B.Y. v. The Eighth Judicial Dist. Court of State
| Docket Number | 88027 |
| Decision Date | 25 April 2024 |
| Citation | 140 Nev.Adv.Op. 32 |
| Parties | B.Y. AND A.F., Petitioners. v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE STACY MICHELLE ROCHELEAU, DISTRICT JUDGE, Respondents, and ATHENA BURDISS; LATOYA BURDISS; SHERICE INEZ F.; IHAB Y.; AND ALAN-MICHAEL F, SR., Real Parties in Interest. |
| Court | Nevada Supreme Court |
Emergency original petition for a writ of mandamus challenging a district court ruling denying a petition for temporary guardianship over minor children.
Petition granted in part.
Legal Aid Center of Southern Nevada, Inc., and Marina Dalia-Hunt Las Vegas, for Petitioners.
Athena Burdiss, Las Vegas, Pro Se.
LaToya Burdiss, Las Vegas, Pro Se.
Sherice Inez F., Las Vegas, Pro Se.
Ihab Y., San Diego, California, Pro Se.
Alan-Michael F., Sr., Tuscaloosa, Alabama, Pro Se.
BEFORE THE SUPREME COURT, STICLICH, PICKERING, and PARRAGUIRRE, JJ.
NRS 159A.053 allows the district court to appoint temporary guardians over minor children upon a showing of good cause. After a significant delay in hearing a general guardianship petition in this case, two of the proposed protected minors asked the court to impose a temporary guardianship pending a decision on the petition for general guardianship, but the district court denied the request without a hearing. The minors then sought emergency relief from this court. We conclude that the district court manifestly abused its discretion in failing to give the request for temporary guardianship proper consideration under NRS Chapter 159A and grant the petition in part.
FACTS AND PROCEDURAL HISTORY
On October 4, 2023, real parties in interest Athena Burdiss and LaToya Burdiss filed a pro se petition for general guardianship over their four grandchildren, explaining generally that a guardianship was sought because the children had been exposed to unsafe conditions while living with their mother, real party in interest Sherice F. According to the guardianship petition, Sherice was currently living with a new partner with whom the children felt unsafe and had not obtained independent housing or daycare, and Sherice refused to renew voluntary guardianship papers. Attached to the guardianship petition was a June 2023 letter signed by Athena and Sherice stating that Sherice allowed the children to live with Athena from March 2023 until further notice, as well as notarized six-month voluntary guardianship forms for each of the children dated April 19, 2023. The guardianship petition listed the children's parents' addresses as unknown, A citation to appear on January 18, 2024, was entered the same day, but one week before the hearing, the guardianship petition was denied without prejudice for failure to provide proof that the petition and citation were properly served or consents and waivers of service.[2] The court allowed the Burdisses to request that a new citation to appear issue in the same case and to serve it along with the original petition. Five days later, the Burdisses caused to issue a new citation to appear, noticing a hearing for the next available date, April 18, 2024. Sherice filed an objection to the proposed guardianship the next day, disputing some of the allegations therein, including that she did not have a place for the children to reside.
On January 24, the two oldest children, petitioners B.Y. and A.F., acting through appointed counsel, filed an ex parte petition for appointment of the Burdisses as temporary guardians.[3] In the temporary guardianship petition, petitioners explained that they were uncomfortable with their mother's new partner given the domestic violence they had historically witnessed with other partners, also noting the new partner's criminal background; asserted risk of physical and emotional harm should they return to their mother at this time; and pointed out that they had been or were likely to be unenrolled from their school, such that a temporary guardianship with their grandmothers, with whom they had resided since March 2023, was necessary for their well-being. The petition pointed to presumptions under NRS 159A.053(4) and NRS 159A.061(4), which arise when a parent has not had care, custody, and control of their child for the preceding six months. Petitioners indicated that the parents had been notified by phone, and both Sherice and A.F.'s father objected to the proposed temporary guardianship, while B.Y.'s father was in favor of it. The petition was accompanied by a declaration from Athena.
Two days later, on January 26, the district court entered minutes denying the petition for temporary guardianship, recognizing that petitioners had resided with Athena for more than six months but indicating that no emergency was demonstrated as a basis for a temporary guardianship. The court also noted that Athena's declaration was not signed, which apparently resulted from a technical glitch and was corrected on January 26, after the minutes were entered. To date, this court has not been provided with any written order denying the petition for temporary guardianship.
B.Y. and A.F. subsequently filed this emergency petition for a writ of mandamus seeking to compel the district court to grant the Burdisses temporary guardianship. In it, they assert that the district court erred in refusing to grant temporary guardianship, as it is presumptively in their best interests under NRS 159A.053(4), Sherice is presumptively unsuitable under NRS 159A.061(4), and an active emergency exists. Sherice and respondent District Judge Stacy Michelle Rocheleau have timely filed answers, as directed, and petitioners have filed a reply. Because no adequate legal remedy exists to challenge the denial of temporary guardianship, we consider the petition. NRS 34.170.
DISCUSSION
As noted, temporary guardianships governed by NRS 159A.053 may issue upon a finding of good cause, so long as the petitioner attempted to provide prefiling notice or was excused from so doing. NRS 159A.053(2). Here, petitioners provided notice in accordance with subsection (2){a), While the statute does not otherwise define good cause, NRS 159A.053(4) provides that ;'[i]f no parent of the proposed protected minor has had the care, custody and control of the minor for the 6 months immediately preceding the petition, temporary guardianship of the person of the minor is presumed to be in the best interest of the minor." Similarly, NRS 159A.061(4)(c) presumes a parent is unsuitable to care for their children if the children have been out of the parent's care, custody, and control for the six months preceding the filing of a petition for guardianship. Here, petitioners have been out of the care, custody, and control of their parents since March 2023, well over the six-month period after which the presumption applies. Thus, good cause for the temporary guardianship must be presumed.
In her answer, Judge Rocheleau asserts that, since the NRS 159A.053(4) presumption is rebuttable, logic dictates that it cannot apply to a temporary guardianship...
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