MATTER OF PARENTAL RIGHTS AS TO Q.L.R. (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

This case of first impression held that incarceration does not, as a matter of law, support a determination that a parent intended to abandon a minor child, and reversed termination for lack of substantial evidence. Termination implicates fundamental liberty interests, is upheld only on substantial evidence, and requires clear and convincing evidence of both the child's best interest and parental fault. Matter of Parental Rights as to Carron, 114 Nev. 370, 374, 956 P.2d 785, 787 (1998); NRS 128.105; 118 Nev. at 606-07, 54 P.3d at 58-59. 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, and NRS 128.012(2) creates a presumption where a parent leaves a child without support or communication for six months. 'Intent is the decisive factor in abandonment.' Matter of Parental Rights of Montgomery, 112 Nev. 719, 727, 917 P.2d 949, 955 (1996). The court held that voluntary conduct resulting in incarceration does not alone establish an intent to abandon a minor child. 118 Nev. at 606, 54 P.3d at 58. Substantial evidence did not support abandonment: Roger did not demonstrate a settled purpose to relinquish claims, having attempted to send cards and drawings (refused by the mother), sent a small amount of support, and filed suit to reclaim property to sell for the child. Best interest. Under NRS 128.005(2)(c), the decisive considerations are the child's continuing needs for proper physical, mental, and emotional growth. The court held Nevada's statutory scheme does not support termination based solely on the duration of incarceration; the district court erred by focusing on the length of Roger's confinement as the decisive factor. 118 Nev. at 607-08, 54 P.3d at 59. The court noted that the nature of the crime remains relevant to best interest (NRS 128.106(6)), but Roger's crime was not directed at the child, he was parole-eligible in 2004, the child lived with her mother, and no one sought to adopt - distinguishing cases involving foster bonding or step-parent adoption. This was not a case warranting the 'civil death penalty.' The court reversed. 118 Nev. at 608-09, 54 P.3d at 59-60.

In plain language

Roger was the father of a young daughter, Q.L.R. After separating from the child's mother, Dina, Roger developed a cocaine addiction and went through what he called an 'idiotic two months,' calling Dina at work dozens of times a day. Dina obtained a protective order. Roger then forced his way into Dina's car and drove around Las Vegas with her and the child for several hours (he did not harm the child and stopped to buy diapers and food). This led to convictions for aggravated stalking, burglary, robbery, and second-degree kidnapping, and a prison sentence of five to fifteen years. Dina then petitioned to terminate Roger's parental rights, and the district court granted it, reasoning that by committing crimes and going to prison, Roger had abandoned the child. The Nevada Supreme Court reversed. The central question - one of first impression - was whether incarceration, by itself, proves that a parent intended to abandon his child. The court said no. Nevada law defines abandonment as conduct showing a 'settled purpose' to give up all parental claims, and intent is the decisive factor. The court held that voluntary conduct resulting in incarceration does not, by itself, establish an intent to abandon a child. The record showed the opposite of abandonment: while in prison Roger completed numerous rehabilitation programs, took college courses, sent the child cards and drawings (which the mother refused to pass along), sent a small amount of money, and filed a lawsuit to recover property to sell for the child's support. The court also held that termination cannot rest solely on the length of a parent's incarceration, and that the district court failed to properly analyze the child's best interest. Because Roger would be eligible for parole in a few years, his crime was not directed at the child, the child lived with her mother, and no one was seeking to adopt, this was not a case warranting the 'civil death penalty' of termination. The court reversed.