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

Statutes cited

Key holdings

Practitioner summary

Standard of review: A writ of mandamus may issue "to compel the performance of an act that the law requires or to control an arbitrary or capricious exercise of discretion." Clark Cty. Dist. Att'y v. Eighth Judicial Dist. Court, 123 Nev. 337, 342, 167 P.3d 922, 925 (2007); NRS 34.160. Statutory interpretation is reviewed de novo. Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008). Mandamus is appropriate because NRS Chapter 432B placement orders are not appealable. Applicable statute post-termination: The Court held that NRS 432B.550(5) governs placement only while the child is in protective custody during reunification; once parental rights are terminated and custody is vested in an agency with authority to place for adoption, NRS 128.110(2) supplies the governing placement preference. The two provisions differ materially. NRS 432B.550(5)(b) provides that "preference must be given" to placement with a relative within the fifth degree of consanguinity or fictive kin, and NRS 432B.550(5)(a) creates a presumption that sibling placement is in the child's best interests. NRS 128.110(2)(a), by contrast, provides that an agency "[m]ay give preference" to relative placement where the agency finds the relative suitable, and NRS 128.110(2)(b) requires the agency to "if practicable, give preference" to sibling placement. The Court contrasted permissive "may" (State v. Am. Bankers Ins. Co., 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990)) with mandatory "must" (Washoe Cty. v. Otto, 128 Nev. 424, 432, 282 P.3d 719, 725 (2012)), and defined "practicable" via Black's Law Dictionary as "reasonably capable of being accomplished." Timeliness of relative's request: Applying Clark County, the Court reiterated that a family member's failure to timely and definitively request custody of a child known to be in protective custody "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. Both NRS 432B.550 (now codified in subsection (6) per 2011 Nev. Stat., ch. 57, § 25, at 255-56) and NRS 128.110(2) require completion of any relative search "within 1 year after the initial placement of the child outside" the home. The Court held the record supported the district court's finding that Stephanie had a reasonable excuse — she did not know E.R. was in protective custody and DFS should have located her sooner — so the delay did not defeat the familial preference. Best-interest findings: Citing Clark Cty., 123 Nev. at 346, 348, 167 P.3d at 928-29, the Court emphasized that once the criteria for the statutory preference are satisfied, the preference is not a presumption, and the placement decision rests in the district court's discretion guided by the child's best interest, with written findings as to credibility and the ultimate best-interest conclusion. See also NRS 128.005(2)(c); NRS 128.105(1). The hearing master's statement that "family connection is the overriding consideration" — coupled with the absence of written best-interest findings beyond acknowledging trauma — failed this standard. Agency discretion: Because the district court applied NRS 432B.550(5)(b) rather than NRS 128.110(2), it failed to give appropriate weight to DFS's discretion to determine placement, and did not assess the practicability of sibling placement, which required further factual development given that the younger sibling's placement was unsettled. Remedy: The Court directed issuance of a writ of mandamus vacating the placement order and ordering a trial de novo under NRS 128.110(2). The master's findings and recommendation are advisory only, and the district court may conduct a trial de novo. In re A.B., 128 Nev. 764, 770-71, 291 P.3d 122, 126-27 (2012); EDCR 1.46(g)(7). The Court further noted that the familial relationship itself must be established by evidence at the trial de novo before any preference applies. The stay imposed on July 13, 2017, was vacated.

In plain language

This case concerns where a young child, E.R., should live. DFS removed E.R. from her mother's custody when she was one month old because of neglect. After efforts to reunify mother and child failed, the mother's parental rights were terminated in February 2017, and the foster parents who had cared for E.R. since September 2016 began the process of adopting her. About 15 months after E.R. was first removed, a maternal cousin in Georgia (Stephanie R.) contacted DFS and asked to have E.R. placed with her and her husband. After interstate-placement approval and an evidentiary hearing, a court master recommended moving E.R. to Georgia, reasoning that the "family connection is the overriding consideration" even though the child was strongly bonded to the foster parents and another removal would cause her trauma. The district court adopted that recommendation. DFS and the foster parents asked the Nevada Supreme Court to step in. The Supreme Court ruled that the district court used the wrong statute. While the case was working through reunification, NRS 432B.550(5) governed placement and gave a strong preference to placing the child with relatives. But once parental rights were terminated, a different statute, NRS 128.110(2), took over. That statute uses softer language: the agency "may" prefer relatives, and "shall, if practicable" keep siblings together. So the agency's discretion and the child's best interest carry more weight at that stage. The Court agreed with the lower court on one point: the maternal cousin had a reasonable excuse for coming forward late because she did not know E.R. was in protective custody, and DFS could have located her earlier. So her delay did not eliminate any familial preference she might have. But the Court found two serious problems with the placement order. First, the master and district court did not make written findings about what was actually in E.R.'s best interest beyond acknowledging the move would traumatize her. Second, by using NRS 432B.550(5) instead of NRS 128.110(2), the courts below did not give appropriate weight to DFS's discretion in choosing placement post-termination, and did not develop the facts about whether placing E.R. with a newer sibling (born to the same mother in April 2017) was actually practicable. The Supreme Court ordered the district court to vacate the placement order and hold a new trial (a "trial de novo," meaning the court starts fresh rather than just reviewing the master's work) applying the correct statute and making proper findings about E.R.'s best interest.