IN RE: MATTER OF J.B.

Statutes cited

Key holdings

Practitioner summary

The Court reviewed an unappealable district court placement order through original mandamus jurisdiction under NRS 34.160 and NRS 34.170, citing Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008), and Philip R. v. Eighth Jud. Dist. Ct., 134 Nev. 223, 226, 416 P.3d 242, 246 (2018). Although writ relief is discretionary, Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991), the Court exercised discretion to address an important issue of first impression regarding the 2021 expansion of placement preferences to include fictive kin. Dekker/Perich/Sabatini Ltd. v. Eighth Jud. Dist. Ct., 137 Nev. 525, 527, 495 P.3d 519, 522 (2021). Issues of statutory construction were reviewed de novo. Zohar v. Zbiegien, 130 Nev. 733, 737, 334 P.3d 402, 405 (2014). The Court applied the plain-meaning rule, citing Young v. Nev. Gaming Control Bd., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020), and Chandra v. Shulte, 135 Nev. 499, 501, 454 P.3d 740, 743 (2019), and the canon against absurd results, citing Leven v. Frey, 123 Nev. 399, 405, 168 P.3d 712, 716 (2007). First, the Court held that the Whipples are J.B.'s fictive kin. The district court had expressly designated them as such in a March 28, 2023 order without objection, and could not later "change the settled legal designation of a placement when no new relevant facts are before it and no party has challenged that designation." The Court emphasized that "the category of fictive kin cannot be used to temporarily place children with unlicensed, unrelated custodians until a 'better option' comes along," and that the Whipples' subsequent licensure as foster parents did not invalidate their fictive-kin status. The Court characterized the district court's contrary later determination as an arbitrary and capricious abuse of discretion. Div. of Child & Fam. Servs. v. Eighth Jud. Dist. Ct., 120 Nev. 445, 449, 92 P.3d 1239, 1242 (2004). Second, construing NRS 432B.0657, the Court rejected the position that the statute requires a meaningful preexisting relationship from the child's perspective. Such a reading would categorically exclude newborns. The Court held that a fictive-kin determination requires an evaluation of the relationship "from the perspectives of both the prospective custodian and the child," and that "[i]n the case of an infant, analysis of fictive kin may be guided heavily or entirely by the bond the prospective custodian has with the child." Third, the Court construed NRS 432B.550(6) and NRS 432B.390 and held that Nevada's placement-preference scheme creates two categories—(1) relatives within the fifth degree of consanguinity or fictive kin, and (2) licensed foster homes—and does not prefer blood relatives over fictive kin. Both must be "suitable and able to provide proper care." The Court reaffirmed that "suitable relatives are not necessarily entitled to custody" and that the focus must remain on the child's best interest. Clark Cnty. Dist. Att'y v. Eighth Jud. Dist. Ct., 123 Nev. 337, 346, 167 P.3d 922, 928 (2007). The Court found persuasive the West Virginia plurality analysis in In re G.G., 896 S.E.2d 662, 672, 675 (W. Va. 2023) (Wooton, J., concurring), construing an analogous statute. The district court's order, premised on a "biological-familial preference that does not exist in Nevada law" and unaccompanied by best-interest findings, was vacated. On remand, the district court must take evidence and make written findings on best interest, citing Clark Cnty. Dist. Att'y, 123 Nev. at 348, 167 P.3d at 929, and Monahan v. Hogan, 138 Nev. 58, 67-68, 507 P.3d 588, 595-96 (Ct. App. 2022). Fourth, the Court addressed the absence of J.B.'s counsel. NRS 432B.420(2) requires a child to "be represented by an attorney at all stages of any proceedings held pursuant to NRS 432B.410 to 432B.590," and the Court also referenced Nevada Rule of Professional Conduct 1.14. While the district court has broad scheduling discretion, see Bongiovi v. Sullivan, 122 Nev. 556, 570, 138 P.3d 433, 444 (2006), and NRCP 16(b)(4), the Court held it was an abuse of discretion to proceed with a change of placement when the court knew the child's attorney was absent and seeking a continuance, with no compelling reason to proceed. Fifth, the Court ordered reassignment to a different district judge. Applying the standard from Ybarra v. State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011) (quoting PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 438, 894 P.2d 337, 341 (1995), overruled on other grounds by Towbin Dodge, LLC v. Eighth Jud. Dist. Ct., 121 Nev. 251, 112 P.3d 1063 (2005)), and considering whether the original judge could "reasonably be expected upon remand to have substantial difficulty in putting out of [the judge's] mind previously-expressed views," Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 291 (Ct. App. 2023) (quoting Smith v. Mulvaney, 827 F.2d 558, 562 (9th Cir. 1987)), the Court concluded reassignment was warranted in light of the original judge's expressed views about familial preference, his characterization of foster parents as "placeholder[s]," and his stated unwillingness to reconsider. The writ compels (1) vacatur of the order placing J.B. with Miles Sr., (2) reassignment by the chief judge of the Eighth Judicial District Court to a different district judge, and (3) further placement proceedings based on J.B.'s best interest with continuing representation by counsel. The November 30, 2023, stay was vacated.

In plain language

This case is about who gets to care for a baby, J.B., whose parents were both incarcerated when he was born. (His parents had been arrested for the homicide of his older sibling.) Because neither parent could care for J.B., Nevada's child-welfare agency had to find someone else to take him in. Shortly after J.B.'s birth, DFS placed him with Becky and Jay Whipple, family friends of J.B.'s grandmother. The Whipples were not licensed foster parents at the time, and the district court signed an order describing them as "Unlicensed Fictive Kin." "Fictive kin," under Nevada law, means a person not related to a child by blood but who has a significant emotional and positive bond with the child. No one objected to that designation when it was made. Months later, after a paternity test confirmed Miles Stano Jr. was J.B.'s father, the father asked that J.B. be sent to live with the paternal grandfather in Illinois. After interstate paperwork was completed (about nine months after J.B. was placed with the Whipples, by which point the Whipples had become licensed foster parents), the district court held a placement hearing. The district court did not take evidence about what was best for J.B. Instead, the judge ruled that, as a matter of law, a blood relative always wins out over an unrelated person in placement decisions, and the judge also reversed course and decided the Whipples were not really fictive kin after all. The court ordered J.B. moved to Illinois. Compounding the issue, J.B.'s court-appointed attorney did not appear at the placement hearing or at the later reconsideration hearing. The Supreme Court noted J.B. was largely without representation throughout the case, even though state law requires that children in these proceedings be represented by counsel. The Nevada Supreme Court granted the writ and made several rulings. First, it explained that "fictive kin" status is judged from the perspective of both the prospective caregiver and the child. For an infant who cannot yet form relationships, the bond and commitment shown by the adult is what counts; an infant is not excluded from being placed with fictive kin just because the baby has not had time to bond. Second, the Supreme Court held that Nevada law does not put blood relatives ahead of fictive kin. The statute groups them together and prefers either over a foster home, but it does not rank them against each other. The decisive question is the child's best interest, and that requires actual factual findings. Third, the district court should not have proceeded with the placement hearing when J.B.'s attorney was absent and a continuance was being sought. Fourth, the Supreme Court ordered the case reassigned to a different district court judge, citing statements by the original judge that suggested he could not put aside his view that placement with "safe family" is always best. The Supreme Court vacated the placement order, lifted its prior stay, and sent the matter back for new proceedings before a different judge, who must hear evidence and make findings about what is actually in J.B.'s best interest.