                                                     131 Nev., Advance Opinion 75
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  IN THE MATTER OF THE                                  No, 64694
                  GUARDIANSHIP OF N.M., A MINOR
                  CHILD.

                  NAYELI M.G.,
                                                                                FILED
                  Appellant,                                                     SEP 2 4 2015
                  vs.                                                           TRACJiE K. LINDEMAI•

                  GRAVIEL G.,
                                                                           BY
                  Respondent.                                                         60 1,erY CLERK




                              Petition for en banc reconsideration of a panel order affirming
                  a district court order granting letters of guardianship over a minor child.
                  Sixth Judicial District Court, Humboldt County; Richard Wagner, Judge.
                              Petition for reconsideration granted; affirmed.


                  Richard F. Cornell, Reno,
                  for Appellant.

                  Dolan Law, LLC, and Massey K. Mayo Case, Winnemucca,
                  for Respondent.




                  BEFORE THE COURT EN BANC.

                                                   OPINION

                  By the Court, SAITTA, J.:
                              NRS 125A.335 establishes a district court's temporary
                  emergency jurisdiction to protect a child in Nevada from mistreatment or


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                     abuse.' We must decide whether a district court exercising temporary
                     emergency jurisdiction may appoint a general guardian pursuant to NRS
                     125A.335(2) when (1) no court in another jurisdiction has entered an
                     applicable custody order or commenced custody proceedings, and
                     (2) Nevada has become the child's home state. We hold that a district
                     court may appoint a general guardian in the appropriate case.
                     Furthermore, we hold that the district court here did not abuse its
                     discretion in appointing a guardian. Because substantial evidence
                     supports the court's decision, we affirm.
                                     FACTUAL AND PROCEDURAL HISTORY
                                 Appellant, a Mexican citizen, gave birth to N.M. in California
                     in 2007. Later that year, appellant and N.M. moved to Mexico. In 2008,
                     appellant left N.M. in the care of N.M.'s maternal grandparents, who were
                     also in Mexico. N.M.'s grandmother and two agents from Mexico's
                     National System for Integral Family Development (DIF) executed a
                     document stating that the grandparents had custody of N.M. (the 2008
                     DIF document).
                                 In 2009 or 2010, N.M.'s maternal aunt (the Aunt) and
                     respondent, her then-fiancé or boyfriend, began caring for N.M.
                     Respondent is a United States citizen. In August 2011, appellant signed a
                     document purportedly giving the Aunt and respondent custody of N.M.



                            'This case was originally decided in an unpublished order by a
                     three-judge panel of this court. Because the issues presented are of
                     significance to the law and practice of the state, we now publish this as an
                     opinion of the en banc court. We limit our holding to the matters set forth
                     herein and deny en banc reconsideration of all other issues raised in this
                     appeal.

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                            In September 2012, respondent moved N.M. to Nevada after
                his relationship with the Aunt ended. Appellant's half-sister then went to
                respondent's home at night and attempted to remove N.M. In response,
                respondent filed a verified emergency petition in November 2012 for
                appointment as N.M.'s temporary general guardian. The district court
                appointed respondent as N.M.'s temporary general guardian.
                            In March 2013, respondent filed a petition to be appointed
                N.M.'s general guardian. After a two-day evidentiary hearing, at which
                multiple witnesses testified about the events described above and
                respondent's fitness to be N.M.'s guardian, the district court found that
                appellant had abandoned N.M. The district court appointed respondent as
                N.M.'s general guardian. After appellant appealed, a panel of this court
                affirmed the award of custody to respondent. After the panel denied
                appellant's petition for rehearing, she filed the present petition for en banc
                reconsideration.
                                               DISCUSSION
                Standard of review
                            We review de novo issues of subject matter jurisdiction.
                Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009). We further
                review a district court's factual findings for an abuse of discretion and will
                uphold them if they are supported by substantial evidence. Id. at 668, 221
                P.3d at 704. Substantial evidence is "evidence that a reasonable person
                may accept as adequate to sustain a judgment." Ellis v. Carucci, 123 Nev.
                145, 149, 161 P.3d 239, 242 (2007).
                The district court had subject matter jurisdiction to appoint respondent as
                N.M.'s general guardian
                            Appellant argues that the district court did not have
                jurisdiction to appoint respondent as N.M.'s general guardian because
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                   N.M. had not lived in Nevada for six months at the time respondent filed
                   his first petition. Thus, we first consider whether the district court
                   properly exercised temporary emergency jurisdiction before addressing
                   whether it had jurisdiction to enter a general guardianship order in this
                   case.
                            The district court properly exercised temporary emergency
                           jurisdiction
                                A district court may exercise temporary emergency
                   jurisdiction to protect a child who is physically present in Nevada if "the
                   child has been abandoned or it is necessary in an emergency to protect the
                   child because the child, or a sibling or parent of the child, is subjected to or
                   threatened with mistreatment or abuse." NRS 125A.335(1).
                                Here, the parties do not dispute that N.M. was physically
                   present in Nevada when the district court granted respondent's petition
                   for a temporary guardianship. Although appellant argues that the district
                   court lacked temporary emergency jurisdiction because there was no
                   evidence that N.M. was abused, mistreated, or neglected before moving to
                   Nevada, this argument is without merit because N.M. faced a risk of harm
                   while in Nevada. Since appellant's half-sister came to respondent's home
                   at night and attempted to remove N.M., there was evidence to support the
                   district court's finding that N.M. risked mistreatment. Therefore, we
                   conclude that the district court did not abuse its discretion in exercising
                   its temporary emergency jurisdiction.
                           The district court had jurisdiction to appoint respondent as N.M.'s
                           general guardian
                                 NRS 125A.335(2), which codifies section 204 of the Uniform
                   Child Custody Jurisdiction and Enforcement Act (UCCJEA), sets out three
                   requirements for a district court that is exercising temporary emergency

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                 jurisdiction to enter a final order: (1) no court in another jurisdiction has
                 entered an applicable custody order or commenced custody proceedings,
                 (2) the district court's order provides that it is to be a final determination,
                 and (3) Nevada has become the child's home state.         See also UCCJEA §
                 204 (1997), 9 U.L.A. 676-77 (1999).
                             The third requirement sets forth a time-of-residency-in-
                 Nevada requirement and does not provide that a district court exercising
                 temporary emergency jurisdiction can make Nevada the child's home state
                 by issuing an order. See UCCJEA § 204 cmt., 9 U.L.A. 677 (stating that
                 "an emergency custody determination made under this section becomes a
                 final determination, if it so provides, when the State that issues the order
                 becomes the home State of the child" (emphasis added)); see also NRS
                 125A.085(1) (setting out the time requirement for home state status). Our
                 interpretation of this provision of NRS 125A.335(2) is consistent with
                 other jurisdictions' interpretations of their statutes codifying UCCJEA §
                 204.   See, e.g., Hensley v. Kanizai, 143 So. 3d 186, 195 (Ala. Civ. App.
                 2013) (observing that a custody determination made by a trial court
                 exercising temporary emergency jurisdiction can become final "only if the
                 state becomes the home state of the child"); In re E.D., 812 N.W.2d 712,
                 721 (Iowa Ct. App. 2012) (holding that a trial court exercising temporary
                 emergency jurisdiction cannot issue an order making Iowa a child's home
                 state because such an order would conflict with the UCCJEA's definition
                 of home state); In re J.C.B., 209 S.W.3d 821, 823 (Tex. App. 2006)
                 (observing that Texas must become a child's home state before a custody
                 determination made by a trial court exercising temporary emergency
                 jurisdiction can become final). Thus, in the absence of custody proceedings
                 or a controlling custody order in another state, a Nevada court exercising

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                temporary emergency jurisdiction may make a custody determination that
                becomes final once the child lives in Nevada for enough time to make
                Nevada the child's home state. 2
                            A child's home state is "ftlhe state in which [the] child lived
                with a parent or a person acting as a parent for at least 6 consecutive
                months, including any temporary absence from the state, immediately
                before the commencement of a child custody proceeding." NRS
                125A.085(1). A child custody proceeding is one that relates to the present
                custody dispute and not to any prior dispute between the parties.
                Friedman v. Eighth Judicial Dist. Court, 127 Nev., Adv. Op. 75, 264 P.3d
                1161, 1166 (2011). A proceeding commences when its first pleading is
                filed. NRS 125A.065.
                            Here, the present custody proceeding commenced over six
                months after N.M. began residing in Nevada. Thus, Nevada became
                N.M.'s home state by the time respondent petitioned to be appointed as
                her general guardian. See NRS 125A.085. In addition, the record does not
                show that a child custody order had been entered or that a child custody
                proceeding had been initiated in another jurisdiction before the district

                      2 The cases that appellant relies on to limit the district court's
                jurisdiction under NRS 125A.335 are inapposite because, unlike the
                present case, they involve existing child custody orders. See, e.g., McDow
                v. McDow, 908 P.2d 1049, 1051 (Alaska 1996) (limiting a court's temporary
                emergency jurisdiction when a child is subject to an existing custody order
                from another jurisdiction); In re Appeal in Pima Cnty. Juvenile Action No.
                J-78632, 711 P.2d 1200, 1206-07 (Ariz. Ct. App. 1985) (same), approved in
                part and vacated in part on other grounds, 712 P.2d 431, 435 (Ariz. 1986);
                Perez v. Tanner, 965 S.W.2d 90, 94 (Ark. 1998) (same); In re Joseph D., 23
                Cal. Rptr. 2d 574, 582 (Ct. App. 1993) (same), superseded by statute as
                stated in In re C.T., 121 Cal. Rptr. 2d 897, 904 n.4 (Ct. App. 2002); State ex
                rel. D.S.K., 792 P.2d 118, 127-28 (Utah Ct. App. 1990) (same).

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                   court appointed respondent as N.M.'s general guardian. Therefore, we
                   conclude that the district court was authorized to enter an order granting
                   a general guardianship.
                   The district court did not abuse its discretion in granting a general
                   guardianship to respondent
                               Appellant argues that the district court abused its discretion
                   by awarding guardianship of N.M. to respondent because there was not
                   sufficient evidence to overcome• the parental preference presumption. 3
                   This presumption provides that "[t]he parents of a minor, or either parent,
                   if qualified and suitable, are preferred over all others for appointment as
                   guardian for the minor" NRS 159.061(1). "If, however, neither parent is
                   qualified and suitable, or if both parents are, the statute requires the court
                   to move to the second step, determination of who is most suitable." In re
                   Guardianship of D.R.G., 119 Nev. 32, 38, 62 P.3d 1127, 1130-31 (2003).
                               When determining whether a parent is qualified and suitable,
                   the district court must give "the child's basic needs [and] welfare" priority
                   over the parent's interest in custody. Id. at 38, 62 P.3d at 1131. Thus, the
                   parental preference presumption can be "overcome either by a showing
                   that the parent is unfit or other extraordinary circumstances."        Litz v.
                   Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995).
                               One extraordinary circumstance that can overcome the
                   parental preference presumption is the "abandonment or persistent
                   neglect of the child by the parent." In re D.R.G., 119 Nev. at 38, 62 P.3d

                         3 Appellant  does not argue on appeal that the district court abused
                   its discretion by determining that N.M.'s best interests would be served by
                   appointing respondent as N.M.'s general guardian. Therefore, appellant
                   waives this issue on appeal. See Powell v. Liberty Mist. Fire Ins. Co., 127
                   Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011).

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                 at 1131 (quoting Locklin v. Duka, 112 Nev. 1489, 1496, 929 P.2d 930, 934
                 (1996)). "Abandonment of a child' means any conduct of one or both
                 parents of a child which evinces a settled purpose on the part of one or
                 both parents to forego all parental custody and relinquish all claims to the
                 child." NRS 128.012(1).
                               "Intent is the decisive factor in abandonment and may be
                 shown by the facts and circumstances."        In re Parental Rights as to
                 Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996), superseded by
                 statute on other grounds as stated in In re Termination of Parental Rights
                 as to N.J., 116 Nev. 790, 798-99, 8 P.3d 126, 132 (2000). "If a parent or
                 parents of a child leave the child in the care and custody of another
                 without provision for the child's support and without communication for a
                 period of 6 months, . . . the parent or parents are presumed to have
                 intended to abandon the child." NRS 128.012(2). To overcome this
                 presumption, the parent must demonstrate that he or she did not abandon
                 the child See In re N.J., 116 Nev. at 803, 8 P.3d at 134.
                               In finding that appellant abandoned N.M., the district court
                 relied on a Mexican attorney's letter purportedly opining that the 2008
                 DIF document stated that appellant abandoned N.M. in 2008. 4 The
                 district court also considered a 2011 document signed by appellant that
                 purportedly granted respondent and the Aunt custody over N.M. Finally,
                 respondent testified that appellant expressed a desire to relinquish


                       4 The only record of the letter's contents is the oral translation that
                 the court interpreters provided. Because the actual letter was omitted
                 from the appellate record, we must presume that it supports the district
                 court's findings about its content. See Cuzze v. Univ. & Cmty. Coll. Sys. of
                 Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007).

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                   custody of N.M. when she executed the 2011 document that purportedly
                   gave custody to respondent and the Aunt. Thus, there was evidence to
                   support the district court's finding that appellant intended to abandon
                   N.M.
                               Furthermore, the evidence in the record demonstrates that
                   respondent and the Aunt began caring for N.M. in 2009 or 2010. The
                   record does not show that appellant attempted to exercise custody of N.M.
                   or to provide for her after respondent and the Aunt began caring for her.
                   Nor does it show that appellant attempted to communicate with N.M.
                   while respondent and the Aunt cared for her or attempted to regain
                   custody before N.M. moved to Nevada.
                               The evidence submitted in this case shows that the DIF
                   concluded that appellant abandoned N.M. in 2008 and appellant ceased to
                   care for N.M., and no admitted evidence shows that appellant provided
                   support for N.M. or communicated with her for at least six months.
                   Accordingly, there was substantial evidence to support the district court's
                   finding that appellant abandoned N.M. Ellis, 123 Nev. at 149, 161 P.3d at
                   242. Thus, the district court did not abuse its discretion by finding that
                   appellant's abandonment of N.M. overcame the parental preference
                   presumption. See Litz, 111 Nev. at 38, 888 P.2d at 440. Therefore, we
                   conclude that the district court did not abuse its discretion in appointing
                   respondent as N.M.'s general guardian.
                                                 CONCLUSION
                               The record does not show that a custody proceeding was
                   initiated or that a controlling custody order was entered in another
                   jurisdiction before or during the district court's exercise of its temporary
                   emergency jurisdiction. Furthermore, N.M. lived in Nevada for six
                   months before general guardianship proceedings commenced. Thus, the
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                district court had jurisdiction to appoint a general guardian. When
                exercising this jurisdiction, the district court did not abuse its discretion
                by appointing respondent as N.M.'s general guardian because substantial
                evidence supports its finding that appellant abandoned N.M. Therefore,
                we affirm the district court's order granting a permanent guardianship to
                resp ondent. 5


                                                                                    J.
                                                      Saitta

                We concur:



                                             , C.J.


                                                J.
                Parraguir




                      5 We have considered the parties' remaining arguments and conclude
                that they are without merit.

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