CHAPMAN VS. CHAPMAN (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

The Court (Mowbray, C.J.) reversed an order terminating a mother's parental rights, holding the record insufficient to support the district court's findings. Termination is a drastic measure that 'should be applied with caution,' Carson v. Lowe, 76 Nev. 446, 451, 357 P.2d 591, 594 (1960); the petitioner must 'establish the facts,' and the court must give due regard to the parent's rights and to ties of blood and affection, with a dominant purpose of serving the child's best interest, NRS 128.090. A finding of abandonment is sustained if supported by substantial evidence, Sernaker v. Ehrlich, 86 Nev. 277, 279-80, 468 P.2d 5, 7 (1970), but the Court will 'question closely' terminations, Casper v. Huber, 85 Nev. 474, 477, 456 P.2d 436, 438 (1969). The district court had found all three statutory grounds - unfitness, neglect, and abandonment. NRS 128.105. A threshold defect controlled the analysis: the same judge who heard the termination petition had presided over the prior guardianship proceeding and purported to take judicial notice of evidence from it, relying in the findings on evidence not in the present record; NRS 47.130 does not permit judicial notice in these circumstances, so the Court assessed sufficiency without reference to the prior proceeding. On abandonment (NRS 128.012; NRS 128.105(2)), the district court improperly counted, as part of the six-month period, an interval during which appellant was subject to a temporary restraining order prohibiting contact with the child; 'token efforts' to communicate cannot support abandonment while the parent is legally prohibited from contact. Cf. Pyborn v. Quathamer, 96 Nev. 145, 605 P.2d 1147 (1980). Appellant was also seriously ill during part of the period and had visited often earlier. On neglect (NRS 128.014), a finding must rest on treatment of the child while the parent has custody and is not established where the child is left where known to be receiving proper care; the evidence adduced was insufficient as a matter of law. On unfitness (NRS 128.018), evidence of a 1974 marijuana-transport conviction, frequent moves, association with a probationer, a sporadic employment history, and a single admitted drink while on prescribed sedatives showed a more bohemian lifestyle but did not justify permanent, irrevocable termination. The Court also noted the absence of any psychological testimony or child-custody-agency report regarding the parent-child relationship. It reversed and remanded with directions to dismiss the petition without prejudice, without altering respondents' guardianship.

In plain language

This case concerns the termination of a mother's parental rights in her daughter, Michelle, born in 1971. After the mother (Sheree) and her now-deceased husband separated in 1976, the father took the child and, over time, placed her with his brother and sister-in-law, who cared for her. The father died in early 1978, the aunt and uncle were made the child's guardians, and they then asked the court to terminate Sheree's parental rights so they could adopt Michelle. After a hearing, the district court found Sheree unfit and found the child neglected and abandoned, and it terminated her rights. The Nevada Supreme Court reversed, holding that the evidence in the record did not support these findings. It stressed that terminating parental rights is a drastic step that must be applied with caution and reviewed closely. A key problem was that the same judge had handled the earlier guardianship case and relied on evidence from that proceeding - but no transcript or record of it was put into evidence in the termination case, and Nevada law did not allow the judge to take 'judicial notice' of that earlier evidence. So the Supreme Court reviewed only what was actually in the termination record. On abandonment, the court noted that part of the six-month no-contact period the trial court counted was a time when the mother was under a restraining order forbidding her from contacting the child - and the law cannot treat a lack of contact as abandonment when the parent is legally barred from contact. The mother was also seriously ill during part of that time and had visited often earlier. On neglect, the court held that neglect must be judged by how the parent treated the child while the parent had custody, and the thin evidence offered (taking the child to a rock concert; a single sighting years earlier of the child on a tricycle near a busy street) was legally insufficient. On unfitness, the evidence (an old drug conviction, frequent moves, a sporadic work history, socializing with someone on probation, one drink while on prescribed medication) showed a more unconventional lifestyle but did not justify permanently severing the parent-child bond. The court reversed and directed dismissal of the petition without prejudice, leaving the guardianship in place and allowing the relatives to refile later.