Nayeli M.G. v. Graviel G. (In re N.M.)

• Decision Date: 24 September 2015
• Docket Number: No. 64694.,64694.
• Citation: 358 P.3d 216,131 Nev. Adv. Op. 75
• Parties: In the Matter of the GUARDIANSHIP OF N.M., A Minor Child. Nayeli M.G., Appellant, v. Graviel G., Respondent.
• Court: Nevada Supreme Court

358 P.3d 216

131 Nev. Adv. Op. 75

In the Matter of the GUARDIANSHIP OF N.M., A Minor Child.Nayeli M.G., Appellant

v.Graviel G., Respondent.

No. 64694.

Supreme Court of Nevada.

Sept. 24, 2015.

Richard F. Cornell, Reno, for Appellant.

Dolan Law, LLC, and Massey K. Mayo Case, Winnemucca, for Respondent.

Before the Court En Banc.

OPINION

By the Court, SAITTA, J.:

NRS 125A.335 establishes a district court's temporary emergency jurisdiction to protect a child in Nevada from mistreatment or abuse.¹ We must decide whether a district court exercising temporary emergency jurisdiction may appoint a general guardian pursuant to NRS 125A.335(2) when (1) no court in another jurisdiction has entered an applicable custody order or commenced custody proceedings, and (2) Nevada has become the child's home state. We hold that a district court may appoint a general guardian in the appropriate case. Furthermore, we hold that the district court here did not abuse its discretion in appointing a guardian. Because substantial evidence supports the court's decision, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Appellant, a Mexican citizen, gave birth to N.M. in California in 2007. Later that year, appellant and N.M. moved to Mexico. In 2008, appellant left N.M. in the care of N.M.'s maternal grandparents, who were also in Mexico. N.M.'s grandmother and two agents from Mexico's National System for Integral Family Development (DIF) executed a document stating that the grandparents had custody of N.M. (the 2008 DIF document).

In 2009 or 2010, N.M.'s maternal aunt (the Aunt) and respondent, her then-fiancé or boyfriend, began caring for N.M. Respondent is a United States citizen. In August 2011, appellant signed a document purportedly giving the Aunt and respondent custody of N.M.

In September 2012, respondent moved N.M. to Nevada after his relationship with the Aunt ended. Appellant's half-sister then went to respondent's home at night and attempted to remove N.M. In response, respondent filed a verified emergency petition in November 2012 for appointment as N.M.'s temporary general guardian. The district court appointed respondent as N.M.'s temporary general guardian.

In March 2013, respondent filed a petition to be appointed N.M.'s general guardian. After a two-day evidentiary hearing, at which multiple witnesses testified about the events described above and respondent's fitness to be N.M.'s guardian, the district court found that appellant had abandoned N.M. The district court appointed respondent as N.M.'s general guardian. After appellant appealed, a panel of this court affirmed the award of custody to respondent. After the panel denied appellant's petition for rehearing, she filed the present petition for en banc reconsideration.

DISCUSSION

Standard of review

We review de novo issues of subject matter jurisdiction. Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). We further review a district court's factual findings for an abuse of discretion and will uphold them if they are supported by substantial evidence; Id. at 668, 221 P.3d at 704. Substantial evidence is “evidence that a reasonable person may accept as adequate to sustain a judgment.” Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007).

The district court had subject matter jurisdiction to appoint respondent as N.M.'s general guardian

Appellant argues that the district court did not have jurisdiction to appoint respondent as N.M.'s general guardian because N.M. had not lived in Nevada for six months at the time respondent filed his first petition. Thus, we first consider whether the district court properly exercised temporary emergency jurisdiction before addressing whether it had jurisdiction to enter a general guardianship order in this case.

The district court properly exercised temporary emergency jurisdiction

A district court may exercise temporary emergency jurisdiction to protect a child who is physically present in Nevada if “the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” NRS 125A.335(1).

Here, the parties do not dispute that N.M. was physically present in Nevada when the district court granted respondent's petition for a temporary guardianship. Although appellant argues that the district court lacked temporary emergency jurisdiction because there was no evidence that N.M. was abused, mistreated, or neglected before moving to Nevada, this argument is without merit because N.M. faced a risk of harm while in Nevada. Since appellant's half-sister came to respondent's home at night and attempted to remove N.M., there was evidence to support the district court's finding that N.M. risked mistreatment. Therefore, we conclude that the district court did not abuse its discretion in exercising its temporary emergency jurisdiction.

The district court had jurisdiction to appoint respondent as N.M.'s general guardian

NRS 125A.335(2), which codifies section 204 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), sets out three requirements for a district court that is exercising temporary emergency jurisdiction to enter a final order: (1) no court in another jurisdiction has entered an applicable custody order or commenced custody proceedings, (2) the district court's order provides that it is to be a final determination, and (3) Nevada has become the child's home state. See also UCCJEA § 204 (1997), 9 U.L.A. 676–77 (1999).

The third requirement sets forth a time-of-residency-in-Nevada requirement and does not provide that a district court exercising temporary emergency jurisdiction can make Nevada the child's home state by issuing an order. See UCCJEA § 204 cmt., 9 U.L.A. 677 (stating that “an emergency custody determination made under this section becomes a final determination, if it so provides, when the State that issues the order becomes the home State of the child ” (emphasis added)); see also NRS 125A.085(1)(setting out the time requirement for home state status). Our interpretation of this provision of NRS 125A.335(2) is consistent with other jurisdictions' interpretations of their statutes codifying UCCJEA § 204. See, e.g., Hensley v. Kanizai, 143 So.3d 186, 195 (Ala.Civ.App.2013) (observing that a custody determination made by a trial court exercising temporary emergency jurisdiction can become final “only if the state becomes the home state of the child”); In re E.D., 812 N.W.2d 712, 721 (Iowa Ct.App.2012) (holding that a trial court exercising temporary emergency jurisdiction cannot issue an order making Iowa a child's home state because such an order would conflict with the UCCJEA's definition of home state); In re J.C.B., 209 S.W.3d 821, 823 (Tex.App.2006) (observing that Texas must become a child's home state before a custody determination made by a trial court exercising temporary emergency jurisdiction can become final). Thus, in the absence of custody proceedings or a controlling custody order in another state, a Nevada court exercising temporary emergency jurisdiction may make a custody determination that becomes final once the child lives in Nevada for enough time to make Nevada the child's home state.²

A child's home state is “[t]he state in which [the] child lived with a parent or a person acting as a parent for at least 6 consecutive months, including any temporary absence from the state, immediately before the commencement of a child custody proceeding.” NRS 125A.085(1). A child custody proceeding is one that relates to the present custody dispute and not to any prior dispute between the parties. Friedman v. Eighth Judicial Dist. Court, ––– Nev. ––––, ––––, 264 P.3d 1161, 1166 (2011). A proceeding commences when its first pleading is filed. NRS 125A.065.

Here, the present custody proceeding commenced over six months after N.M. began residing in Nevada. Thus, Nevada became N.M.'s home state by the time respondent petitioned to be appointed as her general guardian. See NRS 125A.085. In addition, the record does not show that a child custody order had been entered or that a child custody proceeding had been initiated in another jurisdiction before the district court appointed respondent as N.M.'s general guardian. Therefore, we conclude that the district court was authorized to enter an order granting a general guardianship.

The district court did not abuse its discretion in granting a general guardianship to respondent

Appellant argues that the district court abused its discretion by awarding guardianship of N.M. to respondent because there was not sufficient evidence to overcome the parental preference presumption.³ This presumption provides 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.” NRS 159.061(1). “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.” In re Guardianship of D.R.G., 119 Nev. 32, 38, 62 P.3d 1127, 1130–31 (2003).

When determining whether a parent is qualified and suitable, the district court must give “the child's basic needs [and] welfare” priority over the parent's interest in custody. Id. at 38, 62 P.3d at 1131. Thus, the parental preference presumption can be “overcome either by a showing that the parent is unfit or other extraordinary circumstances.” Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995).

One extraordinary circumstance that can overcome the parental preference presumption is the “ ‘abandonment or persistent neglect of the child by the parent.’ ” In re D.R.G., 119 Nev. at 38, 62 P.3d at 1131 (quoting Locklin v. Duka, 112 Nev. 1489, 1496, 929 P.2d 930, 934 (1996) ). “ ‘Abandonment of a child’ means any conduct of one or both parents of a child which evinces a settled purpose on the part of one or both parents to forego...