IN RE: GUARDIANSHIP OF M.J.V. C/W 87710

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court applied abuse-of-discretion review to the guardianship determination: "Absent a showing of abuse, we will not disturb the district court's exercise of discretion concerning guardianship determinations." In re Guardianship of L.S. & H.S., 120 Nev. 157, 163, 87 P.3d 521, 525 (2004). An abuse of discretion occurs if the decision is arbitrary or capricious or exceeds the bounds of law or reason. Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). Factual findings are upheld if not clearly erroneous and supported by substantial evidence, Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009); substantial evidence "is evidence that a reasonable person may accept as adequate to sustain a judgment," Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The court presumes the district court properly exercised its discretion in determining a child's best interest, Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1226-27 (2004), and appellate courts are "not at liberty to weigh the evidence anew, and where conflicting evidence exists, all favorable inferences must be drawn towards the prevailing party," Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664 (1998). Statutory framework. A guardianship petitioner bears the burden of proving by clear and convincing evidence that appointment of a guardian is necessary, NRS 159A.055(1); any finding of parental unsuitability must likewise be by clear and convincing evidence, NRS 159A.061(8); and if the proposed protected minor is not in need of a guardian, the court shall dismiss the petition, NRS 159A.054(1). In determining whether to appoint a guardian and who should be appointed, "the court must always act in the best interests of the proposed protected minor." NRS 159A.061(9). A parent or proposed guardian is presumed unfit if unable to provide food, shelter, clothing, medical care, and education, or if posing a significant safety risk, NRS 159A.061(4)(a)-(b). After those factors, the court may consider anything else bearing on the child's best interest, cf. NRS 125C.0035(4); other than the factors stated in NRS 159A.061(3)-(6), no factor is binding. Application. First, substantial evidence supported the finding that Brenda would be more likely to facilitate M.J.V.'s relationship with Kelly (a factor under NRS 125C.0035(4)(c)): Kelly testified it had "been difficult for [her] to navigate giving [Brenda and Randy] the time that they're asking for all the time," rigidly restricted visitation to the strict confines of the court order, and provided communication that was "[l]imited and late," while Brenda had allowed other family members to visit and cautiously permitted Kameron to reinitiate his relationship with M.J.V. Second, although evidence showed both grandparents could care for M.J.V., the record supported the finding that Brenda was better equipped for M.J.V.'s medical needs, given five-and-a-half years of managing physical, dental, surgical, early-intervention, and therapeutic care, documented in handwritten calendars. Third, substantial evidence supported the finding that Brenda was in better physical and mental condition: Kelly is diagnosed with fibromyalgia and lupus, the former treated with doctor-prescribed oxycodone over a 10-year period, while Brenda's DCFS foster-care physical revealed no disqualifying conditions, and Brenda's attendance at therapy alone was insufficient to demonstrate an impairing mental condition. In each instance, the court declined to reweigh conflicting evidence under Yamaha. On the NRS 125C.0035(4) argument, the court held that those factors apply to a parent's physical custody determination, see Kelley v. Kelley, 139 Nev., Adv. Op. 39, 535 P.3d 1147, 1152 (2023), and although a court may use them in competing guardianship claims under NRS 159A.061(9), "they are not mandatory considerations under a plain reading of the law." There was thus no error in not explicitly addressing NRS 125C.0035(4)(g)-(h), and the order suggested the court considered those factors without naming them. As to the GAL and ACORN recommendations, the district court was required to consider them under NRS 159A.061(6)(e)(1)-(2), but neither recommendation is binding as a matter of law, and Kelly cited no authority requiring the court to follow them, see Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). In a footnote, the court noted the recommendations followed sexual abuse allegations against Randy that the Nye County Sheriff's Office investigated and declined to charge for insufficient evidence; the district court did not appoint Randy co-guardian and imposed restrictions on him, and Kelly raised no appellate arguments on those issues. On the "sole custody" argument, the court distinguished legal custody, physical custody, and guardianship, citing Kelley and Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 280 (Ct. App. 2023), and noting legal custody applies only to parents through their substantive due process rights. Although the district court "may have been mistaken in its terminology" in awarding Brenda "sole legal custody," any such mistake was harmless because the guardianship award under NRS 159A.079 functionally allows Brenda to make medical, educational, and other decisions for M.J.V. Kelly did not show the terminology affected her substantial rights or would have altered the outcome. See Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); cf. NRCP 61. In a final footnote, the court addressed In re H.B., III, 141 Nev., Adv. Op. 15, 566 P.3d 562 (2025), raised at oral argument, observing that it confirms a district court must consider the applicable NRS 159A.061(3) factors when appointing a guardian but does not specifically mention the NRS 125C.0035(4) factors or involve GAL/child-advocate recommendations.

In plain language

This case is a dispute between two grandmothers over who would serve as legal guardian for a young girl, M.J.V. She was born in 2017 with a radial ray malformation in her right arm (no radial bone or thumb). Because both of her parents had substance abuse issues, her maternal grandmother, Brenda, and step-grandfather, Randy, took her home from the hospital, raised her for roughly five-and-a-half years, and received guardianship over her. During that time they handled all of her medical care, consulted orthopedic specialists, and enrolled her in early intervention programs. About five years later, M.J.V.'s father, Kameron, got sober and gradually re-entered her life. When the district court held a hearing on whether Kameron would regain custody, Brenda and Randy failed to appear, purportedly because they were unaware of the hearing date. The court terminated their guardianship and awarded Kameron custody. Four months later, Kameron died in a work-related accident. After Kameron's death, both grandmothers sought guardianship. Kelly, Kameron's mother, petitioned the day after he died and was awarded temporary guardianship. Brenda and Randy received court-ordered visitation every other weekend and then filed their own competing petition. The relationship between the two households was not positive: Brenda and Randy complained that Kelly restricted visitation to the very letter of the court order and that her communication was "[l]imited and late," while Kelly disagreed with Brenda and Randy's decision to skip M.J.V.'s therapy appointments during their visitation time and believed M.J.V. needed to stay with her for stability. After a three-day evidentiary hearing, the district court awarded guardianship to Brenda, with Kelly receiving visitation every other weekend and on holidays. In a later written order, the court found that both sides loved M.J.V. and were credible but had serious animosity toward each other, and it based its decision on four findings: Brenda would be more likely to facilitate a good relationship between M.J.V. and Kelly; Brenda was better equipped and organized to handle M.J.V.'s medical needs; Brenda could provide better living conditions; and Brenda was in better physical and mental condition to care for M.J.V. Notably, both the GAL (a court-appointed advocate for the child) and the ACORN representative had recommended that Kelly receive the guardianship. On appeal, the Nevada Court of Appeals affirmed. It explained that appellate courts do not reweigh evidence or second-guess a trial court's factual findings so long as those findings are supported by substantial evidence - "evidence that a reasonable person may accept as adequate to sustain a judgment." The court found substantial evidence supporting each of the district court's challenged findings: Kelly had rigidly restricted visitation and communicated sparingly, while Brenda had a history of allowing family contact, including cautiously allowing Kameron back into M.J.V.'s life; Brenda had managed M.J.V.'s medical care for years and kept detailed handwritten records; and Kelly had chronic conditions (fibromyalgia and lupus, with the former requiring doctor-prescribed oxycodone), while Brenda had passed a physical examination as part of a foster-parent vetting process. The court also rejected Kelly's argument that the district court had to walk through the child-custody best-interest factors in NRS 125C.0035(4): those factors may be considered in a guardianship case but are not mandatory. Nor was the district court bound to follow the GAL's and ACORN representative's recommendations - it had to consider them, and it did, but each recommendation is only one factor among many. Finally, although the district court's order used the phrase "sole legal custody" - terminology that ordinarily applies to parents - any mistake in wording was harmless because the guardianship award itself gave Brenda the legal authority to make medical, educational, and similar decisions for M.J.V.