Date: 09-24-2015

Case Style: Joanna T. v. Eighth Jud. Dist. Ct.

Case Number: 65796

Judge: Justice Ron D. Parraguirre

Court: IN THE SUPREME COURT OF THE STATE OF NEVADA

Plaintiff's Attorney: David M. Schieck, Abira Grigsby,

Defendant's Attorney: Steven B. Wolfson, Felicia Quinlan

Description: Petitioner Joanna T.'s daughter was removed from the care of
Joanna's mother, Sheila T., in December 2012 while Joanna was in jail.
An abuse-and-neglect petition was filed alleging that the child was in need
of protection and naming both Joanna and Sheila, but no summons was
issued as to Joanna and she did not appear at the adjudicatory hearing.
The abuse-and-neglect petition was orally sustained by a domestic master
and both Joanna and Sheila were provided with case plans. Sheila
complied with her case plan, and the child was returned to her custody in
June 2013. In the order returning the child to Sheila, Joanna was allowed
supervised visitation with the child until she complied with her case plan
or until further order of the court.
Then, in March 2014, Joanna filed a motion to set aside the
master's oral recommendation to sustain the abuse-and-neglect petition
because Joanna had never received a summons notifying her of the
adjudicatory hearing. The juvenile court granted the motion, directed real
party in interest the State of Nevada to issue a summons, and set a new
adjudicatory hearing. A summons was thereafter served on Joanna on
April 24, 2014, 486 days after the abuse-and-neglect petition was filed.
Joanna moved to dismiss the petition asserting that the summons was
untimely under NRCP 4(i) because it was issued more than 120 days after
the abuse-and-neglect petition was filed. The juvenile court denied the
motion.
Joanna then filed with this court a petition for a writ of
mandamus or prohibition challenging the juvenile court's authority to
adjudicate the abuse-and-neglect petition as to her. She also filed an
emergency motion to stay the adjudicatory hearing, which this court
denied, thereby allowing the hearing to proceed. Thereafter, the juvenile
court held the hearing and considered whether the child was in need of
protection under NRS 432B.530(5) at the time of the child's removal.
Joanna did not appear personally at the hearing, apparently because she
had forgotten about it, but her counsel was present. The juvenile court
found that the child was in need of protection from Joanna because
Joanna's extensive history of untreated mental health issues, substance
abuse, and incarceration at the time of the child's removal adversely
affected her ability to care for the child. Thus, the juvenile court sustained
the abuse-and-neglect petition against Joanna. We conclude that
extraordinary writ relief is not warranted, but we take this opportunity to
clarify that NRCP 4(i)'s 120-day summons requirement does not apply in
NRS Chapter 432B proceedings.
DISCUSSION
NRCP 4(i) requires that in a civil action the summons and
complaint be served on the defendant within 120 days of the filing of the
complaint. If no such service is achieved and there is no showing of good
cause for the failure to serve the summons, then the court shall dismiss
the complaint without prejudice. NRCP 4(i). This rule does not apply,
however, in a proceeding that is governed by a specific statute containing
procedures and practices that are inconsistent or in conflict with the rule.
NRCP 4(i)'s 120-day requirement is inconsistent with the
expedited nature of NRS 432B proceedings. NRS Chapter 432B contains
its own summons provision, NRS 432B.520(1), which requires the issuance
of a summons after an abuse-and-neglect petition has been filed. But
unlike NRCP 4(i), the statute does not specify the time frame for issuing
the summons. The summons contemplated by NRS 432B.520 serves
several purposes: it puts the person with custody or control of the child on
notice that the petition has been filed and notifies that person of his or her
right to counsel, see NRS 432B.520(3) (providing that a copy of the petition
must be attached to the summons), and it requires that person to appear
personally and bring the child before the court, NRS 432B.520(1).
Accordingly, the summons must set forth the time and place for the
adjudicatory hearing on the abuse-and-neglect petition. NRS 432B.520.
The adjudicatory hearing on the petition must be held within 30 days of
the filing of the petition, unless there is good cause to continue the
hearing. NRS 4321B.530(1). If we applied NRCP 4(i) in NRS Chapter
432B proceedings, then a summons could be issued up to 120 days after
the filing of the abuse-and-neglect petition, well after the time that the
court must hold the adjudicatory hearing. Allowing the summons to be
served after the adjudicatory hearing would be contrary to NRS 432B.520
and defeat one of the key reasons for a summons: to provide a party with
notice of the action. See 0,-me v. Eighth Judicial Dist. Court, 105 Nev.
712, 715, 782 P.2d 1325, 1327 (1989) ("The primary purpose underlying
the rules regulating service of process is to insure that individuals are
provided actual notice of suit and a reasonable opportunity to defend.");
Berry v. Equitable Gold Mining Co., 29 Nev. 451, 456, 91 P. 537, 538
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(1907) ("The object and purpose of the summons is to bring defendants
into court ....").
Although another purpose of NRCP 4(i)'s 120-day requirement
is to ensure that cases do not linger in the system unpursued, see Scrirrter
v. Eighth Judicial Dist. Court, 116 Nev. 507, 513, 998 P.2d 1190, 1194
(2000) (explaining that NRCP 4(i) "was promulgated to encourage diligent
prosecution of complaints once they are filed"), NRS Chapter 432B already
ensures that abuse-and-neglect proceedings are diligently prosecuted. For
instance, the court must hold a hearing within 72 hours of the child's
removal from a home to determine whether the child should remain in
protective custody, NRS 432B.470(1), and an abuse-and-neglect petition
must be filed within 10 days of the protective custody hearing, NRS
432B.490(1)(b). The court then must hold an adjudicatory hearing on the
abuse-and-neglect petition within 30 days, NRS 432B.530(1), and annual
hearings thereafter regarding the permanent placement of the child, NRS
432B.590(1)(a). Given the expedited nature of the proceedings, NRCP
4(i)'s 120-day requirement is not necessary to ensure that the proceedings
are diligently prosecuted.
And finally, the remedy for failure to serve a summons within
120 days under NRCP 4(i)—automatic dismissal without prejudice—
conflicts with the purpose of NRS Chapter 432B proceedings. The purpose
of those proceedings is to protect children who have been abandoned or
abused, or otherwise need the State's protection. See NRS 432B.330
(identifying circumstances under which a child is or may be in need of
protection). Dismissal in the NRS Chapter 432B context could be highly
prejudicial because the child would be returned to a potentially unsafe
environment and the State would be unable to protect the child until it
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could once again establish reasonable causeS to believe that the child is
exposed to an immediate risk of injury, abuse, or neglect warranting
removal from the home. NRS 432B.390(1). Thus, a dismissal under
NRCP 4(i) would be contrary to the purpose of NRS Chapter 432B—
protecting children. Accordingly, we conclude that NRCP 4(i)'s 120-day
requirement is inconsistent with the procedures described in NRS Chapter
432B, and therefore, is inapplicable.'
Having concluded that NRS Chapter 432B contemplates
expedited proceedings, we now must decide whether Joanna met her
burden of establishing that this court's extraordinary intervention is
warranted to require the district court to dismiss the abuse-and-neglect
petition because of the State's extensive delay in serving the summons on
her. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840,
844 (2004) (explaining that the party seeking writ relief has the burden of
demonstrating that extraordinary relief is warranted). This matter did
not linger unnoticed after the abuse-and-neglect petition was filed. In
fact, by the time Joanna moved to dismiss this case, Sheila had completed
her case plan and the child had been returned to her care. And despite
having had knowledge of this matter, Joanna failed to promptly raise the
summons issue until more than a year after the abuse-and-neglect petition
had been filed. Thereafter, the juvenile court allowed the State to cure the
procedural error by serving a summons on Joanna for a new adjudicatory
hearing and subsequently held an adjudicatory hearing of which Joanna
'Because NRS Chapter 432B proceedings are civil in nature, the NRCP generally apply to those proceedings unless a specific rule of procedure conflicts with a provision of NRS Chapter 432B, like NRCP 4(i) does, in which case that procedural rule does not apply. See NRCP 81(a).
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had proper notice. Nothing in NRS Chapter 432B prohibited the court
from correcting the procedural deficiency and modifying its orders as it
deemed was in the child's best interest. See NRS 432B.570(2) (allowing
the court to "revoke or modify any order as it determines is in the best
interest of the child").
Indeed, the record established that the child's best interest
would not be served by her return to Joanna's care. Joanna had not
remedied the issues that led to the child's placement in protective custody.
Only a few months before the second adjudicatory hearing, Joanna
admitted to having recently used methamphetamine. She had also
previously admitted that after being discharged from a mental health
facility, she chose not to follow her outpatient aftercare treatment plan.
And during one of her visitations with the child, she attempted to use a
glue stick on the child's eyes and face. Thus, despite the State's failure to
issue Joanna a summons before the original adjudicatory hearing,
dismissal of the abuse-and-neglect petition would not have been in the
child's best interest because the child would have been returned to
Joanna's care even though Joanna had failed to alleviate the risk to the
child.

Outcome: While we do not condone the State's failure to timely serve a
summons on Joanna before the original adjudicatory hearing, the juvenile
court did not exceed its jurisdiction or act arbitrarily or capriciously by
denying Joanna's motion to dismiss. See NRS 34.160; NRS 34.320
(providing that a writ of prohibition is available to arrest the proceedings
of a district court exercising its judicial functions in excess of its
jurisdiction); Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124
Nev. 193, 197, 179 P.3d 556, 558 (2008) (explaining that a writ of
mandamus is available to compel the performance of an act that the law
requires as a duty resulting from an office, trust, or station, or to control
an arbitrary or capricious exercise of discretion). Instead, it appropriately
provided the State with an opportunity to cure the procedural defect in the
interest of protecting the child. Accordingly, we deny the petition for a
writ of mandamus or prohibition

Plaintiff's Experts:

Defendant's Experts:

Comments: This petition for a writ of mandamus or prohibition presents a novel issue regarding whether NRCP 4(i)'s requirement that a summons be served within 120 days applies in NRS Chapter 432B proceedings. Because we conclude that it does not and that dismissal of the underlying abuse-and-neglect petition is not warranted, we deny the petition.