In re Guardianship of N.M. , 2015 NV 75 ( 2015 )

131 Nev., Advance Opinion 75
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No, 64694
GUARDIANSHIP OF N.M., A MINOR
CHILD.
NAYELI M.G.,
FILED
Appellant, SEP 2 4 2015
vs. TRACJiE K. LINDEMAI•
GRAVIEL G.,
BY
Respondent. 60 1,erY CLERK
Petition for en banc reconsideration of a panel order affirming
a district court order granting letters of guardianship over a minor child.
Sixth Judicial District Court, Humboldt County; Richard Wagner, Judge.
Petition for reconsideration granted; affirmed.
Richard F. Cornell, Reno,
for Appellant.
Dolan Law, LLC, and Massey K. Mayo Case, Winnemucca,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, SAITTA, J.:
NRS 125A.335 establishes a district court's temporary
emergency jurisdiction to protect a child in Nevada from mistreatment or
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abuse.' We must decide whether a district court exercising temporary
emergency jurisdiction may appoint a general guardian pursuant to NRS
125A.335(2) when (1) no court in another jurisdiction has entered an
applicable custody order or commenced custody proceedings, and
(2) Nevada has become the child's home state. We hold that a district
court may appoint a general guardian in the appropriate case.
Furthermore, we hold that the district court here did not abuse its
discretion in appointing a guardian. Because substantial evidence
supports the court's decision, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant, a Mexican citizen, gave birth to N.M. in California
in 2007. Later that year, appellant and N.M. moved to Mexico. In 2008,
appellant left N.M. in the care of N.M.'s maternal grandparents, who were
also in Mexico. N.M.'s grandmother and two agents from Mexico's
National System for Integral Family Development (DIF) executed a
document stating that the grandparents had custody of N.M. (the 2008
DIF document).
In 2009 or 2010, N.M.'s maternal aunt (the Aunt) and
respondent, her then-fiancé or boyfriend, began caring for N.M.
Respondent is a United States citizen. In August 2011, appellant signed a
document purportedly giving the Aunt and respondent custody of N.M.
'This case was originally decided in an unpublished order by a
three-judge panel of this court. Because the issues presented are of
significance to the law and practice of the state, we now publish this as an
opinion of the en banc court. We limit our holding to the matters set forth
herein and deny en banc reconsideration of all other issues raised in this
appeal.
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In September 2012, respondent moved N.M. to Nevada after
his relationship with the Aunt ended. Appellant's half-sister then went to
respondent's home at night and attempted to remove N.M. In response,
respondent filed a verified emergency petition in November 2012 for
appointment as N.M.'s temporary general guardian. The district court
appointed respondent as N.M.'s temporary general guardian.
In March 2013, respondent filed a petition to be appointed
N.M.'s general guardian. After a two-day evidentiary hearing, at which
multiple witnesses testified about the events described above and
respondent's fitness to be N.M.'s guardian, the district court found that
appellant had abandoned N.M. The district court appointed respondent as
N.M.'s general guardian. After appellant appealed, a panel of this court
affirmed the award of custody to respondent. After the panel denied
appellant's petition for rehearing, she filed the present petition for en banc
reconsideration.
DISCUSSION
Standard of review
We review de novo issues of subject matter jurisdiction.
Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). We further
review a district court's factual findings for an abuse of discretion and will
uphold them if they are supported by substantial evidence. Id. at 668, 221
P.3d at 704. Substantial evidence is "evidence that a reasonable person
may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev.
145, 149, 161 P.3d 239, 242 (2007).
The district court had subject matter jurisdiction to appoint respondent as
N.M.'s general guardian
Appellant argues that the district court did not have
jurisdiction to appoint respondent as N.M.'s general guardian because
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N.M. had not lived in Nevada for six months at the time respondent filed
his first petition. Thus, we first consider whether the district court
properly exercised temporary emergency jurisdiction before addressing
whether it had jurisdiction to enter a general guardianship order in this
case.
The district court properly exercised temporary emergency
jurisdiction
A district court may exercise temporary emergency
jurisdiction to protect a child who is physically present in Nevada if "the
child has been abandoned or it is necessary in an emergency to protect the
child because the child, or a sibling or parent of the child, is subjected to or
threatened with mistreatment or abuse." NRS 125A.335(1).
Here, the parties do not dispute that N.M. was physically
present in Nevada when the district court granted respondent's petition
for a temporary guardianship. Although appellant argues that the district
court lacked temporary emergency jurisdiction because there was no
evidence that N.M. was abused, mistreated, or neglected before moving to
Nevada, this argument is without merit because N.M. faced a risk of harm
while in Nevada. Since appellant's half-sister came to respondent's home
at night and attempted to remove N.M., there was evidence to support the
district court's finding that N.M. risked mistreatment. Therefore, we
conclude that the district court did not abuse its discretion in exercising
its temporary emergency jurisdiction.
The district court had jurisdiction to appoint respondent as N.M.'s
general guardian
NRS 125A.335(2), which codifies section 204 of the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA), sets out three
requirements for a district court that is exercising temporary emergency
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jurisdiction to enter a final order: (1) no court in another jurisdiction has
entered an applicable custody order or commenced custody proceedings,
(2) the district court's order provides that it is to be a final determination,
and (3) Nevada has become the child's home state. See also UCCJEA §
204 (1997), 9 U.L.A. 676-77 (1999).
The third requirement sets forth a time-of-residency-in-
Nevada requirement and does not provide that a district court exercising
temporary emergency jurisdiction can make Nevada the child's home state
by issuing an order. See UCCJEA § 204 cmt., 9 U.L.A. 677 (stating that
"an emergency custody determination made under this section becomes a
final determination, if it so provides, when the State that issues the order
becomes the home State of the child" (emphasis added)); see also NRS
125A.085(1) (setting out the time requirement for home state status). Our
interpretation of this provision of NRS 125A.335(2) is consistent with
other jurisdictions' interpretations of their statutes codifying UCCJEA §
204. See, e.g., Hensley v. Kanizai, 143 So. 3d 186, 195 (Ala. Civ. App.
2013) (observing that a custody determination made by a trial court
exercising temporary emergency jurisdiction can become final "only if the
state becomes the home state of the child"); In re E.D., 812 N.W.2d 712,
721 (Iowa Ct. App. 2012) (holding that a trial court exercising temporary
emergency jurisdiction cannot issue an order making Iowa a child's home
state because such an order would conflict with the UCCJEA's definition
of home state); In re J.C.B., 209 S.W.3d 821, 823 (Tex. App. 2006)
(observing that Texas must become a child's home state before a custody
determination made by a trial court exercising temporary emergency
jurisdiction can become final). Thus, in the absence of custody proceedings
or a controlling custody order in another state, a Nevada court exercising
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temporary emergency jurisdiction may make a custody determination that
becomes final once the child lives in Nevada for enough time to make
Nevada the child's home state. 2
A child's home state is "ftlhe state in which [the] child lived
with a parent or a person acting as a parent for at least 6 consecutive
months, including any temporary absence from the state, immediately
before the commencement of a child custody proceeding." NRS
125A.085(1). A child custody proceeding is one that relates to the present
custody dispute and not to any prior dispute between the parties.
Friedman v. Eighth Judicial Dist. Court, 127 Nev., Adv. Op. 75, 264 P.3d
1161, 1166 (2011). A proceeding commences when its first pleading is
filed. NRS 125A.065.
Here, the present custody proceeding commenced over six
months after N.M. began residing in Nevada. Thus, Nevada became
N.M.'s home state by the time respondent petitioned to be appointed as
her general guardian. See NRS 125A.085. In addition, the record does not
show that a child custody order had been entered or that a child custody
proceeding had been initiated in another jurisdiction before the district
2 The cases that appellant relies on to limit the district court's
jurisdiction under NRS 125A.335 are inapposite because, unlike the
present case, they involve existing child custody orders. See, e.g., McDow
v. McDow, 908 P.2d 1049, 1051 (Alaska 1996) (limiting a court's temporary
emergency jurisdiction when a child is subject to an existing custody order
from another jurisdiction); In re Appeal in Pima Cnty. Juvenile Action No.
J-78632, 711 P.2d 1200, 1206-07 (Ariz. Ct. App. 1985) (same), approved in
part and vacated in part on other grounds, 712 P.2d 431, 435 (Ariz. 1986);
Perez v. Tanner, 965 S.W.2d 90, 94 (Ark. 1998) (same); In re Joseph D., 23
Cal. Rptr. 2d 574, 582 (Ct. App. 1993) (same), superseded by statute as
stated in In re C.T., 121 Cal. Rptr. 2d 897, 904 n.4 (Ct. App. 2002); State ex
rel. D.S.K., 792 P.2d 118, 127-28 (Utah Ct. App. 1990) (same).
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court appointed respondent as N.M.'s general guardian. Therefore, we
conclude that the district court was authorized to enter an order granting
a general guardianship.
The district court did not abuse its discretion in granting a general
guardianship to respondent
Appellant argues that the district court abused its discretion
by awarding guardianship of N.M. to respondent because there was not
sufficient evidence to overcome• the parental preference presumption. 3
This presumption provides that "[t]he parents of a minor, or either parent,
if qualified and suitable, are preferred over all others for appointment as
guardian for the minor" NRS 159.061(1). "If, however, neither parent is
qualified and suitable, or if both parents are, the statute requires the court
to move to the second step, determination of who is most suitable." In re
Guardianship of D.R.G., 119 Nev. 32, 38, 62 P.3d 1127, 1130-31 (2003).
When determining whether a parent is qualified and suitable,
the district court must give "the child's basic needs [and] welfare" priority
over the parent's interest in custody. Id. at 38, 62 P.3d at 1131. Thus, the
parental preference presumption can be "overcome either by a showing
that the parent is unfit or other extraordinary circumstances." Litz v.
Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995).
One extraordinary circumstance that can overcome the
parental preference presumption is the "abandonment or persistent
neglect of the child by the parent." In re D.R.G., 119 Nev. at 38, 62 P.3d
3 Appellant does not argue on appeal that the district court abused
its discretion by determining that N.M.'s best interests would be served by
appointing respondent as N.M.'s general guardian. Therefore, appellant
waives this issue on appeal. See Powell v. Liberty Mist. Fire Ins. Co., 127
Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011).
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at 1131 (quoting Locklin v. Duka, 112 Nev. 1489, 1496, 929 P.2d 930, 934
(1996)). "Abandonment of a child' means any conduct of one or both
parents of a child which evinces a settled purpose on the part of one or
both parents to forego all parental custody and relinquish all claims to the
child." NRS 128.012(1).
"Intent is the decisive factor in abandonment and may be
shown by the facts and circumstances." In re Parental Rights as to
Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996), superseded by
statute on other grounds as stated in In re Termination of Parental Rights
as to N.J., 116 Nev. 790, 798-99, 8 P.3d 126, 132 (2000). "If a parent or
parents of a child leave the child in the care and custody of another
without provision for the child's support and without communication for a
period of 6 months, . . . the parent or parents are presumed to have
intended to abandon the child." NRS 128.012(2). To overcome this
presumption, the parent must demonstrate that he or she did not abandon
the child See In re N.J., 116 Nev. at 803, 8 P.3d at 134.
In finding that appellant abandoned N.M., the district court
relied on a Mexican attorney's letter purportedly opining that the 2008
DIF document stated that appellant abandoned N.M. in 2008. 4 The
district court also considered a 2011 document signed by appellant that
purportedly granted respondent and the Aunt custody over N.M. Finally,
respondent testified that appellant expressed a desire to relinquish
4 The only record of the letter's contents is the oral translation that
the court interpreters provided. Because the actual letter was omitted
from the appellate record, we must presume that it supports the district
court's findings about its content. See Cuzze v. Univ. & Cmty. Coll. Sys. of
Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007).
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custody of N.M. when she executed the 2011 document that purportedly
gave custody to respondent and the Aunt. Thus, there was evidence to
support the district court's finding that appellant intended to abandon
N.M.
Furthermore, the evidence in the record demonstrates that
respondent and the Aunt began caring for N.M. in 2009 or 2010. The
record does not show that appellant attempted to exercise custody of N.M.
or to provide for her after respondent and the Aunt began caring for her.
Nor does it show that appellant attempted to communicate with N.M.
while respondent and the Aunt cared for her or attempted to regain
custody before N.M. moved to Nevada.
The evidence submitted in this case shows that the DIF
concluded that appellant abandoned N.M. in 2008 and appellant ceased to
care for N.M., and no admitted evidence shows that appellant provided
support for N.M. or communicated with her for at least six months.
Accordingly, there was substantial evidence to support the district court's
finding that appellant abandoned N.M. Ellis, 123 Nev. at 149, 161 P.3d at
242. Thus, the district court did not abuse its discretion by finding that
appellant's abandonment of N.M. overcame the parental preference
presumption. See Litz, 111 Nev. at 38, 888 P.2d at 440. Therefore, we
conclude that the district court did not abuse its discretion in appointing
respondent as N.M.'s general guardian.
CONCLUSION
The record does not show that a custody proceeding was
initiated or that a controlling custody order was entered in another
jurisdiction before or during the district court's exercise of its temporary
emergency jurisdiction. Furthermore, N.M. lived in Nevada for six
months before general guardianship proceedings commenced. Thus, the
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district court had jurisdiction to appoint a general guardian. When
exercising this jurisdiction, the district court did not abuse its discretion
by appointing respondent as N.M.'s general guardian because substantial
evidence supports its finding that appellant abandoned N.M. Therefore,
we affirm the district court's order granting a permanent guardianship to
resp ondent. 5
J.
Saitta
We concur:
, C.J.
J.
Parraguir
5 We have considered the parties' remaining arguments and conclude
that they are without merit.
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