SEP 28 202") 

ELI"TH A. aR 

CLER. SU RT 

• 

BY 

C CEF DEPUTY CLERK 

139 Nev., Advance Opinion 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.; ALEXIS M.; 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 Las Vegas, 

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) 1947A 
OPINION 

By the Court, CADISH, J.: 

In this 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 

its discretion by failing to comply with the pertinent statutory requirements 

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 going forward, 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 
FACTUAL AND PROCEDURAL BACKGROUND 

lnuestigations into the protected 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. The parents then agreed to allow respondent Yalonda F., the twins' 

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 

stay at her home; however, if the parents' drug-use treatment ceased or they 

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 to Yalonda. 

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 CPS observed 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 herself as very strict regarding 

the parents' drug treatment, and CPS confirmed that both parents had been 

participating in drug treatment services. 

SUPREME COURT 

OF 

NEVADA 

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, prompting Antonio to help Yalonda care for them by taking A.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 also fell 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 

Antonio woke up in the morning, he found A.F. face down on the pillow and 

unresponsive. Yalonda unsuccessfully attempted to resuscitate A.F. 

As part of the investigations, CPS documented that D.M.F. 

appeared healthy and showed no obvious signs of abuse or 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 of abuse or neglect related to A.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, no charges were brought. 

However, the CPS investigation also revealed that Alexis and 

Antonio had relapsed with methamphetamine. CPS described that the 

testing, which was done the day after A.F. died, appeared to confirm Alexis's 

statement of a one-time relapse; however, the testing also appeared to show 

that Antonio had used more than one time. When Yalonda learned of the 

relapse, she expressed her plan to seek general legal guardianship over 

D .M. F. 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

4 
CPS reported that Yalonda exhibited adequate caregiver skills 

and met D.M.F.'s basic needs. While CPS found reasonable cause to believe 

that the parents presented a physical risk to D.M.F. because of the drug 

relapse and the incident of co-sleeping with A.F., two specialists ultimately 

deemed D.M.F. safe in Yalonda's care, closed the investigation, and issued 

final approval of Yalonda as caregiver for D.M.F. 

Petition for appointment of guardianship 

About one month after A.F1's death, Yalonda petitioned the 

district court for appointment of guardianship 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 had been 

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 both parents were unable to presently care for D.M.F. because 

they were active drug users. 

Notarized consents from the parents and documentation of the 

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 

'Although the CPS case was officially closed .after Yalonda petitioned 

the court for appointment as legal guardian, the records indicate that the 

investigation was concluded before Yalonda 'sought legal guardianship. The 

initial assessment report concluding that D.M.F. was safe in Yalonda'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. 

SUPREME COURT 

OF 

NEVADA 

(I)) 19,I7A .46g4- 5 
guardianship 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 of ex parte communication 

Six months later, the district court issued an order stating that 

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's petition.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 concerning the communication, including 

the failure to inform the district court of A.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 of a different paternal grandmother, nonparty Jane Morales. 

3Although the district court cited NRS 159.046, that provision applies 

to adult guardianships. Authority to appoint an investigator in minor 

guardianships is set forth in NRS 159A.046. Additionally, NSRG 5, which 

governs appointing an investigator in response to ex parte communications, 

appears to contain a typographical error in cross-referencing NRS 159.146, 

rather than NRS 159A.046. 

SUPREME COURT 

OF 

NEVADA 

101 1947/1 

6 
SUPREME 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 

the investigator's report that Yalonda or the parents had previously co-slept 

with the twins. 

The report provided that Yalonda had informed the investigator 

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. if she needed 

someone to watch him. She stated that both parents 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 of A.F.'s death and 

the ensuing investigation, 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 of A.F.'s passing because, so she thought, the CPS investigation had 

been closed. 

7 

94 7A
SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

Hearing on the ex parte corn munication 

At the hearing to address the ex parte communication 

regarding A.F.'s death, the district court questioned Yalonda's judgment 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 issues regarding Yalonda'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 the court 

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 of A.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 

parents and had back-up care if necessary, and she volunteered to make the 

parents leave her home. She inentioned that Alexis was sober and employed 

at Amazon, which tested for drugs. She also told the court that she did not 

intentionally omit A.F.'s death or the investigation, explaining that 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 court also remarked that Yalonda "had no ill intentions" 

and that she was "overly protective of this one." However, the distri.ct court 

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. independent person 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 of the guardian and termination of the guardianship 

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 of the children, citing three 

incidents in the CPS records that occurred before D.M.F.'s birth. 

The district court then discussed the CPS investigations into 

the parents' drug use and A.F.'s death. Noting that the investigations were 

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 conceal the 

information, but yet, this tragedy happened only 

days prior to the filing of the 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 of the parents, and within a few days, 

one of the twins was deceased due to her choice to 

allow the parents to care for the child because both 

of them 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 

that it was unable to have the oversight necessary.to prevent any contin.ued - 

exposure to the parents. 

Thus, the district court found removal of Yalonda as guardian 

in D.M.F.'s best interests and referred the matter to CPS for further 

investigation. The court reasoned that this was necessary based Upon 

the lack of judgment displayed when the children 

were placed in the care of the paternal 

SUPREME COURT 

OF 

NEVADA 

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 this court, that the parents were found to have 

been under the influence of methamphetamine at 

the time they were in charge of their child who died 

and this fact was concealed from the [c]ourt, [and] 

the need for this family to have oversight by 

Department of Family Services. 

In discussing the referral to CPS, the court stated it "FINDS" 

that even if CPS assessed Yalonda as an appropriate caregiver of D.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 

resources available to them through that process." In the end, however, the 

court simply ordered "that this matter shall be referred to Child Protective 

Services again for further investigation and action as they deem fit." D.M.F. 

appeals. 

DISCUSSION 

Standard of review 

We do not disturb a guardianship determination absent an 

abuse of discretion. Jason S. v. Valley Hosp. Med. Ctr. (In re Guardianship 

of L.S. & H.S.), 120 Nev. 157, 163, 87 P.3d 521, 525 (2004). An abum of 

discretion occurs where the district-court fails to supply appropriate reasOns 

to support the determination, see id., "exceeds the bound.s of law or reason," 

or makes an "arbitrary or capricious" decision, State v. Eric A.L. (In. re Eric 

A.L.), 123 Nev. 26, 33, 153 P.3d 32, 36-37 (2007). And the district court 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). 

SUPREME COURT 

OF 

NEVADA 

(0) I947A 

11 
However, 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 a petition 

D.M.F. contends that even though NSRG 5 gives the district 

court "numerous options" to respond to an ex parte 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 contends that the d.istrict court lacked any power 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

This court recently held, in the context of an 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 of Jones), 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. • 

SUPREME COURT 

OF 

NEVADA 

1947 A

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 if the court determines" one or more of those 

conditions exists. Looking to our prior caselaw and that of other states, we 

held in Jones that while various statutory provisions contemplate the filing 

of a petition for removal of a 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 differently in 

a minor guardianship proceeding and thus conclude that the district court 

has the authority to sua sponte remove a minor's guardian if one or more of 

the conditions set forth in NRS 1.59A.185 is satisfied and all other applicable 

requirements are met.5

The district court denied D.M.F. due process of law when it removed D.M.F.'s 

guardian and terminated the guardianship after the NSRG 5 hearing 

D.M.F. argues that the district court violated his due process 

rights and abused its discretion, as he and other interested persons did not 

5We 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 to such communications, the court may take 

numerous steps, including taking any action supported by the record, 

notifying any appropriate government agency, appointing an investigatOr 

(as it is authorized to do "at any time" under NRS 159A.046(1)), and setting 

a hearing. NSRG 5(B). It would be anomalous to allow the court to receive 

and follow up on such comm.unications if the court were powerless to 

thereafter act to protect the welfare of the protected person. 

SUPREME COURT 

OF 

NEVADA 

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 

considering removal and termination, particularly where "no one requested 

that Yalonda be removed as guardian or the 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, 123 Nev. 181, 183, 160 P.3d 878, 879 (2007); see alsb NR.S 

159A.1855(1) (requiring the court to issue and petitioner 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 Constitution provide that no person shall be 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'. This court has held when a court sua sponte removes a 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 of Fontana, 818 F.2d 1411, 1414, 1417-18 (9th Cir. 1987) (recognizing.

a child's "interest in the continued companionship" of a parent in the context 

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 

SUPREME COURT 

OF 

NEVADA 

14 

((J) 1947A 
upbringing 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 of his or her children' is an interest far more 

precious than any property right." (quoting Lassiter v. Dep't of Soc. Servs. 

of Durham 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 guardians of minor 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 to the removal of his guardian and termination of the guardianship.6

"The fundamental requisite of due process is the opportunity to 

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 

15 
reality 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 of the 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, 

sufficiently put a protected person on notice of the potential rernoval of their 

guardian despite no formal petition being filed), with Micone 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 

address the paternal grandparents). Generally, notice must be given before 

a party's substantive rights are affected. See Wiese v. Granata, 110 Nev. 

1410, 1412, 887 P.2d 744, 745-46 (1994) (concluding notice of a hearing that 

failed to mention or even hint at child custody as a subject of the hearing 

violated the appellant's due process rights when custody was changed as a 

result of the 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) 

(requiring a citation to issue regarding a petition for removal of a guardian); 

NRS 159A.1905(4) (providing the same as to a petition for termination of a 

SUPREME COURT 

OF 

NEVADA 

10) I ,47A <45SZfr, 

16 
guardianship). Had the district court issued such citations, D.M.F. and all 

other interested parties, namely Yalonda and D.M.F.'s parents, weuld have 

been apprised of the possibility of removal. of Yalonda as D.M.F.'s guardian 

and termination of the guardianship. However, no such citations were 

issued: thus we turn to the other actions of the district court to d.etermine 

whether sufficient notice was provided. 

We conclude that the notice provided by the district court was 

ina.deqUate and did 41.ot afford D.M.F. dile•process. of law. First•none of the 

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 5 order set a hearing on the issues raised by 

the ex parte communication, which were identified as misrepresentations 

made to the district court regarding D.M.F. and the ad.equacy of the petition 

to appoint a guardian, given Yalonda's failure to inform of A.F.'s death and 

CPS's investigation. Nothing within the order indicated that the 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 regarding the. 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. 

Although the order raised concerns regarding the guardian's suitability and 

the protected minor's welfare, it did not indicate the potential for the drastic 

step of removal and terminatio.n. such as directions 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 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

17 
could 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 of the pendency of the action and 

afford them an opportunity to present their objections." Mullane, 339.U.S. 

at 314. 

Furthermore, even if D.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 of law. In the context of child 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 hearing requires that the change in custody be supported by 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 of the 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 hearing to extend the temporary prOtective 

SUPREME COURT 

OF 

NEVADA 

(0) 194 7A 

18 
order upon the advice of counsel, and the district court subsequently 

entered an order granting the mother physical custody of the 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 granting the 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 regarding Yalonda's suitability or D.M.F.'s 

health and welfare, thus giving no indication of the 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 

19 
evidence 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 of the 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 

of tlue 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 of termination during the 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 

SUPREME COURT 

OF 

NEVADA 

101 047A 

20 
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 terminating D.M.F.'s guardianship, but did not abuse its discretion in 

referring the 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 Yalonda as guardian 

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 

determines that one or rnore of several disqualifying factors exist, in.clUdin.g 

the guardian's negligence in performing their 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. 

"Notwithstanding any other provision of law, . . . the court shall n,ot remove 

the guardian or appoint another person as guardian unless the court finds 

that removal of the griardian or appointment of another person as guardian 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A (07fi:.• 21 
is in the best interests of the protected 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 of the protected 

rninor does not by itself provide 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 duties or the protected minor's welfare, removal initiated under NSRG 

5 still needs to satisfy one of the conditions under NRS 159A.185(1) and 

serve the best interests of the 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, simply concluding that concerns remained 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 also found that Yalonda had concealed "the 

SUPREME COURT 

OF 

NEVADA 

()) 1947A .1W -to 

22 
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's purported lying and concealment seems to 

stem from its misunderstanding that the time frame of the pertinent events 

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 

for D.M.F. and A.F. for three month.s without incident. The court also seems 

to'disagree with the conclusions of the police and CPS that A:F.'s death was 

not the result of abuse or neglect but rather a tragic accident,. While the 

court's initial concerns are understandable., the record lacks any evidentiary 

support for a different conclusion. 

As the dist.rict court failed to• apply t he mandatory best-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 removing Yalonda as guardian. 

Termination of the guardianship 

D.M.F. contends that the district court abused its discretion in 

terminating his guardianship because it did not apply any of the provisions 

concerning the termination of a guardianship .and. failed to make explicit 

findings explaining how terminatin.g the guardianship was in D.M.F.'s best 

interests. He also argues that the district court failed to. follow NSRG. 1.0 

because it removed a sole guardian from a child who still needed a guardian 

SUPREME COURT 

OF 

NEVADA 

(0) I947A 

'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" regarding three 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 

would improve or maintain his health and welfare, given that it would place 

him back in the care and custody of those 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 its best-interests analysis looked 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 failing to make specific, supportable findings regarding the 

NSRG 10 factors before 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 

OF 

NEVADA 

(0) 19,17A 
SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

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

not possess the authority to direct CPS to open a case under NRS Chapter 

432B regarding D.M.F.'s placement and make the•

 placement through court 

order. But this did not occur here. While the district court did express its 

disagreement with CPS's actions and conclusions, finding that if CPS felt 

placement with Yalonda was appropriate then a case should be opened 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 of discretion. 

CONCLUSION 

If it receives information causing concern regarding the 

propriety of a minor's guardianship, a district court may sua 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 of removal 

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, making the required findings to support those decisions. 

Here, the.district court did not give notice to D.M.F., Yalonda, 

or D.M.F.'s parents regarding the prospect, of removal 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