Assembly Bill No. 577–Committee on Judiciary

 

March 26, 2001

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes concerning permanent guardianship of certain abused or neglected children. (BDR 13‑1333)

 

FISCAL NOTE:    Effect on Local Government: Yes.

                                 Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to guardianships; establishing procedures for permanently placing an abused or neglected child with a guardian under certain circumstances; authorizing a court to appoint an attorney for certain persons involved in a proceeding for the establishment of such a guardianship; establishing procedures for permanently placing an Indian child with a guardian under certain circumstances; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 159 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 to 9, inclusive, of this act.

1-3    Sec. 2.  “Indian child” has the meaning ascribed to it in 25 U.S.C. §

1-4  1903.

1-5    Sec. 3.  “Indian Child Welfare Act” means the Indian Child Welfare

1-6  Act of 1978, 25 U.S.C. §§ 1901 et seq.

1-7    Sec. 4.  1.  In establishing a plan for the permanent placement of a

1-8  minor pursuant to NRS 432B.590, the court may appoint a person as a

1-9  guardian for the minor if:

1-10    (a) The court finds:

1-11      (1) By clear and convincing evidence that the abuse or neglect of

1-12  the minor by a person responsible for the welfare of the minor is of such

1-13  a serious nature that the abuse or neglect demonstrates the permanent

1-14  inability of the parent or other person who has legal or physical custody

1-15  of the minor to provide for the minor;

1-16      (2) That adoption of the minor is not appropriate or is not likely to

1-17  occur;

1-18      (3) That the proposed guardian is suitable and is not disqualified

1-19  from guardianship pursuant to NRS 159.059;

2-1       (4) That it is in the best interest of the minor to appoint the

2-2  proposed guardian as the guardian of the minor; and

2-3       (5) That the proposed guardian has complied with the requirements

2-4  of this chapter; and

2-5    (b) The minor consents to the guardianship, if the minor is at least 12

2-6  years of age.

2-7    2.  A guardianship established pursuant to this section:

2-8    (a) Provides the guardian with the powers and duties provided in NRS

2-9  159.079;

2-10    (b) Provides the guardian with sole legal and physical custody of the

2-11  minor and terminates the rights of all other persons to legal or physical

2-12  custody of the minor;

2-13    (c) Does not result in the termination of parental rights of a parent of

2-14  the minor for whom the guardianship was established; and

2-15    (d) Does not affect any rights of the minor to inheritance, a

2-16  succession or any services or benefits provided by the Federal

2-17  Government, this state or an agency or political subdivision of this state.

2-18    3.  As used in this section:

2-19    (a) “Abuse or neglect of the minor” has the meaning ascribed to the

2-20  term “abuse or neglect of a child” in NRS 432B.020; and

2-21    (b) A person is responsible for the welfare of a minor if the person is

2-22  listed in NRS 432B.130.

2-23    Sec. 5.  1.  If a court appoints a guardian for a minor pursuant to

2-24  section 4 of this act, the court may:

2-25    (a) Order a reasonable right of visitation to the person whose right to

2-26  custody of the minor was terminated as a result of the appointment of the

2-27  guardianship if the court finds that the visitation is in the best interest of

2-28  the minor; and

2-29    (b) Order a parent of the minor to pay to the guardian an amount

2-30  sufficient to support the minor while the minor is in the care of the

2-31  guardian. Payments for the obligation of support must be determined in

2-32  accordance with NRS 125B.070 and 125B.080 and must not exceed the

2-33  reasonable cost of the care for the minor, including, without limitation,

2-34  food, shelter, clothing, medical care and education.

2-35    2.  An order for support made pursuant to subsection 1 must:

2-36    (a) Require that payments be made to the guardian;

2-37    (b) Provide that the guardian is entitled to a lien on the property of the

2-38  obligor in the event of nonpayment of support; and

2-39    (c) Provide for the immediate withholding of income for the payment

2-40  of support unless:

2-41      (1) All parties enter into an alternative written agreement; or

2-42      (2) One party demonstrates and the court finds good cause to

2-43  postpone the withholding.

2-44    3.  A court that enters an order for support pursuant to this section

2-45  shall ensure that the social security number of the parent who is the

2-46  subject of the order is:

2-47    (a) Provided to the welfare division of the department of human

2-48  resources; and

3-1    (b) Placed in the records relating to the matter and, except as

3-2  otherwise required to carry out a specific statute, maintained in a

3-3  confidential manner.

3-4    Sec. 6.  1.  A parent or other person whose right to custody of a

3-5  minor will be terminated if a court appoints a guardian for the minor

3-6  pursuant to section 4 of this act may be represented by an attorney at all

3-7  stages of any proceeding concerning the appointment of the guardian.

3-8  Except as otherwise provided in section 7 of this act, if the parent or

3-9  other person is indigent, the court may appoint an attorney to represent

3-10  him. The court may, if it finds it appropriate, appoint an attorney to

3-11  represent the minor.

3-12    2.  Each attorney appointed pursuant to this section is entitled to the

3-13  same compensation and payment for expenses from the county as

3-14  provided in NRS 7.125 and 7.135 for an attorney appointed to represent a

3-15  person charged with a crime.

3-16    Sec. 7.  1.  If a proceeding held pursuant to this chapter involves the

3-17  appointment of a guardian for an Indian child and is subject to the

3-18  provisions of the Indian Child Welfare Act, the court shall:

3-19    (a) Cause the tribe of the Indian child to be notified in writing in the

3-20  manner provided in the Indian Child Welfare Act. If the Indian child is

3-21  eligible for membership in more than one tribe, each tribe must be

3-22  notified.

3-23    (b) Transfer the proceedings to the tribe of the Indian child in

3-24  accordance with the Indian Child Welfare Act.

3-25    (c) If a tribe declines jurisdiction, exercise its jurisdiction as provided

3-26  in the Indian Child Welfare Act.

3-27    2.  If the court determines that the parent of the Indian child is

3-28  indigent, the court, as provided in the Indian Child Welfare Act:

3-29    (a) Shall appoint an attorney to represent the parent;

3-30    (b) May appoint an attorney to represent the Indian child; and

3-31    (c) May apply to the Secretary of the Interior for the payment of the

3-32  fees and expenses of such an attorney.

3-33    Sec. 8.  Each court in this state that exercises jurisdiction pursuant

3-34  to this chapter in a case involving an Indian child shall give full faith

3-35  and credit to the judicial proceedings of an Indian tribe to the same

3-36  extent that the Indian tribe gives full faith and credit to the judicial

3-37  proceedings of the courts of this state.

3-38    Sec. 9.  1.  A proceeding held pursuant to this chapter that involves

3-39  the appointment of a guardian for an Indian child and that is subject to

3-40  the provisions of the Indian Child Welfare Act must include the

3-41  testimony of at least one qualified expert witness as provided in the

3-42  Indian Child Welfare Act.

3-43    2.  As used in this section, “qualified expert witness” includes,

3-44  without limitation:

3-45    (a) An Indian person who has personal knowledge about the tribe of

3-46  the Indian child and its customs related to raising a child and the

3-47  organization of the family; and

3-48    (b) A person who has:

4-1       (1) Substantial experience and training regarding the customs of

4-2  Indian tribes related to raising a child; and

4-3       (2) Extensive knowledge of the social values and cultural

4-4  influences of Indian tribes.

4-5    Sec. 10.  NRS 159.013 is hereby amended to read as follows:

4-6    159.013  As used in this chapter, unless the context otherwise requires,

4-7  the words and terms defined in NRS 159.015 to 159.027, inclusive, and

4-8  sections 2 and 3 of this act, have the meanings ascribed to them in those

4-9  sections.

4-10    Sec. 11.  NRS 159.044 is hereby amended to read as follows:

4-11    159.044  1.  Except as otherwise provided in subsection 2 and NRS

4-12  127.045, a proposed ward, a governmental agency, a nonprofit corporation

4-13  or any concerned person may petition the court for the appointment of a

4-14  guardian.

4-15    2.  Only a proposed ward, a concerned person or a governmental

4-16  agency on behalf of a proposed ward or concerned person may petition

4-17  the court for the appointment of a guardian pursuant to section 4 of this

4-18  act.

4-19    3.  The petition must state:

4-20    (a) The name and address of the petitioner.

4-21    (b) The name, age and address of the proposed ward. If he is a minor,

4-22  the petition must state the date on which he will attain the age of majority

4-23  and whether he will need guardianship after attaining the age of majority.

4-24    (c) Whether the proposed ward is a resident or nonresident of this state.

4-25    (d) The names and addresses, so far as they are known to the petitioner,

4-26  of the relatives of the proposed ward within the second degree.

4-27    (e) The name and address of the proposed guardian.

4-28    (f) That the proposed guardian has never been convicted of a felony.

4-29    (g) A summary of the reasons why a guardian is needed.

4-30    (h) Whether the appointment of a general or a special guardian is

4-31  sought.

4-32    (i) A general description and the probable value of the property of the

4-33  proposed ward and any income to which he is entitled, if the petition is for

4-34  the appointment of a guardian of the estate or a special guardian. If any

4-35  money is paid or is payable to the proposed ward by the United States

4-36  through the Department of Veterans Affairs, the petition must so state.

4-37    (j) The name and address of any person or institution having the care,

4-38  custody or control of the proposed ward.

4-39    (k) The relationship, if any, of the petitioner to the proposed ward and

4-40  the interest, if any, of the petitioner in the appointment.

4-41    (l) Requests for any of the specific powers set forth in NRS 159.117 to

4-42  159.175, inclusive, necessary to enable the guardian to carry out the duties

4-43  of the guardianship.

4-44    (m) Whether the guardianship is sought as the result of an investigation

4-45  of a report of abuse or neglect that is conducted pursuant to chapter 432B

4-46  of NRS by an agency which provides protective services. As used in this

4-47  paragraph, “agency which provides protective services” has the meaning

4-48  ascribed to it in NRS 432B.030.

4-49    (n) Whether the proposed ward is known to be an Indian child.

5-1    Sec. 12.  NRS 159.054 is hereby amended to read as follows:

5-2    159.054  1.  If the court finds the proposed ward competent and not in

5-3  need of a guardian, it shall dismiss the petition.

5-4    2.  If the court finds the proposed ward to be of limited capacity and in

5-5  need of a special guardian, it shall enter judgment accordingly and specify

5-6  the powers and duties of the special guardian.

5-7    3.  [If] Except as otherwise provided in subsection 4, if the court finds

5-8  that appointment of a general guardian is required, it shall appoint such a

5-9  guardian of the ward’s person, estate, or person and estate.

5-10    4.  If the court finds that appointment of a general guardian is

5-11  required for the ward’s person or person and estate and the ward is a

5-12  minor for whom the court is establishing a plan of permanent placement

5-13  pursuant to NRS 432B.590, the court shall establish the guardianship of

5-14  the ward’s person pursuant to section 4 of this act.

5-15    Sec. 13.  NRS 159.061 is hereby amended to read as follows:

5-16    159.061  1.  The parents of a minor, or either parent, if qualified and

5-17  suitable, are preferred over all others for appointment as guardian for the

5-18  minor. In determining whether the parents of a minor, or either parent, is

5-19  qualified and suitable, the court shall consider, without limitation:

5-20    (a) Which parent has physical custody of the minor;

5-21    (b) The ability of the parents or parent to provide for the basic needs of

5-22  the child, including, without limitation, food, shelter, clothing and medical

5-23  care;

5-24    (c) Whether the parents or parent has engaged in the habitual use of

5-25  alcohol or any controlled substance during the previous 6 months; and

5-26    (d) Whether the parents or parent has been convicted of a crime of

5-27  moral turpitude, a crime involving domestic violence or a crime involving

5-28  the exploitation of a child.

5-29    2.  In determining whether to appoint a guardian for a minor

5-30  pursuant to section 4 of this act, the court shall give preference to a

5-31  person who:

5-32    (a) Is related within the third degree of consanguinity to the minor; or

5-33    (b) Has had custody of the minor for at least 12 months during the 18

5-34  months immediately preceding the date on which the petition for

5-35  guardianship was filed.

5-36    3.  Subject to the [preference] preferences set forth in [subsection 1 ,]

5-37  subsections 1 and 2, the court shall appoint as guardian for an

5-38  incompetent, a person of limited capacity or minor the qualified person

5-39  who is most suitable and is willing to serve.

5-40    [3.] 4. In determining who is most suitable, the court shall give

5-41  consideration, among other factors, to:

5-42    (a) Any request for the appointment as guardian for an incompetent

5-43  contained in a written instrument executed by the incompetent while

5-44  competent.

5-45    (b) Any nomination of a guardian for an incompetent, minor or person

5-46  of limited capacity contained in a will or other written instrument executed

5-47  by a parent or spouse of the proposed ward.

5-48    (c) Any request for the appointment as guardian for a minor 14 years of

5-49  age or older made by the minor.

6-1    (d) The relationship by blood or marriage of the proposed guardian to

6-2  the proposed ward.

6-3    (e) Any recommendation made by a special master pursuant to NRS

6-4  159.0615.

6-5    Sec. 14.  NRS 159.081 is hereby amended to read as follows:

6-6    159.081  1.  [A] Except as otherwise provided in subsection 2, a

6-7  guardian of the person shall make and file in the guardianship proceeding a

6-8  written report on the condition of the ward and the exercise of authority

6-9  and performance of duties by the guardian:

6-10    (a) Annually within 60 days after the anniversary date of his

6-11  appointment; and

6-12    (b) At such other times as the court may order.

6-13    2.  A guardian of the person appointed pursuant to section 4 of this

6-14  act shall make and file a written report described in subsection 1 at such

6-15  times as the court may order.

6-16    3.  The guardian of the person shall give to the guardian of the estate, if

6-17  any, a copy of each report within 30 days after such report has been filed

6-18  with the court.

6-19    Sec. 15.  NRS 159.176 is hereby amended to read as follows:

6-20    159.176  Every guardianship , except a guardianship established

6-21  pursuant to section 4 of this act, must be reviewed by the court annually.

6-22    Sec. 16.  NRS 159.185 is hereby amended to read as follows:

6-23    159.185  1.  The court may remove a guardian if the court determines

6-24  that:

6-25    (a) The guardian has become disqualified, mentally incompetent,

6-26  unsuitable or otherwise incapable of exercising his authority and

6-27  performing his duties as provided by law;

6-28    (b) The guardian of the estate has mismanaged the estate of the ward;

6-29    (c) The guardian has failed to perform any duty as provided by law or

6-30  by any lawful order of the court; or

6-31    (d) The best interest of the ward will be served by the appointment of

6-32  another person as guardian.

6-33    2.  If a court makes a determination pursuant to subsection 1 to

6-34  remove a guardian appointed pursuant to section 4 of this act, the

6-35  determination must be supported by clear and convincing evidence.

6-36    3.  Upon its own motion or upon a petition filed by a ward who is a

6-37  minor 14 years of age or older, by any person for a ward who is an

6-38  incompetent or a minor under 14 years of age, or by any other interested

6-39  person, the court may make an order directing the issuance of a citation

6-40  requiring the guardian to appear and show cause why he should not be

6-41  removed. The citation shall require the guardian to appear and show cause

6-42  within the applicable period of time required for appearance after service

6-43  of summons, and shall be served and returned as summons is served and

6-44  returned in a civil action.

6-45    Sec. 17.  NRS 159.191 is hereby amended to read as follows:

6-46    159.191  A guardianship is terminated:

6-47    1.  If for a minor, when he reaches the age of majority according to the

6-48  law of his domicile[;] unless otherwise ordered by a court;

6-49    2.  By the death of the ward;

7-1    3.  Upon the ward’s change of domicile to a place outside this state and

7-2  the transfer of jurisdiction to the court having jurisdiction in the new

7-3  domicile; or

7-4    4.  Upon order of the court, if the court determines that the

7-5  guardianship no longer is necessary. If the guardianship is of the person

7-6  and estate, the court may order the guardianship terminated as to the

7-7  person, the estate or the person and estate.

7-8    Sec. 18.  NRS 432B.600 is hereby amended to read as follows:

7-9    432B.600  1.  If the permanent placement of a child has been

7-10  approved by the court, the court may enter an order dispensing with the

7-11  annual hearings otherwise required by NRS 432B.590. The order must

7-12  indicate that the plan for the placement of the child provides for his

7-13  permanent placement in the home of a specific relative, guardian, foster

7-14  parent or adoptive parent, unless the court determines that identification of

7-15  that person would create a risk of harm to the child.

7-16    2.  If the child is subsequently removed from his permanent placement

7-17  or the plan for his permanent placement is subsequently changed, the

7-18  agency acting as the custodian of the child shall notify the court within 30

7-19  days after the removal or change. The court shall, after receiving the

7-20  notification, resume the annual hearings required by NRS 432B.590. The

7-21  court shall review the permanent placement of the child not later than 6

7-22  months after the date of the removal of the child or the change in the plan,

7-23  whichever is earlier.

 

7-24  H