B.Y. AND A.F. VS. DIST. CT. (BURDISS)

Statutes cited

Key holdings

Practitioner summary

The court treated this as an emergency original writ proceeding because no adequate legal remedy existed to challenge denial of temporary guardianship. NRS 34.170. Mandamus review applies the manifest-abuse-of-discretion standard. Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). On the merits, the court construed NRS 159A.053, which permits temporary guardianship of a minor on a showing of good cause and prefiling notice (or excuse therefrom). Although "good cause" is not defined in the statute, NRS 159A.053(4) creates a presumption that temporary guardianship is in the minor's best interest when no parent has had care, custody, and control of the minor for the six months preceding the petition. NRS 159A.061(4)(c) parallel-presumes parental unsuitability on the same six-month showing. Because petitioners had been out of their parents' care since March 2023, both presumptions applied, and good cause was presumed. The court rejected the district judge's argument that the NRS 159A.053(4) presumption cannot apply to ex parte appointments because it is rebuttable. Citing NRS 47.240 (limiting conclusive presumptions to those enumerated or expressly made conclusive by statute) and Black's Law Dictionary's definition of "presumption," the court held that the presumption applies "any time temporary guardianship is sought"; that it may be rebutted only at the post-appointment hearing required within ten days under NRS 159A.053(8) does not preclude its application at the ex parte stage. The court cited In re Amberley D., 775 A.2d 1158, 1163 (Me. 2001), for the proposition that the risk of erroneous deprivation of parental rights is lessened when an emergency guardianship is limited in duration and a prompt hearing is available. Although ex parte requests must be supported by an affidavit explaining the emergency, NRS 159A.053(3), the court found that the district court's no-emergency conclusion appeared to rest in part on a misapprehension that the Burdisses (rather than B.Y. and A.F.) were the petitioners - hence the district court's reliance on the absence of a request for temporary guardianship over the two youngest children was misplaced. The court also noted the alleged ongoing risks (fear of the mother's new partner, possible unenrollment from school, the months-out general guardianship hearing) and observed that, if no ex parte emergency existed, the district court could have required notice and held an expedited hearing rather than denying the petition outright. In a footnote, the court addressed the earlier denial of the general guardianship petition for failure to provide proof of service, observing that NRS 159A.034(6) permits proof of service to be filed "[o]n or before the date set for the hearing," and that, read together with NRS 159A.0145 and NRS 159A.047, the more specific statute should control over NRCP 5. The court granted the petition in part and directed issuance of a writ of mandamus ordering the district court to reconsider the temporary guardianship petition on an expedited basis. The court also granted petitioners' motion to reissue its earlier unpublished March 8, 2024 order as a published opinion. NRAP 36(f).

In plain language

Two grandmothers in Las Vegas asked a Nevada district court to make them the legal guardians of their four grandchildren, saying the children had been living with them since March 2023 and were not safe with their mother and her new partner. The court initially denied the grandmothers' petition for procedural reasons (a service issue), and a new hearing was scheduled for April 2024 - several months away. While waiting for that hearing, the two oldest grandchildren, represented by appointed counsel, asked the court for a temporary guardianship - a short-term arrangement that would put their grandmothers in charge of them until the full hearing could happen. They said they were afraid to go back to their mother because of her new partner's history, that they might be unenrolled from school, and that they had been living with their grandmothers for nearly a year. Two days after they filed, the district court denied the request without holding a hearing, saying there was no emergency. The two children then asked the Nevada Supreme Court for an emergency order forcing the district court to reconsider. The Supreme Court agreed that the district court had not properly considered the request. Under Nevada law, when a parent has not had care, custody, and control of a child for the previous six months, there is a legal presumption that temporary guardianship is in the child's best interest and that the parent is unsuitable. The children had been out of their parents' care for well over six months, so those presumptions applied. The Supreme Court also pointed out that the district court appeared to have confused who was asking for the temporary guardianship - it was the two oldest children, not the grandmothers, so the fact that no one sought temporary guardianship over the two younger children was not a reason to deny the request. The Supreme Court ordered the district court to reconsider the petition on an expedited basis. It also noted that the district court could, if it preferred, require notice and hold a quick hearing rather than rule ex parte (without the other side present), so the mother and other interested parties would have a chance to respond.