When must a summons be served in a child protective custody proceeding?

Child Protective Custody Proceeding

Joanna T. v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Sep. 24, 2015)

The issue is whether NRCP 4(i)’s requirement that a summons be served within 120 days applies in NRS Chapter 432B proceedings.

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 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 the Supreme Court of Nevada 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 the 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.

The Supreme Court of Nevada explained that 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. Pursuant to NRCP 81(a), this rule does not apply in a proceeding that is governed by a specific statute containing procedures and practices that are inconsistent or in conflict with the rule.

The Court believed that NRCP 4(i)’s 120-day requirement was 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 Court explained that 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 and it requires that person to appear personally and bring the child before the court. Accordingly, the summons must set forth the time and place for the adjudicatory hearing on the abuse-and-neglect petition. 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. The Court noted that if it 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. Thus, the Court explained that 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.

The Court noted that although another purpose of NRCP 4(i)’s 120-day requirement is to ensure that cases do not linger in the system unpursued, 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, and an abuse-and-neglect petition must be filed within 10 days of the protective custody hearing. The court then must hold an adjudicatory hearing on the abuse-and-neglect petition within 30 days and annual hearings thereafter regarding the permanent placement of the child. The Court noted that 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.

The Court explained that 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. 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 could once again establish reasonable cause to believe that the child is exposed to an immediate risk of injury, abuse, or neglect warranting removal from the home. Thus, the Court determined that a dismissal under NRCP 4(i) would be contrary to the purpose of NRS Chapter 432B— protecting children. Accordingly, the Court concluded 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, the Court then decided 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. The Court noted that 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. The Court explained that 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 had proper notice. The Court noted that 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.

The Court explained that 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, the Court concluded that 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.

While the Court did not condone the State’s failure to timely serve a summons on Joanna before the original adjudicatory hearing, the Court believed that the juvenile court did not exceed its jurisdiction or act arbitrarily or capriciously by denying Joanna’s motion to dismiss. Instead, it appropriately provided the State with an opportunity to cure the procedural defect in the interest of protecting the child. Accordingly, the Court denied the petition for a writ of mandamus or prohibition.

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