Parker v. Grant (In re K. A. J.)

473 P.3d 418 (Table)

In the MATTER OF K. A. J., A Minor Proposed Protected Person.

Carol Parker, Appellant,

v.Michael Grant; and Jennifer Grant, Respondents.

No. 78217

Supreme Court of Nevada.

FILED SEPTEMBER 30, 2020

Greenberg Traurig, LLP/Las Vegas

Ballard Spahr LLP/Las Vegas

Woodburn & Wedge

Barbara Buckley

Anne R. Traum

Kelly H. Dove

ORDER OF AFFIRMANCE

K.A.J.'s biological parents, Kimberly Lopes and Danny Lyle Jensen II, pleaded guilty to possession of methamphetamines and heroin with intent to sell, while Lopes was pregnant with K.A.J. Respectively, the two faced minimum sentences of 63 months and 120 months, and therefore knew they would not be able to care for the infant after her birth. Accordingly, both parents granted temporary guardianship of K.A.J. to Jensen's sister, Autumn O'Tool, before K.A.J.'s birth. The parties agree that they originally planned for O'Tool to immediately meet with K.A.J.'s maternal grandmother, appellant Carol Parker, outside the state border to transfer K.A.J. to Parker.¹ But, after Ms. O'Tool obtained possession of K.A.J., Parker repeatedly cancelled, postponed, or otherwise changed plans to transfer the child.

O'Tool lacked capacity to care for K.A.J. long-term. And, Jensen had previously suggested that his half-sister, respondent Jennifer Grant, might be an appropriate potential guardian for the infant. Thus, according to O'Tool, she advised Lopes, Jensen, and Parker that if Parker continued to be unable to pick up K.A.J., O'Tool would ask Grant to step in as guardian. And after plans for Parker to pick up the child again fell through, O'Tool did, in fact, ask Grant. Grant agreed to take over guardianship and took K.A.J. to the Grant family home in Utah.

Two days after Grant picked up K.A.J., a notarized letter from Lopes arrived at O'Tool's house, purporting to terminate O'Tool's temporary guardianship of K.A.J., and granting guardianship to Lopes's brother, Jason Lopes. O'Tool subsequently had notarized a document in which she purported to transfer her guardianship of K.A.J. to the Grants. At this point, relations between the parties deteriorated—Jensen, Lopes, and Parker reported to police and child welfare services that K.A.J. had been kidnapped, and the Grants responded with claims of harassment by the three and Jason Lopes. In the meantime, various law enforcement agencies conducted numerous well checks on K.A.J. at the Grants' home, all of which indicated that she was cared for "very well" and up to date on her vaccines.

Competing petitions for permanent guardianship of K.A.J. followed, one each in Nevada and Utah. After initially granting guardianship to the Grants, the Utah court conferred with the Nevada district court and declined jurisdiction. The Nevada district court then held a hearing on permanent guardianship. After hearing testimony from all the parties, as well as a court-appointed investigator and attorney, the district court granted permanent guardianship to the Grants. Parker appeals.

Standard of review

Where, as here, more than one person other than a parent seeks guardianship of a child, a district court is required to consider certain factors and ultimately determine which placement would be in the child's best interests. NRS 159A.061(3), (6) (laying out factors to guide a district court's inquiry); NRS 159A.061(9) ("In determining whether to appoint a guardian of the person or estate of a proposed protected minor and who should be appointed, the court must always act in the best interests of the proposed protected minor."); see also In re Guardianship of D.R.G ., 119 Nev. 32, 40, 62 P.3d 1127, 1132 (2003)² (noting that a court's "paramount consideration is the child's best interests"). And, in its written order the district court is required to make express factual findings supporting that determination, tying those factual findings to the child's interests. See Davis v. Ewalefo , 131 Nev. 445, 451-52, 352 P.3d 1139, 1143 (2015) (imposing this requirement in the analogous context of a child custody determination). But the district court enjoys "broad discretionary powers" in making such determinations, such that we review only to ensure that district court's decision was based upon "appropriate reasons." In re D.R.G., 119 Nev. at 37, 62 P.3d at 1130 (quoting Locklin v. Duka, 112 Nev. 1489, 1493, 929 P.2d 930, 933 (1996) ).

The district court did not abuse its discretion by finding placement with the Grants was in K.A.J.'s best interests

In favor of Parker's motion, the district court considered the required factors, as relevant, namely: that K.A.J.'s biological parents had nominated Parker as guardian, see NRS 159A.061(6)(a) (requiring that a court consider a parent's nomination of a guardian); that Parker has familial preference as K.A.J.'s grandmother, see NRS 159A.061(6)(c) (requiring that a court consider family relationship to minor); and that K.A.J.'s independent attorney had recommended K.A.J. be placed with Parker "pending [the court's] determination of [her] ‘suitability,’ " see NRS 159A.061(6)(e) (requiring that a district court consider a minor attorney's independent recommendation). The district court further noted that K.A.J.'s now adult half-sibling resided with Parker.

But, in favor of the Grants, the district court noted that Parker was unable to care for K.A.J. for the first three weeks of her life due to Parker's limited financial means, inflexible work schedule, and the demands placed upon her by caretaking for her own adult son with cancer. The district court further noted Parker's live-in son's previous heroin addiction and related arrests (which were specific concerns of K.A.J.'s attorney), her limited financial means, and the crowded living conditions in her apartment. The district court further discussed the likelihood of parental reunification, and specifically the likely extended length of the guardianship given the potential sentences K.A.J.'s parents faced, both notably longer than the two years Parker indicated she had originally contemplated being K.A.J.'s guardian.

The district court then specifically tied these findings to K.A.J.'s best interests, noting her "substantial and time-sensitive" needs as an infant and soon-to-be toddler, a "high-energy being[ ] need[ing] full-time care." Weighing these considerations, the district court held that K.A.J.'s interests were better served by placement with the Grants. And, in light of our deferential standard of review, we cannot say that the district court abused its discretion by so finding. See Ewalefo, 131 Nev. at 450, 352 P.3d at 1142.

The reasons given by the district court were appropriate

Parker argues that the district court should not have considered her prior criminal history, her live-in son's prior criminal history and drug addiction, her financial stability and circumstances of employment, and K.A.J.'s parents' prospective sentences and respective history as parents. All of these are considerations not enumerated by NRS 159A.061(3) and (6), but those sections only offer a nonexhaustive list of factors to be considered "without limitation" and "among other factors." NRS 159.061(3), (6) ; see Ewalefo , 131 Nev. at 451, 352 P.3d at 1143. Thus, while the district court was not statutorily required to consider all the facts noted above, it was entirely appropriate for it to do so. See Locklin v. Duka , 112 Nev. 1489, 1496, 929 P.2d 930, 935 (1996) (considering the likely degree of stability and security in the child's future with the parent as part of the child's interests); ( Arnold v. Arnold , 95 Nev. 951, 952, 604 P.2d 109, 110 (1979) ) (noting, without disapproval, that the district court weighed the mother's "financial problems" against other factors when making a custody determination).³

Parker also argues that the district court failed to give proper weight to factors that, in her view, should have conclusively weighed against the Grants. Specifically, Parker points to NRS 159A.061 and argues she is entitled to guardianship because: K.A.J.'s biological parents had nominated Parker as guardian; Parker has familial preference as K.A.J.'s grandmother; and, K.A.J.'s independent attorney had initially recommended that K.A.J. be placed with Parker. Beyond these specific statutory considerations, Parker further argues that she should be granted guardianship because: a placement with Parker would better facilitate potential parental reunification, and Parker already has guardianship over K.A.J.'s biological sibling. But no single factor Ms. Parker notes is itself determinative; rather, they are each subject to the court's overall consideration of the child's best interests. In re Estate & Guardianship of Winkleman, 11 Nev. 87, 88 (1870) (...