Fll ED 

SEP 2 4 2015 

TWISIE K. LINDEMAN 

Cl 

BY 1 

Y-C.LERK 

131 Nev., Advance Opinion 77 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

JOANNA T., 

Petitioner, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

CLARK; AND THE HONORABLE 

FRANK P. SULLIVAN, DISTRICT 

JUDGE, 

Respondents, 

and 

THE STATE OF NEVADA, 

Real Party in Interest. 

No. 65796 

Original petition for a writ of mandamus or prohibition 

requesting an order directing the juvenile court to dismiss an abuse-andneglect petition. 

Petition denied. 

David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy 

Special Public Defender, Clark County, 

for Petitioner. 

Steven B. Wolfson, District Attorney, and Felicia Quinlan, Deputy District 

Attorney, Clark County, 

for Real Party in Interest. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, PARRAGUIRRE, J.: 

This petition for a writ of mandamus or prohibition presents a 

novel issue regarding whether NRCP 4(i)'s requirement that a summons 

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be served within 120 days applies in NRS Chapter 432B proceedings. 

Because we conclude that it does not and that dismissal of the underlying 

abuse-and-neglect petition is not warranted, we deny the petition. 

FACTS AND PROCEDURAL HISTORY 

Petitioner Joanna T.'s daughter was removed from the care of 

Joanna's mother, Sheila T., in December 2012 while Joanna was in jail. 

An abuse-and-neglect petition was filed alleging that the child was in need 

of protection and naming both Joanna and Sheila, but no summons was 

issued as to Joanna and she did not appear at the adjudicatory hearing. 

The abuse-and-neglect petition was orally sustained by a domestic master 

and both Joanna and Sheila were provided with case plans. Sheila 

complied with her case plan, and the child was returned to her custody in 

June 2013. In the order returning the child to Sheila, Joanna was allowed 

supervised visitation with the child until she complied with her case plan 

or until further order of the court. 

Then, in March 2014, Joanna filed a motion to set aside the 

master's oral recommendation to sustain the abuse-and-neglect petition 

because Joanna had never received a summons notifying her of the 

adjudicatory hearing. The juvenile court granted the motion, directed real 

party in interest the State of Nevada to issue a summons, and set a new 

adjudicatory hearing. A summons was thereafter served on Joanna on 

April 24, 2014, 486 days after the abuse-and-neglect petition was filed. 

Joanna moved to dismiss the petition asserting that the summons was 

untimely under NRCP 4(i) because it was issued more than 120 days after 

the abuse-and-neglect petition was filed. The juvenile court denied the 

motion. 

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Joanna then filed with this court a petition for a writ of 

mandamus or prohibition challenging the juvenile court's authority to 

adjudicate the abuse-and-neglect petition as to her. She also filed an 

emergency motion to stay the adjudicatory hearing, which this court 

denied, thereby allowing the hearing to proceed. Thereafter, the juvenile 

court held the hearing and considered whether the child was in need of 

protection under NRS 432B.530(5) at the time of the child's removal. 

Joanna did not appear personally at the hearing, apparently because she 

had forgotten about it, but her counsel was present. The juvenile court 

found that the child was in need of protection from Joanna because 

Joanna's extensive history of untreated mental health issues, substance 

abuse, and incarceration at the time of the child's removal adversely 

affected her ability to care for the child. Thus, the juvenile court sustained 

the abuse-and-neglect petition against Joanna. We conclude that 

extraordinary writ relief is not warranted, but we take this opportunity to 

clarify that NRCP 4(i)'s 120-day summons requirement does not apply in 

NRS Chapter 432B proceedings. 

DISCUSSION 

NRCP 4(i) requires that in a civil action the summons and 

complaint be served on the defendant within 120 days of the filing of the 

complaint. If no such service is achieved and there is no showing of good 

cause for the failure to serve the summons, then the court shall dismiss 

the complaint without prejudice. NRCP 4(i). This rule does not apply, 

however, in a proceeding that is governed by a specific statute containing 

procedures and practices that are inconsistent or in conflict with the rule. 

NRCP 81(a). 

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NRCP 4(i)'s 120-day requirement is inconsistent with the 

expedited nature of NRS 432B proceedings. NRS Chapter 432B contains 

its own summons provision, NRS 432B.520(1), which requires the issuance 

of a summons after an abuse-and-neglect petition has been filed. But 

unlike NRCP 4(i), the statute does not specify the time frame for issuing 

the summons. The summons contemplated by NRS 432B.520 serves 

several purposes: it puts the person with custody or control of the child on 

notice that the petition has been filed and notifies that person of his or her 

right to counsel, see NRS 432B.520(3) (providing that a copy of the petition 

must be attached to the summons), and it requires that person to appear 

personally and bring the child before the court, NRS 432B.520(1). 

Accordingly, the summons must set forth the time and place for the 

adjudicatory hearing on the abuse-and-neglect petition. NRS 432B.520. 

The adjudicatory hearing on the petition must be held within 30 days of 

the filing of the petition, unless there is good cause to continue the 

hearing. NRS 4321B.530(1). If we applied NRCP 4(i) in NRS Chapter 

432B proceedings, then a summons could be issued up to 120 days after 

the filing of the abuse-and-neglect petition, well after the time that the 

court must hold the adjudicatory hearing. Allowing the summons to be 

served after the adjudicatory hearing would be contrary to NRS 432B.520 

and defeat one of the key reasons for a summons: to provide a party with 

notice of the action. See 0,-me v. Eighth Judicial Dist. Court, 105 Nev. 

712, 715, 782 P.2d 1325, 1327 (1989) ("The primary purpose underlying 

the rules regulating service of process is to insure that individuals are 

provided actual notice of suit and a reasonable opportunity to defend."); 

Berry v. Equitable Gold Mining Co., 29 Nev. 451, 456, 91 P. 537, 538 

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(1907) ("The object and purpose of the summons is to bring defendants 

into court ...."). 

Although another purpose of NRCP 4(i)'s 120-day requirement 

is to ensure that cases do not linger in the system unpursued, see Scrirrter 

v. Eighth Judicial Dist. Court, 116 Nev. 507, 513, 998 P.2d 1190, 1194 

(2000) (explaining that NRCP 4(i) "was promulgated to encourage diligent 

prosecution of complaints once they are filed"), NRS Chapter 432B already 

ensures that abuse-and-neglect proceedings are diligently prosecuted. For 

instance, the court must hold a hearing within 72 hours of the child's 

removal from a home to determine whether the child should remain in 

protective custody, NRS 432B.470(1), and an abuse-and-neglect petition 

must be filed within 10 days of the protective custody hearing, NRS 

432B.490(1)(b). The court then must hold an adjudicatory hearing on the 

abuse-and-neglect petition within 30 days, NRS 432B.530(1), and annual 

hearings thereafter regarding the permanent placement of the child, NRS 

432B.590(1)(a). Given the expedited nature of the proceedings, NRCP 

4(i)'s 120-day requirement is not necessary to ensure that the proceedings 

are diligently prosecuted. 

And finally, the remedy for failure to serve a summons within 

120 days under NRCP 4(i)—automatic dismissal without prejudice—

conflicts with the purpose of NRS Chapter 432B proceedings. The purpose 

of those proceedings is to protect children who have been abandoned or 

abused, or otherwise need the State's protection. See NRS 432B.330 

(identifying circumstances under which a child is or may be in need of 

protection). Dismissal in the NRS Chapter 432B context could be highly 

prejudicial because the child would be returned to a potentially unsafe 

environment and the State would be unable to protect the child until it 

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could once again establish reasonable causeS to believe that the child is 

exposed to an immediate risk of injury, abuse, or neglect warranting 

removal from the home. NRS 432B.390(1). Thus, a dismissal under 

NRCP 4(i) would be contrary to the purpose of NRS Chapter 432B—

protecting children. Accordingly, we conclude that NRCP 4(i)'s 120-day 

requirement is inconsistent with the procedures described in NRS Chapter 

432B, and therefore, is inapplicable.' 

Having concluded that NRS Chapter 432B contemplates 

expedited proceedings, we now must decide whether Joanna met her 

burden of establishing that this court's extraordinary intervention is 

warranted to require the district court to dismiss the abuse-and-neglect 

petition because of the State's extensive delay in serving the summons on 

her. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 

844 (2004) (explaining that the party seeking writ relief has the burden of 

demonstrating that extraordinary relief is warranted). This matter did 

not linger unnoticed after the abuse-and-neglect petition was filed. In 

fact, by the time Joanna moved to dismiss this case, Sheila had completed 

her case plan and the child had been returned to her care. And despite 

having had knowledge of this matter, Joanna failed to promptly raise the 

summons issue until more than a year after the abuse-and-neglect petition 

had been filed. Thereafter, the juvenile court allowed the State to cure the 

procedural error by serving a summons on Joanna for a new adjudicatory 

hearing and subsequently held an adjudicatory hearing of which Joanna 

'Because NRS Chapter 432B proceedings are civil in nature, the 

NRCP generally apply to those proceedings unless a specific rule of 

procedure conflicts with a provision of NRS Chapter 432B, like NRCP 4(i) 

does, in which case that procedural rule does not apply. See NRCP 81(a). 

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had proper notice. Nothing in NRS Chapter 432B prohibited the court 

from correcting the procedural deficiency and modifying its orders as it 

deemed was in the child's best interest. See NRS 432B.570(2) (allowing 

the court to "revoke or modify any order as it determines is in the best 

interest of the child"). 

Indeed, the record established that the child's best interest 

would not be served by her return to Joanna's care. Joanna had not 

remedied the issues that led to the child's placement in protective custody. 

Only a few months before the second adjudicatory hearing, Joanna 

admitted to having recently used methamphetamine. She had also 

previously admitted that after being discharged from a mental health 

facility, she chose not to follow her outpatient aftercare treatment plan. 

And during one of her visitations with the child, she attempted to use a 

glue stick on the child's eyes and face. Thus, despite the State's failure to 

issue Joanna a summons before the original adjudicatory hearing, 

dismissal of the abuse-and-neglect petition would not have been in the 

child's best interest because the child would have been returned to 

Joanna's care even though Joanna had failed to alleviate the risk to the 

child. 

While we do not condone the State's failure to timely serve a 

summons on Joanna before the original adjudicatory hearing, the juvenile 

court did not exceed its jurisdiction or act arbitrarily or capriciously by 

denying Joanna's motion to dismiss. See NRS 34.160; NRS 34.320 

(providing that a writ of prohibition is available to arrest the proceedings 

of a district court exercising its judicial functions in excess of its 

jurisdiction); Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 

Nev. 193, 197, 179 P.3d 556, 558 (2008) (explaining that a writ of 

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Parraguirre 

J. 

Saitta 

, C.J. 

Hardesty Douglas 

mandamus is available to compel the performance of an act that the law 

requires as a duty resulting from an office, trust, or station, or to control 

an arbitrary or capricious exercise of discretion). Instead, it appropriately 

provided the State with an opportunity to cure the procedural defect in the 

interest of protecting the child. Accordingly, we deny the petition for a 

writ of mandamus or prohibition. 2 

We concur: 

2Additionally, we conclude that Joanna's argument that the juvenile 

court lacked jurisdiction to adjudicate the petition as to Joanna once the 

child had been returned to Sheila's care does not warrant extraordinary 

relief. NRS 34.160; NRS 34.320; Pan, 120 Nev. at 228, 88 P.3d at 844. 

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