CHRISTOPHER SORRELLS v. DEPARTMENT OF FAMILY SERVICES AND MINOR (2023)

ORDER DISMISSING PETITION

This original petition for a writ of mandamus seeks to compel the district court to vacate its order for cochlear implants for a minor child in a dependency proceeding. After briefing was completed, petitioner Christopher Sorrells filed an emergency motion for a stay, stating that real party in interest C.S. “is scheduled to have this surgery on June 6, 2023.” After additional briefing from C.S. and real party in interest Department of Family Services (DFS), this court denied Sorrells’ motion on June 5, 2023, the day before the scheduled surgery. See Sorrells v. Eighth Judicial Dist. Court, Docket No. 86398 (Order Denying Stay, June 5, 2023). After undergoing the cochlear implant surgery, C.S. filed a motion to dismiss this writ petition as moot,

Sorrells opposes the motion, first arguing that the case is not moot because the procedure that C.S. underwent is reversible. This court's duty is to resolve justiciable controversies, and thus we generally will not render opinions on writ petitions that are moot. See Degraw v. Eighth Judicial Dist. Court, 134 Nev. 330, 332, 419 P.3d 136, 139 (2018); City of Reno v. Second Judicial Dist. Court, 58 Nev. 325, 326, 78 P.2d 101, 101 (1938). A case is moot if it “seeks to determine an abstract question which does not rest upon existing facts or rights.” Nat'l Collegiate Athletic Ass'n v. Univ. of Nev., Reno, 97 Nev. 56, 58, 624 P.2d 10, 11 (1981). “Cases presenting real controversies at the time of their institution may become moot by the happening of subsequent events.” Degraw, 134 Nev. at 332, 419 P.3d at 139 (internal quotation marks omitted).

Sorrells conflates the reversibility of cochlear implant surgery with a mootness analysis. In petitioning this court for writ relief, Sorrells challenged the district court's order granting a motion for cochlear implant surgery. The purpose of Sorrells’ petition—to prevent C.S. from receiving the cochlear implant surgery—has become moot now that C.S, has received the surgery. While Sorrells may move the district court for an order to remove the cochlear implants, that is a separate issue beyond the scope of this writ petition.

We next turn to whether the capable-of-repetition-yet-evading-review doctrine applies, as Sorrells contends. Even where an issue is moot, “we may still consider [a] case as a matter of widespread importance capable of repetition, yet evading review.” Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 334, 302 P.3d 1108, 1113 (2013). For this exception to apply, the moving party must demonstrate that “(1) the duration of the challenged action is relatively short, (2) there is a likelihood that a similar issue will arise in the future, and (3) the matter is important.” Id. at 334-35, 302 P.3d at 1113. A challenged action is too short in its duration where it cannot “be fully litigated prior to its natural expiration,” In re Guardianship of L.S. & H.S., 120 Nev. 157, 161, 87 P.3d 521, 524 (2004).

Here, C.S. filed the motion for an order directing cochlear implant surgery in early February 2023. Sorrells had notice and the opportunity to be heard on this motion. After the district court entered an order granting the motion, Sorrells filed a motion, for a stay, which the district court denied following a hearing. Sorrells then filed this writ petition, but Sorrells waited more than six weeks before filing an emergency motion for a stay. Because Sorrells had notice of and an opportunity to be heard on the motion for cochlear implant surgery and had time to seek a stay of the district court's order before the surgery was performed, we conclude that the challenged action was not of such a short duration so as to prevent Sorrells from fully litigating his challenge. And because the surgery has already occurred, it is also unlikely that a similar issue will arise in the future. While the surgery is reversible, there is no evidence that C.S. could undergo a second cochlear implant surgery. Even if she could, there is no evidence that there would be sufficient time for C.S. to have a second surgery, as the medical evidence submitted by the parties reflects that the surgery's benefits lessen the closer to the age of three that a child gets, with no meaningful benefits after the age of three. Therefore, this case does not fall under the capable-of-repetition-yet-evading-review exception to the mootness doctrine. Accordingly, we dismiss Sorrells’ writ petition as moot.

It is so ORDERED.

Stiglich, C.J.

Lee, J.

Bell, J.