SMITH VS. SMITH (TERMINATION OF PARENTAL RIGHTS)

Statutes cited

Key holdings

Practitioner summary

The court applied Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), requiring both jurisdictional grounds (a specific fault or condition of the parent) and dispositional grounds (best interest of the child), each proven by clear and convincing evidence, and NRS 128.105. On abandonment, intent to abandon - a settled purpose to relinquish all parental rights - is the decisive factor (Sernaker v. Ehrlich, 86 Nev. 277, 468 P.2d 5 (1970)); the father's ongoing contact negated that intent and the mother's counsel conceded there was no abandonment. Failure to pay child support is not, by itself, a ground for termination, and the mother had alternative remedies. Neglect is not established during a period when the child is not in the parent's custody and is known to be receiving proper care (Chapman v. Chapman, 96 Nev. 290, 607 P.2d 1141 (1980)). Dispositional grounds also failed, as the only expert testimony was that termination was not in the child's best interest. The mother thus failed to prove the jurisdictional and dispositional grounds, and the court reversed.

In plain language

Marvin and Danielle Smith divorced in 1978, when their daughter Erica was five months old. Danielle received custody, Marvin got limited visitation, and he was ordered to pay $100 a month in child support. From 1978 to 1981 Marvin exercised visitation, though not to the full extent allowed. He moved to Arkansas in 1982, visited Erica for five days in 1984, and over the years telephoned Danielle to ask what Erica needed, called Erica every two to six months, and occasionally sent cards and gifts. Marvin was behind on his child support. Shortly after Marvin told Danielle he had remarried and had a new family, Danielle petitioned to terminate his parental rights, alleging abandonment and nonsupport. The trial court terminated Marvin's rights, finding he had neglected and abandoned Erica and that continuing the parental tie was not in her best interest. Marvin appealed. The Nevada Supreme Court reversed. It stressed that terminating parental rights is an extreme measure requiring both jurisdictional grounds and dispositional grounds, proven by clear and convincing evidence. On abandonment, the court held that intent to abandon is the decisive factor and that Marvin's continued contact showed he lacked that intent (Danielle's own counsel conceded this was not abandonment). On nonsupport, the court held that failure to pay child support, by itself, is not a ground for termination and that Danielle had other remedies to collect support. On neglect, the court held that neglect cannot be established while the child is in the other parent's custody and receiving proper care. Finally, the only expert testimony (a child psychologist) said termination was not in Erica's best interest. Because Danielle failed to prove the required grounds, the termination was reversed.