SUZANNE LINDLEY DALY, Formerly Known as TIM DALY, Appellant, v. NAN TOEWS DALY, Respondent
Daly v. Daly
Mowbray, C. J., and Young, J., concur.
SUZANNE LINDLEY DALY, Formerly Known as TIM DALY, Appellant, v. NAN TOEWS DALY, Respondent.
SUZANNE LINDLEY DALY, Formerly Known as TIM DALY, Appellant, v. NAN TOEWS DALY, Respondent.
No. 15423
March 6, 1986
715 P.2d 56
Ann Casamajor, Albany, California, and Semenza & Brown, Reno, for Appellant.
Nada Novakovich, Reno, for Respondent.
OPINION
By the Court,
Steffen, J.:
Appellant, a transsexual, contends that there is no legal basis for the order terminating her parental rights and that the lower court is merely and improperly enforcing the private prejudices of the respondent. Palmore v. Sidote, 104 S.Ct. 1879 (1984). We have considered the arguments presented by counsel, carefully reviewed the record and conclude that the district court ruled correctly and should be affirmed.
Respondent Nan Daly is the natural mother of the child. Appellant Suzanne Daly is the natural father of the child. Appellant's name was changed from Tim Daly on December 9, 1982. Appellant underwent sex-reassignment surgery, changing her sexual anatomy from male to female, on December 13, 1983, after a trial period of living as a female for approximately one year.
The parties were married September 17, 1969, at Oakland, California. The minor child at issue in this action, Mary Toews Daly, was born August 21, 1973, at Oakland. A final decree of divorce was entered February 17, 1981, at Reno, Nevada, in the Second Judicial District Court. Respondent was awarded custody and control of Mary, subject to the visitation rights of appellant. Initially, appellant regularly exercised visitation rights under the decree, seeing the child approximately one weekend per month, alternate holidays and one month in the summer of 1981.
While Mary was with appellant in August, 1981, appellant revealed that she was a transsexual and would be undergoing hormonal and surgical reassignment as a female under the care of medical professionals. Appellant told Mary that neither respondent nor her grandmother, who lives with respondent, should know of appellant's plans. Mary did not reveal appellant's intentions for six months.
When Mary returned from her visit to Oakland in August of 1981, respondent noticed she was withdrawn and afraid to tell her something. On February 14, 1982, Mary revealed her father's plans to her mother. Mary was taken to a psychologist and evaluated by Dr. Towle, who advised respondent that it was very dangerous to allow Mary to be in the company of her father again.
Respondent testified that when Mary returned from the August visitation with her father, she would vacillate from being wide awake to being very sluggish. A certified academically talented child since seven years of age, she would sit at the kitchen table for hours cutting a large piece of paper into small pieces. She would take a pencil and trace the grain of the oak floor for hours. She wet the bed and, in fact, was incontinent in class a week prior to trial. Mary had not wet the bed since she was two years old. She had a short attention span and could not follow instructions, nor perform simple tasks. She also became inattentive and her handwriting degenerated into a scrawl. In addition, Mary became quiet and withdrawn.
In May of 1982, the respondent mother petitioned the lower court to terminate appellant's parental rights. On April 11, 1983, the court rendered its decision terminating appellant's parental rights. Appellant thereafter appealed.
In Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960), this Court recognized its duty to scrutinize the termination of parental rights. Moreover, this Court in Cloninger v. Russell, 98 Nev. 597, 655 P.2d 528 (1982), adopted the clear and convincing evidence standard of proof in parental rights termination proceedings as set forth in Santosky v. Kramer, 455 U.S. 745 (1982). NRS 128.110 authorizes the termination of parental rights upon finding grounds pursuant to NRS 128.105. In the recent decision of Champagne v. Welfare Division of the Nevada State Department of Human Resources, 100 Nev. 640, 691 P.2d 849 (1984), we elaborated on the grounds set forth in NRS 128.105 and held that there must be a finding of both jurisdictional and disposi-tional grounds in order to justify issuance of a termination order. Our review of the evidence in the instant case persuades us that both grounds were satisfied.
JURISDICTIONAL GROUNDS
NRS 128.105 specifies the jurisdictional grounds for termina tion. The district court primarily focused upon the risk of serious physical, mental or emotional injury to the child if visitation were resumed and the child were forced to maintain contact with appellant. NRS 128.105(4).
At trial Dr. Weiheir, respondent's expert witness who examined Mary, testified that there is a serious risk of emotional or mental injury to the child if she were allowed to be in her father's presence. In addition, the doctor testified that Mary would not be injured if she did not see her father again. The doctor also considered alternatives, such as consultation with psychologists and psychiatrists and testified there was no guarantee it would work and that there would be a serious risk of emotional injury. It is precisely this risk that the lower court was asked to eliminate. It must be remembered that in termination proceedings, the interests of the child are paramount and a child should not be forced to undergo psychological adjustments, especially in view of the risk involved, solely to avoid termination of a parent's rights. Certainly a parent's rights should be preserved if at all possible, but not at the expense of the child.
Appellant's expert witness also provided support for respondent's position by testifying that there are children who are not able to accept a parent as a transsexual. This witness also stated this was a new area and concluded there is a risk that there would be harm done in either direction. Dr. Weiheir, however, had the opportunity to observe and interview Mary and determined the risk to Mary would exist only if visitation were forced upon Mary.
Notwithstanding the possible harm that would befall Mary if visitation were resumed, NRS 128.107 provides that the child's desires regarding the termination should be a specific consideration, if the child has sufficient capacity to express his or her desires. Considering Mary's age and intelligence, the lower court found her to have the requisite capacity. We agree with the court's finding. In the present case, Mary told Dr. Weiheir and the trial judge that she did not want to see her father. Mary also said it would be disturbing to visit with her father and made it graphically clear that she didn't want to see him again.
The evidence presented in this case decisively establishes the jurisdictional grounds necessary to terminate parental rights. Therefore, our attention will now focus upon the dispositional grounds.
DISPOSITIONAL GROUNDS
Dispositional grounds are satisfied when it is found that the termination is in the child's best interests. At trial, it was undisputed that Mary's mother, Nan, is a very loving and conscientious mother who provides a desirable environment for her daughter. Nan always keeps Mary well fed and clothed and is absolutely dedicated to her child. At the present time, Mary is happy and well adjusted. Nevertheless, if visitation were permitted, there would be a risk of serious maladjustment, mental or emotional injury. Hence, recognizing Mary's present situation, her attitude and feelings, and the substantial risk of emotional or mental injury were she forced to visit with her father, it appears clear that termination of appellant's parental rights is in Mary's best interest.
The trial court was fully aware of the seriousness and finality of a decree terminating parental rights, noting that such a remedy should be applied with caution. The court carefully considered the record and found abandonment and risk of serious mental and emotional harm. The court also found Suzanne to be a selfish person whose own needs, desires and wishes were paramount and were indulged without regard to their impact on the life and psyche of the daughter, Mary.
Our review of the record indicates that the district court's findings are fully supported therein. Suzanne's efforts to regain visitation rights are shown to be a continuing source of apprehension to the child. Suzanne's solution is to subject the child to psychiatric counseling in order to change her mental attitude concerning her father's condition. Inferentially, the child will be more likely to succumb to a process of mental conditioning if she realizes that she will be forced to endure periods of visitation with Suzanne. However, expert testimony at trial reflects substantial doubt as to the success of such counseling at best, and a serious risk of further emotional injury to the child at worst. Such considerations are further complicated by the apparent degree of Mary's revulsion over Suzanne and the irretrievable loss of Suzanne's former relationship with Mary as a parent-father. The future prospects for emotional family stability are also dimmed by Suzanne's indication that Mary should know lesbians, homosexuals and transsexuals and "be a part of their lives" if "they are my [Suzanne's] friends." Suzanne, who admitted that many of her friends are to be found among the aforementioned groups, has thus postured herself in a position of recurring conflict with the child's mother and the "traditional" upbringing enjoyed by Mary during her formative years. The resulting equation does not bode well for the emotional health and well-being of the child. This Court can perceive no basis for such disruption of Mary's life. Nor do we see the necessity for inflicting a continuing sense of instability and uneasiness on this child. As noted previously, when Mary reaches the age of majority she can decide whether to reinstate a relationship with Suzanne. In the meantime, given the circumstances concerning Mary's view of Suzanne and the extent of her opposition to further ties with a vestigial parent, it can be said that Suzanne, in a very real sense, has terminated her own parental rights as a father. It was strictly Tim Daly's choice to discard his fatherhood and assume the role of a female who could never be either mother or sister to his daughter.
In sum, the record discloses the fact that appellant has paid no support for over a year, and what little communication there was during this time may be appropriately described as "token." Moreover, the court concluded that termination of appellant's parental rights would be in Mary's best interest. We have determined that the trial court's findings and decision are clearly and convincingly supported by the evidence. Both the jurisdictional and dispositional requisites for the termination of appellant's rights as a parent have been satisfied.
The trial court had all the parties before it, observed their demeanor and weighed their credibility. In this area of such sensitivity, we must accord the lower court due deference. We have considered appellant's remaining contentions and conclude they either lack merit or do not require a reversal. Accordingly, we affirm the lower court's decision.
Mowbray, C. J., and Young, J., concur.
Soon thereafter, Suzanne introduced Mary to the community of alternate lifestyles by taking her to a session at the Pacific Center where other transsexuals gather for support and counseling and discuss their experiences with one another.
NRS 128.105 recognizes the following jurisdictional grounds:
1. Abandonment of the child;
2. Neglect of the child;
3. Unfitness of the parent;
4. 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;
5. Only token efforts by the parent or parents:
(a) To support or communicate with the child;
(b) To prevent neglect of the child;
(c) To avoid being an unfit parent;
(d) To eliminate the risk of serious physical, mental or emotional injury to the child, or
6. With respect to termination of parental rights of one parent, the abandonment by that parent.
In addition to the risk to Mary involved in this case, the evidence indicates that appellant left Mary in the care and custody of Nan Daly without provision for the child's support and without communication for more than six months. This constitutes a presumption of abandonment under NRS 128.012(2). Abandonment is also an acceptable jurisdictional ground for termination proceedings. See NRS 128.105(1). Moreover, what little communication or attempted communication existed during this period consisted of token efforts; again a recognized jurisdictional ground. See NRS 128.105(5)(a). Hence, the court's decision was fully supported on the issue of jurisdiction.
While other court's have imposed certain restrictions upon visitation with the child, such as the length of visitation, the location, or type of permissible activity, in this case such restrictions would accomplish nothing. The court recognized the effect appellant's transsexualism had upon Mary; any modification in visitation would not change that fact. To reiterate, the court did not conclude that appellant was an unfit parent merely because she is a transsexual. Rather, the court recognized the effect the situation had upon Mary in this time of her life and the serious risk of emotional or mental injury if visitation were allowed. Mary is very uncomfortable about the possibility of resuming visitation and is presently unprepared to cope with such a prospect.
It was shown that Mary is at the tender age when she is very much concerned about the impression of her peers and doesn't want to have any sort of uncomfortable fears. Mary would prefer to have her personal life remain a private event. By terminating Suzanne's parental rights, Mary will finally have the assurance and comfort of knowing the visitation matter is settled. Also, Mary's emotional state is preserved, thereby providing her the forum to mature and resolve the situation in her own way. There is nothing to prevent Mary from rekindling the relationship with her father in later years if she so desires, but that choice should be hers, made at a time when the risk of emotional or mental injury is eliminated.