In Re: Parental Rights As To L.I.

                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                IN THE MATTER OF THE PARENTAL                            No. 83673
                RIGHTS AS TO: L.1., MINOR UNDER
                18 YEARS OF AGE.

                CODY B.,
                Appellant,                                                  AUG 1 1 2022
                                                                                    4
                vs.                                                                     k SROWN
                                                                       CL               REME COURT
                STATE OF NEVADA DEPARTMENT
                                                                             DEPU       CLERK
                OF FAMILY SERVICES; AND L.I.,
                MINOR UNDER 18 YEARS OF AGE,
                Res ondents.

                                        ORDER OF AFFIRMANCE
                            This appeal challenges a district court order terminating
                parental rights.   Eighth Judicial District Court, Family Court Division,
                Clark County; Robert Teuton, Judge.' Appellant is the natural father of
                L.I., a minor child, who was found to be the subject of neglect under NRS
                Chapter 432B. After a termination of parental rights trial, the district court
                terminated appellant's parental rights, finding parental fault—failure to
                adjust and token efforts—and that it was in L.I.'s best interest to remain
                with the prospective adoptive fainily. On appeal, appellant argues several
                issues warrant reversal, all of which lack merit as set forth below.
                            Appellant first argues that he had inadequate time with his
                counsel to prepare for trial due to facility lockdowns and because he had




                      1Having  considered the pro se brief filed by appellant, we conclude
                that a response is not necessary, NRAP 46A(c), and that oral argument is
                not warranted, NRAP 34(0(3). This appeal therefore has been decided
                based on the pro se brief and the record. Id.
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                    only thirty minutes with counsel to prepare the day before trial.2         To the

                    extent appellant argues that he received ineffective assistance of counsel,
                    we disagree.       "[T]he Fourteenth Amendment does not require the
                    appointment of counsel in all termination proceedings."            In re Parental

                    Rights as to N.D.O., 121 Nev. 379, 383, 115 P.3d 223, 225 (2005). Instead,
                    "a court must balance the private interests at stake, the government's
                    interest and the risk that the procedures used will lead to erroneous
                    decisions." Id. Appellant and DFS both have a strong interest at stake in
                    these proceedings. Appellant has a strong interest because termination of
                    parental rights severs the parent-child relationship. But the State also has
                    a strong interest in protecting children from "neglect and ensur[ing] that
                    [L.I.] ha[s] a stable family life." Id. at 384, 115 P.3d at 226.
                                Thus, we turn to the risk of an erroneous decision. We identify
                    no particular intricacies of appellant's case that would undermine
                    confidence in the result the district court reached. While cases requiring
                    expert testimony may be difficult to navigate without counsel, no expert
                    testimony was offered in appellant's case.       Id. at 385, 115 P.3d at 227
                    (holding that whether expert testimony is required is a relevant factor in
                    determining whether there was a high risk of an erroneous decision).
                    Moreover, appellant was present at the trial and was able to testify. Id.
                    (holding that whether the parent is able to testify is a relevant consideration


                          2 Notably,appellant does not challenge the district court's substantive
                    findings on parental fault or on the child's best interest. Nevertheless, we
                    conclude that substantial evidence supports the district court's findings,
                    including witness testimony and judicial notice of facts such as appellant's
                    incarcerations. See In re Termination of Parental Rights as to N.J., 116
                    Nev. 790, 795, 8 P.3d 126, 129 (2000) ("This court will uphold termination
                    orders based on substantial evidence, and will not substitute its own
                    judgment for that of the district court.").
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                     for whether there was a high risk of an erroneous decision).        And the

                     evidence supporting termination of parental rights included court-
                     mandated DFS reports reflecting neglect and no progress toward
                     reunification, as well as judicial notice of appellant's criminal convictions
                     and incarcerations.   As this evidence is admissible and not subject to
                     objection, we conclude that nothing in the record points to a high risk of an
                     incorrect decision.   See id. at 384-85, 115 P.3d at 226 (holding that
                     statements appearing in court-mandated DFS reports are admissible
                     because they are already part of the district court record); In re Parental
                     Rights of J.L.N., 118 Nev. 621, 628, 55 P.3d 955, 960 (2002) (holding that,
                     in considering a parent's incarceration in termination of parental rights
                     proceedings, "the district court must consider the nature of the crime, the
                     sentence imposed, who the crime was committed upon, the parent's conduct
                     toward the child before and during incarceration, and the child's specific
                     needs"). Balancing the foregoing, appellant did not have a right to counsel
                     in the district court and any ineffective-assistance-of-counsel claim
                     therefore necessarily fails. In re N.D.O., 121 Nev. at 386, 115 P.3d at 227
                     (holding that without a right to counsel there can be no ineffective-
                     assistance-of-counsel claim).
                                 To the extent appellant argues that the limited time he had
                     with his counsel violated his due process rights because he did not have
                     adequate time to prepare for trial, we also disagree. "[D]ue process requires
                     states to provide parents with fundamentally fair procedures in parental
                     termination proceedings." In re Parental Rights as to M.F., 132 Nev. 209,
                     212, 371 P.3d 995, 998 (2016). As with the analysis for determining whether
                     a parent is constitutionally entitled to counsel, in order to determine
                     whether the proceedings comport with due process requirements, we apply

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                  a balancing test comprised of three 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." Id. at 212-13, 371 P.3d at 998.
                  Further, we recently held in addressing due process arguments regarding
                  measures taken during the COVID-19 pandemic that "[u]nusual, historic
                  circumstances    can     require   unusual,   temporary     accommodations."

                  Chaparro v. State, 137 Nev., Adv. Op. 68, 497 P.3d 1187, 1195 (2021). Here,
                  it appears that both parties have compelling interests because appellant
                  has an interest in the companionship, care, custody, and management of
                  L.I.; and the State had an interest in the public's safety at a time when the
                  COVID-19 pandemic was ravaging the nation. Thus, the analysis turns on
                  an evaluation of the risk that the procedures used would have resulted in
                  an erroneous decision.
                              We conclude that appellant fails to demonstrate that there was
                  a high risk that the procedures implemented during the pandemic that he
                  complains of would have resulted in an erroneous decision. The record
                  reflects that the district court 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 correct standard of proof. See
                  In re M.F., 132 Nev. at 214, 371 P.3d at 999 (providing relevant factors for
                  determining whether the proceedings in a termination of parental rights
                  resulted in a high risk of an erroneous decision). Additionally, appellant
                  was given notice of the proceedings; was able to testify at trial; and was
                  represented by counsel during the proceedings, with whom he was able to
                  confer with privately even when incarcerated,             despite having no

                  constitutional right to counsel, as explained above.        See id.   Also, as



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                evidenced by the current appeal, appellant retained the right to appeal from
                an adverse decision. See id.
                              Additionally, appellant fails to identify any additional evidence
                he could have presented if he would have had more time with his counsel,
                or why a thirty-minute meeting with counsel was inadequate for his counsel
                to prepare his case. State v. Autry, 103 Nev. 552, 556, 746 P.2d 637, 640
                (1987) (holding that "proof of prejudice is generally a necessary . . . element
                of a due process claim" (internal quotation marks omitted)). Notably, the
                record reflects that appellant did not participate in his case until the initial
                hearing on the termination of parental rights on October 8, 2019, over a
                year after he was summonsed to appear. It also reflects that there were
                periods in which appellant was not incarcerated and he could have
                attempted to prepare his case with counsel or comply with his case plan,
                but he chose not to do so.3 And, as explained above, the evidence admitted
                at trial, even if objected to, would have ultimately been admitted. Thus, we
                conclude that he fails to demonstrate that this argument warrants reversal.
                              Reviewing for an abuse of discretion, we also reject appellant's
                final argument that the district court should have continued the trial. See
                Zessman v. State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978) (holding that
                "Nile matter of continuance is traditionally within the discretion of the trial
                judge"). Appellant fails to demonstrate that the district court had a duty
                under the circumstances to continue the trial absent a request to do so,


                      3 Forexample, despite not being "in custody for any substantial period
                of time between March 2018 and February 2019," and despite being
                released from a correctional housing facility for nearly two months before
                being arrested again for burglary in January of 2020, the record does not
                demonstrate that appellant made any attempts to prepare his case with
                counsel or comply with his DFS case plan.
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                   especially considering the numerous previous continuances and appellant's
                   initial lack of participation in the case. Moreover, while appellant moved
                   for a continuance before the February 12, 2021, trial date, he did not file
                   such a rnotion before the trial set for May 17, 2021. Thus, we conclude that
                   the district court did not abuse its discretion by not continuing the trial.
                   Accordingly, we
                                    ORDER the judgment of the district court AFFIRMED:1



                                                  r)
                                              Parraguirre


                                                                                          r..
                   Silver                                       Gibbons




                   cc:      Hon. Robert Teuton, District Judge, Family Court Division
                            Cody B.
                            Clark County District Attorney/Juvenile Division
                            Legal Aid Center of Southern Nevada, Inc.
                            Eighth District Court Clerk




                                Honorable Mark Gibbons, Senior Justice, participated in the
                            4 The
                   decision of this matter under a general order of assignment.

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