                                                    131 Nev., Advance Opinion
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                 JENNIFER L.,                                          No. 63176
                 Petitioner,
                 vs.
                 THE EIGHTH JUDICIAL DISTRICT
                 COURT OF THE STATE OF NEVADA,
                 IN AND FOR THE COUNTY OF                                    FILED
                 CLARK; AND THE HONORABLE
                                                                              JUN 0 4 2015
                 FRANK P. SULLIVAN, DISTRICT
                                                                                   K. LINclENAN
                 JUDGE,                                                  IL. (VC
                 Respondents,                                                             LERK
                    and
                 THE STATE OF NEVADA; AND R.L.,
                 Real Parties in Interest.



                             Original petition for a writ of mandamus seeking an order
                 directing the juvenile division of the district court to dismiss the
                 underlying neglect petition sustained against petitioner.
                             Petition denied.

                 David M. Schieck, Special Public Defender, and Abira Grigsby, Deputy
                 Special Public Defender, Clark County,
                 for Petitioner.

                 Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                 District Attorney, and Jennifer I. Kuhlman, Chief Deputy District
                 Attorney, Clark County,
                 for Real Party in Interest State of Nevada.

                 Gordon Silver and Paola M. Armeni and Puneet K. Garg, Las Vegas,
                 for Real Party in Interest R.L.




                 BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ.
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                                                 OPINION
                By the Court, DOUGLAS, J.:
                            Petitioner Jennifer L. seeks a writ of mandamus compelling
                the juvenile division of the district court to dismiss a neglect petition and
                finding of neglect entered against her. We take this opportunity to
                consider whether a parent may be held responsible for neglecting a child
                when a legal guardianship is in place over the child. 1 We conclude that
                even while a child is under an NRS Chapter 159 guardianship, the child's
                parents have a statutory duty to continue to care for the child, and
                parental responsibility for neglect may coincide with the guardianship.
                                                  FACTS
                            Jennifer is civilly committed and resides in Wisconsin under a
                doctor's care. She has been diagnosed with schizoaffective disorder. A
                court order requires that Jennifer take her prescribed medication and see
                a caseworker.
                            Real party in interest R.L. is Jennifer's daughter. R.L. was
                residing in Nevada with her father, David L., and his wife, Evelyn, at the
                time of David's death in 2009. Evelyn cared for R.L. for a short time after
                David's death and was appointed R.L.'s guardian in December 2009.
                However, in May 2010, Evelyn terminated her guardianship and Evelyn's
                neighbor, Marjorie F., became R.L.'s legal g-uardian. 2 Thereafter, Marjorie


                      "We decline to consider Jennifer's other contentions because we find
                they lack merit.

                      2 Marjorie   and Evelyn were appointed as guardians under NRS
                Chapter 159.


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                moved to California and left R.L. under the care of Brenda D. Although
                school documents identified Brenda as R.L.'s guardian, Brenda's
                guardianship was never legitimately established pursuant to NRS
                Chapter 159. 3
                            While R.L. was residing with Brenda, she accused Brenda of
                battering her, encouraging her to sell marijuana, threatening to kill her if
                she called Child Protective Services, and spending her social security
                checks without providing for her basic needs. After R.L. resided with
                Brenda for three years, the Department of Family Services (DFS) removed
                R.L. The allegations against Brenda were unsubstantiated, but Brenda no
                longer wanted R.L. living in her home.
                            Subsequently, the State filed an abuse and neglect petition
                naming R.L. as a minor in need of protection pursuant to NRS Chapter
                432B and asking the court to declare R.L. a ward of the court. The
                petition identified Jennifer and Marjorie as R.L.'s mother and legal
                guardian, respectively, and alleged that Jennifer's mental health issues
                adversely affected her ability to care for R.L. Marjorie was eventually
                removed from the petition, leaving Jennifer as the sole responsible party.
                            Jennifer entered a denial in response to the petition. She also
                filed a motion to dismiss the petition, arguing that no material facts were
                at issue because she had neither legal nor physical custody of R.L. and
                therefore could not be responsible for neglect.




                      3 Marjorie
                               thought she completed the proper paperwork to transfer
                temporary guardianship of R.L. to Brenda, but her actions were not legally
                recognized and Marjorie's guardianship was never terminated.


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                                    On October 31, 2012, an order of reasonable efforts was issued
                       by the hearing master. The hearing master found that DFS made
                       reasonable efforts pursuant to NRS Chapter 432B to prevent removal,
                       including discussion with Jennifer about placing R.L. in her home. The
                       hearing master further found that allowing R.L. to reside with Jennifer
                       was contradictory to R.L.'s welfare.
                                    On February 20, 2013, the hearing master issued a decision
                       sustaining the allegations in the abuse and neglect petition and finding
                       that Jennifer's anxiety and depression affected her ability to provide care
                       for R.L. Among other findings, the hearing master found specifically that
                       (1) Jennifer was receiving intensive in-home care; (2) Jennifer had a co-
                       occurring diagnosis of schizoaffective disorder with delusions and alcohol
                       dependence; (3) Jennifer had severe memory impairment, for which she
                       was required by court order to take medication; and (4) when R.L. last
                       visited Jennifer, Rt. took on the parent role. The hearing master found
                       that it was in R.L.'s best interest to be adjudicated a child in need of
                       protection pursuant to NRS 432B.330 and recommended that R.L. remain
                       in the custody and control of DFS. The juvenile division of the district
                       court adopted the hearing master's recommendation, finding Jennifer
                       responsible for neglect because her mental condition prevented her from
                       providing care for R.L. Jennifer's request to stay the proceedings pending
                       a writ petition to this court was denied by the juvenile division of the
                       district court.
                                                       DISCUSSION
                                    "A writ of mandamus is available to compel the performance of
                       an act that the law requires .. . or to control an arbitrary or capricious
                       exercise of discretion."   Cheung v. Eighth Judicial Dist. Court, 121 Nev.
                       867, 868-69, 124 P.3d 550, 552 (2005). We exercise our discretion to
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                 consider a writ petition "when there is no plain, speedy and adequate
                 remedy in the ordinary course of law or there are either urgent
                 circumstances or important legal issues that need clarification in order to
                 promote judicial economy and administration." Id. at 869, 124 P.3d at 552
                 (internal quotation omitted).
                                 Jennifer cannot substantively appeal from the juvenile
                 division of the district court's abuse and neglect determination. See NRAP
                 3A(b)(7) (limiting appeals to orders finally establishing or altering child
                 custody when proceedings do not arise from juvenile court); In re A.B., 128
                 Nev., Adv. Op. 70, 291 P.3d 122, 126 (2012) (noting that the lower court's
                 order arose from a juvenile proceeding and therefore was not substantively
                 appealable under NRAP 3A). Moreover, this petition raises the important
                 legal question of whether a parent may be responsible for abuse or neglect
                 when parental rights have not been relinquished and a guardianship over
                 the child pursuant to NRS Chapter 159 is in place. Thus, we exercise our
                 discretion to consider the petition, reviewing the legal question presented
                 de novo.       See Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124
                 Nev. 193, 198, 179 P.3d 556, 559 (2008) ("Statutory interpretation is a
                 question of law that we review de novo, even in the context of a writ
                 petition.").
                 NRS 159.079
                                 Jennifer argues that she cannot be responsible for neglect
                 because Marjorie was Rt.'s guardian when the petition was filed. The
                 State contends that NRS 159.079, the statute under which Marjorie's
                 guardianship was established, does not relieve a parent from the duty to
                 provide for the care, support, or maintenance of a child. The juvenile court



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                concluded that a guardianship need not be set aside for parental
                responsibility to exist. We agree.
                            "When a statute is clear and unambiguous, we give effect to
                the plain and ordinary meaning of the words and do not resort to the rules
                of construction." Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790
                (2010). NRS 159.079(7) provides: "This section does not relieve a parent or
                other person of any duty required by law to provide for the care, support
                and maintenance of any dependent." Applying the plain and ordinary
                meaning of NRS 159.079(7) here leads us to conclude that, as R.L.'s
                natural mother, Jennifer continues to be responsible for R.L.'s care,
                irrespective of Marjorie's guardianship. Accordingly, Jennifer may be held
                legally responsible for neglect.
                Chapman
                            Despite NRS 159.079's plain meaning, Jennifer contends that
                the instant case is similar to Chapman v. Chapman, 96 Nev. 290, 294, 607
                P.2d 1141, 1144 (1980), where we determined that a parent could not be
                responsible for neglect when the child was left with someone known to be
                providing proper care for the child. According to Jennifer, R.L. had been
                receiving proper care from Brenda, and there is no dispute over that fact.
                On the contrary, that fact is disputed by both the State and the juvenile
                division of the district court; the facts established that Brenda was no
                longer willing or able to care for R.L. Thus, the juvenile court concluded
                that Chapman was inapplicable. We agree that the rule announced in
                Chapman does not apply here.
                            In Chapman, a child's father took custody and allowed his
                brother and sister-in-law, who were appointed as the child's legal
                guardians when the father died, to care for the minor. Id. at 291, 607 P.2d
                at 1142-43. The guardians then petitioned to terminate the mother's
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                     parental rights. Id. at 292, 607 P.2d at 1143. The juvenile division of the
                     district court granted the guardians' petition and found that the mother
                     was an unfit parent and that she abandoned and neglected the child. Id.
                     This court reversed that decision and determined that:
                                 NRS 128.014 defines a neglected child. As we read
                                 the statute, a finding of neglect must be based
                                 upon the treatment of the child while the parent
                                 has custody: neglect is not established when the
                                 child is left by the parent in an environment
                                 where the child is known to be receiving proper
                                 care.

                     Id. at 294, 607 P.2d at 1144 (footnote omitted) (citing In re Adoption of
                     R.R.R., 96 Cal. Rptr. 308 (Ct. App. 1971)).
                                 Here, it may be true that R.L. was initially being properly
                     cared for by her stepmother Evelyn and then by Marjorie. However, those
                     circumstances changed when R.L. was residing with Brenda and reports of
                     alleged abuse and neglect surfaced. Although the reports against Brenda
                     were unsubstantiated, Brenda was no longer willing to provide care for
                     R.L. Moreover, Jennifer was unable to provide care for R.L. due to her
                     mental illness. Thus, at the time of the petition, R.L. was not receiving
                     proper care, making this case distinguishable from Chapman.
                                 Because Chapman is inapposite and NRS 159.079(7) explicitly
                     preserves parental responsibility for a child, even when a guardianship is
                     in place, the juvenile court properly sustained the neglect petition based




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                on Jennifer's inability to provide proper care for R.L. Accordingly, we
                decline to issue a writ of mandamus.




                                                             )fasA
                                                                               J.
                                                   Douglas


                We concur:


                                              J.
                Parraguirre




                Cherry




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