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

Standard of review: The Court reviews questions of law de novo and the district court's factual findings for substantial evidence, citing In re Parental Rights as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014). Termination of parental rights is "tantamount to the imposition of a civil death penalty" and is subject to close scrutiny. In re Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000). Termination requires clear and convincing evidence of (1) at least one ground of parental fault, and (2) that termination is in the child's best interest. NRS 128.105(1); N.J., 116 Nev. at 800-01, 8 P.3d at 132-33. Fifth Amendment framework: The Fifth Amendment privilege, applied to the states through the Fourteenth Amendment (Allen v. Illinois, 478 U.S. 364, 368 (1986)), can be invoked in civil proceedings where testimony may incriminate the witness in future criminal proceedings (Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)), and the state may not compel surrender of the privilege by threatening "potent sanctions" (Lefkowitz v. Cunningham, 431 U.S. 801, 805-06 (1977)). The Court reaffirmed its prior holding in In re Parental Rights as to A.D.L., 133 Nev., Adv. Op. 72, 402 P.3d 1280, 1285 (2017), that "a parent may not be compelled to admit a crime under the threat of the loss of parental rights." Application and rule: The Court distinguished A.D.L. on the facts. In A.D.L., the injury was isolated, the mother's therapy was effective without an admission, and termination was based "entirely on her refusal to admit the abuse." Here, by contrast, the abuse was repeated and severe over several years, the Red Rock assessments rated appellants as high risk to reoffend, appellants did not meaningfully address the abuse in therapy, and Dr. Gennis's reunification testimony was undermined by his admissions that he had not spoken with the children or their therapists, had not seen the injuries, believed the allegations unsubstantiated, and proposed safety measures aimed at protecting appellants from further allegations rather than protecting the children. The Court held that requiring meaningful therapy designed to ensure child safety - even where ineffective without acknowledgment of abuse - does not violate the Fifth Amendment, quoting In re J.W., 415 N.W.2d 879, 884 (Minn. 1987), that the loss of children for failure to undergo meaningful therapy "is simply a consequence of the reality that it is unsafe for children to be with parents who are abusive and violent." Immunity question reserved: In a footnote, the Court noted that DFS asserted appellants had been offered immunity for statements made during treatment, while appellants disputed its scope. Citing In re Amanda W., 705 N.E.2d 724, 727 (Ohio Ct. App. 1997), and Dep't of Human Servs. v. K.L.R., 230 P.3d 49, 54 (Or. Ct. App. 2010), the Court observed that a properly crafted grant of immunity may ease Fifth Amendment friction in dependency cases but declined to decide the issue on this record. Parental fault: The district court found four grounds: unfitness, failure to adjust, token efforts, and risk of serious injury under NRS 128.105(1)(b). Because the children had been residing outside the home for 30 months, the NRS 128.109(1)(a) presumption of token efforts applied, and appellants bore the burden of rebuttal by a preponderance of the evidence per In re Parental Rights as to J.L.N., 118 Nev. 621, 625-26, 55 P.3d 955, 958 (2002). Citing In re Parental Rights as to D.R.H., 120 Nev. 422, 432-33, 92 P.3d 1230, 1236-37 (2004), the Court held appellants failed to rebut the presumption because, although they participated in case-plan services, they did not meaningfully address the abuse. The Court further found substantial evidence supporting unfitness and risk findings under In re Parental Rights as to K.D.L., 118 Nev. 737, 746-47, 58 P.3d 181, 187 (2002). The Court declined to disturb the district court's credibility determinations under In re Parental Rights as to J.D.N., 128 Nev. 462, 477, 283 P.3d 842, 852 (2012). Best interests: NRS 128.105(1)(a) requires a best-interests finding. NRS 128.005(2)(c) makes the child's continuing needs for proper growth "the decisive considerations." NRS 128.109(2) creates a rebuttable presumption that termination serves a child's best interests when the child has been out of the home for 14 of any 20 consecutive months. The court must consider the factors in NRS 128.107 (needs and wishes of the child, services offered, efforts made, prospect of lasting change) and NRS 128.108 (foster family integration and willingness to be permanent placement). The Court held substantial evidence supported the best-interests finding given the children's bonding with the foster family willing to adopt, the conditional nature of N.R.B. and H.R.B.'s wish to return home (predicated on no more violence), and Dr. Gennis's flawed premise that no abuse had occurred.

In plain language

This case involves the termination of parental rights of a mother and father over their four children. The case began in December 2013 when the oldest child, then-fifteen-year-old S.L., showed up at school with a black eye and told a friend that her father, Donald, had hit her. Although S.L. initially told Child Protective Services that she had hit her eye on a cabinet, an investigation revealed multiple bruises and abrasions consistent with abuse. All four children were removed from the home in January 2014 and eventually placed together in a foster home. Once safely in foster care, the children disclosed years of abuse. At trial, S.L. testified that Donald had been abusing her since around third grade. The abuse she described included being hit with a belt and buckle, having her wrist cut with a knife, being shot with a BB gun, having a tooth knocked out, being jumped on while Donald wore work boots until she passed out, being made to stand on her head for thirty minutes, being denied food, and being treated differently from the other children. S.L. testified that her mother, Melissa, knew about the abuse and covered S.L.'s facial injuries with makeup. The children were also coached to repeat false stories about how the injuries occurred. Donald and Melissa entered no-contest pleas to the protective custody petition and were given case plans. They participated in assessments and therapy. However, throughout the process, both parents continued to insist that S.L.'s injuries were self-inflicted. Recorded jail calls captured Melissa calling S.L. a "killer kid" with "a brain of a fucking peanut." A psychological assessment found both parents at high risk to abuse or neglect again. On appeal, the parents argued that taking away their parental rights because they refused to admit the abuse violated their Fifth Amendment right against self-incrimination - the constitutional protection against being forced to confess to a crime. The Nevada Supreme Court had recently addressed a similar issue in a case called A.D.L., where it ruled that a parent cannot be forced to admit a crime under threat of losing her children. The Court rejected the parents' argument here. It distinguished A.D.L., where a single accidental-looking injury was at issue and the mother had otherwise satisfied her therapy requirements. In this case, the Court explained, the abuse was severe, repeated, and stretched over years, and the parents had not engaged in meaningful therapy that would address the abuse and ensure the children's safety if returned home. The Court drew a line: parents cannot be compelled to admit a crime, but they can be required to engage in genuine therapy aimed at protecting their children. Losing children for failing to undergo such therapy, the Court said, "is simply a consequence of the reality that it is unsafe for children to be with parents who are abusive and violent." The Court also affirmed that there was enough evidence to support the district court's findings that the parents were unfit, had failed to adjust, had made only token efforts toward reunification, and posed a risk of serious injury to the children. Because the children had been outside the home for 30 months at the time of trial, a legal presumption applied that the parents had only made token efforts, and the Court agreed they failed to rebut that presumption. Finally, the Court agreed that termination served the children's best interests, noting that the children had bonded with and integrated into a foster family willing to adopt them.