IN RE: PARENTAL RIGHTS AS TO L.R.S., J.M.S. AND J.L.S.

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviewed conclusions of law, including statutory construction, de novo (Dewey v. Redev. Agency of Reno, 119 Nev. 87, 93-94, 64 P.3d 1070, 1075 (2003)), and factual findings for substantial evidence (In re Parental Rts. as to A.L., 130 Nev. 914, 918, 337 P.3d 758, 761 (2014); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007)). Termination requires clear and convincing evidence of both the child's best interest and parental fault (In re Parental Rts. as to A.J.G., 122 Nev. 1418, 1423, 148 P.3d 759, 762 (2006)), and termination is "an exercise of awesome power that is tantamount to imposition of a civil death penalty," warranting close scrutiny. Scope of NRS 128.107. The majority held that NRS 128.107's enumerated considerations - including services to facilitate reunion, payment of substitute physical care costs, maintenance of regular visitation, and contact with the child's "custodian" - presuppose a child not in the physical custody of either parent (e.g., relative placements or NRS Chapter 159A guardianships). Reading the statute to apply where a child resides with one parent would render parts meaningless, contrary to Leven v. Frey, 123 Nev. 399, 405, 168 P.3d 712, 716 (2007). The court distinguished dicta in Daly v. Daly, 102 Nev. 66, 70, 715 P.2d 56, 58 (1986), as addressing only a child's right to be heard. It also rejected reliance on Drury v. Lang, 105 Nev. 430, 431, 776 P.2d 843, 843 (1989), reading Drury's reference to NRS 128.107 as quoting then-current NRS 128.105 rather than independently endorsing 128.107's application in custodial-parent cases. Scope of NRS 128.109. By its plain terms, NRS 128.109 applies only when a child has been placed outside the home "pursuant to chapter 432B of NRS." Because this proceeding was not an NRS Chapter 432B case, the 14-of-20-months presumption was inapplicable. See Local Gov't Emp. Mgmt. Rels. Bd. v. Educ. Support Emps. Ass'n, 134 Nev. 716, 718, 429 P.3d 658, 661 (2018). Abandonment (NRS 128.012). The court held the rebuttable presumption of abandonment under NRS 128.012(2) (no support and no communication for six months while the child is in another's care) did not apply because the children were in Marie's custody by court order. Even if it did, Ryan rebutted it by a preponderance of the evidence (In re Termination of Parental Rts. as to N.J., 116 Nev. 790, 802-04, 8 P.3d 126, 133-35 (2000); In re Guardianship of N.M., 131 Nev. 751, 757, 358 P.3d 216, 220 (2015)) by showing repeated visitation requests, compliance with the custody evaluation, and material support, analogous to In re D.D., No. 69068, 2016 WL 4082454 (Nev. July 28, 2016) (Order of Reversal and Remand). The court reaffirmed that financial inability cannot support a fault finding, citing Matter of R.T., 133 Nev. 271, 274, 396 P.3d 802, 805 (2017), and NRS 128.106(1)(e). It further held that a pro se and indigent parent's inability to navigate the judicial system - here, failure to move to modify custody - cannot support an abandonment finding. Neglect (NRS 128.106(1)(e)). Citing Chapman v. Chapman, 96 Nev. 290, 294, 607 P.2d 1141, 1144 (1980), the court reiterated that neglect findings must rest on the parent's treatment of the child while in the parent's custody and are not established when the child is in an environment of proper care. Because Marie testified the children were thriving, even an alleged failure to pay support did not constitute substantial evidence of neglect. See Greeson v. Barnes, 111 Nev. 1198, 1209, 900 P.2d 943, 950 (1995) (Springer, J., dissenting). Token efforts (NRS 128.105(1)(b)(6)). Ryan's mental-health treatment, repeated visitation requests, and tangible gifts and support, viewed against his financial limitations, defeated a finding of token efforts. The court contrasted In re N.J., 125 Nev. 835, 846, 221 P.3d 1255, 1263 (2009), where the parent failed to address her drug addiction and slept through visits. Remedy. Because clear and convincing evidence did not support parental fault, the court reversed and remanded with instructions to order destruction of the amended birth certificates issued under the terminated order, citing Butler v. Eaton, 141 U.S. 240, 244 (1891), for the principle that a reversed judgment is "without any validity, force, or effect." The court did not reach Ryan's constitutional argument regarding care and custody of his children. Concurrence. Justice Lee concurred in the result, but read NRS 128.107 to apply whenever the parent whose rights are at issue lacks physical custody, including when the other parent has custody, relying on the statute's reference to "the parent or parents" (Arguello v. Sunset Station, Inc., 127 Nev. 365, 370, 252 P.3d 206, 209 (2011); Sunrise Hosp. & Med. Ctr., LLC v. Eighth Jud. Dist. Ct., 140 Nev., Adv. Op. 12, 544 P.3d 241, 247 (2024); Chandra v. Schulte, 135 Nev. 499, 501, 454 P.3d 740, 743 (2019)) and Drury v. Lang.

In plain language

Ryan and Marie are the divorced parents of three young children. After their 2019 separation, Marie was awarded primary physical and sole legal custody, and a psychologist evaluated Ryan, finding him unfit at the time and recommending therapy followed by gradual reunification with the children. Marie was permitted to relocate with the children to California. Ryan briefly had supervised in-person visits and then weekly virtual visits, but the visits stopped in June 2020 after Marie switched to a paid supervision platform that Ryan said he could not afford. In the years that followed, Ryan continued to seek treatment from multiple mental-health providers, several of whom reported he had made progress and recommended reunification. He sent diapers, wipes, money toward a medical procedure for one of the twins, and a pair of custom sneakers. He also emailed Marie's lawyer asking to see his children. He did not, however, formally move the court to modify custody, and he did not pay court-ordered child support, citing financial difficulties tied in part to a prior felony conviction. In late 2022, Marie filed a petition to terminate Ryan's parental rights. After an evidentiary hearing, the district court terminated Ryan's rights, finding he had abandoned and neglected the children and made only "token efforts" to be involved in their lives. The court relied on two statutes: NRS 128.107, which lists factors courts must consider in termination cases, and NRS 128.109, which creates a presumption that termination is in a child's best interest when the child has lived outside the home for a long time. The Nevada Supreme Court reversed. The majority held that NRS 128.107 does not apply when the children are in the physical custody of a parent (as opposed to foster care, a relative, or a guardian), and that NRS 128.109 applies only in cases brought under NRS Chapter 432B - the chapter governing child welfare cases involving the State. Because this was a private termination proceeding by one parent against the other, neither statute fit. The court also concluded that the evidence did not support any of the three parental-fault grounds. On abandonment, the court reasoned that the statutory presumption did not apply because the children were placed with Marie by court order, and even if it did, Ryan rebutted it by repeatedly requesting visits, sending gifts and support, and pursuing the treatment recommended by the custody evaluator. The court emphasized that financial inability to pay support cannot itself establish abandonment, and that an unrepresented parent's failure to navigate court procedures cannot be held against them in this context. On neglect, the court noted Marie testified the children were thriving in her care, so Ryan's conduct could not be deemed sufficiently harmful. On token efforts, Ryan's documented therapy, requests for visitation, and gifts were enough to defeat the finding. The court reversed the termination order, instructed the district court to order destruction of the amended birth certificates that had been issued (which had changed the children's last names), and sent the case back for further proceedings. Justice Lee concurred in the result but disagreed with the majority's reading of NRS 128.107, arguing the statute should apply whenever the parent whose rights are being considered does not have physical custody, even if the other parent does.