Matter of Parental Rights as to NJ

• Decision Date: 24 August 2000
• Docket Number: No. 32436.,32436.
• Citation: 8 P.3d 126,116 Nev. 790
• Parties: In the Matter of TERMINATION OF PARENTAL RIGHTS AS TO N.J., a Minor. Sam Z. and Talia Z., Appellants, v. Hikmet and Raja J., and the Minor Child N.J., Respondents.
• Court: Nevada Supreme Court

8 P.3d 126

116 Nev. 790

In the Matter of TERMINATION OF PARENTAL RIGHTS AS TO N.J., a Minor.

Sam Z. and Talia Z., Appellants, v. Hikmet and Raja J., and the Minor Child N.J., Respondents.

No. 32436.

Supreme Court of Nevada.

August 24, 2000.

Jimmerson Hansen, Las Vegas, for Appellants.

Paul M. Gaudet, Las Vegas, for Respondents Hikmet and Raja J.

Kirby R. Wells & Associates and Allison L. Herr, Las Vegas, for Respondents.

BEFORE THE COURT EN BANC.

OPINION

AGOSTI, J.:

This is an appeal from an order of the district court denying a petition for termination of parental rights and from an order denying a motion for a new trial. In determining whether to terminate parental rights, this court has consistently applied the jurisdictional/dispositional standard set forth in Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984). Based on legislative amendments to NRS 128.105, which sets forth the grounds for terminating parental rights, we now reject our Champagne standard, which requires a district court to find jurisdictional grounds to terminate parental rights before it considers the best interests of the child. In its place, we adopt a best interest/parental fault standard which requires a district court to consider whether the best interests of the child would be served by the termination and whether parental fault exists. We also conclude that the district court failed to apply the statutory presumption of abandonment as codified in NRS 128.012(2). In light of our decision today, we reverse the district court's orders and remand this matter for a new trial.

FACTS

In 1988, a child was born to respondents Hikmet and Raja J. in Baghdad, Iraq. In early 1990, Raja and the child traveled from Iraq to Michigan, where family resides. That summer, Raja departed from the United States and left the child behind in Michigan with her sister and brother-in-law, appellants Talia and Sam Z. Since then, Talia and Sam have raised the child in Las Vegas and San Diego. Talia and Sam are the only parents the child has ever known. Until recently, the child was unaware of the true identity of her biological parents.

In 1996, after caring for the child for approximately six years, Talia and Sam petitioned the Nevada district court for guardianship of the child. Talia and Sam's petition was granted. Subsequently, Raja and Hikmet filed a petition to terminate the guardianship, which was denied. Thereafter, Talia and Sam sought to adopt the child. Accordingly, in May 1997, Talia and Sam moved the district court to terminate the parental rights of Raja and Hikmet. An evidentiary hearing was conducted on November 21, 1997.

During the hearing, the parties offered drastically differing evidence regarding the reasons why Talia and Sam have raised the child since 1990. Talia testified that following the news of Raja's pregnancy with the child, a family member informed her that Raja was going to give the baby to her. According to Talia, Raja allegedly said that she wanted Talia to raise the child because Raja was too old and Talia was unable to conceive. Talia further testified that when Raja brought the child to the United States in 1990, Raja told Talia that the baby was now hers. Talia testified that she telephoned Hikmet, and he also told her to keep the baby.

Raja testified that she brought the child to Michigan in 1990 simply to visit family members. Raja further testified that her mother, the child's grandmother, convinced her to leave the child in the United States so that Raja could join Hikmet at a medical conference in London, England.¹ Following the London conference, Raja and Hikmet returned to Iraq. According to Raja, she and Hikmet intended to retrieve the child in October 1990 when Hikmet was scheduled to attend a medical conference in Toronto, Canada. However, on August 2, 1990, Iraq invaded Kuwait. The allied forces began bombing Iraq on January 17, 1991. According to Raja and Hikmet, travel out of Iraq was restricted due to the conflict. Exactly when travel was restricted and for how long is unclear. The record indicates that in 1993, Raja traveled to Michigan to attend her older daughter's wedding. In 1995, Raja returned to the United States to renew her green card. Allegedly, there was a ban on highly educated people leaving Iraq without special permission, and according to Raja and Hikmet, Hikmet was not allowed to leave Iraq until 1997. Talia and Sam insist that Hikmet traveled to Jordan in 1995.

Siblings of Talia and Raja testified that the entire family discussed the fact that Raja intended to give the child to Talia. According to one family member, Raja said that she gave Talia her baby in order for Talia to have luck in having children of her own. This family member testified that, "[t]hat's a superstition . . . in our culture."

Also during the evidentiary hearing, the parties presented conflicting evidence regarding two adoption consent forms allegedly executed by Raja and Hikmet. Raja admitted signing the first adoption consent form in Michigan on July 2, 1990, the day she left the United States for England. However, Raja testified that she did not read the document and thought it was an application to extend the child's visa. Talia testified that Raja is fluent in English and knew that the document was an adoption consent form. Talia further testified that Hikmet signed this document in her presence when she traveled to Iraq in 1994.² Raja and Hikmet admitted that they executed a second adoption consent form during December 1990 in Iraq. Raja and Hikmet further testified that they mailed this document with a will to Raja's mother. Raja and Hikmet insist that a letter, enclosed with the documents, instructed Raja's mother not to give the adoption consent form to Talia and Sam unless Raja and Hikmet and their three grown children died during the war. Raja reclaimed the adoption consent form from her mother in 1993, but apparently did not recover the letter or will.³ Raja and Hikmet resided in Iraq until the beginning of 1997 when they immigrated to the United States.

During the seven years before Talia and Sam filed their petition to terminate Raja and Hikmet's parental rights, Raja saw the child two times while visiting the United States, and Hikmet did not see the child at all. Talia testified that even though she telephoned Raja and Hikmet frequently, Raja and Hikmet showed no interest in communicating with the child; according to Talia they spoke to the child once by telephone when the child was four or five years old. Talia and Sam insist that Raja and Hikmet never provided any financial support for the child. Talia testified that Raja and Hikmet never sent the child presents or cards, except on one occasion when Raja and Hikmet allegedly sent a Christmas card addressed to the entire Z. family. The record establishes that immediately after Talia and Sam took custody of the child from Raja and Hikmet, they changed the child's name. Raja and Hikmet, and their three grown children, have since referred to the child by the new name.

Following the evidentiary hearing, the district court denied the petition to terminate Raja and Hikmet's parental rights. The district court determined that the evidence presented did not establish by clear and convincing evidence jurisdictional grounds that Raja and Hikmet had abandoned the child. Thereafter, Talia and Sam timely filed a motion for a new trial. On May 14, 1998, the district court denied Talia and Sam's motion. Talia and Sam timely filed this appeal.

DISCUSSION

Standard of Review

Termination of parental rights is "an exercise of awesome power." Smith v. Smith, 102 Nev. 263, 266, 720 P.2d 1219, 1220 (1986). Severance of the parent-child relationship is "tantamount to imposition of a civil death penalty." Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989). Accordingly, this court closely scrutinizes whether the district court properly preserved or terminated the parental rights at issue. See, e.g., Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998); Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997); Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801 P.2d 1359 (1990); Kobinski v. State, 103 Nev. 293, 738 P.2d 895 (1987). Due process requires that clear and convincing evidence be established before terminating parental rights. See Cloninger v. Russell, 98 Nev. 597, 655 P.2d 528 (1982). This court will uphold termination orders based on substantial evidence, and will not substitute its own judgment for that of the district court. See Kobinski, 103 Nev. at 296, 738 P.2d at 897.

Grounds for Termination of Parental Rights

NRS 128.105 sets forth the basic considerations relevant in determining whether to terminate parental rights: the best interests of the child and parental fault. In 1997, at the time of this proceeding, this statute provided as follows:

The primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination. An order of the court for termination of parental rights must be made in light of the considerations set forth in this section and NRS 128.106 to 128.109, inclusive, and based on evidence and include a finding that:

1. The best interests of the child would be served by the termination of parental rights; and

2. The conduct of the parent or parents demonstrated at least one of the following:

(a) Abandonment of the child;

(b) Neglect of the child;

(c) Unfitness of the parent;

(d) Failure of parental adjustment;

(e) Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains in, the home of his parent or parents;

(f) Only token efforts by the parent or parents:

(1) To support or communicate with the child;

(2) To prevent neglect of the child;

(3) To avoid being an unfit parent; or

(4) To eliminate the risk of serious physical, mental or

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