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Philip R. v. Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

May 3, 2018

PHILIP R.; AND REGINA R., Petitioners,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE CYNTHIA N. GIULIANI, DISTRICT JUDGE, Respondents, and STEPHANIE R.; JOEY R.; CLARK COUNTY DEPARTMENT OF FAMILY SERVICES; AND E.R., A MINOR, Real Parties in Interest. IN THE MATTER OF E.R., A MINOR. CLARK COUNTY DEPARTMENT OF FAMILY SERVICES; AND CLARK COUNTY DISTRICT ATTORNEYS OFFICE, Petitioners,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE CYNTHIA N. GIULIANI, DISTRICT JUDGE, Respondents, and PHILIP R.; REGINA R.; STEPHANIE R.; AND JOEY R.; AND E.R., A MINOR, Real Parties in Interest.

         Consolidated original petitions for writs of mandamus challenging a district court order concerning the placement of a minor child. Petitions granted.

          Steven 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 Office.

          Mills, Mills & Anderson and Gregory S. Mills and Daniel W. Anderson, Las Vegas, for Philip R. and Regina R.

          Ford & 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.

          BEFORE CHERRY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          CHERRY, J.:

         These 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.

         FACTS AND PROCEDURAL HISTORY

         In July 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.

         In 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.

         In the 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.

         In 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.

         The 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.

         Based 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.[1] 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.

         After 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 ...


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