust, token efforts, and risk of serious injury under NRS 128.105(1)(b). Because the children had been out of the home for 30 months, the NRS 128.109(1)(a) presumption of token efforts applied, which appellants bore the burden to rebut by a preponderance of the evidence. In re Parental Rights as to J.L.N., 118 Nev. 621, 625–26, 55 P.3d 955, 958 (2002). The court held the presumption was not rebutted because, although appellants participated in services, they did not meaningfully address the abuse. See In re Parental Rights as to D.R., 120 Nev. 422, 432–33, 92 P.3d 1230, 1236–37 (2004). The other fault findings were supported by substantial evidence. See In re Parental Rights as to K.D.L., 118 Nev. 737, 746–47, 58 P.3d 181, 187 (2002). On best interests, the court applied NRS 128.105(1)(a), NRS 128.005(2)(c), NRS 128.107, and NRS 128.108, along with the NRS 128.109(2) rebuttable presumption (children out of home 14 of 20 consecutive months). The district court's findings — that the foster family had provided a safe home for over two years, that the children had bonded with and integrated into that family, that the foster parents were willing to adopt, that the younger children's wishes were conditioned on no further violence, and that Dr. Gennis's opinion rested on a belief that no abuse had occurred — were supported by substantial evidence.

In plain language

This case involves a Nevada family in which the oldest child, S.L., suffered severe physical and emotional abuse over a period of years. The abuse came to light in December 2013 when S.L., then fifteen, arrived at school with a black eye and told a friend that her stepfather Donald had hit her. Although S.L. initially told Child Protective Services that she had hit her eye on a cabinet, an investigation found multiple bruises and abrasions consistent with abuse. All four children were removed from the home in January 2014 and placed with the Clark County Department of Family Services (DFS). Once in foster care, the children began describing what had happened at home. S.L. later testified that Donald had abused her since third grade — hitting her with a belt and buckle, cutting her wrist with a knife, shooting her hand with a BB gun, knocking out a front tooth, jumping on her chest while wearing work boots until she passed out, making her stand on her head for 30 minutes, and denying her food. She said her mother Melissa knew about the abuse and helped cover bruises with make-up, and that Donald made the children rehearse stories to tell outsiders. Donald and Melissa entered no-contest pleas to the protective custody petition and were given case plans. They attended assessments and therapy programs, but throughout the process they continued to insist that S.L.'s injuries were self-inflicted. A psychological assessment rated both parents at high risk to abuse or neglect again. Recorded jailhouse phone calls captured Melissa calling S.L. a "killer kid" and saying she "has a brain of a fucking peanut." After a trial, the district court terminated both parents' rights. On appeal, the parents made a constitutional argument: they said they could not be punished — by losing their children — simply for refusing to admit to a crime, because the Fifth Amendment protects people from being forced to incriminate themselves. The Nevada Supreme Court rejected that argument here. The court explained that, under its earlier decision In re Parental Rights as to A.D.L., parents indeed cannot have their rights terminated solely because they refuse to confess. But the court drew a line: parents can be required to engage in meaningful therapy designed to make sure the children will be safe at home, and a failure to make real progress in therapy is a different thing from a refusal to confess. Here, the court said, the parents' rights were not terminated merely because they would not admit the abuse — they were terminated because the abuse was extensive and ongoing, the parents had not meaningfully addressed it in therapy, the assessments showed a high risk of repeat abuse, and the therapist who supported reunification had never seen the children's injuries and believed the abuse had not happened. The court also held that there was strong evidence supporting termination on the statutory grounds — parental unfitness, failure to adjust, token efforts, and risk of serious injury — and that termination was in the children's best interests, given that they had bonded with a foster family willing to adopt them, and the two younger children's wish to return home was conditioned on the violence stopping.