original petitions for writs of mandamus challenging a
district court order concerning the placement of a minor
child. Petitions granted.
B. Wolfson, District Attorney, and Tanner L. Sharp, Deputy
District Attorney, Clark County, for Clark County Department
of Family Services and Clark County District Attorney's
Mills & Anderson and Gregory S. Mills and Daniel W.
Anderson, Las Vegas, for Philip R. and Regina R.
& Friedman, LLC, and Christopher P. Ford, Henderson, for
Stephanie R. and Joey R.
McFarling Law Group and Michael J. Burton and Emily M.
McFarling, Las Vegas; Law Offices of Elizabeth R. Mikesell
and Raymond E. McKay, Las Vegas, for E.R., a minor.
CHERRY, PARRAGUIRRE and STIGLICH, JJ.
consolidated original petitions for writs of mandamus
challenge a district court order directing that the minor
child be removed from her current adoptive foster home and
placed with maternal relatives in Georgia based on a familial
placement preference under NRS 432B.550(5). Because the
placement order was entered after parental rights to the
child were terminated, the parties dispute whether the
statutory preference for placement with a family member still
applies. We conclude that a familial placement preference
survives the termination of parental rights, but the
placement preference is then governed by NRS 128.110(2)
rather than NRS 432B.550(5). We further conclude that the
maternal relatives had a reasonable excuse for their delay in
seeking placement and they were entitled to a familial
placement preference. However, the district court failed to
enter factual findings or give adequate weight to the
child's best interest or the Department of Family
Services' discretion to determine placement in this case
under NRS 128.110(2). Accordingly, we grant the petitions for
writs of mandamus.
AND PROCEDURAL HISTORY
2015, Clark County Department of Family Services (DFS)
removed one-month-old E.R. (the child) from the custody of
her mother, Nellie S., because of neglect and placed the
child in foster care. The juvenile division of the district
court adopted a goal of reunification between Nellie and the
child. DFS conducted a search for relatives with whom to
place the child but the search proved unsuccessful. By August
2016, Nellie had not maintained visitation with the child or
contact with DFS, and the district court changed the
permanency goal to termination of parental rights and
adoption. DFS initiated a separate proceeding in the district
court to terminate Nellie's parental rights. In September
2016, the child was placed with Philip R. and Regina R. (the
foster parents), who were an adoptive resource.
October 2016, approximately 15 months after the child's
initial removal, Nellie's first cousin Stephanie R.
contacted DFS to request placement of the child with her and
her husband Joey R. in Georgia (the maternal relatives). DFS
initiated the process under the Interstate Compact for the
Placement of Children for obtaining out-of-state placement
approval for the maternal relatives. The placement was
approved in March 2017.
meantime, the district court in the termination proceeding
entered an order terminating the parental rights of Nellie
and any fathers claiming paternity of the child on February
18, 2017. The termination order decreed "that the
custody and control of [the child] is vested in [DFS] with
authority to place the minor child for adoption." The
foster parents began the process for adopting the child.
April 2017, DFS placed the matter on the district court's
calendar to allow the maternal relatives to address the court
regarding placement. An evidentiary hearing was held before a
court master to determine whether the child's placement
should be changed. DFS caseworker Kristina Quinlan testified
about DFS's search for relatives and provided that DFS
was unaware of Stephanie until she contacted DFS in October
2016. Quinlan also testified that the then-two-year-old child
was extremely bonded with the foster parents, whom she
regarded as her mom and dad, and it was not in her best
interest to be placed with the maternal relatives because it
would delay permanency. Taryn Lamaison, a DFS supervisor and
a national child trauma trainer, observed the child with the
foster parents and opined that removing the child from their
care was not in the child's best interest. Lamaison
explained that removing a child at a young age can affect
brain development and result in negative coping mechanisms.
She also testified that the child was already very clingy and
attached to the foster parents, another move would constitute
the child's fourth removal and cause long-term trauma,
and she would expect the child to regress. If the child were
to be removed, Lamaison described a gradual transition to the
new home that could lessen the trauma and would last several
weeks and be accompanied by therapy.
foster parents testified about the home, family, care, and
educational development they had provided the child since
September 2016, and that they were committed to an open
adoption. Stephanie testified that although she knew Nellie
had given birth to the child, she had never met the child and
was unaware that the child was in protective custody until
October 2016. Stephanie described the home and care she and
Joey could provide the child, and she indicated her
willingness to transition the child gradually in order to
minimize the trauma.
on the testimony, the hearing master found that DFS should
have located Stephanie earlier because DFS had contact with
another relative who knew Stephanie, the maternal relatives
demonstrated a reasonable excuse for the delay in requesting
placement, and both couples would provide a good family and
home for the child. The master found that although the child
was "incredibly bonded" with the foster parents,
the maternal relatives have a biological connection to the
child and will likely end up with one of her
siblings. The hearing master found that the
"family connection is the overriding consideration"
and thus, the child should be placed with the maternal
relatives, "despite the trauma that [the child] will
experience." The hearing master recommended that the
child be placed with the maternal relatives if they comply
with "the trauma minimization transition as outlined by
[DFS]." The foster parents and DFS filed objections to
the hearing master's recommendation.
hearing argument on the objections, the district court found
that the master's findings were not clearly erroneous and
affirmed the recommendation. The court concluded that the
maternal relatives had a reasonable excuse for the delay in
seeking placement of the child, and thus, the familial
placement preference under NRS 432B.550 applied. The court
further concluded that the hearing master had considered the
child's best ...