Minors. Keaundra D. v. Clark Cnty. Dep't of Family Servs. (In re Rights)

• Decision Date: 05 October 2017
• Docket Number: No. 69047.,69047.
• Citation: 402 P.3d 1280
• Parties: In the MATTER OF the Parental Rights as to A.D.L. and C.L.B., Jr., minors. Keaundra D.; A.D.L.; and C.L.B., Jr., Appellants, v. Clark County Department of Family Services, Respondent.
• Court: Nevada Supreme Court

402 P.3d 1280

In the MATTER OF the Parental Rights as to A.D.L. and C.L.B., Jr., minors.

Keaundra D.; A.D.L.; and C.L.B., Jr., Appellants,

v.Clark County Department of Family Services, Respondent.

No. 69047.

Supreme Court of Nevada.

FILED OCTOBER 05, 2017

Rehearing Denied December 22, 2017

Legal Aid Center of Southern Nevada, Inc., and Christal L. Dixon, Las Vegas, for Appellants A.D.L. and C.L.B., Jr.

David M. Schieck, Special Public Defender, and Deanna M. Molinar and Melinda E. Simpkins, Deputy Special Public Defenders, Clark County, for Appellant Keaundra D.

Steven B. Wolfson, District Attorney, and Ronald L. Cordes, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

OPINION

By the Court, HARDESTY, J.:

In this opinion, we consider whether a parent's Fifth Amendment rights are violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights. We conclude that a parent cannot be compelled to admit to a crime under the threat of termination of parental rights.

Appellant Keaundra D. was required to admit to a criminal act for her to be considered in compliance with her case plan, which we conclude was a violation of her Fifth Amendment rights. Additionally, we conclude that Keaundra overcame the presumptions in NRS 128.109(1)–(2) that terminating parental rights was in the best interests of the children. In the absence of such presumptions, there was not substantial evidence supporting the district court's termination of Keaundra's parental rights. Accordingly, we reverse.

FACTS AND PROCEDURAL HISTORY¹

In April 2010, respondent Clark County Department of Family Services (DFS) received an anonymous call through its child abuse hotline alleging that Keaundra's children were being abused and neglected. The caller alleged that the face of Keaundra's infant child had been burned. During an interview with a DFS investigator, Keaundra stated that she was the only adult at home when C.L.B., Jr. was burned. Her two children, A.D.L. and C.L.B., Jr., were in the master bedroom while she was preparing for work in the attached bathroom. She had recently ironed her clothes and had placed the iron on her dresser. Keaundra heard the iron fall and when she came out to investigate, A.D.L. told her that C.L.B., Jr. had "tried to kiss the iron." Keaundra then called her mother, a nurse, who told her to put ointment on the injury and to take C.L.B., Jr. to the emergency room if the burn blistered.

Following the initial contact with DFS, Keaundra moved her family to Louisiana, where her father was stationed with the U.S. Air Force. Upon learning that Keaundra moved to Louisiana, DFS sought help from U.S. Air Force authorities to gain protective custody of the children. The children were removed from Keaundra's care, and C.L.B., Jr. was taken to see Dr. Thomas A. Neuman, a physician in Louisiana. Dr. Neuman reported that the injury was well healed and that there was no evidence of abuse.

In May 2010, DFS filed a petition for protective custody of A.L.D. and C.L.B., Jr. under NRS Chapter 432B, alleging that Keaundra had either physically abused or negligently supervised C.L.B., Jr. A plea hearing was held wherein Keaundra entered a denial, and DFS requested placement of the children with their maternal grandmother.

At a subsequent adjudicatory hearing, the hearing master took testimony from Dr. Neha Mehta, a medical examiner who had reviewed photographs of C.L.B., Jr.'s injuries. Dr. Mehta opined that the shape of the injury was not consistent with an accident and that the iron had been deliberately held to C.L.B., Jr.'s face. Keaundra offered Dr. Neuman's report to rebut Dr. Mehta's testimony. The hearing master excluded the report on the ground that the report was not a certified copy. The hearing master found that Keaundra had physically abused C.L.B., Jr., had medically neglected him, and had absconded. Based on those findings, the hearing master recommended sustaining the abuse and neglect petition and that A.D.L. and C.L.B., Jr. remain in DFS custody. The juvenile court affirmed the hearing master's recommendation and concluded that C.L.B., Jr.'s injury was nonaccidental.

In light of these findings, Keaundra received a case plan which required that she maintain stable housing and income, keep in contact with DFS, and complete parenting classes. She was also required to complete a physical abuse assessment and "be able to articulate in dialogue with the Specialist and therapist(s) the sequence of events which result[ed] in physical abuse, as sustained by the Court, and how he/she will be able to ensure that no future physical abuse to [C.L.B.,] Jr. occurs." One month after giving Keaundra the case plan, DFS recommended termination of parental rights as the goal for the children. DFS then filed a petition to terminate Keaundra's parental rights as to A.D.L. and C.L.B., Jr.

At her six-month review, DFS reported that Keaundra had completed her parenting classes, maintained housing, held regular jobs, and completed both her assessment and therapy. At that point, the children had been placed with their maternal grandmother in Louisiana, where Keaundra was also living. DFS stated that it was satisfied with Keaundra's progress. DFS further stated that Keaundra had "successfully completed her case plan and has the knowledge and tools to effectively parent her children." Despite DFS's satisfaction with Keaundra's progress, it nonetheless maintained its recommendation that her parental rights be terminated because she had not admitted that she abused C.L.B., Jr. by holding an iron to his face. DFS later stated at trial that, with such an admission, it would not have sought termination of parental rights.

At the next six-month review, DFS again noted that Keaundra had completed her case plan in all other regards and that she acknowledged that negligence and improper supervision caused C.L.B., Jr.'s injury. Again, DFS maintained its recommendation to terminate parental rights due to Keaundra's refusal to admit that she held the iron to C.L.B., Jr.'s face.

In the meantime, Keaundra moved to South Carolina and was referred to a new therapist, who was in regular contact with a DFS caseworker. At the parental termination trial, the new therapist testified that therapy resulted in a marked change in Keaundra's behavior and demeanor. She noted that despite signs of depression and anxiety at the start of therapy, Keaundra's demeanor had substantially changed over the course of treatment and her risk to reoffend was low. The therapist saw no signs that she would expect to see in an abusive parent.

At the conclusion of the trial, the district court issued a decision terminating Keaundra's parental rights as to C.L.B., Jr. and A.D.L. The district court relied on the hearing master's findings, as affirmed by the juvenile court, that Keaundra was at fault for C.L.B., Jr.'s injuries and that his injuries were not accidental. Because Keaundra was unable to remedy the "circumstances, conduct or conditions" leading to C.L.B., Jr.'s removal, the district court terminated her parental rights based on token efforts, failure of parental adjustment, and unfitness. The district court further found that termination was in the best interests of the children.

Keaundra appealed that decision to this court. We reversed the district court's order based on the failure to admit the report of Dr. Neuman and remanded the matter for a new trial on the issue of parental fault and consideration of additional evidence.

As a result of this court's decision, Keaundra filed a motion to immediately reinstate her visitation with A.D.L. and C.L.B, Jr., to have a Children's Attorneys Project attorney appointed for the children, and to change her permanency plan to reunification. The district court initially denied Keaundra's motion for visitation but later ordered visitation at the discretion of the children's therapist.

Before the second trial, the parties stipulated to admission of all evidence from the prior termination trial, retaining only the issue of the inappropriate finding of parental fault based on the exclusion of Dr. Neuman's report. At the new parental termination trial, the district court admitted Dr. Neuman's report over the objection of DFS, and Dr. Mehta again testified over the objection of Keaundra's counsel. Dr. Mehta once again opined that the injury to C.L.B., Jr.'s face was inconsistent with the explanation given, but she admitted that this opinion was based only on viewing the photographs before the initial trial. Dr. Mehta testified that generally her practice in ascertaining the nature of an injury would be to obtain as much information as possible. Dr. Mehta only recalled being told of an iron and a child kissing the iron; she did not interview any witnesses to the incident, did not see the child in person, and was unaware of the previous report from Dr. Neuman stating that there was no sign of abuse. Dr. Mehta noted that although an accidental cause of injury was possible, she could not conceive of such an explanation.

After closing arguments, the district court inquired as to whether any offer of immunity had been given to Keaundra, as well as why that immunity was not offered in order to further reunification efforts. The district court further opined that because the court's purpose in protective custody proceedings is to reunify children, parents need to be open and honest, and, as such, the judge's practice is to offer immunity from statements made to treatment providers or DFS. DFS acknowledged that Keaundra was not offered immunity. DFS further indicated that it was unaware of any legal authority that would preclude the offer of immunity. While acknowledging that the offer of immunity would cure any Fifth Amendment concerns, DFS indicated that immunity did not apply in Keaundra's case.

The district court ultimately reaffirmed its prior decision to terminate Keaundra's...