IN RE: GUARDIANSHIP OF C.T.F. AND P.G.S.

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed the admissibility-of-hearsay ruling for abuse of discretion, citing In re Termination of Parental Rights as to N.J., 116 Nev. 790, 804, 8 P.3d 126, 135 (2000). It reviewed the guardianship determination for abuse of discretion, and would not disturb the exercise of discretion where "the district court's [guardianship] decision was based upon appropriate reasons," In re Guardianship of D.R.G., 119 Nev. 32, 37, 62 P.3d 1127, 1130 (2003). Attorney-disqualification decisions are reviewed for abuse of discretion under Waid v. Eighth Judicial Dist. Court, 121 Nev. 605, 609, 119 P.3d 1219, 1222 (2005). **In camera review of DCFS reports.** Hearsay is an out-of-court statement offered for the truth of the matter asserted, NRS 51.035, and the court concluded the DCFS reports "likely were hearsay," noting DCFS reports are intended to communicate information to certain inquirers, see NRS 432B.290. However, the court could not determine whether an exemption or exception applied because the district court made no ruling on the issue and the Luceros failed to provide the DCFS reports on appeal. As appellants, the Luceros bore the burden under NRAP 30(b)(3) of providing portions of the record essential to their issues, and under Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), the court "necessarily presume[s] that the missing portion supports the district court's decision." Citing McMonigle v. McMonigle, 110 Nev. 1407, 1409, 887 P.2d 742, 744 (1994), the court noted the presumption that a court sitting without a jury disregards improper evidence where other substantial evidence supports its findings. The court then cataloged substantial evidence supporting the guardianship determination independent of the DCFS reports, and concluded that even if the reports were inadmissible, the Luceros had not demonstrated any error would have changed the outcome. See Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784, 312 P.3d 479, 482 (2013). The court declined to reweigh credibility determinations, citing Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007). **Due process.** The court held the Luceros waived their due process claim by failing to raise it below, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). While constitutional issues may be addressed for the first time on appeal under Levingston v. Washoe County, 112 Nev. 479, 482, 916 P.2d 163, 166 (1996), the court declined to do so because the Luceros provided no supporting authority, citing Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38. The court further reasoned the Luceros would have been notified of investigative reports under NRS 432B.260(5), would have had access under NRS 432B.290(2)(i) and (x), and thus had an opportunity to prepare a response. **Guardianship award.** The court found the district court based its suitability determination on appropriate reasons, invoking the presumption of parental unsuitability under NRS 159A.061(4)(a) where a parent cannot provide for the basic needs of the proposed protected minor. Addressing the argument that the court should have applied custody best interest factors, the court held Nevada law requires only that the court "act in the best interests of the proposed protected minor" under NRS 159A.061(9), and no authority requires the court to apply the NRS 125C.0035(4) custody factors in a guardianship determination. The court noted NRS 125C.0035 locates those factors within the physical-custody provision and cited Monahan v. Hogan, 138 Nev., Adv. Op. 7 (Ct. App. 2022), which declined to require application of particular statutory best interest factors when interpreting NRS 125C.007. The court identified the guardianship-specific considerations in NRS 159A.061(1), NRS 159A.061(3), and NRS 159A.061(6). Even assuming the NRS 125C.0035(4) factors applied, the court concluded any error was harmless, citing Abid, 133 Nev. at 776, 406 P.3d at 481, and cf. NRCP 61. The court found the district court made specific best interest findings tied to its conclusion, satisfying Davis v. Ewalefo, 131 Nev. 445, 451, 352 P.3d 1139, 1143 (2015). **Attorney disqualification.** The court first addressed standing, noting under Liapis v. Second Judicial Dist. Court, 128 Nev. 414, 420, 282 P.3d 733, 737 (2012), that standing must be decided before the merits and that generally only an attorney's present or former client has standing to seek disqualification, subject to an exception for an ethical breach that "so infects the litigation ... that it impacts the [nonclient] moving party's interest in a just and lawful determination of her claims." The Luceros were neither former clients (their grandson and the 432B victim were) nor present clients (the paternal grandparents and children were), and did not address standing. On the merits, disqualification based on former-client representation is governed by RPC 1.9. Under RPC 1.9(a), the party seeking disqualification bears the burden of establishing a violation, Nev. Yellow Cab Corp. v. Eighth Judicial Dist. Court, 123 Nev. 44, 50, 152 P.3d 737, 741 (2007), and whether matters are "substantially related" is analyzed under the three-part Waid test, 121 Nev. at 610, 119 P.3d at 1223, with the caveat that "a superficial similarity between the two matters is not sufficient to warrant disqualification." The court applied the Waid factors to the paternal grandparents' attorney's former representation of the grandson in the delinquency matter and found no abuse of discretion. As to the children's attorney's former representation of the 432B victim, the court found no conflict because the Luceros offered no evidence the victim's interests were materially adverse to the children's. The court also addressed RPC 1.9(c)(1) and RPC 1.9(c)(2) and found no evidence either attorney used or revealed former-client information. Any error was harmless because substantial evidence supported the guardianship decision without the DCFS reports.

In plain language

This case concerns which relatives should serve as legal guardians of two young children, C.F. and P.S. A guardian is a person a court appoints to care for and make decisions for someone who cannot care for themselves - here, two minors. The children's mother, Kristin S., is the natural mother of both. Several relatives competed to be guardians: the maternal great grandparents (called the Luceros in the opinion - the appellants Pamela L. and Michael L.), and the paternal grandparents (the Fergusons and the McGrews). According to the opinion, when the children were about three months and two years old, Kristin gave written consent for the paternal grandparents to serve as guardians while she went to California, saying she was seeking treatment for methamphetamine use. She apparently did not attend any rehabilitation program. After Pamela traveled to California to bring her home, Kristin withdrew her consent to the paternal grandparents and instead consented to the Luceros being guardians of both children. The district court initially set up a temporary arrangement in which all the competing relatives shared guardianship, with the children spending alternating weeks in different homes. This week-on/week-off arrangement continued for nearly two years. The opinion describes concerns that arose during that period, including that P.S. experienced distress from moving between homes and gained a large amount of weight while living with the Luceros, and that P.S. was returned to the Luceros with a bruise after the McGrews had her. Maria admitted spanking P.S. but said the bruise came from a fall on a hearth; a state investigation (DCFS) did not substantiate abuse and attributed the injury to the fall. During the final guardianship hearing, the district court reviewed DCFS reports about all the parties privately (in camera - meaning the judge reviewed the documents in chambers rather than in open court). Those reports showed the Luceros had extensive DCFS involvement and at least one substantiated 2014 report of child neglect, while the paternal grandparents had either no reports (the Fergusons) or one unsubstantiated report (the McGrews). The district court found that Kristin was currently unsuitable to care for her children, citing a history of drug use, failure to attend treatment, unemployment, and instability. The court also found that the Luceros had a chaotic household, a bankruptcy, law enforcement issues, and the substantiated neglect report, and that they were unwilling to allow relationships with the other grandparents. It found the paternal grandparents offered more stability. So it appointed the Fergusons as guardians of C.F. and the McGrews as guardians of P.S., with visitation for Kristin and the Luceros as long as it served the children's best interests. On appeal, the Luceros raised three main complaints. First, they said the DCFS reports were improper hearsay and that reviewing them privately violated their due process rights. The appellate court explained that the Luceros never gave the court the DCFS reports as part of the appellate record, so the court presumed the missing documents supported the district court's decision. The court also concluded that plenty of other evidence - independent of the DCFS reports - supported the guardianship decision, so any error would not have changed the outcome. The court found the due process argument was not properly preserved and, in any event, that the Luceros had opportunities to learn about and respond to the reports. Second, the Luceros argued the court should not have appointed the paternal grandparents and should have applied the "best interest" factors used in custody cases. The appellate court explained that guardianship law has its own set of considerations for deciding who is a suitable guardian and does not require applying the custody-specific best interest factors. The court also found the district court did make specific findings tied to the children's best interests. Third, the Luceros argued the attorneys for the paternal grandparents and for the children should have been disqualified because of prior involvement with the Lucero family - one had represented the Luceros' grandson in a juvenile matter, and the other had represented a victim in a related child-protection case. The appellate court held the Luceros likely lacked standing to raise these conflicts (because they were neither the former nor the current clients of those attorneys) and, in any event, that the prior representations were not disqualifying. The appellate court affirmed the district court's decision in full.