In Re: Parental Rights As To L.I. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 83673
RIGHTS AS TO: L.J., MINOR UNDER
\
18 YEARS OF AGE. \
FILED
CODY B.,
Appellant, AUG 11 2022
VS.
STATE OF NEVADA DEPARTMENT
OF FAMILY SERVICES; AND L.I.,
MINOR UNDER 18 YEARS OF AGE,
Respondents.
ORDER OF AFFIRMANCE
This appeal challenges a district court order terminating
parental rights. Eighth Judicial District Court, Family Court Division,
Clark County; Robert Teuton, Judge.! Appellant is the natural father of
L.I., a minor child, who was found to be the subject of neglect under NRS
Chapter 432B. After a termination of parental rights trial, the district court
terminated appellant’s parental rights, finding parental fault—failure to
adjust and token efforts—and that it was in L.I.’s best interest to remain
with the prospective adoptive family. On appeal, appellant argues several
issues warrant reversal, all of which lack merit as set forth below.
Appellant first argues that he had inadequate time with his
counsel to prepare for trial due to facility lockdowns and because he had
‘Having considered the pro se brief filed by appellant, we conclude
that a response is not necessary, NRAP 46A(c), and that oral argument is
not warranted, NRAP 34(f)(3). This appeal therefore has been decided
based on the pro se brief and the record. Id.
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only thirty minutes with counsel to prepare the day before trial.2 To the
extent appellant argues that he received ineffective assistance of counsel,
we disagree. “[T]he Fourteenth Amendment does not require the
appointment of counsel in all termination proceedings. In re Parental
Rights as to N.D.O., 121 Nev. 379, 383, 115 P.3d 223, 225 (2005). Instead,
“a court must balance the private interests at stake, the government’s
interest and the risk that the procedures used will lead to erroneous
decisions.” Id. Appellant and DFS both have a strong interest at stake in
these proceedings. Appellant has a strong interest because termination of
parental rights severs the parent-child relationship. But the State also has
a strong interest in protecting children from “neglect and ensur[ing] that
[L.I.] ha[s] a stable family life.” Id. at 384, 115 P.3d at 226.
Thus, we turn to the risk of an erroneous decision. We identify
no particular intricacies of appellant's case that would undermine
confidence in the result the district court reached. While cases requiring
expert testimony may be difficult to navigate without counsel, no expert
testimony was offered in appellant’s case. Jd. at 385, 115 P.3d at 227(holding that whether expert testimony is required is a relevant factor in
determining whether there was a high risk of an erroneous decision).
Moreover, appellant was present at the trial and was able to testify. Id.(holding that whether the parent is able to testify is a relevant consideration
2Notably, appellant does not challenge the district court’s substantive
findings on parental fault or on the child’s best interest. Nevertheless, we
conclude that substantial evidence supports the district court’s findings,
including witness testimony and judicial notice of facts such as appellant’s
incarcerations. See In re Termination of Parental Rights as to N.J., 116
Nev. 790, 795, 8 P.3d 126, 129 (2000) (“This court will uphold termination
orders based on substantial evidence, and will not substitute its own
judgment for that of the district court.”).
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for whether there was a high risk of an erroneous decision). And the
evidence supporting termination of parental rights included court-
mandated DFS reports reflecting neglect and no progress toward
reunification, as well as judicial notice of appellant’s criminal convictions
and incarcerations. As this evidence is admissible and not subject to
objection, we conclude that nothing in the record points to a high risk of an
incorrect decision. See id. at 384-85, 115 P.8d at 226 (holding that
statements appearing in court-mandated DFS reports are admissible
because they are already part of the district court record); In re Parental
Rights of J.L.N., 118 Nev. 621, 628, 55 P.3d 955, 960 (2002) (holding that,
in considering a parent’s incarceration in termination of parental rights
proceedings, “the district court must consider the nature of the crime, the
sentence imposed, who the crime was committed upon, the parent’s conduct
toward the child before and during incarceration, and the child’s specific
needs”). Balancing the foregoing, appellant did not have a right to counsel
in the district court and any ineffective-assistance-of-counsel claim
therefore necessarily fails. In re N.D.O., 121 Nev. at 386, 115 P.3d at 227(holding that without a right to counsel there can be no ineffective-
assistance-of-counsel claim).
To the extent appellant argues that the limited time he had
with his counsel violated his due process rights because he did not have
adequate time to prepare for trial, we also disagree. “[D]ue process requires
states to provide parents with fundamentally fair procedures in parental
termination proceedings.” In re Parental Rights as to M.F., 132 Nev. 209,
212, 371 P.3d 995, 998 (2016). As with the analysis for determining whether
a parent is constitutionally entitled to counsel, in order to determine
whether the proceedings comport with due process requirements, we apply
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a balancing test comprised of three factors: “(1) the private interest affected
by the proceeding, (2) the risk of error inherent in the state’s procedure, and
(3) the countervailing government interest.” Jd. at 212-13, 371 P.3d at 998.
Further, we recently held in addressing due process arguments regarding
measures taken during the COVID-19 pandemic that “[uJnusual, historic
circumstances can require unusual, temporary accommodations.”
Chaparro v. State, 137 Nev., Adv. Op. 68, 497 P.3d 1187, 1195 (2021). Here,
it appears that both parties have compelling interests because appellant
has an interest in the companionship, care, custody, and management of
L.I.; and the State had an interest in the public’s safety at a time when the
COVID-19 pandemic was ravaging the nation. Thus, the analysis turns on
an evaluation of the risk that the procedures used would have resulted in
an erroneous decision.
We conclude that appellant fails to demonstrate that there was
a high risk that the procedures implemented during the pandemic that he
complains of would have resulted in an erroneous decision. The record
reflects that the district court demonstrated familiarity with the rules of
evidence, the legal standards of a termination action, and the Nevada Rules
of Civil Procedure, and the court applied the correct standard of proof. See
In re M.F., 132 Nev. at 214, 371 P.3d at 999 (providing relevant factors for
determining whether the proceedings in a termination of parental rights
resulted in a high risk of an erroneous decision). Additionally, appellant
was given notice of the proceedings; was able to testify at trial; and was
represented by counsel during the proceedings, with whom he was able to
confer with privately even when incarcerated, despite having no
constitutional right to counsel, as explained above. See id. Also, as
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evidenced by the current appeal, appellant retained the right to appeal from
an adverse decision. See id.
Additionally, appellant fails to identify any additional evidence
he could have presented if he would have had more time with his counsel,
or why a thirty-minute meeting with counsel was inadequate for his counsel
to prepare his case. State v. Autry, 103 Nev. 552, 556, 746 P.2d 637, 640
(1987) (holding that “proof of prejudice is generally a necessary .. . element
of a due process claim” (internal quotation marks omitted)). Notably, the
record reflects that appellant did not participate in his case until the initial
hearing on the termination of parental rights on October 8, 2019, over a
year after he was summonsed to appear. It also reflects that there were
periods in which appellant was not incarcerated and he could have
attempted to prepare his case with counsel or comply with his case plan,
but he chose not to do so.3 And, as explained above, the evidence admitted
at trial, even if objected to, would have ultimately been admitted. Thus, we
conclude that he fails to demonstrate that this argument warrants reversal.
Reviewing for an abuse of discretion, we also reject appellant’s
final argument that the district court should have continued the trial. See
Zessman v. State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978) (holding that
“It]he matter of continuance is traditionally within the discretion of the trial
judge”). Appellant fails to demonstrate that the district court had a duty
under the circumstances to continue the trial absent a request to do so,
3For example, despite not being “in custody for any substantial period
of time between March 2018 and February 2019,” and despite being
released from a correctional housing facility for nearly two months before
being arrested again for burglary in January of 2020, the record does not
demonstrate that appellant made any attempts to prepare his case with
counsel or comply with his DFS case plan.
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especially considering the numerous previous continuances and appellant’s
initial lack of participation in the case. Moreover, while appellant moved
for a continuance before the February 12, 2021, trial date, he did not file
such a motion before the trial set for May 17, 2021. Thus, we conclude that
the district court did not abuse its discretion by not continuing the trial.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.4
(2. sa seer
Parra guirre
Silver , Gibbons.
cc: Hon. Robert Teuton, District Judge, Family Court Division
Cody B.
Clark County District Attorney/Juvenile Division
Legal Aid Center of Southern Nevada, Inc.
Eighth District Court Clerk
4The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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