IN RE: GUARDIANSHIP OF M.F.M. AND M.G.M.

Statutes cited

Key holdings

Practitioner summary

The appeal turned on the construction and application of NRS 159A.1915, which the court reviewed de novo as to statutory construction. Williams v. United Parcel Servs., 129 Nev. 386, 391, 302 P.3d 1144, 1147 (2013). Factual findings underlying the guardianship determination were reviewed for clear error, and the overall guardianship determination for abuse of discretion. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009); In re Guardianship of L.S. & H.S., 120 Nev. 157, 163, 87 P.3d 521, 525 (2004). NRS 159A.1915(1) imposes on a parent seeking to terminate a guardianship the burden of proving by clear and convincing evidence both (a) a material change in circumstances since the guardianship was created (including restoration of suitability under NRS 159A.061), and (b) that the protected minor's welfare would be substantially enhanced by termination and placement with the parent. NRS 159A.1915(2) relieves the parent of subsection (1)(b) only if the parent "consented to the guardianship when it was created." Appellant urged that "consented to the guardianship" should be read as "consented to a guardianship," contending that this construction better serves the public-policy preference for parental custody reflected in NRS 159A.061 and in cases such as 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 applied the plain-meaning canon, citing Young v. Nev. Gaming Control Bd., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020), and rejected the broader reading on the facts presented. Appellant had not agreed to respondents' appointment as guardians; she had instead proposed appointment of the grandfather for six months only. The district court rejected that proposal and appointed respondents for an indefinite term. Under those facts, the court held appellant did not "consent" to the guardianship as imposed and thus had to satisfy both prongs of NRS 159A.1915(1). The opinion notes in a footnote that the legislative history of A.B. 319 (2017 Stat. Nev., ch. 172) does not address the specific intent behind NRS 159A.1915, and flags - without resolving - that "portions of NRS 159A.1915 may present due process concerns." On the second prong, the court found no abuse of discretion or clear error in the district court's determination that appellant's evidence (an apartment lease, paystubs, and photographs) failed to establish by clear and convincing evidence that the girls' welfare would be substantially enhanced by termination, particularly given the girls' substantial time with respondents, school enrollment, and receipt of services. The court also rejected appellant's argument that the district court was required to hold an evidentiary hearing. Assuming arguendo that the "adequate cause" standard from Arcella v. Arcella, 133 Nev. 868, 871, 407 P.3d 341, 345 (2017), applied to a petition to terminate guardianship, appellant did not identify what evidence or witnesses she would have offered. Finally, the court addressed appellant's first-time-on-appeal reliance on In re A.S., No. 73876, 2018 WL 5291457 (Nev. Oct. 18, 2018) (Order of Reversal and Remand), for application of the parental-preference presumption. The court distinguished In re A.S. because the parent there had initially consented to the guardianship, and noted that appellant raised the presumption only in passing in an "amended" petition that the district court treated as a motion for reconsideration, reviewed for abuse of discretion under AA Primo Builders v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010). The court reiterated that unpublished dispositions are persuasive but not binding. NRAP 36(c)(3).

In plain language

Twin girls had been living with their aunt and uncle for roughly six months, apparently because their grandfather, who had been caring for them, was no longer able to do so due to health problems. The aunt and uncle then asked the district court to make them the girls' legal guardians. The girls' mother did not agree to that. Instead, she proposed that the grandfather be appointed guardian for only six months. The district court rejected the mother's proposal, appointed the aunt and uncle as guardians, and did not put a time limit on the guardianship. A few months later, the mother asked the court to end the guardianship and return the girls to her. The district court refused. Nevada law (NRS 159A.1915) sets out what a parent must prove to end a guardianship over her child. If the parent did not originally consent to the guardianship, she must show two things by clear and convincing evidence: (1) that circumstances have materially changed since the guardianship began, including that she is now a suitable parent again; and (2) that the child's welfare would be substantially enhanced by ending the guardianship and returning the child to the parent. If the parent did originally consent, she only has to prove the first thing. The mother argued she had "consented" to a guardianship - just not the specific one the court ordered - because she had agreed the grandfather could be guardian for six months. She therefore claimed she should not have to prove the second requirement. The Nevada Supreme Court disagreed. Because she did not consent to the guardianship that the district court actually imposed (with the aunt and uncle as guardians and no time limit), she had to satisfy both requirements. The mother also argued that even if she had to prove the second requirement, the district court was wrong to find she had not. The Supreme Court deferred to the district court's factual findings. The district court had found that the girls had lived with the aunt and uncle for a substantial time, that the aunt and uncle had enrolled them in school and were providing for their welfare, and that the mother's evidence - an apartment lease, paystubs, and photographs - did not show that ending the guardianship would substantially enhance the girls' welfare. Finally, the mother argued the district court should have held an evidentiary hearing before deciding. The Supreme Court was not persuaded, noting she never explained what evidence or which witnesses she would have presented at such a hearing. The Supreme Court therefore affirmed the district court's order keeping the guardianship in place.