DALY VS. DALY (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

Applying the clear and convincing evidence standard adopted in Cloninger v. Russell, 98 Nev. 597, 655 P.2d 528 (1982) (following Santosky v. Kramer, 455 U.S. 745 (1982)), and the two-part jurisdictional/dispositional framework of Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), the court affirmed termination under NRS 128.110 and NRS 128.105. Jurisdictional grounds were satisfied by the risk of serious mental or emotional injury to the child if visitation resumed (NRS 128.105(4)), supported by expert testimony; the court also noted abandonment (NRS 128.105(1)) supported by the presumption arising from more than six months without support or communication (NRS 128.012(2)) and only token efforts to communicate (NRS 128.105(5)(a)). The child's expressed desire not to visit was a proper consideration given her capacity (NRS 128.107). Dispositional grounds - the child's best interest - were satisfied given the child's present well-adjusted state and the substantial risk of injury from forced contact. The court stressed it did not hold the parent unfit merely because of her transsexualism but rather focused on the effect on the child, according due deference to the trial court's credibility determinations.

In plain language

This case involved a petition to terminate the parental rights of a father. Nan Daly was the mother of a daughter, Mary, born in 1973; the appellant, formerly Tim Daly and later Suzanne Daly, was Mary's father and underwent sex-reassignment surgery, transitioning from male to female. The parents had divorced in 1981, with Nan awarded custody and the father given visitation. During an August 1981 visit, the father told Mary about the planned transition and asked her to keep it secret. After that visit, the mother observed dramatic changes in Mary, a previously talented child: she became withdrawn and fearful, wet the bed, could not follow instructions, and her schoolwork deteriorated. Mary eventually revealed her father's plans, and a psychologist advised that it was dangerous for Mary to be in her father's company. In 1982, the mother petitioned to terminate the father's parental rights, and in 1983 the trial court granted the petition. The father appealed, arguing there was no legal basis for termination and that the court was simply enforcing the mother's private prejudices. The Nevada Supreme Court affirmed. It applied the required "clear and convincing evidence" standard and Nevada's framework requiring both jurisdictional grounds (a fault or condition related to the parent) and dispositional grounds (the child's best interest). The court emphasized it was not finding the father unfit merely because she was transsexual; rather, expert testimony established a serious risk of emotional or mental injury to Mary if forced visitation resumed, Mary (found old enough to express her wishes) did not want to see her father, and the father had paid no support for over a year and made only token efforts to communicate. On those grounds the court held both the jurisdictional and dispositional requirements were satisfied and that termination was in Mary's best interest.