IN RE: GUARDIANSHIP OF A. A L. R. (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed a district court's denial of a minor guardianship petition under an abuse-of-discretion standard: "Absent a showing of abuse, we will not disturb the district court's exercise of discretion concerning guardianship determinations." In re Guardianship of L.S. & H.S., 120 Nev. 157, 163, 87 P.3d 521, 525 (2004). An abuse of discretion occurs where the decision "is arbitrary or capricious or if it exceeds the bounds of law or reason." Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). The court defers to the district court's factual findings and upholds them if not clearly erroneous and supported by substantial evidence, Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009), with substantial evidence defined as "evidence that a reasonable person may accept as adequate to sustain a judgment," Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). On the governing framework, the court noted that a guardianship petitioner "has the burden of proving by clear and convincing evidence that the appointment of a guardian of the person, of the estate, or of the person and estate is necessary." NRS 159A.055(1). If the court finds the proposed protected minor is not in need of a guardian, it "shall dismiss the petition." NRS 159A.054(1). The court must always act in the best interests of the proposed protected minor, NRS 159A.061(9), but "the best interest of the child is usually served by awarding [the child's] custody to a fit parent," Hudson v. Jones, 122 Nev. 708, 711, 138 P.3d 429, 430-31 (2006). Applying that framework, the district court considered the NRS 159A.061(3) factors. It found the father was incarcerated and Fears was the custodial parent (NRS 159A.061(3)(a)); that although Fears had difficulty finding well-paid jobs and sometimes struggled with her residential situation, there was no evidence she was unable to provide the child's basic needs such as food, shelter, clothing, and medical care (NRS 159A.061(3)(b)); that Gilmore did not establish Fears had a drug or alcohol problem (the opinion cites NRS 159A.061(8)(c) in this context); and that there was no evidence Fears had been convicted of crimes or engaged in domestic violence (NRS 159A.061(3)(d), (e), (f)). The court also addressed the rebuttable presumption under NRS 159A.061(4)(c), which presumes a parent unsuitable when the child has been out of the parent's care, custody, and control for the six months preceding the filing of the petition. The district court concluded Gilmore failed to prove the child had been out of Fears' care for that six-month period, finding that Fears' arrangement for Gilmore to watch the child during overnight work shifts did not constitute the kind of abandonment that triggers the presumption. Because Gilmore failed to establish by clear and convincing evidence that Fears was unsuitable or that the guardianship was necessary under NRS 159A.055(1), the district court denied the petition. The Court of Appeals held the factual findings were supported by substantial evidence. See Ogawa, 125 Nev. at 668, 221 P.3d at 704. The court declined Gilmore's invitation to reweigh evidence or the district court's credibility determinations, citing Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009), and found no showing that the district court's decision was arbitrary or capricious or exceeded the bounds of law or reason under Skender, 122 Nev. at 1435, 148 P.3d at 714. It thus discerned no abuse of discretion under In re Guardianship of L.S. & H.S. On the judicial-bias claim, the court applied the standard from Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), explaining that unless an alleged bias originates in an extrajudicial source, disqualification is unwarranted absent a showing that the judge formed an opinion based on facts introduced during official judicial proceedings reflecting "a deep-seated favoritism or antagonism that would make fair judgment impossible." The court further cited In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988), for the proposition that rulings made during official judicial proceedings generally "do not establish legally cognizable grounds for disqualification," and Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009) (overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022)), for the burden being on the party asserting bias. The court found the record demonstrated the district court listened to the testimony and considered the evidence, and thus did not show the court had closed its "mind to the presentation of all the evidence," Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998). The court affirmed.

In plain language

This case involves a grandmother, Donna Gilmore, who asked a family court to make her the legal guardian of her three-year-old granddaughter. A guardianship is a legal arrangement in which a court gives one person the authority and responsibility to care for another person who cannot fully care for themselves - here, a young child. Gilmore filed her petition in May 2023. She claimed the child's mother, Monica Fears, could not properly care for the child because Fears was often homeless, lacked steady work and a vehicle, and had a substance abuse problem. She also noted that the child's father was in jail and could not care for the child. Gilmore said the child had been living with her since May 2022, and she asked the court for temporary guardianship until the case was decided. The court granted the temporary guardianship while it looked into the situation. The court later held an evidentiary hearing - a hearing where witnesses testify and evidence is presented so the judge can make findings of fact. Both women testified. Gilmore said she often babysat the child while Fears worked and disagreed with Fears' choices about who else babysat the child. Fears testified that the child had not moved in with Gilmore; instead, Gilmore had simply been the babysitter while Fears worked night shifts. Fears said she had a full-time job as a restaurant server, also worked part-time as a tattoo artist, had a residence, took the child to medical care when needed, and had a plan for childcare through a housemate. Fears denied having a substance abuse problem. She also explained that she had fainted at work in May 2023 (later diagnosed as a syncope, a temporary loss of consciousness) and was hospitalized, after which Gilmore filed for guardianship and kept the child from her. Under Nevada law, the person asking to become a guardian must prove that the guardianship is necessary by "clear and convincing evidence," which is a demanding standard of proof. The district court found Gilmore did not meet that standard. The court found there was no evidence that Fears could not provide the child's basic needs, no evidence Fears had a drug or alcohol problem, and no evidence of crimes or domestic violence. The court also found that Gilmore had not proven the child was out of Fears' care for the six months before the petition was filed, so a legal presumption that a parent is unsuitable (which can apply when a child has been out of a parent's care for that long) did not apply. Because Gilmore did not prove Fears was unsuitable or that a guardianship was necessary, the court denied the petition and directed that the child be returned to Fears. On appeal, Gilmore argued the court got the facts wrong and that it should have found Fears unfit and found that the child had lived with her since May 2022. The Court of Appeals explained that it generally does not re-weigh evidence or second-guess the trial judge's decisions about which witnesses to believe. It concluded that the district court's findings were supported by the evidence. Gilmore also argued the judge was biased - that the judge asked demeaning questions, used a condescending tone, and had made up her mind before hearing all the evidence. The Court of Appeals rejected this claim, explaining that a judge's rulings and conduct during a case generally do not show disqualifying bias unless they stem from something learned outside the courtroom or reveal deep-seated hostility that would make a fair decision impossible. The court found the record showed the judge listened to the testimony and considered the evidence. The Court of Appeals affirmed the district court's decision.