In Re: Parental Rights as to R.Y. ( 2014 )


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  •                 shallow desert grave. The murder allegedly occurred just days after R.Y.
    was born.
    R.Y. has been in foster care since Anne's and Gabriel's arrest,
    living with her maternal aunt and uncle in Tennessee. It is now more
    than five years later and, due to a series of motions and unexplained
    delays, Anne and Gabriel remain in jail pending their separate capital
    murder trials. Their trials currently are scheduled to begin in August and
    September 2014.
    Several years after the criminal charges were brought,
    appellant Clark County Department of Family Services (DFS) filed a
    petition to terminate Anne and Gabriel's parental rights. The petition was
    filed so that R.Y.'s maternal aunt and uncle, whom she calls "Mom" and
    "Dad," could permanently adopt her. After granting repeated motions for
    continuance of the parental rights termination hearing pending the
    outcome of Anne's and Gabriel's criminal cases, the district court ruled on
    the merits of DFS's petition.
    To terminate parental rights and bring R.Y.'s permanent
    placement to fruition, DFS needed to prove by clear and convincing
    evidence (1) that R.Y.'s best interest would be served by the termination
    and (2) "parental fault." NRS 128.105; In re Parental Rights as to A.G.,
    129 Nev. „ 
    295 P.3d 589
    , 594 (2013). The district court found, and
    the parents accept, that DFS carried its burden of proving that R.Y.'s best
    interests would be served by termination. But, the district court found
    that DFS had failed to demonstrate parental fault and therefore declined
    to terminate Anne's and Gabriel's parental rights. DFS appeals.
    DFS focused its arguments in the district court on the grounds
    for parental fault enumerated by NRS 128.105(2), including neglect,
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    failure of parental adjustment, and token efforts. As a result, the district
    court focused on the parents' participation in counseling programs
    available to them in jail. It found that Gabriel had attended "over fifty
    (50) marriage and family therapy courses, a life skills course, and an
    additional forty (40) other courses" and that Anne "attended over thirty-
    five (35) parenting classes, a chemical dependency class, approximately
    seven (7) anger management classes and underwent a psychological
    assessment." The district court findings also enumerated the parents'
    attempts to contact their daughter, noting that Gabriel "has sent [R.Yd six
    (6) written communications and has made several requests for pictures of
    [her]" and that Anne "has sent two (2) to three (3) letters a month .. . and
    [had] two (2) face to face visits" with the child over the years they have
    been incarcerated. The parties' appellate briefs similarly debate at length
    the sufficiency of Anne's and Gabriel's attempts to comply with their
    respective "case plans," the steps DFS outlined for them to be reunited
    with R.Y. The result of this discussion is a surreal incongruence between
    the horrifying facts underlying Anne and Gabriel's criminal charges, the
    reality of their extremely limited contact with their daughter, who only
    lived with them for nine days before being placed in a foster care setting
    that has since matured into an adoptive option, and DFS's asserted
    grounds for terminating their rights.
    Standing alone, many of the grounds enumerated in NRS
    128.105 are a poor fit for circumstances such as these. Thus, the district
    court correctly found that Anne and Gabriel did not "neglect" R.Y. because,
    while in jail, they do not have custody of her.' Champagne v. Welfare Div.
    'Anne and Gabriel's incarceration alone cannot evince their neglect,
    else grounds would exist to terminate the parental rights of the 800,000
    parents estimated to be incarcerated. See Deseriee A. Kennedy, Children,
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    of Nev. State Dep't of Human Res.,      
    100 Nev. 640
    , 658, 
    691 P.2d 849
    , 862
    (1984), superseded by statute on other grounds, as stated in In re
    Termination of Parental Rights as to N.J., 
    116 Nev. 790
    , 
    8 P.3d 126
     (2000).
    Similarly, their efforts in writing letters to and telephoning an infant and
    toddler who lives in Tennessee are not "token" since they are the best they
    can do, compare In re N.J., 
    125 Nev. 835
    , 846, 
    221 P.3d 1255
    , 1263 (2009);
    but the efforts may be ineffective for any realistic purpose. And, we
    cannot say they have not abided by the educational goals DFS has set for
    them; it is just that those classes are far removed from the larger question
    of when, if ever, they may be released from custody to make a life with
    R.Y. 2
    But NRS 128.105 does not stand alone. Rather, it cross-
    references NRS 128.106 and NRS 432B.393(3). Thus, in determining
    whether parental fault exists "the court shall consider, without limitation"
    the grounds enumerated there, including, as relevant here, "[c]onduct
    toward a child of a physically, emotionally or sexually cruel or abusive
    nature." NRS 128.106(2) (emphasis added).
    And, while NRS 128.106(6) specifies "[c]onviction" of a felony
    as one of the permissible bases for finding parental fault, which is not
    ...continued
    Parents & the State: The Construction of a New Family Ideology, 26
    Berkeley J. Gender L. & Just. 78, 85 (2011).
    2 We
    review the district court's determinations deferentially, so long
    as they are supported by substantial evidence and not affected by
    evidentiary or legal error. In re N.J., 116 Nev. at 795, 
    8 P.3d at 129
    .
    Artificially limiting the facts to those unrelated to the murder charge, we
    cannot say that the district court erred. The problem lies in the district
    court's rejection of DFS's efforts, such as they were, to address the
    circumstances leading to Anne's and Gabriel's present incarceration.
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    applicable here, NRS 128.105(2) also permits a finding of fault based on a
    finding made pursuant to subsection 3 of NRS 432B.393. NRS
    432B.393(3)(a)(1) augments the bases for termination of parental rights,
    allowing DFS to forego reasonable reunification efforts and thus
    apparently for the district court to base termination on the best interests
    of the child once a juvenile court makes a finding that a parent has
    "[c]ommitted, aided or abetted in the commission of, or attempted,
    conspired or solicited to commit murder or voluntary manslaughter. . . ."
    NRS 432B.393(3)(a)(1); see also NRS 432B.393(3)(a)(3) (dispensing with
    reunification efforts if the juvenile court finds the parent has "[c]aused the
    abuse or neglect of. . . another child in the household . . . so extreme . . . as
    to indicate that any plan to return the child to the home would result in an
    unacceptable risk to . . . the child) This evinces the drafter's recognition
    that under the extraordinary circumstances present here a petitioner need
    not await a conviction in criminal court given the probable delay and the
    risk of harm presaged by the seriousness of the charges, if substantiated
    even by less than proof beyond a reasonable doubt.               See also NRS
    128.105(2) (defining parental fault to include a risk of serious injury if the
    child is returned to the parents). Thus, viewed holistically the statutory
    scheme allows a court to address the obvious issue—that Anne and
    Gabriel may have engaged in conduct toward a child, Yegge, of a
    "physically, emotionally or sexually cruel or abusive nature" as the State
    alleges, that if a court found the State's allegations to be true this would
    be sufficient evidence of parental fault, and that no amount of family
    therapy, life skills, or anger management courses could negate the
    existence of fault on such grounds.
    Given the presumption of innocence to which Anne and
    Gabriel are entitled, the existence of the State's criminal allegations is not
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    alone sufficient to establish parental fault.    See Haywood v. State, 
    107 Nev. 285
    , 288, 
    809 P.2d 1272
    , 1273 (1991). Rather, DFS needed to present
    independent evidence of the underlying criminal conduct to satisfy its
    burden. See In re Parental Rights as to J.L.N., 
    118 Nev. 621
    , 628, 
    55 P.3d 955
    , 960 (2002) (taking into account the parent's felony conviction); NRS
    128.106 (stating that conviction for a felony may establish parental fault
    in some instances). According to the district court, it somewhat
    "constrained [DFS] in presenting its case by not allowing the admission of
    evidence . . as [the court] was not inclined to allow the criminal trial to be
    presented." While we appreciate the district court's thought and candor, it
    went wrong on this point—DFS was entitled, if it saw fit, to present clear
    and convincing evidence sufficient to support that Anne and Gabriel
    engaged in Iclonduct toward a child of a physically, emotionally or
    sexually cruel or abusive nature," NRS 128.106(2); In re N.J., 116 Nev. at
    801, 
    8 P.3d at 133
     (or, if the juvenile court so found (we do not have that
    record) that Anne and Gabriel "[c]ommitted, aided or abetted in the
    commission of. . . murder," NRS 432B.393(3)(a)(1), which made
    reunification efforts unnecessary, and in turn established parental fault
    under NRS 128.105).
    The record is largely devoid of any offerings of independent
    evidence by DFS of the crime with which Anne and Gabriel are charged.
    There are four notable exceptions.
    First, DFS elicited testimony from a social worker that Gabriel
    said "Anne killed her... . he just helped to bury the body," which the
    district court heard, then ordered stricken as hearsay, as to both Anne and
    Gabriel. As to Anne the exclusion was proper because she did not make,
    adopt, or authorize the statement, it was not made in furtherance of their
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    alleged conspiracy, and it was not made against Gabriel's interest because
    it tended to exculpate him in the murder by shifting blame to Anne. NRS
    51.035(3)(a)-(e); NRS 51.345. But as to Gabriel the exclusion was legally
    unfounded and thus an abuse of discretion—it is not hearsay as to him
    because he is a party to the action and it was offered against him. NRS
    51.035(3)(a).
    In the appellate record there also appear two documents
    which, if properly admitted, may have been clear and convincing so as to
    establish parental fault: a police report indicating that the police followed
    Gabriel to the victim's grave site and that Anne told a third party she had
    strangled the victim 3; and testimony by a witness at an evidentiary
    hearing for the criminal case establishing that Gabriel said he had a
    physical altercation with the victim immediately prior to her murder, that
    he admitted to removing her teeth, cutting off her tattoos, and disposing of
    her body, and that he had previously been acquitted of murder and was
    certain he could not "get away with [murder] . . . twice." But it is not
    clear whether DFS presented this evidence below, or if it was imported
    into the appellate record directly from the long-pending criminal
    proceedings. These items of evidence are not listed as exhibits in the
    district court parental termination action, though the district court
    expressed willingness to admit police reports if DFS submitted them. Nor
    did any witness lay a foundation for their admission—DFS indicated that
    it intended to call the arresting officer as a witness, but closed its case
    without so doing.
    3 LikeGabriel's statements to the police officer, Anne's out-of-court
    admissions to this third party may be admissible under NRS 51.345, but it
    is impossible to tell whether the transcript is admissible, or even was
    sought to be admitted, on the record we have.
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    But DFS's presentation appears to have been restricted by the
    district court. With regard to DFS's presentation of evidence supporting
    the criminal charges, the district court stated it was "not going to get into
    those issues with the criminal case pending on that.. . . I just don't want
    to go there." Yet, in seeming contradiction to that ruling, the district court
    stated that it was taking judicial notice of the "pending criminal case." On
    appeal, DFS suggests that the documents were admitted through this
    taking of judicial notice of the criminal proceedings. We cannot be certain
    whether this is so; the district court did not refer to or rely upon the
    documents in its only written order, noting simply that Anne and Gabriel
    ‘`were arrested and subsequently charged with murder, conspiracy to
    commit murder, and first-degree kidnapping of a seventeen (17) year old
    female. . ." Further confusing things, neither Anne nor Gabriel has
    moved to strike from the appellate record in this case documents drawn
    from their criminal case files, suggesting they acquiesce in DFS's position
    that we may properly consider them.
    In any case, documents such as these from the criminal
    proceedings are not proper subjects for judicial notice. First, the "facts"
    contained in the documents are subject to reasonable dispute. NRS
    47.130. Moreover, both documents include hearsay and "while court
    records may be sources of reasonably indisputable accuracy when they
    memorialize some judicial action, this does not mean that courts can
    notice the truth of every hearsay statement filed with the clerk." 21B
    Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
    Procedure §5104 at 155 (2d ed. 2005). Thus, regardless of the origin of
    these documents, it does not appear that they are properly before this
    court.   See Carson Ready Mix, Inc. v. First Nat'l Bank of Nev.,      
    97 Nev. 474
    , 476-77, 
    635 P.2d 276
    , 277-78 (1981).
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    Finally, DFS advocates that a negative inference should be
    drawn from the parents' taking of the Fifth Amendment in the parental
    termination proceeding. The parents counter that the district court
    should have continued or stayed the proceedings pending the outcome of
    their criminal case to avoid the necessity of their invocation. But we
    cannot say that the district court abused its discretion by finally denying
    the stay after it granted multiple motions for continuance and, at the time
    it made its determination in April 2012, the "commencement of the
    criminal proceeding [was not] set in the foreseeable future," and more
    than 18 months later, Anne's and Gabriel's criminal trial(s) have yet to
    begin.   See NRS 128.055 (mandating that a court use its best efforts to
    ensure that termination proceedings are completed within six months).
    As to the propriety of DFS's negative inference suggestion, the
    issue was not adequately vetted in the district court to make our
    consideration of it appropriate on this appeal. The Fifth Amendment to
    the United States Constitution provides, "No person .., shall be compelled
    in any criminal case to be a witness against himself." U.S. Const. amend.
    V. There is a body of case law holding that the privilege of invoking the
    Fifth Amendment without consequence does not apply in parental
    termination hearings because, while significant, such proceedings are not
    criminal. See, e.g., In Re Samantha C., 
    847 A.2d 883
    , 912-15 (Conn. 2004);
    see also Bait. City Dep't of Soc. Servs. v. Bouknight, 
    493 U.S. 549
    , 551, 555-
    56 (1990) (holding that a mother, the custodian of a child pursuant to a
    court order, could not invoke the Fifth Amendment privilege against self-
    incrimination to resist an order of the juvenile court to produce the child).
    Moreover, in Nevada, parental termination proceedings are civil in nature,
    see NRS 128.090(2), and in civil cases generally, a negative inference may
    arise from a witness's invocation of the Fifth Amendment where prima
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    facie evidence has been introduced of the fact the negative inference is
    being used to bolster. See Aspen Fin. Servs., Inc. v. Eighth Judicial Dist.
    Court, 128 Nev. , 
    289 P.3d 201
    , 209 (2012).
    But here, while the social worker's testimony may have
    provided that predicate as to Gabriel, the district court erroneously struck
    that testimony and so did not consider either the social worker's testimony
    or the negative inference arguably arising from Gabriel's assertion of his
    Fifth Amendment privilege. The record also does not establish what
    comparable evidence was or was not admitted or considered by the district
    court against Anne. This issue deserves full development in and
    consideration by the district court, in light of our ruling that, given the
    long delays in the criminal proceedings, DFS may properly proceed with
    proof of facts relevant to the underlying criminal charges to support
    termination of parental rights.
    IV.
    We empathize with all the parties to this case and their pleas
    for preservation of their constitutional rights and finality. But serious
    charges and serious consequences to both the parents and the child are
    involved. Given this, and absent a full evidentiary hearing, we decline to
    intrude on the traditional purview of the fact-finder and draw any
    conclusions as to the propriety of terminating Anne's and Gabriel's
    parental rights to R.Y.    Yamaha Motor Co., U.S.A. v. Arnoult,        
    114 Nev. 233
    , 238, 
    955 P.2d 661
    , 664 (1998). Instead, in the interests of ensuring
    that each of these parties has the opportunity to present their case to the
    extent our evidentiary rules allow, we reverse and remand. In doing so,
    we instruct the district court as follows: (1) to require DFS to specify the
    factual and legal bases on which its seeks termination; (2) to specify the
    facts, if any, of which the district court takes judicial notice; (3) to conduct
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    a full evidentiary hearing, allowing in evidence of the parents' underlying
    crime if DFS confirms that it seeks termination of parental rights on this
    basis and it is admissible under ordinary rules of evidence; (4) to admit
    Gabriel's statement to his social worker against him, and only him, under
    51.035(3); and (5) to exercise its sound discretion in deciding whether
    drawing a negative inference against either parent, pursuant to Aspen, is
    appropriate.
    REVERSED AND REMANDED.
    C.J.
    Gibbons
    Pickering
    661/24.
    7              J.
    J.
    Hplesty J.
    Parraguirre
    ,    J.
    Douglas
    Saitta
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    cc: Hon. Frank P. Sullivan, District Judge, Family Court Division
    Clark County District Attorney/Juvenile Division
    Special Public Defender
    Law Office of Kristina Wildeveld
    Eighth District Court Clerk
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