Termination of Parental Rights
When a parent falls on hard times, succumbs to addiction, or otherwise finds himself/herself in a position that makes it difficult or impossible to be a parent, the State or the other parent may move to terminate parental rights. Nothing can be more devastating for a parent than to have to face such consequences. Indeed, the Nevada Supreme Court has likened terminating parental rights to the “civil death penalty”.
On the other hand, a parent may find it necessary and in the child's best interests to terminate the other parents rights because the chaos in that parents life is threatening the child's health and welfare. If you find yourself facing termination of your parental rights, need to terminate the other parents rights, or have had your rights terminated and need to have your rights restored, it is important you find a family law attorney that understands the complex law and policy surrounding termination of parental rights.
Las Vegas Family Law Attorney Eric P. Roy is just such an attorney. Whether you need to have your rights vindicated against the state or the other parent, or have rights restored, Family Law and Custody Attorney Eric P. Roy can achieve the results you desire, efficiently, skillfully and with the utmost care and compassion. The following is a summary, for your review, of the basic law regarding termination of parental rights in Nevada.
Grounds for Termination of Parental Rights
NRS 128.105 provide grounds for terminating a parents rights. Pursuant to that statute, a natural parents rights may be terminated by a showing, by clear and convincing evidence, that it is in the child's best interests to terminate a parents rights and:
The conduct of the parent or parents demonstrated at least one of the following:
Abandonment of the child;
Neglect of the child;
Failure of parental adjustment;
Risk of serious physical, mental or emotional injury to the child if the child were returned to, or remains in, the home of his or her parent or parents;
Only token efforts by the parent or parents:
To support or communicate with the child;
To prevent neglect of the child;
To avoid being an unfit parent; or
To eliminate the risk of serious physical, mental or emotional injury to the child; or
With respect to termination of the parental rights of one parent, the abandonment by the parent
Abondonment of the child
A parent may be found to have “abandoned” a child if the parent demonstrates an intent to forego all parental custody and relinquish all claims to the child. Intentional abandonment is demonstrated if a parent or the parents of a child either: a) leave the child in the care and custody of another without supporting or communicating with that child for a period of 6 consecutive months, or b) actually physically abandon the child, such as at a hospital, without leaving any way to identify the parent for a period of 3 consecutive months.
For example, if a parent leaves a child with family or friends for a period of at least 6 months for whatever reason, whether due to economic hardship, addiction, mental or physical ailment without contact or without providing material support to the child, then the parent has legally abandoned his child.
A“Neglected child” lacks the necessary subsistence, education, medical or surgical care, or other care necessary for the child’s health, morals or well-being, or lacks the special care made necessary by the child’s physical or mental condition because of the faults or habits of the parent or legal custodian.
Furthermore, if a child is found in a disreputable place, or who is permitted to associate with vagrants or vicious or immoral persons that child may also be considered a neglected child. For example, if a parent allows a child to be a member of a criminal gang, associate with known felons, or spend time in disreputable places such as “brothels” or “crack-houses” then that parent may be said to be neglecting a child.
Finally, a child may be neglected if a parent engages in or is in a situation dangerous to life or limb, or injurious to health or morals of the child or others. For example, if a parent drives drunk with a child as a passenger, persistently does drugs around the child or commits dangerous and violent crimes in front of the child or in the child's presence, then that parent is neglecting his child.
An“Unfit parent” is any parent of a child who, by reason of the parent’s fault or habit or conduct toward the child or other persons, fails to provide such child with proper care, guidance and support.For example, a parent may be unfit due to emotional or mental illness or deficiency which deprives a parent the capacity to adequately care for his/her child. In addition, a parent may also be found to be unfit if he/she is physically or emotionally cruel to his/her child. Parents often are determined to be unfit due to persistent and excessive drug and alcohol use and abuse.
Aside from the common mental or physical conditions leading to a determination of unfitness, a parent may be found unfit for failing to provide material support to a child despite being perfectly able to, such as when they fail to adequately feed or cloth a child without cause; that is, despite having the material means to do so, i.e. money.
Finally, a felony conviction may be proof of parental unfitness if the facts and circumstances of the crime demonstrate any of the above; that is, conviction for drug crimes, child neglect/endangerment, or commitment to mental institutions.
Failure of Parental Adjustment
“Failure of parental adjustment” occurs when a parent or parents are unable or unwilling within a reasonable time to correct substantially the circumstances, conduct or conditions which led to the placement of their child outside of their home, notwithstanding reasonable and appropriate efforts made by the State or a private person or agency to return the child to his or her home.
For example, when Child Protective Services removes a child from a parent's custody due to abuse or neglect, CPS normally provides a plan and services aimed at reunification. However, if a parent fails to avail himself of those services and neglects his case plan, the State has grounds, after 14 consecutive months of such failure, to petition the court to terminate parental rights.
Injury to a Child
“Injury” to a child’s health or welfare occurs when the parent inflicts or allows to be inflicted upon the child, physical, mental or emotional injury, including injuries sustained as a result of excessive corporal punishment. In addition, a child suffers injury if a parent commits or allows to be committed against the child acts constituting sexual abuse.
Furthermore, if a parent neglects or refuses to provide for the child proper or necessary subsistence, education or medical or surgical care, although he or she is financially able to do so or has been offered financial or other reasonable means to do so, then that parent may be found to have injured his child.
Moreover, if a parent fails, by specific acts or omissions, to provide the child with adequate care or supervision which requires the intervention of the State, such as Child Protective Services or the Juvenile Justice system, then, again, the parent may be found to have committed an injury against his child.
Termination of Father's Parental Rights when Child Becomes Subject of adoption
In brief, pursuant to NRS 128.150 et. seq., if an unmarried woman seeks to place her child for adoption and that child has a father that is known to the mother or capable of discovery by the court, then the court must notify the father and institute termination proceedings in order for the child to be adopted.
If the child does not have a father as that is defined by law and the child is placed for adoption, then the father's rights may be terminated without proper notice. However, the court is required to make reasonable inquiry as to:
Whether the mother was married at the time of conception of the child or at any time thereafter.
Whether the mother was cohabiting with a man at the time of conception or birth of the child.
Whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy.
Whether any man has formally or informally acknowledged or declared his possible paternity of the child.
If after inquiry a father is identified but fails to claim custodial rights, such failure is considered child abandonment and grounds for termination. If the father claims custodial rights over the child, then the court must institute custody proceedings.
Restoration of Parental Rights
Once a parents rights have been terminated, it is possible to have those rights restored upon petition to a District Court Judge and under the following circumstances. First, if the child has been adopted, then it must be shown by a preponderance of the evidence that it is in the child's best interests for parental rights to be restored. Second, the burden is on the parent seeking restoration as there is a presumption that keeping the child in the home of the adopting parent is in the child’s best interest.
Nevertheless, if a valid petition is filed the court must hold a hearing to determine whether to restore that parent or parents rights upon a showing that the child consents to the restoration of parental rights if that child is 14 years or older, the parent or parents have been informed of the legal obligations, rights and consequences of the restoration and are willing and able to accept such obligations, rights and consequences.
If those initial conditions can be met and the child is not likely to be adopted and Restoration of parental rights of the natural parent or parents is in the best interests of the child, then parental rights may be restored.
If the State or the other parent has petitioned to terminate your parental rights, the last thing you want to do is fight that battle alone. Family Law and Custody Attorney Eric P. Roy will help preserve your rights and stand by your side when no one else will.
However, if the other parent's life has become so chaotic that his/her very presence in your child's life threatens his health or welfare to such an extent that you find it necessary to terminate that parents rights, then you will need an aggressive and skillful Family Law and Custody Attorney such as Eric P. Roy to fight for your child's welfare. If you find yourself in either situation, call Family Law and Custody Attorney Eric P. Roy today!