MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 2, 1995 The Committee on Judiciary was called to order at 8:22 a.m., on Friday, June 2, 1995, Chairman Humke presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: Assemblyman Vivian L. Freeman, District No. 24 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Mr. David Bennum Mr. Leilani Bennum OTHERS PRESENT: (Continued) Mr. Bob Barengo, Lobbyist, R & L Enterprises Mr. Jim Ritchie, R & L Enterprises Mr. David Guinan, Esq. Chief Deputy District Attorney Elana L. Hatch, Family Support Division, Clark County Senior Deputy Attorney General Nancy M. Saitta, Children's Advocate, Nevada Missing & Exploited Children Clearinghouse Ms. Ann Price McCarthy, Esq., Nevada Trial Lawyers Association Ms. Joanne Lewis Fletcher Mr. Steve Ghiglieri Ms. Myla Florence, Administrator, Welfare Division, Nevada Department of Human Resources Deputy Attorney General Donald W. Winne, Jr., Human Resources Division Ms. Lucille Lusk, Nevada Concerned Citizens Ms. Barbara Laber Ms. Sheila Leslie, Action of Nevada's Children Mr. Ben Graham, Lobbyist, Clark County District Attorney/Nevada District Attorneys Association Mr. Paul Matteoni, Esq. Ms. Valerie J. Cooney, President, Nevada Trial Lawyers Association Nevada Public Defender James Jackson Ms. Ann Wilson Andreini, Executive Assistant, Office of the Governor ASSEMBLY BILL NO. 595 - Revises provisions governing award of custody or guardianship of child to person other than parent. Chairman Humke announced he will turn the meeting over to Co-Chairman Anderson, as Mr. Carpenter and he have to appear on a bill in another committee and this meeting will continue as a subcommittee. Mr. Steve Ghiglieri, stepparent and legal guardian of a 9 « year old boy, who he has raised for 5 years, testified in support of A.B. 595. Mr. Ghiglieri related his wife died last year from a brain tumor and the misfortune was compounded by the fact the biological father after 8 years of total absence from the child's life now wants to be reunited with his stepson. Mr. Ghiglieri has sustained costly litigation expense to preserve what is best for the stepson. Under the current law Mr. Ghiglieri pointed out the child's best interest cannot be considered by the court unless the third party can demonstrate either the parent is unfit or the child will suffer irreparable harm by returning to the custody of a parent. Mr. Ghiglieri stressed change is needed in custody and guardianship statutes to protect the welfare of children. Assemblyman Vivian L. Freeman, District No. 24, sponsor, testified in support of A.B. 595 and submitted a memorandum from Scott Jordan and Charles McGee, Family Court Judges, attached as (Exhibit C). Ms. Freeman submitted proposed amendments for committee review, attached as (Exhibit D). Ms. Ann Wilson Andreini, Executive Assistant, Office of the Governor, briefly outlined (Exhibit D). Chairman Anderson asked if the proposed amendment was distributed to a larger circle of interested parties, i.e., Children's Cabinet, Nevada Concerned Citizens, and Nevada Missing & Exploited Children Clearinghouse. Ms. Andreini advised from her information copies were provided to them. Chairman Anderson requested committee secretary to provide a copy of (Exhibit D) to Ms. Lusk. Ms. Steel stated she was familiar with A.B. 302, and asked how A.B. 595 would change things appreciably. Ms. Andreini advised they do not affect one another and are two different situations. Ms. Andreini advised parental rights and guardianship are not addressed. Chairman Anderson requested clarification on p. 1, 2.c., child's relationship with his parent and/or a third party. Ms. Andreini explained a third party who has petitioned for intervention in a child custody action could conceivably be a grandparent, stepparent, or guardian. Ms. Andreini advised there are factors to be weighed in determining a child's best interest in relationships with parents and third parties intervening in the action. Ms. Andreini advised it is a list without priority. Mr. Manendo asked if godparents would be considered a third party. Ms. Andreini advised if the court determines a parental relationship was established, then the godparent would have standing to intervene. Chairman Humke returned at 8:45 a.m. Ms. Valerie J. Cooney, President, Nevada Trial Lawyers Association, testified in support of A.B. 595 with amendments; however, amendments need further clarification of language. Ms. Cooney advised NRS 125.500 is the appropriate statute to include in this provision. NRS 125.600 is a nonexistent section within the statutory scheme, Ms. Cooney noted and did not know the intent if a new section would be created or not. Ms. Cooney commented the amendment in NRS 125.500 accomplished the intent to provide for third party relationships and there is no necessity for the provision in other statutes, NRS 129 and NRS 159. Ms. Cooney stated individuals who are not blood relatives have the ability to intervene under the guardianship statute. As to the body of the amendments there is no objection to the proposed statute in theory but language clarification is needed, Ms. Cooney advised. Ms. Cooney suggested p. 1, 2.c., specify the child's relationship with his parents or parties seeking custody rather than a third party. Ms. Cooney expressed concern the legislation be specific enough to prevent abuse of this statute and with further proposed amendments it can be accomplished. Ms. Cooney suggested she and Ms. Andreini develop a proposal for consideration by the committee. Mr. and Mrs. David Bennum, grandparents of a 9 year old grandson, testified in support of A.B. 595. Mr. Bennum noted best interest of the child legislation is overdue but very important. Mr. Bennum commented to the presumption the best interest of the child is perceived to be with the natural parent and is not necessarily true. Mr. Bennum advised their case was heard by Judge McGee and his findings based on CASA investigation found in their favor on the best interest and was later overturned by the Nevada Supreme Court. Mr. Bennum urged the committee to include the provision the best interest of the child comes first regardless of findings about the parents. Mrs. Leilani Bennum advised her grandson lived with them since he was 16 months old except for three weeks. Mrs. Bennum related personal circumstances and reluctance to terminate daughter's rights during the period of her successful rehabilitation from addictive behavior. In reference to Nevada Supreme Court case, Lisk v. Bennum, the court held custody for an extended period of time (8 years) does not amount to an extraordinary circumstance that should overcome the parental preference doctrine. The court held the best interest of the child is usually served by awarding custody to a fit parent and Mrs. Bennum stressed it is not good enough for children. Attorney David J. Guinan, who represents Mr. and Mrs. Bennum in guardianship litigation, advised that decision was petitioned for rehearing in February and the remitter has not issued on that decision to the district court. Attorney Guinan speculated perhaps the Supreme Court is awaiting legislation in this session. Attorney Guinan commented he preferred the original bill rather than the amendments. Attorney Guinan thought both versions of this bill are important in that they emphasize the best interest of the child as the principal factor in determining child custody or the continuation or discontinuation of a guardianship. Under the Lisk decision, Attorney Guinan advised there are two circumstances under which the parental preference doctrine may overcome: (1) parent found unfit, and (2) showing of extraordinary circumstances without definition. Attorney Guinan advised A.B. 595 will give guidelines as to what those extraordinary circumstances may be. Senior Deputy Attorney General Nancy M. Saitta, Children's Advocate, Nevada Missing & Exploited Children Clearinghouse, testified in support of A.B. 595. Ms. Saitta commented this bill evens the field in terms of making custody determinations and makes it possible for individuals who have illustrated a parental relationship with the child not based upon biology have an opportunity to come before the court and be properly considered in determination of custody. Ms. Saitta stated it would most definitely protect the best interest of the children. Ms. Saitta related a child abduction case by a father who stated a child is his chattel and property. Ms. Saitta said Judge Maupin found that theory to be repugnant and she agreed it was not always in the best interest of a child to be placed with the biological parent when the placement is based solely upon biology. Ms. Saitta strongly urged the committee to adopt A.B. 595, as amended, and allow the best interests of the child to be considered in a custody dispute. Chairman Humke asked how long amendments were in existence. Ms. Saitta advised receipt yesterday. Concern was expressed by Chairman Humke regarding confidentiality of amendments from interested parties which was a foolish course of action. Ms. Steel requested clarification regarding the comment, "evens the field," and if it means a parent comes in with love for the child and disputing a grandparent or sister, who also have love for the child, the playing field is now even. Ms. Saitta responded not quite that rigidly. When a substantial relationship has been developed between a non-biological parent and the child, Ms. Saitta advised it allows them to come in on the same ground that the biological parent would have and minimizes the parental preference standard. Mr. Carpenter asked if the current statute provided for the best interest of the child. For purposes of a custody determination, Ms. Saitta advised it was her opinion it was only given lip service. Ms. Saitta stated there is a parental preference doctrine which speaks to the fact best interest of the child is usually with the parent. Ms. Saitta assured this bill does not destroy parental preference or take the natural parents' rights away. Mr. Carpenter asked if the court does not have that latitude now. Ms. Saitta believed the court has been given more latitude as well as direction within the statute as to how to make a determination for proper placement of the child. Ms. Ohrenschall inquired how this proposed statute would effect a situation of an unwed mother who gives birth and elects to keep the child and continues to live with her parents over 8-9 years, who establish a good relationship. The unwed mother decides to get married and the grandparents want to keep custody of the child. Ms. Saitta stated first the unwed mother's custody rights are established in another statute. Ms. Saitta believed this statute allows for a decision to be made by the court based upon the factors that each party would come to court and present their reasons for custody of the child. Ms. Saitta said after some showing of the standards in the statute, it would be very difficult for the grandparents to take the child away from the mother. Ms. Sheila Leslie, Action of Nevada's Children, testified in support of A.B. 595, as amended, along with A.B. 177 which presents a full best interest package that Nevada can be proud of. Ms. Leslie's testimony is attached as (Exhibit E). Ms. Joanne Lewis Fletcher, who is employed by Washoe County social services, testified in support of A.B. 595. Ms. Fletcher stressed children are not chattel and owned by parents. Ms. Fletcher stated in most instances children do belong with their biological parents but there are exceptions. Ms. Fletcher said when the biological parent has failed to provide emotional or psychological support to the child, the child forms a significant attachment to the other adult figure in their life who provides care and views them as their parent. Ms. Fletcher advised experience has taught when children are taken from parents and placed into foster care they go into adult life suffering extreme emotional damage and incapacity to form emotional attachments. Mrs. Barbara Laber, divorced and remarried with one son, testified in support of A.B. 595. Mrs. Laber's son's only contact with his biological father is twice a year. Mrs. Laber expressed concern that if she were to die, her son would have to go with his biological father. From Mrs. Laber's personal experience she related the horrible feeling of having no say who or where you go. Mrs. Laber stated it was important to understand this is a scar carried for life and time is of the essence. Paul A. Matteoni, Esq., of Van Meter & Matteoni, Attorneys at Law, testified in support of A.B. 595 and advised he handled a large number of guardianships and innumerable custody cases. Attorney Matteoni commented he sees people whose lives are affected because of the state of how the law is currently. It is true stepparents who raise children for numerous years have very limited or no rights. Attorney Matteoni also stated he liked the original draft of the bill better. Attorney Matteoni commented parents who abandon and abuse their children, there should not be a parental preference for those parents. Mr. Matteoni advised this bill still contains a rebuttable presumption, no matter what the situation the natural parents gets the first call and the amendments address this. Ms. Steel advised currently the judge has discretion to give preference to natural parents and has heard of cases similar to the Bennums and still not found to be egregious. Attorney Matteoni stated the judge does not have authority to consider third parties who have raised the children. Chairman Humke advised this complicated issue will be assigned to a subcommittee. Ms. Lucille Lusk, Nevada Concerned Citizens, testified in opposition to A.B. 595. Ms. Lusk stated it goes way too far to tip the balance. Of tremendous concern to Ms. Lusk was the statement the court is not required to find the parents of the child or the forfeiture of rights to custody before awarding custody to the non- parent. Ms. Lusk stated the amendment presents significant concern and noted children are capable in adjusting to changing circumstances. Ms. Lusk related a personal family experience where the state determined her family was too poor to raise children and they were placed in an orphanage to their detriment. Ms. Lusk suggested to marry together the best interest of the child with it being a detriment to the child if custody granted to the parent rather than separate the issues. Ms. Lusk offered to work with the subcommittee in refining the bill. Mr. Carpenter asked for Ms. Lusk's opinion if the latitude is there now for the judges to make these determinations without bringing in other actions. Ms. Lusk advised in the language of NRS 125.500 that specified the court shall make a finding that an award of custody to a parent would be detrimental to a child and that an award to a non-parent would best serve the interest of the child, gives the judge the flexibility in these cases to make those decisions. In reference to Section 2 of the amendment, Ms. Lusk inquired why it was changed from a person who has established a parental relationship with a child to a stranger. Chairman Humke advised the committee will certainly take a look at it. ASSEMBLY BILL NO. 644 - Extends permissible locations for greyhound racing. Chairman Humke announced in order to accommodate the schedule of the Chairman of the State Gaming Control Board, who is present today. A.B. 644 is now open for hearing. Mr. Jim Ritchie, R & L Enterprises, Las Vegas, testified in support of A.B. 644 which would authorize the issuance of a license to conduct greyhound racing in a county with more than 400,000 population. Mr. Ritchie stated if it is part of a resort with more than 1,000 rooms and further provides that the right shall be nonexclusive, there is no 100 mile limitation on such a location as it presently exists. Mr. Ritchie stated it further provides that the tax imposed by the Gaming Control Board would be similar to all other taxes on gaming activities, i.e., taxing the win not the handle, as long as the operator agreed to pay for regulatory costs of the state and could enforce to the degree appropriate. Mr. Ritchie advised he was in communication with Chairman Bible and his attorney, Bob Barengo, with proposed amendments to A.B. 644, attached as (Exhibit F). Mr. Goldwater asked if it has to do with allowing the parimutuel wagering. Mr. Ritchie stated no and advised present law does not authorize greyhound racing in a county of less than 100,000 population or in a city that has a special charter for that purpose, i.e., Henderson. Ms. Steel inquired why there was a population threshold on this bill. Mr. Ritchie advised it exists in present law and is designed to preclude a free standing greyhound facility in Clark County. Mr. Ritchie advised Nevada Resort Association was in agreement with the amendments. Mr. Bob Barengo, Lobbyist, R & L Enterprises, advised Section 1 of A.B. 644 provides the population fees to be imposed and the manner of payment. Mr. Barengo advised the amendment clarifies the fees, rate, and time of payment, attached as (Exhibit F). Mr. Goldwater commented in the past this type of wager has been tainted and asked if the state has appropriate regulations. Mr. Barengo advised in the past the controversy was over operators and not being funded well resulting in bankruptcy. Mr. Ritchie stated he would not expect there to be any less attention given by the Gaming Control Board to this activity than they do to all the other gaming activities. Mr. Ritchie stated the reason they are interested in changing the structure of the statute to allow this amenity is nothing more than the fighting ships in front of Treasure Island. Mr. Ritchie believes it will be a well received entertainment amenity and do not intend to charge admission. Mr. Goldwater questioned the internal regulation of greyhound racing and asked if another regulating body supervises the races or if the Gaming Control Board has this ability. Under existing law Mr. Ritchie advised the Gaming Control Board has the authority and the responsibility to regulate. In reference to the licensee shall pay the commission Mr. Carpenter asked if it was normally the case for gaming establishments to pay for all the regulation. Mr. Ritchie advised in free standing parimutuel facilities, i.e., race tracks for horses or dogs, normally that is a quasi-state entrepreneurship. Gaming Control Board licenses, taxes, and regulates it. Mr. Ritchie advised this is an amenity to be offered in a resort and is entirely a private enterprise circumstance. In Mr. Ritchie's judgment it is entirely appropriate that the operator pay for all the regulation that is incurred so the state is not at risk. In reference to Section 1, paragraph 3, amendment Mr. Anderson asked if it was consistent with other gaming operations. Generally speaking, Mr. Barengo advised the Gaming Control Board has the right to regulate. When the costs are disputed, Mr. Barengo stated they cannot dispute the right to regulate. Mr. Anderson confirmed they are only giving up recognizing the pre-emptory right. Mr. Barengo affirmed. Chairman William A. Bible, Nevada Gaming Control Board, testified the board not only regulates but supervises the conduct of the racing at this event. Mr. Bible advised the proposal in terms of fee structure is somewhat different than a normal gaming operation because they would be involved in superintending the race track. Mr. Bible advised the existing law provides for a tax of 4% of the handle and most states do tax based upon the handle. What Mr. Ritchie had proposed to Mr. Bible was the tax rate be tailored after the existing tax rate of other nonrestricted gaming operations which seemed to be equitable. Mr. Bible recommended the state also be compensated for the cost of regulation in this particular endeavor. Because Mr. Bible dealt with the race track in Henderson, he was fairly skeptical about the operation. Mr. Bible advised the legislature had to underwrite on a number of occasions through appropriations either by the legislature or allocation from the interim finance committee those regulatory costs. It created a considerable amount of ill will between the legislature and the Nevada Racing Commission and the track itself. Mr. Bible advised this proposal provides equity in terms of taxation and requires the licensee to compensate the state for the cost of regulation. Mr. Bible recommended the licensee appear before the legislature if they have concerns. Mr. Bible advised the proposal would be a step in the right direction in terms of revitalizing the industry. Chairman Humke requested assurance from Mr. Bible of full support of the amendments. Mr. Bible confirmed. With regard to the current regulation of the racing industry, Chairman Humke advised of limited horse racing in northern Nevada. Mr. Bible advised they are conducted in the agricultural fairs in northern Nevada, i.e., Winnemucca, Ely, and Elko. Mr. Bible advised of involvement in not only supervising the mutuels but also conducting the racing. Mr. Bible advised the stewards, veterinarian, and animal drug testing are supervised and was appreciative of the legislature giving them that function. Since Chairman Bible has been the boss, Mr. Carpenter advised things have gone very well. Mr. Carpenter said the racing commission used to ask the legislature for money and Mr. Bible understands the horse racing business too. Mr. Anderson asked if A.B. 644 was passed in its amended form, would it not put the Gaming Control Board in a better position to support other types of less profitable racing events that may become a burden. Mr. Bible agreed. Mr. Anderson inquired if greyhound racing would be a boon to attractions on the strip thereby generating additional revenue. Mr. Bible indicated he was somewhat skeptical due to past experience of greyhound racing and advised of difference in federal legislation from horse racing. Mrs. Monaghan questioned the cost of regulation if the first entrepreneur has to bear the whole brunt of the initial cost or does the next licensee, who may want to come on line share the cost. Mr. Bible advised the cost of regulation in this situation is pretty track specific and there is a pool of fixed cost regardless of number of tracks, i.e., requirements for stewards, veterinarians, and animal drug testing which are appropriately borne by the licensee. Ms. Steel requested clarification of 100 mile limitation of race track. Mr. Bible advised there are approvals at other resort hotels. Mr. Barengo advised the interpretation was correct, as any hotel resort may request a track. Ms. Ohrenschall asked if the state was sufficiently well protected against any animal rights lawsuits. Mr. Bible advised the public policy decision has already been made by the legislature. Chairman Humke commented one of the functions of the veterinarian in attendance was to protect the animals. Mr. Bible agreed. ASSEMBLYMAN SCHNEIDER MOVED TO AMEND AND DO PASS A.B. 644. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. Under discussion Mr. Schneider commented it shows the good intent of the prospective licensee, to work in conjunction with the Gaming Control Board. Mr. Goldwater stated the reason he was comfortable in voting is because Chairman Bible has shown responsibility by regulation of the betting and races. Ms. Ohrenschall advised every inducement draw is needed to enhance the tourism industry. MOTION CARRIED. (ASSEMBLYMEN BATTEN AND PERKINS WERE NOT PRESENT FOR THE VOTE.) Ms. Steel was assigned to handle the bill on the floor. ASSEMBLY BILL NO. 575 - Authorizes court to issue orders which are in best interests of minor children for whom guardian has been appointed. Chairman Humke announced this will constitute an abbreviated hearing on A.B. 575. Chairman Humke advised Ms. Cooney was the chief proponent of the bill and was called away to court on an emergency procedure and cannot testify on this bill. Ms. Lucille Lusk, Nevada Concerned Citizens declined to testify at this time. ASSEMBLY BILL NO. 621 - Makes various changes concerning support of children. Ms. Myla Florence, Administrator, Welfare Division, Nevada Department of Human Resources, testified in support of A.B. 621, and her testimony is attached as (Exhibit G) with proposed amendments (Exhibits H & I). Chairman Humke noted two copies of (Exhibit G) were not enough copies for the committee. Ms. Florence explained the reason was due to late arrival from a trip and was not sure what was needed for testimony and emphasized it will not happen again. Chairman Humke announced at 10:27 a.m. the proceeding was a subcommittee for lack of a quorum. A recess was taken at 10:34 a.m. The meeting reconvened at 10:49 a.m. with Assemblymen Carpenter, Buckley, Anderson, Humke, Goldwater, and Steel present. At 10:54 a.m. Assemblymen Ohrenschall, Manendo, and Stroth returned. Chairman Humke announced there was a quorum and the proceeding is before a full committee. Ms. Florence continued her testimony from (Exhibit G), p. 12, and p. 8, Section 14 of A.B. 621. Chairman Humke announced it was the Co-Chairmen's intent to place A.B. 621 in a subcommittee, as there are very large policy changes and it will be held over for a rehearing. Chairman Humke requested the Welfare Division to show evidence of each and every one of these items mandated by the Omnibus Budget Reconciliation Act (OBRA). In reference to OBRA Mr. Anderson requested written documentation to Section 16, subsection 3; Section 24, part 2; Section 22, l. 20, subrogation; and Section 14, l. 37. ASSEMBLY BILL NO. 623 - Authorizes juvenile division of district court to bind over for trial child certified as adult after formal adversarial hearing. Mr. Ben Graham, Lobbyist, Clark County District Attorney/Nevada District Attorneys Association, testified in support of A.B. 623, and submitted a memorandum from Chief Deputy, Clark County District Attorney's Office Bob Teuton of May 24, 1995, attached as (Exhibit J). There being no further business to come before the committee, Chairman Humke adjourned the meeting at 11:06 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary June 2, 1995 Page