132 Nev, Advance Opinion 1
IN THE SUPREME COURT OF THE STATE OF NEVADA
MANUELA H., No. 67127
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF JAN 0 7 016
CLARK; AND THE HONORABLE TRAC;E ENDEMAN
F Stir- , :E`
ROBERT TEUTON, DISTRICT JUDGE,
E3 4-11=1- -6-.LE, U
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus or prohibition
challenging a district court order requiring petitioner to submit to drug
testing in an abuse and neglect case.
Petition granted.
David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy
Special Public Defender, Clark County,
for Petitioner.
Steven B. Wolfson, District Attorney, and Felicia R. Quinlan, Deputy
District Attorney, Clark County,
for Real Party in Interest.
BEFORE PARRAGUIRRE, C.J., DOUGLAS and CHERRY, JJ.
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OPINION
By the Court, CHERRY, J.:
This writ petition challenges a district court order establishing
a case plan in an abuse and neglect proceeding, which requires petitioner
Manuela H. to submit to drug testing if an agent from the Department of
Children and Family Services (DFS) reasonably believes that she is under
the influence of a controlled substance. However, the district court did not
make any findings to support the drug-testing requirement in the case
plan. We hold that when an action step in a case plan is not related to an
allegation in the abuse and neglect petition, the district court must make
specific factual findings that justify the action step with which the parent
must comply. Because the district court did not make factual findings to
justify the action step that Manuela submit to drug testing when a DFS
agent reasonably believes she is under the influence of a controlled
substance, and because Manuela has no other remedy available to her, we
grant her petition for a writ of mandamus.
FACTS AND PROCEDURAL HISTORY
In 2014, Manuela and her two daughters—A.H., who was 2
years and 8 months at the time, and K.H., who was 15 months at the
time—lived with Jonathan B., Manuela's boyfriend.' On the morning of
February 4, 2014, a babysitter cared for the children. When she arrived,
the sitter noticed that K.H.'s face was extensively bruised. Jonathan
informed the sitter that K.H. received the injuries during a fight with her
older sister and then left the children in the sitter's care. Thereafter, the
sitter called Manuela at work and informed Manuela that K.H. needed
"Jonathan is not the biological father of either child.
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medical care. Manuela explained that she was unable to leave work and
that K.H. was injured when she fell off of her bed.
The sitter took K.H. to Sunrise Children's Hospital in Las
Vegas, where K.H. was examined and treated. The treating physician, Dr.
Sandra Cetl, noted several significant injuries. She opined that K.H.'s
injuries were inconsistent with the claims the sitter related. Because Dr.
Ceti suspected child abuse, the State of Nevada, through DFS, intervened.
DFS placed both A.H. and K.H. in protective custody and gave physical
custody of the children to their maternal grandmother.
Two days after K.H. and A.H. were taken into protective
custody, the family court conducted a protective custody hearing pursuant
to NRS 432B.470 and NRS 432B.480. The court was concerned that the
children were physically abused and found that cause existed to remove
the children from their home. The court approved the children's
placement in protective custody and granted Manuela and K.H.'s father,
William T.-L., supervised visitation at Child Haven. 2
Abuse I neglect petition
The State's amended abuse and neglect petition 3 alleged that
A.H. and K.H. needed the State's protection because K.H. required
medical treatment as a result of injuries caused by negligence or a
deliberate and unreasonable act. The petition alleged that Manuela failed
to protect K.H. from abuse by Jonathan and that Manuela either observed
2 The record before this court tells us very little about A.H.'s father,
Israel P. The abuse/neglect petition solely states that Israel P. "does not
provide for the care, control, supervision, or subsistence of' A.H.
3 The record before this court does not reflect the State's reason for
amending the original abuse and neglect petition.
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or knew that Jonathan twice slapped K.H. and A.H. on their faces and
that Jonathan admitted to slapping the children. Additionally, the
petition claimed that both Manuela and William were unable to properly
care for the children because each of them had a history of domestic
violence. The petition further claimed that William admitted to
methamphetamine use and was therefore unable to care for K.H. The
petition did not contain any allegations regarding Manuela and drug use.
Dispositional hearing and case plan
At the district court disposition hearing, the court reviewed
DFS's case plans with the parties. Manuela's case plan included a
provision that she must randomly submit to drug testing. She objected,
claiming that drug testing was unwarranted because the petition did not
allege that she used illegal drugs and because she voluntarily took a drug
test, which was clean. The State explained that it sought to test Manuela
for drugs because she associated with those who used drugs and because
one negative test does not establish that she does not use drugs.
Instead of requiring Manuela to submit to random drug tests,
the district court imposed a reasonable belief standard and ordered that a
DFS agent could require Manuela to take a drug test if the agent
reasonably believed Manuela was under the influence of a controlled
substance. The court clarified that a DFS agent could only require the
test if the agent met with Manuela and Manuela exhibited slurred speech
or another sign of drug use.
According to the modified case plan, the primary goal of the
State's intervention was to reunify the family. The plan established the
following objectives for Manuela: (1) to resolve physical abuse matters,
(2) to resolve her domestic violence concerns, (3) to resolve her criminal
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cases, (4) to collaborate with DFS, and (5) to resolve other parenting
concerns. To accomplish these objectives, the plan listed several action
steps that Manuela was required to complete. Among other action steps,
and under the objective of collaborating with DFS, the court ordered
Manuela to take a drug test when she appeared to be under the influence
of a controlled substance and then complete a substance abuse evaluation
if she tested positive.
Manuela subsequently filed a writ petition requesting that
this court either (1) prohibit the district court from requiring that she
submit to drug tests or (2) require the district court to amend the case
plan and eliminate the drug-test requirement. We denied Manuela's
petition because she had an adequate remedy at law- filing a motion to
revoke or modify the case plan pursuant to NRS 432B.570(1).
Accordingly, Manuela filed a motion to amend her case plan.
At the hearing on her motion, Manuela stressed that mere association
with drug users was not enough to require her to take a drug test. She
argued that the action steps in a case plan must rationally relate to the
allegations in the petition and that the petition did not allege that she had
substance abuse issues. Manuela further argued that drug testing based
on reasonable belief is an unreasonable search and that the State's
standard of proof should be, at least, probable cause.
The district court denied Manuela's motion. The court found
that the drug tests could intrude upon Manuela's constitutional rights but
concluded that it had minimized the intrusion based on the court's
jurisdiction over the children, the facts of the case, and the need to prevent
DFS from having to remove her children in the future. Manuela's instant
petition followed.
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DISCUSSION
Writ relief
A writ of mandamus is available "to compel the performance of
an act that the law requires . . . or to control an arbitrary or capricious
exercise of discretion." Int'l Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 197,
179 P.3d 556, 558 (2008); see also NRS 34.160.
A writ of prohibition may be warranted when a district court acts without
or in excess of its jurisdiction. NRS 34.320; Club Vista Fin. Servs., LLC v.
Eighth Judicial Dist, Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249
(2012); see also Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677,
818 P.2d 849, 851 (1991).
Additionally, writ relief is generally only available when there
is no plain, speedy, and adequate remedy in the ordinary course of law.
NRS 34.170; NRS 34.330; see also Oxbow Constr., LLC v. Eighth Judicial
Dist. Court, 130 Nev., Adv. Op. 86, 335 P.3d 1234, 1238 (2014). A
petitioner bears the burden of demonstrating that the extraordinary
remedy of mandamus or prohibition is warranted. Pan v. Eighth Judicial
Dist. Court, 120 Nev. 222, 228,
88 P.3d 840, 844 (2004). Determining
whether to consider a petition for extraordinary relief is solely within this
court's discretion. Smith, 107 Nev. at 677,
818 P.2d at 851.
This court will decline to consider writ petitions challenging
interlocutory district court orders in most cases. Oxbow Constr., 130 Nev.,
Adv. Op. 86, 335 P.3d at 1238. But we may use our discretion to consider
writ petitions when an important issue of law needs clarification and
considerations of sound judicial economy are served by considering the
writ petition. Renown Reg? Med. Ctr. v. Second Judicial Dist, Court, 130
Nev., Adv. Op. 80, 335 P.3d 199, 202 (2014).
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Neither NRAP 3A(b) nor other statutory provisions allow a
party to appeal a district court's denial of a motion to amend a case plan;
thus, Manuela does not have an adequate legal remedy at law, and writ
relief is her only option. Moreover, the petition presents an important
issue of law that requires our clarification. Therefore, we will consider
this writ petition.
Factual findings
In her petition, Manuela argues that the action steps in the
case plan must rationally relate to the charges in the State's abuse and
neglect petition. She asserts that with no failed drug tests or evidence
indicating that she has ever used or abused controlled substances, the
district court exceeded its authority when it required her to submit to drug
tests whenever a DFS agent reasonably believes she is under the influence
of a controlled substance. Manuela also argues that NRS 432B.540 does
not give the district court broad discretion to create requirements that are
absent from the State's petition.
The State disagrees, arguing that NRS 432B.540 requires the
district court to create an appropriate plan to provide for the permanent
placement of the children. The State also contends that NRS 432B.560(1)
authorizes the court to order the parent to complete any treatment that it
deems to be in the best interest of the child.
We review questions of statutory interpretation and other
legal issues de novo. Rennets v. Rennels, 127 Nev. 564, 569,
257 P.3d 396,
399 (2011). Our goal in interpreting statutes is to effectuate the
Legislature's intent. Edgington v. Edgington, 119 Nev. 577, 582-83,
80
P.3d 1282, 1286-87 (2003). To do so, we must "give [a statute's] terms
their plain meaning, considering its provisions as a whole so as to read
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them in a way that would not render words or phrases superfluous or
make a provision nugatory." S. Nev. Homebuilders Ass'n v. Clark Cty., 121
Nev. 446, 449,
117 P.3d 171, 173 (2005) (internal quotation omitted). But
"[wthen a statute. . . does not address the issue at hand," we "look to
reason and public policy to determine what the Legislature intended."
Pub. Emps.' Benefits Program v. Las Vegas Metro. Police Dep't, 124 Nev.
138, 147,
179 P.3d 542, 548 (2008).
When the State determines that a child needs protection from
abuse or neglect, the State files a petition in the district court outlining
"Mlle facts which bring the child within the jurisdiction of the court."
NRS 432B.510(4)(a); see also NRS 432B.410(1). If the court finds that the
allegations in the petition are true, then the child welfare services agency
must make a report, and if the agency thinks a child needs to be removed
from a parent's custody, the agency must also make a case plan. NRS
432B.540. A case plan is either a written agreement between the
parent(s) and the custodial agency or an order of the court. NRS 128.0155.
The action steps in the case plan are conditions "which have a primary
objective of reuniting the family or, if the parents neglect or refuse to
comply with the terms and conditions of the case plan, freeing the child for
adoption." Id. In order to provide for the child's "best interests and
special needs," the Legislature requires that the case plan include:
(b) A description of the services to be
provided to the child and to a parent to facilitate
the return of the child to the custody of the parent
or to ensure the permanent placement of the child;
(c) The appropriateness of the services to be
provided under the plan; and
(d) A description of how the order of the
court will be carried out.
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NRS 432B.540(2). The Nevada Legislature has authorized district courts
to order a parent under their respective jurisdictions through abuse and
neglect proceedings "to undergo such medical, psychiatric, psychological,
or other care or treatment as the court considers to be in the best interests
of the child." NRS 432B.560(1)(a). Likewise, the court may preclude a
parent from engaging in "rainy harmful or offensive conduct toward the
child, the other parent, the custodian of the child or the person given
physical custody of the child." NRS 432B.560(1)(b)(1). In preserving and
reunifying families following abuse or neglect allegations, the Nevada
Legislature very clearly requires that "the health and safety of the child
must be the paramount concern." NRS 432B.393(2) (emphasis added).
We have previously held, albeit in the context of determining
child custody, that a court cannot determine the best interest of a child in
custody proceedings without making factual findings. See Davis v.
Ewalefo, 131 Nev., Adv. Op. 45, 352 P.3d 1139, 1143 (2015). Accordingly,
we hold that a district court, pursuant to NRS 432B.560(1), has the
authority to order a parent to undergo treatment or testing that deviates
from the petition if it deems such treatment or testing necessary to protect
the child's best interest, so long as the district court issues factual findings
to support the action step. When the action steps deviate from the
petition, we admonish the district court to issue "specific, relevant
findings" and "an adequate explanation of the reasons for" the court's
order. See Davis, 131 Nev., Adv. Op. 45, 352 P.3d at 1143. Without
findings that provide a "factual basis" for the district court's order, "this
court cannot say with assurance" whether the action steps were ordered
"for appropriate legal reasons." See id. at 1143-44.
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Here, the record does not contain any factual findings that
support the court's order that Manuela submit to drug testing when a DFS
agent reasonably believes she is under the influence of a controlled
substance. The State's petition did not allege that Manuela used or
abused controlled substances at any time At the hearing, the State
represented that it sought to drug test Manuela because it believed she
continuously associated with drug users and because a single, clean drug
test did not indicate that Manuela did not use drugs infrequently. The
State's unsubstantiated representation at the hearing, standing alone, is
insufficient to justify the drug-testing requirement. See A Minor v. State,
85 Nev. 323, 325,
454 P.2d 895, 896 (1969) ("It has long been a recognized
rule of law that any statement or argument made by counsel before the
trier of facts, concerning the fact of a case, cannot be regarded as
evidence."). Accordingly, the district court's authority to prescribe an
additional requirement rests in its express findings that the additional
requirement is in the best interest of the child due to the specific facts of
the case. Because there are no explicit factual findings that show why this
action step in Manuela's case plan is justified, we grant Manuela's
petition.
Therefore, we grant the petition 4 and direct the clerk of this
court to issue a writ of mandamus directing the district court to vacate the
4We decline to reach Manuela's constitutional claims because we are
granting her petition on other grounds. See Miller v. Burk, 124 Nev. 579,
588-89 & n.26, 188 P.3d 1112, 1118-19 & n.26 (2008) (explaining that we
need not address issues, even constitutional issues, if they are
unnecessary to resolve the case at hand).
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portion of its order establishing the drug-testing requirement in the case
plan and to proceed consistent with this opinion.
We concur:
Parraguirre
J.
----1)—e,"
Douglas
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