THE INCREASING DIFFICULTY OF OBTAINING PRIVATE PARTY TERMINATIONS OF PARENTAL RIGHTS
A legal note from Marshal Willick about judicially heightened barriers to obtaining a Termination of Parental Rights when the request comes from the other parent, as opposed to the State, and whether that heightened burden actually serves the best interest of the child.
The Nevada appellate courts have made it increasingly difficult for one parent to obtain an order terminating the parental rights of the other. The goal of preservation of the relationship of the child with both parents has become the primary priority, subordinating the actual best interest of the child to that goal, with the net effect of failing the child’s best interest. A legislative fix is probably required.
This note is something of a sequel to the last one. In Legal Note Vol. 82, I detailed how our appellate courts have made orders of sole legal or sole physical custody nearly unobtainable, in service of keeping both parents “involved” no matter how dysfunctional that involvement might be. The same pendulum swing is visible, in even starker form, in termination of parental rights cases brought by one parent against the other, where real benefit to the child has become an afterthought.
I. BRIEF BACKGROUND OF NEVADA TERMINATION LAW
As with the last note, the full history of termination law in Nevada is beyond the scope of this one, but a few hallmarks are worth noting.
Nevada’s termination statute dates to 1953. See 1953 Nev. Stats. ch. 161. It was substantially rewritten in 1975, when the Legislature added definitions (including “abandonment of a child”) and the legislative declaration that remain the core of the chapter today, and again in 1981, when the grounds in NRS 128.105 were revised and the “specific considerations” now found in NRS 128.106 and 128.107 were added. The presumptions for children in State care, now at NRS 128.109, were added in 1987.
The Legislature’s declaration of purpose is worth quoting, since it is very rarely quoted by anyone else, and appears largely forgotten. While “the preservation and strengthening of family life is a part of the public policy of this State,” the Legislature found that “[t]he continuing needs of a child for proper physical, mental and emotional growth and development are the decisive considerations in proceedings for termination of parental rights.” NRS 128.005(1), (2)(c) [emphasis added].
Nevada termination decisions go back to at least Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960), a “private” termination case brought by a custodial mother against a non-custodial father. It is instructive for how far we have traveled. The Court held that whether a parent has abandoned a child is a question of fact, and upheld a termination where, over a three-year period, the parent had made one trip to see the child, placed a single telephone call, and sent a single letter; the parent had made no attempt to communicate for about two years, had paid no support, but had sent birthday and Christmas gifts. Id. at 448-51, 357 P.2d at 593-94.
Twenty years later, the Court again affirmed a finding of abandonment based on token efforts to pay support and “no real attempts to communicate with the child for a period of approximately ten months.” Pyborn v. Quathamer, 96 Nev. 145, 147, 605 P.2d 1147, 1148 (1980).
The standard of proof was raised to clear and convincing evidence in the early 1980s, as a matter of federal constitutional law, Santosky v. Kramer, 455 U.S. 745 (1982), and of Nevada due process, Cloninger v. Russell, 98 Nev. 597, 655 P.2d 528 (1982). The statute was then amended to match, and now requires the facts to be established by clear and convincing evidence. NRS 128.090(2).
The modern framework took shape in Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), superseded by statute on other grounds as stated in In re Termination of Parental Rights as to N.J., 116 Nev. 790, 8 P.3d 126 (2000). Champagne held that termination requires “some specific fault or condition directly related to the parent[ ],” id. at 647, 691 P.2d at 854, and observed that “[w]hatever ‘token efforts’ might mean, we read NRS 128.105 as a whole to mean that termination of parental rights is to be based on substantial abandonment, neglect, parental unfitness or child abuse.” Id. at 646, 691 P.2d at 854.
A few years later, the Court described severance of the parent-child relationship as “tantamount to imposition of a civil death penalty,” Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989), a phrase that has been repeated in nearly every termination decision since. See, e.g., In re Parental Rights as to T.M.R., 137 Nev. 262, 265, 487 P.3d 783, 787 (2021).
Through the 1980s and 1990s, however, the Court still recognized that the child’s interest could prevail. In Daly v. Daly, 102 Nev. 66, 715 P.2d 56 (1986), discussed further below, the Court found token efforts where the parent had paid no support for over a year and communicated little during that time, id. at 71, 715 P.2d at 60, and declared: “Certainly a parent’s rights should be preserved if at all possible, but not at the expense of the child.” Id. at 69, 715 P.2d at 58.
And addressing the argument that opposing the termination of parental rights is inconsistent with a “settled purpose” to abandon, the Court answered that there was no better illustration of the adage “actions speak louder than words.” Greeson v. Barnes, 111 Nev. 1198, 1204, 900 P.2d 943, 947 (1995), superseded by statute on other grounds as stated in N.J., 116 Nev. at 799-800, 8 P.3d at 132; see also Gonzales v. Dep’t of Human Resources, 113 Nev. 324, 332, 933 P.2d 198, 204 (1997).
In 1995, the Legislature amended the statutes to explicitly say that “whether the best interests of the child will be served by the termination” is the “primary consideration” in every termination proceeding. NRS 128.105(1). Thereafter, the Court in N.J. announced the framework that remains in effect today: a petitioner must prove by clear and convincing evidence both (1) at least one ground of “parental fault,” and (2) that termination is in the best interest of the child. 116 Nev. at 801-02, 8 P.3d at 133-34. The Court explained that “[t]he purpose of Nevada’s termination statute is not to punish parents, but to protect the welfare of children.” Id. at 802, 8 P.3d at 132. Two years later, the Court made clear that the best interest requirement cuts both ways, refusing to let a father terminate his own rights to escape child support, because a termination must actually benefit the child. In re Parental Rights as to T.M.C., 118 Nev. 563, 52 P.3d 934 (2002).
The current grounds of parental fault, set out in NRS 128.105(1)(b), are: abandonment; neglect; unfitness; failure of parental adjustment; risk of serious physical, mental, or emotional injury to the child if returned to (or remaining in) the parent’s home; “only token efforts” by the parent to support or communicate with the child, to prevent neglect, to avoid being unfit, or to eliminate the risk of serious injury; “[w]ith respect to termination of the parental rights of one parent, the abandonment by that parent”; and conception as a result of a sexual assault for which the parent was convicted.
Two other statutory provisions matter as detailed below.
First, NRS 128.109 provides powerful presumptions—that the parent has made only token efforts, and that termination is in the child’s best interest—whenever a child has been placed outside the home under Chapter 432B for 14 of any 20 consecutive months. Those presumptions do much of the heavy lifting in State-initiated foster care cases.
But the Court has held that they do not apply at all to private termination cases. In re Parental Rights as to L.R.S., 140 Nev. ___, Adv. Op. 62, 555 P.3d 1175, 1180 (2024); In re Parental Rights as to S.A.T., 141 Nev., Adv. Op. 46, 576 P.3d 901 (2025) (fn.3).
Second, NRS 128.107 provides that whenever “a child is not in the physical custody of the parent,” the court must consider, among other things, the parent’s “maintenance of regular visitation or other contact with the child,” and directs that “the court shall disregard incidental conduct, contributions, contacts and communications.” That last sentence has been in the statute since 1981. On its face, it would seem to speak directly to a private case, in which the parent whose rights are at issue does not have physical custody of the child. But as discussed below, the Court has now held that NRS 128.107 also does not apply at all in private termination cases.
II. TWO VERY DIFFERENT KINDS OF TERMINATION CASES
Termination petitions come in two basic varieties. NRS 128.040 permits a petition to be filed by the agency which provides child welfare services, a probation officer, or “any other person,” including the mother of an unborn child.
In the first variety, the State removes a child from a dangerous or neglectful home, places the child in foster care, gives the parent a case plan, and—if the parent cannot or will not get their act together within the statutory time frames—seeks termination so that the child can be freed for adoption. The full machinery of government is on one side, and the “civil death penalty” rhetoric fits reasonably well. The State is taking a child away from a parent.
In the second, the petition comes from the other parent. The typical fact pattern is that the parents divorce or separate; one parent drifts away, or is pushed out by their own conduct; years go by with little or no contact; the custodial parent remarries, and the stepparent—who has actually been raising the child—wishes to adopt. The child is not being removed from anyone. The child is already living where he or she has been living. The only real question is whether the legal status of the absent parent should be brought into line with the actual facts of the child’s life.
The constitutional considerations in those two situations are not the same, and the United States Supreme Court said so more than 40 years ago, but as detailed below the Nevada Supreme Court has essentially turned the distinction on its head.
In Lehr v. Robertson, 463 U.S. 248 (1983), a putative father who had never lived with or supported his child, and who had not registered with New York’s putative father registry, challenged an adoption of his two-year-old daughter by the mother’s new husband, entered without notice to him. The Court rejected both his due process and equal protection challenges, drawing a sharp distinction between a developed parent-child relationship and a merely biological link:
Id. at 261. The Court explained that the biological connection offers a parent “an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship . . . . If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.” Id. at 262. Quoting Justice Stewart, the Court emphasized that “[p]arental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” Id. at 260 (emphasis in original).And, most pointedly for this examination: “If one parent has an established custodial relationship with the child and the other parent has either abandoned or never established a relationship, the Equal Protection Clause does not prevent a state from according the two parents different legal rights.” Id. at 267-68.
In other words, the constitutional weight on the absent parent’s side of the scale is a function of the relationship that parent actually built and maintained—not of biology, and not of the absent parent’s willingness to show up in court and say they object.
Lehr arose in the unwed-father context, but its logic is more broadly applicable. A parent who once had a relationship and then walked away from it for years has, in fact, “abandoned” the relationship in the Lehr sense. A former family court judge who read Legal Note 82 wrote in to make the point to me directly: the U.S. Supreme Court in Lehr “noted . . . that this constitutional right is limited to parents who are actively and regularly parenting their children. It does not apply to parents who are absent or marginally involved with their children.”
The Nevada Supreme Court has now recognized that State and private petitions are different. But it has drawn exactly the opposite conclusion from that difference than Lehr would suggest is proper.
III. THE CURRENT STANDARD AS APPLIED TO PRIVATE PETITIONS
A. L.R.S. and R.A.S.In In re Parental Rights as to L.R.S., 140 Nev. ___, Adv. Op. 62, 555 P.3d 1175 (2024), the Court held that “a pro se and indigent parent’s inability to navigate the judicial system cannot be used as support for the finding of abandonment,” id. at 1181, found more than token efforts where the parent sought medical treatment to resume visitation and bought gifts for the child despite financial limitations, id. at 1182, and confirmed that the NRS 128.109 presumptions apply only to children placed outside the home under Chapter 432B. Id. at 1180.
L.R.S. went further, in a direction that matters a great deal for private cases. The majority held that NRS 128.107—with its direction to “disregard incidental conduct, contributions, contacts and communications”—applies only when the child is not in the custody of either parent, i.e., has been removed from both by the State. Because the children in L.R.S. were in their mother’s custody, the statute was found not to apply. Justice Lee, concurring in the result, read the statute as applying whenever a child is out of the custody of either parent, which is what its words (“not in the physical custody of the parent”) appear to actually say.
The practical consequence of the majority’s “interpretation” is enormous. The one provision of Chapter 128 that expressly tells courts to disregard “incidental contacts and contributions” has been held inapplicable to precisely the cases—private petitions against a non-custodial parent—where incidental contacts and contributions are usually the entire defense. The L.R.S. majority then relied on exactly that kind of evidence (medical treatment toward visitation, requests for visitation, and gifts) to reverse the termination.
In other words, exactly the same behavior by the abandoning parent, with exactly the same “value” to the subject child, is no bar to termination in a State case, but effectively makes termination impossible in a private termination case.
In In re Parental Rights as to R.A.S., 141 Nev. ___, Adv. Op. 20, 567 P.3d 337 (2025), the Court for the first time expressly distinguished State and private petitions, speculating that when the State seeks termination, it “is focused on the safety and stability of the child”; but when a parent does so, “the child is already safe, and the moving parent thus may be seeking termination for reasons other than the child’s safety.” Id. at 341 (as summarized in S.A.T.).
On the strength of that “may be,” district courts were warned to consider private petitions carefully “to ensure the motivations behind the petition did not lead to an improper termination.” Id. The Court also declined to find abandonment where the abandoning parent opposed termination, id. at 342-43, and expressed concern about finding token efforts where the parent was “effectively unable to locate [the] child.” Id. at 345. Without bothering to overrule Greeson, the Court effectively held that, today, words speak more loudly than actions.
Note the framing. Where Lehr looked at the State/private distinction and concluded that an absent parent’s claim deserves less constitutional weight, R.A.S. looked at the same distinction and concluded that the petitioning custodial parent’s motives deserve heightened suspicion, entirely reversing the effective burdens applicable to precisely the same behavior.
The capstone to this progression is In re Parental Rights as to S.A.T., 141 Nev. ___, Adv. Op. 46, 576 P.3d 901 (Oct. 2, 2025).
The facts were sympathetic to the father. The parents divorced in 2014 with joint legal custody and the mother having primary physical custody. In 2016, the father suffered a severe mental health crisis, culminating in an incident in which he drove off with the children and had to be hospitalized for several months. The mother obtained an extended protective order barring contact until the father obtained a psychological evaluation and counseling. Indigent, the father attended “Ask-a-Lawyer” sessions and sought mediation through the child support case, without success. Meanwhile, the mother took affirmative steps to cut off contact—moving without updating her address (which resulted in closure of the support case), cutting off the paternal grandmother, and not letting the children ride the school bus for fear the father would contact them. In 2021, the father received an inheritance, hired counsel, paid his support arrears, and completed the ordered evaluation and counseling. Shortly after he provided proof of treatment, the mother petitioned to terminate. The district court denied the petition, and the Supreme Court affirmed.
On those facts, the actual result is defensible. A custodial parent who actively obstructs contact should not be heard to complain that the other parent made only token efforts at contact. If the Court had said that, there would be little to criticize.
But the Court went considerably further, announcing general rules for all private terminations that will have a much larger, and detrimental, impact on actual child welfare in Nevada:
• “[I]n private termination actions, if the only supportable parental-fault ground is that a parent has only made token efforts to support or communicate with the child, termination is generally disfavored.” Id. at 907-08.
• The Court reasoned that “[a] ‘settled purpose’ and ‘only token efforts’ are contradictory terms,” so that “[b]y making a token effort to communicate or support the child, a parent is demonstrating an intention not to forgo all parental rights.” Id. at 907.
• Creating out of whole cloth the notion that an allegation of token efforts is “rife for abuse in private termination actions,” and “[o]ne parent’s belief that more communication or support should be had by the other parent is not conclusive evidence supporting termination of all parental rights.” Id.
• Because no responsive pleading is required in termination proceedings, allegations not denied are not deemed admitted under NRCP 8(b)(6); the Court “hesitate[d] to apply the rules of civil procedure in this manner,” since doing so “could lead to the parent-child relationship being severed based on a technicality.” Id. at 908.
Having sliced and diced the TPR statute to remove all findings of parental fault, the Court did not reach the child’s best interest at all. Id. at n.4.
The “contradictory terms” reasoning deserves particular attention, because it is a logical trap. If a token effort proves the absence of a settled purpose to abandon, then token efforts can never support abandonment; and if a complaint of token efforts standing alone is “disfavored,” then the token efforts ground of NRS 128.105(1)(b)(6)(I)—which the Legislature enacted as an independent ground for termination—has been effectively read out of the statute for all private cases. The parent who does nothing at all is “abandoning”; the parent who does almost nothing is not abandoning, and the “almost nothing” is not enough to be “token efforts” either.
Under that framework, a single text message every few months immunizes a parent from termination indefinitely, regardless of the uselessness to the actual welfare of the child. And today, such messages can be entirely automated.
The judicial evisceration of the statutory language is in tension with the Legislature’s direction in NRS 128.107 that, where a child is “not in the physical custody of the parent,” the court “shall disregard incidental conduct, contributions, contacts and communications” [emphasis added]. In other contexts, the Court has held that “shall” in a statute is “mandatory.” State v. Am. Bankers Ins. Co., 106 Nev. 880, 882, 802 P.2d 1276, 1278 (1990). Under L.R.S., however, that direction does not reach private cases at all; under S.A.T., the incidental contacts the legislature said courts should disregard are treated as affirmative proof that the parent has not abandoned the child.
C. Impacts in the Real World: Jeffrey T. v. Monica L. (2026)
The real-world effect of those rules was put on display in a Nevada Supreme Court order filed just last week. Jeffrey T. v. Monica L., Nos. 91508 & 91510, Order of Affirmance (Unpublished Disposition, Oct. 16, 2026).
The parents divorced in 2018 with a stipulated joint custody arrangement. In 2022, Father was awarded primary physical custody, with Mother entitled to in-person visitation after she attended two therapy sessions with the children. For the next several years, Mother never attended the court-ordered therapy sessions and “did not see or speak with the children.” She did send text messages and “occasionally sent them gifts.” Her child support was collected by wage garnishment through the District Attorney’s Family Support Division, and she “occasionally fell in arrearages.” After approximately three years of minimal contact, Father petitioned to terminate. The district court denied the petition, finding “no parental fault,” and the Supreme Court affirmed.
Unlike S.A.T., there was apparently no “obstruction” by the custodial parent. In-person contact was available the entire time; all Mother had to do was attend two therapy sessions. She did not do so for three years, during which time she became an absent stranger to the children at issue. The S.A.T. rules, announced in a case of a custodial parent who had cut off contact, were applied wholesale to support the case of a non-custodial parent who simply never bothered to show up.
The individual holdings deserve a closer look, because each one, standing alone, may sound reasonable. Together, they are a recipe for permanent child limbo.
Abandonment. The Court held that the statutory presumption did not apply because Mother never went more than six months without some communication or without the involuntary garnishment of some support, and that substantial evidence supported the finding that she had no settled purpose to abandon the children because, among other things, she had appealed the custody order and “oppos[ed] Jeffrey’s termination petition.”
Think about that for a moment. If opposing a termination petition is all by itself evidence that the parent has not abandoned the child, then no contested termination petition based on abandonment can ever succeed. The only parents who can be found to have “abandoned” their children are those who do not even bother to object. The test is circular—and it is the opposite of what the Court said in Greeson, where it found exactly that behavior no better illustration of the adage that “actions speak louder than words.”
Token efforts. Citing S.A.T., the Court held that Mother’s “regular text messages” were somehow more than token efforts, and that a parent need not maintain a “meaningful relationship” with the child to show more than token efforts. Three years of not seeing or speaking to one’s children, while declining to attend the two therapy sessions that were the only thing standing between the parent and in-person visitation, is about as close to a dictionary definition of “token efforts” as one could draft. Compare Carson, in which a much more common-sense trial and appellate court found that one visit, one phone call, and one letter over three years was enough to support termination because those “efforts” meant nothing to the child at issue. As the judge in Carson soundly reasoned:
Support. Garnished child support—money taken from the parent’s paycheck by the State without any affirmative act by the parent—was dubbed by the Jeffrey T. court as “consistent efforts to maintain child support.” In a footnote, the Court found “no fault in Monica’s decision to make support payments through the Washoe County District Attorney’s Family Support Division.”In the “give me a break” department, nobody “decides” to have their wages garnished. Involuntary collection is evidence of nothing about the parent’s intent toward the child. Rather, it is precisely the sort of “incidental . . . contribution[]” that NRS 128.107 says to disregard—or would, had L.R.S. not emasculated the statute whenever the child is with the other parent.
The rules of civil procedure. Mother did not answer Father’s requests for admission. Under NRCP 36(a)(3), unanswered requests are deemed admitted, and in any other kind of civil case, unanswered requests “may be properly relied upon as a basis for granting summary judgment.” S.A.T. had at least a textual basis for its holding: NRCP 8(b)(6) itself provides that allegations are considered denied where no responsive pleading is required. NRCP 36 has no such exception; requests for admission must be answered or they are admitted. The Court nonetheless relied on S.A.T. to “hesitate to apply the rules of civil procedure in this manner.” So the rules apply to everyone, except an abandoning parent resisting termination.
Best interest of the child. Perhaps most telling, the district court made no findings at all as to whether termination would serve the children’s best interest. The Supreme Court recited the usual mantra, again, that “the children’s best interest is the primary consideration in an action to terminate parental rights,” and that a district court “should make findings” as to both best interest and parental fault. But it held the omission harmless, because without parental fault the inquiry ends. So the “primary consideration” was never considered by anyone—in Jeffrey T., in S.A.T., or in any other case where parental fault is not found.
Finally, the order observes in a footnote that Father had failed to demonstrate that S.A.T. “changed the law.” Perhaps formally it did not. But comparing Carson and Pyborn with S.A.T. and Jeffrey T. shows how dramatically the practical bar for a private termination has moved—from common sense with a view to the child’s welfare to “protection of the parental relationship” (whether it actually exists or not) with no thought of what it means to the child’s life.
Unpublished orders may now be cited for their persuasive value under NRAP 36(c)(3), and this one is quite persuasive as to what will happen to the next private termination petition filed on similar facts. See Marshal Willick, Legal Note Vol. 79 — The Use and Abuse of Unpublished Appellate Orders (Sept. 9, 2025).
And unfortunately, these cases are not outliers. In today’s family court, I have seen several cases where parents have disappeared entirely for years, have become total strangers to children who could not even identify them in a line-up, and who show up at termination trials demanding their “right” to remain a “parent” to those children. Those actions have everything to do with ego, and nothing to do with the best interests of the children involved.
IV. WHAT ACTUALLY SERVES THE CHILD?
The above is all about the parent: what the parent intended, how many text messages the parent sent, whether the parent showed up in court to object, and what the petitioning parent’s motives might be. Very little of it is about the child.So it is worth asking the question directly: how is it in the best interest of a child to have a “parent” who disappears for years at a time, reappearing via the occasional text or birthday gift, and who nevertheless retains the full legal status of a parent—typically including joint legal custody and decision-making authority—without exercising any of the responsibilities?
It is not. In fact, it is cruel.
The courts are not short of guidance on this point; they hand it out to every divorcing parent. The C.O.P.E. co-parenting course materials in use for 30 years open with the first rule of co-parenting: “Child safety is always number 1. Kids are priority number 1 and adults are number 2.” Kim J. Sumerix, C.O.P.E.: The Guide to Effective Co-Parenting, at 3. The manual explains that “[c]o-parenting means both parents play an active role in their children’s day-to-day lives,” and that the benefits of doing so are that “[c]hildren develop feelings of stability” and “are less likely to feel abandoned.” Id. at 2. And it stresses that “[c]hildren do very well when they find consistency with their parents. They are able to anticipate, plan and organize within their mind, the events which will happen.” Id. at 9.
The same materials identify “[d]isengagement” as one of the typical ways parents act that specifically make coping with divorce “hard for their children,” id. at 7, and warn against the parent who tries to make up for absence “by over buying them presents,” because “[c]hildren know their parent is trying to buy their love and it makes them feel uncomfortable.” Id. at 21-22. But an occasional gift is one of the things our Supreme Court has counted in the absent parent’s favor. Somewhat ironically, the materials even remind parents that “our actions speak louder than our words.” Id. at 6. That was once the law in termination cases, too. See Greeson, supra. But today? Nah.
So the family court tells every parent coming through its doors that children need consistency, active involvement, and predictability, and that gifts are no substitute for presence—and then, when a parent provides none of those things for years, the appellate courts treat a text message and a birthday present as proof of an ongoing parental relationship. A parent who promises to visit and does not show up, who texts for a few weeks and then goes silent for months or years, who sends a gift at Christmas and nothing else all year, is teaching the child a lesson about their own worth and importance—and it is not a good one. The child cannot grieve the loss and move on, because there has been no loss to grieve; the absent parent is still technically “there.” The child cannot fully attach to the stepparent who is actually doing the parenting, because the law insists that someone else holds that title.
None of that is to say that every period of absence should lead to termination. There is a real and important difference between a parent who steps away to deal with addiction, mental illness, incarceration, or some other crisis, and who is actively working to “clean up their act” in order to come back to the child—and a parent who simply drifts away and stays gone.
The law already protects the first category, and it should. See, e.g., In re Parental Rights as to Q.L.R., 118 Nev. 602, 54 P.3d 56 (2002) (incarceration alone is not abandonment where incarcerated father sent what money he could and tried to send cards and drawings the mother refused to deliver); In re Parental Rights as to J.L.N., 118 Nev. 621, 55 P.3d 955 (2002) (failure to complete case plan that was impossible to complete while incarcerated not parental fault). The father in S.A.T., who got treatment and came back as soon as he could, is a fair example of that category. The mother in Jeffrey T. is not. The problem is that the current law imposed on our trial courts tells them that they are not allowed to discern the difference.
Nor should we pretend that every parent is a net benefit to the child. Some parents are toxic, and the child is affirmatively, and obviously, better off without them.
Consider the history of one woman, now well into adulthood, whose mother was psychologically and emotionally abusive throughout her entire childhood—so controlling, and so relentlessly destructive, that the daughter remained traumatized for decades afterward. One of her brothers did not survive it; he was driven to suicide. Nobody who hears that history would say that those children’s “best interest” was served by preserving their legal relationship with that parent. But under current Nevada law, so long as such a parent sent the occasional text (abusive or otherwise) and showed up in court to object to termination, it is not at all clear that a petition to terminate could succeed—because nothing in the “parental fault” analysis as now applied asks what the parent’s continued presence is doing to the child, despite the language of the statute.
Nor is the problem limited to termination cases. In a custody case my office has been involved in for years, a father’s documented violence toward the children was repeatedly attributed by the assigned judge—without an evidentiary hearing or any finding by a mental health professional—to “alienation” by the mother. The children spend every other week in the “custody” of that father hiding in their rooms—with no social life, no activities, no assistance with schooling or anything else, and no joy, enrichment, or positive life experiences of any kind—because it is the father’s “right” as a “parent.”
Regardless of the mutual finger-pointing between the parents, the fact remains that sentencing a child to utter misery for half of their childhood simply cannot be seen as in the “best interest” of that child by anyone who actually is focused on the life of the child.
The reflex in that case—that a child’s resistance to a parent must be someone else’s fault, and that the cure is more forced contact—is the same reflex driving the termination decisions. In each, the system’s first instinct is to preserve the “parental relationship,” and the child’s actual experience of that parent comes second, if it enters the calculus at all.
The irony is that Nevada’s adoption law is built around the opposite premise. The entire point of a stepparent adoption is to give the child what our law otherwise says children should have: two active, involved, legally recognized parents. When the absent parent cannot be terminated, the stepparent cannot adopt, and the child is left with one parent who is present and one who exists mostly on paper or in fantasy—while the adult who is actually raising the child remains, legally, a stranger. That stepparent cannot consent to medical care or sign school paperwork as a parent, the child cannot inherit from the stepparent as a child would, and the child could be and sometimes has been, upon the custodial parent’s death, delivered to the absent biological parent rather than staying in the only home the child has known.
The Legislature declared that “the preservation and strengthening of family life is a part of the public policy of this State.” NRS 128.005(1). The question nobody seems to ask is: which family? For the child in a private termination case, the family whose life is actually being lived—and which could be preserved and strengthened by an adoption—is the one in which the child actually resides.
A veteran family law attorney who has given up and left the practice area put it this way after reading Legal Note 82:
For one who has served in those trenches for decades I have seen the damage to innocent children when the courts exhibited more concern over parental rights than the children’s mental and physical safety. . . . That threshold to reach safety for the child should never be so high as to require continuing damage.
I am sure there is another side to that coin but how can we justify throwing out the whole system of stare decisis and the decades of the court’s wisdom that placed the best interest of the child above all else? As it became harder to protect the children, it became harder to bring the horror stories home and harder to continue practicing family law. So, I moved on.
And the former family court judge quoted above wrote: “I have long reached the conclusion that courts are parent-centric in custody decision making and have shoved ‘best interests of the child’ down to a lower level concern in spite of the statutory assertion that the sole consideration of the courts is the best interests of the child.”
Reading the TPR cases detailed above, it is extremely difficult to reach any other conclusion.
V. THE SUBJECTIVITY OF “FAULT”
If the “parental fault” requirement were applied consistently, one might at least credit it for predictability. History suggests otherwise.
As detailed in prior notes, the Nevada Supreme Court in 1986 had no trouble finding sufficient “fault” to affirm the termination—on the petition of the other parent—of a father who had undergone gender transition, labeling the parent a “vestigial parent,” over a dissent objecting that the majority was “being unnecessarily and impermissibly punitive to the exercise of a medical option we personally find offensive.” Daly v. Daly, 102 Nev. 66, 715 P.2d 56 (1986); see Marshal Willick, Legal Note Vol. 22 — Parental Sexual Conduct (Aug. 3, 2010).
So: forty years ago, token efforts could be found, and parental rights terminated, in a case where—as the dissent charged—the majority disapproved of the parent’s personal medical choices. Today, a parent who has not seen or spoken to the children in three years cannot be terminated because the parent sent text messages and objected to the petition.
Those results are at opposite ends of the spectrum, but they share a common defect. In both, the analysis is focused on the court judging the parent—approving or disapproving of the parent’s conduct, choices, or attitude—rather than on what actually serves the child. Daly penalized a parent for something irrelevant to the child’s welfare; Jeffrey T. excuses a parent for conduct that is entirely relevant—and inimical—to the child’s welfare. Neither even asks the question the statute says is “decisive.” The irony is that Daly’s own stated principle—“a parent’s rights should be preserved if at all possible, but not at the expense of the child”—was actually right. It was simply misapplied then, and is ignored now. And both cases are considered “good law” under our rules.
VI. ILLOGIC AND CONTRADICTORY OBJECTIVES
Pulling the threads together, current Nevada termination law simultaneously asserts that:
• The best interest of the child is the “primary consideration,” NRS 128.105(1), and the child’s needs are the “decisive considerations,” NRS 128.005(2)(c)—but a court need not consider best interest, or make any findings about it, unless parental fault is first proven.
• Parental fault must be proven by clear and convincing evidence—but the absent parent’s failure to answer requests for admission in discovery cannot be used to prove it, though it could be in any other civil case.
• Abandonment requires a “settled purpose” to forego all claims to the child—but opposing the termination petition is evidence against such a purpose all by itself, making abandonment nearly unprovable in any contested case.
• “Only token efforts” to communicate with or support the child is a statutory ground for termination—but a token effort proves the absence of a settled purpose to abandon, and token efforts alone are “disfavored” as a basis for termination in private cases. But the same behavior yields termination in a State-brought case.
• The court “shall disregard incidental conduct, contributions, contacts and communications” when a child is “not in the physical custody of the parent,” NRS 128.107—but that statute has been rendered “mere surplusage” by being made inapplicable when the child is in the custody of the other parent, and incidental and trivial texts, gifts, and garnished support will defeat a petition. The courts are to bend over backwards to protect actually “vestigial parents.”
• Constitutional protection attaches to the parent-child relationship actually formed, as the United States Supreme Court explained in Lehr—but Nevada applies the full “civil death penalty” framework to a parent who has no meaningful relationship to protect, and instead directs its suspicion at the parent who has actually been doing the parenting.
• The State, when it seeks termination, gets the benefit of statutory presumptions after 14 months of out-of-home placement—but a custodial parent whose child has not seen the other parent in three years gets no presumption at all. Equal protection of the laws? Well, some are more equal than others (apologies to Orwell).
As noted in Legal Note 82, if the policy choice of the Legislature and the courts is to maintain a legal relationship between every child and both biological parents regardless of the effect on the child, then so be it. But it is hypocrisy to make that choice while continuing to recite that the best interest of the child is the “primary consideration.” It is not, as the above cases make clear, and intellectual honesty demands admitting it.
VII. A SUGGESTED LEGISLATIVE FIX
Since the appellate courts have made their direction clear, the remedy, if there is to be one to actually serve the purpose the Legislature announced it was trying to achieve, will have to come from the Legislature. A few modest amendments to Chapter 128 would go a long way:
1. Distinguish private petitions—in the child’s favor. Add a provision specifically addressing petitions brought by a parent (with or without an accompanying stepparent adoption) where the child has resided with the petitioning parent, recognizing, consistent with Lehr, that the interest of a parent who has not maintained a relationship with the child is materially different from that of a parent whose child is being removed by the State.
2. Create a private-case presumption parallel to NRS 128.109. Provide that where a parent has had no in-person contact with the child for—say—12 of any 18 consecutive months, without good cause and despite an available opportunity for contact under an existing order, there is a rebuttable presumption of token efforts (or of abandonment under NRS 128.105(1)(b)(7)), shifting the burden to the absent parent to explain the absence. And provide that intermittent electronic contact be evaluated in accordance with its impact on the child.
3. Define what does not count. Amend NRS 128.107 to make clear (overruling the L.R.S. majority on this point) that it applies whenever the child is not in the physical custody of the parent whose rights are at issue, including where the child is in the custody of the other parent, and specify that (a) the act of opposing a termination petition is not evidence of intent as to abandonment; (b) support collected involuntarily by garnishment or other enforcement is not an “effort” to support the child; and (c) sporadic electronic communications or gifts do not, by themselves, constitute more than token efforts where in-person contact was available and not exercised.
4. Preserve room for recovery—and for obstruction. Expressly provide that a parent’s absence while actively engaged in treatment, rehabilitation, or compliance with court-ordered conditions for resuming contact constitutes “good cause,” as does the petitioning parent’s obstruction of contact, so that the parent who is genuinely trying to get back to their child (the S.A.T. father) is protected, while the parent who simply does not bother (the Jeffrey T. mother) is not.
5. Require best interest findings in every case. Require the district court to make express findings on best interest in every termination case, whether or not parental fault is found, so that the “primary consideration” is at least actually considered, and so that the appellate courts—and the Legislature—have a record on which to see what is actually happening to these children.
6. Apply the rules of civil procedure. Provide that the NRCP, including NRCP 36, apply in private termination proceedings as in any other civil action, subject to the district court’s ordinary discretion to permit withdrawal or amendment of admissions.
None of those changes would make termination easy, and none should. Termination of Parental Rights is serious, and the clear and convincing standard is a constitutional requirement. But the current framework has drifted so far toward protecting the legal status of absent parents at all costs that it has lost sight of the children whose lives that status governs. And “all costs” is extracted from the children.
VIII. CONCLUSIONS
Termination of parental rights is a grave step, and the law properly requires substantial proof before it is taken. But not all terminations are alike. When the State removes a child from a parent, the “civil death penalty” rhetoric fits. When a custodial parent and a stepparent seek to formalize the family the child has actually been living in for years, in place of a parent who has been absent, it does not. It is wrong, and contrary to United States Supreme Court holdings, to pretend otherwise.
In 1960, one visit, one phone call, and one letter in three years could support termination. In 2026—in an era with vastly easier, cheaper, and more convenient communications technology—three years without seeing or speaking to one’s children, while declining to take the two steps needed to resume visitation, cannot. The latter situation is not superior, to the child’s life, to the former.
The United States Supreme Court recognized in Lehr that constitutional protection follows the relationship, not the biology. Nevada’s appellate courts have instead constructed a framework in which a contested private termination is very nearly impossible—where objecting to the petition is all by itself evidence against abandonment, a five-second text message defeats a finding of “token efforts,” garnished wages count as “intent to support,” the rules of civil procedure do not apply to the absent parent, and the child’s best interest need never be reached at all.
The pendulum described in the last note has swung here too. It is in the best interest of some children to be freed from a legal relationship with a “parent” who has chosen not to be present in their lives, or whose words and actions are actively hostile to child happiness and welfare, in favor of being raised by the adults who have been supportive, helpful, loving, and present. The Nevada Supreme Court has painted itself into a corner on this subject, and has no obvious way to actually return TPR cases to recognizing primacy of the child’s best interest without repudiating a number of recent decisions.
Until the Legislature acts to restore the child’s interest to the center of the analysis, the actual daily lives of children will remain a secondary concern, and the collective “we” will keep reciting the mantra that the best interest of the child is the “primary consideration” while making that recitation meaningless as it is never “considered” at all.
IX. QUOTES OF THE ISSUE
“Eighty percent of success is showing up.” Woody Allen (attrib.).
“There can be no keener revelation of a society’s soul than the way in which it treats its children.” Nelson Mandela (1995).
“It is easier to build strong children than to repair broken men.” Frederick Douglass (attrib.).
“I believe the best service to the child is the service closest to the child, and children who are victims of neglect, abuse, or abandonment must not also be victims of bureaucracy. They deserve our devoted attention, not our divided attention.” Kenny Guinn.
“Too much love never spoils children. Children become spoiled when we substitute presents for presence.” Anthony Witham.
“Only lawyers and painters can turn white to black.” Japanese Proverb.
- New Cases Added to MLAW: 5 COA Unpublished: Maxwell, Schoenwald, In Re: Marriage of Carney and Probst, Pinto, and Trout. - November 1, 2026
- New Cases Added to MLAW: 5 COA Unpublished: Gray, Hoodenpyle, Newcomb, Hall, and Martin - October 28, 2026
- Vol. 83 — The Evolution of Standards for Termination of Parental Rights in Nevada - October 27, 2026