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NACC Files Amicus Brief Supporting Right to Counsel in Nevada

Wednesday, May 20, 2020  
Posted by: Ranni Gonzalez
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On March 20, NACC filed an amicus curiae brief in the Supreme Court of Nevada supporting right to counsel for young people in dependency proceedings. The case involved a non-verbal, older youth who was denied the opportunity to opt-in to extended foster care through his attorney. Citing due process and statutory grounds, NACC argued against the lower court’s decision.

 

S.B. is a young person with autism who was removed from his home at age seven. S.B. was never adopted and remained in state custody for over a decade. S.B was represented by Washoe Legal Services throughout the dependency matter. S.B.’s attorney requested continued jurisdiction through extended foster care and independent living services after his eighteenth birthday.  After an evidentiary hearing, the court denied the petition for jurisdiction, finding that because S.B. is non-verbal, he did not make the election himself. NACC urged the court to reverse the district court’s decision.

 

In its brief, NACC argued that young people in the child welfare system have a Due Process right to counsel under the Fourteenth Amendment, established by the Mathews v. Eldridge balancing test. Mathews v. Eldridge, 424 U.S. 319 (1976). A child also has a right to independent legal counsel under Nevada law.  In 2016 the Nevada legislature enacted NRS 432B.420(2), mandating appointment of counsel to represent children in all dependency proceedings. NACC argued that the Court may consider legislative intent to determine the model of representation to be used when a child is non-verbal.  Here, the legislative history supported the use of a substituted judgment model of representation for non-verbal children. The District Court’s decision left S.B., who was already physically voiceless, legally voiceless as well.

 

Additionally, the District Court erred by asserting that a guardian ad litem would be required to make the election for continued jurisdiction, instead of S.B.’s counsel. While a guardian ad litem has authority to make decisions on behalf of a ward in other civil matters, the role is different in Nevada dependency cases. In Nevada, the child’s counsel advocates for the child’s legal interests; therefore, the District Court should have allowed S.B.’s counsel to elect continued jurisdiction. Because S.B.’s counsel was not permitted to do so, S.B. was denied extended foster care benefits to which he was statutorily entitled.

 

NACC asked the Nevada Supreme Court to reverse the District Court and acknowledge a child’s Due Process right to independent counsel, recognize that counsel must employ the substituted judgment model of representation where a client is nonverbal, and find that S.B. was denied his due process and statutory rights when his counsel was not permitted to elect continued jurisdiction. Read the full brief here



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