IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 82469
GUARDIANSHIP OF THE PERSONS:
M.F.M. AND M.G.M., PROTECTED
MINORS.
FILED
ERIN NEWPORT, MAY 1 3 2022
Appellant,
ELIZABEIN A. BROWN
vs. CLERTgJPREME COURT
MONTRAIL GREEN; AND JERMIA DEPUTY CLERK
COAXUM-GREEN,
Res • ondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a petition
to terminate a guardianship as to minor children. Eighth Judicial District
Court, Family Court Division, Clark County; Linda Marquis, Judge.
This appeal implicates NRS 159A.1915, which governs what a
parent must establish in order to terminate a guardianship over the
parent's child. NRS 159A.1915 provides:
1. If, before a protected minor is emancipated, a
parent of the protected minor petitions the court for
the termination of a guardianship of the protected
minor, the parent has the burden of proof to show by
clear and convincing evidence that:
(a) There has been a material change of
circumstances since the time the
guardianship was created. The parent must
show that, as part of the change of
circumstances, the parent has been restored
to suitability as described in NRS 159A.061.
(b) Except as otherwise provided in
subsection 2, the welfare of the protected
minor would be substantially enhanced by
the termination of the guardianship and the
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placement of the protected minor with the
parent.
2. If the parent consented to the guardianship
when it was created, the parent is required to make
only that showing set forth in paragraph (a) of
subsection 1.
(Emphases added.) By its terms, the statute provides that if the parent did
not initially consent to the guardianship, the parent must satisfy two
requirements: (1) that "[t]here has been a material change in circumstances
since the guardianship was created," and (2) that "the welfare • of the
protected minor would be substantially enhanced by the termination of the
guardianship." NRS 159A.1915(1). In contrast, if the parent did initially
consent to the guardianship, the parent must only satisfy the first
requirement. NRS 159A.1915(2).
In this case, respondents, who are the aunt and uncle of twin
girls M.F.M and M.G.M., filed a petition seeking to appoint themselves as
the girls guardians. In response to the petition, appellant, who is the girls'
mother, did not consent to respondents being appointed as guardians;
rather, she proposed that the girls' grandfather should be appointed as their
guardian and only for a 6-month period. The district court deClined to
appoint the grandfather as the girls' guardian and declined to impose a time
limit on the guardianship, instead deciding to appoint respondents as their
guardians and ordering the guardianship to be in place for an undefined
duration. A few months later, appellant petitioned to terminate the
guardianship. The district court denied the petition. In so doing, it did not
address whether appellant had satisfied NRS 159A.1915(1)s first
requirement, but it reasoned that appellant had not consented to the initial
guardianship and did not satisfy NRS 159A.1915(1)s second requirement.
On appeal, appellant contends (1) she did consent to a guardianship, albeit
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not the one the district court authorized, such that she is not obligated to
satisfy NRS 159A.1915(1)s second requirement; and (2) even if she were
obligated to satisfy the second requirement, the district court erred in
finding that she failed to do so. We disagree with both arguments.
Appellant's first argument implicates statutory construction,
which we review de novo. Williams v. United Parcel Servs., 129 Nev. 386,
391, 302 P.3d 1144, 1147 (2013). Appellant contends that •construing
"consented to the guardianship" to mean the specific guardianship ordered
by the district court would be contrary to public policy. See Young v. Nev.
Gaming Control Bd., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020)
(recognizing that this court interprets statutes by their plain meaning
unless there is ambiguity, the plain meaning would provide an absurd
result, or the plain meaning clearly was not intended). In this, appellant
contends that child-custody and child-guardianship statutes, such as NRS
159A.061 (providing that when considering whom to appoint as a child's
guardian, a court should give preference to a suitable parent), evince a
preference that a suitable parent should be given custody over a fit
nonparent. From there, appellant appears to contend that public policy is
served by construing "consented to the guardianship" to mean "consented
to a guardianship" because, when a parent recognizes that a guardianship
is necessary, the parent is recognizing his or her temporary inability to look
after a child and, in so doing, is actually being a suitable parent. Cf. Hudson
v. Jones, 122 Nev. 708, 712, 138 P.3d 429, 431-32 (2006) ("[W]e do 'not want
to discourage parents from willingly granting temporary guardianships,
while working through problems in their own lives, if that is in the child's
best interest."' (quoting Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440
(1995))). Thus, so long as a parent has consented to a guardianship,
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appellant contends the parent should not be required to satisfy NRS
159A.1915(1)s second requirement.
We are not persuaded by appellant's argument. When
respondents petitioned for guardianship, the girls had been living with
them for roughly half a year, evidently because their grandfather had no
longer been able to care for them due to his health issues. In response to
their petition, appellant requested the girls grandfather be appointed as
guardian, but did not agree to the appointment of respondents as the
guardians. The district court concluded the grandfather was not the most
suitable guardian for the girls and granted the respondents' petition,
despite the fact appellant had not agreed to their appointment. Thus, under
the facts of this case, we are not persuaded that applying NRS 159A.1915
by its plain language would be contrary to any identifiable public policy
concern or legislative intent.' Accordingly, we agree with the district court
that appellant did not consent to the initially imposed guardianship, such
that in order to terminate it, appellant needed to satisfy both requirements
in NRS 159A.1915(1).2
INRS 159A.1915 was enacted in 2017 as part of an overhaul of the
guardianship statutes. See 2017 Stat. Nev., ch. 172, digest, at 813; see also
Hearing on A.B. 319 Before the Assembly Judiciary Comm., 79th Leg., at
16 (Nev., April 10, 2017) (testimony from Family Court Judge Egan Walker
explaining that the committee that drafted A.B. 319 undertook a "giant
task" of drafting NRS Chapter 159A to deal specifically with guardianships
for minors). There is no discussion in the legislative history for A.B. 319
regarding the specific intent behind NRS 159A.1915, and our research has
not revealed whether the Legislature adopted NRS 159A.1915s text from
another state's analogous statute.
2We reiterate that an unpublished disposition from this court, while
persuasive, see NRAP 36(c)(3), does not establish binding precedent. We
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Appellant next contends that even if she were obligated to
satisfy NRS 159A.1915(1)s second requirement, the district court erred in
finding that she failed to do so. Appellant's second argument implicates the
district court's factual findings, to which we generally give deference. See
Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009) (The district
court's factual findings . . . are given deference and will be upheld if not
clearly erroneous and if supported by substantial evidence."); see also In re
Guardianship of L.S. & H.S., 120 Nev. 157, 163, 87 P.3d 521, 525 (2004)
•(Absent a showing of abuse, we will not disturb the district court's exercise
of discretion concerning guardianship determinations.").
We are not persuaded that the district court abused its
discretion in declining to terminate the guardianship. The district court
found that the girls had been living with respondents "for a substantial
amount of time and that respondents had enrolled the girls in school and
had ensured that the girls were receiving other services related to their
wellbeing. The district court also considered appellant's proffered evidence
in support of terminating the guardianship, which consisted of an
apartment lease, paystubs, and pictures of appellant and the girls, and
determined that this evidence did not establish that the girls welfare would
be substantially enhanced by terminating the guardianship and placing
them in appellant's care. Based on this record, we are not persuaded that
the district court abused its discretion or clearly erred in finding that
also note that portions of NRS 159A.1915 may present due process concerns,
although none of those concerns have been articulated in this case.
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appellant failed to satisfy NRS 159A.1915(1)s second requirement by clear
and convincing evidence.3
Relatedly and alternatively, appellant contends that the
district court should have held an evidentiary hearing. In this, appellant
likens her petition to terminate the guardianship to a request to modify a
child custody• order. Under that scenario, she contends that she
demonstrated "adequate cause for an evidentiary hearing. See Arcella v.
Arcella, 133 Nev. 868, 871, 407 P.3d 341, 345 (2017) (holding that a district
court must hold an evidentiary hearing "on a request to modify custodial
ordere if the party requesting the hearing demonstrates "adequate cause").
To the extent that Arcella's "adequate cause" standard applies to the
underlying proceeding, we are not persuaded that appellant Satisfied it,
given that she did not and has not explained what evidence or whose
3For the first time on appeal, appellant cites In re A.S., No. 73876,
2018 WL 5291457 (Nev. Oct. 18, 2018) (Order of Reversal and Remand), for
the proposition that the district court should have applied the parental-
preference presumption in deciding whether to terminate the guardianship.
We are not persuaded under the facts of this case. First, the In re A.S.
decision is distinguishable, in that this court determined the presumption
should apply because the parent initially consented to the guardianship.
2018 WL 5291457 at *1. Second, appellant made only a passing reference
to the parental-preference presumption in district court when she filed an
"amended petition to terminate the guardianship, which was filed after the
district court• had orally denied her original petition. In its written
judgment, the district court treated this "amended' petition as a motion for
reconsideration and denied it. Given the lack of attention devoted to the
parental-preference presumption in appellant's amended petition/motion
for reconsideration, we are not persuaded that the district court abused its
discretion by not expressly addressing the presumption in its written
judgment. See AA Primo Builders v. Washington, 126 Nev. 578, 589, 245
P.3d 1190, 1197 (2010) (reviewing for an abuse of discretion the district
court's denial of a motion for reconsideration).
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testimony she wanted to introduce at the evidentiary hearing. Accordingly,
we conclude that the district court did not commit reversible error in
declining to hold an evidentiary hearing and, relatedly, that the district
court was within its discretion in finding that appellant failed to show by
clear and convincing evidence that the girls welfare would be substantially
enhanced by terminating the' guardianship. In re Guardianship of LS. &
H.S., 120 Nev. at 163, 87 P.3d at 525 ("Absent a showing of abuse, we will
not disturb the district court's exercise of discretion concerning
guardianship determinations."). In light of the foregoing, we
ORDER the judgment of the district court AFFIRMED.
/ , J.
Hardesty A
J.
Stiglich Herndon
cc: Hon. Linda Marquis, District Judge, Family Court Division
Morris Law Center
Jermia Coaxum-Green
Montrail Green
Eighth District Court Clerk
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