In Re: K.M.S. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 81946
GUARDIANSHIP OF: K.M.S., MINOR.
KWAME A.S.,
Appellant,
VS. FILED
STATE OF NEVADA DEPARTMENT
OF FAMILY SERVICES; AND ASHA FEB 1 7 2022
COLSON, ELIZAB 3 A. BROWN
' UPREME COURT
Res • ondents.
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ORDER OF AFFIRMANCE
This is an appeal from a district court order appointing a
general guardian over a minor ward. Eighth Judicial District Court,
Family Court Division, Clark County; Robert Teuton, Judge. Minor K.M.S.
was placed into protective custody when allegations of abuse and neglect
were substantiated against her mother. The Department of Family
Services (DFS) later filed an amended abuse-and-neglect petition against
appellant which was substantiated after an adjudicatory trial.
Subsequently, respondent Asha Colson filed a petition for guardianship
over K.M.S., which the district court granted following a hearing.
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
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First, we address appellant's constitutional challenges to the
guardianship order.2 Appellant first argues that his due process rights were
violated because he did not receive notice of the guardianship hearing.3 The
record reflects that a citation to appear and show cause regarding K.M.S.'s
grandmother's petition for appointment of general guardianship was served
on both appellant and his second court-appointed counsel. And this citation
provided an August 12, 2020, hearing date for the guardianship petition.
Although appellant has not provided a transcript of that hearing, the
district court's minutes reflect that his court-appointed counsel was present.
Thus, the record reflects that appellant received notice of the guardianship
hearing and was represented at the hearing and the others leading up to
it.4 See Smith v. Cty. of San Diego, 109 Nev. 302, 304, 849 P.2d 286, 287
(1993) (holding that due process requirements were met where the party
2We reject DFS argument that the guardianship order is not an
appealable judgment. NRS 159A.375(1) expressly permits appeals from
orders gTanting letters of guardianship.
3To the extent appellant also argues that he did not receive notice of
the hearing in which K.M.S. was made a juvenile court ward, he did not
raise this issue below, and the record reflects that he was present at that
hearing. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981) ("A point not urged in the trial court, unless it goes to the
jurisdiction of that court, is deemed to have been waived and will not be
considered on appeal.").
4 To the extent appellant asserts he lacked notice of a September 15,
2020, hearing, the record does not contain any evidence that this hearing
was ever scheduled. We therefore need not consider this argument, as we
tt
generally cannot consider matters not contained in the record on appeal."
Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131,
135 (2007).
2
received notice and an opportunity to be heard before a final adjudication of
the naatter).
Appellant's argument that the district court violated his right
to counsel also lacks merit because counsel is generally not guaranteed in
cases where, like here, a party's physical liberty is not at stake. See Lassiter
v. Dep't of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 26 (1981) (holding
that there is generally no right to counsel unless a litigant's physical liberty
is at stake); see also In re Parental Rights as to N.D.O., 121 Nev. 379, 386,
115 P.3d 223, 227 (2005) (concluding that no right to counsel exists in child
custody cases involving termination of parental rights). Further, because
appellant had no right to counsel in this matter, his ineffective-assistance-
of-counsel argument also fails.5 See McKague v. Whitley, 112 Nev. 159, 164-
65, 912 P.2d 255, 258 (1996) (providing that "[w]here there is no right to
counsel there can be no deprivation of effective assistance of counser); see
also Huckabay Props. v. NC Auto Parts, 130 Nev. 196, 205-06, 322 P.3d 429,
435 (2014) (holding that where there is no right to effective assistance of
counsel, the remedy for a private litigant against his or her attorney "is an
action for malpractice).
Appellant also argues that the district court improperly coerced
him to give self-incriminating testimony at the abuse and neglect trial. But
Fifth Amendment rights against self-incrimination apply in civil
5And we see no error in the district court not appointing substitute
counsel as it is well established that a party "may not base a request to
substitute court-appointed counsel on a refusal to cooperate with counsel."
Gallego v. State, 117 Nev. 348, 363, 23 P.3d 227, 237 (2001), abrogated on
other grounds by Nunnery v. State, 127 Nev. 749, 263 P.3d 235 (2011).
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proceedings only where the incriminating testimony could impact a future
criminal proceeding. See In re A.D.L., 133 Nev. 561, 565, 402 P.3d 1280,
1285 (2017). Here, the underlying civil proceedings occurred after
appellant's criminal conviction such that the Fifth Amendment did not
apply. And, despite appellant's arguments to the contrary, we have held
that a district court may make negative inferences from a witness improper
invocation of the Fifth Amendment in civil cases. See Aspen Fin. Servs., Inc.
v. Eighth Judicial Dist. Court, 128 Nev. 635, 647, 289 P.3d 201, 209 (2012).
As such, these arguments do not warrant reversal.6
We next address appellant's non-constitutional challenges.
First, appellant argues that the district court erred by making K.M.S. a
ward of the juvenile court, especially because, in a separate matter
involving K.M.S. and her half-sibling, a district court judge and DFS
investigator purportedly concluded he was not a danger to them. We
conclude that appellant's argument lacks merit. Under NRS 432B.530, to
sustain a petition alleging that the child is in need of protection, a
preponderance of the evidence must show that a child is in need of
protection at the time of removal from the home. And, under NRS
432B.330(2)(a), a child may be in need of protection if the person responsible
for her welfare cannot discharge his responsibilities due to incarceration.
°While appellant argues his double jeopardy rights were violated as
his daughter was removed from his care as a result of his domestic violence
conviction, this argument lacks merit because the underlying matter was
not a criminal matter. See Hudson v. United States, 522 U.S. 93, 99 (1997)
(holding that the Double Jeopardy Clause "protects only against the
imposition of multiple criminal punishments for the same offense).
4
Here, as to appellant, the district court was presented with
evidence that appellant was incarcerated at the time of removal, that
appellant had two domestic violence convictions, and that K.M.S.' mother
had previously been found to have abused or neglected K.M.S. And the DFS
investigator in the present case—who also investigated the matter
involving K.M.S. and her half-sibling—refuted appellant's characterization
that the investigator said appellant was not a danger to the children.
Appellant never provided any admissible evidence refuting the
investigator's characterization of events, despite claiming that he had such
evidence. Thus, we conclude that substantial evidence supports the district
court's finding on this issue. See Ogawa v. Ogawa, 125 Nev. 660, 668, 221
P.3d 699, 704 (2009) (observing that a district court's factual findings will
be upheld if they are supported by substantial evidence and are not clearly
erroneous); Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007)
(explaining that it is the district court's role when acting as the fact finder
to weigh evidence and determine witness credibility).
Next, appellant argues that the district court erred by denying
his motion for a stay while his criminal appeal proceeded. "A court must
decide whether to stay civil proceedings in the face of parallel criminal
proceedings in light of the particular circumstances and competing interests
involved in the case." Fed. Sat). & Loan Ins. Corp. v. Molinaro, 889 F.2d
899, 902 (9th Cir. 1989) (further explaining the factors relevant to these
determinations, including whether there is an overlap between criminal
and civil cases, and whether such an overlap implicates a party's Fifth
Amendment rights). Because a "child's permanency and stability are of the
utmost importance, and the child should not be denied stability while
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waiting for the parent to address the issues that led to the child's removal,"
we conclude that the district court did not abuse its discretion by denying
appellant's motion for a stay. Matter of MML., Jr., 133 Nev. 147, 150, 393
P.3d 1079, 1082 (2017) (holding that a parent's interest in resolving the
issues that led to the child's removal do not override a child's interest in
permanency and stability); see Aspen Fin. Servs., 128 Nev. at 651, 289 P.3d
at 211 (reviewing an order resolving a motion for a stay for an abuse of
discretion); see also Molinaro, 889 F.2d at 902 ("While a district court may
stay civil proceedings pending the outcome of parallel criminal proceedings,
such action is not required by the Constitution.").
Appellant also argues that the district court erroneously
ignored his proffered evidence at trial. Appellant attempted to introduce
evidence regarding the domestic violence conviction, including a video
recording and a police report. However, appellant failed to call any
witnesses to authenticate or corroborate this evidence. As such, appellant's
evidence constituted inadmissible hearsay, see NRS 51.035 (defining
inadmissible hearsay); 2 McCormick on Evid. § 216 (8th ed. 2020 update)
(explaining the hearsay dangers presented by unscripted recordings, and
why these forms of evidence are "not a 'transparent version of reality"), and
the district court thus did not abuse its discretion by excluding it, see M.C.
Multi-Fam. Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 193
P.3d 536, 544 (2008) ("We review a district court's decision to admit or
exclude evidence for abuse of discretion, and we will not interfere with the
district court's exercise of its discretion absent a showing of palpable
abuse.").
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Finally, appellant argues that the district court erred by
granting the guardianship, but he does not identify any errors in the
procedure the district court employed or in its appointment of a guardian
under NRS Chapter 159A. Thus, we conclude that the district court did not
abuse its discretion in granting the paternal grandmother's petition for
appointment of guardianship of K.M.S. See In re Guardianship of N.M.,
131 Nev. 751, 758, 358 P.3d 216, 220 (2015) (reviewing a district court's
appointment of guardianship for an abuse of discretion). Accordingly, we
ORDER the judgment of the district court AFFIRMED.7
, J. Sr.J.
Hardesty
cc: Hon. Robert Teuton, District Judge, Family Court Division
Kwame A.S.
Law Office of Africa A. Sanchez, Esq., LLC
Clark County District Attorney/Juvenile Division
Eighth District Court Clerk
Barbara Buckley
Snell & Wilmer, LLP
Anne R. Traum
7The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
7