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

Statutes cited

Key holdings

Practitioner summary

The Court reviewed the denial of an ex parte temporary-guardianship petition through original writ jurisdiction, concluding no adequate legal remedy existed to challenge the denial. NRS 34.170. Relief is warranted upon a manifest abuse of discretion. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). Temporary guardianships are governed largely by NRS 159A.053. They issue on a finding of good cause where the petitioner attempted pre-filing notice or was excused. NRS 159A.053(2). The statute does not define good cause, but NRS 159A.053(4) creates a presumption that temporary guardianship of the person is in the minor's best interest when no parent has had care, custody, and control for the preceding six months. NRS 159A.061(4)(c) creates a parallel presumption that a parent is unsuitable under the same circumstance. Because the petitioners had been out of their parents' custody since March 2023, both presumptions applied, and good cause was therefore presumed. The Court rejected the district court's reasoning that the rebuttable presumption in NRS 159A.053(4) cannot apply at the ex parte stage. 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" (11th ed. 2019), the Court concluded the presumption applies whenever temporary guardianship is sought; the parent's opportunity to rebut at the post-appointment hearing within ten days under NRS 159A.053(8) preserves due-process interests. See In re Amberley D., 775 A.2d 1158, 1163 (Me. 2001) (risk of erroneous deprivation of parental rights mitigated where emergency guardianship is short and parent receives a prompt hearing at which guardian bears the burden). NRS 159A.053(3) requires an affidavit explaining the emergency for ex parte appointment. While findings on emergency are typically discretionary and fact-based, the Court identified an analytic flaw: the district court's no-emergency conclusion partly rested on the absence of a request for temporary guardianship over all four children, but the petition was filed by B.Y. and A.F. through counsel - not by the Burdisses - and therefore necessarily covered only the two children represented. The Court also identified independent emergency-relevant facts (months of de facto residence with the grandmother without a valid guardianship; alleged fear of the mother's new partner with cited backgrounds; alleged disenrollment from school; the multi-month delay until the general-guardianship hearing). The Court further noted that even absent grounds for ex parte relief, the district court could have required notice and held an expedited hearing. In a footnote, the Court addressed the earlier dismissal of the Burdisses' general-guardianship petition for failure to provide proof of service. It concluded the dismissal appears premature because NRS 159A.034(6) allows proof to be filed "[o]n or before the date set for the hearing." Although that provision references "notices," a citation provides notice of a hearing, NRS 159A.0145; NRS 159A.047, and the petition must be served with the citation, NRS 159A.047(2). The Court reasoned that the more specific statute, NRS 159A.034(6), governs over the general approach under NRCP 5. Finding manifest abuse of discretion, the Court granted writ relief in part and directed reconsideration on an expedited basis.

In plain language

Two children, ages 14 and 10, had been living with their grandmother since March 2023. In October 2023, the grandmother and another relative filed a petition asking to be made the children's general guardians, citing concerns about the mother's housing, her new partner, and her refusal to renew earlier voluntary guardianship paperwork. The hearing on that petition was set far out, eventually rescheduled to April 2024. In late January 2024, the two oldest children, through their own appointed lawyer, asked the district court for a temporary guardianship - a short-term order placing them with their grandmother until the full hearing could occur. They said they were afraid of their mother's new partner because of past domestic violence and the partner's criminal history, that they might not be enrolled in school, and that they had been out of their parents' care for far longer than six months. Two days later, the district court denied the temporary-guardianship request, finding no emergency. The children then asked the Nevada Supreme Court for a writ of mandamus - a court order directing a lower court to do something the law requires. They argued the district court ignored statutory presumptions that, after six months out of a parent's care, temporary guardianship is presumed to be in a child's best interest and the parent is presumed unsuitable. The Supreme Court agreed in part. It held that the statutory presumptions under NRS 159A.053(4) and NRS 159A.061(4)(c) apply even at the ex parte stage (before the parent has been heard), because the parent gets a chance to rebut them at a hearing held shortly after. The Court also concluded that the district judge's reasoning included a factual misunderstanding: she had partly relied on the fact that the grandmother had not sought temporary guardianship over all four children, but it was the two oldest children themselves - not the grandmother - who filed the petition at issue. The Court further observed that even if a true emergency was lacking, the district court could have required notice and held an expedited hearing rather than simply denying the petition. The Supreme Court did not order that temporary guardianship be granted. It directed the district court to reconsider the petition on an expedited basis under the proper legal framework. Disputes the mother raised about the underlying allegations can be addressed at that hearing.