Polutnik Vs. Dist. Ct. (State, Dep'T Of Family Servs.)

IN THE SUPREME COURT OF THE STATE OF NEVADA
JEFFREY P., No. 82363
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, MEV
IN AND FOR THE COUNTY OF CLARK;
AND THE HONORABLE DAVID S. SEP 1 7 2021
GIBSON, JR., DISTRICT JUDGE, EuzAurri
CLE RUviL !..)0LIRT
Respondents,
DEPUTY CLERX
and
STATE OF NEVADA DEPARTMENT OF
FAMILY SERVICES; LINDA S.; AND
S.S.-P.,
Real Parties in Interest.
ORDER GRANTING PETITION FOR A WRIT OF MANDAMUS
This original petition for a writ of mandamus or prohibition
challenges a district court order removing petitioner Jeffrey P. from the
minor child's birth certificate in a protective custody action.' The child was
born to Jeffrey P. and real party in interest Linda S. during their marriage.
During their divorce proceedings, Jeffrey learned the child was not his
biological child. In the divorce decree, the parties stipulated that the child
was not Jeffrey's biological child, that there are no children who are the
issue of the marriage, and Linda may obtain a new birth certificate for the
child. Linda never amended the child's birth certificate and Jeffrey
'While Jeffrey sought a writ of prohibition in the alternative, a writ
of mandamus is the more appropriate relief because the district court had
jurisdiction to make a parentage determination.
Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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remained in the child's life in a parental role by providing financial support
for the child and having summer visitation with the child after Jeffrey
relocated out of the state.
When real party in interest, Department of Family Services
(DFS), removed the child from Linda's care the first time, the child was
placed with Jeffrey until the child could be returned to Linda's care. When
DFS removed the child a second time, it did not give Jeffrey notice of the
protective custody action or its motion to amend the child's birth certificate
in accordance with the divorce decree. The district court granted the motion
to amend the child's birth certificate to remove Jeffrey's name as the child's
father. When Jeffrey learned of that order, he immediately filed a motion
to set it aside and sought to have the child placed with him. The district
court denied the motion to set aside the order but placed the child with
Jeffrey as fictive kin.
Having considered the petition, answers, reply, and supporting
documents, we conclude that writ relief is warranted because the district
court should have held an evidentiary hearing before making a parentage
determination when there was no current parentage information available
and when the party who may oppose the parentage request was not
provided notice of the action. See NRS 34.160 (providing that mandarnus
relief is available to compel the performance of an act that the law requires
as a duty resulting from an office, trust or station, or to control an arbitrary
or capricious exercise of discretion); Intl Garne Tech., Inc. v. Second Judicial
Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (same); see also St.
Mary v. Danion, 129 Nev. 647, 649, 309 P.3d 1027, 1029 (2013) (concluding
that the district court erred by not holding an evidentiary hearing in a
disputed parentage matter); Mesi v. Mesi, 136 Nev., Adv. Op. 89, 478 P.3d
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366, 369 (2020) (explaining that due process requires an interested party be
given an opportunity to be heard). While the divorce decree recognized that
Jeffrey was not the child's biological father and there were no children as
issue of the marriage, it did not conclude Jeffrey was not the child's father.
Further, because the divorce decree did not order the birth certificate
amended as required by NRS 126.161(2), the district court's order directing
the amendment of the birth certificate in the protective custody matter was
a parentage determination, which could not occur without notice to Jeffrey
and an evidentiary hearing if the parentage request was reasonably
opposed.
DFS, the party that filed the motion to amend the birth
certificate, was aware of evidence that would indicate Jeffrey was the child's
presumed or putative parent. See NRS 432B.470(2) (requiring notice of a
protective custody action be sent to a parent or person responsible for the
child's welfare). Jeffrey was still listed as the child's father on the birth
certificate at the time of removal and the child was born during Jeffrey and
Linda's marriage. See NRS 126.051(1)(a) (providing a man is presumed the
father of a child born during the marriage). Additionally, since the divorce
decree, Jeffrey had received the child into his home and held the child out
as his own. See NRS 126.051(1)(d) (providing a man can be a child's
putative parent by receiving the child into his home and openly holding the
child out as his own). Thus, no amendment of the birth certificate could be
ordered without first providing notice to Jeffrey. See J.D. Constr., Inc. v.
IBEX Int? Grp., LLC, 126 Nev. 366, 376, 240 P.3d 1033, 1040 (2010)
(explaining that due process requires notice and an opportunity to be
heard). Accordingly, the order amending the birth certificate was a
parentage determination made without notice to the presumed or putative
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parent and without adequate evidence. Because the district court thus
erred in granting the motion to amend the birth certificate and in denying
petitioner's motion to set aside that order, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate the order amending the birth certificate.2
AI`` , C•J.
Hardesty
14/4(..0
, , J. Sr.J.
Stiglich Gib ons
cc: Hon. David S. Gibson, Jr., District Judge
The Grigsby Law Group
Price Beckstrom, PLLC
Keels Law Group
Attorney General/Carson City
Clark County District Attorney/Juvenile Division
Eighth District Court Clerk
2The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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