Nevada family-law case summaries

After Larry Major was arrested in 2012 for child abuse, the State placed his daughter in the custody of Washoe County Social Services, which housed her at a facility called Kids Kottage for about seven months. Two different courts then got involved in the question of who pays for her care. First, a family court ordered Major to pay child support of $100 per month directly to Social Services. Later, after Major pleaded guilty to one felony count of child abuse, the criminal court (the district court) was asked to order restitution - a payment a convicted defendant makes to compensate a crime victim for costs caused by the crime. Social Services asked for $20,362.07, based on the rate it charges other agencies for care at Kids Kottage. Major objected. His main argument was that because the family court had already told him what to pay for his daughter's care, the criminal court had no authority - no "jurisdiction" - to order a much larger payment for the same thing. The district court disagreed and ordered restitution of $19,662.07, which was the amount Social Services sought minus a $700 credit for what Major owed under the family court's support order over the seven months. The Nevada Supreme Court affirmed. It explained that the two orders serve different purposes and come from different sources of authority. Family courts handle child support, which is calculated from a parent's income and is designed to keep a child out of poverty. But only a criminal sentencing court has the statutory power to award restitution to a crime victim - and the family court had no power to compensate the State for the costs Major's criminal acts imposed on it. Because the two obligations overlapped for the same seven months of care, however, the court noted with approval that the district court subtracted the $700 support obligation from the restitution figure. The Supreme Court held that the district court had jurisdiction to award restitution to the extent its order did not overlap with the existing family court support obligation. Major also argued that the restitution amount was not properly proven, in part because Social Services might have received federal reimbursement of up to 56 percent of the cost of care for eligible children. A Social Services fiscal compliance officer, Ida Peeks, testified about how the rate was calculated but did not know whether Major's daughter qualified for that reimbursement or whether any was received. The Supreme Court found the evidence sufficient, noting that Major made no showing that a reimbursement was actually received and that the district court required Social Services to notify it if a reimbursement came in, so the restitution order could be revised. The judgment of conviction was affirmed.

This case is about ending a mother's legal rights to her child when the child qualifies as a Native American child under a federal law called the Indian Child Welfare Act (ICWA). N.J. was born in September 2005, two weeks premature, and both she and her mother, Dawn, tested positive for marijuana and methamphetamine at the birth. Nevada's child welfare agency, DCFS, became involved, and N.J. was placed in foster care days after leaving the hospital. She remained with the same foster family from that point on. DNA testing showed that Javy J. was N.J.'s biological father, but according to DCFS he denied paternity and never contacted the child or the agency again. Because Javy is an enrolled member of the Ely Shoshone Tribe, N.J. was eligible for tribal membership, which made the ICWA apply to the case. Dawn herself is not a member of any tribe, and the tribe did not intervene in the case beyond providing expert testimony. DCFS created a case plan for Dawn and arranged visits, but the opinion recounts that Dawn continued testing positive for drugs during the first 18 months of N.J.'s life, missed more than half of her scheduled visits in the first year, achieved only a few months of sobriety in 2007, and tested positive again in October 2007. Witnesses described N.J. as fully bonded with her foster family, which planned to adopt her and, having Native American ancestry of its own, planned to educate her about her tribal roots. The complication is that two different legal standards were in play. Nevada law lets a court terminate parental rights if the key facts are proved by "clear and convincing evidence" - a demanding standard, but less demanding than the criminal-law standard. The federal ICWA requires something more: proof beyond a reasonable doubt, including testimony from a qualified expert witness, that keeping the child with the parent would likely cause the child serious emotional or physical damage. The district court used both standards - the state standard for state-law questions and the federal standard for ICWA questions. It found the state requirements satisfied, but found the ICWA requirement unmet, because the tribal expert who testified was not qualified to say whether returning N.J. to either parent would seriously harm her. The district court nonetheless terminated Dawn's rights by applying the Existing Indian Family (EIF) doctrine - a judge-made exception to the ICWA that applies when the child is not, and never was, part of a Native American family or tribe. The Nevada Supreme Court agreed on all fronts. It formally adopted the "dual-standard" approach used in most states: state-law findings are judged by Nevada's clear-and-convincing standard, and ICWA findings by the federal beyond-a-reasonable-doubt standard. It found substantial evidence supporting the district court's conclusions that termination was in N.J.'s best interest and that Dawn was at fault as a parent through neglect, unfitness, and merely "token efforts." It agreed that DCFS did not satisfy the ICWA's higher standard because no qualified expert testified about the likelihood of serious harm. But it held that the EIF doctrine may apply on a case-by-case basis - specifically in circumstances like these, where the only person contesting termination is a non-Native American parent, neither the tribe nor the Native American parent objects, and no breakup of a Native American family is at stake. The court observed that applying the ICWA here "would serve only one purpose: to deprive N.J. of the only home she has ever known and come to love," an outcome it said would run counter to the ICWA's goal of protecting the best interests of Native American children. The termination order was affirmed.