Williams v. Mallard (Child Custody)

 or visitation rights because the adoption had terminated her legal
relationship with the children and she had not established visitation
rights at the time the adoption was finalized. The district courtS further
concluded that even if Dolores had a legal basis for grandparent visitation,
the court would nonetheless deny her request on the merits because
visitation was not in the children's best interest. Dolores brought this
appeal.
Having considered the parties' arguments and the record
before this court, we conclude that the district court did not err in
dismissing Dolores's complaint. See Bopp v. Lino, 110 Nev. 1246, 1249,
885 P.2d 559, 561 (1994) (stating that a district court's conclusions of law
are reviewed de novo). Although Dolores originally filed her complaint
under the grandparent visitationS statute, NRS 125C.050, the subsequent
adoption affected her legal relationship with the children and consequent
standing to obtain visitation rights. Under NRS 127.160, "[a]fter a decree
of adoption is entered, the natural parents of an adopted child shall be
relieved of all parental responsibilities for such child, and they shall not
exercise or have any rights over such adopted child."
In an effort to maintain grandparent visitation rights post-
adoption, the Nevada Legislature carved out an exception permitting
visitation rights between an adopted child and the biological family to
survive the adoption in limited circumstances. NRS 127.171(1)(b) allows
the court in an adoption proceeding to grant reasonable visitation rights to
"[c]ertain relatives of the child only if a similar right had been granted
previously pursuant to NRS 125C.050." (Emphasis added.) An adoption's
effect on grandparent rights was discussed at length in Bopp v. Lino
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where this court concluded that because the grandparents had not been
granted any visitation rights before the adoption, they lacked standing to
petition for visitation eight months later. 110 Nev. at 1251, 885 P.2d at
562, In commenting on NRS 127.171, this court stated
[i]f the district court already had unfettered
jurisdiction to grant visitation rights after an
adoption, the Nevada Legislature would not have
enacted NRS 127.171. Moreover, the Nevada
Legislature would not have limited visitation
rights to those already possessing that right if it
had intended the district court to be able to create
visitation rights after an adoption.
Id. at 1253, 885 P.2d at 563.
NRS 127.171 and the holding in Bopp are dispositive to the
district court's jurisdiction in this case. One day after Dolores filed her
complaint, the adoption by Patrick's new wife became final and Dolores
had not already established any grandparent visitation rights.
Accordingly, the district court lacked jurisdiction to grant Dolores any
visitation rights as a grandparent under NRS 125C.050.'
Our dissenting colleague concludes that because Dolores had
filed her complaint one day before the adoption became final she somehow
'The district court relied on the adoption in dismissing Dolores's
complaint even though no evidence was placed in the record regarding
these facts and the district court did not formally take judicial notice.
Nevertheless, neither party dispute the fact and date of the adoption nor
objected to judicial notice below, and thus any error in the judicial notice
procedure was waived. See Schuck v. Signature Flight Support of Nev.,
Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010).
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preserved her standing to secure visitation rights under NRS 125C.050.
Such conclusion is misplaced. Even though Dolores had standing on the
day she filed her complaint, by the time of the hearing, the adoption had
been finalized, thereby divesting the court of jurisdiction to grant Dolores
grandparent visitation rights. See Birth Mother v. Adoptive Parents, 118
Nev. 972, 975, 59 P.3d 1233, 1235 (2002) (observing that "subsequent to an
adoption decree, a natural parent has no rights to the child unless
provided for in the decree"); see also State ex rd. Kaylor v. Bruening, 684
N.E.2d 1228, 1232 (Ohio 1997) (holding that the adoption decree
terminating the natural mother's parental rights divested the court of
jurisdiction to proceed on her pending motion for visitation with the child).
Thus, Dolores's complaint was properly dismissed on this ground.
Finally, as an independent ground for denying the complaint,
the district court at the hearing reached the merits of Dolores's request in
finding that she was unable to rebut the presumption that visitation is not
in the children's best interest under NRS 125C.050(4), and citing the
parties' acrimonious relationship including threats, cussing, and assaults,
as well as police involvement. The district court also referenced
allegations that Dolores had improperly taken the children's social
security benefits and had sought medical treatment for the children
without permission and under the guise of a guardianship that never
existed. See NRS 125C.050(6) (setting forth the factors for determining
whether the presumption has been rebutted). We conclude that the
district court's alternative ground for denying the complaint was not an
abuse of discretion. See Rennels v. Rennels, 127 Nev., Adv. Op. 49, 257
P.3d 396, 399 (2011) (stating that district court custody decisions are
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reviewed for an abuse of discretion and that factual findings supported by
substantial evidence will not be set aside).
We are cognizant of the unfortunate circumstances of this case
and we are sympathetic to Dolores's plight, but the law is clear and we
must uphold it. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
OLAA
Parraguirre
CHERRY, J., dissenting:
I disagree with the majority's application of NRS 127.171 and
Bopp v. Lino. 110 Nev. 1246, 885 P.2d 559 (1994), and the result that
followed. The majority decision strips a grandmother of a relationship
with her grandchildren, whom she had nurtured and cared for during
their mother's prolonged illness that ended in her untimely death.
Dolores's complaint filed one day before the adoption
preserved her right to secure visitation rights with her grandchildren.
The holding in Bopp and its interpretation of NRS 127.171 is not as clear
as the majority posits. The grandparents in Bopp petitioned for visitation
rights eight months after the adoption, 110 Nev. at 1248, 885 P.2d at 560,
whereas Dolores filed her petition in this case before the adoption was
finalized. The discussion in Bopp focuses on the timing of the petition by
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stating in different places that the grandparents "did not petition for
visitation rights prior to or at the adoption proceedings;" "Nevada does not
have a statute permitting ex-relatives to petition for visitation;" the
grandparents had "no standing to petition for visitation" after the adoption
decree was entered; and that "NRS 127.171 serves as a 'statute of
limitations' on the right of a grandparent to petition for visitation rights to
a grandchild." Bopp, 110 Nev. at 1251, 1253, 885 P.2d at 562-63(emphasis added). Under my reading of Bopp, Dolores had standing to
petition for visitation rights at the time she filed her complaint and the
district court retained jurisdiction to grant her request.
Moreover, the adoption being finalized one day later was
beyond Dolores's control. Dolores alleges that she never received notice of
the adoption proceeding in time to intervene and establish her rights.
Dolores attempted to participate in the adoption case, but by then it was
too late and her motion to intervene was denied.
Aside from the jurisdictional issue, the scant record before us
does not support the district court's finding that Dolores failed to rebut the
presumption under NRS 125C.050(4) that once Patrick denied Dolores
visitation it is presumed that such visitation would not be in the children's
best interest. The district judge reached this conclusion not after an
evidentiary hearing fully developing the factual issues, but based merely
on the pleadings and the judge's knowledge of these parties from related
proceedings before him. See NRS 125C.050(6) (setting forth factors for
determining whether the party seeking visitation has rebutted the
presumption); see generally Rooney v. Rooney, 109 Nev. 540, 542-43, 853
P.2d 123, 124-25 (1993) (noting that an evidentiary hearing is required on
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a motion regarding custody if the moving party demonstrates a prima
facie case).
In fact, the limited record before this court could establish
otherwise. According to Dolores, Andra and the children had periodically
lived with her through the years and then with more frequency once
Andra became ill. Dolores alleged that Patrick had been having an affair
with Andra's cousin and then married her after Andra's death and began
to alienate the children from Dolores. She claimed that Patrick had
denied her visitation and had no intention of fostering any relationship
between her and the children, and that without court intervention she
would be forever alienated from them. As to Patrick's allegation that
Dolores had taken the children for medical treatment without
authorization, Dolores claimed she had taken the children for medical care
in the past and that the children had breathing problems that sometimes
needed immediate attention.
The district court's reliance on the acrimonious relationship
between Patrick and his new wife and Dolores to support the conclusion
that visitation with Dolores is not in the children's best interest is
inadequate. How often do parents and other relatives have to put aside
their own differences for the benefit of the children in their lives? Are
these children really better off without a relationship with their
grandmother (who could be one of the only ties to their deceased mother)
just because the adult parties in this case do not get along? I cannot say
so based on the limited record before us. Under the majority decision,
Dolores could very well be forever precluded from any contact with her
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grandchildren by virtue of the fact that her daughter died an untimely
death.
Dolores deserves her day in court. I would remand this matter
for an evidentiary hearing to determine what is truly in the best interest
of these young children. See NRS 125C.050(4). For those reasons, I
respectfully dissent.
Cherry
cc: Hon. William B. Gonzalez, District Judge, Family Court Division
Sterling Law, LLC
Pisanelli Bice, PLLC
Eighth District Court Clerk
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