IN RE: PARENTAL RIGHTS AS TO L.L.S.

137 Nev., Advance Opinion 22
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 79124
RIGHTS AS TO L.L.S., A MINOR.
TAHJA L.,
Appellant,
Nan
VS.
MAY 2 7 2021
STATE OF NEVADA DEPARTMENT
EU F $ T A. DROWN
OF FAMILY SERVICES; AND L.L.S., CLERY i ?RENE COURT
Respondents. BY
iiIcF DEPUTY CLERK
Appeal from a district court order terminating parental rights.
Eighth Judicial District Court, Family Division, Clark County; Bryce C.
Duckworth, Judge.
Reversed and remanded.
The Grigsby Law Group and Abira Grigsby, Las Vegas,
for Appellant.
Steven B. Wolfson, District Attorney, and Candice Saip, Deputy District
Attorney, Clark County,
for Respondent State of Nevada Department of Family Services.
Lewis Roca Rothgerber Christie LLP and Abraham G. Smith and Daniel F.
Polsenberg, Las Vegas; Legal Aid Center of Southern Nevada, Inc., and
Dewey Fowler, Jr., Las Vegas,
for Respondent L.L.S.
BEFORE THE COURT EN BANC.
21- /curl
OPINION
By the Court, STIGLICH, J.:
This case requires us to decide whether a hearing master may
preside over a termination of parental rights (TPR) trial. The Nevada
Legislature has provided that masters may preside over certain proceedings
in the district court. In TPR proceedings pursuant to NRS Chapter 432B,
the matter must be conducted by a "court." Under NRS 62A.180(2), a
hearing master may constitute a court in this sense when the juvenile court
delegates authority for the master to perform a role in accordance with the
Nevada Constitution. Resolution of this appeal turns on whether having a
hearing master preside over the trial in a TPR proceeding satisfies the due
process requirements enshrined in the Nevada Constitution.
Balancing the fundamental importance of the rights at stake in
a TPR trial and the profound consequences of an erroneous deprivation of
those rights against the minimal value to the State of inserting an extra
layer between the parties and the ultimate decision maker, we hold that
due process requires the TPR trial to be heard before a district judge in the
first instance. Central to this holding is our conclusion that when a trial
takes place before a hearing master, a district judge's subsequent review of
the trial record is not sufficient to safeguard the rights of the parent and
child against the uniquely grave consequence of the permanent loss of
parental rights. Because a master cannot preside over a TPR trial pursuant
to NRS Chapter 432B without infringing on a parent's constitutional right
to procedural due process, the master is not statutorily authorized to serve
the role that the Legislature requires to be conducted by a "court." Rather,
the district judge must perform that function. Accordingly, because the
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juvenile court erred in delegating that role to a hearing master in the
proceedings below, we reverse and remand for a new TPR proceeding.
FACTS AND PROCEDURAL HISTORY
Appellant Tahja L. was still a teenager when she brought her
then six-month-old daughter, L.L.S., into a Department of Family Services
(DFS) facility. Tahja intended to temporarily place L.L.S. with DFS,
pursuant to NRS 432B.360, while she completed her high school education.
Tahja lacked the family and financial resources to care for L.L.S. and was
concerned about her ability to provide adequate care for L.L.S. while
attending school. A DFS representative explained child care options and
the difficulties Tahja could face regaining custody should she surrender
L.L.S. Tahja reiterated that she believed L.L.S. would be better off in DFS
custody.
Shortly after Tahja surrendered her daughter, DFS filed a
petition under NRS 432B.330 alleging that the child was in need of
protection due to neglect. The matter was assigned to juvenile dependency
Hearing Master David Gibson. Tahja pleaded no contest, and DFS placed
L.L.S. in foster care outside the home. DFS designed a case plan to reunify
Tahja and L.L.S. But DFS was dissatisfied with Tahja's progress under
that case plan, and so it shifted the case plan from reunification to
termination of parental rights and eventual adoption.
DFS sought to terminate Tahja's parental rights as to L.L.S. by
filing a motion within the ongoing NRS Chapter 432B proceedings. Hearing
Master Gibson was assigned to conduct the trial and to produce findings
and recommendations regarding the TPR motion. L.L.S. objected that a
district judge, not a hearing master, should conduct the trial. Tahja did not
join this objection.
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The juvenile court thoroughly considered L.L.S.'s objection and
denied it by written order. The court held that it had the power to appoint
any qualified person as a master and that it could order the master to
conduct proceedings in the same manner as a district judge would, including
taking evidence and making findings of fact and recommendations. It
concluded that the TPR petition was brought under NRS Chapter 432B and
that it had statutory authority to delegate the hearing to a master because
the term "juvenile court" includes a master to whom the juvenile court
delegates authority. Cf. NRS 62A.180(2). The court further considered
Eighth Judicial District Court Rules contemplating the use of masters in
juvenile dependency cases and the Eighth Judicial District Court's "one-
family-one-judge" policy that required holding the TPR proceeding before
the same hearing master previously assigned to the case. Lastly, the court
concluded that NRCP 53, which governs the appointments of hearing
masters in general, permitted the assignment, as the one-family-one-judge
rule, limited judicial resources, and "best practicee constituted "exceptional
conditions" justifying the appointment of a master.
Before the trial took place, however, Hearing Master Gibson
was elevated to the bench, becoming District Judge Gibson. The clerk then
reassigned the matter to Hearing Master Holly Roys. The master heard
from several witnesses, considered the exhibits and orders filed in the NRS
Chapter 432B proceedings, and recommended terminating Tahja's parental
rights.
Tahja objected to Hearing Master Roys findings and
recommendations but did not specifically request a trial de novo. The
juvenile court, through Judge Bryce C. Duckworth, held a hearing on the
objection and offered the parties an opportunity to present additional
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evidence, but the parties did not offer new evidence. After the hearing, the
juvenile court entered an order rejecting Tahja's challenges and
terminating her parental rights. The court noted that it—not the hearing
master—held the sole constitutional power of decision.
By all indications, the court took its responsibility seriously.
Although it took no new evidence, it conducted a thorough review of the
record before it, including viewing the video of the entire trial proceedings.
Judge Duckworth explicitly stated that he "observe[d] issues pertaining to
the credibility and demeanor of each witness who testified." The court
ultimately found, based on the record, that clear and convincing evidence
supported the conclusion that termination of Tahja's parental rights was in
L.L.S.'s best interests.
Tahja appealed. She now argues that the juvenile court lacked
authority to appoint a master to preside over the trial in the TPR
proceeding. L.L.S. agrees, consistent with her prior position.
DISCUSSION
Both statutes and court rules may have a role to play in the
inquiry into whether a master may hear a case. But these statutes and
iWe disagree with our dissenting colleagues and conclude that the
issue was properly preserved for appeal. See In re E.R. Fegert, Inc., 887
F.2d 955, 957 (9th Cir. 1.989) ("There is no bright-line rule to determine
whether a matter has been properly raised. A workable standard, however,
is that the argument must be raised sufficiently for the trial court to rule
on it." (internal citations omitted)); cf. Schuck v. Signature Flight Support
of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 545 (2010) (finding issue
waived because "neither [the opposing party] nor the district court had the
opportunity to address" it). It is true that Lujan did not join L.L.S.'s
objection below to the use of a hearing master, and we generally decline to
consider "point[s] not urged in the trial court." Old Aztec Mine, Inc. v.
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court rules must be consistent with the constitution. The dispositive issue
here is whether the proceedings before the hearing master, followed by the
juvenile court's review, provided Tahja and L.L.S. with due process. We
conclude that they did not. We do not fault the juvenile court's careful and
thoughtful review of the record. But this sort of trial by video-recording is
not congruent with the gravity of the rights at issue and is not justified by
a sufficient state interest.
A juvenile court is statutorily authorized to appoint a master if and only if
the appointment is constitutional
Tahja argues that the juvenile court lacked authority to appoint
a hearing master to preside over the TPR trial. The Nevada Constitution
allows the Legislature to "provide by law for . . . [1] eferees in district
courts." Nev. Const. art. 6, § 6(2)(a); cf. NRCP 53(a)(1) (providing that
referees are masters). The Legislature has repeatedly exercised this
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). But this point was not
only "urged" below, but also decided in a thoroughly reasoned order after a
hearing. And as the juvenile court had already rejected the argument that
the master was not authorized to preside, our conclusion is not affected by
L.L.S. declining to reassert her challenge to the master's role after the
master made her report. Cf Fuentes v. Shevin, 407 U.S. 67, 94 n.31 (1972)
("Mn the civil no less than the criminal area, courts indulge every
reasonable presumption against waiver [of procedural due process rights]."
(internal quotation marks omitted)); Landes Constr. Co., Inc. v. Royal Bank
of Can., 833 F.2d 1365, 1370 (9th Cir. 1987) ("As long as a party properly
raises an issue of law before the case goes to the jury, it need not include
the issue in a motion for a directed verdict in order to preserve the question
on appeal."). The purpose of the waiver rule is to prevent issues from being
raised for the first time on appeal. This ensures a proper division of trial
and appellate functions, maintains judicial efficiency, and gives fair notice
to other parties. See Schuek, 126 Nev. at 437, 245 P.3d at 544.
6
authority by enacting laws permitting rnasters to act as referees in district
courts. See Henry v. Nev. Comm'n on Judicial Discipline, 135 Nev, 34, 36,
435 P.3d 659, 661 (2019) (recognizing the Legislature's constitutional
authorization to provide for masters).
The Legislature, however, has provided that TPR proceedings
under NRS Chapter 432B are to be conducted by the "court." See generally
NRS 432B.5901-.5908. "Court," in NRS Chapter 432B, has the same
meaning as "juvenile court" in NRS Chapter 62A. See NRS 432B.050. And
under NRS 62A.180, a "juvenile court" includes a master only if "Et)he
juvenile court delegates authority to the master to perform [a specific] act
in accordance with the Constitution of the State of Nevada." NRS
62A.180(2)(a) (emphasis added).2 Accordingly, a master may constitute a
"court" in this context and preside over a TPR proceeding only if the exercise
of that authority does not violate a parent's constitutional rights.
As discussed below, having a hearing master preside over
Tahja's TPR trial violated her right to due process. Therefore, the master
did not perform that function in accordance with the constitution, and the
master did not constitute a "court" for purposes of NRS 62A.180 and NRS
432B.5901-.5908. Consequently, a district judge, not a master, must
2The dissent's reliance on NRS 62A.180 and NRS 4328.050 is
misguided. Its reasoning entails that a master would only constitute a court
to which authority might be delegated after it had already received and
exercised that authority. This circular reasoning cannot support
disregarding whether its exercise accords with the state constitution.
Relatedly, NRS 62B.030s statement of acts a master may perform is
irrelevant, because such considerations arise only if the master may preside
over a given proceeding. And the dissent's invocation of local court rules for
an authority to delegate is no more persuasive, as the local rules cannot
salvage the deficiency that the master is not statutorily a "court" here, as
concluded below.
7
preside over the trial of a TPR proceeding conducted pursuant to NRS
432B.5901-.5908.
Due process does not permit the juvenile court to delegate TPR trials to a
master
The Nevada Constitution states that Ink) person shall be
deprived of life, liberty, or property, without due process of law." Nev.
Const. art. 1, § 8(2); see also U.S. Const. amend. XIV(1). In analyzing the
analogous provision of the federal constitution, the United States Supreme
Court has recognized the "fundamental liberty interest of natural parents
in the care, custody, and management of their chile and explained that
"[e]ven when blood relationships are strained, parents retain a vital interest
in preventing the irretrievable destruction of their family life." Santosky v.
Kramer, 455 U.S. 745, 753 (1982). Accordingly, "due process requires states
to provide parents with fundamentally fair procedures in parental
termination proceedings." In re Parental Rights as to ALF., 132 Nev. 209,
212, 371 P.3d 995, 998 (2016).
This court applies the three-part test outlined in Mathews v.
Eldridge, 424 U.S. 319, 335 (1976), when we consider whether a TPR trial
complied with due process. In re Parental Rights as to M.M.L., Jr., 133 Nev.
147, 149-52, 393 P.3d 1079, 1081-83 (2017); In re M.F., 132 Nev. at 213-14,
371 P.3d at 998-99. The Mathews test requires us to carefully "consider and
balance (1) the parent's interest and (2) the risk of erroneous deprivation
against (3) the government's interest." In re M.M.L., 133 Nev. at 150, 393
P.3d at 1081. We review constitutional issues such as a parent's right to
due process in a termination proceeding de novo. In re M.F., 132 Nev. at
212, 371 P.3d at 997.
First, the parent's interest is as strong as can be. We have
recognized the gravity of a TPR proceeding in particular, stating that "the
8
termination of parental rights is an exercise of awesome power that is
tantamount to imposition of a civil death penalty." In re Parental Rights as
to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014) (internal quotation
marks omitted). Just as "there is no doubt that death is different?' from
other possible consequences imposed for criminal acts, see Ring v. Arizona,
536 U.S. 584, 605-06 (2002) (internal quotation marks and alteration
omitted), there is no doubt that the permanent termination of parental
rights is different from any lesser consequence of family-law litigation.
Consistent with these principles, the Legislature has recognized that TPR
proceedings are "a matter of such importance in order to safeguard the
rights of parent and child as to require judicial determination." NRS
128.005(2)(a). Therefore, we conclude—as we have before—that "[a]
parenes interest in the accuracy and justice of the decision to terminate his
or her parental status is . . . a commanding one." In re M.F., 132 Nev. at
213, 371 P.3d at 998 (quoting Santosky, 455 U.S. at 759).
In order to properly analyze the second and third factors, we
must briefly review what a hearing master is and does. A hearing master
is a person appointed by a court to preside over certain matters in place of
a judge. A master is usually if not always an attorney. See, e.g., EDCR
1.46(a)(3) (requiring juvenile hearing masters to be members in good
standing with the State Bar). A master must of course be impartial, see
NRCP 53(b)(3)-(4), and juvenile hearing masters are required to attend a
course designed for the training of new judges, see NRS 62B.020(3). We
have no doubt that masters are typically both competent and careful.
But no matter how neutral and qualified a master may be, it
remains that he or she is not a judge and "does not possess the same powers
conferred to a juvenile court judge through Article 6, Section 6 of the Nevada
9
Constitution." In re A.B., 128 Nev. 764, 770-71, 291 P.3d 122, 127 (2012).
Therefore, absent a stipulation of the parties, see NRCP 53(a)(2)(A), (b)(1),
a master's findings are not binding and are subject to review by the court,
see NRCP 53(0(2)(A). While the judge should "give serious consideration to
the master's findings of fact and recommendation"—if not, there would be
no point in having a master at all—Itl he judge may not transfer his or her
judicial decision-making power to a master." In re A.B., 128 Nev. at 771,
291 P.3d at 127.
Accordingly, after receiving a master's report, a juvenile court
first "review[s] the evidence and testimony presented to the master." Id.
While the judge may rely on the master's findings that are supported by
credible evidence and not clearly wrong, the judge may also choose to order
de novo fact-finding. Id.; see NRS 62B.030(4); NRCP 53(0(2). "Once the
court determines the applicable facts," it must then "exercise its
independent judgment to determine, based on the facts and the law, the
case's proper resolution." In re A.B., 128 Nev. at 771, 291 P.3d at 127.
This two-step approach runs afoul of the second and the third
prongs of the Mathews analysis. Regarding the risk of an erroneous
deprivation, we find it troubling that when the juvenile court does not order
de novo fact-finding, parents must argue their case and present evidence to
a hearing master who does not hold the ultimate power of decision. The
district judge, who holds that power, does not see the parties face-to-face
but generally makes the decision based on evidence presented to another.
Without disparaging the juvenile court's efforts in making an independent
judgment, we think it is clear that inserting an additional layer of insulation
between the litigants and the decisionmaker tends to lessen, not improve,
the quality of the decision.
10
This does not mean that the use of masters is always or even
usually invalid. As noted above, we presume that masters are competent,
careful, and impartial and that district judges conscientiously review the
record before them. In the great run of cases, the risk of an erroneous
deprivation is likely to be eclipsed by the other two Mathews factors.
But turning our attention to that third factor, it is plain that
this is not among the great run of cases. We conclude that, given the
uniquely serious nature of TPR proceedings, the State's interests in using
masters are insufficient to justify the use of a method of adjudication that
is less reliable than a trial before the district judge in the first instance.
First, we consider the government's interest in efficiency, i.e.,
in avoiding the "fiscal and administrative burdens that the additional or
substitute procedural requirement would entail." See Mathews, 424 U.S. at
335. Relatedly, the government undoubtedly has an important "interest
both in obtaining a speedy resolution and, more importantly, in protecting
the child's best interests, including obtaining a permanent home for the
child."3 In re M.M.L., 133 Nev. at 151, 393 P.3d at 1082. Accordingly, we
have held that a district court is not necessarily required to grant a
continuance in a TPR trial when the parent has been previously deemed
3The dissent misrepresents L.L.S.'s desires in suggesting that her sole
concern is for a quick resolution of this case. L.L.S.'s brief makes plain her
goal of preserving the parental bond. The dissent has mischaracterized her
wishes by resting its characterization on one statement in her objection to
the use of a master, taken out of context, without consideration of L.L.S.'s
other representations.
And insofar as the dissent elects to discuss and reject several claims
for relief that are not considered in or relevant to this disposition, such
discussion need not be addressed further precisely because it is not material
to resolving this appeal.
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incompetent to stand for a criminal trial, as potentially indefinite
continuances would prejudice those important interests. Id. Similarly, in
In re Parental Rights as to M.F., we held that a parent was not entitled to a
jury trial, as opposed to a bench trial. 132 Nev. at 214, 371 P.3d at 999. We
noted that "conservation of judicial resourcee was a "compelling interest"
weighing against requiring jury trials. Id. at 213, 371 P.3d at 998. It goes
without saying that jury trials may be "complex and expensive." See
Aftercare of Clark Cty. v. Justice Court of Las Vegas Twp., 120 Nev. 1, 9, 82
P.3d 931, 936 (2004).
Those cases are distinguishable. Compared to the efficiencies
obtained by denying indefinite continuances, or by holding a bench trial as
opposed to a jury trial, we see little to no efficiency gained by having a
master preside over a TPR trial. The juvenile court is still required to
thoroughly review the evidence, including the possibility of de novo fact-
finding, and to exercise its independent judgment. I71 re A.B., 128 Nev. at
771, 291 P.3d at 127. Indeed, the facts here provide a striking example of
the inefficiency of this two-step proceeding, as the district judge watched
the entire trial recording in order to make a decision. By requiring the trial
to initially take place before a master before review by a district judge, the
litigation is often prolonged.
Of course, if the parties accept the hearing master's findings
and recommendations, then the judge's review may be streamlined. In
those cases, permitting masters to preside at a TPR trial may facilitate
resolutions because searching judicial review is not required. Expeditious
resolutions serve an important government interest. In re M.M.L., 133 Nev.
at 151, 393 P.3d at 1082. As we are well familiar with the Eighth Judicial
12
District's meteoric growth in population and docket congestion, we give this
factor some weight.4 But this does not outweigh the other Mathews factors.
Our confidence in this determination is strengthened by the
Legislature's recent choice to increase the number of family court judges in
the Eighth Judicial District from 20 to 26. 2019 Nev. Stat., ch. 483, § 4, at
2870 (amending NRS 3.0185). Certain comments made during the hearings
on this statutory amendment are too salient to ignore. Specifically, the
Chief Judge of the Eighth Judicial District Court told the Legislature that
we are looking for three judges to eliminate the use
of hearing masters in the time-sensitive area of
dependency. This deals with kids who have come
into the foster care system because their parents
are unable to take care of them. We have excellent
hearing masters; however, due to the structure,
when a hearing master makes a decision, there is an
objection period, and that causes delays in an area
where we really cannot afford to delay things for
these vulnerable children. We are therefore looking
for three judges to replace those hearing masters,
for a total of six new judges.
Hearing on A.B. 43 Before the Senate Judiciary Comm., 80th Leg. (Nev.,
June 2, 2019) (emphases added). These statements reinforce the conclusion
4We note that where no statute authorizes the appointment of a
master, "Malendar congestion, complex issues of fact and law, and
prospectively lengthy trials do not provide 'exceptional conditions for a
reference" under NRCP 53(a)(2)(C)(i). Russell v. Thompson, 96 Nev, 830,
835-36, 619 P.2d 537, 540 (1980). Where the Legislature expressly
authorizes a referral to a master, relieving calendar congestion may be a
valid state interest that should be considered under Mathews' third prong.
Here, in contrast, relieving congestion is insufficient to justify a reference
in a TPR trial, as the rights at stake are almost uniquely serious. We
express no opinion as to whether it might suffice in a different class of cases.
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that, as a practical matter, hearing masters do not in fact make the system
significantly more efficient.
In summary, Mathews requires us to balance countervailing
interests to decide whether the process afforded is commensurate with the
importance of the interests at stake. Weighing the foregoing factors, we
conclude that having a hearing master preside over the trial in a TPR
proceeding violates due process. Even assuming without deciding that the
need to relieve the court's docket congestion might justify the appointment
of masters in other cases, termination of parental rights is different. TPR
trials must be treated with the gravity and solemnity appropriate to the
seriousness of their consequences. Assigning these trials to hearing
masters, even when the results are reviewed by a judge, reflects an
apparent view that these trials are less important and deserve less process.
Nothing could be further from the truth.5
Accordingly, we conclude that the juvenile court violated
Tahja's right to due process when it assigned a hearing master to preside
over the TPR trial. As a result, the master did not qualify as a "court," see
5The dissent relies too heavily on the juvenile court's thorough efforts
to review the record in this instance and pays insufficient heed to the
sufficiency of the process in general for such proceedings. Cf Walters v.
Nat'l As.s'n of Radiation Survivors, 473 U.S. 305, 321 (1985) ("[T]he very
nature of the due process inquiry indicates that the fundamental fairness
of a particular procedure does not turn on the result obtained in any
individual case; rather, 'procedural due process rules are shaped by the risk
of error inherent in the truth-finding process as applied to the generality of
cases, not the rare exceptions."' (quoting Mathews, 424 U.S. at 344));
Santosky, 455 U.S. at 757 ("Retrospective case-by-case review cannot
preserve fundamental fairness when a class of proceedings is governed by a
constitutionally defective evidentiary standard.").
14
NRS 62A.180, and the trial was not held in compliance with the provisions
in NRS Chapter 432B. See NRS 432B.5901-.5908.
CONCLUSION
TPR trials involve determining whether to deprive a person of
one of his or her most fundamental rights. While the Legislature has
authorized juvenile courts to appoint hearing masters in many cases, it has
expressly conditioned this authority on the constitutionality of the
appointment. Therefore, we conclude that masters may not be appointed to
preside in TPR trials. Accordingly, here, the district judge was required to
hear the TPR trial in the first instance. While we commend the juvenile
court for its efforts to analyze the record as thoroughly as possible, those
efforts ultimately cannot cure this error. We reverse and remand for
proceedings consistent with this disposition.
, J.
Stiglich
We concur:
a A.,,A J.
Parraguirre
Silver
J.
Herndon
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PICKERING, J., with whom HARDESTY, C.J., and CAD1SH, J., agree,
dissenting:
This court should affirm the district court's decision to
terminate appellant Tahja L.'s parental rights as to respondent L.L.S. The
district court referred the hearing on the termination of Tahja's parental
rights to a master, and Tahja did not object. The evidence at that
termination of parental rights (TPR) hearing showed that L.L.S., then not
even three years old, had been in foster care for the preceding two years.
Under NRS 128.109, this evidence triggered mandatory presumptions, both
of parental fault and that termination was in L.L.S.'s best interests.
Tahja had counsel at the TPR hearing, yet despite this evidence
and the statutory presumptions it raised, she called no witnesses and did
not herself testify. Thereafter, the hearing master entered written findings
and recommendations, which included a recommendation that the district
judge terminate Tahja's parental rights. At that point, under NRS
62B.030(3) & (4)(c) and EDCR 1.46(g)(7), Tahja had the right to request a
hearing de novo before the district judge. She did not do so, thereby waiving
the right. She also declined the district judge's invitation to supplement the
evidence.
On this record, no basis exists to reverse and remand for
another TPR hearing in this long-running NRS Chapter 432B case. Not
only did Tahja not object when the district court referred her case to the
master, she subsequently voluntarily waived the very process that the
majority now says she was due—the opportunity to present live witness
testimony to a district judge. And, although the majority suggests
otherwise, L.L.S.'s prehearing objection to the master presiding does not
salvage Tahja's case. L.L.S.'s objection did not concern due process or
Tahja's interests; it spoke to L.L.S.'s interest in achieving permanency
without risk of undue appellate delay. Nearly two years later, the majority's
reversal and remand to repeat the TPR hearing all over again makes the
child's feared risk a reality. Respectfully, I dissent.
I.
A brief review of the procedural facts provides helpful context.
As the majority notes, respondent Clark County Department of Family
Services (DFS) filed the motion seeking to terminate Tahja's parental rights
as to L.L.S. under NRS 432B.5901, in Tahja's and L.L.S.'s ongoing NRS
Chapter 432B abuse and neglect proceeding. Because the same juvenile
dependency hearing master, David Gibson, had presided over the matter to
that point, the supervising district judge also assigned Master Gibson to
conduct the evidentiary hearing and make a report and recommendations
to the district court on the TPR motion. The order assigning Master Gibson
advised that "each party is entitled . . . to request the termination of
parental rights issue [be] heard before a District Judge . . . no later than 30
days from the entry of th[e] Order" and that failure to do so "constitutes a
waiver of any claim that the assigned Hearing Master lacks the ability to
hear your Termination of Parental Rights action." Notably, Tahja did not
object to this assignment.
As discussed infra Part III, L.L.S. did file a timely prehearing
objection to the notice of the master's assignment. After briefing, the
district judge overruled L.L.S.'s objection, citing the Eighth Judicial District
1The district judge charged with supervising the Eighth Judicial
District Court juvenile dependency and delinquency hearing masters in this
case was at all relevant times Judge Bryce C. Duckworth, who entered the
interim orders and final TPR judgment at issue here.
2
Court's one family/one judge policy and Master Gibson's deep familiarity
with the parties, having presided over 14 of the parties 15 NRS Chapter
432B hearings over the preceding two years. But before the evidentiary
hearing occurred, then-Master Gibson was elevated to district judge, and
the clerk assigned the matter to a new hearing master. Still Tahja did not
object, L.L.S. did not renew her objection, and the hearing proceeded under
the stewardship of the newly appointed master.
The master took testimony from multiple DFS witnesses and
considered the exhibits and prior orders filed in the NRS Chapter 4328
proceeding. Tahja called no witnesses and declined to testify, though the
master advised her she had the right to do so if she wished. Following the
hearing, the master entered written findings and recommended that the
district court terminate Tahja's parental rights. Tahja objected to the
findings and recommendations as "clearly erroneous," but still did not
assign error in a master having presided over the evidentiary hearing; nor
did she request a hearing de novo before the district judge, as NRS
62B.030(3) & (4)(c) and EDCR 1.46(g)(7) entitled her to do.
The district judge then set Tahja's objections for hearing. At
the hearing, the district judge confirmed that the child, L.L.S., had not
objected to the master's findings and recommendations and asked Tahja's
counsel (and L.L.S.'s separate counsel) if either wanted to present
supplemental evidence. Both declined, and the district judge took the
matter under submission. A lengthy written order followed, in which the
district judge recited that he had reviewed the entirety of the TPR hearing
record—including the videorecorded testimony of six key witnesses. The
order summarized the testimonial and written evidence, made the requisite
findings of fact and conclusions of law, rejected Tahja's objections to the
3
master's findings and recommendations, and vested custody and control of
L.L.S. in DFS with authority to place her for adoption.
Tahja timely appealed, but still did not raise any due process
challenge to the appointment of a master. Instead, Tahja reasserts her
challenge to the sufficiency of the evidence to support termination and
raises, for the first time, a statute- and equal-protection-based challenge to
the master having presided over the TPR hearing. Consistent with her oft-
stated desire to avoid litigation delay, L.L.S. did not file a notice of appeal.
As respondent, L.L.S. filed an answering brief purporting to support Tahja's
request for reversal, to which DFS, as L.L.S.'s co-respondent, did not and
had no right of reply.
Setting aside, for the moment, the unprompted due process
analysis undertaken by the majority under Mathews v. Eldridge, 424 U.S.
319 (1976), there simply is no merit to the challenges Tahja raises on
appeal—substantial evidence supports the district judge's TPR order, and
the district court had statutory and rule-based authority to employ the
master in the manner that it did.2 For these reasons, this court should
affirm.
2 Tahja makes a third argument on appeal: She tried to voluntarily
surrender L.L.S. to DFS under NRS 432B.360, so DFS should not have
initiated a petition under NRS 432B.330. This argument fails because
Tahja pleaded "no contest" to DFS's NRS Chapter 4328 petition and did not
tender the voluntary surrender issue to the district court. See Old Aztec
Mine, Inc. u. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (stating that
a point not raised in the district court is generally "deemed to have been
waived and will not be considered on appeal").
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(Ow 1947A *step
A.
"A party petitioning to terminate parental rights must establish
by clear and convincing evidence that (1) termination is in the child's best
interest, and (2) parental fault exists." In re Parental Rights as to A.J.G.,
122 Nev. 1418, 1423, 148 P.3d 759, 762 (2006). Tahja argues that the
district judge erred by finding that termination was in L.L.S.'s best interest
and that parental fault exists. Because the termination of parental rights
is "an exercise of awesome power," In re Termination of Parental Rights as
to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000) (internal quotation
omitted), this court "closely scrutinize[s] whether the district court properly
preserved or terminated the parental rights at issue." A.J.G., 122 Nev. at
1423, 148 P.3d at 763 (internal quotation omitted). But, when reviewing
the district court's factual findings for substantial evidence, this court "will
not substitute [itsl own judgment for that of the district court." Id.Here, the presumptions established by the uncontroverted
evidence and the lack of rebuttal evidence afford little, if any, appellate
leeway. As to the child's best interest, there is a presumption that
termination is in her best interest when she has resided outside the home
for 14 of 20 consecutive months. NRS 128.109(2). As to parental fault,
under NRS 128.109(1)(a), there is a presumption that a parent is making
only "token efforts" if a child is outside the home for 14 of 20 consecutive
months. And under Section (1)(b) of the same statute, there is a
presumption of failure of parental adjustment if that parent does not comply
with the terms of the case plan within six months.
By the time the TPR hearing took place, L.L.S. had been
continuously out of her mother's custody for 24 months, with only the
briefest of exceptions, and caseworkers testified that Tahja made limited
5
progress on her case plan (more than 18 months after its adoption). Thus,
the presumptions established by NRS 128.109 applied, including the
presumption that termination is in L.L.S.'s best interest. "Once the
presumption applies, the parent has the burden to offer evidence to
overcome the presumption that termination of his or her rights is in the
child's best interest." A.J.G., 122 Nev. at 1426, 148 P.3d at 764. But Tahja
did not testify at the hearing or present evidence or witnesses of her own.
She relied instead on the witnesses DFS called, whose testimony
established and largely supported the statutory presumptions as to L.L.S.'s
best interest and parental fault (token efforts and failure of parental
adjustment). Then, after the master submitted her findings and
termination recommendation—citing NRS 128.109, the presumptions that
DFS established under it, and Tahja's failure to rebut them—Tahja neither
requested a hearing de novo nor accepted the district judge's invitation to
supplement the evidence. With no request for a hearing before the district
judge and no proffer of unadmitted evidence, Tahja is not entitled to a "do
over."
B.
In their briefs on appeal, both Tahja and L.L.S. challenge the
district court's statutory and rule-based authority to use a hearing master
to take evidence and make findings of fact and recommendations in a
contested TPR hearing. It is questionable whether this issue is even
properly before us. Only Tahja filed a notice of appeal, and she did not
question the master's assignment in any way, shape, or form in the court
below. As for L.L.S., she did not file a notice of appeal. And, although L.L.S.
objected to the initial order assigning the TPR hearing to then-Master
Gibson, she did not object to the findings and recommendations, request a
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IO Iv47A
de novo hearing, or file a notice of appeal. Nor did she return to the
supervising district judge, Judge Duckworth, to ask that he reconsider his
denial of her objection after Master Gibson became a district judge. This
omission is significant because Judge Duckworth based his order upholding
the assignment in significant part on the district court's one family/one
judge policy and Master Gibson's having presided over the parties NRS
Chapter 432B proceeding from the start.
But, even apart from these waiver and preserved-error
problems, the challenge still fails: Nevada statutes and court rules
expressly authorize the family court division of the Eighth Judicial District
Court to use hearing masters in juvenile dependency and delinquency
matters, including contested TPR proceedings. DFS filed its motion to
terminate Tahja's parental rights under NRS 432B.5901. Proceedings to
terminate parental rights under NRS 432B.5901 through NRS 432B.5908
are conducted by the "court." The word "court," as used in NRS Chapter
432B, "has the meaning ascribed to it in NRS 62A.180." NRS 432B.050; see
NRS 432B.010. And, by its terms, NRS 62A.180 defines "coure to include
masters:
1. "Juvenile court" means each district judge
who is assigned to serve as a judge of the juvenile
court pursuant to NRS 62B.010 or court rule.
2. The term includes a master who is
performing an act on behalf of the juvenile court if:
(a) The juvenile court delegates authority to
the master to perform the act in accordance with the
Constitution of the State of Nevada; and
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PA 1947A ADITI)
(b) The master performs the act within the
limits of the authority delegated to the master.
(emphases added).3
NRS 62B.020 specifies the training that a master of the juvenile
court must complete. Addressing the scope of the delegation permitted,
NRS 62B.030(1) permits the district court to order a juvenile court master
to:
(a) Swear witnesses.
(b) Take evidence.
(c) Make findings of fact and
recommendations.
(d) Conduct all proceedings before the master
of the juvenile court in the same manner as a
district judge conducts proceedings in a district
court.
NRS 62B.030(3) and (4) lay out the processes whereby the parties can object
and the district court must review the master's findings and
recommendations, including the right of the parties "to request a hearing
de novo before the [district] court" and the authority of the reviewing
district judge to approve or reject the findings and recommendations, in
whole or in part, to order such relief as may be appropriate, and "to direct a
hearing de nove upon timely request therefor.
3The majority parses NRS 62A.180 to support its argument that
unconstitutional assignments are not legislatively authorized. But this
goes without saying. A more reasonable reading of NRS 62A.180 is that the
delegation must not amount to an unconstitutional abdication of
adjudicative function to a nonconstitutional officer—an issue NRS 62B.030
and EDCR 1.45 and 1.46 obviate by the objection and review process they
prescribe. See In re A.B., 128 Nev. 764, 291 P.3d 122 (2012); see also
discussion infra Part III.
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In addition to the statutes just cited, the district court relied on
EDCR 1.45 and 1.46 to support its referral of the TPR hearing to a master.
These local rules authorize the Eighth Judicial District Court to appoint
hearing masters in Clark County juvenile dependency cases, including
proceedings to terminate parental rights, whether conducted under NRS
Chapter 128 or NRS Chapter 432B. Thus, by its express terms, EDCR
1.45(a)(1) states: "The juvenile dependency division judge
must . . . [s]upervise the activities of the juvenile dependency division
hearing masters . . . in the performance of their duties pursuant to NRS
Chapters 432B and 128." (emphasis added). While NRS Chapter 432B
addresses a range of juvenile dependency proceedings, NRS Chapter 128
solely addresses the termination of parental rights. EDCR 1.46(b) "derive[s]
from NRS Chapter 432B" and authorizes dependency masters "to hear
protective custody matters, pleas, adjudicatory hearings, [and]
dispositions . . . followed by recommendations to the supervising
dependency judge." EDCR 1.46(b)(1) (emphasis added); see EDCR
1.46(b)(3)-(9) (enumerating additional duties and powers). Under EDCR
1.46(g)(7), the district judge hears all objections to the master's findings and
recommendations and may conduct a trial de novo. And EDCR 1.46(b)'s
enumeration of powers "is not a limitation of powers of the family division
dependency master. The dependency masters have all the inherent powers
of the Dependency Judge subject to the approval of the Dependency Judge."
(emphasis added).
Though the majority opinion elides any mention of these Eighth
Judicial District Court local rules, they have been in place—and approved
by this court—for more than 40 years. See In the Matter of the Adoption of
New Rules of Practice for the Eighth Judicial Dist. Court of the State of Nev.,
9
ADKT 30 (Order, December 18, 1980), Rule L46, at 8-9 (providing for
juvenile court referees). This court adopted and approved EDCR 1.45 and
EDCR 1.46 in their current form after the notice and public hearing
required by NRS 2.120(2) and NRCP 83. See In the Matter of the
Amendment of Eighth Judicial Dist. Court Rules, ADKT 418 (Order
Amending Eighth Judicial District Court Rules, June 29, 2011) (amending,
inter alia, EDCR 1.45 and 1.46); cf. State v. Frederick, 129 Nev. 251, 254,
299 P.3d 372, 374 (2013) (addressing EDCR 1.48, another standing referral
rule, and its approval by this court).
By their plain terms, these statutes and court rules authorized
the district court's referral order and its rejection of L.L.S.'s objection
thereto. Nonetheless, Tahja and L.L.S. argue that the authorization only
applies to other types of juvenile dependency matters, not TPR proceedings,
and that without express legislative authority to use masters in TPR
hearings, the referral violates the Nevada Constitution. They predicate
their argument on this court's unpublished decision in In re Parental Rights
of KJ.B., Docket No. 71515 (Order of Reversal and Remand, Jan. 18, 2018).
K.J.B. was an appeal from a TPR order in an NRS Chapter 128
case. In K.J.B., the district court referred the evidentiary hearing to a
master and then adopted the master's findings and recommendations as its
own. We reversed and remanded, citing article 6, section 6(2)(a) of the
Nevada Constitution, which provides that "Mlle legislature may provide by
law for . . . [r]eferees in district courts." KJ.B., Docket No. 71515 (Order of
Reversal and Remand, Jan. 18, 2018). Specifically, because "[t]he
termination of parental rights is governed by NRS Chapter 128 and there
is no statute within that chapter providing for the appointment of a referee
or master," the court deemed the reference to a master unauthorized and
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CM I447AEtc>
reversed and remanded for a new hearing before a district judge. Id. Of
note, KJ.B. arose under NRS Chapter 128, not NRS Chapter 432B, the
appellant in KJ.B. was proceeding pro se; and neither NRS Chapter 432B,
EDCR 1.45, nor EDCR 1.46 was addressed.
As an unpublished disposition, K.J.B. does not establish
mandatory precedent. See NRAP 36(c)(2). And, for purposes of this appeal,
it is not necessary to resolve whether EDCR 1.45 and EDCR 1.46 authorize
the referral of TPR petitions under NRS Chapter 128 to hearing masters4—
by its terms, EDCR 1.45(a)(1) says that they do—but preservation issues
aside, this appeal does involve whether NRS Chapter 432B, EDCR 1.45, and
EDCR 1.46 authorize their use in TPR proceedings initiated under NRS
Chapter 432B. They plainly do. And, to the extent K.J.B. suggests that the
judicial branch needs explicit legislative authorization to refer matters to a
master by order or court rule—beyond that already provided by NRS
62A.180, NRS 62B.020, NRS 62B.030, and NRS 432B.050—it is incorrect.
Article 6, section 6(2)(a) was added to the Nevada Constitution in 1986 to
increase the Legislatures authority: "The legislature may provide by law
4Tahja argues allowing referral to masters in NRS Chapter 432B but
not in NRS Chapter 128 TPR proceedings violates her right to equal
protection under the Fourteenth Amendment to the U.S. Constitution. The
briefing on this issue is inadequate, and Tahja concedes rational basis
review applies. An NRS Chapter 432B hearing master's presumed
familiarity with the family and the prior proceedings on the antecedent
petition to declare the child in need of protection is enough to clear this low
bar, even though, in this case, the master familiar with Tahja and L.L.S.
did not end up presiding over the TPR hearing. See Sereika v. State, 114
Nev. 142, 149, 955 P.2d 175, 179 (1998) ("If any state of facts may
reasonably be conceived to justify [the legislation], a statut[e] . . . will not
be set aside." (alteration in original) (quoting State v. Eighth Judicial Dist.
Court, 101 Nev. 658, 662, 708 P.2d 1022, 1025 (1985))).
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10) 1317A eliPID
for . . [r]eferees in district courts." (emphasis added). But neither the text
nor the history of this provision supports that it diminishes the judiciary's
preexisting and inherent authority to appoint referees and masters when
appropriate. See Nevada Ballot Questions 1986, Nevada Secretary of State,
Question No. 2 (noting as an argument for passage that "Mlle proposed
amendment would allow the legislature to expand the use of referees to
assist judges in district courts").
Tahja's and L.L.S.'s suggestion that the referral to the master
in this case violated NRCP 53 also fails. As written at the time relevant to
this proceeding, NRCP 53 referred only to special masters, appointed in a
particular case for a particular purpose.5 It did not address standing
referrals under local rules such as EDCR 1.45 and EDCR 1.46. And, apart
from the standing referrals in those rules, because the order overruling
L.L.S.'s prehearing objection to the master referral relied on Master
Gibson's extensive involvement in the prior proceedings and intimate
knowledge of the case, it provided the exceptional circumstances required
to justify referral to a special master under NRCP 53. Although Master
Gibson was elevated to the district court bench before the hearing occurred,
neither L.L.S. nor Tahja called the change in master to the attention of the
district judge, so the NRCP 53 special master referral stands.
5The Nevada Rules of Civil Procedure were amended effective March
1, 2019. See In re Creating a Comm. to Update & Revise the Nev. Rules of
Civil Procedure, ADKT 0522 (Order Amending the Rules of Civil Procedure,
the Rules of Appellate Procedure, and the Nevada Electronic Filing and
Conversion Rules, December 31, 2018). As amended, NRCP 53(h) expressly
provides for "standine masters, in addition to "special" masters.
12
III.
A.
As laid out above, Tahja offered no evidence or testimony in the
original hearing before the master and then declined to pursue a de novo
hearing or to present supplemental evidence before the district judge.
Regardless of whether a TPR hearing before a master in the first instance
is constitutionally adequate, a hearing de novo before the district judge by
definition would have been. See Hearing De Novo, Black's Law Dictionary
(11th ed. 2019) (defining the phrase as "[a] new hearing of a matter,
conducted as if the original hearing had not taken place"). And, where such
adequate procedures exist, a person cannot state a claim for denial of due
process if that person has elected to forgo the same. See Correa v. Nampa
Sch. Dist. No. 131, 645 F.2d 814, 817 (9th Cir. 1981); see also Suckle v.
Madison Gen. Hosp., 499 F.2d 1364, 1367 (7th Cir. 1974) (noting that
"Wudicial relief is not warranted where a plaintiff rejects a seemingly
adequate hearing"); cf Riggins v. Bd. of Regents of Univ. of Neb., 790 F.2d
707, 712 (8th Cir. 1986) (noting, where a plaintiff chose not to file a
grievance, that "[i]n so choosing, she waived any claim that the grievance
procedure did not afford her the process she was due"). In short, Tahja was
offered repeated opportunities to present her case, and in particular, the
chance to participate in a de novo hearing before the district judge—the very
same procedure that the majority seeks to impose on remand—but declined.
Accordingly, and necessarily, no due process problems arose.
Moreover, the majority justifies its reaching and resolving the
issue of Tahja's purported due process right to have a district judge preside
over her TPR hearing in the first instance based on L.L.S.'s objection to
Master Gibson's appointment in the district court. But this is error for two
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WI) 1947A 46*.
separate reasons. First, one party's prehearing objection to proceeding
before a master or magistrate does not excuse another party's post-hearing
failure to avail herself of the opportunity to present live testimony before a
district judge. Second, L.L.S.'s objections say nothing at all about due
process. They stemmed solely from "the concerns expressed by the Supreme
Court of Nevada [in] In re KJ.B [see discussion supra Section II.B]. . . . That
and nothing more is [L.L.S.'s] basis." Specifically, L.L.S. worried that
assigning the matter to a master could lead to laln appellate challenge
[that] will cause a significant delay in permanency, and delays in
permanency are undeniably harmful." Sadly, these concerns have proven
prescient. And, perhaps more troubling, the harm L.L.S. feared is now
inflicted without need: Tahja's affirmative waiver and the unpreserved
error take the due process issue that the majority tackles out of play; but,
even if the record were otherwise, on the merits, I cannot agree that the
referral to a master under the procedures in place in this case offended due
process.
B.
Beginning on ground fully shared—there is no dispute that
terminating parental rights profoundly affects the lives of the parties
involved. See, e.g., In re Parental Rights as to N.D.O., 121 Nev. 379, 384,
115 P.3d 223, 226 (2005). Still, this court has never before suggested that
the weight of the private parental interests at issue categorically demands
that the full scope of every judicial procedural protection must be in place.
See In re Parental Rights as to M.F., 132 Nev. 209, 215, 371 P.3d 995, 999
(2016) (holding that a TPR hearing is not a matter to which a right of jury
trial attaches); N.D.O., 121 Nev. at 384, 115 P.3d at 226 (recognizing that
due process does not require an absolute right to counsel in a TPR
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101 1947A ailiatz
proceeding). Indeed, while the majority looks to the State's interest in
appointing a master to hear TPR proceedings and reduces it to the "need to
relieve the court's docket congestion," this both ignores the valuable
familiarity a master may establish with parents and their child, see
Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537,
547 (9th Cir. 1984) (noting that "the legislature and the judiciary act
responsibly when they provide and explore new, flexible methods of
adjudication, especially where the evolution of the innovative mechanism is
left in large part under the control of the judiciary itself), and
misunderstands the fundamental premise of Mathews v. Eldridge—which
examines the private and public interests at stake in the underlying action
as a whole, not in the implementation of the challenged process standing
alone. 424 U.S. 319, 347-48 (1976) (noting that the public interest
"includes" the administrative burden of increased procedures but that alone
is not "controlline). Accordingly, as this court has previously and
repeatedly recognized, the State in fact has an interest of substantial
importance in any TPR hearing, which aligns with that of the subject
minor—namely, facilitating prompt and accurate decision-making so as to
protect children from abuse and neglect and "ensure that they have a stable
family life"—which interest "will almost invariably be [as] strong as the
parent's. N.D.O., 121 Nev. at 384, 115 P.3d at 226; see M.F., 132 Nev. at
213, 371 P.3d at 998 (stating that because "both [the State and the parent]
have compelling interests, the analysis turns on an evaluation of the risk
that the procedures used would have resulted in an erroneous decision").
Given the comparably weighted private and public interests in
the TPR process, this court has previously assessed its fundamental
fairness by looking to the third Eldridge factor—that is, the risk of an
15
erroneous deprivation of the private interest through the procedures used,
424 U.S. at 335—and closely examined the specific facts of the case in
question pursuant thereto. See N.D.O., 121 Nev. at 384, 115 P.3d at 226.
Here, as to this factor, the majority seems to suggest that the risk of error
in having a master initially hear the evidence stems from the district court's
"insulation" from observing the witnesses first hand; as noted above, it is
for this purpose that the majority rernands.
"To be sure, courts must always be sensitive to the problems of
making credibility determinations on the cold record." United States v.
Raddatz, 447 U.S. 667, 679 (1980). However, under NRS 62B.030(3)(c) and
EDCR 1.46(g)(5), a party has the right to object to the findings and
recommendations of the master (which Tahja did, but L.L.S. did not). And,
under NRS 62B.030(3)(d) and EDCR 1.46(g)(7), a party may request a
hearing de novo before the reviewing district judge (which neither Tahja
nor L.L.S. did). Taken together, these rules endow the district judge with
broad discretion to review a master's findings and recommendations, which
discretion would notably include its ability to hear the witnesses live should
it need to resolve conflicting credibility claims. See also In re A.B., 128 Nev.
764, 771, 291 P.3d 122, 127 (2012) (noting in the context of NRS Chapter
432B hearings that "[o]n review, the judge may order de novo fact-finding,
or alternatively, the judge may rely on the master's findings when the
findings are supported by credible evidence (internal quotation omitted)).
And with regard to Tahja's case in particular, the record was not necessarily
"cold"—the district judge was able to review the videorecorded testimony of
the witnesses in question. Moreover, and in any case, Tahja more than once
passed on the opportunity to present any evidence to the district judge first
hand.
16
The majority further suggests that the initial assignment of a
TPR case to a master somehow offers a parent "less process." But this is
fallacious. While generally the constitutional power of a final decision in
child custody and other like matters "can be exercised only by the duly
constituted judge, and . . . may not be delegated to a master or other
subordinate official of the court," A.B., 128 Nev. at 770, 291 P.3d at 127
(quoting Cosner v. Cosner, 78 Nev. 242, 245, 371 P.2d 278, 279 (1962)), the
provisions discussed above avoid any such infirmity in this process:
"[A]lthough a master has the authority to hear dependency cases and make
findings and recommendations, a master does not possess the same powers
conferred to a juvenile court judge . . . ." Id. at 770-71, 291 P.3d at 127.
That is, "only the juvenile court judge makes the dispositional decision in a
[juvenile dependency] matter." Id. at 771, 291 P.3d at 127; see id. at 770,
291 P.3d at 127 (citing EDCR 1.46 for the proposition that "[t]he final
determination of the case rests with the juvenile court"); see also NRS
62B.030(4). And here, the district court followed A.B. and the applicable
court rules and statutes by affording Tahja and L.L.S. the opportunity to
object and to request a de novo hearing after the master offered her findings
and recommendation and by reviewing the videorecorded evidentiary
hearing proceedings.
Simply put, then, given the procedural protections laid out
above and as applied, the district judges review "serve[d] to enhance
reliability and benefit [Tahja]." Raddatz, 447 U.S. at 684 (Blackmun, J.,
concurring). Put differently, Tahja was afforded procedures by which "a
neutral decisionmaker [the master], after seeing and hearing the
witnesses," rendered a decision against her. Id. Then, Tahja "received a
second turn before another neutral decisionmaker [the district judge]," with
17
whom she had the option to present her case entirely anew (though, as
noted, she affirmatively chose to rely on the record created before the
master in the first instance). Id. (emphasis added). 13y invalidating the
district court's long-standing hearing master program, the majority actually
reduces the process potentially available to a parent. And, because "such a
result would tend to undermine, rather than augment, accurate
decisionmaking," it ought not to be embraced under the guise of due process.
Id. at 685.
C.
Finally, undertaking to define Tahja's due process rights on this
record and these briefs is also unnecessarily high risk. While the majority
does not directly address EDCR 1.45 and 1.46, its decision effectively
invalidates their application in TPR cases and perhaps injects a question as
to their continued viability in other cases as well. A better course would be
to file an administrative docket petition to repeal or amend these rules as
applied to TPR proceedings under NRS Chapters 128 and 432B. An ADKT
forum would allow policy input from all stakeholders, avoiding uncertainty.
And a rule change would operate only prospectively, without potentially
jeopardizing past or pending decisions and throwing already-vulnerable
children back into a state of uncertain impermanence. This point has
special consequence in this case where L.L.S., the minor child, has only ever
asked for one thing: permanence, without unnecessary delay.
IV.
On this opaque record and without adequate briefing, we do not
know and cannot say whether the failure to raise a due process challenge in
district court or, in L.L.S.'s case, to continue to press her prehearing
objection to the appointment of a master was strategic, not inadvertent-
18
that is, a course Tahja and her counsel and L.L.S. and her separate counsel
intentionally established after careful deliberation. Cf. Pacemaker, 725
F.2d at 542 (noting that consent of the parties to a hearing by a magistrate
rather than a judge "eliminates constitutional objections"). And reasonable
minds may differ as to the wisdom of using masters in TPR proceedings.
But "great knowledge is a temptation as well as a resource: a temptation to
blur the separation of powers, to shift the balance between the . . . courts
and state and local government too far toward the courts, and to disregard
procedural niceties, all in fulfillment of a confident sense of mission."
United States v. Bd. of Sch. Comm'rs of the City of Indianapolis, 128 F.3d
507, 512 (7th Cir. 1997) (Posner, C.J.). And procedural safeguards—
including, for instance, those generally limiting precedential decisions to
issues actually pursued by the parties—relate to the very due process the
majority opinion purports to protect; such safeguards should be afforded.
See Jenkins v. State of Mo., 216 F.3d 720, 726 (8th Cir. 2000). And here,
where the only objection voiced in district court came prehearing and
concerned the risk of undue delay, not due process, the unfairness is
palpable.
Perhaps, if the process offered to Tahja had abruptly ceased
with a binding pronouncement by the master without an opportunity for the
district court's review; perhaps, if Tahja had objected to the appointment of
: the master—whether Master Gibson or any other—at any time before the
district court, or had done so cogently on appeal; perhaps, if Tahja or L.L.S.
had requested a de novo hearing or to offer live evidence and been rebuffed;
perhaps then the record could support that the TPR process established in
the Eighth Judicial District Court decades ago and approved by this court
19
was not fundainentally fair. But this is not that case, and in this case, the
record supports affirmance. Accordingly, I dissent.
J.
We concur:
-LA le_an
Hardesty
J.
Cadish
SUPREME COURT
OF
NEVADA
20
101lQ.7.4aSso