Champagne v. Welfare Div. of Nevada State Dept. of Human Resources
| Decision Date | 06 December 1984 |
| Docket Number | Nos. 13677,14100,14653 and 14906,s. 13677 |
| Parties | Paul CHAMPAGNE and Pamela Champagne, Appellants, v. WELFARE DIVISION OF the NEVADA STATE DEPARTMENT OF HUMAN RESOURCES, Respondent. Judith Ann FELSEN, Appellant, v. NEVADA STATE WELFARE DIVISION, Respondent. Melvin MURPHY and Jeenean Gertrude Snyder Murphy, Appellants, v. The WELFARE DIVISION OF the STATE DEPARTMENT OF HUMAN RESOURCES, Respondent. Cheryl Tolliver HICKERSON, Appellant, v. Don PINSON and Kathryn Pinson, Respondents. |
| Court | Nevada Supreme Court |
D. Brian McKay, Atty. Gen., Carson City, Terrance P. Marren, Israel L. Kunin, Daniel Hollingsworth, Deputy Attys. Gen., Las Vegas, for respondent Welfare Div.
John G. Watkins, Las Vegas, for appellant Felsen.
Gerald W. Hardcastle, Las Vegas, for appellants Murphy and Murphy.
Thomas E. Shulman, Las Vegas, for appellant Hickerson.
Gardner & Stoebling and R. Michael Gardner, Las Vegas, for respondents Pinson and Pinson.
This opinion considers four appeals in which the parental rights of fathers and mothers have been permanently terminated by judicial decree. Severance of parental rights is an exercise of awesome power, a power which we "question closely" as we consider the four cases before us. Casper v. Huber, 85 Nev. 474, 477, 456 P.2d 436, 438 (1969).
NRS 128.110 authorizes the courts to terminate the legal relationship of parent and child "upon finding grounds" set out in the statute. NRS 128.105 1 provides that a termination order "may be made on the grounds that the termination is in the child's best interest in light of the considerations set forth in this section and NRS 128.106 to 128.108, inclusive." The "considerations" set forth in the section include abandonment, neglect, unfitness of the parent, child abuse and a rather hazy, probably redundant consideration phrased as "[o]nly token efforts by the parent" to avoid or prevent abandonment, neglect, unfitness By NRS 128.106 the court is given direction in "determining neglect or unfitness of a parent" in that the courts are required to consider certain conditions which relate to "suitability as a parent." (Emphasis supplied.)
or abuse. Whatever "token efforts" might mean, we read NRS 128.105 as a whole to mean that termination of parental rights is to be based on substantial abandonment, neglect, parental unfitness or child abuse.
From a reading of the foregoing sections and Chapter 128 as a whole we conclude that there are two kinds of grounds necessary to be considered in termination proceedings. One relates to parental conduct or incapacity 2 and the parent's suitability as a parent; the other relates to the best interest of the child.
Putting it another way: there must be jurisdictional grounds for termination--to be found in some specific fault or condition directly related to the parents--and dispositional grounds--to be found by a general evaluation of the child's best interest.
We borrow from Ketcham and Babcock 3 to state the general proposition in these terms:
The jurisdictional aspect of termination proceedings focuses on the "fundamental liberty interests of the natural parents in the care, custody, and management of their child," and this interest "does not evaporate simply because they have not been model parents or have lost temporary custody of the child to the State." Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Santosky, Rehnquist dissent, at 787, 102 S.Ct. at 1412.
Because of the sacredness of parental rights a higher standard of proof, that of "at least clear and convincing evidence," is required before the children can be judicially taken away. Santosky, above. Also, the degree and duration of parental For example, a judicial determination that a child has been neglected may call for varying degrees of state intervention, ranging from mild reprimand to permanent termination of parental rights. Neglect is a relative term applied to a child who "lacks the proper parental care by reason of [parental] fault." NRS 128.014. Although it is difficult to define "proper," it is probably true that all parents are at one time or another guilty of neglecting to give their children "proper" care. To provide a jurisdictional basis for termination, neglect must be serious and persistent and be sufficiently harmful to the child so as to mandate a forfeiture of parental rights. 4 In such a case a parent may be adjudged to be unsuitable to maintain the parental relationship and, therefore, to deserve to lose it.
fault of incapacity necessary to establish jurisdictional grounds for termination is greater than that required for other forms of judicial intervention.
The same principles apply to the jurisdictional ground of unfitness. Unfitness is the other side of the neglect coin. Neglect defines a condition of the child; unfitness describes a condition of the parent. A neglected child is one who does not receive "proper " care; an unfit parent is one who fails to provide a child with "proper " care. Again: all parents are guilty of failure to provide proper care on occasion; and a parent does not deserve to forfeit the sacred liberty right of parenthood unless such unfitness is shown to be severe and persistent and such as to render the parent unsuitable 5 to maintain the parental relationship.
In like manner, abuse of a child may or may not render a parent unsuitable to be a parent. NRS 128.105 lists as a ground or consideration for termination "[r]isks of serious physical, mental or emotional injury to the child if he were returned to, or remains in the home ...." Such a risk may be mitigated, and a child may be safely returned to the home; or the risk may be of such magnitude and persistency as to render the parent unsuitable and justify forfeiture of parental rights.
Our discussion of jurisdictional grounds cannot be complete without adding to abuse and neglect, unfitness and abandonment, another ground revealed in the interstices of NRS Chapter 128. It is difficult to give this ground a name or designation, but, essentially, it consists in a parent's being unable or unwilling within a reasonable period of time to remedy substantially conditions which led to a child's out-of-the-home placement, notwithstanding reasonable and appropriate efforts on the part of the state and others to return the child.
The new ground, finding its way into law in the 1981 legislative session The gist of the new ground, which might be abbreviated as "failure of parental adjustment" finds its matrix in NRS 128.107 and 128.108, which enumerate "specific considerations" applicable when a child is not in the physical custody of a parent or when the child has been placed in a foster home.
has its mediate origin in the Juvenile Justice Standards Project, Standards Relating to Abuse and Neglect, Standard 8. These standards, adopted jointly by the American Bar Association and the Institute of Judicial Administration, are in turn largely based on theories published in a book entitled Beyond the Best Interests of the Child. 6
These "specific considerations" form a number of heterogeneous matters to be considered "in determining whether parental rights should be terminated." The list includes factors of both jurisdictional and dispositional import. For example, in assessing the duties of a parent who has been separated from his or her child, the court must consider the services provided or offered The idea of permanently taking a child from a parent by reason of the parent's failing to adjust to "circumstances, conduct or conditions" prescribed by the state is an idea that is new to public family law. The idea is part of what have been called "permanency programs" (see footnote 6) which can be traced to the early 1970's. These programs call for increased efforts to keep children in their natural families, mandatory periodic review of out-of-home placements and, significantly, termination of parental rights to free children for adoption when it appears that parents will be unable to resume custody within a reasonable period of time.
to the parent "to facilitate a reunion with the child" and the effort of the parent to adjust "circumstances, conduct or conditions" to justify the child's return home within a "reasonable length of time."
Certainly no one can quarrel with the idea of promoting permanency and stability in the lives of children. Still, we must remember that poverty, sickness, and other such eventualities may result in the separation of children of a loving and quite...
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