131 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
JENNIFER L., No. 63176
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF FILED
CLARK; AND THE HONORABLE
JUN 0 4 2015
FRANK P. SULLIVAN, DISTRICT
K. LINclENAN
JUDGE, IL. (VC
Respondents, LERK
and
THE STATE OF NEVADA; AND R.L.,
Real Parties in Interest.
Original petition for a writ of mandamus seeking an order
directing the juvenile division of the district court to dismiss the
underlying neglect petition sustained against petitioner.
Petition denied.
David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy
Special Public Defender, Clark County,
for Petitioner.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Jennifer I. Kuhlman, Chief Deputy District
Attorney, Clark County,
for Real Party in Interest State of Nevada.
Gordon Silver and Paola M. Armeni and Puneet K. Garg, Las Vegas,
for Real Party in Interest R.L.
BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.
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OPINION
By the Court, DOUGLAS, J.:
Petitioner Jennifer L. seeks a writ of mandamus compelling
the juvenile division of the district court to dismiss a neglect petition and
finding of neglect entered against her. We take this opportunity to
consider whether a parent may be held responsible for neglecting a child
when a legal guardianship is in place over the child. 1 We conclude that
even while a child is under an NRS Chapter 159 guardianship, the child's
parents have a statutory duty to continue to care for the child, and
parental responsibility for neglect may coincide with the guardianship.
FACTS
Jennifer is civilly committed and resides in Wisconsin under a
doctor's care. She has been diagnosed with schizoaffective disorder. A
court order requires that Jennifer take her prescribed medication and see
a caseworker.
Real party in interest R.L. is Jennifer's daughter. R.L. was
residing in Nevada with her father, David L., and his wife, Evelyn, at the
time of David's death in 2009. Evelyn cared for R.L. for a short time after
David's death and was appointed R.L.'s guardian in December 2009.
However, in May 2010, Evelyn terminated her guardianship and Evelyn's
neighbor, Marjorie F., became R.L.'s legal g-uardian. 2 Thereafter, Marjorie
"We decline to consider Jennifer's other contentions because we find
they lack merit.
2 Marjorie and Evelyn were appointed as guardians under NRS
Chapter 159.
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moved to California and left R.L. under the care of Brenda D. Although
school documents identified Brenda as R.L.'s guardian, Brenda's
guardianship was never legitimately established pursuant to NRS
Chapter 159. 3
While R.L. was residing with Brenda, she accused Brenda of
battering her, encouraging her to sell marijuana, threatening to kill her if
she called Child Protective Services, and spending her social security
checks without providing for her basic needs. After R.L. resided with
Brenda for three years, the Department of Family Services (DFS) removed
R.L. The allegations against Brenda were unsubstantiated, but Brenda no
longer wanted R.L. living in her home.
Subsequently, the State filed an abuse and neglect petition
naming R.L. as a minor in need of protection pursuant to NRS Chapter
432B and asking the court to declare R.L. a ward of the court. The
petition identified Jennifer and Marjorie as R.L.'s mother and legal
guardian, respectively, and alleged that Jennifer's mental health issues
adversely affected her ability to care for R.L. Marjorie was eventually
removed from the petition, leaving Jennifer as the sole responsible party.
Jennifer entered a denial in response to the petition. She also
filed a motion to dismiss the petition, arguing that no material facts were
at issue because she had neither legal nor physical custody of R.L. and
therefore could not be responsible for neglect.
3 Marjorie
thought she completed the proper paperwork to transfer
temporary guardianship of R.L. to Brenda, but her actions were not legally
recognized and Marjorie's guardianship was never terminated.
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On October 31, 2012, an order of reasonable efforts was issued
by the hearing master. The hearing master found that DFS made
reasonable efforts pursuant to NRS Chapter 432B to prevent removal,
including discussion with Jennifer about placing R.L. in her home. The
hearing master further found that allowing R.L. to reside with Jennifer
was contradictory to R.L.'s welfare.
On February 20, 2013, the hearing master issued a decision
sustaining the allegations in the abuse and neglect petition and finding
that Jennifer's anxiety and depression affected her ability to provide care
for R.L. Among other findings, the hearing master found specifically that
(1) Jennifer was receiving intensive in-home care; (2) Jennifer had a co-
occurring diagnosis of schizoaffective disorder with delusions and alcohol
dependence; (3) Jennifer had severe memory impairment, for which she
was required by court order to take medication; and (4) when R.L. last
visited Jennifer, Rt. took on the parent role. The hearing master found
that it was in R.L.'s best interest to be adjudicated a child in need of
protection pursuant to NRS 432B.330 and recommended that R.L. remain
in the custody and control of DFS. The juvenile division of the district
court adopted the hearing master's recommendation, finding Jennifer
responsible for neglect because her mental condition prevented her from
providing care for R.L. Jennifer's request to stay the proceedings pending
a writ petition to this court was denied by the juvenile division of the
district court.
DISCUSSION
"A writ of mandamus is available to compel the performance of
an act that the law requires .. . or to control an arbitrary or capricious
exercise of discretion." Cheung v. Eighth Judicial Dist. Court, 121 Nev.
867, 868-69, 124 P.3d 550, 552 (2005). We exercise our discretion to
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consider a writ petition "when there is no plain, speedy and adequate
remedy in the ordinary course of law or there are either urgent
circumstances or important legal issues that need clarification in order to
promote judicial economy and administration." Id. at 869, 124 P.3d at 552
(internal quotation omitted).
Jennifer cannot substantively appeal from the juvenile
division of the district court's abuse and neglect determination. See NRAP
3A(b)(7) (limiting appeals to orders finally establishing or altering child
custody when proceedings do not arise from juvenile court); In re A.B., 128
Nev., Adv. Op. 70, 291 P.3d 122, 126 (2012) (noting that the lower court's
order arose from a juvenile proceeding and therefore was not substantively
appealable under NRAP 3A). Moreover, this petition raises the important
legal question of whether a parent may be responsible for abuse or neglect
when parental rights have not been relinquished and a guardianship over
the child pursuant to NRS Chapter 159 is in place. Thus, we exercise our
discretion to consider the petition, reviewing the legal question presented
de novo. See Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124
Nev. 193, 198, 179 P.3d 556, 559 (2008) ("Statutory interpretation is a
question of law that we review de novo, even in the context of a writ
petition.").
NRS 159.079
Jennifer argues that she cannot be responsible for neglect
because Marjorie was Rt.'s guardian when the petition was filed. The
State contends that NRS 159.079, the statute under which Marjorie's
guardianship was established, does not relieve a parent from the duty to
provide for the care, support, or maintenance of a child. The juvenile court
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concluded that a guardianship need not be set aside for parental
responsibility to exist. We agree.
"When a statute is clear and unambiguous, we give effect to
the plain and ordinary meaning of the words and do not resort to the rules
of construction." Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790
(2010). NRS 159.079(7) provides: "This section does not relieve a parent or
other person of any duty required by law to provide for the care, support
and maintenance of any dependent." Applying the plain and ordinary
meaning of NRS 159.079(7) here leads us to conclude that, as R.L.'s
natural mother, Jennifer continues to be responsible for R.L.'s care,
irrespective of Marjorie's guardianship. Accordingly, Jennifer may be held
legally responsible for neglect.
Chapman
Despite NRS 159.079's plain meaning, Jennifer contends that
the instant case is similar to Chapman v. Chapman, 96 Nev. 290, 294, 607
P.2d 1141, 1144 (1980), where we determined that a parent could not be
responsible for neglect when the child was left with someone known to be
providing proper care for the child. According to Jennifer, R.L. had been
receiving proper care from Brenda, and there is no dispute over that fact.
On the contrary, that fact is disputed by both the State and the juvenile
division of the district court; the facts established that Brenda was no
longer willing or able to care for R.L. Thus, the juvenile court concluded
that Chapman was inapplicable. We agree that the rule announced in
Chapman does not apply here.
In Chapman, a child's father took custody and allowed his
brother and sister-in-law, who were appointed as the child's legal
guardians when the father died, to care for the minor. Id. at 291, 607 P.2d
at 1142-43. The guardians then petitioned to terminate the mother's
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parental rights. Id. at 292, 607 P.2d at 1143. The juvenile division of the
district court granted the guardians' petition and found that the mother
was an unfit parent and that she abandoned and neglected the child. Id.
This court reversed that decision and determined that:
NRS 128.014 defines a neglected child. As we read
the statute, a finding of neglect must be based
upon the treatment of the child while the parent
has custody: neglect is not established when the
child is left by the parent in an environment
where the child is known to be receiving proper
care.
Id. at 294, 607 P.2d at 1144 (footnote omitted) (citing In re Adoption of
R.R.R., 96 Cal. Rptr. 308 (Ct. App. 1971)).
Here, it may be true that R.L. was initially being properly
cared for by her stepmother Evelyn and then by Marjorie. However, those
circumstances changed when R.L. was residing with Brenda and reports of
alleged abuse and neglect surfaced. Although the reports against Brenda
were unsubstantiated, Brenda was no longer willing to provide care for
R.L. Moreover, Jennifer was unable to provide care for R.L. due to her
mental illness. Thus, at the time of the petition, R.L. was not receiving
proper care, making this case distinguishable from Chapman.
Because Chapman is inapposite and NRS 159.079(7) explicitly
preserves parental responsibility for a child, even when a guardianship is
in place, the juvenile court properly sustained the neglect petition based
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on Jennifer's inability to provide proper care for R.L. Accordingly, we
decline to issue a writ of mandamus.
)fasA
J.
Douglas
We concur:
J.
Parraguirre
Cherry
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