                                                   131 Nev., Advance Opinion       77
                        IN THE SUPREME COURT OF THE STATE OF NEVADA

                JOANNA T.,                                            No. 65796
                Petitioner,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                                                                              Fll ED
                CLARK; AND THE HONORABLE                                       SEP 2 4 2015
                FRANK P. SULLIVAN, DISTRICT                                   TWISIE K. LINDEMAN
                                                                         Cl
                JUDGE,
                                                                        BY 1
                Respondents,                                                             Y-C.LERK

                and
                THE STATE OF NEVADA,
                Real Party in Interest.


                             Original petition for a writ of mandamus or prohibition
                requesting an order directing the juvenile court to dismiss an abuse-and-
                neglect 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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                    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



                                                               Parraguirre


                    We concur:


                                               , C.J.                                        J.
                    Hardesty                                   Douglas




                                                               Saitta




                          2 Additionally,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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