WASHOE CTY. HUMAN SERVS. AGENCY VS. DIST. CT. (C.-S.)

Statutes cited

Key holdings

Practitioner summary

The court (Hardesty, C.J., for an en banc court) addressed two threshold issues — writ jurisdiction and mootness — before reaching a substantive due process question. Writ jurisdiction. Citing NRS 34.170, In re William J. Raggio Family Tr., 136 Nev. 172, 460 P.3d 969 (2020), Walker v. Second Judicial Dist. Court, 136 Nev. 678, 476 P.3d 1194 (2020), Dekker/Perich/Sabatini Ltd. v. Eighth Judicial Dist. Court, 137 Nev., Adv. Op. 53, 495 P.3d 519 (2021), and Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 234 P.3d 920 (2010), the court exercised its discretion to entertain the petition because the order was non-appealable under NRAP 3A(b) (citing Clark Cty. Dist. Attorney v. Eighth Judicial Dist. Court, 123 Nev. 337, 167 P.3d 922 (2007)), and the constitutional question was a purely legal issue of first impression with substantial precedential value. Review is de novo. Helfstein v. Eighth Judicial Dist. Court, 131 Nev. 909, 362 P.3d 91 (2015). Mootness. The matter was moot because the district court had already discharged WCHSA's reunification duty on a basis other than NRS 432B.393(3)(c) following a permanency hearing under NRS 432B.590. Applying the three-part capable-of-repetition-yet-evading-review test from Degraw v. Eighth Judicial Dist. Court, 134 Nev. 330, 419 P.3d 136 (2018), and Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 302 P.3d 1108 (2013), the court found: (1) duration is short because NRS 432B.590(1)(b) requires a permanency hearing within 30 days of any subsection 3 finding; (2) the issue is likely to recur given the frequency of reasonable-efforts disputes in dependency proceedings, see In re Parental Rights as to A.G., 129 Nev. 125, 295 P.3d 589 (2013), and Valdez-Jimenez v. Eighth Judicial Dist. Court, 136 Nev. 155, 460 P.3d 976 (2020); and (3) the matter is important because it concerns the constitutionality of part of NRS Chapter 432B's child-protection scheme. (See also Personhood Nev. v. Bristol, 126 Nev. 599, 245 P.3d 572 (2010).) Substantive framework. The court invoked the Due Process Clauses of U.S. Const. amend. XIV § 1 and Nev. Const. art. 1, § 8(2), and the presumption of constitutionality articulated in State v. Castaneda, 126 Nev. 478, 245 P.3d 550 (2010). Drawing on Eggleston v. Stuart, 137 Nev., Adv. Op. 51, 495 P.3d 482 (2021), and State v. Eighth Judicial Dist. Court (Logan D.), 129 Nev. 492, 306 P.3d 369 (2013), the court framed the threshold question for both substantive and procedural due process challenges as whether the statute infringes a fundamental liberty interest. Strict scrutiny applies if it does; rational basis review applies if it does not. Application. The court acknowledged the parent-child relationship as a fundamental liberty interest. In re Parental Rights as to A.G., 129 Nev. at 135, 295 P.3d at 595 (citing Troxel v. Granville, 530 U.S. 57 (2000)). However, NRS 432B.393(3)(c) "does not terminate parental rights or alter the custody of the children" — it merely relieves the agency of reunification efforts. The district court's reasoning depended on NRS 128.105(1)(b), which allows parental fault in a termination proceeding to be predicated on a NRS 432B.393(3) finding. The Supreme Court held that any infirmity arising from that linkage is properly directed at NRS 128.105, not NRS 432B.393(3)(c), particularly where no termination proceeding had been instituted against Porsha and Rolando. The court declined to consider two arguments raised late: L.S.C.'s argument (raised first at oral argument) that the statute infringes the child's liberty interest in family reunification, and Porsha's appellate argument that NRS 432B.393(1) creates a right to reasonable reunification efforts. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981). In a footnote, the court observed that other jurisdictions have held the statutory directive to provide reasonable services does not create a constitutional right, citing In re K.R., No. 99-2009, 2000 WL 854325 (Iowa Ct. App. 2000); Suter v. Artist M., 503 U.S. 347 (1992); and In re Eden F., 741 A.2d 873 (Conn. 1999), while acknowledging contrary suggestions in In re ECH, 423 P.3d 295 (Wyo. 2018). Holding. Because NRS 432B.393(3)(c) does not infringe on a fundamental liberty interest, the court applied rational basis review under Logan D. and held the statute rationally relates to Nevada's legitimate interest in preventing children from being returned to dangerous homes or languishing in foster care. The district court erred in concluding otherwise. The petition was nonetheless denied as moot, consistent with the disposition in Valdez-Jimenez, 136 Nev. at 167, 460 P.3d at 988.

In plain language

When Nevada child-welfare authorities remove a child from her parents, state law generally requires the agency to make "reasonable efforts" to reunite the family. One Nevada statute, NRS 432B.393(3)(c), creates an exception: if a parent's rights to a different child (a sibling) were already involuntarily terminated, the agency does not have to keep trying to reunify the family with the new child. In this case, WCHSA removed L.S.C. from her parents in August 2020 and asked the district court to find that, because the parents had lost their rights to L.S.C.'s sibling the year before, the agency was off the hook for reunification efforts. The parents objected, arguing the statute violates their constitutional right to raise their child without fair process. A court master agreed with the parents and found the statute unconstitutional, reasoning that it effectively presumes a parent is unfit forever based on a past case, and that this presumption could later be used to terminate parental rights as to the new child under a separate statute, NRS 128.105(1). The district court adopted that recommendation. WCHSA then asked the Nevada Supreme Court for an extraordinary order (a writ of mandamus) overturning the district court's constitutional ruling. By the time the Supreme Court considered the petition, the dispute over reunification efforts in this particular family had already been resolved on different grounds, making the case technically "moot." The Supreme Court nonetheless decided to address the constitutional question because it is the kind of issue likely to come up repeatedly but resolve too quickly to ever be reviewed in time. On the merits, the Supreme Court held that NRS 432B.393(3)(c) does not violate due process. The court explained that, although parents have a fundamental constitutional right to the care and custody of their children, that right is implicated when the state removes children or terminates parental rights — not when the state merely relieves an agency of its duty to provide reunification services. Because the statute does no more than excuse the agency from reunification efforts, it does not infringe on a fundamental right. The court applied the more lenient "rational basis" test and concluded that the statute is rationally connected to Nevada's legitimate interest in keeping children out of dangerous homes and out of long-term foster care. The court noted that the district court had focused on a different statute — NRS 128.105(1), which permits termination of parental rights based in part on a finding under NRS 432B.393(3)(c). The Supreme Court explained that any constitutional concern about presuming parental fault belongs in a challenge to NRS 128.105, not to NRS 432B.393(3)(c). Even though the Supreme Court concluded the district court was wrong on the constitutional question, it denied WCHSA's petition because the underlying dispute had become moot — the agency had already been relieved of reunification efforts on a different basis, so there was nothing left to fix.