Opinion
No. 24252
August 24, 1995
Appeal from Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
Richard D. Fleischer, Reno, for Appellant.
Fey Barber, Reno, for Respondent.
OPINION
This is an appeal from a district court order terminating the parental rights of appellant Michael Greeson ("Greeson"). Greeson and respondent Toni Lynn Barnes ("Barnes") were divorced on March 19, 1987. At the time of their divorce, their son, Kevin, was just over one year old. The divorce decree granted Barnes primary physical custody of Kevin and granted Greeson visitation one week per month. The decree also ordered Greeson to pay $200 per month in child support.
For the six months following the divorce, Greeson paid $200 per month in child support and exercised his visitation rights five of the six weeks. In September 1987, a review hearing was held and Greeson failed to attend. The district court reduced Greeson's visitation rights to alternating weekends within the Reno city limits based on Kevin's young age and Barnes's uncontroverted testimony that the trips to California, where Greeson resided, were too difficult for the child.
During the trial, Greeson alleged that he called the district court three days before the scheduled review hearing in order to reschedule the hearing. He testified that he attempted to reschedule because his current wife, who was then four months pregnant, told him that she was experiencing problems with her pregnancy. Greeson further testified that he did not know whether the review hearing was rescheduled and that if it had been rescheduled, he did not receive notice of the new hearing date. In his brief on appeal Greeson states that he "assumed that the review hearing had been continued where in actuality it had not."
There is nothing in the record indicating that Greeson ever contacted the district court and we do not know whether the district court found Greeson's explanation for his failure to appear at the review hearing credible.
Greeson further alleges on appeal that he did not receive a copy of the district court orders changing visitation at the review hearing. However, he admits that Barnes informed him of the new visitation schedule.
The parties disputed the frequency with which Greeson exercised his visitation rights for the six or seven months following the September 1987 review hearing. Both parties agreed, however, that between 1988 and the October 1992 trial date, Greeson visited Kevin on only one occasion. According to Barnes, Greeson's contact with Kevin was minimal during that time, with the last contact via telephone in April 1991. For approximately three years prior to the 1992 trial, Greeson called Barnes once or twice each year and, during those phone calls, never requested to speak with Kevin. Moreover, between the 1987 hearing and the 1992 trial, Greeson sent only $60 in child support and only made those payments after he discovered that Barnes had petitioned for termination of his parental rights.
Because of the sanctity of parental rights, a standard of proof of at least clear and convincing evidence is required before a court can terminate parental rights. NRS 128.090(2); Champagne v. Welfare Division, 100 Nev. 640, 648, 691 P.2d 849, 854 (1984).
NRS 128.105 sets forth the grounds for termination of parental rights. In Champagne, this court designated the considerations relating to the conduct of the parent as the "jurisdictional" ground, and the considerations relating to the child's best interest as the "dispositional" ground. In 1989, in reaction to our decision in Champagne which seemed to accord primary emphasis to the rights of the parent over the rights of the child, the legislature added the following language to NRS 128.105: "with the initial and primary consideration being whether the best interests of the child would be served by the termination. . . ." Hearings on S.B. 99 Before the Senate Committee on Judiciary, February 18, 1987, pp. 224-25, 235-36; February 19, 1987, p. 267; February 24, 1987, pp. 319-22; April 16, 1987, p. 1616. This amendment did not alter the requirement set out in NRS 128.105 and Champagne that at least one of the grounds alleging parental fault must be proven by clear and convincing evidence. The Due Process Clause of the Fourteenth Amendment of the United States Constitution mandates this requirement. Santosky v. Kramer, 455 U.S. 745, 769-70 (1982).
NRS 128.105 states in pertinent part:
An order of the court for termination of parental rights must be made in light of the considerations set forth in this section and NRS 128.106, 128.107 and 128.108, with the initial and primary consideration being whether the best interests of the child would be served by the termination, but requiring a finding that the conduct of the parent or parents demonstrated at least one of the following:
1. Abandonment of the child;
. . . .
(Emphasis added.)
Under NRS 128.105, a lower court may terminate a parent's rights if it finds by clear and convincing evidence that the parent has abandoned the child and that terminating the parent's rights is in the best interest of the child. On appeal, this court will uphold an order terminating parental rights if substantial evidence supports the district court's finding that both of these grounds have been established by clear and convincing evidence. See, e.g., Kobinski v. State, 103 Nev. 293, 296, 738 P.2d 895, 897 (1987).
The district court determined that Greeson had abandoned his son Kevin pursuant to NRS 128.105(1). "Abandonment" is defined in NRS 128.012(1) as "any conduct . . . which evinces a settled purpose . . . to forego all parental custody and relinquish all claims to the child." Under NRS 128.012(2), a parent is presumed to have intended to abandon the child if that parent leaves the child in the care and custody of another without provision for the child's support and without communication for a period of six months.
In the instant case, Greeson failed to provide for Kevin's support for approximately five years, visited Kevin only once during that period and had only minimal additional contact with the child during this time. This conduct established the presumption that Greeson intended to abandon Kevin, and the trial court found that Greeson failed to rebut this presumption.
Greeson offered two theories for his failure to pay child support. On the one hand, he claimed that he could no longer afford the court-ordered $200 per month child support payment as he was disabled from a job-related injury and on welfare. However, Greeson also testified during the trial that he did not make payments because Barnes did not allow him to see Kevin. He testified, "[t]here was nothing to pay, because she wasn't letting me see him."
Had Greeson only asserted the former theory, he still would have been unable to rebut the presumption of abandonment since he testified that a paralegal in California told him that he could go to court to modify the divorce decree to reduce the child support payments to an amount within his means. Greeson offered no explanation for his failure to do so.
Greeson's failure to pay child support and failure to exercise visitation rights was undisputed. Greeson merely claimed (1) that he could not locate his son, and (2) that Barnes frustrated his attempts at visits. However, the district court found that Greeson's claim that he could not locate his son was belied by the fact that Greeson's own parents maintained visitation with their grandson throughout the five-year period.
While the district court found that Barnes frustrated Greeson's efforts to visit with Kevin from September 1987 to January 1989, it further found that her failure to encourage contact at that time was not unreasonable where Greeson continually threatened her life and the lives of members of her family, and threatened to abduct Kevin during this period. Greeson argued that his efforts toward visitation were also frustrated after 1989, but the trial court made no such finding. The weight and credibility of a witness's testimony is within the sole province of the trier of fact. Washington v. State, 96 Nev. 305, 308, 608 P.2d 1101, 1103 (1980). The trial court also found that Greeson made no effort to enforce his visitation rights. Greeson testified during the trial that he could not afford an attorney; however, he later admitted that his father offered him financial assistance to hire an attorney and that he refused. It is no wonder that the trial court did not choose to believe Greeson's testimony that he did not abandon his son!
Although Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), established a new standard as to certain aspects of parental rights, it did not change the factors to be considered on the issue of abandonment. Since the Champagne decision, this court has continued to rely upon the reasoning and conclusions of termination cases decided prior to Champagne when considering abandonment. After the Champagne decision, in Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989), this court cited with approval four pre- Champagne cases on the issue of abandonment: Pyborn v. Quathamer, 96 Nev. 145, 605 P.2d 1147 (1980); Sernaker v. Ehrlich, 86 Nev. 277, 468 P.2d 5 (1970); Casper v. Huber, 85 Nev. 474, 456 P.2d 436 (1969); and Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960).
In Pyborn v. Quathamer, 96 Nev. 145, 605 P.2d 1147 (1980), this court held that a father who made no real attempts to communicate with his child for a period of approximately ten months and failed or made only token efforts to pay support for the child had abandoned the child. The father in Pyborn claimed that the mother frustrated his attempts to communicate with his child. Pyborn, 96 Nev. at 147, 605 P.2d at 1148. This court deferred to the district court's finding to the contrary. Id. Moreover, this court emphasized the fact that the father made no attempts to initiate any legal proceedings to impose his visitation rights. Id.
In Sernaker v. Ehrlich, 86 Nev. 277, 468 P.2d 5 (1970), this court upheld the termination of a father's parental rights on the ground of abandonment. Following a divorce in 1962, the father in Sernaker made child support payments inconsistently and observed visitation every weekend until approximately 1965, when payments and communication with the child became nominal. Id. at 278-79, 468 P.2d at 6. At the time of the termination hearing, the father owed approximately $11,000 in arrearages for wife and child support. Id. at 279, 468 P.2d at 6. This court stated that while nonsupport is not synonymous with abandonment, it is a factor in determining whether a parent has abandoned his child. Id. at 280, 468 P.2d at 7. We held that "[l]ack of support plus other conduct such as a failure to communicate by letter or telephone, or absence of sending of gifts is sufficient to uphold the trial court's conclusion that the child had been abandoned." Id. As in Pyborn, both the district court and this court were unpersuaded by the father's argument that the mother withheld visitation, particularly where the father did not initiate any legal proceedings to enforce his visitation rights.
In Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960), this court upheld the district court's finding that the father had abandoned his child. We noted that from 1956 to 1959 the father failed to support the child and that communication or attempts at communication with the child during that time were meager. Id. at 449, 357 P.2d at 593. The father's gifts to the child were limited to the child's birthday and Christmas. Id. Though the father sought to prove that the mother frustrated his attempts to communicate with his infant son, this court was unpersuaded as he "made no real attempt to insist upon or to enforce his rights of visitation under the divorce decree." Id. at 449, 357 P.2d at 593.
The case at bar presents a picture of abandonment at least as compelling as those presented in Pyborn, Sernaker, Casper, and Carson. Greeson had only negligible contact with Kevin for a period of five years and paid only $60 in child support during that time. In the cases cited above, the fathers' conduct was comparatively less egregious and this court decided that parental rights were properly terminated. In Pyborn, there were ten months of negligible communication and support. In both Sernaker and Carson, the fathers lived much farther away from the child than in the case at bar. In Sernaker, the father resided in Pennsylvania while the child resided in Nevada. In Carson, the father resided in Florida and the child in Nevada. Greeson, however, lives in northern California, comparatively close to Kevin.
In Sernaker, the father's contact with the child was more substantial than in the instant case; he made payments and exercised visitation rights for approximately three years. Greeson paid child support and exercised visitation for only six months. Where the father in Carson sent Christmas and birthday gifts, in the case at bar, the only evidence regarding gifts was the Christmas gift Greeson gave Kevin during the sole visit between 1988 and 1992. This court and other courts have recognized that a noncustodial parent demonstrates an intent not to abandon a child by providing financial support and/or by maintaining contact with the child. Greeson did neither.
In any contested termination of parental rights proceeding involving abandonment, the mere fact that the parent contests the termination may indicate that the parent does not have a "settled purpose . . . to forego all parental custody and relinquish all claims to the child." NRS 128.012(1). However, the trial court is not obligated to accord greater weight to the parent's belated protestations than to the parent's failure to provide support and communicate with the child over several years. On the contrary, there is no better illustration of the adage "actions speak louder than words." When a parent fails to pay child support for five years and makes virtually no gesture demonstrative of real care and concern for the child, subsequent pleas of a lack of intent to abandon the child ring hollow. We hold that the trial court's finding that abandonment was established by clear and convincing evidence is supported by substantial evidence.
The test for determining the best interest of the child is, "[i]f under no reasonable circumstances the child's best interest can be served by sustaining the parental tie, dispositional grounds for termination exist." Champagne v. Welfare Division, 100 Nev. 640, 652, 691 P.2d 849, 858 (1984). In determining whether termination was in Kevin's best interest, the district court emphasized that Barnes and her present husband, Mr. Barnes, furnished Kevin with a stable environment and consistently provided him with love, attention, discipline, and emotional support. The district court also noted Greeson's express and implied threats of death and serious bodily injury to Barnes, her father, and her husband, and his threats to abduct Kevin, and was unfavorably impressed with Greeson's willingness to make Kevin "a secondary victim of such hostility." Moreover, Kevin did not wish to speak with Greeson when visitation was attempted under the supervision of the court-appointed child advocate, and Kevin was, in fact, afraid of Greeson. To suggest, as Greeson does, that a seven-year-old's negative attitude toward a father who has failed to visit with him in five years must necessarily have been induced by the mother is unrealistic and demeans the child.
Kevin is currently eight years old and during the past approximately six years, has only visited with Greeson once. Barnes and her husband have been married for three years and Kevin has resided with them for almost half of his life. As the district court noted, Kevin looks to Mr. Barnes as his father figure. We hold that clear and convincing evidence supports the district court's conclusion that termination of Greeson's parental rights is in Kevin's best interest.
The district court's findings of fact and conclusions of law are in accord with the statutes and case law of this state, including the Champagne decision. This court has no basis for contesting the findings of the district court which had the opportunity to observe the witnesses and judge their credibility. Accordingly, we affirm the district court's decision.
STEFFEN, C.J., and YOUNG and ROSE, JJ., concur.
Termination of parental rights is an extreme measure. . . . If the "capital punishment of welfare law" must be invoked, it should be done only under the strictest of conditions as set forth in this opinion.
Champagne v. Welfare Division 100 Nev. 640, 664, 691 P.2d 849, 865 (1984)
I dissent from the judgment terminating this father's parental rights because it is unfair to the father and contrary to the best interests of Kevin that this father and son should have to suffer the "capital punishment of welfare law" merely because the father-son relationship was temporarily disrupted by an ongoing dispute involving Kevin's father and mother and Kevin's present stepfather.
There are neither jurisdictional nor dispositional grounds for termination of parental rights in this case. Greeson most certainly did not "abandon" his son; and it cannot possibly be said under any version of the facts of this case that "under no reasonable circumstances [can] the child's best interest . . . be served by sustaining the parental tie." Champagne, 100 Nev. at 652, 691 P.2d at 858.
JURISDICTIONAL GROUNDS
For the trial court to have concluded that Greeson abandoned his son it must have found that this father's conduct "evince[d] a settled purpose . . . to forego all parental custody and relinquish all claims to the child." NRS 128.012(1). There is not the slightest bit of evidence in this case that the father intended to give up his custody rights, much less to "relinquish all claims to the child." If this father had any "settled purpose" at all in these proceedings, it was to try to maintain his father-child relationship under the most trying of circumstances.
There are some minor conflicts in the evidence in this case, as discussed in the majority opinion, but there is certainly nothing that would even suggest that this father no longer wanted to be a father or that he wished to relinquish forever "all claims to the child." So that the reader of this dissent will have some appreciation of the tragedy that is inherent in the present judgment of this court I will review the facts in this case. When Kevin's mother and father got divorced in March of 1987, the father was ordered to pay $200.00 per month and was given the right to one week's visitation each month. The decree provided for a review of the matter at the end of six months. All went well initially; Greeson paid his child support and had the child with him for one week of each month with the exception of one visitation period. The problems in this case can clearly be traced to one event: the six-month court review of custody. Greeson tried to get the review hearing postponed because his new wife was about to deliver a baby. As so often happens in these kinds of situations, communications broke down between the court and the then lawyerless father. The postponement was given by the court, and the review hearing was rescheduled; but Greeson claims he did not get notice of the rescheduled hearing. The hearing went ahead in Greeson's absence. Greeson was later advised by the petitioner that at the hearing his visitation rights had been reduced from one week a month to every other weekend. Greeson never received a copy of the new custody order. Greeson exercised the new, diminished visitation rights on a regular basis until struck in the form of a huge verbal battle between Kevin's mother and Greeson's wife. The gist of the aftermath of this contretemps was that the mother would not let the father see his child for so long as he insisted on keeping his wife around. Greeson tried to avoid this restriction imposed on his visitation rights by arranging his now bi-monthly visitations with his son at the home of his parents, the child's grandparents; but the child's mother eventually told the paternal grandparents that she would not allow the child to visit with the grandparents if Greeson was going to be there.
After the mentioned review hearing in which the new visitation orders were made, Greeson got behind in his child support payments. Greeson testified that this was due to a job-related injury which finally forced him to go onto welfare. He testified that, at the time, he was receiving under three hundred dollars a month. Greeson testified that he could not afford an attorney and did not know how to go about getting his support payments reduced and that he became very frustrated by the difficulties in visitation occasioned by his former wife and her husband and father. Ultimately, the mother refused to let Greeson see his son until he caught up with all of his child support payments.
Even if we take the dimmest view of this father's conduct and the charged neglect (not "abandonment") of his son during the post-divorce disruption of his life, there is no evidence at all, much less "clear and convincing evidence" that he abandoned his son, that he had formed a "settled purpose" or intention to forego all custody rights and voluntarily and purposefully "relinquish all [parental] claims to his son."
This is not an abandonment case. This is a case in which an absent father failed for a period of time to pay child support for a child that was being turned away from him by the child's mother and stepfather and the mother's family. For some period of time, at least, Greeson was not permitted to see his son. Ms. Barnes' father testified that when Greeson attempted to visit Kevin, he "a time or two, run him off . . . because I didn't like his attitude." In a situation like this one, where the father was "run off" from his visitation attempts, it is very difficult indeed for me to understand how the trial court could possibly have decreed that this father is to be lost forever from this son. There is no evidence of abandonment in this case, and I believe the error of the trial court in this matter to be violative of the constitutional limits on parental severance set forth in Santosky v. Kramer, 455 U.S. 745 (1982).
There is some evidence in this case of Greeson's neglect of his son during this tumultuous period mentioned in footnote 1. There is not, however, such neglect as to justify termination of Greeson's parental rights. The pleading in this case avers that Kevin was "neglected within the purview of NRS 128.012" and charges that Greeson had "failed, neglected and refused to provide proper and necessary subsistence" for the child. I stress, however, that this case proceeded on a theory of abandonment — intentional and purposeful "relinquishment" of parental rights by a parent.
It appears to me that the majority realizes that there was no evidence of abandonment and that to sustain the judgment of the trial court, it had to rely on the presumption contained in NRS 128.012, which relates to proof in welfare cases in which the abandoning parent makes no "provision for the child's support" and where there is no "communication for a period of six months." The statute has no application in a case such as this where provision for the child's support was made in the divorce decree and where the parents and child were certainly not incommunicado.
When I say that parental rights should not be terminated for failure to make timely child support payments, I am in no way condoning the unfortunately common practice of noncustodial parents' refusing to pay child support payments because of real or perceived grievances relating to violation of their visitation rights or to claimed alienation of the child by the custodial parent. Violation of support decrees regularly calls for severe penalties, even jail sentences; still, if every time this kind of problem arises, we are going to permit the termination of the non-paying natural parent's legal rights as a mother or father, we are going to be wreaking a terrible disruption of the already disrupted family life in this country.
Nevada provides any number of remedies that an aggrieved parent and child can use to enforce child support obligations, including garnishment proceedings, withholding of industrial insurance benefits or unemployment compensation, assignment of income, and even civil contempt proceedings. See, e.g., NRS Chapter 31A; NRS 31.295; NRS 616.550; NRS 612.457. These alternatives should have been explored before "capital punishment" was imposed.
It can be argued that Michael Greeson might have handled these problems with his former wife in a better way, but his becoming involved in these kinds of rather typical conflicts does not mean that he deserves to have his child taken away from him forever. He is the natural father; he has had a terrible fight with the child's mother and her new husband; but this does not mean that he has to be deprived of his status as the father of his child, such drastic action is neither in the child's interest nor the father's. Termination is in no one's best interest. The child does not deserve to have his natural father taken away from him. The child loses his rights of inheritance and his rights to the company of his father, all because of a petty and spiteful disagreement between his mother and father and because this eight-year-old child has been taught that his father is "stupid."
To me the most revealing evidence of the pattern of conduct of the mother and the stepfather comes to light in the testimony of the child advocate. The child told the child advocate that he did not want to see his father, "because he was stupid." This tells me a lot about what was done to this child in the absence of his father. Young children would not ordinarily be expected to tell strangers that their fathers were "stupid," absent some coaching or improper influence of some other adult. When asked whether he felt that the hostility of the mother and stepfather towards Mr. Greeson may have interfered with the contacts which Kevin had with his father, the child advocate answered, "Yes, I do." The child advocate also testified that "[b]oth Toni and Jack Barnes have been very hostile toward Mike [Greeson]. My assumption is that Kevin would pick up on that."
As I have said, this is not an abandonment case, whatever else it might be. This father did not abandon his son and does not deserve the "capital punishment" that was imposed upon him in this case. There are no jurisdictional grounds to support this termination of parental rights decree.
DISPOSITIONAL GROUNDS
Even if there were some evidence of abandonment in this case, even if this father had been clearly and convincingly proven to have had a settled purpose to get rid of Kevin, to "forego all parental custody" and voluntarily "relinquish all claims to the child," certainly, under Champagne, there are any number of "reasonable circumstances" under which Kevin's interests would "be served by sustaining the parental tie." There are insufficient dispositional grounds to justify this severance of parental rights.
The idea of permanent severance of the natural "parental tie" in this case is totally out of line with the "dispositional" requirement of Champagne. Before termination was adjudicated in this case, certainly some consideration should have been given to "reasonable circumstances" under which the "child's best interest" can be served and to ways in which some visitation rights could be exercised by the father; and even if this were not the case, there is no need to terminate his legal rights of fatherhood.
The kinds of parental rights termination cases that we ordinarily see are cases in which it is quite apparent that the child's interests cannot be served by sustaining the parental tie with parents who, for example, are in prison, are hopeless drug addicts or who have actually demonstrated a "settled purpose" to give up their parental rights. This is not such a case. There is nothing wrong with this father; he is not morally unsuited to be a father; he is not a bad person; he is not an unfit parent. Granted, he may have done wrong in the turmoil after his divorce when he lost contact with his son and failed to make court-ordered child support payments on time. This does not provide cause for permanently taking his son away from him and never letting him see Kevin again. (Even if, for now, Kevin thinks his father is "stupid.") Every noncustodial parent who is delinquent in child-support payments will now, it seems to me, be subject to retaliatory attempts to terminate their parental rights. Termination of parental rights is designed for cases in which there is no way in which the child's interests can be reasonably served except by taking the offending parent out of the child's life. Termination of parental rights is not designed as a way to punish parents who get behind in their child-support payments.
The trial judge in this case could not possibly have fairly concluded that there were no "reasonable circumstances" under which the father's parental rights could be sustained because the judge made no inquiry into such circumstances. The issue was not even litigated. There are no dispositional grounds for termination of parental rights in this case.
In 1982, the Supreme Court held in Santosky v. Kramer, 455 U.S. 745, that the interest of a natural parent was a "fundamental liberty interest," guarded by the United States Constitution and that this "interest does not evaporate simply because [the natural parent] ha[s] not been [a] model parent." Id. at 753. "[T]he degree and duration of parental fault or incapacity necessary to establish grounds for termination is greater than that required for other forms of judicial intervention." Champagne, 100 Nev. at 648, 691 P.2d at 854-55. For this court to say blandly that it is clearly convinced that this father voluntarily had a "settled purpose" to "relinquish" his rights of fatherhood, and for this court to say further that there are no reasonable alternatives to termination of parental rights is, in my opinion, a perversion of law and a perversion of nature. There are neither jurisdictional nor dispositional grounds here; so I would reverse the judgment of the trial court.
I would note that all of the cases cited in the majority to support the termination order in this case were decided before 1982, which is to say before Santosky and before Champagne. These cases have no bearing on the case now before us.