Washoe County Human Services v. District Court
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The Supreme Court vacated the order of the district court finding that Nev. Rev. Stat. 432B.393(3)(c) violates due process, holding that the statute does not infringe on the fundamental liberty interest a parent has in the care and custody of his or her child and thus does not violate due process.
Section 432B.393(3)(c) relieves a child welfare services agency from its duty to provide reasonable efforts to reunify a child with his or her parent if a court finds that the parents' parental rights were involuntarily terminated with respect to the child's sibling. A court master recommended that the district court find section 432B.393(3)(c) unconstitutional because, for purposes of terminating the parent-child relationship, it could lead to a presumption that the parent is unfit without any consideration of present circumstances. The Supreme Court vacated the district court's order, holding (1) insofar as section 432B.393(3)(c) relieves an agency of making reunification efforts it does not infringe on a parent's fundamental liberty interest in the care and custody of his or her child and therefore does not violate due process; and (2) although the district court erred, the petition must be denied as moot.
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138 Nev., Advance Opinion 19 -IN THE SUPREME COURT OF THE STATE OF NEVADA WASHOE COUNTY HUMAN SERVICES AGENCY, Petitioner, vs. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE; AND THE PONORABLE PAIGE DOLLINGER, DISTRICT JUDGE, Respondents, and ROLANDO C.-S.; PORSHA C.-S.; AND L.S.C., A MINOR CHILD, Real Parties in Interest. No. 83422 HLE3 Original petition for a writ of mandamus in a juvenile dependency matter challenging a district court order declaring NRS 432B.393(3)(c) unconstitutional. Petition denied. Christopher J. Hicks, District Attorney, and Erin L. Morgan and Jeffrey S. Martin, Deputy District Attorneys, Washoe County, for Petitioner. Washoe Legal Services and Jennifer Jeans, Reno. for Real Party in Interest L.S.C. John L. Arrascada, Public Defender, and Jennifer Rains and John Reese Petty, Chief Deputy Public Defenders, Wa shoe County, for Real Party in Interest Porsha C.-S. SUPREME COURT OF NEVADA (0) 1447A Marc Picker, Alternate Public Defender, and Amy Crowe, Deputy Alternate Public Defender, Washoe County, for Real Party in Interest Rolando C.-S. BEFORE THE SUPREME COURT, EN BANC.' OPINION By the Court, HARDESTY, C.J.: We elect to consider the merits of this petition under the capable-of-repetition-yet-evading-review exception to the mootness doctrine to clarify a substantial issue of public policy and precedential value: whether NRS 432B.393(3)(c) violates due process. NRS 432B.393(3)(c) relieves a child welfare services agency from its duty to provide reasonable efforts to reunify a child •with his or her parent if a court finds that the parental rights of that parent were involuntarily terminated with respect to a sibling of the child. The district court found that this statute violates due process because it could lead to a presumption that the parent is unfit, for purposes of terrnin.ating the parent-child circumstances. relationshiP, without any consideration of present Petitioner Washoe County Human Services Agency (WCHSA) filed a petition for writ of mandamus asking this court to determine that NRS 432B.393(3)(c) is constitutional and to vacate the district court's order. 'The Honorable Mark Gibbons, Senior Justice, participated in the decision of this matter under a general order of assignment. SUPREME COURT OF NEVADA (0) 1947A .41p4, 2 We conclude that NRS 432B.393(3)(c), insofar as it relieves an agency of making reunification efforts, does not infringe on the fundamental liberty interest a parent has in the care and custody of his or her child and therefore does not violate due process. We thus. determine that the district court erred but deny WCHSA's petition as the matter is moot. BACKGROUND In August 2020, WCHSA removed real party in interest/minor child L.S.C. from the care and custody of her biological parents, real parties in interest Porsha C.-S. and Rolando C.-S., and placed her in foster care.2 The next month, WCHSA filed a motion with the district court for a finding under NRS 432B.393(3)(c) that WCHSA was. relieved of its statutory obligation to undertake reasonable efforts to reunify L.S.C. with her biological parents. WCHSA asserted that Porsha and Rolando had their parental rights involuntarily terminated as to L.S.C.'s sibling the year before and the order of termination was not under appeal. WCHSA argued that, in light of these facts, the district court was required by NRS 432B.393(3)(c) to find that WCHSA was relieved from its obligation under NRS 432B.393(1) to undertake reasonable efforts to reunify L.S.C. with her parents. Porsha and Rolando opposed the motion, arguing that NRS 432B.393(3)(c) infringes on: their fundamental liberty interest in the care, custody, and control of their child without the due process of law. 2 The record inconsistently reflects real parties in interest's family names. We identify real parties in interest according to the names used in the petition. SUPREME COURT OF NEVADA (0) I 947A 3 court master recommended that the district court• find NRS 432B.393(3)(c) unconstitutional and deny WCHSA's motion that it be relieved of its obligation to Make reasonable reunificatiOn efforts with L.S.C. 'The court master found that NRS 432B.393(3)(c) infringes on the parent-child relationship—a fundamental right—and is not narrowly tailored to serve the compelling state interest of protecting the health an.d safety of children, as it does not allow a court any discretion to consider the circumstances of the past involuntarY termination. Hr neterminatiOn that the •statutory provision is unconstitutional was' based on the fact that a finding under NRS 432B.393(8)(c) results in an expedited perinanency hearing' and may be used to prove parental fault for the terminatiOn of parental rights in proceedings instituted under NRS Chapter 128. The district Court entered an order adopting these recommendatiOnS • oVer WCHSA's objection. .Later, the court master held a permanencY.hearing under NRS 432B.590, after • which she recommended that the district court • adopt the a.genoy's permanency plan of adoption for L.S.C.' making this recomthendation, the court master found that WCHSA was •relieved Of making reasonable efforts to reunify L.S.C. with her familY' .under NRS 432B.393(1). as such efforts were inconsistent with the Permanency plan efforts. The district court adopted these recornmen.dations but. made no further findings regarding the constitutionality Of NRS 43211.393(3)(c). WCHSA petitioned this court .for a writ of mandamus to overturn the district court's .deciaration SUPREME COURT OF NEVAOA ((l'i 194721 4gtr , 4 that 432B.393(3)(c) is unconstitutional. Porsha, Rolando, and L.S.C. timely filed answers to the petition, as directed.3 DISCUSS ION We elect to consider the merits of this petition for a writ of rnandctmu.s "Writ relief is an extraordinary remedy that is only available if a petitioner does not have a plain, speedy and adequate remedy in the ordinary course of law." In re William J. Raggio Family Tr., 136 Nev. 172, 175, 460 P.3d 969, 972 (2020) (internal 'quotation marks omitted.); see also NRS 34.170. .This court has considered writ petitions when doing. so "will clarify a substantial issue of public poliCy or precedential value," Walker v. Second Judicial Dist. Court, 136 Nev 678, 684, 476 P.3d 1194, 1199 (2020) (internal quotation marks omitted), and "where the petition presents a matter of first impression and considerations of judicial economy support its review," Dekker / Perich/ Sabatini Ltd. v. Eighth Judicial Dist. Court, 137 Nev., Adv. Op. 53, 495 P.3d 519, 522 (2021); see dlso Buckwaiter v. Eighth Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d 920, 921 (2010) (additionally noting that the issue before the court was reviewable on mandamus because it was "not fact-bound"). This court "review[s] questions of law .. . de novo, even in the context of writ petitions." Helfstein v. Eighth judicial Dist. Court, 131 Nev. 909, 913, 362 P.3d 91, 94 (2015). The district court's order concerning the waiver of reunification efforts in an NRS Chapter 432B proceeding is not appealab1e. See NRAP 3A(b); Clark Cty. Dist. Attorney v. Eighth Judicial Dist. Court; 123 Nev. 337, 342, 167 P.3d 922, 925 (2007) (conSidering a petition 'for extraordinary relief after recognizing that the challenged order, entered under NRS Chapter 3L.S.C.'s appearance in the district court prOceedings was waived at the request of her counsel. SUPREME COURT OF NEVADA (0) 1)47A 5 432B, was not appealable). Further, whether NRS 432B.393(3)(c) is unconstitutional is a purely legal issue of first impression and has substantial precedential value. See Lyft, Inc. v. Eighth judicial Dist. Court, 137 Nev., Adv. Op. 86, 501 P.3d 994, 998 (2021) (considering a petition for writ of mandamus because the question of whether the statute at issue superseded a procedural rule "present[ed] a novel question of law requiring clarification"). For these reasons, we elect to hear this petition for a writ of mandamus to address the constitutionality of NRS 432B.393(3)(c). While the matter is rnoot, it falls under the capable-of-repetition-yet-evadingreview exception to the rnootness doctrine "The question of mootness is one of justiciability" and requires that this court render judgments only on actual controversies. Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010). Although controversies may exist at the beginning of a case, they can be rendered moot by subsequent events. ld. This case was rendered moot when the district court found that WCHSA was relieved of providing reasonable reunification efforts to Porsha and Rolando with respect to L.S.C. on grounds other than NRS 432B.393(3)(c). However, cases involving moot controversies may still be considered by this court if they concern "a matter of widespread importance capable of repetition, yet evading review." Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 334, 302 P.3d 1108, 1113 (2013). "To satisfy the exception to the rnootness doctrine, tpetitionér] must show that (1) the duration of the challenged aCtion is relatively short, (2) there is a likelihood that a similar issue will arise in the future, and (3) the matter is important." Degraw v. Eighth Judicial Dist. Court, 134 Nev. 330, 332, 419 P.3d 136, 139 (2018) (internal quotation marks omitted). SUPREME COURT OF NEVADA 6 (0) 1947A We concl.ude that this petition meets the elements of -this exception to mootness: First, the duration of the challenged action is relatively short given the expedited nature of dependency proceedings under NRS Chapter 432B. Particularly, under NRS 432B.590(1)(b), "[w]ithin 30 days after making any of the findings set forth in subsection 3 of NRS 432B.393." the court must hold a permanency .hearing. A permanency hearing will moot a dispute regarding NRS 432B.393(3)(c) by making a reasonable-efforts finding on a different basis, as was the case here. •Thus, we conclude that the time period to challenge an order made pursuant to NRS 432B.393(3)(c) is necessarily limited by law.4 See Deg-raw, 134 Nev. at 332, 419 P,3d at 139 (determining that the duration eleMent was met because "the time period to challenge the [action at issue] may be limited"). Second, .as for whether •there is a likelihood that the iSsUe will arise in- the- future, this court typically does not rely on the ass'urances the parties alone that an issue will recur.- Id. at 333, :419 P.3d -at 139; Personhood Nev., 126 Nev. at 602, 245 P.3d at 574: Still, thiS court has measured the likelihood of recurrence contextually, i.e., from how common the issue at hand is to the larger body of disputes, such as the Ubiquitous relevancy of bail issues in criminal cases. See Valdez-Jimenei-b. -Eigh.th Judicial Dist Court, 136 Nev. 155, 160, 460 P.3d 976, 983- (2020) '4While the. hearing master's fin.dings of fact an.d recommendations regarding the permanency hearing here were titled "Masterš Findingš ,of Fact and Recommendations After 12-Month Permanency Hearing" and onlY broadly cited tO NRS 432B.590 as the legal basis "for its, permanency hearing, we note that NRS 432B..590(1)(a)'s .req.uirement that the cou.rts hold an annual permanency h.earing after the removal of a child from the child's• home does not discharge the Courts 'from holding 'a..'permanericy h.earin.g within 30 days of making any findings under NRS: 432B.393(3) per NRS 432B.590(1)(b). SUPREME COURT OF NEVADA (0) I 947A 7 (determining that "the second factor of the mootness exception" had been satisfied "[b]ecause the constituti.onal issues concerning the inquiries and findings required for setting bail are relevant in many criminal cases[ and] will arise in the future") Similarly, issues regarding a child welfare agency's duty to provide reasonable efforts to reunify children with their parents are relevant to a variety of child welfare cases that have previously, and will likely continue to, come before this court. See, e.g., In re Parental .Rights as to A.G., 129 Nev. 125, 132, 295 P.3d 589, 593 (2013). Lastly, we determine that the third factor—importance of the matter—is satisfied, as the matter involves the constitution.ality of a statutory provision that is part of a larger statutory seheme governing the protection of Nevada's children from abuse and neglect. See NRS Chapter 423B. For these reasons, we elect to hear this matter under the capable-ofrepetition-yet-evading-review exception to the mootness doctrine. NRS 432B.393(3)(c) does not violate due process because it does not infringe on a fundamental liberty interest The Due Process Clauses of the United States and Nevada Constitutions prohibit the state from deprivi.ng any person "of life, liberty, or property, without due process of law." U.S. Const. amend. XIV § 1; Nev. Const. art. 1, § 8(2). Statutes are presumed constitutional, and the party challenging a statute has the burden of showing otherwise. State v. Castaneda, 126 Nev. 478, 481., 245 P.3d 550, 552 (2010), modified on other grounds on denial of reh'g, No. 52911, 2010 WL 5559401 (Nev. Dec. 22, 2010) (Order Denying Rehearing and Modifying Opinion). "Substantive due process protects certain individual liberties against arbitrary government deprivation regardless of the fairness of the state's procedure." Eggleston u. Stuart, 137 Nev., Adv. Op. 51, 495 P.3d 482, 489 (2021). ln the context of a substantive due process challenge to a 8 statute, courts apply strict scrutiny if the statute infringes on a fundamental constitutional right; otherwise, the statute is reviewed under the rational basis test and will be upheld it if it is rationally related to a legitimate state .interest. State v. Eighth Judicial Dist. Court (Logan D.), 129 Nev. 492, 501-03, 306 P.3d 369, 375-77 (2013). "Procedural due process claims arise where the State interferes with a liberty or property interest and the State's procedure was constitutionally insufficient." Eggleston, 137 Nev., Adv. •Op. 51, 495 P.3d at "489: Therefore, with respect to both substantive and procedural due procesS, the threshold issue regarding NRS 432B.393(3)(c)'s validity is whether that statute infringes"on a fundainental liberty interest. Here, the district court found that NRS 432B.393(3)(c) infringes on the fundamental liberty interest that parents have in the care, custody, and control of their children because a finding under NRS 432B.393(3)(c) can be used as a basis for finding parental fault in a termination of parental• right§ proceeding under NRS 128.105(1).5 The district court applied strict scrutiny and found that NRS 432B.393(3)(c) is not narrowly• tailored to serve the compelling interests of the health and safety of children because it presumes parental unfitness based on a prior• termination of parental rights without any consideration of the indiVidual circumstances of that prior termination. Based on this finding, it. found that NRS 432B.393(3)(c) facially violated both substantive and procedural due process. •While the •district court considered the application of NRS 432B.393(3)(c) to the 5 NRS 128.105(1) allows parental rights to be terminated where the court finds that (1) termination is in the best interest of the child, and (2) parental fault exists. Parental fault exists where, among other things, "Nile conduct of the parent or parents was the basis for a finding made pursuant to subsection 3 of NRS 432B.393." NRS 128.105(1)(b). SUPREME COURT OF NEVADA ,.0) I 947A 9 parties' individual circumstances, it; did not find that NRS 432E1.393(3)(c) violated. due process as applied to them, hut rather that, it facially violated procedural and substantive due process. WCHSA argues that NRS 432B.393(3)(c) does not implicate the fundamental liberty interest that parents have in the care, custody, and control of their children because a finding under that statute does not result in the deprivation of parental rights. WCHSA acknowledges that the parental fault prong of NRS 128.105 'can be established by a prior findihg under NRS 432B.393(3)(c) but it contends that if thiš finding infringes on a fundamental right, then NR.S 128.105 is the offending statute, not NRS 432B.393(3)(c). We agree.. 'It is well-established that the parent-child relationship is: a fundamental liberty interest. See In re Parental Rights as tO A.G.,-129 Nev. at 135, 295 -P.3d at 595 (citing Troxel-u. Granville, 530 U.S. 57, 65 (2000)). Thus; parents ate entitled to due process protections.before being deprived of the custod.y• Of their child or havin.g their Parental rights terthinated. Id. A finding under NRS 432B:393(3)(c), however, does not terminate parental rights or alter the' custOdy of the children.. Rather, it relieves the agency from -providing reunification efforts. In finding that the statute infringes on a parent's fundamental right, the district court relied on NRS 128.105(1),• which provides that a finding .under • NRS 432B.393(3)(c), 'among other things, may, establish parental fault in a parental rights termination • proceeding; • The -Court reasoned that .a parent- could have hiS Or her Parental rights 'terininated under NRS 128.105(1) based on •NRS -432B.393(3)(c)'s ptesuthpticn that ,a parent whOse parental' rights were previously terminated remain:3 unfit for life. The constitutionalitY of NR.S 128.105(1), howeVer, waS n:ot beforethe SUPREME COURT OF N EVADA 10 4 OIDP 10 district court in this NRS Chapter 432 proceeding. No parental rights termination proceedings had been instituted against Porsha,and Rolando when WCHSA moved for a finding under NRS 432B.393(3)(c). The concern that NRS 128.105(1) infringes on a parent's fundamental right by allowing parental fault to be presumed from a prior termination pursuant to NRS 432B.393(3)(c) is a basis for challenging NRS 128.105, not NRS 432B.393(3)(c). Unlike NRS 128.105, NRS 432B.393(3)(c) does not facially infringe on a parent's fundamental right to the care and custody of his or her children, as it involves neither the removal of a child from a parent's custody or the termination of parental rights.6 During oral argument before this court, counsel for L.S.C. argUed for the first time that NRS 432B.393(3)(c) infringes on her client's fundamental liberty interest in being reunited with her family of origin if safe and appropriate. Because this argument was not properly raised in L.S.C.'s appellate brief or below, we decline to consider it. Old Aztec Mine, Inc. u. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). 6 Additionally, Porsha argues on appeal that NRS 432B.393(1) creates a right to reasonable reunification efforts. This argument was not raised before the district court or considered by the district court in determining that' NRS 432B.393(3)(c) is unconstitutional, and we thus decline to consi.der it as well. However, we note, as other jurisdictions have, that "Mlle statutory directive to employ reasonable services, absent aggra.vated circumstances, does not give rise to a constitutional right." In re K.R., No. 99-2009, 2000 WL 854325, at *2 (Iowa Ct. App. 2000) (citing Suter u. Artist M, 503 U.S. 347, 363 (1992) (determining that the term "reasonable efforts," as it appeared in the federal Adoption Assistance and Child Welfare Act, did not confer a federally enforceable right upon the act's beneficiaries)); accord In re Eden F., 741 A.2d 873, 886 n.22 (Conn. 1999) ("At no time did the [Supreme Clourt suggest that a showing.of reasonable or diligent efforts at reunification was itself constitutionally mandated."). We do recognize. that other jurisdictions have suggested that the discharge of reunification efforts can affect a parent's right to the- care, custody, 'and control of his or her child in other contexts. See, e.g., In re ECH, 423 P.3d SUPREME COURT OF NEVADA 11 (C)) 1947A Because NRS 432B.393(3)(c) does not infringe on a fundamental liberty interest, it cannot deprive any party of a fundamental liberty i ntere,A without the due process of law, unless it violates substantive due process under the lenient rational basis test. Logan D., 129 Nev. at 503, 306 P.3d at 377. Since NRS 432B.393(3)(c) rationally relates to the legitimate interest that Nevada has in preventing the return of children to a dangerous home or from languishing too long in foster care, we end our analysis here and conclude that NRS 432B.393(3)(c) does not violate due process. CONCLUSION We elect to hear this petition for writ of mandamus to address a legal issue of statewide public importance: whether NRS 432B.393(3)(c) violates due process. Because this statute does not infringe •on a fundamental liberty interest and survives the rational basis test, we conclude that it does not violate due process. The district court therefore erred in determining otherwise. Because WCHSA had its obligation to provide reasonable reunification efforts discharged on another basis, we deny this petition for writ of mandamus as being moot. See, e.g., ValdezJirnenez, 136 Nev. at 167, 460 P.3d at 988 (reaching the merits of petitions for writs of mandamus under the capable-of-repetition-yet-eVading-review 295, 302 (Wyo. 2018) ("A change in permanency plan is not termination; however, as we [have] recognized[d . . the decision to halt reunifiCation efforts certainly affects a parent's substantial rights, as it willlikely have a significant impact on a termination decision." (citation omitted)). SUPREME COURT OF NEVADA (0) 1047A 12 exception to mootness, but nonetheless denying the petitions as no relief remained. to be granted). , Hardesty We concur: Parraguirre J. Stiglich J. Cadish Piek. j. Pickering (74‘' Herndon Sr. J. Gib b SUPREME COURT OF NEVAPA 13 (0) 1947A C • J-
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