Washoe Cnty. Human Servs. Agency v. Second Judicial Dist. Court of Nev.

• Citation: 521 P.3d 1199
• Decision Date: 29 December 2022
• Docket Number: 83422
• Parties: WASHOE COUNTY HUMAN SERVICES AGENCY, Petitioner, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable Paige Dollinger, District Judge, Respondents, and Rolando C.-S.; Porsha C.-S.; and L.S.C., a Minor Child, Real Parties in Interest.
• Court: Supreme Court of Nevada

521 P.3d 1199

WASHOE COUNTY HUMAN SERVICES AGENCY, Petitioner,

v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable Paige Dollinger, District Judge, Respondents,andRolando C.-S.; Porsha C.-S.; and L.S.C., a Minor Child, Real Parties in Interest.

No. 83422

Supreme Court of Nevada.

Filed December 29, 2022

Christopher J. Hicks, District Attorney, and Erin L. Morgan and Jeffrey S. Martin, Deputy District Attorneys, Washoe County, for Petitioner.

Washoe Legal Services and Jennifer Jeans, Reno, for Real Party in Interest L.S.C.

John L. Arrascada, Public Defender, and Jennifer Rains and John Reese Petty, Chief Deputy Public Defenders, Washoe County, for Real Party in Interest Porsha C.-S.

Marc Picker, Alternate Public Defender, and Amy Crowe, Deputy Alternate Public Defender, Washoe County, for Real Party in Interest Rolando C.-S.

BEFORE THE SUPREME COURT, EN BANC.¹

OPINION

By the Court, HARDESTY, C.J.:

We elect to consider the merits of this petition under the capable-of-repetition-yet-evading-review exception to the mootness doctrine to clarify a substantial issue of public policy and precedential value: whether NRS 432B.393(3)(c) violates due process.

NRS 432B.393(3)(c) relieves a child welfare services agency from its duty to provide reasonable efforts to reunify a child with his or her parent if a court finds that the parental rights of that parent were involuntarily terminated with respect to a sibling of the child. The district court found that this statute violates due process because it could lead to a presumption that the parent is unfit, for purposes of terminating the parent-child relationship, without any consideration of present circumstances. Petitioner Washoe County Human Services Agency (WCHSA) filed a petition for writ of mandamus asking this court to determine that NRS 432B.393(3)(c) is constitutional and to vacate the district court's order.

We conclude that NRS 432B.393(3)(c), insofar as it relieves an agency of making reunification efforts, does not infringe on the fundamental liberty interest a parent has in the care and custody of his or her child and therefore does not violate due process. We thus determine that the district court erred hut deny WCHSA's petition as the matter is moot.

BACKGROUND

In August 2020, WCHSA removed real party in interest/minor child L.S.C. from the care and custody of her biological parents, real parties in interest Porsha C.-S. and Rolando C.-S., and placed her in foster care.² The next month, WCHSA filed a motion with the district court for a finding under NRS 432B.393(3)(c) that WCHSA was relieved of its statutory obligation to undertake reasonable efforts to reunify L.S.C. with her biological parents. WCHSA asserted that Porsha and Rolando had their parental rights involuntarily terminated as to L.S.C.’s sibling the year before and the order of termination was not under appeal. WCHSA argued that, in light of these facts, the district court was required by NRS 432B.393(3)(c) to find that WCHSA was relieved from its obligation under NRS 432B.393(1) to undertake reasonable efforts to reunify L.S.C. with her parents. Porsha and Rolando opposed the motion, arguing that NRS 432B.393(3)(c) infringes on their fundamental liberty interest in the care, custody, and control of their child without the due process of law.

A court master recommended that the district court find NRS 432B.393(3)(c) unconstitutional and deny WCHSA's motion that it be relieved of its obligation to make reasonable reunification efforts with L.S.C. The court master found that NRS 432B.393(3)(c) infringes on the parent-child relationship—a fundamental right—and is not narrowly tailored to serve the compelling state interest of protecting the health and safety of children, as it does not allow a court any discretion to consider the circumstances of the past involuntary termination. Her determination that the statutory provision is unconstitutional was based on the fact that a finding under NRS 432B.393(3)(c) results in an expedited permanency hearing and may be used to prove parental fault for the termination of parental rights in proceedings instituted under NRS Chapter 128. The district court entered an order adopting these recommendations over WCHSA's objection.

Later, the court master held a permanency hearing under NRS 432B.590, after which she recommended that the district court adopt the agency's permanency plan of adoption for L.S.C. In making this recommendation, the court master found that WCHSA was relieved of making reasonable efforts to reunify L.S.C. with her family under NRS 432B.393(1), as such efforts were inconsistent with the permanency plan efforts. The district court adopted these recommendations but made no further findings regarding the constitutionality of NRS 432B.393(3)(c).

WCHSA petitioned this court for a writ of mandamus to overturn the district court's declaration that 432B.393(3)(c) is unconstitutional. Porsha, Rolando, and L.S.C. timely filed answers to the petition, as directed.³

DISCUSSION

We elect to consider the merits of this petition for a writ of mandamus

"Writ relief is an extraordinary remedy that is only available if a petitioner does not have a plain, speedy and adequate remedy in the ordinary course of law." In re William J. Raggio Family Tr. , 136 Nev. 172, 175, 460 P.3d 969, 972 (2020) (internal quotation marks omitted); see also NRS 34.170. This court has considered writ petitions when doing so "will clarify a substantial issue of public policy or precedential value," Walker v. Second Judicial Dist. Court , 136 Nev. 678, 684, 476 P.3d 1194, 1199 (2020) (internal quotation marks omitted), and "where the petition presents a matter of first impression and considerations of judicial economy support its review," Dekker/Perich /Sabatini Ltd. v. Eighth Judicial Dist. Court , 137 Nev. Adv. Op. 53, 495 P.3d 519, 522 (2021) ; see also Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d 920, 921 (2010) (additionally noting that the issue before the court was reviewable on mandamus because it was "not fact-bound"). This court "review[s] questions of law ... de novo, even i n the context of writ petitions." Helfstein v. Eighth Judicial Dist. Court, 131 Nev. 909, 913, 362 P.3d 91, 94 (2015).

The district court's order concerning the waiver of reunification efforts in an NRS Chapter 432B proceeding is not appealable. See NRAP 3A(b) ; Clark Cty. Dist. Attorney v. Eighth Judicial Dist. Court, 123 Nev. 337, 342, 167 P.3d 922, 925 (2007) (considering a petition for extraordinary relief after recognizing that the challenged order, entered, under NRS Chapter 432B, was not appealable). Further, whether NRS 432B.393(3)(c) is unconstitutional is a purely legal issue of first impression and has substantial precedential value. See Lyft, Inc. v. Eighth Judicial Dist. Court, 137 Nev. Adv. Op. 86, 501 P.3d 994, 998 (2021) (considering a petition for writ of mandamus because the question of whether the statute at issue superseded a procedural rule "present[ed] a novel question of law requiring clarification"). For these reasons, we elect to hear this petition for a writ of mandamus to address the constitutionality of NRS 432B.393(3)(c).

While the matter is moot, it falls under the capable-of-repetition-yet-evading-review exception to the mootness doctrine

"The question of mootness is one of justiciability" and requires that this court render judgments only on actual controversies. Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010). Although controversies may exist at the beginning of a case, they can be rendered moot by subsequent events. Id. This case was rendered moot when the district court found that WCHSA was relieved of providing reasonable reunification efforts to Porsha and Rolando with respect to L.S.C. on grounds other than NRS 432B.393(3)(c).

However, cases involving moot controversies may still be considered by this court if they concern "a matter of widespread importance capable of repetition, yet evading review." Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 334, 302 P.3d 1108, 1113 (2013). "To satisfy the exception to the mootness doctrine, [petitioner] must show that (1) the duration of the challenged action is relatively short, (2) there is a likelihood that a similar issue will arise in the future, and (3) the matter is important." Degraw v. Eighth Judicial Dist. Court, 134 Nev. 330, 332, 419 P.3d 136, 139 (2018) (internal quotation marks omitted).

We conclude that this petition meets the elements of this exception to mootness. First, the duration of the challenged action is relatively short given the expedited nature of dependency proceedings under NRS Chapter 432B. Particularly, under NRS 432B.590(1)(b), "[w]ithin 30 days after making any of the findings set forth in subsection 3 of NRS 432B.393." the court must hold a permanency hearing. A permanency hearing will moot a dispute regarding NRS 432B.333(3)(c) by making a reasonable-efforts finding on a different basis, as was the ease here. Thus, we conclude that the time period to challenge an order made pursuant to NRS 432B.393(3)(c) is necessarily limited by law.⁴ See Degraw, 134 Nev. at 332, 419 P.3d at 139 (determining that the duration element was met because "the time period to challenge the [action at issue] may be limited"). Second, as for whether there is a likelihood that the issue will arise in the future, this court typically does not rely on the assurances of the parties alone that an issue will recur. Id. at 333, 419 P.3d at 139 ; Personhood Nev. , 126 Nev. at 602, 245 P.3d at 574. Still, this court has measured the likelihood of recurrence contextually, i.e., from how common the issue at hand is to the larger body of disputes, such as the ubiquitous relevancy of bail issues in criminal cases. See Valdez-Jimenez v. Eighth Judicial Dist. Court, 136 Nev. 155, 160, 460 P.3d 976, 983 (2020) (determining that "the...