Nevada family-law case summaries

This case is about who gets to care for a baby, J.B., whose parents were both incarcerated when he was born. (His parents had been arrested for the homicide of his older sibling.) Because neither parent could care for J.B., Nevada's child-welfare agency had to find someone else to take him in. Shortly after J.B.'s birth, DFS placed him with Becky and Jay Whipple, family friends of J.B.'s grandmother. The Whipples were not licensed foster parents at the time, and the district court signed an order describing them as "Unlicensed Fictive Kin." "Fictive kin," under Nevada law, means a person not related to a child by blood but who has a significant emotional and positive bond with the child. No one objected to that designation when it was made. Months later, after a paternity test confirmed Miles Stano Jr. was J.B.'s father, the father asked that J.B. be sent to live with the paternal grandfather in Illinois. After interstate paperwork was completed (about nine months after J.B. was placed with the Whipples, by which point the Whipples had become licensed foster parents), the district court held a placement hearing. The district court did not take evidence about what was best for J.B. Instead, the judge ruled that, as a matter of law, a blood relative always wins out over an unrelated person in placement decisions, and the judge also reversed course and decided the Whipples were not really fictive kin after all. The court ordered J.B. moved to Illinois. Compounding the issue, J.B.'s court-appointed attorney did not appear at the placement hearing or at the later reconsideration hearing. The Supreme Court noted J.B. was largely without representation throughout the case, even though state law requires that children in these proceedings be represented by counsel. The Nevada Supreme Court granted the writ and made several rulings. First, it explained that "fictive kin" status is judged from the perspective of both the prospective caregiver and the child. For an infant who cannot yet form relationships, the bond and commitment shown by the adult is what counts; an infant is not excluded from being placed with fictive kin just because the baby has not had time to bond. Second, the Supreme Court held that Nevada law does not put blood relatives ahead of fictive kin. The statute groups them together and prefers either over a foster home, but it does not rank them against each other. The decisive question is the child's best interest, and that requires actual factual findings. Third, the district court should not have proceeded with the placement hearing when J.B.'s attorney was absent and a continuance was being sought. Fourth, the Supreme Court ordered the case reassigned to a different district court judge, citing statements by the original judge that suggested he could not put aside his view that placement with "safe family" is always best. The Supreme Court vacated the placement order, lifted its prior stay, and sent the matter back for new proceedings before a different judge, who must hear evidence and make findings about what is actually in J.B.'s best interest.