IN RE: GUARDIANSHIP OF B.A.A.R.

Statutes cited

Key holdings

Practitioner summary

Standard of review: The Court of Appeals reviews factual determinations for abuse of discretion, In re Guardianship of N.M., 131 Nev. 751, 754, 358 P.3d 216, 218 (2015), but applies de novo review to questions of statutory interpretation and to whether the district court applied the correct legal standard, citing Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015); Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992); and Amaya v. Guerrero Rivera, 135 Nev. 208, 210, 444 P.3d 450, 452 (2019). Doctrinal framework: SIJ status is a two-step process under 8 U.S.C. § 1101(a)(27)(J) and NRS 3.2203. The state court issues predicate findings establishing (1) the dependency or custody prong, (2) the reunification prong - that reunification with one or both parents is not viable because of abandonment, abuse, neglect, or a comparable basis under state law - and (3) the best-interest prong. Amaya, 135 Nev. at 209-10, 444 P.3d at 451-52. The state court does not adjudicate SIJ eligibility; it provides an evidentiary record for USCIS. Id. (citing Benitez v. Doe, 193 A.3d 134, 138-39 (D.C. 2018)); see also Romero v. Perez, 205 A.3d 903, 915 (Md. 2019); Leslie H. v. Superior Court, 168 Cal. Rptr. 3d 729, 735 (Ct. App. 2014). Under NRS 3.2203(4), if evidence supports the findings, the court "shall" issue an order setting them forth, citing Pasillas v. HSBC Bank USA, 127 Nev. 462, 467, 255 P.3d 1281, 1285 (2011). Holding on standard of proof: As an issue of first impression, the court holds that a party requesting NRS 3.2203 predicate findings need only establish them by a preponderance of the evidence. NRS 3.2203 is silent on the applicable standard, and the preponderance standard is the default in civil proceedings absent clear contrary legislative intent. Nassiri v. Chiropractic Physicians' Bd., 130 Nev. 245, 251, 327 P.3d 487, 491 (2014); Mack v. Ashlock, 112 Nev. 1062, 1066, 921 P.2d 1258, 1261 (1996). The clear-and-convincing standard applicable to termination proceedings under NRS Chapter 128, see NRS 128.090(2); Santosky v. Kramer, 455 U.S. 745, 753, 769 (1982); In re Parental Rights as to Q.L.R., 118 Nev. 602, 605, 54 P.3d 56, 58 (2002), is inapplicable because SIJ predicate findings do not terminate parental rights. The court relies on Lopez v. Serbellon Portillo, 136 Nev., Adv. Op. 54 (Aug. 6, 2020); Kitoko v. Salomao, 215 A.3d 698, 708-09 (Vt. 2019); B.R.L.F. v. Sarceno Zuniga, 200 A.3d 770, 776 (D.C. 2019); and Romero, 205 A.3d at 912-13. The court also analogizes to In re Temp. Custody of Five Minor Children, 105 Nev. 441, 445, 777 P.2d 901, 903 (1989), and notes that different standards may apply to different determinations within a single proceeding, citing In re Parental Rights as to J.D.N., 128 Nev. 462, 472, 283 P.3d 842, 848-49 (2012). The preponderance standard applies regardless of the type of proceeding in which NRS 3.2203 findings are requested, even though guardianship itself requires clear and convincing evidence under NRS 159.055(1) and NRS 159A.055(1). Holding on "abuse or neglect": NRS 3.2203(8)(b) incorporates the definition of "abuse or neglect of a child" from NRS 432B.020, which includes "[n]egligent treatment or maltreatment as set forth in NRS 432B.140" that is "caused or allowed by a person responsible for the welfare of the child." NRS 432B.140 reaches conduct that is "terrorizing, degrading, painful or emotionally traumatic." Accordingly, a parent's failure to intervene to prevent a third party's harmful conduct toward the child may itself constitute abuse or neglect, citing In re Five Minors, 105 Nev. at 445-46, 777 P.2d at 903-04. The court of appeals concludes the district court appeared to overlook this theory by treating Jose as the sole abuser and Maria's poverty as the sole asserted basis for neglect. The court observes in a footnote that, on this record, Maria's poverty alone would not constitute abuse or neglect under NRS 432B.140. Application of Lopez framework: Following Lopez v. Serbellon Portillo, 136 Nev., Adv. Op. 54 (Aug. 6, 2020) (quoting J.U. v. J.C.P.C., 176 A.3d 136, 140-41 (D.C. 2018)), the district court must consider "the entire history of the relationship between the minor and the parent in the foreign country," assessing the workability of forced reunification. Relevant nonexhaustive factors are: (1) the lifelong history of the child's relationship with the parent; (2) the effects that forced reunification might have on the child; and (3) the realistic facts on the ground in the child's home country (quoting Romero, 205 A.3d at 915). Jose's having left the home does not foreclose consideration of Maria's past conduct. Disposition and remand instructions: The order denying SIJ predicate findings is reversed. On remand, the district court must apply the preponderance standard, follow Lopez in evaluating the reunification prong, and, if it finds reunification with Maria not viable due to abuse or neglect, proceed to the best-interest prong under NRS 3.2203(3)(c), and if warranted, issue an order under NRS 3.2203(4). See Nassiri, 130 Nev. at 249, 327 P.3d at 490 (quoting Addington v. Texas, 441 U.S. 418, 423 (1979)).

In plain language

This case involves a teenager, B.A.A.R., who was born in El Salvador in 2001 and fled to the United States in 2018. His aunt, Lucia, took him into her home in Las Vegas and asked a Nevada court to make her his legal guardian. She also asked the court to make a special set of factual findings under a Nevada statute (NRS 3.2203) that would let B.A.A.R. apply to federal immigration authorities for "Special Immigrant Juvenile" (SIJ) status - a federal program that can lead to lawful permanent residency for certain undocumented young people who cannot safely be reunified with a parent. To qualify for SIJ status, federal law requires a state court first to make three findings: (1) the child has been placed in the custody of an individual or agency, (2) reunification with one or both parents is not viable because of abuse, neglect, abandonment, or a similar reason, and (3) it is not in the child's best interest to be returned to his country of origin. The state court does not decide whether the child actually gets SIJ status - that is up to federal immigration officials. The state court's job is just to gather the facts. Lucia argued that returning B.A.A.R. to his mother Maria in El Salvador was not viable because Maria allowed B.A.A.R. to be exposed to violence by her live-in boyfriend, Jose, who had physically abused B.A.A.R.'s sister and threatened to kill B.A.A.R. She also argued Maria's poverty meant she could not properly provide for him. The district court refused to make the requested findings. The judge wrote that he would need a "very specific and detailed history of neglect" to find that reunification was not viable based on poverty, and that a lack of financial resources is "never a sufficient basis to terminate the relationship." The judge also pointed out that Maria and Jose had separated months before B.A.A.R. fled. The Court of Appeals reversed for two main reasons. First, the district court used the wrong legal yardstick. By treating the case as if it were a proceeding to terminate a parent's rights, the judge demanded a higher level of proof than the law requires. The Court of Appeals held that someone asking for SIJ predicate findings only has to show those findings are justified by a "preponderance of the evidence" - meaning more likely than not - which is the ordinary standard in civil cases. SIJ findings are not the same as terminating parental rights; they do not cut off the parent-child relationship. Second, the Court of Appeals said the district court appears to have misunderstood what "abuse or neglect" means under the statute. A parent who fails to protect a child from someone else's harmful conduct can themselves be guilty of abuse or neglect under Nevada law. So even though Jose was the one directly threatening B.A.A.R., Maria's failure to intervene could itself qualify. And the fact that Jose had left the home before B.A.A.R. fled does not erase that history - the court must look at the entire history of the parent-child relationship. The case goes back to the district court to reconsider Lucia's request using the correct, lower standard of proof and the proper definition of abuse or neglect.