MINUTES OF THE meeting
of the
ASSEMBLY Subcommittee on Judiciary
Seventy-First Session
March 15, 2001
The Subcommittee on Judiciarywas called to order at 3:45 p.m., on Thursday, March 15, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
SUBCOMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Ms. Barbara Buckley
Mr. John Carpenter
GUEST LEGISLATORS PRESENT:
Mr. Greg Brower
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Lucille Lusk, Co-Chairman, Nevada Concerned Citizens, Las Vegas, NV
John C. Morrow, Chief Deputy, Washoe County Public Defender, Reno, NV
Assembly Bill 34: Revises provisions governing granting of rights to visitation with child to persons other than parents of child. (BDR 11-193)
Chairman Anderson briefly read key points of a proposed
amendment to A.B. 34: (1) Harm or potential harm, and (2) Clear and
convincing evidence.
A third language change had been proposed in regard to giving the parent a
right to rebut evidence provided.
Lucille Lusk, Co-Chairman, Nevada Concerned Citizens, reiterated the issue she raised at the original hearing of A.B. 34 on February 14, 2001 and at the last subcommittee hearing on February 23, 2001. She believed consideration should be given to the harm that could occur to a child regardless of which decision was made; not just that harm might occur if the visitation was denied, but also what “greater” harm might occur if the visitation was granted over the objection of the parent. That would result in a “balancing test” for a judge to determine where the best interest of the child might lie. To make a decision based on harm if visitation was denied would not be a complete test; the complete test would include the best interest of the child.
Chairman Anderson outlined the steps involved in proposed amendments for A.B. 34:
Ms. Lusk agreed with Chairman Anderson’s outline.
Risa Lang, Committee Counsel, reviewed A.B. 34 and the proposed amendments. She said subsection 5 did require visits to be in the best interest of the child. Subsection 4 could include language that would allow parents to show evidence that greater harm would occur if visitation was granted.
Assemblywoman Buckley agreed that parental denial of visitation was the first step in the process, but she struggled from that point on. She reread the Troxel decision in light of recent discussions with the Nevada Trial Lawyers Association (NTLA) and believed strict scrutiny should be standard in the statute. One point of concern related to “special weight not being given to the parental decision.” Should the starting point be to give material weight to the parent’s decision? What should the standards be…as strong as a presumption in favor of the parent? Had a benchmark been determined in regard to the parent’s decision? The next problem was the “clear and convincing evidence” standard, would it deal with constitutional issues? Did the level of evidence need to be that high? And finally on the “harm” question, Assemblywoman Buckley did not believe the Troxel decision dealt with “harm or potential harm.”
Assemblyman Carpenter believed what had been recommended previously would be better.
Chairman Anderson restated the NTLA had recommended an even higher standard than just “clear and convincing” to which he felt created much too high a “wall.” While “clear and convincing” was not the highest standard, it was a high enough boundary. So, even though the Troxel decision did not specifically deal with that, Chairman Anderson felt “clear and convincing” was safe ground; particularly since all the presumptions were on the parent’s side and the person who went forward would have a very high standard to prove. He also agreed the parent should have a chance to respond to the rebuttable issues. It should not be tied to dollars, but the emotional stability of the child.
Assemblywoman Buckley articulated her concern that three barriers were being created: (1) rebuttable presumptions in favor of the parents; (2) clear and convincing evidence standard; and (3) harm or potential harm to the child. She believed it should be possible to use just two barriers; three standards went too far and would hurt the grandparents. Since it was a “plurality decision,” it was confusing to know exactly the intent of the court. At one point in the Troxel decision, even the harm or potential harm had been questioned.
Ms. Lusk agreed with Assemblywoman Buckley’s concerns and said she had believed the “harm or potential harm” was necessary in response to Troxel. If that was not the case, Ms. Lusk was more than willing to take out references to “harm or potential harm” and leave “clear and convincing evidence that visitation would be in the best interest of the child.” Ms. Lusk was uncomfortable with the “harm” standard but would be satisfied with “best interest of the child.”
Chairman Anderson asked Assemblywoman Buckley if the amendment moved further away from parental rights, which was what the Troxel decision was all about.
Assemblywoman Buckley responded Troxel stated the parents had the rights. She believed A.B. 34 included a good “laundry list” of factors that distinguished Nevada statute from the Washington standard. Assemblywoman Buckley believed it should be possible to be creative, not necessarily not address harm at all; but do so with a less harsh approach and yet enough to not be challenged. Assemblywoman Buckley did not want A.B. 34 to be considered unconstitutional.
Chairman Anderson asked if the preemptory challenges were occurring out of fear to set up a test case that might call the language into question? Was the Troxel decision considered to be too narrow? Assemblywoman Buckley said, “Could be, very possible.”
Assemblyman Carpenter said the use of “potential harm” lowered the standard. He asked if all the courts in Washington upheld the Troxel decision? Chairman Anderson replied the Troxel decision overruled a Washington state decision. Assemblyman Carpenter was unsure as to the order of the court decisions.
Assemblywoman Buckley asked if anyone from the audience had a solution.
Assemblyman Brower, District 37, appeared before the committee on behalf of the bill’s sponsor, Assemblywoman Berman. He reiterated that the Troxel decision recognized the parental fundamental right to make visitation decisions. He believed a declaration of that sort should be included in A.B. 34, keeping with the Troxel decision. A.B. 34 tried to establish a standard for the party seeking visitation over the parent’s right. “Clear and convincing evidence” was that standard. Harm…he did not know any other way to deal with it. That left only one variable, the standard of evidence…clear and convincing, or preponderance of evidence. It should not be “beyond a reasonable doubt,” it would not make sense.
Assemblyman Brower also said, according to his information, the United States Supreme Court affirmed the Washington Supreme Court. And according to Ann McCarthy, from the original hearing, no other state had tried to fix their statute in response to the Troxel decision. It was suggested Nevada would be the first state to try. Chairman Anderson noted there were several other states working on similar types of legislation.
Assemblywoman Buckley queried what would happen if the “presumption” in favor of the parents and the “harm” clause, with a definition of harm, were left; then could the “clear and convincing standard of evidence be eliminated.”
Chairman Anderson said Assemblywoman Berman presented an amendment at the original hearing although it was not discussed. The first subcommittee tried to determine the intent of the amendment and discussed comments from NTLA representatives, Myra Sheehan and Ann McCarthy, as well as Lucille Lusk from Nevada Concerned Citizens. At this time, should the original bill be reviewed or should the amendment as argued previously be considered. Assemblywoman Buckley wanted to keep the amendment without the “clear and convincing evidence” clause.
Chairman Anderson asked if the “clear and convincing” evidence standard favored the “fit” parent? Assemblywoman Buckley agreed. She continued, saying the presumption, the evidence level and harm were three rough hurdles.
Assemblyman Brower was not sure the Troxel decision required the “harm” clause. Could “best interest of the child” be the criterion in the Nevada statute? Assemblywoman Buckley stated she could support that language, it would eliminate one barrier.
Chairman Anderson asked how that would change the amendment? Assemblyman Brower said it could read “clear and convincing evidence that it would be in the best interest of the child to grant visitation.”
Chairman Anderson asked if that dropped the “harm” clause? Assemblyman Brower agreed. Chairman Anderson said the change would still allow the parent the right to rebut. Assemblyman Brower believed it was implied and would still be part of the debate.
Chairman Anderson wanted all the links in the chain to be in place, nothing missing; to close the loop the parents needed to respond. Assemblyman Brower believed Chairman Anderson was being overly technical. The presumption rested with the custodial parent and both sides would argue their case.
Chairman Anderson felt that would result in arguing in a circle. The presumption was that the fit parent’s decision was always in the best interest of the child. Assemblyman Brower agreed that was what Troxel required.
Assemblywoman Buckley said the committee had three choices:
(1) Go with the amendment the way it was;
(2) Go with the amendment, changing clear and convincing to preponderance; or
(3) Keep clear and convincing and change harm to best interest.
She believed choice (2) was best, but she would go with choice (3). She made a prediction that the newly appointed United States Supreme Court might be more concerned with harm than the level of evidence.
Assemblyman Carpenter said he was willing to have Assemblyman Brower’s ideas shared with the representatives from the NTLA.
John Morrow, Washoe County Public Defenders Office, noted there was a parallel bill in the Senate that focused on the best interest of the child. The Senate bill included a “presumption of the evidence” as the standard. Chairman Anderson remarked the two chairmen had talked about the two bills; he felt the Assembly committee had a better bill. Mr. Morrow admitted A.B. 34 had been more well thought out than the one in the Senate, but noted that to show the child would suffer harm could be almost impossible.
Chairman Anderson believed A.B. 34 should move forward. Assemblyman Carpenter asked if the committee would be able to contact the NTLA attorneys. Chairman Anderson asked the Research Department and Legal Division to draft the suggestions into the amendment. The committee would then share the revised amendment with Assemblywoman Berman, Ms. Lusk, Mr. Morrow, Ms. McCarthy and the committee members.
Chairman Anderson adjourned the meeting at 4:40 p.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: