Termination of Parental Rights
A Nevada court can terminate the rights of a parent relating to a child, declaring that child free from the custody and control of either or both of his parents. In all such actions, the best interests of the child is the primary consideration, which is examined in conjunction with a finding of parental fault.
Can a Parent Choose to Relinquish Their Parental Rights?
An order terminating parental rights cuts off all aspects of the parent/child relationship; both rights and responsibilities (such as to provide child support). While a parent can choose to “relinquish” parental rights, a parent cannot voluntarily “terminate his parental rights and obligations,” unless a court deems it to be in the child’s best interests.
What are the Grounds for Terminating Parental Rights?
A court order terminating parental rights requires a finding that such termination would serve the best interest of the child, and that other grounds exist, including: Abandonment of the child; Neglect of the child; Unfitness of the parent; “Failure of Parental Adjustment”; Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains in, the home of his parent or parents; “Only token efforts by the parent or parents” (to do the things that parents do for children); or abandonment. All of those terms have statutory definitions, listing the factors to be weighed to determine whether they apply.
In 1995, the Nevada Legislature addressed the importance of a child’s best interest by adding a provision that in any action brought by a natural parent to set aside a termination after a petition for adoption has been granted, the best interests of the child must be the primary and determining consideration of the court. This creates a presumption that the best interests of the child are served by remaining in the adoptive home.
There have been a significant number of decisions by the Nevada Supreme Court addressing all aspects of the termination of parental rights laws. It has often been reiterated that termination of parental rights is “an exercise of awesome power,” and the cases have called such an order “tantamount to imposition of a civil death penalty.” Facts supporting a request for termination must be established by clear and convincing evidence.
Can a Parent Lose Parental Rights for Being Incarcerated?
Incarceration alone is not sufficient evidence to support a finding of abandonment as a matter of law, and there have been a number of cases describing when the imprisonment (and other behavior) of a parent will or will not support a termination of that parent’s rights.
Determining Neglect or Unfitness of a Parent
In determining whether neglect or unfitness of a parent has occurred, the court considers whether the following conditions exist: emotional or mental illness of the parent that renders the parent consistently unable to care for the needs of the child for extended periods of time; conduct toward the child that is physically, emotionally, or sexually abusive in nature; conduct that rises to involuntary servitude of the child; excessive use of intoxicating alcohol or drugs which render the parent consistently unable to care for the child; continuous failure by the parent to provide the child with adequate food, clothing, shelter, education, or other care necessary for the child’s health and development; conviction of a felony, if the facts of the crime indicate the unfitness of the parent to provide adequate care and control of the child; whether the child or another child in the care of the parent suffered a physical injury resulting in substantial bodily harm, a near fatality, or a fatality for which the parent has no reasonable explanation and the injury or death would not have occurred absent abuse or neglect by the parent; or an inability of the appropriate agencies to reunite the family despite reasonable efforts.
Special Cases and Rules for Terminating Parental Rights
In a termination case, the court may appoint an attorney as the child’s counsel. The court may also appoint counsel for indigent parents. There are special rules governing termination proceedings when the child in question is a member of an American Indian tribe.
Every such case is, by its nature, highly specific, and the exact facts of each such case should be individually examined by counsel before any decision is made whether or not to file such an action.
Preference for Placing the Child with Relatives Once Rights are Terminated
Once parental rights are terminated and an agency begins seeking to place the child, that agency may give preference to the placement of the child with any person related “within the fifth degree of consanguinity” to the child, so long as the agency finds that person is suitable and able to provide proper care and guidance for the child. Such a relative does not have to reside within this State. The agency will also give preference to a placement that allows the child to be with his or her siblings. The search for a relative to place the child with must be completed within one year after the initial placement of the child outside his or her home.
Restoration of Parental Rights
If a parent has previously relinquished their rights or had their rights terminated, and their child has not yet been adopted, the legal guardian of the child or the natural parents of the child may petition the court to restore their parental rights. The natural parents of the child must consent in writing to the petition.
If one of the people listed above petitions the court for restoration of parental rights, the following people must be personally served and given a chance to give testimony or evidence concerning the petition: the natural parent for whom parental rights are sought to be restored; the legal guardian of the child who is the subject of the petition; if rights were previously terminated, the person or governmental entity that originally petitioned for termination of parental rights; and the child’s attorney.
Before granting a petition for restoration of parental rights, the court must hold a hearing and find that: if the child is 14 years of age or older, the child consents to the restoration of parental rights; and the natural parent has been informed of the legal obligations, rights, and consequences of the restoration and are willing and able to accept such obligations, rights, and consequences. The court must also find by a preponderance of the evidence that the child is not likely to be adopted and restoration is in the best interests of the child.
WILLICK LAW GROUP has prosecuted and defended a number of termination of parental rights actions. The order sought is a severe one, and requires both careful legal work and, more fundamentally, a healthy respect for exactly what is being requested, and its practical ramifications. Our experience has given us the proper perspective for handling such cases with the seriousness that they warrant.
Links to Other Web Sites
- NRS 128.010 – Definitions used in Termination of Parental Rights Cases
- NRS 128.105 – Grounds for Terminating Parental Rights: Considerations; Required Findings
- NRS 128.160 – Best Interest of Child in Determining Consideration in Action to Set Aside Termination
© Willick Law Group
About the Author
Marshal S. Willick, Esq. is the Principal of the Willick Law Group, an A/V-rated Las Vegas family law firm, and QDROMasters, its pension order drafting division.
He can be reached at
3591 East Bonanza Rd., Ste. 200, Las Vegas, NV 89110-2198.
Phone: (702) 438-4100
Fax: (702) 438-5311
Email: [email protected]