MATTER OF GUARDIANSHIP OF N.S. (GUARDIANSHIP)

Statutes cited

Key holdings

Practitioner summary

These were consolidated original petitions for writs of mandamus challenging denial of a maternal grandmother's guardianship and visitation petitions arising in NRS Chapter 432B abuse and neglect proceedings. Mandamus is discretionary and available to compel a required act or control an arbitrary or capricious exercise of discretion, and issues where no plain, speedy, and adequate legal remedy exists. State v. Dist. Ct. (Jackson), 121 Nev. 413, 415-16, 116 P.3d 834, 836 (2005); NRS 34.160, 34.170. Because orders arising in juvenile proceedings were not appealable (NRAP 3A(b)(2)), writ relief was warranted. 122 Nev. at 311, 130 P.3d at 660-61. On placement, the court construed NRS 432B.457(1), which requires that where a person has a 'special interest' in a child's placement the court shall, except for good cause, ensure the person is involved in and notified of any placement plan and allowed to offer recommendations, and shall allow the person to testify. A relative is a person with a special interest. NRS 432B.457(2)(a)(1). The court further construed the familial-placement preference of NRS 432B.550(5), which directs that preference be given to placing the child with a relative within the third degree of consanguinity who is suitable and able to provide proper care. 122 Nev. at 311-14, 130 P.3d at 661-63. The court held the district court erred by granting initial custody to DCFS based solely on a caseworker's impressions, without hearing Maria's views under NRS 432B.457(1)(a), thereby depriving her of the familial preference; the resulting foster bonding effectively converted a temporary placement into a permanent one and unfairly disadvantaged the grandmother. The court noted the best-interest inquiry does not turn on whether the foster home is 'better,' but on whether the placement plan provides a stable, safe environment considering all circumstances. On visitation, the court applied NRS 125C.050, under which a court terminating parental rights and placing a child with a public agency may grant grandparents reasonable visitation if a petition is filed before rights are relinquished, and must find by a preponderance that visitation serves the child's best interests under the NRS 125C.050(6)(a)-(i) factors, expressly excluding the paragraph (j) 'wishes of a parent' factor after termination. 122 Nev. at 315-16, 130 P.3d at 664-65. The court held that while foster-parent testimony may be considered as one best-interest factor, the district court gave the foster parents' desire to raise N.S. 'without the interference of the natural family' improperly determinative weight, particularly where the foster family had been permitted to bond with N.S. to the grandmother's exclusion. The court granted both petitions and directed the district court to vacate its orders and reconsider.

In plain language

N.S. was the sixth and youngest child of a mother struggling with drug addiction and incarceration. Shortly after birth, N.S. tested positive for methamphetamine and was placed in the protective custody of the State's child welfare agency (DCFS), which quickly placed the baby with a foster family. The baby's maternal grandmother, Maria, was already raising N.S.'s five older siblings under a guardianship. A caseworker, believing Maria was overwhelmed, recommended placing N.S. elsewhere, and the court placed N.S. with foster parents without first hearing Maria's own views. After the baby had bonded with the foster family, Maria petitioned to be appointed guardian and, later, for visitation. The district court denied both requests, largely because N.S. had already been living with the foster family for months and the foster parents wanted to adopt without the natural family's involvement. Because Maria could not appeal orders arising in these juvenile proceedings, she sought extraordinary writs of mandamus, and the Nevada Supreme Court granted them. The court explained that Nevada's abuse and neglect statute (NRS Chapter 432B) gives a grandparent - a relative with a 'special interest' in the child - the right to be involved in and notified of any placement plan and to receive a 'familial preference' for placement. The district court had short-circuited that right by placing N.S. with strangers based only on a caseworker's report, without hearing Maria, which set in motion the bonding that then made it nearly impossible for Maria to prevail. The court directed the district court to vacate the guardianship denial and reconsider it with the familial preference in mind. On visitation, the court held that while a district court may hear from foster parents, it cannot let the foster parents' desire to raise the child without the natural family's involvement be the determining factor. Because the foster family had been allowed to bond with N.S. to the exclusion of Maria, the district court gave their wishes undue weight. The court granted that petition too and directed reconsideration of visitation if guardianship is again denied.