IN RE: PARENTAL RIGHTS AS TO T.M.R. , 2021 NV 23 ( 2021 )

137 Nev., Advance Opinion 23
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 81032
RIGHTS AS TO T.M.R., A MINOR
UNDER 18 YEARS OF AGE.
MARCUS STEVEN H.,
Appellant, FLED
vs.
MAY 2 7 2021
STATE OF NEVADA DEPARTMENT
EL17'
OF FAMILY SERVICES; AND T.M.R., A CLOW
MINOR, BY
rtIEF DEPUre CLERK
Respondents.
Appeal from a district court order terminating parental rights
as to a minor child. Eighth Judicial District Court, Family Division, Clark
County; Robert Teuton, Judge.
Affirmed.
Karen A. Connolly, Ltd., and Karen A. Connolly, Las Vegas,
for Appellant.
Steven B. Wolfson, District Attorney, and Felicia R. Quinlan, Deputy
District Attorney, Clark County,
for Respondent State of Nevada Department of Family Services.
Legal Aid Center of Southern Nevada, Inc., and Patrick M. Hirsch, Las
Vegas,
for Respondent T.M.R.
BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and
SILVER, JJ.
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OPINION
By the Court, SILVER, J.:
The termination of parental rights in a civil case is akin to the
death penalty in a criminal case. In these cases no less than in other civil
cases, it is of the utmost importance that the State comply with the rules of
procedure. Thus, in parental rights cases, the State must follow procedural
rules involving the disclosure of trial witnesses prior to trial.
Here, the State sought to terminate appellant's parental rights,
and the case proceeded to trial. The State did not disclose a nonexpert
witness until after the trial had commenced. Nevertheless, the district
court allowed the witness to testify at trial, concluding that the nonexpert
witness disclosure requirements in NRCP 16.2(e)(4)1 do not apply to
termination of parental rights proceedings. At the conclusion of trial, the
district court terminated appellant's parental rights.
1NRCP 16.2(e)(4) provides for the pretrial disclosure of nonexpert
witnesses:
Nonexpert Witness. A party must disclose the
name and, if known, the address and telephone
number of each individual who has information or
knowledge relevant to the value of assets or debts or
to the claims or defenses set forth in the pleadings, or
who may be called as a witness, at any stage of the
proceedings, including for impeachment or rebuttal,
identifying the subjects of the information and a brief
description of the testimony for which the individual
may be called. Absent a court order or written
stipulation of the parties, a party must not be allowed
to call a witness at trial who has not been disclosed at
least 45 days before trial.
2
In this opinion, we conclude that the nonexpert witness notice
requirements in NRCP 16.2 apply to termination of parental rights
proceedings. Although ambiguous when viewed in isolation, when read "in
pari materia," it is clear that NRCP 16.1, 16.2, and 16.205 were intended to
work together to cover the entire range of civil proceedings, including
termination of parental rights proceedings. Indeed, reading these rules
otherwise would produce an absurd result, permitting trial by ambush
despite the profound interests at stake in such proceedings. We therefore
hold the district court's failure to apply NRCP 16.2(e)(4)'s mandate
regarding disclosure of witnesses was error. We conclude, however, that
the error was harmless in this instance, as substantial evidence supports
the district court's order terminating appellant's parental rights.
Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Appellant Marcus H. and Dana B. are respondent T.M.R.'s birth
parents. While T.M.R. was an infant, Marcus and Dana lived with Dana's
100-year-old great-grandmother, Gladys S. During a fight between Marcus
and Dana, Marcus hit Gladys in the face and damaged her home. As a
result of this incident, several charges were filed. Marcus ultimately
pleaded guilty to felony coercion and was sentenced to a minimum of 24
months and a maximum of 60 months in prison.
Meanwhile, Dana was arrested for driving while under the
influence, while texting on a cell phone, without a driver's license, and with
T.M.R. improperly restrained in the vehicle. Because both parents were
incarcerated, the Department of Family Services (DFS) placed T.M.R. into
protective custody and later placed him with a foster family. A caseworker
began talking to Marcus about reunification with T.M.R. and created a
formal case plan requiring Marcus to complete treatments for anger
3
management, drug addiction, and domestic violence, as well as regular
assessments regarding domestic violence.
Thereafter, DFS petitioned to terminate Marcus's and Dana's
parental rights. At the time of trial, T.M.R. was three years old and had
been in foster care for over a year.2 Marcus, his DFS caseworker, and
T.M.R.'s foster mother each testified. While Marcus admitted to prior drug-
related convictions, Marcus denied having a substance abuse issue and
blamed his relapses on Dana's drug use. Marcus also testified that he was
not an angry person and had never before been in trouble for violent
behavior. When asked about the incident with Gladys, Marcus testified
that Gladys blocked his path, threw a bowl of milk in his face, and yelled at
him to hit her in an effort to get him arrested.
Marcus's DFS caseworker testified that she created a case plan
addressing his violent behavior and substance abuse. She testified that
although Marcus was not in custody prior to sentencing in his felony case,
he had not made timely progress on his case plan. Instead, during the time
that Marcus was out of custody, he tested positive on one drug test and
refused to submit to multiple other drug tests, all while minimizing his bad
behaviors. T.M.R.'s foster mother testified that T.M.R. exhibited aggressive
behaviors around and towards her (but not around or towards his foster
father) when he first joined their family, and these behaviors reoccurred
whenever T.M.R. returned from visiting his parents. The foster mother
added that T.M.R.'s behavior had greatly improved with time and therapy.
She further testified that T.M.R. did not recognize Marcus when they spoke
2A1though the trial involved termination of both Marcus's and Dana's
parental rights, this opinion addresses only the proceedings regarding
Marcus.
4
on the telephone. Importantly, she stated that T.M.R. had bonded with his
foster family, and they wanted to adopt him.
At the close of the first day of trial, the parties discussed the
States request to admit a transcript of Gladys's testimony, taken during
the State's criminal case against Marcus, about the altercation with
Marcus. Marcus objected to admission of the transcript. The district court
declined to rule on the issue at that time and continued the trial. Prior to
trial resuming, the State filed a notice naming Gladys as a witness. Marcus
filed a motion in limine to exclude Gladys on the grounds that she was not
timely disclosed pursuant to NRCP 16.2. The district court denied Marcus's
motion, concluding NRCP 16.2s nonexpert witness disclosure requirements
do not apply to termination of parental rights proceedings. The court
further determined that although the State improperly noticed Gladys's
prior criminal testimony as an exhibit, Marcus had "sufficient notice?
Thereafter, Gladys testified about the altercation with Marcus.
At the conclusion of trial, the district court terminated Marcus's
parental rights. The court concluded that termination was in T.M.R.'s best
interests and that parental fault existed because T.M.R. had been out of the
home for more than 14 months, seen significant behavioral improvements,
and bonded with his foster family, and because Marcus had engaged in only
"token efforts to avoid being [an] unfit parent or to eliminate the risk of
serious physical, mental or emotional injury" to T.M.R., who faced a serious
risk of physical, mental, or emotional injury if returned to Marcus's care,
and failed to adjust his behavior or substantially comply with his case plan.
DISCUSSION
Marcus appeals, arguing that the district court erred by
denying his motion in limine to exclude Gladys's testimony and that the
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court's decision to terminate his parental rights is not supported by
substantial evidence.
The purpose of Nevada's termination of parental rights statute
is to protect the child's welfare, not pimish parents. In re Parental Rights
as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014). Nevertheless, we
recognize that terminating parental rights is "tantamount to imposition of
a civil death penalty," and we therefore closely scrutinize the district court's
decision to terminate parental rights. Id. (internal quotation marks
omitted). We first address whether the district court erred by failing to
apply NRCP 16.2s witness disclosure requirement to Marcus's termination
of parental rights proceeding before considering whether reversal is
warranted.
NRCP 16.2s witness disclosure requirements apply to termination of
parental rights proceedings
Generally, we review the district court's decision to grant or
deny a motion in limine to exclude evidence for an abuse of discretion. State
ex rel. Dep't of Hightvays v. Neu. Aggregates & Asphalt Co., 92 Nev. 370, 376,
551 P.2d 1095, 1098 (1976). However, the district court's interpretation of
a statute or rule presents a question of law that we review de novo. See
Zohar v. Zbiegien, 130 Nev. 733, 737, 334 P.3d 402, 405 (2014).
Termination of parental rights proceedings are governed by the
Nevada Rules of Civil Procedure. NRS 128.090(2). But the rules fail to
clearly account for disclosure requirements in such proceedings. NRS
3.223(1)(a) establishes that "the family court has original, exclusive
jurisdiction" in proceedings brought pursuant to NRS Chapter 128, which
governs the termination of parental rights. Actions under the exclusive
jurisdiction of the family court are exempt from NRCP 16.1s initial
disclosure requirements. NRCP 16.1(a)(1)(B)(i). The drafters of this rule
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indicated that "ftjamily law actions are subject to the mandatory disclosure
requirements of Rule 16.2 and Rule 16.205." See NRCP 16.1, Advisory
Committee Note-2019 Amendment. However, while NRCP 16.2 is titled
"Mandatory Prejudgment Discovery Requirements in Family Law Actions"
(subject to exceptions not at issue here), its text lists specific areas of family
law and does not include termination of parental rights actions:
(a) Applicability. This rule replaces Rule
16.1 in all divorce, annulment, separate
maintenance, and dissolution of domestic
partnership actions. Nothing in this rule precludes
a party from conducting discovery under any other
of these rules.
Similarly, NRCP 16.205 "replaces [NRCP] 16.1 and 16.2 in all paternity and
custody actions between unmarried parties," but does not expressly apply
to termination of parental rights actions. NRCP 16.205(a). In sum, it is
unclear which rule applies to termination of parental rights actions.
To resolve this ambiguity, we read these rules "in pari materia."
Rules are "in pari materie where "they involve the same classes of persons
or things or seek to accomplish the same purpose or object." State, Div. of
Ins. v. State Farm Mut. Auto. Ins. Co., 116 Nev. 290, 294, 995 P.2d 482, 485
(2000) (interpreting NRS 687B.385). Interpreted "in pari materia," NRCP
16.1, 16.2, and 16.205 "must be read and construed together, and so
harmonized as to give effect to [each of] them . . . ." Presson v. Presson, 38
Nev. 203, 208, 147 P. 1081, 1082 (1915).
Here, NRCP 16.1, 16.2, and 16.205 collectively provide witness
disclosure requirements for civil proceedings. NRCP 16.1 governs most civil
proceedings but not family law proceedings, and NRCP 16.2 and 16.205
cover family law proceedings. Neither NRCP 16.1 nor NRCP 16.205 directly
governs here, however, as NRCP 16.1 exempts termination of parental
7
rights actions from its purview, and NRCP 16.205 applies narrowly to
paternity and custody actions between unmarried persons. Although
arguably imprecise when viewed granularly, the unmistakable thrust of
NRCP 16.1, 16.2, and 16.205, read together, is to broadly cover the gamut
of civil proceedings. It follows that NRCP 16.2 must apply to termination
proceedings to the extent practicable.
Pertinent here, we conclude that when read "in pari materia,"
NRCP 16.2(e)(4)'s witness disclosure requirement applies to termination of
parental rights trials.3 In reaching this conclusion, we note that separately
construing NRCP 16.1, 16.2, and 16.205 in a vacuum and concluding that
no part of any of those rules applies to termination of parental rights trials
would lead to an absurd result—that of enabling the State to ambush a
parent during trial with a surprise witness. See State v. Webster, 102 Nev.
450, 453, 726 P.2d 831, 833 (1986) ("[S]tatutory construction should always
avoid an absurd result."); cf. Turner v. State, 136 Nev., Adv. Op. 62, 473
P.3d 438, 447 (2020) (addressing trial by ambush). Such a result would also
frustrate the goals of the statutory scheme established in NRS Chapter 128.
See In re Parental Rights as to C.C.A., 128 Nev. 166, 169, 273 P.3d 852, 854
(2012) (noting that "to guard the rights of the parent and the child, the
Nevada Legislature has created a statutory scheme intended to assure that
parental rights are not erroneously terminated and that the child's needs
3We clarify that NRCP 16.2(e)(4) applies where a termination of
parental rights petition proceeds to trial and that it requires a party to
disclose witnesses 45 days prior to trial. We acknowledge that not all of
NRCP 16.2 applies to all termination of parental rights proceedings. In
particular, we note NRCP 16.2(c), which requires financial disclosures, does
not apply.
8
are protected"). Therefore, the district court erred by concluding that NRCP
16.2 does not apply in this situation.4
Despite the State filing a notice listing multiple trial witnesses
and indicating its intent to admit Gladys's deposition testimony as an
exhibit at trial, and despite its filing of an affidavit for service by publication
for Gladys more than four months before trial, the State failed to actually
notice Gladys as a witness for trial. The States complete failure to notice
Gladys as a witness contravened NRCP 16.2(e)(4).5 This was improper,
particularly given that Marcus faced termination of his parental rights—
the equivalent of the civil death penalty. We therefore conclude that the
district court abused its discretion by failing to exclude Gladys's testimony
pursuant to NRCP 16.2.
Nevertheless, the error does not warrant reversal if it is
harmless and did not affect Marcus's substantial rights. See NRCP 37(c)(1);
NRCP 61. We therefore next consider whether, exclusive of Gladys's
unnoticed testimony, substantial evidence supports the district court's
termination of Marcus's parental rights.
Substantial evidence supports the district court's termination of Marcus's
parental rights despite the admission of Gladys's unnoticed testimony
Marcus argues that substantial evidence does not support a
finding of parental fault or that termination was in T.M.R.'s best interests,
pointing to evidence in the record that is favorable to him. However, we do
We are unpersuaded by the States argument that NRCP 16.2s
4
witness disclosure requirements conflict with NRS Chapter 432B.
5We note that the State failed to disclose any of its witnesses 45 days
before trial began in accordance with NRCP 16.2(e)(4), but Marcus objected
only to the States failure to disclose Gladys. Therefore, we address only the
States failure to disclose Gladys.
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not reweigh the evidence on appeal or substitute our judgment for the
district court's, see In re Parental Rights as to A.J.G., 122 Nev. 1418, 1423,
148 P.3d 759, 763 (2006), and we "will uphold the district court's
termination order when it is supported by substantial evidence." C.C.A.,
128 Nev. at 169, 273 P.3d at 854. Substantial evidence "is evidence that a
reasonable person may accept as adequate to sustain a judgment." Ellis v.
Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007).
"The primary consideration in any proceeding to terminate
parental rights must be whether the best interests of the child will be served
by the termination." NRS 128.105(1). Termination of parental rights must
be based upon two findings: first, that it is in the child's best interests; and
second, that parental fault exists. NRS 128.105(1)(a)-(b). Parental fault
includes the failure of parental adjustrnent, mere token efforts to care for
the child, and risk of injury to the child if he or she is returned to the parent.
NRS 128.105(1)(b).
Marcus failed to rebut the presumption that termination of his
parental rights was in T.M.R.'s best interests
When a child has resided outside of his or her home pursuant
to a placement under NRS Chapter 432B "for 14 months of any 20
consecutive months, the best interests of the child must be presumed to be
served by the termination of parental rights." NRS 128.109(2). To rebut
this presumption, the parent must establish that termination is not in the
child's best interests by a preponderance of the evidence. In re J.D.N., 128
Nev. 462, 471, 283 P.3d 842, 848 (2012). To determine whether the parent
has rebutted the presumption, courts consider (1) "Mlle services . . . offered
to the parent . . . to facilitate a reunion with the chilcr, (2) "Mlle physical,
mental or emotional condition and needs of the chile; (3) " [t] he effort the
parent . . . made to adjust their circumstances, conduct or conditions to
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make it in the child's best interests to return the child to his or her home
after a reasonable length of time; and (4) "[w]hether additional services
would be likely to bring about lasting parental adjustment enabling a
return of the child to the parent . . within a predictable period." NRS
128.107; see also J.D.N., 128 Nev. at 474, 283 P.3d at 850 ("When the
petitioner has demonstrated that NRS 128.109s presumptions apply, the
burden to present evidence regarding NRS 128.107s factors lies with the
parent."). "[R]egular visitation or other contact with the child which was
designed and carried out in a plan to reunite the child with the parent" can
indicate the parent made the requisite effort to adjust their circumstances.
NRS 128.107(3)(b). Additionally, "[i]f the child was placed in a foster home,
the district court must consider whether the child has become integrated
into the foster family and the familys willingness to be a permanent
placement." Matter of S.L., 134 Nev. 490, 497, 422 P.3d 1253, 1259 (2018);
see NRS 128.108 (imposing additional considerations where the child is
living in a foster home).
Here, the presumption in favor of termination of Marcus's
parental rights applies because T.M.R. was placed in a foster home and
lived outside Marcus's home for over 14 months. Therefore, the burden
shifted to Marcus to rebut the presumption. The child's needs "for proper
physical, mental and emotional growth and development are the decisive
considerations in proceedings for termination of parental rights." NRS
128.005(2)(c). The record shows that Marcus's home environment was
chaotic and that T.M.R.'s behavior improved after DFS placed him with his
foster family. T.M.R. bonded with his foster family, who wanted to adopt
him, and he did not recognize Marcus while talking to him on the telephone.
Moreover, Marcus's testimony shows he was unable to provide for T.M.R.'s
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needs within a reasonable amount of time. He admitted to being in prison
following an altercation with Gladys, and he testified he was ineligible for
parole until over three years after T.M.R. was placed into protective
custody.
Further, the record supports the district court's conclusion that
when Marcus was not in custody prior to sentencing, he failed to adjust his
conduct and behavior to make a safe environment for T.M.R.: Marcus
minimized his illicit drug use, considered Dana's illicit drug use to be more
serious than his own, blamed her for his relapses, and refused to take drug
tests requested by DFS. The record further shows that Marcus minimized
his angry behavior and failed to show improvement in that area. Finally,
Marcus did not timely comply with his case plan or make improvements as
necessary to create a safe and stable environment for T.M.R. Therefore, we
conclude that substantial evidence supports the district court's finding that
Marcus failed to rebut the presumption in favor of termination and that
termination of his parental rights was in T.M.R.'s best interests.
The record supports the court's parental fault findings
As noted, in addition to finding that the child's best interests
would be served by terminating parental rights, the district court must find
parental fault under at least one of the factors enumerated in NRS
128.105(1)(b). Relevant here, the district court may find parental fault if
the parent demonstrates "RI ailure of parental adjustment." NRS
128.105(1)(b)(4). Failure of parental adjustment occurs when a parent,
within a reasonable time, is unwilling or unable to substantially correct the
circumstances that led to the child being placed outside of the home. NRS
128.0126.
Here, Marcus began discussing the issues precluding T.M.R.
from being returned to his care with his caseworkers six months before the
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formal adoption of his case plan, yet when he was out of custody prior to
sentencing, he failed to complete the domestic violence treatment required
by his case plan.6 Then, only after sentencing and incarceration did Marcus
complete anger-management therapy. And at trial he refused to
acknowledge that he had any anger issues. The testimony of Marcus and
his caseworker indicates that Marcus refused to take responsibility for his
altercation with Gladys, blaming her instead. Although Marcus attended
substance abuse treatment, he did not believe he had an issue with
controlled substances—even though at trial he admitted to "social use" of
methamphetamine, admitted that he failed to submit numerous drug tests
requested by DFS, and conceded that he relapsed into drug abuse.
Importantly, Marcus blamed Dana for his drug abuse relapses instead of
taking responsibility. Based on the foregoing, we conclude that substantial
evidence supports the district court's finding of failure of parental
adjustment.7
To be sure, the district court's improper admission of Gladys's
unnoticed testimony placed Marcus in the difficult position of suddenly
having to prepare for an unanticipated witness. We are confident, however,
that the error was harmless given the substantial, if not overwhelming,
6To the extent Marcus argues that DFS failed to make reasonable
efforts to promote reunification, we decline to address that argument, as
Marcus raises it for the first time on appeal. See Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).
7Because substantial evidence supports the district court's findings of
failure of parental adjustment, we need not address whether the evidence
also supports the district court's findings of risk of injury and token efforts.
See In re Parental Rights as to K.D.L. , 118 Nev. 737, 744-45, 58 P.3d 181,
186 (2002) (explaining that the district court must find that at least one of
the factors in NRS 128.105 exists to support a finding of parental fault).
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evidence supporting the district coures termination of Marcus's parental
rights.8
CONCLUSION
NRCP 16.2s nonexpert witness disclosure requirements apply
to termination of parental rights cases. Thus, the district court erred by
denying Marcus's motion in limine to exclude an unnoticed nonexpert
witness during trial. The error was harmless, however, because substantial
evidence supports terminating Marcus's parental rights, even without the
witness's testimony. Therefore, we affirm the district court's order
terminating Marcus's parental rights.
J.
Silver
We concur:
Parraguirre
J.
Stiglich
8We do not consider Marcus's argument that termination of his
parental rights was fundamentally unfair and violated his due process
rights, as Marcus failed to present a cogent argument supported by relevant
authority. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38 (2006).
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