                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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