in Re: Guardianship as to A.M. ( 2013 )

 Office petitioned to intervene as a party for the purposes of terminating
the guardianship. After holding hearings on the matter, a hearing master
issued a report recommending that the District Attorney's Office be
allowed to intervene and that the guardianship be terminated. Upon
receipt of the hearing master's report, the district court afforded the
parties the opportunity to present new information at a hearing.
Reviewing the evidence presented, the district court affirmed the
recommendation of the hearing master and issued an order granting the
intervention and terminating the guardianship. 2 This appeal followed.
On appeal, Christina contends that the District Attorney's
Office lacked standing to both bring the petition and to intervene.
Christina further argues that the district court improperly considered
findings, established by a preponderance of evidence in a previous NRS
432B.530 removal hearing, in the guardianship termination proceeding.
She points out that clear-and-convincing evidence must support
terminations of guardianship. NRS 159.1905. We disagree with Christina
and therefore affirm the district court's order.
The petition to intervene
In support of her contention that the district court erred in
granting the District Attorney's petition to intervene, Christina first
argues that the District Attorney's Office lacked standing to bring the
2 The parties are familiar with the facts and we do not recount them
further except as is necessary for our disposition.
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petition. Standing is a question of law that this court reviews de novo.
Arguello v. Sunset Stations, Inc., 127 Nev. 252 P.3d 206, 208
(2011). In determining an issue of standing, this court examines statutory
language to determine if the statute confers greater rights of standing
than allowed by the Constitution. Citizens for Cold Springs v. City of
Reno, 125 Nev. 625, 630-31, 218 P.3d 847, 851 (2009). NRS 159.1853(1)(e)
provides that lalny other interested person" may petition a court to have
a guardian removed.
The District Attorney's duties and powers are defined in NRS
252.110 and include any "duties as may be required of him or her by law."
NRS 252.110(6). Pursuant to NRS 432B.510(2), the District Attorney is
tasked with signing or countersigning petitions concerning child protection
and representing the "interests of the public in all proceedings."
Moreover, DFS can enlist the aid of the District Attorney to protect the
interests of the child. NRS 432B.210; NRS 432B.350; NRS 432B.380.
Thus, when enlisted by DFS, the District Attorney has a parallel and
congruent interest in both protecting minor children and representing the
public in guardianship termination proceedings. 3 Therefore, we conclude
that the District Attorney is an "interested person" within the meaning of
NRS 159.1853(1)(e) and, as such, possesses the requisite standing to
petition a court to have a guardian removed.
3 Christina
cites NRS 432B.510 to assert that the District Attorney's
Office cannot represent DFS because it must represent the interests of the
public. However, we conclude that this dual representation is not
necessarily mutually exclusive.
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Christina next argues that intervention by the District
Attorney's Office was unwarranted under NRCP 24. NRCP 24 provides
for intervention by right where "a statute confers an unconditional right to
intervene or. . . when the applicant claims an interest relating to
the . . . transaction which is the subject of the action and the applicant is
so situated that the disposition of the action may. . . impair or impede the
applicant's ability to protect that interest . . . ." NRCP 24(a)(2).
This court has interpreted NRCP 24(a)(2) and held that an
applicant must meet four requirements: "(1) that it has sufficient interest
in the litigation's subject matter, (2) that it could suffer an impairment of
its ability to protect that interest if it does not intervene, (3) that its
interest is not adequately represented by existing parties, and (4) that its
application is timely." American Home Ins, Co. u. Dist. Court., 122 Nev.
1229, 1238, 147 P.3d 1120, 1126 (2006); see also NRS 12.130(1).
"Determining whether an applicant has met these four requirements is
within the district court's discretion." American Home Ins., 122 Nev. at
1238, 147 P.3d at 1126.
We conclude that the District Attorney's Office has a sufficient
interest in A.M.'s guardianship, as its interest "is protected under the law
and bears a relationship to the plaintiffs claims." Id. at 1239, 147 P.3d at
1127. DFS's interest in A.M.'s general health and well-being becomes the
District Attorney's interest when DFS requests assistance. NRS
432B.210; NRS 432B.469. Moreover, the District Attorney is tasked with
countersigning petitions concerning child protection and "represent[ing]
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the interests of the public in all proceedings." NRS 432B.510. This
provides the District Attorney with an additional and independent interest
when the guardianship termination proceeding arises from protection and
neglect proceedings.
We also conclude that the inability of the District Attorney's
Office to intervene in guardianship proceedings would significantly impair
its ability to carry out legislatively mandated duties. See American Home
Ins., 122 Nev. at 1240-41, 1241 n.40, 147 P.3d at 1128, 1128 n.40
(recognizing that the intervenor has met the impairment requirement
where a pending case would control the issues in which an intervenor
holds an interest).
Furthermore, the District Attorney's interest in protecting
A.M. is not adequately represented by existing parties. Christina argues
that A.M.'s interests should have been represented by his biological
mother or his aunt with whom he had been placed. However, their
testimony could not and did not encompass all of the District Attorney
Office's arguments or interests. See Sagebrush Rebellion, Inc. v. Watt, 713
F.2d 525, 528 (9th Cir. 1983) (holding that several factors dictate whether
an intervenor's interest is represented by existing parties, including
whether the party will make the same arguments the intervenor would
make, the party is capable and willing to make those arguments, and the
party's argument would neglect an important issue that the intervenor
would not have neglected). Accordingly, we determine that the District
Attorney's Office met the minimal burden to prove that current
representation was inadequate. American Home Ins., 122 Nev. at 1241,
147 P.3d at 1128.
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Finally, we conclude that the intervention was timely. The
timeliness determination requires an examination of "the extent of
prejudice to the rights of existing parties resulting from the delay and
then weighing that prejudice against any prejudice resulting to the
applicant if intervention is denied." Id. at 1244, 147 P.3d at 1130 (footnote
and internal quotations omitted). The District Attorney moved to
intervene concurrently with its petition to terminate the guardianship,
providing Christina with advance notice of the intention to intervene.
Therefore, Christina has failed to demonstrate any prejudice resulting
from the timing of the intervention when she had ample opportunity to
prepare for the termination hearing and was afforded the opportunity to
provide additional testimony and evidence supporting her position. 4
Since the District Attorney's Office properly demonstrated
compliance with the intervention requirements, we conclude that the
district court did not abuse its discretion in granting the petition to
intervene.
NRS 159.1905's evidentiary standard
Christina contends that the district court improperly relied on
evidence presented at the original removal hearing to determine that the
guardianship should be terminated. The evidentiary standard at a
removal hearing is governed by NRS 432B.530(5), which requires a
4 Christina also argues that, as she had already been granted
guardianship of A.M., the District Attorney's petition for termination was
untimely since it was subsequent to an entry of final judgment. However,
in a guardianship, the court retains "jurisdiction to enforce, modify or
terminate [the] guardianship . . . until the child reaches 18 years of age."
NRS 432B.468(1). Thus, the establishment of a guardianship does not
prevent the District Attorney from filing a subsequent petition for
termination.
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MMial
preponderance of evidence be shown supporting the removal. By contrast,
hearings considering petitions for termination of guardianship are
governed by NRS 159.1905(3), which mandates a showing by clear and
convincing evidence that the termination is in the best interest of the
child. See NRS 159.185(1)(g); Hudson v. Jones, 122 Nev. 708, 710, 138
P.3d 429, 430 (2006) ("In determining the custody of a minor child, 'the
sole consideration of the court is the best interest of the child." (quoting
NRS 125.480(1))).
Here, in accordance with the requirements of NRS 159.1905,
hearings were held by a hearing master to consider the petition for
termination of guardianship. Subsequent to the hearing master's
recommendation, the district court held a hearing for the purpose of
considering the recommendation. Christina argues that by adopting the
recommendation and not deeming it clearly erroneous, the district court
applied the wrong evidentiary standard. After the district court hearing,
in which the court specifically requested further information from the
parties and the clear-and-convincing evidence standard was discussed, the
district court affirmed the master's recommendation to terminate the
guardianship based on overwhelming evidence that terminating the
guardianship was in A.M.'s best interests. 5
5 At
the hearing before the district court, appellant's counsel
specifically brought to the forefront the clear-and-convincing evidence
standard. Based on the discussion of the clear-and-convincing evidence
standard at the hearing and the reference by incorporation of NRS
Chapter 159 in the hearing master's report and recommendation, we
conclude that it may be inferred that the district court's findings were
made under the clear-and-convincing evidence standard.
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The district court "is not required to rely on the master's
findings, but if the court chooses to rely on the master's findings, it may do
so only if the findings are supported by the evidence and not clearly
erroneous." In re A.B., 128 Nev. 291 P.3d 122, 128 (2012). We
review a district court's decision regarding child custody for an abuse of
discretion. Rivero v. River°, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009).
The district court's order acknowledged that the decision was
based on arguments of counsel and the pleadings. The district court not
only had before it the NRS Chapter 432B hearing determination and the
biological mother's request that the guardianship be terminated, but it
also had been provided information that: (1) Christina's husband sexually
abused A.M., and she then brought A.M. to visit his abuser on a weekly
basis, (2) Christina had a history of choosing sexually abusive partners,
and (3) adoption or guardianship by the alternative placement family was
a permanency goal for A.M. Further, Christina was afforded a distinct
opportunity to challenge the evidence submitted and introduce additional
evidence but declined to provide any supplementary information. 6 This
evidence was sufficient for the district court to terminate the guardianship
6 Christina contends that Matter of Guardianship & Estate of D.R.G.,
119 Nev. 32, 37, 62 P.3d 1127, 1130 (2003), requires that a suitability
determination be made only on the facts as existing at the time of the
hearing. However, in that case, this court considered the conduct of the
father going back several years prior to the time of the hearing. Id. at 39,
62 P.3d at 1131-32. Similarly, in this case, consideration of past conduct
is logically necessary for a determination of current fitness.
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under the clear-and-convincing evidence standard. Therefore, we conclude
that the district court did not abuse its discretion. See Rivero, 125 Nev. at
428, 216 P.3d at 226. 7
Accordingly, we 8
ORDER the judgment of the district court AFFIRMED.
C.J.
Pickering
Hardesty
Parraguirre
Saitta
7 Christina also argues that the district court erred by failing to hold
an evidentiary hearing. We disagree. The Legislature did not specify in
NRS 159.1905 that an evidentiary hearing is required, which supports the
proposition that the district court has discretion to determine when a
hearing is necessary. See McKay v. Bd. of Cty. Comm'r, 103 Nev. 490, 492,
746 P.2d 124, 125 (1987) (when a statute is silent "it is not the business of
this court to fill in alleged legislative omissions based on conjecture as to
what the legislature would or should have done"); Wheble v. Dist. Court,
128 Nev. , 272 P.3d 134, 136 (2012) (this court will not look beyond
a statute's plain language and will deduce legislative intent from the
words used). Further, even if the statue did contemplate an evidentiary
hearing, Christina did not request one nor did she present any additional
information showing that an evidentiary hearing was warranted. Thus,
we conclude that the district court was not required to hold a separate
evidentiary hearing and therefore did not abuse its discretion in this
regard.
8All other arguments on appeal lack merit and will not be discussed
further.
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cc: Hon. Charles J. Hoskin, District Judge, Family Court Division
Special Public Defender
Legal Aid Center of Southern Nevada
Clark County District Attorney/Juvenile Division
Eighth District Court Clerk
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