MULKERN VS. DIST. CT. (CLARK CTY. DEP'T OF FAMILY SERV.'S)

Statutes cited

Key holdings

Practitioner summary

Standard of review and writ standards. The court reiterated that mandamus is available to compel an act required by law or to control arbitrary or capricious exercises of discretion, citing Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008), and NRS 34.160; prohibition addresses action without or in excess of jurisdiction, citing NRS 34.320 and Club Vista Fin. Servs., LLC v. Eighth Judicial Dist. Court, 128 Nev. 224, 228, 276 P.3d 246, 249 (2012). The decision to entertain the petition is discretionary, D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 475, 168 P.3d 731, 737 (2007), with petitioners bearing the burden, Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Statutory framework. NRS 432B.550(5)(a) directs that, in determining out-of-home placement, the district court presume it is in the child's best interest "to be placed together with the siblings of the child." The court noted that the child's best interest is the main consideration for placement under NRS 432B.550, citing Clark Cty. Dist. Att'y, Juvenile Div. v. Eighth Judicial Dist. Court, 123 Nev. 337, 346, 167 P.3d 922, 928 (2007). No statute defines "sibling" for NRS Chapter 432B placements, but NRS 432B.550(5)(b) recognizes relative status based on consanguinity, and no party identified any statute expressly severing sibling status for placement purposes upon adoption. Application. Acknowledging that adoption severs the legal relationship with biological parents and vests parental decision-making in the adoptive parents, the court nonetheless held adoption does not preclude application of the NRS 432B.550(5)(a) sibling presumption. The court grounded that conclusion in the Legislature's consistent emphasis on maintaining sibling relationships across the domestic relations and dependency statutes: NRS 432B.390(7) (keeping siblings together whenever possible in initial protective placements); NRS 128.110(2)(b) (placing a child with siblings if practicable upon termination of parental rights); NRS 127.2825 (preference for placement with siblings in adoption); and NRS 125C.0035(4)(i) (custody factor considering the child's ability to maintain a sibling relationship). Without a direct legislative expression to the contrary, the court would not infer that the presumption disappears upon a sibling's adoption. The court found persuasive In re Valerie A., 43 Cal. Rptr. 3d 734, 736 (Ct. App. 2006), which treated children as siblings for purposes of the sibling exception to termination of parental rights notwithstanding one child's adoption, and noted the broader recognition of sibling relationships reflected in In re Carol B., 550 S.E.2d 636, 643, 646 (W. Va. 2001). Scope and limits. In a footnote, the court clarified that its holding does not affect statutory provisions on confidentiality, visitation, or inheritance, citing NRS 127.160 and Bopp v. Lino, 110 Nev. 1246, 1253, 885 P.2d 559, 563 (1994) (recognizing that adoption severs the legal grandparent-grandchild relationship and that birth grandparents have no statutory right to post-adoption visitation), and does not expand DFS's relative-location duties under NRS 432B.550(6) and NRS 128.110. Relief. The court issued a writ of mandamus directing the district court to apply the NRS 432B.550(5) rebuttable sibling presumption in determining Baby Girl W.'s placement. All other requested relief was denied because the district court had considered petitioners' arguments, included Amy as a potential placement, and invited her participation as a person with a special interest under NRS 432B.457. The court also granted petitioners' motion to publish, issuing this opinion in place of its prior unpublished order pursuant to NRAP 36(f).

In plain language

This case is about whether a baby in foster care should be presumed to belong with her biological sister, even though that sister has already been adopted by another family. Baby Girl W. was born in October 2017 and was quickly placed in foster care as a child in need of protection. The Clark County Department of Family Services (DFS) decided that adoption was the right long-term plan for her. Baby Girl W. has a 3-year-old biological half-sister named Vivian, who was previously adopted by Amy Mulkern in Massachusetts. DFS itself contacted Amy in early 2018 to ask whether she would adopt Baby Girl W. so the sisters could grow up together. Amy went through the interstate placement process and was approved as a possible placement. But DFS ultimately concluded that Baby Girl W. had bonded with her current foster parents - who are also willing to adopt her - and recommended she stay with them. Amy went to the Nevada district court handling the dependency case. The court allowed Amy and the foster parents to participate as "persons with a special interest," meaning they can recommend a placement and testify at the placement hearing. But the district court also ruled that, because Vivian had been adopted, she was no longer legally Baby Girl W.'s sibling for purposes of a Nevada statute - NRS 432B.550(5)(a) - that tells courts to presume placing siblings together is in a foster child's best interest. The district court therefore decided that presumption did not apply. Amy and Vivian asked the Nevada Supreme Court for a writ of mandamus - a court order forcing the lower court to do something it is required by law to do. They wanted the Supreme Court to make the district court apply the sibling presumption when deciding where Baby Girl W. should live. The Nevada Supreme Court agreed with Amy and Vivian on that point. The court explained that Nevada law repeatedly emphasizes keeping siblings together - in initial protective placements, in placements after parental rights are terminated, in adoptions, and in custody decisions. No Nevada statute says that adoption erases sibling status for placement purposes. Because the Legislature has stressed sibling relationships so consistently, the court concluded it would not assume - without clearer instruction - that lawmakers wanted the presumption to vanish the moment one sibling is adopted. The court therefore directed the district court to apply the rebuttable sibling presumption in NRS 432B.550(5) when deciding where to place Baby Girl W. "Rebuttable" means the presumption can still be overcome - the district court can still decide, based on evidence, that placement with the sibling is not in the baby's best interest. The court did not order any other relief, noting that the district court had already considered the Mulkerns' arguments, included Amy as a possible placement, and invited her to participate at the upcoming placement hearing. The court also added a footnote making clear that its ruling does not change separate Nevada rules about confidentiality, visitation, or inheritance after adoption, and does not require DFS to do more than its statutory duty to look for relatives.