WASHOE CTY HUMAN SERVS. AGENCY VS. DIST. CT. (B.) (C/W 84278)

Statutes cited

Key holdings

Practitioner summary

The court addressed justiciability rather than the merits of the constitutional challenge to NRS 128.109(1)(a) and (2). Citing NCAA v. Univ. of Nev., Reno, 97 Nev. 56, 58, 624 P.2d 10, 11 (1981), the court reiterated that "[a] moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights," and, citing Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010), that mootness is a question of justiciability requiring the court to render judgments only on actual controversies. The dismissal of the underlying termination petitions in both family court matters rendered the writ petitions moot. The court applied the three-element exception articulated in Degraw v. Eighth Judicial Dist. Court, 134 Nev. 330, 332, 419 P.3d 136, 139 (2018) (the opinion's text refers to "184 Nev. 330"), and Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 334, 302 P.3d 1108, 1113 (2013): (1) relatively short duration of the challenged action; (2) likelihood that a similar issue will arise in the future; and (3) importance. The court accepted the importance and short-duration prongs but concluded WCHSA failed to establish that the issue would evade review. Although a pretrial order on the constitutionality of a statute in a termination action is not immediately appealable under NRAP 3A(b), the court reasoned that a final order on a motion to terminate parental rights is appealable under NRAP 3A(b)(1), providing a clear avenue for appellate review. Accordingly, the matter was not "capable of repetition, yet evading review." The dissent, authored by Justice Herndon and joined by Justice Stiglich, would have applied the exception. The dissent emphasized that the statutory presumption attaches when a child has resided in protective custody for fourteen months within a twenty-month period under NRS 128.109(1)(a) and (2), and that NRS 128.055 generally requires termination proceedings to be completed within six months of filing. The dissent observed that NRS 128.109 must be considered in any termination proceeding involving a child placed in protective services pursuant to NRS Chapter 432B, and pointed to the constitutional importance of the parental interest, citing In re Parental Rights as to A.G., 129 Nev. 125, 135, 295 P.3d 589, 595 (2013) ("[P]arents have a fundamental liberty interest in the care, custody, and control of their children."). The dissent further observed that the constitutional ruling itself appeared to have been a catalyst for resolution short of final judgment, supporting the conclusion that the issue is capable of repetition while evading review.

In plain language

This case arises out of two child-welfare proceedings in Washoe County. The county's human services agency had taken two children, H.B. and Z.R., into protective custody in 2019 and later filed petitions to terminate their parents' rights. The parents fought back by challenging the constitutionality of part of Nevada's termination statute, NRS 128.109, which sets up legal presumptions that favor terminating parental rights once a child has been in foster care for a certain length of time. The district court agreed with the parents that two subsections of the statute violated the parents' due process rights, but it did not actually rule on whether to terminate parental rights. The county agency then asked the Nevada Supreme Court to step in through a "writ" - an extraordinary order from a higher court directing a lower court to do something. Specifically, the agency wanted the Supreme Court to order the district judge to undo her ruling that the statute was unconstitutional. While the case was pending in the Supreme Court, the family court dismissed the underlying termination petitions in both cases. That left no live dispute between the parties for the Supreme Court to resolve. Z.R.'s mother moved to dismiss the writ petition as moot, and H.B.'s mother filed a notice that her case had also been dismissed. The Supreme Court denied the writ petitions as moot. A case is moot when there is no longer an actual controversy to decide. The court recognized an exception that allows it to hear moot cases that involve issues of widespread importance that are likely to recur but might escape review, but concluded the agency had not shown that this issue would evade review. The court reasoned that, in a future termination case, whichever side lost on the constitutional issue could appeal once the district court entered a final judgment on the motion to terminate parental rights. Because the issue has a path to appellate review through ordinary appeals, the exception to mootness did not apply. Two justices dissented in part. They agreed the case was moot but believed the exception to mootness applied and would have decided the merits.