IN RE: PARENTAL RIGHTS AS TO G.V. (FAMILY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: questions of law are reviewed de novo; the district court's factual findings are reviewed for substantial evidence. In re Parental Rts. as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014). To terminate parental rights, the district court must find by clear and convincing evidence (1) at least one ground of parental fault and (2) that termination is in the child's best interest. NRS 128.105(1); In re Termination of Parental Rts. as to N.J., 116 Nev. 790, 800-01, 8 P.3d 126, 132-33 (2000). Right to counsel. The Court reaffirmed that there is no absolute right to appointed counsel in termination proceedings, citing In re Parental Rts. as to N.D.O., 121 Nev. 379, 383-84, 115 P.3d 223, 225-26 (2005). NRS 128.100(3) is permissive: the court "may" appoint counsel for an indigent parent who desires representation, but the statute does not obligate the court to inquire sua sponte. Because Mike did not request counsel, the district court was not required to undertake the due process analysis described in N.D.O. Abandonment. NRS 128.012(1) defines abandonment as conduct evincing "a settled purpose . . . to forego all parental custody and relinquish all claims to the child." Intent is the decisive factor. In re Parental Rts. of Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996). Although NRS 128.012(2) creates a six-month rebuttable presumption, the Court held the presumption is inapplicable where the district court has placed the child in the other parent's custody, citing Matter of L.R.S., 140 Nev., Adv. Op. 62, 555 P.3d 1175, 1181 (2024). Even assuming applicability, Mike rebutted the presumption: he sought to set aside the custody order, moved for mediation immediately after release from incarceration, and was rebuffed by Alexandrea's opposition. The Court reiterated that "a pro se and indigent parent's inability to navigate the judicial system cannot be used as support for the finding of abandonment," Matter of L.R.S., 555 P.3d at 1181, and that incarceration alone does not establish intent to abandon, In re Parental Rts. as to Q.L.R., 118 Nev. 602, 606-08, 54 P.3d 56, 58-60 (2002). Unfitness. Under NRS 128.018, an unfit parent is one "who, by reason of the parent's fault or habit or conduct toward the child or other persons, fails to provide such child with proper care, guidance, and support." The Court emphasized that NRS 128.106(1)(b) and (f) limit consideration of a parent's violent or criminal history (in the unfitness context) to felony convictions and cruel or abusive conduct toward a child. Although crime nature is relevant to best interests, In re Parental Rights as to K.D.L., 118 Nev. 737, 746, 58 P.3d 181, 187 (2002), the trial court's reliance on uncharged domestic-violence testimony not involving the child was insufficient. Unfitness must be "severe and persistent and such as to render the parent unsuitable to maintain the parental relationship." Champagne v. Welfare Div. of Nev. State Dep't of Hum. Res., 100 Nev. 640, 648, 691 P.2d 849, 855 (1984). Mike's substance-abuse history, given his testimony of sustained employment, provision for G.V., a prior period of sole custody, and nearly a year of sobriety at trial, did not satisfy this standard. Failure to support. The Court held this is not an enumerated ground of parental fault under NRS 128.105(1)(b). The district court's order citing NRS 128.014(2) (neglect) and NRS 128.106(1)(e) was internally inconsistent, as the district court did not find neglect. Token efforts. NRS 128.105(1)(b)(6) recognizes "token efforts . . . [t]o support or communicate with the child" as a parental-fault ground. The Court found Mike's communication efforts were constrained by the operative custody order and by Alexandrea's refusal of visitation. On financial support, the district court gave Mike's testimony "limited weight" for failure to produce receipts - but the moving party bears the clear-and-convincing burden, In re A.J.G., 122 Nev. at 1423, 148 P.3d at 762, and the absence of receipts could not satisfy Alexandrea's burden. Cf. Matter of L.R.S., 555 P.3d at 1182. Best interests. The Court did not reach best interests but cautioned that the best-interests determination must be supported by more than findings of parental fault, citing Sernaker v. Ehrlich, 86 Nev. 277, 279, 468 P.2d 5, 6 (1970), and In re N.J., 116 Nev. at 803, 8 P.3d at 134.

In plain language

Mike V. and Alexandrea P. are the parents of a child, G.V. In 2021, Alexandrea was given sole legal and physical custody. In early 2023, Mike asked the court to set aside that custody order; later that month, Alexandrea asked the court to terminate his parental rights altogether. Mike's motion to undo the custody order was denied, he was incarcerated from September to December 2023, and after his release his request for mediation so he could see G.V. was also denied. After an evidentiary hearing in May 2024, the district court terminated Mike's parental rights in July 2024. Mike appealed. The Nevada Supreme Court reversed. On Mike's first argument - that the trial court should have appointed him a lawyer - the Court rejected the claim. There is no automatic right to a free lawyer in parental termination cases, and because Mike never asked for one, the trial court was not required to analyze whether due process demanded appointed counsel. On the substance, however, the Court found that none of the four grounds the trial court used to terminate Mike's rights was supported by the evidence. The trial court said Mike had "abandoned" G.V. because he had not seen her in over six months. But the Supreme Court explained that the legal presumption of abandonment does not apply when a court has placed the child with the other parent, as happened here. Even if it did apply, Mike rebutted it: he had repeatedly tried to see G.V., asked the court to change custody, and sought mediation as soon as he was out of jail - all of which Alexandrea opposed. The Court also noted that being incarcerated, by itself, does not show an intent to abandon a child. The trial court called Mike "unfit" because of his criminal history and substance abuse. The Supreme Court explained that the unfitness statute focuses on felony convictions and cruel or abusive conduct toward a child, and the evidence here was domestic-violence allegations that did not involve the child and did not lead to a conviction. As for substance abuse, Mike testified he had been sober nearly a year, had held jobs, had bought things for G.V., and had even cared for G.V. by himself for an extended period. That was not enough to show the kind of "severe and persistent" unfitness the law requires. The trial court also listed "failure to support" as a ground of parental fault. The Supreme Court pointed out that "failure to support" is not actually one of the grounds for terminating parental rights listed in Nevada's statute. Finally, the trial court found Mike had made only "token efforts" to support or communicate with G.V. The Supreme Court observed that Mike's ability to see G.V. was limited by the existing custody order and by Alexandrea's refusal to allow visits. As for financial support, the trial court discounted Mike's testimony because he did not produce receipts - but it was Alexandrea's burden to prove parental fault, not Mike's burden to disprove it. Because none of the parental-fault grounds held up, the Court did not need to address the "best interests of the child" question, but it reminded the trial court on remand that best interests must rest on more than just findings of parental fault.