                                                     132 Nev., Advance Opinion
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                  IN THE MATTER OF THE PARENTAL                         No. 67063
                  RIGHTS AS TO M.F., M.F., AND N.F.,
                  MINOR CHILDREN.

                  JESUS F., JR.,                                             FILE
                  Appellant,
                                                                               MAR 3 1 2016
                  vs.
                                                                                     K. LINDEMAN_
                  WASHOE COUNTY DEPARTMENT OF                             CLEAKWr$VillWA
                  SOCIAL SERVICES,                                        BY
                                                                             CH I Elk 'BOOTY CLERK
                  Respondent.



                              Appeal from a district court order terminating appellant's
                  parental rights as to the minor children. Second Judicial District Court,
                  Family Court Division, Washoe County; Deborah Schumacher, Judge.
                              Affirmed.

                  Jennifer L. Lunt, Alternate Public Defender, and Carl William Hart,
                  Alternate Deputy Public Defender, Washoe County,
                  for Appellant.

                  Christopher J. Hicks, District Attorney, and Jeffrey S. Martin, Chief
                  Deputy District Attorney, Washoe County.
                  for Respondent.




                  BEFORE THE COURT EN BANC.

                                                  OPINION
                  By the Court, GIBBONS, J.:
                              In this opinion, we consider whether appellant is entitled to a
                  jury trial in a termination of parental rights proceeding. We conclude that

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                 neither the United States Constitution nor the Nevada Constitution
                 guarantees the right to trial by jury in a termination of parental rights
                 proceeding. Additionally, we conclude that the district court relied on
                 substantial evidence in terminating appellant Jesus F.'s parental rights.
                 Accordingly, we affirm the district court order terminating Jesus F.'s
                 parental rights as to his three minor children.
                                  FACTS AND PROCEDURAL HISTORY
                             Respondent Washoe County Department of Social Services
                 (WCDSS) removed Jesus F.'s six children from his home in January 2010
                 due to drug use, safety hazards, and inadequate supervision. All six
                 children were placed in protective custody pursuant to NRS 432B.330
                 based on parental neglect and resided in various out-of-home placements
                 over the next four years. By the time the three older children had reached
                 the age of majority, WCDSS filed a petition to terminate Jesus F.'s
                 parental rights as to the three minor children.
                             Jesus F. filed a demand for a jury trial with the district court.
                 The district court issued an order denying Jesus F.'s jury trial demand,
                 concluding that the right to a jury trial in a parental termination
                 proceeding is not guaranteed by common law, statute, or the Nevada
                 Constitution. Following a bench trial, the district court terminated Jesus
                 F.'s parental rights as to the three minor children. On appeal, Jesus F.
                 argues that the district court erred in (1) denying Jesus F.'s demand for a
                 jury trial in the termination of parental rights proceeding, (2) concluding
                 that it was in the minor children's best interests to terminate Jesus F.'s
                 parental rights pursuant to the statutory presumption contained in NRS
                 128.109(2), and (3) concluding that Jesus F.'s parental fault had been
                 established pursuant to NRS 128.105(2).


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                                               DISCUSSION
                The district court did not err in denying Jesus F.'s demand for a jury trial
                in the termination of parental rights proceeding
                      "Constitutional issues, such as one's right to a jury trial, present
                questions of law that we review de novo." Awada v. Shuffle Master, Inc.,
                123 Nev. 613, 618, 173 P.3d 707, 711 (2007).
                      Upon de novo review, we conclude that neither the United States
                Constitution nor thefl Nevada Constitution guarantees the right to a jury
                trial in a termination of parental rights proceeding, as outlined below.
                      The United States Constitution does not guarantee the right to a jury
                      trial in a termination of parental rights proceeding
                            "Termination of parental rights is an exercise of awesome
                power." In re Parental Rights as to N.J., 116 Nev. 790, 795, 8 P.3d 126,
                129 (2000) (internal quotations omitted). The Seventh Amendment to the
                United States Constitution protects the right to a jury trial in civil cases in
                certain circumstances, but that Amendment does not apply to the states.
                See Hawkins v. Bleakly, 243 U.S. 210, 216 (1917); see also Minneapolis &
                St. Louis R.R. Co. v. Bombolis,   241 U.S. 211, 217 (1916). While the U.S.
                Supreme Court has held that the states may not terminate parental rights
                without due process of law because "the companionship, care, custody and
                management of [one's] children" is an important interest that "undeniably
                warrants protection," Stanley v. Illinois, 405 U.S. 645, 650-51 (1972), the
                Court has not addressed whether due process requires a jury trial for a
                termination of parental rights proceeding. However, because "parents
                retain a vital interest in preventing the irretrievable destruction of their
                family life," due process requires states to provide parents with
                fundamentally fair procedures in parental termination proceedings.
                Santosky v. Kramer, 455 U.S. 745, 753-54 (1982).

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                            To evaluate whether such a proceeding violates a parent's due
                process rights, the U.S. Supreme Court has applied the balancing test
                outlined in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which consists
                of the following factors: (1) the private interest affected by the proceeding,
                (2) the risk of error inherent in the state's procedure, and (3) the
                countervailing government interest.          Santosky,   455 U.S. at 754.
                Elaborating on these factors, the Court has indicated that "[a] parent's
                interest in the accuracy and justice of the decision to terminate his or her
                parental status is .. . a commanding one." Id. at 759 (internal quotations
                omitted). On the other hand, the state maintains a dual stake in the
                outcome—a parens patriae interest in promoting the child's welfare and an
                "administrative interest in reducing the cost and burden of termination
                proceedings."   Id. at 766. Using the test, the Court has refused to
                guarantee the right to counsel in a termination proceeding because the
                parent does not risk a loss of personal liberty.   Lassiter v. Dep't of Social
                Servs., 452 U.S. 18, 25-26 (1981) ("[A] s a litigant's interest in personal
                liberty diminishes, so does his right to appointed counsel.").
                            While Jesus F. correctly argues that the parent-child
                relationship is a fundamental interest under Lehr v. Robertson, 463 U.S.
                248, 258 (1983), he fails to demonstrate that this status automatically
                affords a parent the right to a jury trial in this type of action. Instead,
                because Jesus F. does not risk a loss of personal liberty in the termination
                proceeding, this court applies the due process balancing test outlined in
                Eldridge to evaluate the private interests at stake against the
                government's interest and the risk that the procedures used would have
                led to an erroneous decision. See Lassiter, 452 U.S. at 26-27 (stating that
                parents do not have a per se right to counsel in a termination of parental
                rights proceeding because parents do not risk the loss of personal liberty).
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                 Under Eldridge, Jesus F.'s interest in the companionship, care, custody,
                 and management of his three minor children must be weighed against the
                 state's interest in the welfare of the children, conservation of judicial
                 resources, and the need for an accurate and fair outcome. Since both
                 parties have compelling interests, the analysis turns on an evaluation of '
                 the risk that the procedures used would have resulted in an erroneous
                 decision.
                             We conclude that the district court's decision to hold a bench
                 trial as opposed to a jury trial posed only a minimal risk of an erroneous
                 decision for several reasons. First, a jury, while important, is not a
                 required component of accurate fact-finding.    McKeiver v. Pennsylvania,
                 403 U.S. 528, 543 (1971) ("[Ohie cannot say that in our legal system the
                 jury is a necessary component of accurate factfinding."); Duncan v.
                 Louisiana, 391 U.S. 145, 158 (1968) ("We would not assert, however, that
                 every criminal trial—or any particular trial—held before a judge alone is
                 unfair or that a defendant may never be treated by a judge as he would be
                 by a jury."); see In re Weinstein, 386 N.E.2d 593, 596 (Ill App. Ct. 1979)
                 (interpreting the U.S. Supreme Court's decision in McKeiver as follows:
                 "implicit in the rationale of the holding is that a jury trial is not a
                 fundamental concept of due process"). Here, the family court judge
                 demonstrated familiarity with the rules of evidence, the legal standards of
                 a termination action, and the Nevada Rules of Civil Procedure, and the
                 court applied the heightened clear and convincing evidentiary standard of
                 proof
                             Second, Jesus F. was given notice of the proceeding, was
                 afforded competent counsel to represent his interests, and was afforded
                 the opportunity to confront and cross-examine the witnesses against him.
                 See McKeiver, 403 U.S. at 543-45 (explaining that juveniles are not
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                entitled to a jury trial in delinquency proceedings as long as other fact-
                finding procedures such as "notice, counsel, confrontation, cross-
                examination, and standard of proof' are in place to ensure accuracy and
                protect the juvenile's interests); see also In re Parental Rights as to N.D.O.,
                121 Nev. 379, 383, 115 P.3d 223, 227 (2005) (providing that while "no
                absolute right to counsel in termination proceedings exists in Nevada,"
                counsel may be appointed if a case-by-case analysis pursuant to NRS
                128.100(2) requires it). Third, Jesus F. retained the right to appeal from
                an adverse decision. Therefore, we conclude that the district court did not
                violate Jesus F.'s due process rights pursuant to the U.S. Constitution by
                denying his demand for a jury trial.
                      The Nevada Constitution does not guarantee the right to a jury trial
                      in a termination of parental rights proceeding
                            In Nevada, "[Ole right of trial by Li]ury shall be secured to all
                and remain inviolate forever; but a [j]ury trial may be waived by the
                parties in all civil cases in the manner to be prescribed by law. ...." Nev.
                Const. art. 1, § 3. This court has determined that the phrase
                "shall .. . remain inviolate forever" indicates an intent to perpetuate the
                jury trial right as the framers understood it when Nevada's Constitution
                was adopted in 1864.      See Awada, 123 Nev. at 621, 173 P.3d at 712
                (concluding that Nevada's modern jury trial right does not require a
                district court to first proceed with legal issues because the jury trial right
                in 1864 did not impede a court's discretion to address the equitable issues
                prior to allowing a jury to address the action's legal issues); see also
                Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 870-74, 124 P.3d 550,
                553-56 (2005) (denying the right to a jury trial in small claims court
                because no such right existed at the time the Nevada Constitution was
                adopted); Aftercare of Clark Cty. v. Justice Court of Las Vegas Twp., 120

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                Nev. 1, 6-7, 82 P.3d 931, 934 (2004) (explaining that Nevada guarantees
                the right to jury trial in justice court civil actions if small amounts are in
                controversy because the practice originated in 1861, prior to the adoption
                of the Nevada Constitution).
                            Jesus F. argues that Article 1, Section 3 of the Nevada
                Constitution guarantees him the right to a jury trial. We disagree. Jesus
                F. correctly argues that since a termination of parental rights action is
                civil in nature, the matter falls under the purview of Article 1, Section 3 of
                the Nevada Constitution. However, no such action existed in 1864, and
                since termination of parental rights actions were created in 1975, the
                Legislature has not conferred the right to a jury trial in such proceedings,
                despite ample opportunity to do so. Therefore, under Awada, Cheung, and
                Aftercare, the Nevada Constitution does not guarantee a jury trial in a
                termination of parental rights proceeding.
                            Additionally, requiring jury trials in the district court's family
                division implicates many of the same policy concerns that the U.S.
                Supreme Court found persuasive in McKeiver, though that case addressed
                the juvenile court system. See 403 U.S. at 550 ("If the jury trial were to be
                injected into the juvenile court system as a matter of right, it would bring
                with it into that system the traditional delay, the formality, and the
                clamor of the adversary system and, possibly, the public trial.").
                Instituting such a delay would slow the pace of the high volume of cases
                before the family court each year, yielding a backlog where speedy
                reunification or permanent placement of the child is of great importance.
                The formality of a jury trial may also undermine the shared interest in
                maintaining the child's anonymity in a termination proceeding. Further,
                family courts in several judicial districts in Nevada are not equipped to
                accommodate jurors, and to make the administrative and structural
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                changes necessary to accommodate them would be a time-consuming effort
                and one that is more appropriately relegated exclusively to the
                Legislature. Finally, as the U.S. Supreme Court stated in Duncan and
                reiterated in McKeiver, we remain unconvinced that a jury would
                necessarily render a decision more reliable than a family court judge. See
                Duncan, 391 U.S. at 158 ("We would not assert, however, that every
                criminal trial—or any particular trial—held before a judge alone is unfair
                or that a defendant may never be treated by a judge as he would be by a
                jury."); see also McKeiver, 403 U.S. at 547 ("The imposition of the jury trial
                on the juvenile court system would not strengthen greatly, if at all, the
                fact-finding function.").
                             Our conclusion is further strengthened by the national trend
                to deny jury trials in termination of parental rights proceedings.'       See


                        'The five states in the minority that guarantee the right to a jury
                trial in termination proceedings do so pursuant to statute or express state
                constitutional provision—neither avenue is present in Nevada. Those five
                states are Oklahoma, Wyoming, Wisconsin, Texas, and Virginia. See
                Matter of D.D.F., 801 P.2d 703, 705 (Okla. 1990) (explaining that the
                Oklahoma Constitution expressly guarantees a jury trial in a termination
                of parental rights proceeding, but that a parent may waive the right);
                Matter of GP, 679 P.2d 976, 983 (Wyo. 1984) (concluding that a parent has
                a statutory right to a jury trial in a parental termination proceeding); In re
                Keylen D.K., 828 N.W.2d 251, 258-60 (Wis. Ct. App. 2013) (concluding that
                although Wisconsin statutorily guarantees the right to jury trial in
                parental termination proceedings, the state distinguishes between a
                statutory jury trial right and the heightened procedural protections in
                criminal cases); Gen. Motors Corp. v. Gayle, 924 S.W.2d 222, 226 (Tex. Ct.
                App. 1996) (noting that a Texas statute confers the right to jury trial in
                civil cases when one party demands it and pays a jury fee); Hough v.
                Mathews Dep't of Social Servs., No. 2405-13-1 2014, WL 4412583, at *1 n.1
                (Va. Ct. App. Sept. 9, 2014) (explaining that a Virginia statute permits a
                juvenile or domestic relations issue to be heard by an "advisory jury," in
                the judge's discretion, upon motion by either party).

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                       Linda A. Szymanski, Is a Jury Trial Even Available in a Termination of
                       Parental Rights Case?, Nat'l Ctr. for Juvenile Justice (NCJJ) Snapshot,
                       (2011). 2 The majority of states specifically prohibit a jury trial in a
                       termination of parental rights proceeding by precedent, statute, local court
                       rule, or common practice.    See id.   The Supreme Court of Montana, for
                       example, relied on principles akin to those in Awada, and concluded that
                       there is no right to trial by jury in termination proceedings because no
                       such right existed when the Montana Constitution was adopted in 1889,
                       and the Montana Constitution guarantees only rights enjoyed when the
                       Constitution was adopted. In re M.H., 143 P.3d 103, 106 (Mont. 2006). A
                       number of jurisdictions echo similar logic, denying the right to trial by
                       jury in termination proceedings because no right to a jury trial existed for
                       such proceedings at common law.        See, e.g., Alyssa B. v. State, Dep't of
                       Health & Soc. Servs., 123 P.3d 646, 648-49 (Alaska 2005); In re Lambert,
                       86 A.2d 411, 412-13 (D.C. 1952); Porter v. Watkins, 121 S.E.2d 120, 121-22
                       (Ga. 1961); E.P. v. Marion Cty. Office of Family & Children, 653 N.E.2d
                       1026, 1030-31 (Ind. Ct. App. 1995); In Interest of Baby Boy Bryant, 689
                       P.2d 1203, 1209 (Kan. Ct. App. 1984); In re Shane T., 544 A.2d 1295, 1297
                       (Me. 1988); Matter of Colon, 377 N.W.2d 321, 328 (Mich. Ct. App. 1985);
                       State ex rel. Children, Youth & Families Dep't v. T.J., 934 P.2d 293, 297-98
                       (N.M. Ct. App. 1997); Matter of Ferguson, 274 S.E.2d 879, 880 (N.C. Ct.
                       App. 1981); State in Interest of T.B., 933 P.2d 397, 400 (Utah Ct. App.
                       1997).




                                  http://www.ncii.org/pdf7Snapshots/2011/vol16 no3 Jurv%20Trial%
                                2 See
                       20In%20Termination%20of%20Parental%20Rights%20Case.pdf (last visited
                       March 30, 2016).

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                 The district court relied on substantial evidence in its decision to terminate
                 Jesus F.'s parental rights
                              This court closely scrutinizes whether the district court
                 properly preserved or terminated parental rights, but will not substitute
                 its judgment for that of the district court and will uphold the lower court's
                 decision if it is supported by substantial evidence. In re Parental Rights as
                 to N.J., 116 Nev. 790, 795, 8 P.3d 126, 129 (2000). Substantial evidence is
                 that which a reasonable person would accept as adequate to sustain a
                 judgment. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007).
                              The Nevada Legislature has adopted a statutory scheme to
                 ensure that parental rights are not erroneously terminated and that every
                 child's needs are protected.   In re Parental Rights as to C.C.A., 128 Nev.
                 166, 169, 273 P.3d 852, 854 (2012). To terminate parental rights, a
                 petitioner must demonstrate by clear and convincing evidence that (1) at
                 least one ground of parental fault exists, and (2) termination is in the
                 child's best interest. NRS 128.105(1)-(2); In re N.J., 116 Nev. at 800-01, 8
                 P.3d at 132-33; In re C.C.A., 128 Nev. at 169, 273 P.3d at 854. While both
                 factors must be established, "[t]he primary consideration in any
                 proceeding to terminate parental rights must be whether the best
                 interests of the child will be served by the termination." 2015 Nev. Stat.,
                 ch. 250, § 3, at 1184-85. 3
                              To guide a district court in determining a parent's conduct,
                 NRS 128.109 creates the following two presumptions for a child who has
                 resided outside of the home for 14 of any consecutive 20 months: (1) a
                 court must presume that the parent has made only token efforts to care


                       3 While  the statute has been amended, the amendments do not
                 impact this case.

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                  for the child, and (2) the best interest of the child must be presumed to be
                  served by the termination of parental rights. NRS 128.109(1)(a), (2)
                  (2013). To rebut these presumptions, a parent must prove otherwise by a
                  preponderance of evidence.    In re Parental Rights as to J.D.N., 128 Nev.
                  462, 472, 283 P.3d 842, 849 (2012). A preponderance of the evidence
                  requires that the evidence lead the fact-finder to conclude that "the
                  existence of the contested fact is more probable than its nonexistence."
                  See Brown v. State,    107 Nev. 164, 166, 807 P.2d 1379, 1381 (1991)
                  (quotation marks and citation omitted).
                              Jesus F. argues that the district court improperly (1) relied on
                  the best interests presumption contained in NRS 128.109(2) because he
                  had successfully rebutted the presumption, and (2) found parental fault
                  under MRS 128.105 on Jesus F.'s part sufficient to satisfy a clear and
                  convincing evidence standard. We disagree.
                              First, substantial evidence supports the district court's
                  findings that termination of Jesus F.'s parental rights was in the minor
                  children's best interests based on the statutory presumption in NRS
                  128.109(2) and that Jesus F. failed to rebut the presumption due to his
                  failure to show that there was a reasonable prospect that he could provide
                  for the minor children's basic needs in a reasonable period of time.   See In
                  re J.D.N., 128 Nev. at 472, 283 P.3d at 849; see also MRS 128.107(2)-(3)
                  (outlining the factors that a court shall consider in determining whether
                  parental rights should be terminated). Second, substantial evidence
                  supports the district court's findings as to five separate grounds of
                  parental fault on Jesus F.'s behalf, and the court listed its reasoning with
                  adequate specificity. Thus, we conclude that the district court's decision to
                  terminate Jesus F.'s parental rights was supported by substantial
                  evidence.
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                                                 CONCLUSION
                             Having considered the parties' filings and the attached
                documents, we conclude that the district court properly denied Jesus F.'s
                demand for a jury trial in the termination of parental rights proceeding.
                Additionally, we conclude that substantial evidence supports the district
                court's decision to terminate Jesus F.'s parental rights. We therefore
                affirm the district court order terminatiag Jp§us F.'s parental rights.


                                                                                    J.
                                                       Gibbons




                We concur:


                                Pirett°           C.J.
                Parraguir;e ‘                '


                                Xe24.-tI
                Hardesty




                Saitta


                                                  J.

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