M. v. Dist. Ct. (State) ( 2015 )

 guardianship with a relative or adoption, and (3) that the State file a
petition to terminate parental rights if the case plan was not completed.
The juvenile division of the district court adopted the Special Master's
recommendations.
Following the six-month periodic review hearing, the juvenile
division of the district court approved the Special Master's
recommendations to maintain the status quo. Then, after the one-year
permanency review hearing, the juvenile division of the district court
modified the permanency plan for K.A. and B.A. to prioritize adoption and
the termination of parental rights, with a concurrent plan for
guardianship with a relative.' The juvenile division of the district court
also determined that DCFS was no longer required to make reasonable
efforts to reunify petitioner with her children.
Later, K.A. and B.A.'s paternal grandmother and paternal
great grandmother jointly petitioned the First Judicial District Court of
Nevada to be appointed co-guardians of K.A. and B.A. The petition also
sought permission to relocate K.A. and B.A. to. Alaska to be with the
grandmother. Although K.A. and B.A. had been living with the great
grandmother, her ability to continue caring for the children was
diminishing with her deteriorating health. Petitioner did not attend the
hearing for the guardianship proceedings.
'The permanency plan for M.M. is not at issue in this petition
because, having returned to live with petitioner, she is no longer a part of
the NRS Chapter 432B proceedings.
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While the petition for co-guardianship was pending, the
Special Master held the 18-month periodic review hearing for the NRS
Chapter 432B proceedings and recommended maintaining the existing
permanency plan for K.A. and BA. Additionally, the Special Master
recommended authorizing DCFS to submit an Interstate Compact on the
Placement of Children (ICPC) to Alaska to place K.A. and B.A. with the
grandmother and, in the interim, to allow for an immediate 30-day
placement if the great grandmother's health continued to deteriorate.
Petitioner filed an objection to these recommendations, claiming that,
among other things, her parental rights were being terminated in
violation of due process. The juvenile division of the district court
disagreed with petitioner and adopted the Special Master's
recommendations, concluding that petitioner failed to rebut the
presumption that the termination of parental rights was in K.A.'s and
B.A.'s best interest because the children have resided outside of
petitioner's home for more than 14 months of a consecutive 20-month
period.
Six months later, in the guardianship proceedings, the district
court granted the grandmother and great grandmother's petition for co-
guardianship of K.A. and B.A.
Petitioner filed this writ, arguing that the district court
violated her due process rights and independently abused its discretion
when applying the law.
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DISCUSSION
A writ of mandamus is available, inter alia, "to control an
arbitrary or capricious exercise of discretion." Int'l Game Tech., Inc. v.
Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008).
Generally, writ relief is available only when there is no "'plain, speedy,
and adequate remedy in the ordinary course of law." See Westpark
Owners' Ass'n v. Eighth Judicial Dist. Court, 123 Nev. 349, 356, 167 P.3d
421, 426 (2007) (quoting NRS 34.170). The petitioner bears "the burden of
demonstrating that extraordinary relief is warranted." Pan v. Eighth
Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
The decision of the juvenile division of the district court to
adopt the Special Master's recommendations that maintained the existing
permanency plan for K.A. and B.A. is not appealable. See Clark Cnty.
Dist. Attorney v. Eighth Judicial Dist. Court, 123 Nev. 337, 342, 167 P.3d
922, 925 (2007) (acknowledging that a placement order under NRS
Chapter 432B is not appealable); August H. v. State, 105 Nev. 441, 443,
777 P.2d 901, 902 (1989) ("[N]o statute or court rule authorizes an appeal
from an order of the district court granting a petition for temporary
custody pursuant to NRS Chapter 432B."). Accordingly, if, as we assume,
petitioner is challenging the decision of the juvenile division of the district
court resulting from the 18-month review to preserve the status quo of the
permanency plan for K.A. and B.A., writ relief would be appropriate if that
court acted arbitrarily or capriciously. 2
2 1f
petitioner is attempting to challenge the co-guardianship order,
her only recourse is to petition the district court to terminate the co-
continued on next page . . .
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Petitioner's due process rights were not violated
Petitioner asserts that the juvenile division of the district
court violated her due process rights by constructively terminating her
parental rights as to K.A. and B.A. without affording her the protections
guaranteed in termination proceedings. The State claims that petitioner's
parental rights were not terminated, petitioner maintains the legal rights
of a parent, and petitioner is free to call and visit her children. 3
At the outset, we reject petitioner's arguments that her
parental rights were constructively terminated. Terminating parental
rights results in the respective child being forever free from their parent's
custody and control. See NRS 128.110. When a child is placed in the
temporary custody of a person other than a parent, "Mlle parent retains
the right to consent to adoption, to determine the child's religious
affiliation and to reasonable visitation, unless restricted by the court."
NRS 432B.550(2)(a), Moreover, if these rights are being abridged, a
parent may petition the court to enforce them. See id. Although
petitioner may be financially precluded from physically visiting her
children in Alaska at this time, her legal rights as a parent remain intact
and she still has the opportunity to progress in her case plan in order to
. . . continued
guardianship under NRS 159.1905(1) because she failed to file a timely
appeal of that decision.
3 We conclude that real party in interest's mootness argument lacks
merit because petitioner's challenge creates a live controversy. See
Majuba Mining v. Pumpkin Copper, 129 Nev., Adv, Op. 19, 299 P.3d 363,
364 (2013).
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seek the reinstatement of reunification efforts and to regain custody of her
children. Thus, we conclude that the juvenile division of the district court
did not constructively terminate petitioner's parental rights, and therefore
petitioner was not entitled to the due process protections provided to
parents in termination proceedings.
We also conclude that the juvenile division of the district court
did not violate petitioner's due process rights in any other way. Petitioner
was represented by counsel in the NRS Chapter 432B proceedings and
received a hearing before any changes occurred as to the custody of her
children. See In re Parental Rights as to A.G., 129 Nev., Adv. Op. 13, 295
P.3d 589, 593(2013) ("Due process requires that each parent is entitled to
a hearing before being deprived of the custody of his or her child."). 4 We
therefore reject petitioner's assertion that she was denied due process.
The juvenile division of the district court did not act arbitrarily or
capriciously
The juvenile division of the district court committed no
arbitrary or capricious action. We reject petitioner's argument that the
NRS 432B.590(4) presumption does not apply here because K.A. and B.A.
have not lived in Alaska for 14 months. NRS 432B.590(4) states that "[i]f
a child has been placed outside of the home and has resided outside of the
home pursuant to that placement for 14 months of any 20 consecutive
months, the best interests of the child must be presumed to be served by
4 Petitioner'sbrief includes multiple references to substantive due
process, but fails to expressly or impliedly make a cogent argument
related to the constitutional doctrine. See Maresca v. State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987) (explaining that this court need not address
arguments that are not cogent).
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the termination of parental rights." (Emphasis added). In accordance
with the statute's plain language, because K A and B.A. lived outside of
petitioner's home pursuant to a placement for more than 14 months of a
consecutive 20-month period, the juvenile division of the district court
properly recognized the presumption in maintaining the permanency plan
for K.A. and B.A. that recommended the termination of petitioner's
parental rights. 5
5 We reject petitioner's argument that the State created this
presumption by making only token efforts under NRS 128.107 to reunify
her with her children. NRS 128.107 only applies when a court is
determining whether to terminate parental rights. See NRS 128.107.
Here, the juvenile division of the district court only adopted a permanency
plan and did not decide whether to actually terminate petitioner's
parental rights in K.A. and BA. Accordingly, this provision does not
apply.
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Based on the foregoing, petitioner cannot satisfy her burden to
show that extraordinary relief is warranted, and therefore we ORDER the
petition DENIED.
-A&A elt4; , C.J.
Hardesty
Parraguirre
J.
Saitta
J.
J.
Pickering
cc: State Public Defender/Carson City
Attorney General/Carson City
Storey County District Attorney
Storey County Clerk
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