CourtListener 9456868

Texto completo

136 Nev., Advance Opinion 57
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

IN THE MATTER OF THE No. 78626-COA
GUARDIANSHIP OF B.A.A.R., A
PROTECTED MINOR.

LUCIA A.A.,
Appellant,
FILE
vs. SEP 0 3 2020
MARIA M.R., AND JESUS V.A.,
EL17
Respondents. CLEF'
By
id ID' CEPI.; Y CLERK

Appeal from a post-judgment district court order in a
guardianship matter. Eighth Judicial District Court, Family Court
Division, Clark County; William S. Potter, Judge.
Reversed and remanded.

Law Offices of Martin Hart, LLC, and Alissa A. Cooley, Las Vegas,
for Appellant.

Jesus V.A.,
in Pro Se.

Maria M.R.,
in Pro Se.

BEFORE GIBBONS, C.J., TAO and BULLA, JJ.

COURT OF APPEALS
OF
NEVADA
2A -32-01
(0) 1947H
OPINION

PER CURIAM:
NRS 3.2203 provides that Nevada district courts may, in
certain types of proceedings, make the predicate factual findings necessary
for an individual to apply for Special Immigrant Juvenile (SIJ) status with
the United States Citizenship and Immigration Services of the Department
of Homeland Security (USCIS). In her petition for guardianship of her
nephew, B.A.A.R., appellant Lucia A.A. requested that the district court
make such findings, including a finding that reunifying B.A.A.R. with his
mother in his country of origin was not viable due to abuse or neglect. In
denying Lucia's request, the district court applied the heightened standard
of proof applicable in proceedings for the termination of parental rights
under NRS Chapter 128. As an issue of first impression, we hold that a
party requesting predicate factual findings under NRS 3.2203 need only
show that such findings are warranted by a preponderance of the evidence,
which is the minimum civil standard of proof, rather than the heightened
standard applicable in termination proceedings. Thus, because the district
court evaluated Lucia's request for predicate findings under the incorrect
standard, we reverse the denial of the request and remand for further
proceedings consistent with this opinion.
Additionally, because the district court appears to have
misconstrued both the statutory definition of "abuse or neglece under NRS
3.2203 and Lucia's arguments concerning it, we take the opportunity to
briefly discuss that term. In so doing—and in line with recent precedent—
we emphasize that district courts should consider the entire history of the
relationship between a parent and child when evaluating the practical
workability of reunification in light of past abuse or neglect.

2
BACKGROUND
B.A.A.R. was born in El Salvador in 2001 to respondents Maria
M.R. and Jesus V.A. He lived there with Maria and other family members
until he fled to the United States as a teenager in 2018. Ultimately,
B.A.A.R.'s aunt, Lucia, took him into her care in Las Vegas, and she
petitioned the district court for guardianship. Despite being served with
the petition, neither Maria nor Jesus opposed it or otherwise appeared in
the proceedings below. The district court granted the unopposed petition
and appointed Lucia as B.A.A.R.'s guardian, and B.A.A.R. consented to the
continued existence of the guardianship until he reaches the age of 21.
In her petition for guardianship, Lucia had also requested that
the district court make predicate factual findings under NRS 3.2203 that
would allow B.A.A.R. to apply for SIJ status with USCIS. Lucia later
submitted a more detailed motion, along with supporting declarations from
both herself and B.A.A.R., alleging that reunifying B.A.A.R. with Maria in
El Salvador was not viable because of abuse or neglect. Lucia further
asserted that returning to El Salvador would not be in B.A.A.R.'s best
interest. Lucia argued primarily that Maria had allowed B.A.A.R. to be
exposed to domestic violence occurring between Maria and her live-in
boyfriend, Jose, and that she had failed to intervene when Jose physically
abused B.A.A.R.'s sister in the family home and when Jose threatened to
kill B.A.A.R. if he continued to intervene in those altercations. According
to Lucia, and as set forth in B.A.A.R.'s declaration, these events caused
B.A.A.R. to fear Jose and suffer emotional distress. Lucia asserted that this
amounted to abuse or neglect as defined under NRS 3.2203, as did Maria's

1Likewise, neither Maria nor Jesus filed an answering brief in this
appeal.
COURT OF APPEALS
OF
NEVADA
3
(0) ,947B .4114,3,
poverty and lack of employment, because she was unable to properly provide
for B.A.A.R.
After the district court entered its order appointing Lucia as
B.A.A.R's guardian, it issued a separate order denying Lucia's request for
findings under NRS 3.2203. In denying the request, the court determined
that the allegations in the motion and accompanying declarations did not
provide sufficient factual support for a finding that reunification was not
viable, especially in light of the fact that Maria and Jose had separated
months before B.A.A.R. fled to the United States. The district court further
stated that it would require Lucia to present a far more detailed history of
neglect if the sole basis for such a finding was Maria's poverty, reasoning
that a lack of financial resources alone is never a sufficient basis to
terminate a parent's relationship with her child. Lucia now appeals from
the district court's order.
ANALYSIS
Lucia contends that the district court erroneously applied the
heightened standard of proof applicable in proceedings for the termination
of parental rights to her request for predicate findings under NRS 3.2203.
She further contends that the district court misconstrued the statutory
definition of "abuse or neglece and thereby ignored her primary argument
as to why reunifying B.A.A.R. with his mother is not viable—that Maria
abused or neglected B.A.A.R. by allowing him to be exposed to Jose's
harmful behavior. We address each of these arguments below, in turn.
Standard of review
We review a district court's factual determinations for an abuse
of discretion. In re Guardianship of N.M., 131 Nev. 751, 754, 358 P.3d 216,
218 (2015). But the district court must apply the correct legal standard in
reaching its decision, and we owe no deference to legal error. See Davis v.
Count or APPEALS
Of
NEVADA
4
(0) 1947B 4Stajlo
I

Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015); Williams v.
Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992). Moreover, this
court reviews the district court's interpretation of statutes de novo. Amaya
v. Guerrero Rivera, 135 Nev. 208, 210, 444 P.3d 450, 452 (2019)
(interpreting NRS 3.2203).
Predicate factual findings for Special Immigrant Juvenile status
Obtaining SIJ status—which allows undocumented juveniles2
to acquire lawful permanent residency in the United States—is a two-step
process involving both state and federal law. Id. at 209, 444 P.3d at 451.
First, an aspiring applicant must obtain an order from a state juvenile
court3 issuing certain predicate findings, and only once such an order is
issued may the applicant petition USCIS for SIJ status. Id. at 209, 444 P.3d
at 451-52. While the function of state courts in this process is limited, they
nonetheless play a key role in facilitating an applicant's efforts to obtain SIJ
status. See Leslie H. v. Superior Court, 168 Cal. Rptr. 3d 729, 735 (Ct. App.
2014) (noting that, although the federal government has exclusive
jurisdiction to grant SIJ status, "state juvenile courts play an important and
indispensable role in the SIJ application process" (internal quotation marks
omitted)). As our supreme court recognized in Amaya, "Mlle state trial

2A1though B.A.A.R. is now over 18 years of age, he remains a
juvenile/child for purposes of this process, which is defined in relevant part
as an unmarried individual under the age of 21. 8 C.F.R. § 204.11(c) (2019);
NRS 3.2203(8)(c); see NRS 159.343(1) (allowing the district court, with the
consent of a protected person who is seeking SIJ status, to extend the
appointment of the guardian until the protected person reaches age 21).

3"Juvenile court" is defined as "a court located in the United States
having jurisdiction under State law to make judicial determinations about
the custody and care of juveniles." 8 C.F.R. § 204.11(a).

5
court does not determine whether a petitioner qualifies for SIJ status, but
rather provides an evidentiary record for USCIS to review in considering an
applicant's petition." 135 Nev. at 209-10, 444 P.3d at 452 (citing Benitez v.
Doe, 193 A.3d 134, 138-39 (D.C. 2018)); see Romero v. Perez, 205 A.3d 903,
915 (Md. 2019) ("[T]rial judges are not gatekeepers tasked with determining
the legitimacy of SIJ petitions; that is exclusively the job of USCIS.").
NRS 3.2203 sets forth the mechanism by which an aspiring
applicant may obtain SIJ predicate findings, which "may be made by the
district court at any time during a proceeding held pursuant to [various
chapters of the Nevada Revised Statutes]." NRS 3.2203(2). Pursuant to
NRS 3.2203(3), a person may include in a petition or motion made in various
types of proceedings, including guardianship proceedings under NRS
Chapters 159 and 159A,4 a request that the district court make the
following predicate findings to allow the subject juvenile to apply for SIJ
status:
(1) the juvenile is dependent on a juvenile court, the
juvenile has been placed under the custody of a
state agency or department, or the juvenile has
been placed under the custody of an individual
appointed by the court (dependency or custody
prong); (2) due to abandonment, abuse, neglect, or
some comparable basis under state law, the
juveniles reunification with one or both parents is
not viable (reunification prong); and (3) it is not in

4In addition to guardianship proceedings, NRS 3.2203 applies in
proceedings under NRS Chapters 62B (general administration of juvenile
justice), 125 (dissolution of marriage), and 432B (protection of children from
abuse and neglect). NRS 3.2203(2)-(3). Further, the Supreme Court of
Nevada has recognized that the statute also applies in child custody
proceedings under NRS Chapter 125C. See Amaya, 135 Nev. at 210 n.4,
444 P.3d at 452 n.4.
COURT OF APPEALS
OF
NEVADA
6
(0) I947B afgAin
the juveniles best interest to be returned to the
country of the juveniles origin (best interest prong).
Amaya, 135 Nev. at 210, 444 P.3d at 452 (citing 8 U.S.C. § 1101(a)(27)(J)
and NRS 3.2203(3)). If the district court determines that there is evidence
to support all of the findings—including, but not limited to, a declaration
from the subject juvenile—it "shall issue an order setting forth such
findings." NRS 3.2203(4). And the use of the word "shall" in the statute
indicates that issuing such an order is mandatory if there is sufficient
evidence to support the findings. See Pasillas v. HSBC Bank USA, 127 Nev.
462, 467, 255 P.3d 1281, 1285 (2011) ("[T]his court has stated that 'shall is
mandatory unless the statute demands a different construction to carry out
the clear intent of the legislature." (internal quotation marks omitted)).
The preponderance-of-the-evidence standard applies when a district court
determines whether to make SIJ predicate findings under NRS 3.2203
Lucia contends that the district court erroneously applied the
heightened standard of proof applicable in proceedings for the termination
of parental rights to her request for predicate findings under NRS 3.2203.
Specifically, she points to a portion of the district court's order where it
stated that it "would require [a] very specific and detailed history of neglect
if the sole basis for such neglect is a parenes poverty" and that, "[w[hile lack
of financial resources may be sufficient to temporarily remove a child from
a parentf,1 it is never a sufficient basis to terminate the relationship; or in
other words, to find that reunification is not viable." Because we agree with
Lucia that this language indicates that the district court applied the
incorrect standard of proof, we reverse.5

5A1though we reverse and remand for application of the appropriate
standard of proof, we nevertheless agree with the district court insofar as it

COURT OF APPEALS
OF
NEVADA
7
10) 194711 49)11m,
NRS 3.2203 is silent as to what standard of proof applies to a
request for SIJ predicate findings, and our courts have not previously
addressed this issue. But the Supreme Court of Nevada has recognized that
the preponderance-of-the-evidence standard, which is the minimum civil
standard of proof, is the standard generally applicable in civil cases. Nassiri
v. Chiropractic Physicians' Bd. , 130 Nev. 245, 251, 327 P.3d 487, 491 (2014).
Accordingly, the standard applies in all civil proceedings "absent a clear
legislative intent to the contrary." Mack v. Ashlock, 112 Nev. 1062, 1066,
921 P.2d 1258, 1261 (1996). One such legislative exception is found in NRS
Chapter 128, which governs proceedings for the termination of parental
rights and requires that petitioners establish the facts in support of
termination by clear and convincing evidence. See id.; see also NRS
128.090(2); Santosky v. Kramer, 455 U.S. 745, 753, 769 (1982) (requiring a
standard of at least "clear and convincing evidence to afford due process in
state court proceedings for the termination of parental rights); In re
Parental Rights as to Q.L.R. , 118 Nev. 602, 605, 54 P.3d 56, 58 (2002) (citing
Santosky, 455 U.S. at 753).
In its order, the district court equated a predicate finding that
reunification is not viable under NRS 3.2203 with the termination of
parental rights. But the proceedings below, which were not even
proceedings to determine whether B.A.A.R. actually qualifies for SIJ status,
see Amaya, 135 Nev. at 209-10, 444 P.3d at 451-52, were not termination
proceedings under NRS Chapter 128. See Lopez v. Serbellon Portillo, 136
Nev., Adv. Op. 54, P.3d , (Aug. 6, 2020) (noting that "SIJ findings
do not result in the termination of parental rights"); see also Kitoko v.

determined that Maria's poverty alone does not amount to "abuse or
neglect" under the relevant statutes, as discussed infra note 6.
COURT Of APPEALS
Of
NEVADA
8
(0) 194713 .1411Pito
Salomao, 215 A.3d 698, 708-09 (Vt. 2019) (clarifying in a similar case
involving SIJ predicate findings that, "It o the extent that the trial court
perceived that a finding that reunification with father is not viable would
be tantamount to terminating father's parental rights," such a "finding
would not amount to a termination . . . and would not preclude future
contact between children and father should father reestablish contact").
Moreover, because NRS 3.2203 does not set forth an applicable
standard of proof, there is no clear legislative intent for district courts to
apply anything other than the preponderance-of-the-evidence standard
when determining whether SIJ predicate findings are warranted. See
Mack, 112 Nev. at 1066, 921 P.2d at 1261. Indeed, other appellate courts
that have addressed this standard-of-proof question have likewise
concluded that the preponderance-of-the-evidence standard applies when a
state juvenile court determines whether to make SIJ predicate findings. See
B.R.L.F. v. Sarceno Zuniga, 200 A.3d 770, 776 (D.C. 2019) (holding that the
preponderance-of-the-evidence standard applies when a court is
determining whether to make the SIJ predicate finding that reunification
with a parent is not viable); Romero, 205 A.3d at 912-13 (concluding that,
"because [SW] proceedings do not involve any termination of parental
rights," the preponderance-of-the-evidence standard applies).
Based on the foregoing analysis, we—like the other courts to
have addressed this issue—hold that an individual requesting predicate
factual findings under NRS 3.2203 need only demonstrate that such
findings are warranted by a preponderance of the evidence. See B.R.L.F.,
200 A.3d at 776; Romero, 205 A.3d at 912-13; see also Lopez, 136 Nev., Adv.
Op. 54, P.3d at ; cf. In re Temp. Custody of Five Minor Children, 105
Nev. 441, 445, 777 P.2d 901, 903 (1989) (noting that, Iblecause an order for

COURT OF APPEALS
OF
NEVADA
9
(0) 194711 0:41Nw
temporary custody [under NRS Chapter 432B1 differs significantly from an
order terminating parental rights, . . . the lesser [preponderance-of-the-
evidence] standard is appropriate when determining whether to enter such
an order). And this standard of proof controls as to the SU predicate
findings regardless of the type of proceeding in which the findings are
sought.
As noted previously, NRS 3.2203 applies in a variety of different
proceedings, see NRS 3.2203(2)-(3), and in some of those proceedings
standards of proof other than the preponderance of the evidence generally
apply. For example, petitioners in guardianship proceedings like those at
issue here must demonstrate that the guardianship itself is necessary by
clear and convincing evidence. See NRS 159.055(1); NRS 159A.055(1).
However, nothing in the guardianship statutes, nor in any of the other
statutory schemes in which NRS 3.2203 applies, indicates that a heightened
standard of proof would ever apply to a request for SIJ predicate findings.
And our supreme court has recognized in comparable circumstances that
different standards of proof may apply to different parts of a single
proceeding. See In re Parental Rights as to J.D.N., 128 Nev. 462, 472, 283
P.3d 842, 848-49 (2012) (holding that a preponderance standard applies
when parents seek to rebut statutory presumptions in termination-of-
parental-rights proceedings, even though petitioners in such proceedings
are required by statute to satisfy a clear-and-convincing-evidence standard
with respect to the facts supporting termination, because the relevant
statutes are silent as to what standard applies to rebut the presumptions).
Because, as discussed above, an individual requesting predicate
factual fmdings under NRS 3.2203 need only demonstrate that such
findings are warranted by a preponderance of the evidence, the district

COURT OF APPEALS
OF
NEVADA
10
(0) 194713 aligiffy>
court erred in applying the heightened standard of proof applicable in
termination proceedings to Lucia's underlying request for findings. And
because it is not clear that the district court would have reached the same
conclusion on the viability of reunification had it applied the correct
standard of proof, we must reverse the district court's decision and remand
for further proceedings. See Nassiri, 130 Nev. at 249, 327 P.3d at 490
(noting that the function of a standard of proof "is to 'instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication'
(quoting Addington v. Texas, 441 U.S. 418, 423 (1979)).
On remand, the district court must consider whether Lucia has
shown, by a preponderance of the evidence, that reunification of B.A.A.R.
with his mother is not viable because of abuse or neglect. If the district
court determines that reunification is not viable, it must then consider
whether it is in B.A.A.R.'s best interest to return to El Salvador. NRS
3.2203(3)(c). And if the district court finds that returning to El Salvador is
not in his best interest, it shall enter an order setting forth fmdings that
would allow B.A.A.R. to petition USCIS for SIJ status. NRS 3.2203(4).
A district court may find that reunification is not viable due to past abuse or
neglect
Although the district court's application of the incorrect
standard of proof by itself warrants reversal, Lucia further argues that the
district court misconstrued the meaning of "abuse or neglecr—which is a
single term defined under NRS 3.2203(8)(b)—by focusing only on the abuse
allegedly inflicted by Jose on the one hand, and the neglect allegedly
brought about by Maria's poverty on the other. Specifically, Lucia argues
that the district court's identification of Jose as "the sole purveyor
of . . . abuse and Maria's poverty as "the sole basis [proffered by Lucia] for

11
[a finding ofl neglece shows that the district court fundamentally
misunderstood the statutory definition of "abuse or neglect." Lucia further
contends that the court's statements in this regard demonstrate that it
misunderstood her primary argument with respect to the reunification
prong—that Maria was both the abuser and neglecter, as her failure to
prevent Jose's conduct amounted to a particular species of abuse or neglect;
namely, "negligent treatment or maltreatmenr as set forth in NRS
432B.140.
NRS 3.2203(8)(b) defines "[a]buse or neglect" for purposes of SIJ
predicate findings as having "the meaning ascribed to 'abuse or neglect of a
child in NRS 432B.020." And NRS 432B.020 defines that term as
"[p]hysical or mental injury of a nonaccidental nature," "[s]exual abuse or
sexual exploitation," or, as relevant here, In] egligent treatment or
maltreatment as set forth in NRS 432B.140," which is "caused or allowed
by a person responsible for the welfare of the child under circumstances
which indicate that the child's health or welfare is harmed or threatened
with harm." NRS 432B.020(1) (emphasis added). In turn, NRS 432B.140
provides that
[n]egligent treatment or maltreatment of a child
occurs if a child has been subjected to harmful
behavior that is terrorizing, degrading, painful or
emotionally traumatic, has been abandoned, is
without proper care, control or supervision or lacks
the subsistence, education, shelter, medical care or
other care necessary for the well-being of the child
because of the faults or habits of the person
responsible for the welfare of the child or the
neglect or refusal of the person to provide them
when able to do so.

COURT OF APPEALS
OF
NEVADA
12
(0) N478 4E0.
Accordingly, as relevant to the circumstances at issue here, a parent's
allowing his or her child to be subjected to conduct (e.g., by failing to
intervene) that is terrorizing or emotionally traumatic and threatens the
health or welfare of the child may amount to abuse or neglect as defined
under NRS 3.2203(8)(b).6 See NRS 432B.020(1)(c); NRS 432B.140; cf. In re
Five Minors, 105 Nev. at 445-46, 777 P.2d at 903-04 (concluding in the
context of a protective-custody proceeding that, among other things, the
parents failure "to protect the [ir] children from each othee was sufficient
to demonstrate negligent treatment or maltreatment under a previous, less-
expansive version of NRS 432B.140).
In light of the applicable statutes, we agree with Lucia that the
abovementioned statements in the district court's order indicate that it may
have misconstrued the exact parameters of the relevant statutory
definitions and of Lucia's associated arguments, at least to the extent that
it appeared to not recognize that Maria's inaction with respect to Jose might
have amounted to abuse or neglect. However, the district court did briefly
acknowledge Lucia's argument regarding Maria's inaction in its order. But
in so doing, the court noted that Maria and Jose had ended their
relationship and that Jose had left the family's home months before
B.A.A.R. fled to the United States, and it appeared to disregard Lucia's
argument regarding Maria's past inaction on those grounds.

6We note that the district court was correct in essentially determining
that, on the evidentiary record presented below, Maria's poverty alone
would not amount to abuse or neglect under NRS 3.2203. The declarations
Lucia submitted to the district court do not demonstrate that Maria's failure
to financially provide for B.A.A.R. was attributable to her "faults or habits"
or that she was able to provide for him and "neglect [ed] or refus[edr to do
so. See NRS 432B.140.
CouRT OF APPEALS
OF
NEVADA
13
(0) 1947H allbc,
As our supreme court recently recognized, however, when
determining whether reunification with a parent is viable, a district court
should consider "the entire history of the relationship between the minor
and the parent in the foreign country." Lopez, 136 Nev., Adv. Op. 54,
P.3d at (quoting J.U. u. J.C.P.C., 176 A.3d 136, 140 (D.C. 2018)). This
entails "assess [ing] the impact of the history of the parent's past conduct on
the viability, i.e., the workability or practicability of a forced reunification
of parent with minor, if the minor were to be returned to the home country."
Id. (quoting J.U., 176 A.3d at 141). District courts should therefore consider
the following nonexhaustive list of factors when making such a
determination:
(1) the lifelong history of the child's relationship
with the parent (i.e., is there credible evidence of
past mistreatment); (2) the effects that forced
reunification might have on the child (i.e., would it
impact the child's health, education, or welfare);
and (3) the realistic facts on the ground in the
child's home country (i.e., would the child be
exposed to danger or harm).
Id. (quoting Romero, 205 A.3d at 915). Accordingly, as relevant here, the
district court should consider Maria's past conduct when evaluating the
reunification prong, regardless of Joses exit from the family home.
Thus, on remand, in addition to applying the appropriate
standard of proof as set forth above, the district court must follow the
approach set forth by the supreme court in Lopez for evaluating the viability
of reunification. Id. In so doing, it should evaluate whether Maria's past
conduct constituted abuse or neglect such that reunifying B.A.A.R. with her
would not be viable. And should it decide that reunification is not viable,

COURT OF APPEALS
OF
NEVADA
14
(0) 15147B 41P.
the district court must proceed to evaluate whether returning to El Salvador
would be in B.A.A.R.'s best interest. NRS 3.2203(3)(c).
CONCLUSION
A party requesting predicate factual findings under NRS 3.2203
must demonstrate that such findings are warranted by a preponderance of
the evidence. Because the district court applied the incorrect standard of
proof to Lucia's request for predicate factual findings, we reverse its order
denying the request and remand this matter for further proceedings. On
remand, we instruct the district court to reevaluate Lucia's evidence and
arguments with respect to the reunification prong consistent with this
opinion and the supreme court's recent opinion in Lopez v, Serbellon
Portillo, 136 Nev., Adv. Op. 54, P.3d (Aug. 6, 2020). Should it
determine that Lucia has shown, by a preponderance of the evidence, that
reunification of B.A.A.R. with Maria is not viable because of abuse or
neglect, the district court must then consider whether it is in B.A.A.R.'s best
interest to return to El Salvador. And if it is not, the district court shall
enter an order setting forth predicate findings that would allow B.A.A.R. to
petition USCIS for SIJ status.7

, C.J.

Tao
4
Bulla
.""'"'"...... ,J.

7In light of our disposition, we need not address any of the other
arguments Lucia presents on appeal.
COURT OF APPEALS
OF
NEVADA
15
40) 1947R 111465115