SEP 28 202")
ELI"TH A. aR CLER. SU RT

• BY C CEF DEPUTY CLERK 139Nev.,AdvanceOpinion 

# 3g
IN THE SUPREME COURT OF THE STATE OF NEVADA

No. 84274 

# LEO IN THE MATTER OF THE GUARDIANSHIP OF D.M.F., A PROTECTED MINOR. D.M.F., Appellant,
VS. YALONDA F.; ALEXISM.; AND ANTONIO B., Respondents.

Appeal from a district court order removing a minor's guardian and terminating the guardianship. Eighth Judicial District Court. Family Division, Clark County; Denise L. Gentile, Judge.

Reversed and rernanded with instructions.
Legal Aid Center of Southern Nevada, Inc., and Marina F. Dalia-Hunt and Kerri J. Maxey, Las Vegas, for Appellant. Alexis M., North LasVegas, Pro Se. Antonio B., North Las Vegas, Pro Se. Yalonda F., North Las Vegas, Pro Se.

BEFORE THE SUPREME COURT, EN BANC.

Z3- 

### r/3 SUPREME COURT OF NEVADA
(0) 1947AOPINION

By the Court, CADISH, J.:

Inthis appeal, we consider whether a district court's sua sponte decision to remove a protected minor's guardian and terminate that protected minor's guardianship based on an ex parte communication was within the court's power. We also consider whether the court's actions violated procedural due process protections and whether the court abused itsdiscretion by failingtocomply with the pertinent statutoryrequirements related to guardianship proceedings. Further, we consider whether the district court exceeded its authority in directing Child Protective Services (CPS) to take certain actions regarding the placement of the protected minor. Regarding the district court's authority to sua sponte remove a guardia.n and terminate a guardianship, we conclude that the district court has such authority even in the absence of a petition seeking removal and termination. As to the due process question, we conclude the proceedings and resultant order did not comport with due process, as the court did not give proper notice that it was contemplating removal and termination such that the parties had a meaningful opportunity to be heard on the issue. We further conclude the district court abused its discretion by failing to apply the applicable statutes and factors for removal and termination, and it alšo made unsupported and clearly erroneous factual determinations in reaching its decision. Finally, we hold that while portions of the district court order stated what CPS should do goingforward, its ultimate order in this regard was simply to refer the matter to CPS for "action as they deem fit," which is not an abuse of discretion. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

2

### FACTUALANDPROCEDURAL BACKGROUND

lnuestigations into theprotected minor's safety

At birth, D.M.F. and A.F., his twin, tested positive for opiates and amphetamines. Respondent Alexis M., the mother, and respondent Antonio B., the father, admitted to methamphetamine use during the pregnancy. As a result, CPS began an investigation into possible abuse or neglect. Theparentsthen agreedtoallowrespondentYalondaF., thetwins' paternal grandmother, to serve as a temporary guardian via a notarized temporary-guardianship appointment while the parents sought treatment.

As noted in the CPS records, Yalonda allowed the parents to stayatherhome;however,iftheparents'drug-usetreatmentceasedorthey relapsed, Yalonda promised both to make them move out and to seek a court-ordered general legal guardianship over the twins. CPS noted that Yalonda provided for the twins' needs and that Yalonda had been assessed "appropriate and aligned with the twins." Ultimately, CPS permitted the hospital to release the twins toYalonda.

A CPS specialist discussed with Yalonda and the parents the expectations for the newborns' care, including that the parents could support Yalonda in the care of the twins, but they could not sleep in the
same room as the twins. Yalonda confirmed that she had placed the twins' bassinets in her room. In subsequent follow-ups, CPS observed that the twins appeared in "good physical health with no obvious signs•of abuse or neglect." While CPSobserved that the parents helped Yalonda care for the twins, it was noted that Yalonda was the primary caregiver and managed mainly on her own. Yalonda also described herselfas very strict regarding theparents'drugtreatment, and CPSconfirmedthatbothparentshadbeen participating in drugtreatment services.

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### 3 (0 1947A

### Before CPS closed its investigation, A.F. died in a co-sleeping

incident with the parents. Police and CPS investigated the death. The investigations revealed that the twins, three months old at that time, had been fussy, promptingAntoniotohelpYalonda care forthem bytakingA.F. to another room to calm him. Meanwhile, Yalonda calmed D.M.F. and put him to sleep in the bassinet in her room, at which time she alsofell asleep. Antonio placed A.F. to sleep on a pillow in the bed he shared with Alexis. Eventually, Antonio and Alexis fell asleep with A.F. on the bed. When Antoniowoke up in the morning, he foundA.F.face down on thepillow and unresponsive. Yalonda unsuccessfully attempted to resuscitate A.F.

As part of the investigations, CPS documented that D.M.F. appearedhealthyandshowed noobvioussignsofabuseor neglect. Yalonda also told CPS that the parents had, up to that point, followed her rules prohibiting the parents from sleeping with the twins in their room. Ultimately, police reported no concerns ofabuse or neglect related toA.F.'s death and described A.F., based on physical observations, as a well-caredfor baby. The coroner ruled the cause of death positional asphyxia due to co-sleeping. The investigations ultimately concluded that A.F.'s death did not result from abuse or neglect. Accordingly, nochargeswerebrought.

However, the CPS investigation also revealed that Alexis and Antonio had relapsed with methamphetamine. CPS described that the testing,whichwasdonethedayafterA.F.died,appearedtoconfirmAlexis's statementofa one-time relapse;however, thetestingalsoappearedtoshow that Antonio had used more than one time. When Yalonda learned ofthe relapse, she expressed her plan to seek general legal guardianship over D.M.F.

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OF NEVADA (0) 1947A 

### 4

### CPS reported that Yalonda exhibited adequate caregiver skills

and metD.M.F.'sbasicneeds. While CPSfoundreasonablecausetobelieve that the parents presented a physical risk to D.M.F. because of the drug relapse and theincident ofco-sleepingwithA.F., two specialistsultimately deemed D.M.F. safe in Yalonda's care, closed the investigation, and issued final approval ofYalonda ascaregiver for D.M.F. Petition forappointment ofguardianship

About one month after A.F1's death, Yalonda petitioned the district court for appointment ofguardianship over D.M.F.1 D.M.F. was a little over four months old at that time. In the petition, Yalonda indicated that she had been D.M.F.'s temporary guardian since his birth because of the parents' drug use. She noted the agreement between her and the parents for her to serve as D.M.F.'s temporary guardian after he hadbeen born substance exposed. She further stated, "Our agreement was that if they relapsed I would file for legal guardianship." She explained in the petition that bothparentswere unable topresently care forD.M.F.because they were active drugusers.

Notarized consents from the parents and documentation ofthe temporary guardianship were attached to the petition •for legal. guardianship. The petition listed the same address for Yalonda, D.M.F., and the parents. Finally, Yalonda checked a box indicating that the 'Althoughthe CPScase was officially closed.afterYalonda petitioned the court for appointment as legal guardian, the records indicate that the investigation wasconcluded beforeYalonda'sought legalguardianship. The initial assessment reportconcludingthat D.M.F.was safeinYalonda's

-care was also pending final approval by a supervisor in early March before Yalonda sought legal guardianship. The records note that she asked CPS for advice on how to obtain guardianship and kept. CPS up-dated on her efforts to do so.
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### .46g4- 5guardianship was "NOT requested because of an investigation of abuse or

neglect conducted by

. . . [CPS] or law enforcement." Following a short hearing, the district court granted the petition and appointed Yalonda as guardian. D.M.F., who was represented by counsel at the hearing, did not object to the guardianship. Receipt ofexparte communication

Six monthslater, the district court issued an order statingthat it had reviewed, under the Nevada Statewide Rules for Guardianship (NSRG), an ex parte communication from another judge suggesting that there were possible misrepresentations made in Yalonda'spetition.2 Citing NSRG 5 and NRS 159.046,3 the district court appointed a guardianshipcompliance investigator, set a hearing on the ex parte communication, and ordered a response from Yalonda concerningthe communication, including the failure to inform the district court ofA.F.'s death.and CPS's subsequent investigation thereof.

With respect to the guardianship-compliance investigator, the district court directed the investigator to examine D.M.F.'s placement, health, welfare, education, and financial status. The court also instructed the investigator to determine Yalonda's suitability as guardian and to explore her failure to inform the court of A.F.'s death or CPS's ensuing

2The other judge obtained information about A.F.'s death from CPS records in an unrelated matter regarding D.M.F.'s half-sibling, who was in the care ofa different paternal grandmother, nonparty Jane Morales.

3Although the districtcourtcited NRS 159.046,that provisionapplies to adult guardianships. Authority to appoint an investigator in minor guardianships is set forth in NRS 159A.046. Additionally, NSRG 5, which governs appointingan investigatorin response toexparte communications, appears to contain a typographical error in cross-referencing NRS 159.146, rather than NRS 159A.046.

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101 1947/1 6SUPREME COURT

OF NEVADA investigation. The district court further requested that the investigator

determine who resided in the horne, whether CPS had any open investigations concerning D.M.F., and whether any unsupervised contact between the parents and D.M.F. occurred. Guardianship-compliance investigator's report

The investigator filed a report with the district court. Even though the district court had tasked the investigator with determining Yalonda's suitability and D.M.F.'s status, the report did not contain any conclusions in that regard. The investigator noted the existence of established sleeping arrangements for the children at the time of A.F.'s death but did not describe those arrangements. There was no indication in theinvestigator'sreport thatYalonda or theparents hadpreviouslyco-slept with the twins.

The reportprovided thatYalondahadinformedtheinvestigator that D.M.F. was safe, immunized, treated by a cardiologist for a heart murmur, and enrolled in early intervention services. Yalonda also told the investigator that she did not permit the parents to have unsupervised contact with D.M.F. and established back-up care for D.M.F. ifshe needed
someone to watch him. She statedthat bothparents were sober again. The report did not reveal any effort to independently verify the information provided by Yalonda.

As to Yalonda's failure to inform the court ofA.F.'s death and the ensuinginvestigation, the investigator stated that Yalonda had worked with a nonprofit organization to finish the guardianship paperwork, which had told her to submit the paperwork as completed. Additionally. the investigator noted that Yalonda did not believe she needed to inform the court ofA.F.'s passing because, so she thought, the CPS investigation had been closed.
7 947ASUPREME COURT

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(0) 1947A Hearing on the exparte cornmunication At the hearing to address the ex parte communication regarding A.F.'s death, the district court questioned Yalonda'sjudgment as
a caregiver and expressed concern for D.M.F.'s safety, because Yalonda's "decision

. . . put [A.F.] in the position that he was in, in the first place, despite that the "parents were on drugs and the children were born

. . . with d.rugs in their system." The district court then discussed, hypothetically, the options that were available in the event it deemed Yalonda an inappropriate guardian, including allowing CPS to make a placement determination. The court observed that "grandma can get the guardianship through [an NRS Chapter 432B] case," if CPS deems a guardianship appropriate, and purported to "just really weigh[ ] what this [c]ourt should do in terms of

. . . whether this person is an appropriate

-person." Despite stating that no "disqualifying factors" existed, the district court nevertheless listed what it viewed as concerning issuesregardingYalonda's suitability as guardian: (1) allowing the parents to remain in the home, (2) decidin.g to leave a child with "those people who were obviously very careless," and (3) permitting the parents continued access to D.M.F. The district court acknowledged that Yalonda was not allowing the parents to watch D.M.F. without supervision, but the court questioned its ability to prevent unsupervised contact between the 'parents and D.M.F.

D.M.F.'s counsel argued "[D.M.F.] deserves somebody who's gonna take care of him; somebody who's gonna provide him with the basic necessities and keep him safe And that is what Ms. [Ya]onda] ie doing And that's what our statutes concentrate on." D.M.F.'s attorney proposed that the court order quarterly, rather than yearly, reports from Yalonda, require the parents to leave the home, or preclude the parents from unsupervised contact. Moreover, D.M.F.'s attorney suggested that thecourt
8

### could refer the rnatter to CPS but that CPS would likely abide by its

decision. Lastly, D.M.F.'s counsel argued that Yalonda's failure to inform the court ofA.F.'s death was not intentional.

At the hearing, Yalonda asserted that "everything is

. . . about keeping [D.M.F.] safe." She noted that she never missed D.M.F.'s doctor appointments, kept him clean, and put him to sleep in a pack-and-play in her room. Yalonda also stated that she never left him alone with the parentsandhadback-upcareifnecessary, andshevolunteeredtomakethe parentsleaveherhome. SheinentionedthatAlexiswassoberandemployed at Amazon, which tested for drugs. She alsotold the court that she did not intentionally omitA.F.'sdeathorthe investigation, explainingthat she had sent a copy of the guardianship petition to a nonprofit organization, who reviewed it for her and noted no concerns.

The district court stated that it believed the omission was unintentional. The courtalsoremarkedthatYalonda"had noillintentions" andthat she was"overlyprotective ofthisone." However, the distri.ctcourt expressed concerns regarding D.M.F.'s environment because the parents continued to live there. The court considered whether it could order that the parents no longer live with Yalonda, as it concluded that the parents
are the issue. Yet the court indicated that it was reluctant to do so without
an.independentperson in the home who could monitor the family on a dayto-day basis. Ultimately, the court stated that it would either set another hearing or issue an order. The district c,ourt barred the parents from any unsupervised contact with D.M.F. in the interim. Rernoual oftheguardianand termination oftheguardianship

Thereafter, the district court entered an order removing Yalonda as guardian and terminating D.M.F.'s guardianship. The order cited only NSRG 5 as authority. The district court found that Yalonda had 9 SUPREME COUFIT OF NEVADA
OM 19,17A 4stlet.

### failed to reveal prior history with the parents ofthe children, citing three

incidents in the CPSrecords that occurredbefore D.M.F.'s birth.

The district court then discussed the CPS investigations into the parents'druguse and A.F.'sdeath. Notingthat the investigationswere ultimately closed, the district court found that "this guardianship was granted under false pretenses" based on the following:

['Ti]he Petition for Appointment was filed just shortly after the twin died in the care of grandmother, and she chose not to reveal this information, and unilaterally deemed that this information was not necessary. .. .At the hearing on this matter,
..this [c]ourt queried [Yalonda] for the reason to conceal this information. She indicated that she did not intentionally concealthe information, but yet, this tragedy happened only days prior to the filingofthe petition. Further, the court expressed that Yalonda's

judgment relating to her responsibility to care for the child is not adequate, given that she was handed the twin children by CPS after an investigation oftheparents, and within a few days, one ofthe twins was deceased due to her choice to allow theparents tocare forthe child because both ofthem were fussy. The district court acknowledged that Yalonda was willing to require the parents move out to maintain the guardianship over D.M.F., but it claimed thatit wasunabletohave theoversight necessary.toprevent anycontin.ued - exposure to the parents.

Thus, the district court found removal ofYalonda as guardian in D.M.F.'s best interests and referred the matter to CPS for further investigation. The court reasoned that this was necessarybased Upon

the lack ofjudgment displayed when the children were placed in the care of the paternal

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### 10 (01 i947A

### grandmother by CPS, the lack of candor to the [c]ourt of the surrounding circumstances and the death of [D.M.F.'s] twin brother, the fact that the troubled parents remain in the household with [Yalonda and D.M.F1, and said fact was concealed from thiscourt,thattheparentswerefoundtohave been under the influence of methamphetamine at the time theywere incharge oftheirchild who died and this fact was concealed from the [c]ourt, [and] the need for this family to have oversight by Department ofFamily Services. In discussing the referral to CPS, the court stated it "FINDS" that even ifCPS assessed Yalonda as an appropriate caregiver ofD.M.F.,
a case should be opened with [the] Juvenile Court, so that placement can be made through the Juvenile Court" and "the family can obtain the
resourcesavailable tothem through thatprocess." In the end,however,the court simply ordered "that this matter shallbe referred to Child Protective Servicesagain forfurtherinvestigationandactionastheydeemfit." D.M.F. appeals. DISCUSSION Standard ofreview

We do not disturb a guardianship determination absent an abuse ofdiscretion. Jason S. v. ValleyHosp. Med. Ctr. (In re Guardianship of L.S. & H.S.), 120 Nev. 157, 163, 87 P.3d 521, 525 (2004). An abum of discretionoccurswherethedistrict-courtfailstosupplyappropriatereasOns to support the determination, see id., "exceedsthebound.soflaworreason,"
or makes an "arbitrary or capricious" decision, State v. EricA.L. (In.re Eric A.L.), 123Nev.26, 33, 153P.3d 32, 36-37(2007). Andthe districtcourt also abuses its discretion when it "bases its decision on a clearly erroneous factual determination" or "disregard.s controlling law." MB Am., Inc. v. Alaska Pac: Leasing co., 132 Nev. 78, 88, 367 P.M 1286, 1292 (2016).

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(0) I947A 11However, questions of law within a guardianship determination are

reviewed de novo. See Tahja L. v. State, Dep't of Family Servs. (In re Parental Rights as to L.L.S.), 137 Nev. 241, 245, 487 P.3d 791, 796 (2021) (reviewing "cOnstitutional issues such as a parent's right to due process in

a termination proceeding de novo"); Potter v. Potter, 121 Nev. 613, 616, 119 P.3d 1246, 1248 (2005) (reviewing questions of statutory interpretation de novo). The district court has authority to remove a guardian and terminate a guardianship, even absent apetition

D.M.F. contends that even though NSRG 5 gives the district court "numerous options" to respond to an exparte communication, it does not "empower[]" the court "to unilaterally remove a guardian." D.M.F. .further argues that the absence of the district court as a party who may petition for the removal of a guardian under NRS 159A.1853 means that the provision "does not include the district court, especially on a sua sponte basis." D.M.F. thus contendsthat the d.istrict court lacked anypower to act because no petition for removal had been filed. Similarly, he asserts that
no provision allows a court to sua sponte terminate a guardianship.4

Thiscourtrecently held,in the context ofan adult guardianship proceeding under NRS Chapter 159, that "separate from an individual formally petitioning the court, the district court has •its own ability to
remove a guardian if it determines that one or more ofihe conditions set forth in NRS 159.185 have been satisfied." Jones v. Guardianship ofJones), 139 Nev., Adv. Op. 17, at 4, 53 Friedman (In re P.3d 1236, 1.243

4Respondents, who are all pro se a.nd who were in favor of the guardianship during the district court proceedings, did not file answering briefs. •
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1947A 12

### (2023). NRS Chapter 159A governs guardianship proceedings concerning

minors, including the instant case, and NRS 159A.185 contains provisions analogous to those we relied on in Jones. Specifically, NRS 159A.185(1) outlines conditions for removal of a guardian and states that the district court "rnay remove a guardian ifthe court determines"one or more ofthose conditionsexists. Lookingtoour prior caselaw and that ofother states, we held in Jones that while variousstatutoryprovisionscontemplate the filing of a petition for removal ofa guardian by a party, "inherent in the district court's jurisdiction over the guardianship is the power to appoint and
remove guardians." Id. at 1242-43. We see no reason to hold differentlyin
a minor guardianship proceeding and thus conclude that the district court hasthe authority to sua sponte remove a minor's guardian ifoneor more of theconditionssetforth in NRS1.59A.185issatisfied andallotherapplicable requirements are met.5 Thedistrict court deniedD.M.F.dueprocessoflaw whenit removed D.M.F.'s guardian and terminated theguardianshipafter the NSRG 5hearing

D.M.F. argues that the district court violated his due process rights and abused itsdiscretion, as he and other interested persons did not

5

### We note also that under NSRG 5(A), "[i]n order to carry out the court's oversight and enforcement of compliance in guardianship proceedings," the court may receive and review ex parte communications ordinarily prohibited by the Nevada Code of Judicial Conduct, "if such coMmunications raise a significant concern about a guardian's compliance with his or her statutory duties and responsibilities, or the protected person's welfare." In response tosuch communications, the court may take numerous steps, including taking any action supported by the record, notifying any appropriate government agency, appointing an investigatOr (asit is authorized to do"at anytime" under NRS 159A.046(1)), and setting a hearing. NSRG 5(B). It would be anomalous toallow the court to receive and follow up on such comm.unications if the court were powerless to thereafter act toprotect the welfare oftheprotected person.

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### 13 (0) I)47A

### receive notice regarding the prospect of removal or termination, and the

district court did not hold a hearing regarding the same. D.M.F. contends that the NSR.G 5 order failed to indicate that the district court was consideringremoval and termination, particularly where "no one requested that Yalonda be removed asguardian orthe guardianship terminated." We agree. The district court's actions implicate D.M.F.'s procedural due process right's to notice and a meaningful opportunity to be heard. See

. Callie v..Bowlin,g, 123Nev. 181, 183, 160P.3d 878, 879 (2007);seealsb NR.S 159A.1855(1) (requiring the court to issue andpetitioner to serve. a citation oh the guardian and all interested parties when a petition to remove the guardian has been filed). Beth the United States Constitution and the Nevada Constitutionprovidethat noperson shallbe deprived of'a protected life, liberty, or property interest without due process of law. U.S. Const. amend. XIV, § 1; Nev. Const. art.. 1, § 8(2).

The district court!s decision here affects several protected interests'. Thiscourt hasheld when a courtsua sponte removesa guardian, without the formal filing of a petition, the court "[risks] depriv[ing] a protected person of their autonomy and iniping[ing] on the protected person's rights." Jones, 139 Nev., Adv. Op. 17, at •12, 531 P.3d at 1243. Other courts have concluded that, a minor possesses a constitutionally protected liberty interest in "familial companionship." See, e.g., Smith v. City ofFontana, 818 F.2d 1411, 1414, 1417-18 (9th Cir. 1987) (recognizing

. a child's"interestin thecontinuedcompanionship"ofaparentinthecontext of a 42 U.S.C. § 1983 claim). The premature termination of the gitardianship may also jeopard.ize D.M.F.'s relationship with his parents, who consented to the guardianship and still retain pa.rental rights in the

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### 14 ((J) 1947Aupbringing of their child. See Santosky v. Kramer, 455 U.S. 745, 758-59

(1982) ("[A] natural parent's 'desire for and right to the companionship, care, custody, and management ofhis or her children'is aninterest far more precious than any property right." (quoting Lassiter v. Dep't ofSoc. Servs. ofDurham Cty., 452 U.S. 18, 27 (1981))).

Moreover, the relationship between D.M.F. and his guardian, who is also his grandmother, fits into the protected parent-child paradigm because Yalonda has served as his primary caretaker since birth. See Rivera v. Marcus, 696 F.2d 1016, 1025 (2d Cir. 1982) (concluding that "custodial relatives" enjoy "due process protections when the state decides to remove a dependent relative from the family environrnent"). And finally, the district court's decision bears on the protection Yalonda affords to D.M.F. Indeed, a guardian has a liberty interest in the care, custody, and management of a child under their protection akin to, but not entirely coextensive with, the rights of a parent. See, e.g., Simuro v. Shedd, 176 F. Supp. 3d 358, 384 (D. Vt. 2016) ("[P]arents and guardiansofminor children have protected interests in the care, control, and custody of thoSe children."). Thus,. due process requires D.M.F., and those others holding protected interests, be afforded notice and an opportunity to be heard with respect tothe removal ofhis guardianand termination ofthe guardianship.6

"The fundamental requisite ofdue process is the opportunityto be heard." Browning v. Dixon, 114 Nev. 213, 217, 954 P.2d 741, 743 (1998) (citing Grannis v. Ordean, 234 U.S. 385, 394 (1914)). "This right has little

6We note that while D.M.F.'s due process rights are at issue in this appeal, Yalonda and D.M.F.'s parents' due process rights are also impacted by the district court's decision, as• they all have liberty interests in- the guardianship and care of D.M.F.

SUPREME COURT OF NEVADA
10) I947A 15reality or worth unless one is informed that the matter is pending and can

choose for [themself] whether to appear or default, acquiesce or contest." Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1949). Notice is sufficient to satisfy due process where it is "reasonably calculated, under all the circumstances, to apprise interested parties ofthe pendency of the action and afford them an opportunity to present their objections." Id.; compare Jones, 139 Nev., Adv. Op. 17, at 13-14, 531 P.3d at 1244 (concluding that .various requests for removal, both oral and written, sufficientlyput aprotectedpersonon notice ofthepotentialrernoval oftheir guardian despite no formal petitionbeingfiled), withMicone v. Micon.e, 132 Nev. 156, 159, 368 P.3d 1195, 1197 (2016) (holding that the district court's
sua sponte award of physical custody to nonparty paternal grandparents violated parents' right to due process because the parties' briefs and arguments concerned which parent should have custody and did not addressthepaternal grandparents). Generally, notice must be givenbefore

a party's substantive rights are affected. See Wiese v. Granata, 110 Nev. 1410, 1412, 887P.2d 744, 745-46 (1994) (concludingnotice ofa hearingthat failed to mention or even hint at child custody as a subject ofthe hearing violated the appellant's due process rights when custody was changed as a result ofthe hearing).

D.M.F. proposes that the district court should have issued a citation to the guardian and any other interested person to show cause why the district court should not remove the guardian or terminate the guardianship, as required by NRS 159A.1855 and NRS. 159A.1905 when a petition for removal or termination has been filed. See NRS 159A.1855(1) (requiringa citationtoissue regardinga petitionforremovalofa guardian); NRS 159A.1905(4) (providing the same as to a petition for termination of a

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OF NEVADA 10) I ,47A <45SZfr, 16

### guardianship). Had the district court issued such citations, D.M.F. and all

other interested parties, namelyYalonda and D.M.F.'sparents, weuld have been apprised ofthe possibilityofremoval.ofYalonda asD.M.F.'s guardian and termination of the guardianship. However, no such citations were issued: thus we turn to the other actions ofthe district court to d.etermine whether sufficient notice was provided.

We conclude that the notice provided by the district court was ina.deqUate and did41.ot afford D.M.F. dile•process.oflaw. First•none ofthe district court'S orders provided a clear indication that reinoval and termination would be at issue at the hearing or in the court's su.bsequent order. For example, the NSRG 5order set a hearingon theissuesraisedby the ex parte communication, which were identified as misrepresentations made tothe districtcourtregardingD.M.F.and the ad.equacyofthepetition to appoint a guardian, given Yalonda's failure toinform ofA.F.'s death and CPS's investigation. Nothingwithin theorderindicated thatthe significant actions of removal and termination were on the table; instead the order indicated an investigator would be appointed and a hearing Would be held where Yalonda could respond regardingthe.issues raised.

Likewise, a second order, issued simultaneously with the first. appointed an investigator to prepare a report on Yalonda's suitability and her omission to the court, as well as on D.M.F.'s health and welfare. Althoughtheorderraisedconcernsregardingthe guardian'ssuitabilityand theprotected minor'swelfare,it didnotindicate thepotentialforthedrastic step ofremoval and terminatio.n. such asdirections to investigate potential. substitute guardians or the necessi.ty for the'guardianship. Had the order unambiguously notified the interested parties of the prospect of rernoval and termination, as a. citation would h.ave, then those interested parties

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### 17could have meaningfully addressed these issues. By failing to clearly notify

the parties of the significance of the interests at stake, the district court's notice failed "to apprise interested parties ofthe pendency ofthe action and afford them an opportunity to present their objections." Mullane, 339

.U.S. at 314. Furthermore, even ifD.M.F. received notice that guardianship

was to be determined at the hearing on the ex-parte communication, the hearing D.M.F. actually received cannot be construed as having provided D.M.F. with due process oflaw. In the context ofchild custody eases, eVen when proper notice is provided, this court has held that "litigants

. . . have the right to a full and fair hearing concerning the ultimate disposition of a child." Moser v. Moser, 108 Nev. 572, 576, 836 P.2d 63, 66 (1992). A full and fair hearingrequires that the change in custody be supportedby factual evidence and the party threatened with the loss of parental rights must be given the opportunity to rebut the evidence presented against them. Id. at 577, 836 P.2d at 66.

This court's opinion in Wiese v. Granata illustrates the requirements of a full and fair hearing regarding custody issues. 110 Nev. 1410, 887 P.2d 744 (1994). There, the father had full custody ofthe parties' child. Id. at 1410, 887 P.2d at 745. The mother obtained a temporary protective order against the father and sought to extend the order. Id. at 1411, 887 P.2d at 745. The father was served with the motion, an order to show cause, and the notice of hearing, wherein the mother sought modification of her visitation. Id. The notice indicated the •district court would consider whether to extend, modify, or dissolve the temporary protective order and whether the father had violated the terms thereof. Id. The father did riot appear at the hearingto extend the temporaryprOtective

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(0) 1947A 18order upon the advice of counsel, and the district court subsequently

entered an order granting the mother physical custody ofthe child. Id. In response, the father filed an emergency motion to stay the order granting the mother physical custody and requested a hearing. Id. The hearing on the emergency motion to stay was limited to 30 minutes, and the mother did not present any evidence concerning custody. Id. at 1411-13, 887 P.2d at 745-46. The district court denied the father's requ.est and affirmed its order grantingthe mother custody: Id. at 1411, 887 P.2d at 745. On appeal, this court concluded the notice was inadequate because nothing in the notice or the order to show cause could be fairly read as notice that custody determinations were to be made at this hearing. Id. at 1411-12, 887 P.2d at 745-46. Furthermore, this court held that even had the notice been sufficient, the hearing on the emergency motion

-to stay could not be construed as a full and fair hearing on the change of custody because the mother did not present any evidence supporting the change in custody and therefore the father was not given a meaningful opPortunity•to respond without being provided the information on. which the district court relied. Id. at 1412-13, 887 P.2d at 745-46.

Here, the investigator filed a report that provided no recommendations or conclusions regardingYalonda's suitabilityor D.M.F.'s health and welfare, thus giving no indication ofthe case (i.e., the facts and arguments) regarding the need to• remove Yalonda as guardian and terminate D.M.F.'s guardianship. See Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (noting that due process requires `riotice of the case against [a person] and opportunity to meet it" (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1951) (Frankfurter, J., concurring))). Because the report lacked specificity iegarding the type of

SUPREME COURT OF NEVADA
101 1947A 19evidence a.massed against the guardian and the guardianship, yet the

district court relied. on it, D.M.F. and Yalonda lacked the ability to ad.equately address these concerns at the hearing.

Furthermore, the district court held a hearing during which no testimony under oath was presented or considered. Moreover, because no party petitioned for Yalonda's removal or termination of the guardianship and the court did not clearly indicate it was sua sponte considering doing so, it was unclear that snob serious actions

.were under consideration. The district court was also unclear throughout the hearing as to the purpose of .the hearing and the actions that it intended to take. Because ofthe lack Of clarity regarding the purpose of the hearing, the

. parties 'could not appropriately address the issues of removal and termination. As a



### -consequence,-they were not given a meaningful opportunity

.to be heard-on the issues. See Matheivs, 424 U.S. at 333 ("The fundamental requirement oftlue process is the opportunity to be heard 'at a meaningful time and in a meaningful manner." (quoting Armstrong v. Manzo, 380 TJ.S. 545, 552 (1965))). Thus, we conclude that the notice provided to D.M.F. in thiS

case was inadequate because it did not fairly apprise him

. that Yalonda's removal as guardian was being considered or that the guardianship Was at risk oftermination duringthe heating. Furthermore, not receive

a full and fair hearing because D.M.F. Nxas not presented with -the case for such actions and thus did not have a meaningful opPortunity to be heard on the issues. While the procedural due process violation requi.res reversal, D.M.F'. also contends that the district court abused its discretion in its application of controlling law governing removal

. of guardians and

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### termination of guardianships and exceeded its authority in referring the

matter to CPS. Because these issues may persist on remand, we address them here. The district court abused its discretion in removing Yalonda as guardian and terminatingD.M.F.'s guardianship, but did not abuse its discretion in referringthe matter to CPS

D.M.F. argues that the district court failed to apply clearly controlling Nevada law that governs the removal and termination of guardianships. As removal and termination involve separate inquiries, we discuss each in turn below. Removal of Yalondaasguardian D.M.F. argues that the district court's removal determination constituted an abuse of discretion because it did not consider whether Yalonda met any of the conditions for removal beyond. a conclusory reference to D.M.F.'s "best interest" and relied on incorrect findings regarding Yalonda's perceived dishonesty to the court and the parents' intoxication while caring for A.F. Moreover, D.M.F. contends that the district court reached its determination without applying the mandatory best-interest factors laid out in NRS•159A.186.

As noted, a district court rnay remove a guardian if i.t determinesthat one or rnore ofseveral disqualifyingfactorsexist,in.clUdin.g the guardian's negligence in performingtheir duties, resulting in injury or a likelihood of injury to the protected minor. NRS 159A.185(1). Yet the existence of a condition of removal and the court's election tO exercise its discretion regarding such condition do not end the matter. "Notwithstandingany otherprovisionoflaw,

. . . the courtshall n,otremove the guardian or appoint another person as guardian unless the court finds that removalofthe griardian or appointment ofanotherperson asguardian

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.• 

### 21is in the best interests oftheprotected minor." NRS 159A.186(1) (emphasis

added); see also NRS 159A.186(2) (providing factors that the court must consider regarding the minor's best interests). The use of "shall" here makes the best-interests-of-the-child analysis mandatory. See Nev. Pub. Emps. Ret. Bd. v. Srnith, 129 Nev. 618, 627, 310 P.3d 560, 566 (2013). Therefore, a finding that removal serves the best interests ofthe protected rninor does not by itselfprovide a basis for or trigger removal; instead, it
overcomes NRS 159A.186(1)'s functional presumption against reinoval. Reading the removal provisions in harmony, the district court must first determine whether one of the enumerated conditions for removal under NRS 159A.185(1) exists and, if so, conduct a best-interests-of-the-child analysis. Relatedly, while NSRG 5's language is broad enough to include possible removal of a guardian in response to an ex parte communication that raises a "significant concern" about the guardian's compliance with their dutiesortheprotected minor'swelfare, removal initiated under NSRG 5 still needs to satisfy one of the conditions under NRS 159A.185(1) and
serve the best interests ofthe minor under NRS 159A.186(2).

Applying these princiPles here, the district coUrt abused its discretion when it removed Yalonda as guardian. The district court cited
no law other than NSRG 5, simplyconcludingthat concernsremained about Yalonda's compliance with her duties and that removal was in the best interests of D.M.F. The court did not identify which of the enumerated conditions for removal under NRS 159A.185(1) it found or even acknowledge the need for such a finding, nor did it address the mandatory best-interest factors under NRS 159A.186(2). The district court justified removal based on its finding that Yalonda lied to the coUrt to obtain the appointment. The district court alsofound that Yalonda had concealed "the

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### fact that the troubled. parents remain in household." However, Yalonda's

petition listed the same address for herself and the parents. The peti.tion also clearly stated the parents were active drug users. The basis for the court's findings about Yalonda'spurported lying and concealment seemsto stem from its misunderstandingthatthe time frame ofthepertinentevents
was more compressed than it actually was, finding that A.F.'s death "happened only days prior to the filing of the petition," when Yalonda petitioned the court. a. mOnth after A.F.'s death. Similarly, the court erroneou.sly•stated that .A.F.'s death happened within a few days after Yalenda obtained temporary guardianship, when Yalonda had been'caring forD.M.F.andA.F.forthreemonth.swithoutincident. Thecourtalsoseems to'disagree with the conclusionsofthe police and CPSthat A:F.'s death was not the result of abuse or neglect but rather a tragic accident,. While the court'sinitialconcernsareunderstandable., therecordlacksanyevidentiary support for a different conclusion.

As the dist.rict court failed to•applythe mandatorybest-interest factors in NRS 159A.1.86(2), failed to find a predicate condition for removal under NR.S 159A.185(1), and relied on 'unsupported and clearly erroneous factual determinations, we agree with D.M.F.that the distriet coUrt abused its discretion in removingYalonda as guardian. Termination oftheguardianship D.M.F. contends that the district court abused its discretion in terminating his guardianship because it did not apply anyoftheprovisions concerning the termination of a guardianship

.and. failed to make explicit findings explaining how terminatin.gthe guardianship wasin D.M.F.'sbest interests. He also argues that the district court failed to
.follow NSRG. 1.0 becauseit removed a sole guardian from a child who stillneeded a guardian

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### '2,without either appointing a successor guardian or finding th.at D.M.F. no

longer needed a guardian.

Under NSRG 10(A), "the court shall not terminate the guardianship

. . . without making specific findings" regardingthree things: (1) the protected minor's "current health and welfare," (2) the "reasons a guardianship does or does not remain necessary, including identifying the existence of less-restrictive alternatives." and (3) "[w]hether maintaining the guardianship would serve the protected person's best interests." The order here falls short of the NSRG 10 requirements. To the extent the district court's order considered D.M.F.'s current health or welfare, it focused on the supervised. contact with "the troubled parents" and A.F.'s death. The order did not address how termination of the guardianship wouldimproveor maintain hishealth andwelfare, given that it wouldplace him back in the care and custody ofthose parents. The district court also did not identify any reason why the guardianship no longer remains necessary. Further, it summarily dismissed less-restrictive alternatiVes as impossible to implement. And itsbest-interests analysislooked at only one factor out of many and relied on unsupported and clearly erroneous findings, as discussed above. For these reasons, the district court abused its discretion in failingto make specific, supportable findings regardingthe NSRG 10 factorsbefore it terminated D.M.F.'s guardianship. CPS referral As noted, D.M.F. argues that the district court exceeded its authority in. attempting to direct CPS to remove D.M.F. from. his parents' and Yalonda's care and to institute a dependency proceeding under NRS Chapter 432B. While CPS may determine whether grounds exist for an investigation into possible abuse or neglect, the district court May not mandate that CPS find the existence of a statutory circumstance that
24 SUPREME Coufrr

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### warrants initiation of an investigation. Similarly, the district court does

not possess the authority to direct CPS to open a case under NRS Chapter 432BregardingD.M.F.'splacement and make the •placement through court order. But this did not occur here. While the district court did expressits disagreement with CPS's actions and conclusions, finding that if CPS felt placementwithYalondawasappropriatethen acase shouldbeopened with the juvenile court and expressing concern that CPS had not previously proceeded with a dependency case, in th.e end it simply ordered the-matter "referred to Child Protective Services again for further investigatiOn and. action as they deem fit." This order does not inappropriately direct the action CPS must take and does not constitute an abuse ofdiscretion. CONCLUSION If it receives information causing concern regarding the proprietyofa minor'sguardianship, a district court maysua spOnte initiate the process for removing a euardian and terminating a guardianship. In doing so, the court must protect the procedural due process rights of the protected rninor, parents, and guardian by, at a minimum, giving notice of the contemplated action and holding a hearing on the prospect ofremoval and termination so that the parties have a meaningful opportunity to be heard. All the while, the court must adhere to the applicable statutes and rules under NRS Chapter 159A and the NSRG in• d.eterrnining whether removal of the guardian and termination of the guardiansh.ip are appropriate, makingthe required findings tosupport those decisions.

Here, the.district court did not give notice to D.M.F., Yalonda,
or D.M.F.'s parents regarding the prospect, ofremoval or termination; nõr did the court hold a hearing regarding the same. The court, therefore, violated the due process rights of D.M.F. and failed to

- comply with the statutory requirements for removal and termination, requiring'reversal.
25, C.J.

Stiglich

J.

Parraguirre Lee Accordingly, we reverse and remand with instruCtions to reinstate the guardianship and reappoint Yalonda, provided she is willing and able, as guardian. If the district court determines that it should proceed with a hearing to consider removal of the guardian or termination of the guardianship, it must provide notice to D.M.F., Yalonda, and the parents that expressly advises of these potential consequences and h.old a full hearing on the same. Should the district court, after the hearing, conclude that removal or termination is appropriate, the court muSt make the necessary findings and address the mandatory factors set forth in the applicable statutes and rules.

, J. Cadish

We concur: 

# pi Pickering

26