MATTER OF PARENTAL RIGHTS AS TO N.J. (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

The court rejected the jurisdictional/dispositional standard of Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), in light of legislative amendments to NRS 128.105, and adopted a best interest/parental fault standard requiring the district court to consider whether the child's best interests would be served by termination and whether parental fault exists. On remand, the district court must apply that standard rather than requiring jurisdictional grounds to be found before reaching the child's best interest. The court held the district court reversibly erred by failing to apply the statutory presumption of abandonment in NRS 128.012(2). Once the petitioners introduced evidence that the parents left the child for six months without communication or provision for support, the presumption arose and shifted to the parents the burden of proving nonabandonment. See NRS 47.180(1). Application of the NRS 128.012(2) abandonment presumption is not discretionary. See Gonzales v. Department of Human Resources, 113 Nev. at 331 n.5. The court further held the district court erred in excluding certified English translations of four Arabic letters. Because a new trial was required under the amended termination statute, and because of the failure to apply the abandonment presumption and the erroneous exclusion of the translated letters, the court reversed the order denying the petition to terminate the parental rights of Raja and Hikmet and remanded for a new trial.

In plain language

A child was born in 1988 in Baghdad, Iraq, to Raja and Hikmet J. In 1990, Raja brought the child to Michigan and left her with Raja's sister and brother-in-law, Talia and Sam Z. Talia and Sam raised the child in Las Vegas and San Diego for years and were the only parents the child had ever known. In 1996 they obtained guardianship, the parents' effort to end the guardianship failed, and Talia and Sam then sought to adopt the child and petitioned to terminate Raja and Hikmet's parental rights. The parties gave sharply conflicting accounts of whether Raja had given the child away or merely left her for a family visit. After an evidentiary hearing, the district court denied the petition to terminate. The Supreme Court reversed and ordered a new trial. Most importantly, the Court changed the legal standard Nevada courts use to decide termination cases. It abandoned the older 'jurisdictional/dispositional' test from Champagne v. Welfare Division, under which a court first had to find fault-type grounds before considering the child's best interest. Because the Legislature had amended the governing statute (NRS 128.105) to make the child's best interest the primary consideration, the Court adopted a 'best interest/parental fault' standard: the court must consider both whether termination serves the child's best interest and whether parental fault exists. The Court also held the district court made two reversible errors. First, it failed to apply the statutory presumption of abandonment in NRS 128.012(2). Once Talia and Sam showed the parents had left the child for at least six months without support or communication, the presumption arose and shifted the burden to the parents to prove they did not abandon the child; applying that presumption is not optional. Second, the district court wrongly excluded certified English translations of four Arabic letters. Because of these errors and the new statutory standard, the Court sent the case back for a new trial.