IN RE: PARENTAL RIGHTS AS TO T.M.R.

Statutes cited

Key holdings

Practitioner summary

The opinion resolves an ambiguity in Nevada's civil discovery framework as applied to parental-rights terminations. The Court reviews a denial of a motion in limine for abuse of discretion under State ex rel. Department of Highways v. Nevada Aggregates & Asphalt Co., 92 Nev. 370, 551 P.2d 1095 (1976), but reviews questions of rule interpretation de novo, citing Zohar v. Zbiegien, 130 Nev. 733, 334 P.3d 402 (2014). NRS 128.090(2) provides that termination proceedings are governed by the Nevada Rules of Civil Procedure, but those rules do not expressly cover such proceedings: NRCP 16.1(a)(1)(B)(i) exempts actions within the family court's exclusive jurisdiction (which under NRS 3.223(1)(a) includes NRS Chapter 128 proceedings); NRCP 16.2 by its terms applies to "all divorce, annulment, separate maintenance, and dissolution of domestic partnership actions"; and NRCP 16.205 applies to "all paternity and custody actions between unmarried parties." Reading these rules in pari materia - per State, Division of Insurance v. State Farm Mutual Automobile Insurance Co., 116 Nev. 290, 995 P.2d 482 (2000), and Presson v. Presson, 38 Nev. 203, 147 P. 1081 (1915) - the Court holds that NRCP 16.2 fills the gap and applies to termination proceedings "to the extent practicable." The Court invokes the canon against absurd results (State v. Webster, 102 Nev. 450, 726 P.2d 831 (1986); cf. Turner v. State, 136 Nev., Adv. Op. 62, 473 P.3d 438 (2020)) to reject a construction that would permit "trial by ambush" in proceedings the Court characterizes as "tantamount to imposition of a civil death penalty," quoting In re Parental Rights as to A.L., 130 Nev. 914, 337 P.3d 758 (2014). The Court clarifies the scope of its holding in a footnote: NRCP 16.2(e)(4) requires disclosure of nonexpert witnesses at least 45 days before trial in termination cases, but not all of NRCP 16.2 applies - notably, NRCP 16.2(c)'s financial-disclosure requirement does not. The Court rejected the State's argument that NRCP 16.2 conflicts with NRS Chapter 432B. Applying the rule, the Court holds that the State's failure to notice Gladys at all (despite earlier listing her deposition as an exhibit and serving her by publication) violated NRCP 16.2(e)(4), and the district court abused its discretion by admitting her testimony. The Court then conducts harmless-error review under NRCP 37(c)(1) and NRCP 61, asking whether substantial evidence supports termination absent the improperly admitted testimony. On the merits, termination requires both a best-interests finding and a parental-fault finding under NRS 128.105(1)(a)-(b). Because T.M.R. had been outside the home in a Chapter 432B placement for more than 14 months, the NRS 128.109(2) presumption that termination serves the child's best interests applied, shifting the burden to Marcus to rebut by a preponderance under In re J.D.N., 128 Nev. 462, 283 P.3d 842 (2012). Considering the factors in NRS 128.107, NRS 128.108, and NRS 128.005(2)(c), and citing Matter of S.L., 134 Nev. 490, 422 P.3d 1253 (2018), the Court concludes Marcus failed to rebut the presumption: the foster family wished to adopt; T.M.R. did not recognize Marcus by phone; and Marcus's incarceration meant he could not meet the child's needs within a predictable period. For parental fault, the Court relies on NRS 128.105(1)(b)(4) (failure of parental adjustment), defined in NRS 128.0126. The record showed Marcus's failure to complete domestic-violence treatment when out of custody, his refusal to acknowledge anger or substance-abuse issues, his missed drug tests, and his pattern of blaming Dana. Citing In re Parental Rights as to K.D.L., 118 Nev. 737, 58 P.3d 181 (2002), the Court declined to reach the alternative parental-fault grounds because one suffices. Standard-of-review authorities In re Parental Rights as to A.J.G., 122 Nev. 1418, 148 P.3d 759 (2006), In re Parental Rights as to C.C.A., 128 Nev. 166, 273 P.3d 852 (2012), and Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007), frame substantial-evidence review. The Court declined to consider (1) Marcus's reasonable-efforts argument under DFS's reunification duties, citing waiver under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981), and (2) his due-process argument as inadequately briefed under Edwards v. Emperor's Garden Restaurant, 122 Nev. 317, 130 P.3d 1280 (2006).

In plain language

This case involves the State's effort to permanently end a father's legal relationship with his young son. Marcus and the child's mother, Dana, were both incarcerated when the child, T.M.R., was an infant. Marcus had pleaded guilty to felony coercion after an incident in which he hit Dana's 100-year-old great-grandmother, Gladys, and damaged her home. With both parents in custody, Nevada's Department of Family Services (DFS) placed T.M.R. in foster care and eventually petitioned to terminate the parents' rights so the child could be adopted. At trial, the State surprised Marcus by calling Gladys to testify even though it had never formally listed her as a trial witness in the manner Nevada's civil discovery rules normally require. Marcus asked the court to exclude her testimony because she had not been disclosed at least 45 days before trial as required by NRCP 16.2(e)(4). The trial judge ruled that NRCP 16.2's disclosure rules do not apply to termination of parental rights cases and let Gladys testify. After hearing all the evidence, the court terminated Marcus's parental rights. The Nevada Supreme Court used this appeal to clear up an ambiguity in the civil rules. The Court explained that Nevada has three related rules governing when parties must disclose their witnesses: NRCP 16.1 covers most civil cases (but exempts family-court cases), NRCP 16.2 covers divorces and similar matters, and NRCP 16.205 covers paternity and custody disputes between unmarried parents. None of the rules explicitly says it applies to a case to terminate parental rights. Reading the rules together, however, the Court concluded that NRCP 16.2's witness-disclosure rules do apply in termination cases. The Court reasoned that any other reading would allow "trial by ambush" - a surprise witness used against a parent facing what the Court described as "the equivalent of the civil death penalty." So the trial judge was wrong to admit Gladys's testimony without proper notice. But the Supreme Court went on to hold that the mistake was "harmless" - meaning it did not change the outcome - because, even setting Gladys's testimony aside, there was more than enough other evidence to justify ending Marcus's parental rights. That evidence included: T.M.R. had been out of his parents' home for more than 14 months (which under Nevada law creates a legal presumption that termination is in the child's best interests); T.M.R. had bonded with his foster family, who wanted to adopt him; Marcus had failed to make timely progress on the case plan DFS designed to help him reunify with his son; Marcus minimized his drug use and blamed his relapses on Dana; he refused multiple drug tests; and he denied having anger problems despite the underlying violent incident. Because that evidence amply supported the trial court's decision, the Supreme Court affirmed the termination of Marcus's parental rights.