Marcus Steven H. v. Nev. Dep't of Family Servs. (In re M.R.)

Decision Date27 May 2021
Docket NumberNo. 81032,81032
Citation487 P.3d 783
Parties In the MATTER OF the Parental Rights as to T.M.R., a Minor Under 18 Years of Age. Marcus Steven H., Appellant, v. State of Nevada Department of Family Services; and T.M.R., a Minor, Respondents.
CourtNevada Supreme Court

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.

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.

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 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 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 State's 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 16.2 ’s 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 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 punish 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 16.2 ’s witness disclosure requirement to Marcus's termination of parental rights proceeding before considering whether reversal is warranted.

NRCP 16.2 ’s 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 Highways v. Nev. 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(l)(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 16.1 ’s initial disclosure requirements. NRCP 16.1(a)(l)(B)(i). The drafters of this rule indicated that "[f]amily 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 materia" 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...

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  • THE EMPTY PROMISE OF THE FOURTH AMENDMENT IN THE FAMILY REGULATION SYSTEM.
    • United States
    • Washington University Law Review Vol. 100 No. 4, April 2023
    • April 1, 2023
    ...970 N.W.2d 311, 314 (Iowa 2022); In re J.W., 645 S.W.3d 726, 751 (Tex. 2022); In re C.M., 255 A.3d 343, 362 (Pa. 2021); In re T.M.R., 487 P.3d 783, 785 (Nev. 2021); In re D.A., 862 N.E.2d 829, 832 (Ohio 2007); In re K.A.W., 133 S.W.3d 1, 12 (Mo. 2004); Erin Cloud, Rebecca Oyama & Lauren......

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