IN RE: GUARDIANSHIP OF D.M.F.

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviews guardianship determinations for abuse of discretion, citing Jason S. v. Valley Hosp. Med. Ctr. (In re Guardianship of L.S. & H.S.), 120 Nev. 157, 87 P.3d 521 (2004), and State v. Eric A.L. (In re Eric A.L.), 123 Nev. 26, 153 P.3d 32 (2007). An abuse occurs when the court relies on a clearly erroneous factual determination or disregards controlling law, MB Am., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 367 P.3d 1286 (2016). Constitutional and statutory-interpretation questions are reviewed de novo, citing Tahja L. v. State, Dep't of Family Servs. (In re Parental Rights as to L.L.S.), 137 Nev. 241, 487 P.3d 791 (2021), and Potter v. Potter, 121 Nev. 613, 119 P.3d 1246 (2005). Sua sponte authority. Extending its recent holding in Jones v. Friedman (In re Guardianship of Jones), 139 Nev., Adv. Op. 17, 531 P.3d 1236 (2023), to the minor-guardianship context governed by NRS Chapter 159A, the court holds the district court possesses inherent authority to remove a minor's guardian sua sponte if one or more of the conditions in NRS 159A.185 is met and other applicable requirements are satisfied. The court also cites NSRG 5(A)-(B), which authorizes the court to receive ex parte communications raising significant concerns about a guardian's compliance and to take responsive steps including appointing an investigator under NRS 159A.046(1). Procedural due process. Citing U.S. Const. amend. XIV, § 1; Nev. Const. art. 1, § 8(2); Callie v. Bowling, 123 Nev. 181, 160 P.3d 878 (2007); and NRS 159A.1855(1), the court identifies multiple protected interests at stake: the protected minor's autonomy (Jones, 139 Nev., Adv. Op. 17, 531 P.3d at 1243); the minor's liberty interest in familial companionship (Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987)); the parents' constitutionally protected interest in the care and companionship of their child (Santosky v. Kramer, 455 U.S. 745 (1982); Lassiter v. Dep't of Soc. Servs. of Durham Cty., 452 U.S. 18 (1981)); the protected interests of custodial relatives (Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982)); and the guardian's interest in the care, custody, and management of the child (Simuro v. Shedd, 176 F. Supp. 3d 358 (D. Vt. 2016)). Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950); see also Browning v. Dixon, 114 Nev. 213, 954 P.2d 741 (1998); Grannis v. Ordean, 234 U.S. 385 (1914). Compare Jones (oral and written removal requests sufficed even without a formal petition) with Micone v. Micone, 132 Nev. 156, 368 P.3d 1195 (2016) (sua sponte custody award to nonparties violated due process), and Wiese v. Granata, 110 Nev. 1410, 887 P.2d 744 (1994) (notice that did not mention custody was inadequate when custody was changed). The court holds that none of the district court's orders clearly indicated removal or termination was on the table. The NSRG 5 order and the order appointing an investigator framed the proceedings as addressing alleged misrepresentations and Yalonda's suitability without signaling the prospect of removal/termination. D.M.F. proposes - and the opinion endorses as best practice - issuance of a citation analogous to those required by NRS 159A.1855 (removal) and NRS 159A.1905(4) (termination). Even assuming adequate notice, the court holds the hearing did not comport with the "full and fair hearing" requirement (Moser v. Moser, 108 Nev. 572, 836 P.2d 63 (1992); Wiese, 110 Nev. 1410, 887 P.2d 744). The investigator's report offered no recommendations or conclusions on suitability; no sworn testimony was taken; and the court itself was unclear during the hearing about its purpose. Citing Mathews v. Eldridge, 424 U.S. 319 (1976) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) (Frankfurter, J., concurring)), and Armstrong v. Manzo, 380 U.S. 545 (1965), the court holds the parties were not given a meaningful opportunity to be heard. Removal framework. NRS 159A.185(1) lists conditions under which a court "may" remove a guardian. NRS 159A.186(1) provides that "[n]otwithstanding any other provision of law, . . . the court shall not remove the guardian or appoint another person as guardian unless the court finds that removal . . . is in the best interests of the protected minor." The mandatory "shall" (citing Nev. Pub. Emps. Ret. Bd. v. Smith, 129 Nev. 618, 310 P.3d 560 (2013)) creates a "functional presumption against removal" that a best-interests finding under NRS 159A.186(2) must overcome after a predicate NRS 159A.185(1) condition is found. NSRG 5 does not displace these statutory requirements. The district court cited only NSRG 5, identified no NRS 159A.185(1) condition, did not address NRS 159A.186(2), and rested its findings on demonstrably erroneous facts (e.g., that A.F.'s death occurred "only days prior" to the petition when it was a month earlier, and that A.F. died "within a few days" of temporary guardianship when Yalonda had cared for the twins for three months). This was an abuse of discretion. Termination framework. NSRG 10(A) requires specific findings on (1) the protected minor's current health and welfare, (2) the reasons a guardianship does or does not remain necessary, including the existence of less-restrictive alternatives, and (3) whether maintaining the guardianship would serve the protected person's best interests. The district court's order did not address how termination would improve D.M.F.'s health or welfare given it returned him to the parents' custody, identified no reason the guardianship was no longer necessary, summarily rejected less-restrictive alternatives, and conducted a flawed best-interests analysis. Termination was therefore an abuse of discretion. CPS referral. The court reaffirms that a district court may not direct CPS to find statutory grounds for an investigation or to open an NRS Chapter 432B case and effectuate placement by court order. However, the operative directive here - referring the matter "to Child Protective Services again for further investigation and action as they deem fit" - did not inappropriately constrain CPS's discretion and was not an abuse of discretion, despite the court's surrounding expressions of disagreement with CPS's prior conclusions. Disposition on remand. The court reverses and remands with instructions to reinstate the guardianship and reappoint Yalonda, if she is willing and able. Should the district court proceed to reconsider removal or termination, it must provide notice expressly advising of those potential consequences, hold a full hearing, and make all required findings under the applicable NRS 159A provisions and the NSRG.

In plain language

This case concerns a baby boy, D.M.F., who was born exposed to opiates and amphetamines. His parents admitted to methamphetamine use during pregnancy, so they agreed that the paternal grandmother, Yalonda, would care for the twins (D.M.F. and his brother A.F.) as a temporary guardian while they sought drug treatment. CPS investigated, allowed the babies to go home with Yalonda, and approved her as caregiver. About three months later, A.F. died from positional asphyxia after the parents fell asleep with him on a bed. Police and CPS investigated and found no abuse or neglect; the death was ruled a tragic accident. CPS did, however, find that the parents had relapsed on methamphetamine. Yalonda then promised to seek a formal court guardianship over the surviving twin, D.M.F., and CPS once again approved her as caregiver. About a month after A.F.'s death, Yalonda asked the district court to be appointed D.M.F.'s legal guardian. The court granted that petition without objection. Six months later, the district court received an ex parte communication (a behind-the-scenes message) from another judge who had learned of A.F.'s death from CPS records in a separate case. The court appointed an investigator and held a hearing about whether Yalonda had misrepresented things in her petition by not telling the court about A.F.'s death. After the hearing, the court issued an order removing Yalonda as guardian and terminating the guardianship altogether, and referred the matter to CPS. D.M.F., through counsel, appealed. The Nevada Supreme Court held that a district court does have power, on its own initiative, to remove a guardian and end a guardianship - it does not need someone to file a formal petition first. But the court must follow constitutional and statutory rules. The Supreme Court ruled the district court violated D.M.F.'s due process rights. Due process means a person must get fair notice and a real chance to be heard before the government takes away an important interest. Here, none of the court's orders clearly told D.M.F., Yalonda, or the parents that the court was considering the major step of removing the guardian and ending the guardianship. The investigator's report contained no recommendations, the hearing took no sworn testimony, and the participants were never clearly told what was on the table. The Supreme Court also held the district court abused its discretion. To remove a guardian, the court must find one of the conditions listed in NRS 159A.185(1) and then conduct a "best interests of the child" analysis using the factors in NRS 159A.186(2). To terminate a guardianship, the court must make specific findings under NSRG 10(A) about the child's health, whether a guardianship is still needed, less restrictive alternatives, and best interests. The district court did none of these things. It also relied on factual mistakes - for example, finding A.F. died "only days" before the petition was filed when in reality it was a month before, and finding A.F. died "within a few days" of Yalonda becoming temporary guardian when she had cared for the twins for three months without incident. On the CPS issue, the Supreme Court held the district court did not exceed its authority. Although the district court expressed opinions about what CPS should do, the actual order simply referred the matter to CPS for "action as they deem fit," and that was permissible. The Supreme Court reversed and ordered the lower court to reinstate Yalonda as guardian (if she is willing and able). If the district court still wants to consider removal or termination, it must give clear notice, hold a full hearing, and make the findings the statutes require.