AB273_R1

Assembly Bill No. 273–Committee on Judiciary

CHAPTER..........

AN ACT relating to the protection of children; establishing procedures for permanently placing an abused or neglected child with a guardian; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. NRS 432.039 is hereby amended to read as follows:

432.039 1. When in the judgment of the court it is in the best

interests of a child in the lawful custody of an agency which

provides child welfare services, such an agency may petition for

appointment as guardian of the person and estate of the child in the

manner provided by chapter 159 or 432B of NRS.

2. The clerk of the district court, county clerk, county recorder

or other county officer shall not require the payment of any fees or

charges by the agency which provides child welfare services for

appointment as guardian pursuant to this section, and the district

court shall waive the furnishing of a bond by the agency which

provides child welfare services if it is appointed guardian.

3. Except as otherwise provided in this section, the agency

which provides child welfare services shall comply with all

applicable provisions of chapter 159 or 432B of NRS.

Sec. 2. Chapter 432B of NRS is hereby amended by adding

thereto the provisions set forth as sections 3 to 7, inclusive, of this

act.

Sec. 3. 1. If the plan adopted pursuant to NRS 432B.553

for the permanent placement of a child includes a request for the

appointment of a guardian for the child pursuant to sections 4 to

7, inclusive, of this act, a governmental agency, a nonprofit

corporation or any interested person, including, without

limitation, the agency that adopted the plan may petition the court

for the appointment of a guardian. The guardian may be

appointed at a hearing conducted pursuant to NRS 432B.590 or at

a separate hearing.

2. A petition for the appointment of a guardian pursuant to

this section:

(a) May not be filed before the court has determined that the

child is in need of protection;

(b) Must include the information required pursuant to NRS

159.044; and

of a guardian, rather than the adoption of the child or the return

of the child to a parent, is in the best interests of the child.

3. In addition to the notice required pursuant to NRS

432B.590, a governmental agency, nonprofit corporation or

interested person who files a petition for the appointment of a

guardian must serve notice of the petition that includes a copy of

the petition and the date, time and location of the hearing on the

petition, by registered or certified mail or by personal service:

(a) To all the persons entitled to notice of the hearing pursuant

to NRS 432B.590, the parents of the child, any person or

governmental agency having care, custody or control over the

child, and, if the child is 14 years of age or older, the child; and

(b) At least 20 days before the hearing on the petition.

Sec. 4. 1. The court may, upon the filing of a petition

pursuant to section 3 of this act, appoint a person as a guardian

for a child if:

(a) The court finds:

(1) That the proposed guardian is suitable and is not

disqualified from guardianship pursuant to NRS 159.059;

(2) That the child has been in the custody of the proposed

guardian for 6 months or more pursuant to a determination by a

court that the child was in need of protection, unless the court

waives this requirement for good cause shown;

(3) Except as otherwise provided in subsection 3, that the

proposed guardian has complied with the requirements of chapter

159 of NRS; and

(4) That the burden of proof set forth in chapter 159 of

NRS for the appointment of a guardian for a child has been

satisfied;

(b) The child consents to the guardianship, if the child is 14

years of age or older; and

petition pursuant to section 3 of this act have been satisfied.

2. A guardianship established pursuant to this section:

(a) Provides the guardian with the powers and duties provided

in NRS 159.079, and subjects the guardian to the limitations set

forth in NRS 159.0805;

(b) Is subject to the provisions of NRS 159.065 to 159.075,

inclusive, and 159.185 to 159.201, inclusive;

of the child;

(d) Does not result in the termination of parental rights of a

parent of the child; and

(e) Does not affect any rights of the child to inheritance, a

succession or any services or benefits provided by the Federal

Government, this state or an agency or political subdivision of this

state.

3. The court may appoint as a guardian for a child pursuant

to this section for not more than 6 months a person who does not

satisfy the residency requirement set forth in subsection 5 of NRS

159.059 if the court determines that appointing such a person is

necessary to facilitate the permanent placement of the child.

Sec. 5. 1. In determining whether to grant a petition for the

appointment of a guardian filed pursuant to section 3 of this act,

the court may consider all relevant and material evidence that is

admissible pursuant to this chapter, including, without limitation,

any report submitted by a special advocate appointed as a

guardian ad litem for the child pursuant to NRS 432B.500.

2. If a court appoints a guardian for a child pursuant to

section 4 of this act, the court may order a reasonable right of

visitation to any person whose right to custody or visitation of the

child was terminated as a result of the appointment of the

guardian if the court finds that the visitation is in the best interests

of the child.

Sec. 6. Upon the entry of a final order by the court

establishing a guardianship pursuant to section 4 of this act:

1. The custody of the child by the agency which has legal

custody of the child is terminated;

2. The proceedings concerning the child conducted pursuant

to NRS 432B.410 to 432B.590, inclusive, and sections 3 to 7,

inclusive, of this act terminate; and

3. Unless subsequently ordered by the court to assist the court,

the following agencies and persons are excused from any

responsibility to participate in the guardianship case:

(a) The agency which has legal custody of the child; and

(b) Any counsel or guardian ad litem appointed by the court to

assist in the proceedings conducted pursuant to NRS 432B.410 to

432B.590, inclusive, and sections 3 to 7, inclusive, of this act.

Sec. 7. 1. The court shall retain jurisdiction to enforce,

modify or terminate a guardianship established pursuant to

section 4 of this act until the child reaches 18 years of age.

2. Any person having a direct interest in a guardianship

established pursuant to section 4 of this act may move to enforce,

modify or terminate an order concerning the guardianship.

3. The court shall issue an order directing the appropriate

agency which provides child welfare services to file a report and

make a recommendation in response to any motion to enforce,

modify or terminate an order concerning a guardianship

established pursuant to section 4 of this act. The agency must

submit the report to the court within 45 days after receiving the

order of the court.

4. Any motion to enforce, modify or terminate an order

concerning a guardianship established pursuant to section 4 of

this act must comply with the provisions set forth in chapter 159 of

NRS for motions to enforce, modify or terminate orders

concerning guardianships.

5. A successor guardian may be appointed in accordance with

the procedures set forth in chapter 159 of NRS.

Sec. 8. NRS 432B.250 is hereby amended to read as follows:

432B.250 Any person who is required to make a report

pursuant to NRS 432B.220 may not invoke any of the privileges set

forth in chapter 49 of NRS:

1. For his failure to make a report pursuant to NRS 432B.220;

2. In cooperating with an agency which provides child welfare

services or a guardian ad litem for a child; or

3. In any proceeding held pursuant to NRS 432B.410 to

432B.590, inclusive[.] , and sections 3 to 7, inclusive, of this act.

Sec. 9. NRS 432B.420 is hereby amended to read as follows:

432B.420 1. A parent or other person responsible for the

welfare of a child who is alleged to have abused or neglected the

child may be represented by an attorney at all stages of any

proceedings under NRS 432B.410 to 432B.590, inclusive[.] , and

sections 3 to 7, inclusive, of this act. Except as otherwise provided

in subsection 2, if the person is indigent, the court may appoint an

attorney to represent him. The court may, if it finds it appropriate,

appoint an attorney to represent the child. The child may be

represented by an attorney at all stages of any proceedings held

pursuant to NRS 432B.410 to 432B.590, inclusive[.] , and sections

3 to 7, inclusive, of this act. If the child is represented by an

attorney, the attorney has the same authority and rights as an

attorney representing a party to the proceedings.

2. If the court determines that the parent of an Indian child for

whom protective custody is sought is indigent, the court:

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

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

the fees and expenses of such an attorney,

as provided in the Indian Child Welfare Act.

3. Each attorney, other than a public defender, if appointed

under the provisions of subsection 1, is entitled to the same

compensation and payment for expenses from the county as

provided in NRS 7.125 and 7.135 for an attorney appointed to

represent a person charged with a crime. Except as otherwise

provided in NRS 432B.500, an attorney appointed to represent a

child may also be appointed as guardian ad litem for the child. He

may not receive any compensation for his services as a guardian ad

litem.

Sec. 10. NRS 432B.430 is hereby amended to read as follows:

432B.430 Except as otherwise provided in NRS 432B.457,

only those persons having a direct interest in the case, as ordered by

the judge or master, may be admitted to any proceeding held

pursuant to NRS 432B.410 to 432B.590, inclusive[.] , and sections

3 to 7, inclusive, of this act.

Sec. 11. NRS 432B.440 is hereby amended to read as follows:

432B.440 The agency which provides child welfare services

shall assist the court during all stages of any proceeding in

accordance with NRS 432B.410 to 432B.590, inclusive[.] , and

sections 3 to 7, inclusive, of this act.

Sec. 12. NRS 432B.450 is hereby amended to read as follows:

432B.450 In any civil proceeding had pursuant to NRS

432B.410 to 432B.590, inclusive, and sections 3 to 7, inclusive, of

this act, if there is expert testimony that a physical or mental injury

of a child would ordinarily not be sustained or a condition not exist

without either negligence or a deliberate but unreasonable act or

failure to act by the person responsible for his welfare, the court

shall find that the child is in need of protection unless that testimony

is rebutted.

Sec. 13. NRS 432B.459 is hereby amended to read as follows:

432B.459 1. If a proceeding held pursuant to NRS 432B.410

to 432B.590, inclusive, and sections 3 to 7, inclusive, of this act is

recorded using sound recording equipment or is transcribed, the

clerk of the court shall, upon request, provide to a parent or guardian

of the child who is the subject of the proceeding and the attorney of

the parent or guardian a copy of the sound recording or transcript of

the proceeding if:

(a) Such a copy is available or could be made available; and

(b) The parent or guardian or the county in which the proceeding

is held, as appropriate, pays the fee for the copy in accordance with

subsection 2.

2. Each board of county commissioners shall adopt a sliding

scale for determining the amount to be paid for a copy of a sound

recording or transcript of a proceeding pursuant to subsection 1 for a

proceeding that was held in a court in its county. The sliding scale

must be based on the ability of the parent or guardian to pay. The

court shall review each case and make a finding as to the

reasonableness of the charge in relation to the ability of the parent or

guardian to pay. To the extent that the court determines that a parent

or guardian is unable to pay for a copy of the recording or transcript

pursuant to subsection 1, the cost of providing the copy of the sound

recording or transcript is a charge against the county in which the

proceeding was held.

Sec. 14. NRS 432B.513 is hereby amended to read as follows:

432B.513 1. Except as otherwise provided in subsection 3, a

person who submits a report or information to the court for

consideration in a proceeding held pursuant to NRS 432B.500 to

432B.590, inclusive, and sections 3 to 7, inclusive, of this act shall

provide a copy of the report or information, to the extent that the

data or information in the report or information is available pursuant

to NRS 432B.290, to each parent or guardian of the child who is the

subject of the proceeding and to the attorney of each parent or

guardian not later than 72 hours before the proceeding.

2. If a person does not provide a copy of a report or

information to a parent or guardian of a child and an attorney of the

parent or guardian before a proceeding if required by subsection 1,

the court or master:

(a) Shall provide the parent or guardian and his attorney an

opportunity to review the report or information; and

(b) May grant a continuance of the proceeding until a later date

that is agreed upon by all the parties to the proceeding if the parent

or guardian or his attorney requests that the court grant the

continuance so that the parent or guardian and his attorney may

properly respond to the report or information.

3. If a child was delivered to a provider of emergency services

pursuant to NRS 432B.630 and the location of the parent of the

child is unknown, a copy of a report or information described in

subsection 1 need not be sent to that parent or his attorney pursuant

to subsection 1.

4. As used in this section, “person” includes, without

limitation, a government, governmental agency or political

subdivision of a government.

Sec. 15. NRS 432B.555 is hereby amended to read as follows:

432B.555 In any proceeding held pursuant to NRS 432B.410

to 432B.590, inclusive, and sections 3 to 7, inclusive, of this act, if

the court determines that a custodial parent or guardian of a child

who has been placed in protective custody has ever been convicted

of a violation of NRS 200.508, the court shall not release the child

to that custodial parent or guardian unless the court finds by clear

and convincing evidence presented at the proceeding that no

physical or psychological harm to the child will result from his

release to that parent or guardian.

Sec. 16. NRS 432B.590 is hereby amended to read as follows:

432B.590 1. Except as otherwise provided in NRS 432B.513,

the court shall hold a hearing concerning the permanent placement

of a child:

(a) Not later than 12 months after the initial removal of the child

from his home and annually thereafter.

(b) Within 30 days after making any of the findings set forth in

subsection 3 of NRS 432B.393.

Notice of this hearing must be given by registered or certified mail

to all the persons to whom notice must be given pursuant to

subsection 4 of NRS 432B.580.

2. The court may require the presence of the child at the

hearing and shall provide to each person to whom notice was given

pursuant to subsection 1 an opportunity to be heard at the hearing.

3. At the hearing, the court shall review any plan for the

permanent placement of the child adopted pursuant to NRS

432B.553 and determine:

(a) Whether the agency with legal custody of the child has made

the reasonable efforts required by subsection 1 of NRS 432B.553;

and

(b) Whether, and if applicable when:

(1) The child should be returned to his parents or placed with

other relatives;

(2) It is in the best interests of the child to [initiate] :

(I) Initiate proceedings to[:

(I) Terminate] terminate parental rights pursuant to

chapter 128 of NRS so that the child can be placed for adoption; [or

(II) Establish]

(II) Initiate proceedings to establish a guardianship

pursuant to chapter 159 of NRS; or

(III) Establish a guardianship in accordance with

sections 3 to 7, inclusive, of this act; or

(3) The agency with legal custody of the child has produced

documentation of its conclusion that there is a compelling reason for

the placement of the child in another permanent living

arrangement.

The court shall prepare an explicit statement of the facts upon which

each of its determinations is based. If the court determines that it is

in the best interests of the child to terminate parental rights, the

court shall use its best efforts to ensure that the procedures required

by chapter 128 of NRS are completed within 6 months after the date

the court makes that determination, including, without limitation,

appointing a private attorney to expedite the completion of the

procedures. The provisions of this subsection do not limit the

jurisdiction of the court to review any decisions of the agency with

legal custody of the child regarding the permanent placement of the

child.

4. If a child has been placed outside of his home and has

resided outside of his home pursuant to that placement for 14

months of any 20 consecutive months, the best interests of the child

must be presumed to be served by the termination of parental rights.

5. This hearing may take the place of the hearing for review

required by NRS 432B.580.

6. The provision of notice and an opportunity to be heard

pursuant to this section does not cause any person planning to adopt

the child, or any relative or provider of foster care to become a party

to the hearing.

Sec. 17. NRS 49.295 is hereby amended to read as follows:

49.295 1. Except as otherwise provided in subsections 2 and

3 and NRS 49.305:

(a) A husband cannot be examined as a witness for or against his

wife without his consent, nor a wife for or against her husband

without her consent.

(b) Neither a husband nor a wife can be examined, during the

marriage or afterwards, without the consent of the other, as to any

communication made by one to the other during marriage.

2. The provisions of subsection 1 do not apply to a:

(a) Civil proceeding brought by or on behalf of one spouse

against the other spouse;

(b) Proceeding to commit or otherwise place a spouse, the

property of the spouse or both the spouse and the property of the

spouse under the control of another because of the alleged mental or

physical condition of the spouse;

his competence;

(d) Proceeding in the juvenile court or family court pursuant to

chapter 62 of NRS and NRS 432B.410 to 432B.590, inclusive[;] ,

and sections 3 to 7, inclusive, of this act; or

(e) Criminal proceeding in which one spouse is charged with:

(1) A crime against the person or the property of the other

spouse or of a child of either, or of a child in the custody or control

of either, whether the crime was committed before or during

marriage.

(2) Bigamy or incest.

(3) A crime related to abandonment of a child or nonsupport

of a wife or child.

3. The provisions of subsection 1 do not apply in any criminal

proceeding to events which took place before the husband and wife

were married.

Sec. 18. NRS 159.176 is hereby amended to read as follows:

159.176 Every guardianship established pursuant to this

chapter must be reviewed by the court annually.

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