D.M.F. v. Yalonda F. (In re D.M.F.)
| Docket Number | 84274 |
| Decision Date | 28 September 2023 |
| Citation | 535 P.3d 1154 |
| Parties | In the MATTER OF the GUARDIANSHIP OF D.M.F., a Protected Minor. D.M.F., Appellant, v. Yalonda F.; Alexis M.; and Antonio B., Respondents. |
| Court | Nevada Supreme Court |
Legal Aid Center of Southern Nevada, Inc., and Marina F. Dalia-Hunt and Kern J. Maxey, Las Vegas, for Appellant.
Alexis M., North Las Vegas, Pro Se.
Antonio B., North Las Vegas, Pro Se.
Yalonda F., North Las Vegas, Pro Se.
BEFORE THE SUPREME COURT, EN BANC.
In this appeal, we consider whether a district court's sua sponte decision to remove a protected minor's guardian and terminate that protected minor's guardianship based on an ex parte communication was within the court's power. We also consider whether the court's actions violated procedural due process protections and whether the court abused its discretion by failing to comply with the pertinent statutory requirements related to guardianship proceedings. Further, we consider whether the district court exceeded its authority in directing Child Protective Services (CPS) to take certain actions regarding the placement of the protected minor.
Regarding the district court's authority to sua sponte remove a guardian and terminate a guardianship, we conclude that the district court has such authority even in the absence of a petition seeking removal and termination. As to the due process question, we conclude the proceedings and resultant order did not comport with due process, as the court did not give proper notice that it was contemplating removal and termination such that the parties had a meaningful opportunity to be heard on the issue. We further conclude the district court abused its discretion by failing to apply the applicable statutes and factors for removal and termination, and it also made unsupported and clearly erroneous factual determinations in reaching its decision. Finally, we hold that while portions of the district court order stated what CPS should do going forward, its ultimate order in this regard was simply to refer the matter to CPS for "action as they deem fit," which is not an abuse of discretion. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Investigations into the protected minor's safety
At birth, D.M.F. and A.F., his twin, tested positive for opiates and amphetamines. Respondent Alexis M., the mother, and respondent Antonio B., the father, admitted to methamphetamine use during the pregnancy. As a result, CPS began an investigation into possible abuse or neglect. The parents then agreed to allow respondent Yalonda F., the twins’ paternal grandmother, to serve as a temporary guardian via a notarized temporary-guardianship appointment while the parents sought treatment.
As noted in the CPS records, Yalonda allowed the parents to stay at her home; however, if the parents’ drug-use treatment ceased or they relapsed, Yalonda promised both to make them move out and to seek a court-ordered general legal guardianship over the twins. CPS noted that Yalonda provided for the twins’ needs and that Yalonda had been assessed "appropriate and aligned with the twins." Ultimately, CPS permitted the hospital to release the twins to Yalonda.
A CPS specialist discussed with Yalonda and the parents the expectations for the newborns’ care, including that the parents could support Yalonda in the care of the twins, but they could not sleep in the same room as the twins. Yalonda confirmed that she had placed the twins’ bassinets in her room. In subsequent follow-ups, CPS observed that the twins appeared in "good physical health with no obvious signs of abuse or neglect." While CPS observed that the parents helped Yalonda care for the twins, it was noted that Yalonda was the primary caregiver and managed mainly on her own. Yalonda also described herself as very strict regarding the parents’ drug treatment, and CPS confirmed that both parents had been participating in drug treatment services.
Before CPS closed its investigation, A.F. died in a co-sleeping incident with the parents. Police and CPS investigated the death.
The investigations revealed that the twins, three months old at that time, had been fussy, prompting Antonio to help Yalonda care for them by taking A.F. to another room to calm him. Meanwhile, Yalonda calmed D.M.F. and put him to sleep in the bassinet in her room, at which time she also fell asleep. Antonio placed A.F. to sleep on a pillow in the bed he shared with Alexis. Eventually, Antonio and Alexis fell asleep with A.F. on the bed. When Antonio woke up in the morning, he found A.F. face down on the pillow and unresponsive. Yalonda unsuccessfully attempted to resuscitate A.F.
As part of the investigations, CPS documented that D.M.F. appeared healthy and showed no obvious signs of abuse or neglect. Yalonda also told CPS that the parents had, up to that point, followed her rules prohibiting the parents from sleeping with the twins in their room. Ultimately, police reported no concerns of abuse or neglect related to A.F.’s death and described A.F., based on physical observations, as a well-cared-for baby. The coroner ruled the cause of death positional asphyxia due to co-sleeping. The investigations ultimately concluded that A.F.’s death did not result from abuse or neglect. Accordingly, no charges were brought.
However, the CPS investigation also revealed that Alexis and Antonio had relapsed with methamphetamine. CPS described that the testing, which was done the day after A.F. died, appeared to confirm Alexis's statement of a one-time relapse; however, the testing also appeared to show that Antonio had used more than one time. When Yalonda learned of the relapse, she expressed her plan to seek general legal guardianship over D.M.F.
CPS reported that Yalonda exhibited adequate caregiver skills and met D.M.F.’s basic needs. While CPS found reasonable cause to believe that the parents presented a physical risk to D.M.F. because of the drug relapse and the incident of co-sleeping with A.F., two specialists ultimately deemed D.M.F. safe in Yalonda's care, closed the investigation, and issued final approval of Yalonda as caregiver for D.M.F.
Petition for appointment of guardianship
About one month after A.F.’s death, Yalonda petitioned the district court for appointment of guardianship over D.M.F.1 D.M.F. was a little over four months old at that time. In the petition, Yalonda indicated that she had been D.M.F.’s temporary guardian since his birth because of the parents’ drug use. She noted the agreement between her and the parents for her to serve as D.M.F.’s temporary guardian after he had been born substance exposed. She further stated, "Our agreement was that if they relapsed I would file for legal guardianship." She explained in the petition that both parents were unable to presently care for D.M.F. because they were active drug users.
Notarized consents from the parents and documentation of the temporary guardianship were attached to the petition for legal guardianship. The petition listed the same address for Yalonda, D.M.F., and the parents. Finally, Yalonda checked a box indicating that the guardianship was "NOT requested because of an investigation of abuse or neglect conducted by ... [CPS] or law enforcement." Following a short hearing, the district court granted the petition and appointed Yalonda as guardian. D.M.F., who was represented by counsel at the hearing, did not object to the guardianship.
Receipt of ex parte communication
Six months later, the district court issued an order stating that it had reviewed, under the Nevada Statewide Rules for Guardianship (NSRG), an ex parte communication from another judge suggesting that there were possible misrepresentations made in Yalonda's petition.2 Citing NSRG 5 and NRS 159.046,3 the district court appointed a guardianship-compliance investigator, set a hearing on the ex parte communication, and ordered a response from Yalonda concerning the communication, including the failure to inform the district court of A.F.'s death and CPS's subsequent investigation thereof.
With respect to the guardianship-compliance investigator, the district court directed the investigator to examine D.M.F.’s placement, health, welfare, education, and financial status. The court also instructed the investigator to determine Yalonda's suitability as guardian and to explore her failure to inform the court of A.F.’s death or CPS's ensuing investigation. The district court further requested that the investigator determine who resided in the home, whether CPS had any open investigations concerning D.M.F., and whether any unsupervised contact between the parents and D.M.F. occurred.
Guardianship-compliance investigator's report
The investigator filed a report with the district court. Even though the district court had tasked the investigator with determining Yalonda's suitability and D.M.F.’s status, the report did not contain any conclusions in that regard. The investigator noted the existence of established sleeping arrangements for the children at the time of A.F.’s death but did not describe those arrangements. There was no indication in the investigator's report that Yalonda or the parents had previously co-slept with the twins.
The report provided that Yalonda had informed the investigator that D.M.F. was safe, immunized, treated by a cardiologist for a heart murmur, and enrolled in early intervention services. Yalonda also told the investigator that she did not permit the parents to have unsupervised contact with D.M.F. and established back-up care for D.M.F. if she needed someone to watch him. She stated that both parents were sober again. The report did not reveal any effort to independently verify the information provided by Yalonda.
As to Yalonda's failure to inform the court of A.F.’s death and the ensuing investigation, the investigator stated that Yalonda had worked with a nonprofit organization to finish...
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