IN RE GUARDIANSHIP OF LS & HS

Decision Date06 April 2004
Docket NumberNo. 38242.,38242.
Citation87 P.3d 521
PartiesIn the Matter of the GUARDIANSHIP of L.S. and H.S., Minor Wards. Jason S. and Rebecca S., Appellants, v. Valley Hospital Medical Center and Michele Nichols, R.N., Respondents.
CourtNevada Supreme Court

Neeman, Mills & Palacios, Ltd., and Eric O. Palacios, Las Vegas; Donald T. Ridley, Pawling, New York, for Appellants.

Earley Savage and Nancy D. Savage and Kenneth M. Webster, Las Vegas, for Respondents.

Jerry H. Mowbray, Reno, for Amicus Curiae Christian Congregation of Jehovah's Witnesses.

Before the Court En Banc.1

OPINION

PER CURIAM.

This is an appeal from a district court order appointing respondents, Valley Hospital Medical Center and Michele Nichols, R.N., Administrator for Valley Hospital (collectively, Valley Hospital), as temporary guardians of the minor child H.S. Appellants Jason S. and Rebecca S., H.S.'s natural parents, appeal, arguing that the district court erred when it appointed Valley Hospital temporary guardian of H.S. pursuant to NRS 159.052. We disagree. We conclude that when the parents refused to consent to medically necessary care for H.S. based on their religious convictions, the district court did not abuse its discretion in appointing Valley Hospital as a temporary guardian to make decisions to provide medically necessary, life-saving treatment for H.S.

FACTS

Identical twin boys, H.S. and L.S., were prematurely born on June 11, 2001, at Valley Hospital, to Jason and Rebecca. Prior to the birth, Rebecca had been hospitalized due to twin-to-twin transfusion syndrome, a condition in which the babies' circulatory systems were joined at the placenta, causing blood volume to be preferentially directed to one twin, L.S., and causing the other twin, H.S., to be anemic. To alleviate H.S.'s anemic condition, doctors massaged the umbilical cord, directing blood toward H.S., thereby naturally transfusing H.S. with blood. Although H.S. was stillborn, doctors successfully revived him seven minutes after birth. Despite a normal blood platelet count, H.S. remained critically ill, requiring a ventilator to assist his breathing and medications to help his circulation and heartbeat. Because of H.S.'s chronic anemic state prior to birth, physicians monitored his blood platelet count over the next few days. The hospital was also aware that, consistent with their religious beliefs as Jehovah's Witnesses, Jason and Rebecca objected to the administration of blood transfusions to their twin boys.

On June 17, 2001, H.S.'s blood platelet count had dropped to such a degree that the attending physician, Dr. Martha Knutsen, felt that H.S.'s life was in jeopardy if a transfusion was not immediately performed. Furthermore, a medical alternative to blood transfusion was not available. Without parental consent, Dr. Knutsen transfused H.S. with blood platelets. Despite the transfusion, H.S.'s condition remained critical.

On Monday, June 18, 2001, Valley Hospital petitioned the Eighth Judicial District Court, ex parte, for temporary guardianship of both H.S. and L.S., pursuant to NRS 159.052.2 The petition was based on "the substantial and immediate risk of physical harm, potential death, and the emergency circumstances surrounding the health and well being" of both children and requested a "special" guardianship to "provide for the medical care of the twin children."3 An attached affidavit of Dr. Barry Perlin stated that a significant probability existed that H.S. and L.S. would require a blood transfusion within the next thirty days to survive. Furthermore, if a transfusion were needed, the transfusion would need to be initiated in less than two hours after the emergency arose.

On Monday afternoon, June 18, 2001, the district court granted temporary guardianship on an emergency basis for the purpose of consenting to blood transfusions and to other medical care as deemed necessary by the hospital for both children. The order required that Jason and Rebecca be given notice "as soon as practical." The district court also set a hearing for the next morning at 8:45 a.m. and ordered that Jason and Rebecca receive notice of the hearing by 7:00 p.m. that evening, June 18. The parents received notice that afternoon.

On June 19, 2001, Jason and Rebecca appeared in proper person at the hearing. Jason expressed a concern that, while Valley Hospital was accusing him and his wife of medically neglecting their children, no investigation was being conducted, and that neither the State nor Child Protective Services was present. The district court, concerned with the children's health, continued the hearing to Wednesday afternoon, June 20, 2001, so that medical experts could be obtained and Jason and Rebecca could obtain counsel.

On June 20, 2001, Jason and Rebecca appeared with counsel. At the hearing, Dr. Knutsen testified concerning H.S.'s critical condition and his continued need for medical attention, with the real probability that he was at risk for immediate medical intervention, including blood transfusions. Jason and Rebecca argued that H.S.'s condition was stable and that an immediate medical emergency did not exist. The parents also reiterated their concern that Valley Hospital should have brought a petition under NRS Chapter 432B (Protection of Children from Abuse and Neglect). The district court responded that NRS 159.052 was less intrusive for the parents, and that NRS Chapter 432B would not necessarily provide additional protections. Furthermore, the district court reasoned that when an emergency presented itself, there would not be time to obtain a court order. The district court's final order ratified the blood transfusion given to H.S. on June 17, 2001, and extended the temporary guardianship as to H.S. only and for "the limited purpose of providing consent for the administration of blood and/or blood products" for thirty days. The district court further ordered that H.S. was not to be removed from Valley Hospital without the hospital's consent. Barring any unforeseen events, L.S. would not likely require a blood transfusion, and therefore, the district court did not extend the temporary guardianship to him.4

Jason and Rebecca timely filed a notice of appeal of the district court's final order concerning Valley Hospital's temporary guardianship of H.S.

DISCUSSION

Evading review

Generally, this court refuses to determine "questions presented in purely moot cases."5 We have stated that "the duty of every judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles of law which cannot affect the matter in issue before it."6 However, where an issue is capable of repetition, yet will evade review because of the nature of its timing, we will not treat the issue as moot.7

The United States Supreme Court has recognized the applicability of the capable-of-repetition-yet-evading-review doctrine "`only in exceptional situations.'"8 The challenged action must be too short in its duration to be fully litigated prior to its natural expiration, and a reasonable expectation must exist that the same complaining party will suffer the harm again.9

Temporary guardianships and medical emergencies are typically of short duration. Both will expire prior to the issues being fully litigated. That Jason and Rebecca or Valley Hospital will be confronted with the same issue or injury again is an entirely reasonable prospect. Given the temporary nature of the situation, the alleged injury will continue to evade review if we do not address the issue here. We therefore conclude that the issues presented here are capable of repetition, yet evade review, and so are within the exception to the mootness doctrine.

Nevada's temporary guardianship statute

Jason and Rebecca argue that the district court erred when it granted temporary guardianship of H.S. to Valley Hospital under NRS 159.052, and that the circumstances in the instant case are more appropriately addressed under NRS Chapter 432B. The parents argue that, when a child requires necessary medical treatment and the parents oppose the treatment, the hospital must contact the state to initiate an investigation under NRS Chapter 432B. NRS Chapter 432B, however, is aimed at protecting children from abuse and neglect.10 A child is neglected if he lacks necessary medical care because of the parents' neglect or refusal to provide medical care when able to do so.11

Jason and Rebecca also argue that NRS Chapter 432B should be the only applicable statute, under the present circumstances, as it provides greater protection to parents since it requires investigation, notice, a hearing and appointed counsel. NRS Chapter 432B, while being much more intrusive than the process involving appointment of a temporary guardian, does not provide any offsetting additional protections in the circumstances of this case. Pursuant to NRS 432B.260(2), if the child is under five years of age or there is a high risk of serious harm to the child, the state must conduct an investigation.12 NRS 432B.390 permits the state to place the child in protective custody without parental consent and only thereafter notify the parents that the child is in protective custody. Notice is required, and a hearing must be held within seventy-two hours after a child is taken into custody.13 The court then determines whether it is contrary to the child's welfare for the child to remain in the home or if it is in the child's best interest to remain outside of the home.14

Valley Hospital initially submitted a petition for guardianship under both NRS 159.052, the temporary guardianship statute, and NRS 159.044, the general guardianship statute. Because Valley Hospital sought only temporary guardianship of H.S., we conclude that the district court did not err in applying NRS 159.052. Absent a showing of abuse, we will not disturb the district court's...

To continue reading

Request your trial
30 cases
  • In re Guardianship of Meo
    • United States
    • United States State Supreme Court of Wyoming
    • 20. Juli 2006
    ...duration of appellate disposition. E.g., Custody of Lori, 444 Mass. 316, 827 N.E.2d 716, 717 (2005); Jason S. v. Valley Hosp. Med. Ctr. (In re L.S.), 120 Nev.157, 87 P.3d 521, 524 (2004). [¶ 29] Mother's claim does not concern a temporary circumstance that has since dissipated. Mother conti......
  • Stephens Media v. Eighth Judic. Dist. Court
    • United States
    • Supreme Court of Nevada
    • 24. Dezember 2009
    ...events," we will not make legal determinations that cannot affect the outcome of the case. Id.; Matter of Guardianship of L.S. & H.S., 120 Nev. 157, 161, 87 P.3d 521, 523-24 (2004). Nevertheless, we have recognized that a moot case is justiciable "where an issue is capable of repetition, ye......
  • Stinziano v. Walley
    • United States
    • Court of Appeals of Nevada
    • 30. März 2017
    ......If "best interests of the Page 25 child" means anything, it means ensuring that a child is able to receive medical care, whether routine or emergency, and nothing more needs to be said. See In re Guardianship of L . S . and H . S ., 120 Nev. 157, 162, 87 P.3d 521, 524 (2004) (a child is "neglected" if he lacks necessary medical care because of a parents' refusal to cooperate).         But there's more. In Magiera , the Nevada Supreme Court held that "the only factor relevant to the ......
  • Eggleston v. Stuart
    • United States
    • Supreme Court of Nevada
    • 23. September 2021
    ...975. "Substantive due process guarantees that no person shall be deprived of life, liberty or property for arbitrary reasons." In re Guardianship of L.S . & H.S., 120 Nev. 157, 166, 87 P.3d 521, 527 (2004) (internal quotation marks omitted). Substantive due process protects certain individu......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT