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In re Parental Rights as to M.M.L.

Supreme Court of Nevada

May 11, 2017

IN THE MATTER OF THE PARENTAL RIGHTS AS TO M.M.L., JR., A MINOR.
v.
STATE OF NEVADA DEPARTMENT OF FAMILY SERVICES, Respondent. MISTIE P., Appellant,

         Appeal from a district court order terminating parental rights. Eighth Judicial District Court, Family Court Division, Clark County; Frank P. Sullivan, Judge.

          The Grigsby Law Group and Aaron Grigsby, Las Vegas, for Appellant.

          Steven B. Wolfson, District Attorney, and Stephanie Richter, Deputy District Attorney, Clark County, for Respondent.

         BEFORE THE COURT EN BANC.

          OPINION

          CHERRY, C. J.

         In this appeal, we address whether a petition for termination of parental rights can proceed when the parent is incompetent by criminal trial standards. The Nevada Rules of Civil Procedure provide that a "court shall appoint a guardian ad litem for an .. . incompetent person not otherwise represented in" a civil action "or shall make such other order as it deems proper for the protection of the... incompetent person." NRCP 17(c). The rules of civil procedure apply in termination of parental rights cases. See NRS 128.090(2). Unlike criminal proceedings, there is no rule or statute requiring a district court to indefinitely continue an action to terminate one's parental rights in the hope that a party may one day regain competence. Moreover, Nevada's termination statutes allow mental illness to be used as a factor in finding parental fault. See NRS l28.lO6(1)(a).

         The instant case involves a mother whose parental rights were terminated without her presence and ability to assist in her defense. The mother believes that her due process rights were violated when the district court proceeded without her. The district court (1) appointed a guardian ad litem pursuant to NRCP 17(c), (2) granted numerous continuances so that the mother could regain an ability to assist in her defense, and (3) considered the interests of all of the necessary parties before reluctantly proceeding with the trial. Accordingly, the district court did not violate any rules and complied with due process requirements, and we affirm its decision to proceed with the trial.

         FACTS AND PROCEDURAL HISTORY

         At the time of the child's birth, the hospital staff alerted the Department of Family Services (DFS) of concerns regarding the mother's mental health because she insisted that the child was not hers and instead tried to take another child from the hospital. The mother told the hospital staff that she had been diagnosed with schizoaffective bipolar disorder.

         When the child was two months old, the mother brought him to the hospital, claiming that her son had complained (in complete sentences) that he had an earache. The child was placed into protective custody due to concerns regarding the mother's mental health. The State filed an abuse and neglect petition, alleging that the mother's mental health adversely affected her ability to parent the child. The district court adjudicated the child as a neglected child, made the child a ward of the court, and placed the child into DFS's legal custody.

         The mother received a case plan that primarily focused on her mental health. After that time, DFS observed numerous indicators that the mother's mental health was not improving.

         The State filed a petition to terminate the mother's parental rights in May 2014. Soon after, the mother was arrested and taken into custody on charges of kidnapping after she allegedly boarded a bus and attempted to take a child that she erroneously believed to be hers. However, because the State's family division attorneys claimed they could not determine the mother's whereabouts before filing the petition, [1] the State sought and received permission to serve the mother by publication, [2]

         On August 13, 2014, the mother's counsel requested that the case be set for trial and that a guardian ad litem be appointed due to the mother's incompetency in her criminal proceedings. Counsel did not, however, object to the State's method of service when requesting a guardian ad litem. Between December 2014 and July 2015, the district court continued the trial numerous times due to the mother's inability to regain competence to stand trial in her criminal case.

         On September 10, 2015, the district court conducted the trial in the parental rights case. Although the mother remained incompetent, her court-appointed guardian ad litem was present. On September 21, 2015, the district court granted the State's petition to terminate the mother's ...


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