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

Statutes cited

Key holdings

Practitioner summary

The appeal presented two issues: (1) whether the district court erred in requiring Kristin to demonstrate substantial enhancement under NRS 159A.1915, and (2) whether the district court abused its discretion in finding no material change of circumstances and no substantial enhancement. **Standard of review.** The first issue - the applicable burden of proof under NRS 159A.1915 - is a question of statutory interpretation reviewed de novo. In re Guardianship of D.M.F., 139 Nev., Adv. Op. 38, 535 P.3d 1154, 1161 (2023); Irving v. Irving, 122 Nev. 494, 496, 134 P.3d 718, 720 (2006). Guardianship determinations are reviewed for abuse of discretion and will not be disturbed absent such abuse. Jason S. v. Valley Hosp. Med. Ctr. (In re Guardianship of L.S. & H.S.), 120 Nev. 157, 163, 87 P.3d 521, 525 (2004). An abuse of discretion occurs when a decision is unsupported by substantial evidence, Bautista v. Picone, 134 Nev. 334, 336, 419 P.3d 157, 159 (2018); where the court fails to supply appropriate reasons, Valley Hosp.; where it "exceeds the bounds of law or reason" or is "arbitrary or capricious," In re Eric A.L., 123 Nev. 26, 33, 153 P.3d 32, 36-37 (2007); or where the court relies on clearly erroneous factual determinations or disregards controlling law, MB Am., Inc. v. Alaska Pac. Leasing, 132 Nev. 78, 88, 367 P.3d 1286, 1292 (2016). The reviewing court must also be satisfied the determination "was made for appropriate reasons." Rico v. Rodriguez, 121 Nev. 695, 701, 120 P.3d 812, 816 (2005). **Statutory framework.** NRS 159A.1915 governs the burden to terminate a guardianship. Under NRS 159A.1915(1), a non-consenting parent must prove by clear and convincing evidence (a) a material change of circumstances since the guardianship's creation, including restoration to suitability under NRS 159A.061, and (b) that the child's welfare would be substantially enhanced by termination. Under NRS 159A.1915(2), a parent who consented to the guardianship when it was created need make only the showing in paragraph (a). The relevant time for evaluating consent is when the guardianship "was created." NRS 159A.1915(2). **Consent analysis.** The court examined Matter of Guardianship of M.F.M., No. 82469, 2022 WL 1538589 (Nev. May 13, 2022) (Order of Affirmance), the only persuasive authority addressing the level of consent required, which the court read to stand for the principle that consent "encapsulates both consent to the guardianship itself and consent to the guardians ultimately appointed." The court distinguished M.F.M. on five grounds: the M.F.M. mother (1) was a named party contesting the guardianship, (2) responded to an unsolicited petition, (3) never consented to a permanent guardianship with any party, (4) never informally sought the appointed guardians' help, and (5) sought termination only months after establishment. In contrast, Kristin was not a named party, signed and notarized consent forms favoring the appointed paternal grandparents before their petitions, voluntarily contacted them for help, and sought termination years later after circumstances dramatically changed. The court concluded that even under M.F.M.'s more stringent standard, Kristin provided the necessary consent, and that her later consent favoring the Luceros reflected a preference among petitioning co-guardians rather than opposition to guardianship itself. The court invoked the public policy against discouraging parents from seeking guardianships, Hudson v. Jones, 122 Nev. 708, 712, 138 P.3d 429, 431-32 (2006) (quoting Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995)). The court rejected the district court's alternative finding that Kristin's initial consent was invalid for lack of a "meeting of the minds," holding this conclusion was contradicted by the notarized forms and testimony that Kristin understood she was relinquishing care, custody, and control while getting her life in order. Any pressure Kristin felt did not render her consent inoperative. See Campanelli v. Conservas Altamira, S.A., 86 Nev. 838, 841, 477 P.2d 870, 872 (1970). Because Kristin consented, the district court was obligated to apply the parental preference doctrine, NRS 159A.061(1); In re A.S., No. 73876, 2018 WL 5291457 (Nev. Oct. 18, 2018) (Order of Reversal and Remand), which it failed to do. **Material change of circumstances.** The court held the district court abused its discretion in finding no material change. Suitability under the guardianship statutes: a parent is presumed unsuitable if unable to provide for the child's basic needs - food, shelter, clothing, medical care, and education, NRS 159A.061(4)(a)(1)-(5) - and the court must consider substance use in the preceding six months, NRS 159A.061(3)(c). Comparing its 2022 order of affirmance, In re Guardianship of C.T.F., No. 83443-COA, 2022 WL 872635 (Nev. Ct. App. Mar. 23, 2022), which identified Kristin's lack of identification, driver's license, employment, and treatment, the court found Kristin had remedied nearly every concern. Partial reliance on the Luceros did not foreclose termination, and the finding that she was "completely reliant" lacked substantial evidence. The court identified a clearly erroneous factual determination in the district court's mischaracterization of Goddard's testimony - Goddard never disbelieved Kristin and called her an "amazing success story" - noting the district court discounted Goddard as not credible yet relied on her testimony. See Alaska Pac. Leasing, 132 Nev. at 88, 367 P.3d at 1292. **Substantial enhancement (alternative holding).** Although not required, the court addressed substantial enhancement because it bears on suitability and raises constitutional concerns. NRS 159A.1915(1)(a) references NRS 159A.061, which establishes a parental preference, NRS 159A.061(1), creating a rebuttable presumption favoring natural parents. In re Guardianship of T.T.H., No. 73932, 2018 WL 3213818 (Nev. June 22, 2018); Troxel v. Granville, 530 U.S. 57, 68, 72 (2000). The preference reflects a parent's constitutionally protected due process liberty interest, Hudson, 122 Nev. at 711, and can be overcome only by showing the parent is unfit or extraordinary circumstances exist, Litz, 111 Nev. at 38; see NRS 128.018; extraordinary circumstances are those resulting in "serious detriment to the child," Locklin v. Duka, 112 Nev. 1489, 1495-96, 929 P.2d 930, 934 (1996). Although Kristin did not use the term "parental preference," she argued its functional equivalent and the issue implicated constitutional concerns the court could reach sua sponte, Sustainable Growth Initiative Comm. v. Jumpers, LLC, 122 Nev. 53, 71, 128 P.3d 452, 464-65 (2006). The district court summarily rejected parental preference without findings of unfitness or extraordinary circumstances and failed to address P.S.'s schooling, a basic need under NRS 159A.061(4)(a)(5). The court also noted the district court's reliance on prior best-interest findings was improper because they were neither explained nor incorporated by reference, comparing Myers v. Haskins, 138 Nev., Adv. Op. 51, 513 P.3d 527, 533 n.10 (Ct. App. 2022), with Monahan v. Hogan, 138 Nev. 58, 61 n.3, 507 P.3d 588, 591 n.3 (Ct. App. 2022). The court further faulted the district court for not setting forth unambiguous guidelines for how Kristin could become suitable. See Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 290 (Ct. App. 2023). The opinion also observed, in a footnote, that district courts must expedite custody decisions and reach resolution within six months of a contested issue absent unforeseeable circumstances with specific findings, citing SCR 251, noting the district court's September 2023 order was more than nine months late. The court concluded Kristin met her burden, holding that compelling and undisputed evidence supported a material change of circumstances and suitability, and in the alternative that substantial enhancement was demonstrated given the unrebutted parental preference presumption.

In plain language

This case is about a mother trying to regain custody of her two young children after grandparents had been appointed as their legal guardians. Several years ago, appellant Kristin S. was struggling with addiction and grief following the death of one child's father in 2017. Recognizing she could not adequately care for her children, she reached out to the children's paternal grandparents for help and signed consent forms allowing them to become guardians. Around the same time, her own grandparents, the Luceros, also sought guardianship, and Kristin signed a new consent form favoring the Luceros. After a period in which both sets of grandparents shared caretaking, the district court in 2021 appointed the paternal grandparents as permanent guardians and removed the Luceros. Kristin was not a named party in that earlier proceeding. By 2022, Kristin filed a petition to end the guardianships, saying her life had turned around. She had enrolled in mental health counseling, tested negative for drugs through voluntary hair follicle testing, obtained a driver's license and a full-time job, was raising her two youngest children without issue, and was living in a mobile home on the Luceros' property (they had moved to Colorado). A key legal question was how hard Kristin had to work to win her case. Nevada law (NRS 159A.1915) sets up two different standards. If a parent originally consented to the guardianship, that parent only has to show a "material change of circumstances" and that she is now a suitable parent. If the parent did not consent, she must show that plus an additional element - that the children's welfare would be "substantially enhanced" by ending the guardianship. The district court decided Kristin had to meet the harder, two-part standard, reasoning that when she switched her consent from the paternal grandparents to the Luceros, she effectively withdrew her consent to the guardianship altogether. The court also suggested her original consent might have been invalid because she felt pressured and did not fully understand the forms. Ultimately, the district court denied her petition, finding she had not shown either a material change or substantial enhancement. The Court of Appeals disagreed on several points. First, it held that Kristin did consent to the guardianships originally, so she should only have had to meet the easier standard. The court explained that Kristin voluntarily reached out for help, signed notarized consent forms understanding she was giving up custody while she got her life in order, and never opposed the idea of a guardianship - she simply changed her preference about which relatives should serve as guardians. The court noted that punishing a parent for having asked for help would discourage struggling parents from doing the right thing for their children. Second, the court held that even under the tougher standard, the evidence overwhelmingly showed Kristin had changed and become a suitable parent. She had fixed nearly every problem the courts had previously identified - she now had a job, a driver's license, counseling, and was drug-free. The court also found the district court had made factual errors, including mischaracterizing the testimony of Kristin's therapist, Gerri Goddard, who had actually praised Kristin as an "amazing success story" rather than doubting her. Third, the court held that because Kristin consented, the district court was required to apply the "parental preference doctrine" - a legal rule presuming that a fit parent should have custody of her own children unless she is unfit or extraordinary circumstances exist - and it failed to do so. The court concluded Kristin met her burden and ordered the guardianships terminated, with the case sent back only to handle practical matters like transitioning the children to Colorado and arranging grandparent visitation.