IN RE TWO MINOR CHILDREN (CHILD WELFARE)

Statutes cited

Key holdings

Practitioner summary

On petitions for a writ of prohibition and appeals in juvenile proceedings, the court held: (1) prohibition was proper under NRS 34.320 and NRS 34.330 because the petitioners faced a potential contempt order with no plain, speedy, and adequate remedy at law; (2) juveniles accused of delinquency are entitled to due process and effective counsel under In re Gault, and a minor incompetent to assist counsel cannot be adjudicated until competency is regained (analogizing to NRS 178.400 and Pate v. Robinson); (3) under the Juvenile Court Act (NRS 62.040(1)(c); NRS 62.240; NRS 62.200(1)(c)) the juvenile court had authority to order placement of the incompetent, dangerous minors in an out-of-state residential treatment facility; but (4) the court lacked authority to order the Division to pay the cost of care, because Chapter 433 vests spending discretion in the administrator and no funds were appropriated, and under NRS 62.240(2) and NRS 62.230 the expense of care is a charge upon the county of the minors' residence. The placement order was affirmed, the cost order reversed, and the writ of prohibition granted.

In plain language

Two minors were charged with delinquent acts in juvenile court. Psychiatric evaluations showed neither was competent to help his lawyer defend the charges, and both were found to be dangerous and in need of secure residential treatment. Because Nevada had no available facility, the juvenile court ordered the state's Division of Mental Hygiene and Mental Retardation to place the minors in an out-of-state facility in California, and later ordered the Division to pay for their care. When the Division did not pay, the court threatened its administrator, Dr. Dickson, with contempt. The Division asked the Supreme Court to block the contempt hearing and to overturn the orders. The Nevada Supreme Court reached several conclusions. First, a writ of prohibition was the proper remedy because the Division faced a possible contempt order with no other adequate remedy. Second, like adults, juveniles accused in delinquency proceedings are entitled to due process, including the right to effective counsel; a child who is not competent to assist counsel cannot be tried until competency is regained. Third, the juvenile court did have authority under the Juvenile Court Act to order the minors placed in an out-of-state treatment facility. Fourth, however, the court could not order the Division to pay the costs, because no money had been appropriated for that purpose; instead, the cost of care is a charge upon the county. The court therefore affirmed the placement, reversed the order making the Division pay, and granted the writ barring the contempt hearing.