Matter of Guardianship & Estate of DRG
| Decision Date | 12 February 2003 |
| Docket Number | No. 38575.,38575. |
| Citation | 62 P.3d 1127 |
| Parties | In the Matter of the GUARDIANSHIP OF the Person and Estate of D.R.G. Dwight G., Appellant, v. Connie E.P., Respondent. |
| Court | Nevada Supreme Court |
Mark A. Jenkin, Henderson, for Appellant.
Gifford, Vernon & Barker and Christine A. Washburn, Las Vegas, for Respondent.
Before SHEARING, LEAVITT and BECKER, JJ.
This is an appeal from a district court order appointing respondent Connie E.P. as general guardian of D.R.G., a minor child. Connie is the child's maternal aunt. Appellant Dwight G., the child's natural father, appeals arguing that the district court erred by failing to observe the parental preference of NRS 159.061 and that there was no clear evidence in the record to support a finding that it was in the child's best interest to award guardianship to Connie. We disagree. The district court did not abuse its discretion in granting guardianship to Connie. We also agree with the district court that if Dwight is able to show that he has created a loving bond with the child, that he has taken parenting classes and undergone reunification therapy, that he has undergone tolerance training or anger control management therapy, and that he has learned to manage the child's health care needs, the issue of guardianship can be revisited.
D.R.G. was born on October 25, 1991, in Southern California, to Donna G. and Dwight G., who were once married but were divorced long before the child was born. The child's birth certificate lists Dwight as the father. Although paternity, custody, visitation, and child support were never judicially determined, Donna exercised sole physical custody of the child and Dwight voluntarily paid her $300 per month in child support. For nearly two years after the child's birth, Donna lived in the same vicinity as Dwight in Southern California.
At seven months of age, the child was diagnosed with cystic fibrosis, and later with cerebral palsy. The child requires daily, time-consuming chronic therapies.
On September 1, 1993, Donna, her sister Connie, the child, and the child's older sister moved to Las Vegas. From that time to the present, the child has lived primarily with Connie, although the child also spent a significant amount of time with Donna. Connie has participated, along with Donna, in the child's care since birth. Whenever the child had to stay in the hospital overnight, Connie would also stay at the hospital. It was Connie who took the child to weekly physical therapy. It was Connie who took the child to school every day to accommodate Donna's work schedule.
Dwight claims that until 1999, he made regular visits to Las Vegas to visit the child and the child's sister. Donna asserted in her affidavit, however, that Dwight had never indicated or shown any interest in providing a home for the child or in having a regular visitation schedule.
Three years before the guardianship hearings, Donna was diagnosed with terminal cancer. After that, Dwight admits that his visits became less frequent. Dwight claims he saw the child twelve times in 1999, about six times in 2000, and only once during the first half of 2001. In addition, Dwight did not call the child by telephone at all during the six months prior to the guardianship hearings.
Dwight admits that he has never gone to any of the child's medical appointments. However, he claims he went to several of the child's therapies during the first two years of the child's life when Donna and the child still lived in California. Dwight has never spoken to any of the child's medical care providers in Las Vegas. Dwight has never stayed all night in the hospital with the child. Dwight does not even know how many times the child has been in the hospital. Dwight has admittedly referred to the child in such derogatory terms as "Cripple" and "Sausage Arm," due to the child's physical malady. According to Dwight, the longest visit the child ever had with him in California was three days. After one such visit, however, the child returned to Las Vegas with over half of the required medicines untaken. When questioned during the hearings, Dwight did not even know the child's birth date.
Dwight admits that he has a past history of violence, including a battery charge in 1964 and another such charge in 1974. Dwight also admits that he hit Donna's brother, Lee, over the head with a baseball bat in 1985. No charges were brought in that incident because Dwight paid Lee $1,000. Dwight also acknowledges that he hit Donna during their marriage, but claims there were no further incidents of violence after their divorce. Donna, however, claims that Dwight attacked her while she was pregnant with the child, causing her multiple head and facial injuries.
During the final stages of Donna's cancer, on April 17, 2001, Connie petitioned the district court, seeking guardianship of the child. Donna provided an affidavit, stating her desire that Connie be granted sole legal custody of the child in the event of her death. Donna's affidavit also stated that "[the child]'s health and welfare would be in very real danger if [the child] were placed under Dwight's care for any extended period of time." An evidentiary hearing was set for May 18, 2001. On April 27, 2001, the court issued an order appointing Connie as temporary guardian of the child.
The evidentiary hearing took place on May 18, 2001, and was continued to June 15, 2001, for completion. During this interval, Donna died. Because the temporary guardianship had expired and Donna was now deceased, the district court issued an order granting Connie an emergency general guardianship on June 5, 2001. The order provided that the guardianship would be reviewed on June 15, the date of the continued hearing. At the May 2001 hearing, Dr. Ruben Diaz, the child's attending physician, testified concerning the serious nature of cystic fibrosis, which is a terminal disease. He stated that the child is in the mild range of the disease at this time, due mostly to the excellent care and therapies the child has received. Dr. Diaz further testified that continuity of care was extremely important.
During the June 2001 evidentiary hearing, the child was interviewed at the family mediation center, at the court's request. After the interview, the family mediation center specialist was sworn-in so he could testify regarding the child's wishes. The family mediation center specialist testified that the child indicated a preference to live with Connie rather than with Dwight. The child stated that the most important people in the child's life were Donna and Connie. The child expressed a desire to live with Connie and just visit Dwight. When asked why, the child expressed a belief that Connie loves the child more and the child was happier there.
Following the second hearing, the guardianship commissioner filed a report and recommendations. The guardianship commissioner recommended that Connie continue as general guardian of the child, based on a finding that the child's unique circumstances and best interests so required. The guardianship commissioner further provided that Dwight could come back to the court to revise the guardianship provided he "make a showing that he has created a loving bond with [the child], that he has taken parenting classes and undergone reunification therapy, that he has undergone tolerance training or some type of anger control management therapy, and that he has learned to manage [the child's] health care needs." The guardianship commissioner's recommendations were adopted by court order.
Dwight filed this appeal, alleging that the trial court erred by failing to observe the parental preference under NRS 159.061. Dwight further asserts that the guardianship commissioner erred by utilizing a best interests of the child test rather than observing parental preference as set forth in NRS 159.061. Finally, Dwight claims that there was no clear evidence in the record sufficient to support a finding that it was in the child's best interests that Connie be awarded guardianship.
"The district court enjoys broad discretionary powers in determining questions of child custody."1 This court will not disturb the district court's exercise of discretion unless the discretion is abused.2 "However, this court must be satisfied that the district court's decision was based upon appropriate reasons."3
To aid the court in making guardianship decisions, the Nevada Legislature has established guidelines in NRS 159.061. NRS 159.061(1) provides, in part, 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." Parental preference, provided in NRS 159.061(1), is a presumption that must be overcome before a court can grant guardianship to a non-parent.4
Before the parental preference is applied, the court must first determine if a parent is "qualified and suitable."5 Qualification and suitability are based on the parent's fitness for guardianship at the time of the hearing.6 If a parent is qualified and suitable, the parent prevails over non-parents for guardianship of the child.7 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.8 NRS 159.061(1) provides that one of the factors in determining a parent's suitability is whether the parent can provide for the basic needs of the child, including medical care.9 Thus, the child's basic needs or welfare are superior to the claim of a parent.10 Further, the parental preference can be rebutted by showing parental unfitness or other extraordinary circumstances.11 In Locklin v. Duka,12 we held that extraordinary circumstances are those that result in serious detriment to the child. Relevant factors to be considered include: abandonment or persistent neglect of the child by the parent;...
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