PHILIP R. VS. EIGHTH JUDICIAL DISTRICT COURT (CHILD WELFARE)

Statutes cited

Key holdings

Practitioner summary

By the Court, Cherry, J. (Parraguirre and Stiglich, JJ., concurring). Consolidated original petitions for writs of mandamus challenging a district court placement order entered after termination of parental rights. Holding 1 (governing statute): The familial placement preference survives termination of parental rights, but the applicable preference provision changes at termination. While the child was in protective custody during reunification, placement was governed by NRS 432B.550(5). Once the district court terminated parental rights and vested custody and control in DFS with authority to place for adoption, NRS 128.110(2) governed the placement decision, and the district court erred by applying NRS 432B.550(5). Holding 2 (delay): Relying on Clark County District Attorney v. Eighth Judicial District Court, 123 Nev. 337, 167 P.3d 922 (2007), the court reaffirmed that a family member's failure to timely and definitively request custody, when that family member knows of the protective-custody placement, may render the statutory familial preference inapplicable or influence the best-interest determination. Both NRS 432B.550 and NRS 128.110(2) require that any relative search be completed within one year of the initial out-of-home placement. Here, substantial evidence supported the district court's finding that Stephanie did not know the child was in protective custody and thus had a reasonable excuse for the roughly 15-month delay; the delay did not render the preference inapplicable. Holding 3 (best interest / findings): The child's best interest is the main consideration in a placement decision, and the district court must make written findings regarding credibility issues and its ultimate best-interest conclusion. Clark Cty., 123 Nev. at 346, 348, 167 P.3d at 928, 929; see NRS 128.005(2)(c); NRS 128.105(1). The statutory criteria create a familial preference, not a presumption. The hearing master erred by treating family connection as the 'overriding consideration' and failed to make adequate best-interest findings, and the district court's written order likewise lacked best-interest findings. Holding 4 (agency discretion): By applying the wrong statute, the district court failed to consider DFS's discretion under NRS 128.110(2). The court contrasted the permissive 'may give preference' language of NRS 128.110(2)(a) and the 'shall, if practicable' sibling-placement language of NRS 128.110(2)(b) with the mandatory 'must' / presumption language of NRS 432B.550(5). See State v. Am. Bankers Ins. Co., 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990); Washoe Cty. v. Otto, 128 Nev. 424, 432, 282 P.3d 719, 725 (2012). Sibling placement required further factual development. Disposition: The court granted the petitions and directed issuance of a writ of mandamus ordering the district court to vacate the placement order and 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 consider evidence of the familial relationship. See Clark Cty. Dep't of Family Servs. v. Eighth Judicial Dist. Court (In re A.B.), 128 Nev. 764, 770-71, 291 P.3d 122, 126-27 (2012); EDCR 1.46(g)(7).

In plain language

This case (captioned as writ petitions but concerning the placement of a minor child, E.R.) decided which relatives-versus-foster-family placement rules apply after a parent's rights have been terminated. In July 2015, Clark County's Department of Family Services (DFS) removed one-month-old E.R. from her mother because of neglect and placed her in foster care. DFS searched for relatives but found none. In September 2016 the child was placed with Philip R. and Regina R., foster parents who were an adoptive resource. About 15 months after the removal, in October 2016, a maternal cousin (Stephanie R.) and her husband in Georgia asked to have the child placed with them; that out-of-state placement was approved in March 2017. In the meantime, in February 2017, the court terminated the mother's parental rights and gave DFS custody with authority to place E.R. for adoption. Despite the child having bonded with the adoptive foster parents, the district court then ordered E.R. removed from that home and placed with the maternal relatives, applying a family-preference statute (NRS 432B.550(5)). The foster parents and DFS asked the Supreme Court for writs to stop that. The Supreme Court reached several conclusions. First, a preference to place a child with family does survive the termination of parental rights - but once rights are terminated, the governing statute is NRS 128.110(2), not NRS 432B.550(5). That difference matters: under NRS 432B.550(5) preference to a suitable relative 'must' be given, while under NRS 128.110(2) the agency 'may' give preference to a relative and 'shall, if practicable' place siblings together. So the district court used the wrong statute. Second, the Court agreed the maternal relatives had a reasonable excuse for coming forward late (about 15 months) because the record supported that they did not know the child was in protective custody, so the delay did not automatically defeat the family preference. Third, and decisively, the Court held the lower court failed its most important job: it did not make written findings about the child's best interest, which is the main consideration in any placement decision, and the hearing master had treated biological/family connection as the 'overriding' factor rather than genuinely weighing the child's best interest. The court also failed to consider the agency's (DFS's) discretion over placement that NRS 128.110(2) provides. The Court granted the writs, directed the district court to vacate the order placing the child with the maternal relatives, and ordered a new trial (trial de novo) applying NRS 128.110(2), with proper weight to the child's best interest and to DFS's discretion.