IN RE: MATTER OF E.R. C/W 73198

Statutes cited

Key holdings

Practitioner summary

Standard of review: The court reviewed the consolidated original mandamus petitions under NRS 34.160, noting that mandamus is the appropriate vehicle to challenge an NRS Chapter 432B placement order because such orders are not appealable, citing Clark Cty. Dist. Att'y v. Eighth Judicial Dist. Court, 123 Nev. 337, 342, 167 P.3d 922, 925 (2007). Statutory interpretation issues were reviewed de novo, citing Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). Statutory framework — which preference applies after termination: The court held that while NRS 432B.550(5) governs placement during pre-termination protective custody, once parental rights are terminated and custody and control are vested in a placement agency, NRS 128.110(2) governs subsequent placement decisions. The court emphasized the textual differences: NRS 432B.550(5)(b) provides that "preference must be given" to placement with a fifth-degree relative or fictive kin, whereas NRS 128.110(2)(a) provides that the agency "[m]ay give preference" to a relative the agency finds suitable. Similarly, NRS 432B.550(5)(a) creates a presumption favoring sibling placement, while NRS 128.110(2)(b) requires the agency to give preference to sibling placement only "if practicable." The court contrasted the permissive "may," citing State v. Am. Bankers Ins. Co., 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990), with the mandatory "must," citing Washoe Cty. v. Otto, 128 Nev. 424, 432, 282 P.3d 719, 725 (2012), and consulted Black's Law Dictionary (10th ed. 2014) for the meaning of "practicable." Delay and reasonable excuse: Applying Clark County, the court reaffirmed that family members on notice of a child's protective custody have "a concomitant duty to step forward and request custody," and that an untimely or indefinite request "may ultimately either render the statutory familial preference inapplicable or influence the district court's determination of the child's best interest." 123 Nev. at 347, 167 P.3d at 929. The court extended Clark County's reasoning to NRS 128.110(2), which contains a parallel one-year search requirement. Because Stephanie did not know the child was in protective custody until October 2016, the record supported the district court's finding of reasonable excuse for the delay, and the familial preference was not forfeited. Best-interest analysis: Citing Clark County, 123 Nev. at 346, 348, 167 P.3d at 928, 929, the court reiterated that once the criteria for the statutory preference are met, "the statute creates a familial preference, not a presumption," that placement remains in the district court's discretion guided by careful consideration of the child's best interest, and that the district court must make written findings on credibility and the ultimate best-interest conclusion. The court extended these principles to placement decisions under NRS 128.110(2), supported by reference to NRS 128.005(2)(c) and NRS 128.105(1). The hearing master erred by treating "family connection" as the "overriding consideration" and failing to make adequate best-interest findings beyond acknowledging trauma and ordering a transition plan; the district court compounded the error by failing to make its own written best-interest findings. Agency discretion: By applying NRS 432B.550(5) instead of NRS 128.110(2), the district court did not consider DFS's discretion to give (or not give) a familial preference under the permissive "may" language of NRS 128.110(2)(a), nor did it analyze the practicability of sibling placement under NRS 128.110(2)(b), particularly given that the younger sibling's placement remained unsettled at the time. Remedy: The court directed issuance of a writ of mandamus vacating the placement order and instructing the district court to conduct a trial de novo under NRS 128.110(2), giving appropriate weight to DFS's discretion and the child's best interest, and to require evidence establishing the familial relationship before any preference applies. The court cited In re A.B., 128 Nev. 764, 770-71, 291 P.3d 122, 126-27 (2012), and EDCR 1.46(g)(7), for the proposition that a master's findings and recommendation are advisory and that the district court may conduct a trial de novo. The stay previously imposed on July 13, 2017, was vacated.

In plain language

This case involves a young child, referred to as E.R., who was removed from her mother's custody at one month old in July 2015 because of neglect. DFS placed her in foster care and tried to find relatives to take her, but found none at first. After more than a year, the child was placed with foster parents Philip R. and Regina R., who wanted to adopt her. About 15 months after the child's initial removal, the child's mother's first cousin, Stephanie R., who lives in Georgia with her husband Joey R., contacted DFS and asked to take the child. By that time, DFS was moving toward terminating the mother's parental rights, which the court did in February 2017. The foster parents had begun adopting the child. DFS then asked the district court to decide whether the child should stay with the foster parents (with whom she was strongly bonded) or be moved to live with the maternal relatives in Georgia. After a hearing, a court master recommended sending the child to the maternal relatives, finding that the family connection was the "overriding consideration," even though the move would cause the child trauma. The district court adopted that recommendation. The foster parents and DFS asked the Nevada Supreme Court to step in. The Nevada Supreme Court agreed to grant the writs and ordered the case redone. The court explained several things. First, once parental rights are terminated, the rules for placing a child change. Before termination, NRS 432B.550(5) governs placement, and that statute uses mandatory language ("preference must be given") in favor of placing a child with a relative. After termination, however, NRS 128.110(2) governs, and it uses softer, more permissive language ("may give preference") and gives the placement agency more discretion. Second, the maternal relatives' delay in coming forward did not disqualify them. Stephanie did not know the child was in protective custody until October 2016, so she had a reasonable excuse for the delay. Third, and most importantly, even when a familial preference applies, the child's best interest is the main consideration. The Supreme Court found that the hearing master and district court did not adequately weigh the child's best interest. They treated the family connection as automatically controlling and did not make written findings about what was best for this particular child, who was deeply bonded with her foster family and would suffer trauma from another move. The Supreme Court ordered the district court to vacate its placement order and hold a new trial (a "trial de novo," meaning a fresh hearing), this time applying NRS 128.110(2), giving appropriate weight to the child's best interest, and considering DFS's discretion in deciding placement.