Drury v. Lang, 18787
| Decision Date | 06 July 1989 |
| Docket Number | No. 18787,18787 |
| Citation | 105 Nev. 430,776 P.2d 843 |
| Parties | Joanne DRURY, Appellant, v. Cecil S. LANG, Respondent. |
| Court | Nevada Supreme Court |
The primary issue in this appeal is whether a parent's failure to communicate with her children for a period of six months is sufficient as a matter of law to support a determination that the parent's behavior evinces a settled purpose to abandon the children. We conclude that it is not, and reverse the district court's judgment terminating appellant's parental rights.
Appellant Joanne Drury (Joanne) and respondent Cecil S. Lang (Cecil) were married on September 4, 1976. On August 10, 1983, Joanne was granted a decree of divorce on grounds of irreconcilable differences. The district court awarded Cecil custody of the parties' twin children, then age six, and awarded Joanne reasonable visitation privileges. Cecil neither sought nor did the district court award him child support. Both parties subsequently married other people. Cecil continued to reside in Tonopah with the parties' children, his present wife, and her two children. Joanne remained in Tonopah until September, 1985, and, thereafter, lived in New Mexico, Colorado, and Goldfield, Nevada. Joanne returned to Tonopah in November, 1986, after Cecil petitioned the district court to terminate her parental rights.
The gravamen of Cecil's petition was that Joanne left the children in the custody of another without provision for their support and without communication for a period of more than six months. See NRS 128.012(2). Contending that she had endeavored to maintain contact with the children since the divorce, but that Cecil increasingly frustrated her efforts, Joanne opposed Cecil's petition. Joanne disputed Cecil's averment that she had not communicated with the children for six months, and supported her opposition to his petition with an affidavit which detailed her efforts to maintain contact with the children, as well as with telephone billings for the months of April and May, 1986, which indicated long distance calls of relatively short duration from her to Cecil's residence.
Although the hearing on Cecil's petition was not recorded, the district court minutes reflect that both parties appeared and were represented by counsel, called witnesses, and offered exhibits. 1 Approximately nine months after the hearing, the district court issued its Memorandum of Decision and Order, which, according to the court, was based on clear and convincing evidence. 2 The district court initially observed that the parties' divorce decree did not impose upon Joanne an obligation of support. It therefore concluded that Cecil's allegation of abandonment premised on failure to support was meritless. The district court then focused on the six month period immediately preceding Cecil's filing of the petition on September 17, 1986. Finding that "[i]f any communication occurred during the subject period, it could be generously characterized as only a token effort not likely to have led to enhancing the parent-child relationship," the district court concluded that Joanne's "lack of communication evinced a settled purpose to abandon the children."
Having found what it considered to be the requisite jurisdictional grounds for termination of Joanne's parental rights, i.e., abandonment, the district court next determined that dispositional grounds were also present. Based on its findings that the children "have become integrated into a stable environment ...," and that "[t]heir obvious previous insecurity has been replaced by an atmosphere which is free of the discord which permeated their earlier home," the district court held that the children's best interest would be served by terminating Joanne's parental rights. This appeal followed.
Joanne contends that the district court erred in concluding that her failure to communicate for a period of six months "evinced a settled purpose to abandon the children." In Joanne's view, a mere six month lapse in communication is insufficient as a matter of law to establish a parent's intent to abandon her children. We agree.
At the time of the hearing on Cecil's petition, NRS 128.105 provided in pertinent part:
An order of the court for termination of parental rights 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, 128.107 and 128.108:
1. Abandonment of the child;
....
5. Only token efforts by the parent or parents:
(a) To support or communicate with the child;
....
6. With respect to termination of the parental rights of one parent, the abandonment by that parent.
Although the district court characterized Joanne's attempts at communication with the children as "token effort[s] not likely to have led to enhancing the parent-child relationship," it did not specifically base its finding of jurisdictional grounds, and we believe correctly so, on subsection 5 of NRS 128.108, supra. See Champagne v. Welfare Division, 100 Nev. 640, 646, 691 P.2d 849, 854 (1984) () (emphasis added). Instead, it presumably found that Joanne had abandoned the children. Cf. NRS 128.108(6), supra.
The term "abandonment of a child" as used in NRS 128.105 is defined as "any conduct ... which evinces a settled purpose ... to forego all parental custody and relinquish all claims to the child." NRS 128.012(1). While abandonment is determined by the facts in each case, Sernaker v. Ehrlich, 86 Nev. 277, 280, 468 P.2d 5, 7 (1970), in every previous case in which we have upheld a trial court's finding of abandonment something more than a mere failure to communicate for a six month period was present. See, e.g., Champagne, 100 Nev. at 640, 691 P.2d at 849 (); Pyborn v. Quathamer, 96 Nev. 145, 605 P.2d 1147 (1980) (...
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Daniels, Matter of
...failed to support his child and made meager efforts to communicate with the child. Id. at 449, 357 P.2d at 593. In Drury v. Lang, 105 Nev. 430, 776 P.2d 843 (1989), a post-Champagne case, we interpreted NRS 128.105 6 as requiring a substantial abandonment and something more than a parent's ......
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