IN RE: GUARDIANSHIP OF N.M.

Statutes cited

Key holdings

Practitioner summary

Standard of review. Subject matter jurisdiction is reviewed de novo. Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). Factual findings are reviewed for abuse of discretion and upheld if supported by substantial evidence - "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). Temporary emergency jurisdiction. Under NRS 125A.335(1), a Nevada district court may exercise temporary emergency jurisdiction over a child physically present in Nevada if the child has been abandoned or if emergency protection is needed because the child (or a sibling or parent) is subjected to or threatened with mistreatment or abuse. The court held the threshold satisfied: N.M. was in Nevada, and the half-sister's nighttime attempt to remove N.M. from respondent's home supplied evidence of threatened mistreatment. Conversion of emergency order into final determination. NRS 125A.335(2), codifying section 204 of the UCCJEA, sets three requirements for an emergency order to become a final custody determination: (1) no court in another jurisdiction has entered an applicable custody order or commenced custody proceedings; (2) the order provides it is to be a final determination; and (3) Nevada has become the child's home state. The court held that the home-state requirement is a time-of-residency requirement and cannot be satisfied by judicial fiat. See UCCJEA § 204 cmt., 9 U.L.A. 677 (1999); NRS 125A.085(1). The court aligned itself with sister-state authority interpreting parallel UCCJEA § 204 enactments. Hensley v. Kanizai, 143 So. 3d 186, 195 (Ala. Civ. App. 2013); In re E.D., 812 N.W.2d 712, 721 (Iowa Ct. App. 2012); In re J.C.B., 209 S.W.3d 821, 823 (Tex. App. 2006). Home state and commencement. A child's home state is the state in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately before commencement of a child custody proceeding. NRS 125A.085(1). A child custody proceeding commences when its first pleading is filed, NRS 125A.065, and refers to the present dispute, not prior disputes. Friedman v. Eighth Judicial Dist. Court, 127 Nev., Adv. Op. 75, 264 P.3d 1161, 1166 (2011). Because the general-guardianship proceeding commenced more than six months after N.M. began residing in Nevada, and no competing order or proceeding existed in another jurisdiction, the district court had jurisdiction to enter a final guardianship order. The court distinguished cases limiting emergency jurisdiction where another jurisdiction's custody order already exists. McDow v. McDow, 908 P.2d 1049, 1051 (Alaska 1996); In re Appeal in Pima Cnty. Juvenile Action No. J-78632, 711 P.2d 1200, 1206-07 (Ariz. Ct. App. 1985); Perez v. Tanner, 965 S.W.2d 90, 94 (Ark. 1998); In re Joseph D., 23 Cal. Rptr. 2d 574, 582 (Ct. App. 1993); State ex rel. D.S.K., 792 P.2d 118, 127-28 (Utah Ct. App. 1990). Parental preference and abandonment. NRS 159.061(1) prefers qualified and suitable parents over all others for guardian appointment. Where neither parent is qualified and suitable, or both are, the inquiry shifts to who is most suitable. In re Guardianship of D.R.G., 119 Nev. 32, 38, 62 P.3d 1127, 1130-31 (2003). The presumption is overcome by a showing of unfitness or "other extraordinary circumstances." Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995). Abandonment qualifies. In re D.R.G., 119 Nev. at 38, 62 P.3d at 1131 (quoting Locklin v. Duka, 112 Nev. 1489, 1496, 929 P.2d 930, 934 (1996)). Abandonment is defined by NRS 128.012(1); intent is the decisive factor and may be inferred from circumstances. In re Parental Rights as to Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996). NRS 128.012(2) creates a statutory presumption of intent to abandon when a parent leaves the child in another's care without support or communication for six months, which the parent must rebut. In re Termination of Parental Rights as to N.J., 116 Nev. 790, 803, 8 P.3d 126, 134 (2000). Application. The district court relied on (1) a Mexican attorney's letter, presented through interpreter testimony, regarding the 2008 DIF document indicating abandonment in 2008; (2) the 2011 document in which appellant purportedly granted custody to respondent and the Aunt; and (3) respondent's testimony that appellant expressed a desire to relinquish custody when she signed the 2011 document. The record showed respondent and the Aunt began caring for N.M. in 2009 or 2010, and contained no evidence that appellant attempted to exercise custody, support, or communicate with N.M. afterward. Because the actual translated letter was not in the appellate record, the court presumed it supported the district court's findings, citing Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). Substantial evidence supported abandonment, overcoming the parental preference presumption. Waiver. The court noted appellant did not challenge the best-interests determination on appeal and thus waived the issue. Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011).

In plain language

This case is about who should have legal custody of a young girl, N.M., and whether a Nevada court had the power to decide that question. N.M. was born in California in 2007 to appellant, a Mexican citizen. Mother and child moved to Mexico, and in 2008 the mother left N.M. with the maternal grandparents. A Mexican family-services agency (DIF) and the grandmother signed a document indicating the grandparents had custody. By 2009 or 2010, the child's aunt and the aunt's then-partner (the respondent, a U.S. citizen) were raising N.M. In 2011, the mother signed a document appearing to give custody to the aunt and respondent. In 2012, after the aunt's relationship with respondent ended, respondent moved with N.M. to Nevada. Soon after, the mother's half-sister came to respondent's home at night and tried to take N.M. Respondent then asked a Nevada district court to appoint him temporary guardian on an emergency basis. The court did so, and several months later, after a two-day hearing, made him N.M.'s general (permanent) guardian, finding that the mother had abandoned the child. The mother appealed, arguing chiefly that the Nevada court had no authority to decide custody because N.M. had not yet lived in Nevada for six months when respondent first filed his emergency petition. She also argued that there was not enough evidence to overcome the legal preference that biological parents - not third parties - should generally be appointed guardians of their own children. The Nevada Supreme Court rejected both arguments. On jurisdiction, the court explained that NRS 125A.335 lets a Nevada court step in on an emergency basis to protect a child physically present in the state who has been abandoned or who faces mistreatment. Because N.M. was in Nevada and someone had tried to take her from respondent's home at night, the emergency power applied. The court then held that an emergency order can ripen into a final custody decision once Nevada has become the child's "home state" - meaning the child has lived here for six months - so long as no other state or country has an existing custody case or order. By the time the general-guardianship proceeding began, N.M. had lived in Nevada more than six months and there was no competing custody order or case elsewhere. So the Nevada court had power to make a final ruling. On the merits, the court explained that Nevada law presumes parents are preferred as guardians, but that presumption can be overcome by showing the parent is unfit or that other "extraordinary circumstances" exist - including abandonment. Nevada law presumes a parent intended to abandon a child if the parent leaves the child with someone else for six months without supporting or communicating with the child. The district court had evidence that the mother left N.M. with relatives, signed a document apparently giving custody away, and did not provide support or communicate with the child during long stretches. The Supreme Court concluded that this was enough evidence to support the abandonment finding, and so affirmed the appointment of respondent as N.M.'s guardian.