Procedural Due Process and Permanency Timelines: Nevada Affirms the Constitutionality of NRS 128.109’s Rebuttable Presumptions in Termination of Parental Rights

Procedural Due Process and Permanency Timelines: Nevada Affirms the Constitutionality of NRS 128.109’s Rebuttable Presumptions in Termination of Parental Rights

Introduction

In In re: Parental Rights as to R.B.J. (Family), No. 89225 (Nev. Sept. 10, 2025), the Nevada Supreme Court affirmed a district court order terminating the parental rights of Jason V. to his minor child, R.B.J. The opinion addresses three principal issues:

  • Whether the rebuttable presumptions in NRS 128.109(1)(a) (best interests) and NRS 128.109(2) (token efforts) violate procedural due process by impermissibly shifting the burden to parents;
  • Whether alleged judicial bias and inattentiveness rendered the trial unfair, including claims rooted in the Confrontation Clause; and
  • Whether substantial evidence supported the findings that termination was in the child’s best interests and that at least one statutory ground of parental fault existed.

The Court rejected the constitutional challenge, found no reversible error in the conduct of the proceedings, reiterated that Confrontation Clause protections do not apply in civil termination cases, and upheld the judgment based on substantial evidence. The Court also offered prospective guidance about the use of videoconferencing in termination proceedings under ADKT 581, emphasizing that such trials are presumptively to be held in person—including the judicial officer.

Summary of the Opinion

The Supreme Court of Nevada held that:

  • NRS 128.109(1)(a) and (2) are constitutional under procedural due process. The Court applied the Mathews v. Eldridge balancing test and, following its own precedent in In re J.D.N., concluded that rebuttable presumptions are permissible where:
    • Their applicability is proven by clear and convincing evidence; and
    • They remain rebuttable by a preponderance of the evidence.
  • Claims of judicial bias were waived when no recusal motion was made below; evidentiary reconsiderations reflected attention, not inattentiveness; and the Sixth Amendment Confrontation Clause does not apply to these civil proceedings.
  • Although the judge at times appeared via video, the Court noted that ADKT 581 now presumes termination proceedings, including the judge’s presence, should be in person. The Court advised careful exercise of discretion for virtual appearances given the gravity of such cases.
  • Substantial evidence supported both prongs of termination under NRS 128.105: termination served the child’s best interests (where the child was bonded to a stable foster placement with a half-sibling and receiving needed services), and parental fault existed (unfitness, neglect, token efforts) based on a sustained pattern of substance abuse, criminal activity including domestic violence, incarceration, relapse, and the absence of a definitive plan for sobriety post-release.

Detailed Analysis

I. Statutory and Doctrinal Framework

  • Termination standards (NRS 128.105(1)): The State must prove by clear and convincing evidence that termination is in the child’s best interests and that at least one statutory ground of parental fault exists.
  • Rebuttable presumptions (NRS 128.109):
    • NRS 128.109(1)(a): Presumes termination is in the child’s best interests if the child has been in protective custody for 14 or more of the most recent 20 consecutive months.
    • NRS 128.109(2): Presumes the parental-fault ground of “token efforts” exists under the same time-based predicate.
  • Evidence of unfitness (NRS 128.106(1)(d)): Excessive use of intoxicants or controlled substances rendering a parent consistently unable to care for the child may evidence unfitness.

II. Precedents Cited and Their Influence

  • Hernandez v. Bennett-Haron, 128 Nev. 580, 287 P.3d 305 (2012): Establishes de novo review for constitutional questions. The Court began from this standard in reviewing the challenge to NRS 128.109.
  • Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev. 502, 217 P.3d 546 (2009) and Silvar v. Eighth Jud. Dist. Ct., 122 Nev. 289, 129 P.3d 682 (2006): Statutes are presumed valid; the challenger bears the burden to show unconstitutionality. This presumption shapes the Court’s approach to Jason’s facial challenge.
  • Mathews v. Eldridge, 424 U.S. 319 (1976): Three-factor procedural due process test (private interest; risk of erroneous deprivation and value of additional procedures; governmental interest). The Court uses Mathews to analyze the presumptions’ fairness.
  • Santosky v. Kramer, 455 U.S. 745 (1982): Recognizes the fundamental liberty interest in parenting and requires clear and convincing evidence in termination proceedings. This anchors Nevada’s insistence on the clear-and-convincing threshold.
  • In re J.D.N., 128 Nev. 462, 283 P.3d 842 (2012): Nevada precedent approving the use of adverse presumptions against parents when their applicability is proven by clear and convincing evidence and they remain rebuttable by a preponderance of the evidence. The Court draws directly on J.D.N. to reject Jason’s burden-shifting argument.
  • In re Parental Rts. as to D.R.H., 120 Nev. 422, 92 P.3d 1230 (2004): Upheld NRS 128.109(2) against a substantive due process challenge, recognizing Nevada’s compelling interest in timely permanency for abused and neglected children. The current opinion extends the constitutional analysis to procedural due process and encompasses NRS 128.109(1)(a).
  • Extra-jurisdictional cases:
    • In re Erin, 823 N.E.2d 356 (Mass. 2005): Found a similar presumption unconstitutional under Massachusetts law. Nevada distinguishes and declines to follow.
    • In re K.R., 233 P.3d 746 (Kan. Ct. App. 2010); Sampson v. Div. of Fam. Servs., 868 A.2d 832 (Del. 2005); In re T.M.G., 283 S.W.3d 318 (Tenn. Ct. App. 2008): Uphold comparable rebuttable presumptions, reinforcing Nevada’s approach.
  • Bongiovi v. Sullivan, 122 Nev. 556, 138 P.3d 433 (2006): Issues not raised in the opening brief (here, Equal Protection) are forfeited.
  • A Minor v. State, 86 Nev. 691, 476 P.2d 11 (1970): Failure to move for recusal waives judicial-bias claims. Dispositive of Jason’s bias argument.
  • In re Parental Rts. as to A.J.G., 122 Nev. 1418, 148 P.3d 759 (2006): Appellate review asks whether substantial evidence supports the termination; appellate courts do not reweigh evidence. Guides the Court’s final review of the record.
  • In re Termination of Parental Rts. as to N.J., 116 Nev. 790, 8 P.3d 126 (2000): Confirms the dual requirements of best interests and at least one parental-fault ground, both by clear and convincing evidence.

III. Legal Reasoning

A. Procedural Due Process and the NRS 128.109 Presumptions

Applying Mathews, the Court acknowledged the paramount private interest in parental rights (Santosky) but held that the structure of NRS 128.109 does not unconstitutionally shift the burden of proof:

  • Risk of erroneous deprivation: Reduced because the State must first prove by clear and convincing evidence the factual predicates for the presumptions—namely, that the child has been in protective custody for 14 of the last 20 months. Only then does a rebuttable presumption arise.
  • Rebuttability: Parents may overcome the presumption by a preponderance of the evidence, which is a lower threshold than clear and convincing, further mitigating risks of error.
  • Governmental interest: Nevada has a compelling interest in timely achieving safe, stable, and permanent homes for children, an interest specifically recognized in D.R.H. The 14-of-20-month rule operationalizes that interest by preventing indefinite foster care drift.

In short, the Court reaffirmed its holding in J.D.N.: rebuttable presumptions in termination proceedings are compatible with due process when their predicates are proven by clear and convincing evidence and parents retain a meaningful opportunity to rebut by a preponderance of the evidence. The Court also noted that contrary authority from other jurisdictions was limited and unpersuasive in light of Nevada law and policy.

B. Trial Conduct: Bias, Inattentiveness, and the Confrontation Clause

  • Bias claims were waived by the failure to seek recusal in the district court (A Minor v. State).
  • Inattentiveness was not shown. That the court revisited admissibility and admitted certain dependency records reflected careful evidence management, not inattention.
  • Confrontation Clause arguments failed because termination proceedings are civil; Sixth Amendment confrontation rights attach only in criminal cases.
  • Videoconferencing: The Court observed that since the trial, ADKT 581 presumes termination proceedings are to be held in person, including the judge’s presence; virtual participation remains discretionary but demands careful, case-specific consideration given the gravity of termination proceedings.

C. Substantial Evidence Review: Best Interests and Parental Fault

After constitutional and procedural issues, the Court independently examined the record for substantial evidence. It found:

  • Best interests: R.B.J. is bonded with a foster family that also cares for his half-sister and intends to adopt both children. The placement provides stability and access to occupational therapy—the only home environment the child has known. These facts support the district court’s best-interests determination.
  • Parental fault: The evidence supported findings of unfitness, neglect, and token efforts due to Jason’s protracted substance abuse, associated criminal conduct (including domestic violence), incarceration, relapse, and recidivism. The court expressly acknowledged that Jason completed certain programs while incarcerated but afforded limited weight because he lacked a definitive post-release sobriety plan and had previously relapsed after similar programming.

Impact and Practical Implications

  • Constitutional clarity: Nevada practitioners can rely on NRS 128.109(1)(a) and (2) without fear that their rebuttable presumptions are facially unconstitutional under procedural due process, provided the State first proves the 14-of-20-month predicate by clear and convincing evidence and parents retain a preponderance-based opportunity to rebut.
  • Litigation strategy:
    • For the State: Build a meticulous record establishing the custody timeline under a clear-and-convincing standard, and independently establish at least one parental-fault ground. Document reasonable efforts, services offered, permanency planning, and the child’s current needs and attachments.
    • For Parents: Prepare affirmative rebuttal evidence to the presumptions, such as sustained sobriety, concrete post-release treatment plans, stable housing and employment, consistent visitation, and demonstrated parenting gains. Completion of in-custody programs may be insufficient without a credible, structured aftercare plan and proof of implementation.
  • Preservation of issues: Parties must timely move for recusal to preserve bias claims and must raise constitutional arguments in opening briefs. Equal protection claims raised for the first time in reply will not be considered.
  • Evidence and confrontation: Confrontation Clause rights do not apply; evidentiary issues are governed by civil rules and statutes. Counsel should frame objections accordingly, focusing on hearsay exceptions, reliability, and statutory admissibility provisions.
  • Virtual hearings: ADKT 581’s presumption of in-person termination hearings, including judicial presence, will influence courtroom practice. Courts retain discretion but should weigh the stakes, witness credibility considerations, and the parties’ rights and preferences before opting for virtual formats.
  • Child-centric focus: The Court’s best-interests analysis underscores the decisive weight of a child’s stability, bonded placements (particularly with siblings), and access to specialized services when balanced against a parent’s historical pattern of instability and unaddressed relapse risk.

Complex Concepts Simplified

  • Rebuttable presumption: A legal conclusion the court must adopt once certain facts are proven, unless the opposing party produces sufficient evidence to disprove or counter it. Here, if the State proves by clear and convincing evidence that the child spent 14 of 20 months in care, the law presumes (a) termination is in the child’s best interests and (b) “token efforts” parental fault. The parent can rebut by a preponderance of the evidence.
  • Standards of proof:
    • Clear and convincing evidence: A high level of certainty—more than “more likely than not,” less than “beyond a reasonable doubt.” Required to apply the presumptions and to terminate parental rights.
    • Preponderance of the evidence: More likely true than not. This is the burden on parents to rebut the presumptions once they arise.
    • Substantial evidence (appellate review): Enough relevant evidence that a reasonable mind might accept as adequate to support a conclusion; appellate courts do not reweigh testimony or second-guess credibility determinations.
  • Token efforts: A statutory basis for parental fault indicating only minimal or insubstantial efforts to remedy conditions or comply with case objectives—efforts that do not reasonably address the child’s needs or the safety concerns.
  • Mathews v. Eldridge test: Balances (1) the private interest affected, (2) risk of erroneous deprivation under existing procedures and the value of additional safeguards, and (3) the government’s interest, including practicality and administrative burdens, to evaluate procedural due process claims.
  • Confrontation Clause: A Sixth Amendment protection for criminal defendants to confront adverse witnesses. It does not apply in civil termination proceedings; objections must be grounded in civil evidence law.
  • ADKT 581 (Virtual Advocacy): Nevada’s framework for remote proceedings. Termination of parental rights hearings are presumptively in-person, including the judge’s presence, though courts have discretion to allow remote participation with due care.

Conclusion

The Nevada Supreme Court’s decision in In re: Parental Rights as to R.B.J. reinforces the State’s permanency-driven framework in dependency and termination litigation. The Court:

  • Affirmed that NRS 128.109’s rebuttable presumptions are procedurally constitutional when triggered by clear and convincing evidence and left open to rebuttal by a preponderance;
  • Clarified procedural guardrails—bias claims must be timely preserved; the Confrontation Clause does not govern civil terminations; and evidentiary management remains within the trial court’s discretion;
  • Signaled strong preferences for in-person termination proceedings under ADKT 581, given their gravity; and
  • Confirmed that substantial evidence supported both the best-interests determination and multiple parental-fault grounds in this case.

In practical terms, the opinion cements Nevada’s alignment with a due-process-compliant permanency model: the State must meet exacting evidentiary thresholds before presumptions arise, and parents retain a meaningful opportunity to rebut. But once the statutory timelines are met and the record reveals long-term instability unmitigated by concrete, credible rehabilitation plans, Nevada courts will prioritize the child’s need for stability, permanency, and therapeutic continuity. The decision thus provides clear guidance to litigants and trial courts and will likely shape the presentation and adjudication of termination cases across the state.

Case Details

Year: 2025
Court: Supreme Court of Nevada

Comments