New Cases added to MLAW: Three COA Unpublished: Guardianship of C.T.F, Abid, and Calderon

by | Apr 20, 2022 | Nevada Family Law Appeals | 0 comments

In re: Guardianship of C.T.F. and P.G.S., No. 83443, Order of Affirmance (COA Unpublished Disposition, Mar. 23, 2022)

C.F. and P.S’s maternal great grandparents, the Luceros, appealed from a district court order appointing the children’s paternal grandparents, the McGrews and the Fergusons, as guardians. The McGrews were appointed guardians for C.F., while the Fergusons were appointed guardians for P.S. Because the children’s mother, Kristin, required rehabilitation for methamphetamine use, she gave her written consent for the Fergusons to care for C.F. and the McGrews to care for P.S; both paternal grandparents filed petitions for general guardianship while Kristin sought treatment in California. However, Kristin did not seek any treatment, and was picked up by the Luceros a week later. Upon her return to Nevada, she rescinded her consent to the guardianships and instead consented to the Luceros’ guardianship over both children. The Luceros petitioned for guardianship because they could keep the children together with their mother, who was residing with the Luceros. The district court temporarily granted co-guardianship to all parties; C.F. and P.S. would spend one week with the Luceros, and in the next, C.F. would go with the Fergusons while P.S. would go with the McGrews.

Though there was a final guardianship hearing set for a month later, the parties continued exercising the week-on/week-off arrangement for two years. During this time, Luceros placed P.S. in therapy for stress resulting from the back and forth between the two households, while the McGrews took P.S. to a dietician out of concern for her health. The week-on/week-off arrangement halted when P.S. returned to the Luceros with a bruise. The McGrews maintained that while they did spank P.S., the bruise was from her falling in a hearth. The following week, P.S.’s therapist filed a claim with DCFS, and ultimately, the district court granted the Luceros sole guardianship of P.S. C.F., on the other hand, continued the weekly exchanges with the Fergusons. When time came for the final guardianship hearing, the paternal grandparents moved to review the 2014 DCFS report of child neglect against the Luceros for lack of supervision in their home; the Luceros objected. The district court also learned about two potential attorney conflicts of interest regarding the report. Ultimately, the court found that the Luceros had an unstructured, chaotic home that was not in P.S.’s best interest; coupled with the Luceros’ history of bankruptcy and prior issues with both law enforcement and DCFS, it would be best for the paternal grandparents to care for the children.

The Court of Appeals affirmed. There was no abuse in discretion by reviewing the DCFS reports in camera because substantial evidence supported the district court’s decision to award guardianship of the children to paternal grandparents, even without the DCFS reports. Furthermore, the Luceros waived their due process claim by failing to specifically assert their response during the hearing or in their motion to reconsider; even if they hadn’t, they were notified of any investigative reports filed against them by the DCFS and would have had plenty of time to prepare testimony regarding the reports’ contents. The district court was also correct to award guardianship to the paternal grandparents. Kristin was found to be unable to care for the children, and the Luceros had no authority to support any of their claims regarding the children’s best interests. The two paternal grandparents’ lack of bankruptcy and criminal history, along with their organized households, were found to be in P.S. and C.F.’s best interests. Finally, while the paternal grandparents’ attorneys formerly represented the Luceros’ grandson in a juvenile delinquency matter, the Luceros were not party to the case, and that matter later became the basis for a DCFS report of neglect against the Luceros. Furthermore, the delinquency matter and the present guardianship case were not substantially related, and any confidential information learned through the attorney’s representation of the victim was not relevant to any issues raised in this case.

 

Abid v. Abid, No. 82781, Order of Reversal and Remand (COA Unpublished Disposition, Apr. 8, 2022)

Lyudmyla appealed from a district court order denying her motion to modify child custody. She and Sean divorced in 2010, and per the stipulated decree, shard joint legal and joint physical custody of their minor child, with Sean having primary physical custody. Lyudmyla filed a motion in 2019 asserting that since being awarded primary physical custody, Sean was undermining her relationship with the child, alienated her from the child, and did not properly care for the child. Her motion was denied, but before the court could enter its order, she filed another motion requesting that the court enter findings from the Family Mediation Center child interview and to modify custody based on the child’s best interest. The district court concluded in 2020 that there were sufficient findings of fact that she failed to establish a prima facie case for a change in custody, and that the FMC child interview was properly omitted.

The Court of Appeals found an abuse of discretion. The district court did not properly apply Rooney, and Sean’s interference with Lyudmyla’s parenting time were relevant to the grounds of modification to the point that, if found true, could warrant a custody modification. Reversal and a remand for further proceedings was found to be warranted because the district court failed to conduct an evidentiary hearing and admit evidence upon which to make such findings.

 

Calderon v. Stipp, No. 81888, Order of Affirmance (COA Unpublished Disposition, Apr. 11, 2022)

Christina appealed from a district court order modifying physical custody of M.S., one of two children resulting from her marriage to Mitchell. She and Mitchell divorced in 2008. In 2019, Mitchell filed a motion requesting that their children, M.S. (aged 17) and E.S. (aged 14) be granted teenage discretion, alleging that they did not want to go to Christina’s home for custodial time due to allegations of her engaging in fights with the children. The district court ordered the parties to resume the week on/week off custody schedule, but following an interview with the children, found that there was adequate cause for an evidentiary hearing for physical custody modification. Both children testified that they wished to live with Mitchell; M.S. testified that she and Christina engaged in multiple physical altercations, one of which E.S. witnessed. The district court found that it was in M.S.’s best interest for Mitchell to be the primary physical custodian, and also found that Christina had engaged in domestic violence.

The Court of Appeals affirmed. The district court may modify an order for primary physical custody if the moving parent showed that there was a substantial change in circumstances affecting a child’s welfare, and if the modification was in the child’s best interests. Furthermore, the district court possessed broad discretionary powers on how to weigh each best interest factor. Christina had failed to show that she was aggrieved by the district court’s failure to allow her the opportunity to rebut the presumption of NRS 125C.230, especially considering the testimony of alleged domestic violence. She was also unable to demonstrate that any additional findings under the statute would have changed the custodial determination based on the best interest factors. M.S. was of sufficient age and capacity to form an intelligent preference as to physical custody. Thus, even if the district court improperly failed to consider the allegations of domestic abuse, it was a harmless error; numerous other findings demonstrated that it was in M.S.’s best interest to award Mitchell primary physical custody.

Marshal S. Willick
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