MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

February 17, 2003

 

 

The Committee on Judiciarywas called to order at 9:07 a.m., on Monday, February 17, 2003.  Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, 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.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are presented in the traditional legislative style.

 

COMMITTEE MEMBERS PRESENT:

 

Mr. Bernie Anderson, Chairman

Mr. John Oceguera, Vice Chairman

Mrs. Sharron Angle

Mr. David Brown

Ms. Barbara Buckley

Mr. John C. Carpenter

Mr. Jerry D. Claborn

Mr. Marcus Conklin

Mr. Jason Geddes

Mr. Don Gustavson

Mr. William Horne

Mr. Garn Mabey

Mr. Harry Mortenson

Ms. Genie Ohrenschall

Mr. Rod Sherer

 

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Sabina Bye, Committee Secretary

OTHERS PRESENT:

 

Doyle Sutton, State Fire Marshal, Carson City, Nevada

Ronna Hubbard, Nevada State Firefighters Association, Wellington, Nevada

Dan Musgrove, representing Clark County, Las Vegas, Nevada

Nicole Lamboley, Legislative Relations Program Manager, City of Reno, Reno Nevada

Cynthia Lu, Chief Deputy Public Defender, Washoe County Public Defender, Reno, Nevada

Myra A. Sheehan, Attorney at Law, Reno, Nevada

W. Kathleen Baker, Attorney at Law, Reno, Nevada

Annette Appell, Professor of Law, University of Nevada, Las Vegas

Mike Dahl, Citizen, Las Vegas, Nevada

Chris Escobar, Attorney at Law, Pico and Mitchell, Las Vegas, Nevada

Michael Rasmussen, Citizen, Las Vegas, Nevada

Eric A. Stovall, Attorney at Law, Gamboa & Stovall, Reno, Nevada

Edward E. Cotton, Administrator, Division of Child and Family Services, Carson City, Nevada

Mike Capello, Director, Department of Social Services, Washoe County, Reno, Nevada

Nancy B. Peterson, Professor, School of Social Work, University of Nevada, Reno

David McKenna, Sergeant, Henderson Police Department, Henderson, Nevada

Jim Nadeau, J Nadeau Associates, Reno, Nevada

Robert Roshak, Sergeant, Las Vegas Metropolitan Police Department, Las Vegas, Nevada

 

Chairman Anderson:

Good morning.  The Assembly Committee on Judiciary will please come to order.

 

[The Chair reminded the Committee and those in attendance of the standing rules.  Roll was called.]  Everybody is present this morning; there is a quorum present.

 

I would remind all of you of NRS [Nevada Revised Statutes] 218.5345, which makes it a misdemeanor to knowingly misrepresent any fact when testifying or otherwise communicating to a legislator.  I have the authority under NRS 218.5345 to swear in witnesses appearing before the Committee, which makes such statements a gross misdemeanor.

 

I had noticed the presence of the Speaker of the Assembly and had intended to move to his piece of legislation first; however, he stepped away from the room.  Therefore, we will take up the bills as they are presented. 

 

Assembly Bill 26:  Provides immunity from liability to certain governmental entities and actors for damages caused by equipment or other personal property donated by any of them to volunteer fire department. (BDR 3‑768)

 

Mr. Oceguera, I believe this is your piece of legislation.  Mr. Vice Chair, do you wish anyone to come forward with you?

 

Assemblyman John Oceguera, Clark County Assembly District No. 16:

Thank you, Mr. Chairman, not at this time.  There are some people that will testify in support, but I will just go ahead and present the bill as it is, and we will see who comes forward.

 

Good morning, Mr. Chairman and members of the Committee.  Thank you for the opportunity to introduce Assembly Bill 26 to the Committee and to the members of the public in attendance or viewing this morning’s proceedings.  I think my crew is on duty this morning in North Las Vegas watching this on the Internet, so “hello” to them as well.

 

A large percent of Nevada’s fire departments are volunteer departments, and we will go through some statistics later, but in Nevada the percentage is about 90 percent.  Nevada’s volunteer fire departments are staffed by caring, concerned Nevada citizens who have pledged to act on a moment’s notice.  They protect their communities and our state.  However, these volunteer fire departments can only act within their abilities, and their abilities are severely handicapped because they are underequipped.  Why are they underequipped?  [Because] the second-hand fire protection equipment they would have otherwise received from state agencies or entities or other political subdivisions, such as large cities and counties, is not being donated because of the prevalent fear on the part of the donating entity that it will be held civilly liable for any damages caused by failure or malfunction of any donated equipment.

 

The majority of Nevada’s volunteer fire departments are unable to find or afford good fire control or fire protection equipment.  A community fund-raiser on behalf of a volunteer fire department is not likely to raise the hundreds of thousands of dollars it take to purchase critical equipment.  These departments are therefore dependent upon the prospect, however slight it may be, of receiving donations of second-hand equipment from other state agencies and political subdivisions.  State agencies and political subdivisions want to donate.  They have second-hand personal protective equipment, self-contained breathing apparatuses, engines, trucks, and an undetermined amount of miscellaneous items, such as ladders, axes, and chain saws.  Nevada’s volunteer fire departments want to receive and need to receive these items.  It is vital equipment.

 

Assembly Bill 26 removes the prior impediment to effecting donations by providing immunity from civil liability to the donating entity for damages caused by any equipment or other personal property donated in good faith.  As an act in support of the many volunteer fire departments in our state, and the thousands of Nevada citizens who staff these volunteer fire departments, our Legislature should join with other forward-thinking states that have recently enacted similar legislation, including Arizona, California, and Texas, to name a few.

 

There was some concern about the “immunity” in this bill, but I think we have cleared that up, and for the record, I would like to mention that the intent of this legislation is to provide immunity to the donator from civil liability; it in no way intends to free the volunteer fire department from its responsibility and liability in maintaining equipment; it does not imply any product liability immunity.

 

There are several statistics (Exhibit C) that drive home the point about our volunteer departments in Nevada and in the country.  Ninety percent of the departments in Nevada are volunteer departments.  I handed out some statistics that were prepared by the state Fire Marshal’s office that are informative.  There are 146 volunteer fire departments in the state of Nevada.  I don’t know that we all realize that, especially those of us from southern Nevada.  About 73 percent of the country is protected by volunteer fire departments.  There are about 26,000 fire departments in the country, 19,000 of which are volunteer departments.  The services contributed by volunteer firefighters save localities across the country an estimated $36.8 billion a year.  The legislation was modeled after Texas legislation; the Fire Marshal will speak of this later.  The donated equipment in Texas alone amounted to somewhere between $6‑$8 million worth of equipment.

 

Thank you in advance for your consideration of this bill; if there are any questions concerning A.B. 26, I will attempt to answer them.

 

Assemblyman Mortenson:

Is there some downside or some reason that you are enumerating these people who may be immune?  Why not write the bill so that anyone, any entity, who contributes something to a fire department, might be included?  A private person who wanted to donate a sport utility vehicle or something like that to a department would not be covered under this, would he?

 

Assemblyman Oceguera:

No, and that is part of stretching that immunity a little to far.  One of the questions you get into is, for example, a volunteer fireman is riding to a fire in his own personal vehicle, some would say that maybe he should be covered, and some would say maybe he should not.  So [we] did not want to step across that line.

 

Assemblyman Mortenson:

I was just saying that people who donate things to a fire department should be immune, presuming the fire department, or any entity, accepts it.

 

Assemblyman Horne:

Is the donated equipment inspected prior to donation, or do they leave that to the recipient?

 

Assemblyman Oceguera:

Well, I think both, and that is probably why the language “good faith” was put in.  Certainly, I think if you know that you are donating a piece of equipment that is not serviceable, that might not be in good faith.

 

Assemblyman Horne:

It could be equipment that has a funny quirk or is too much to deal with, is donated.  That was the scenario I was thinking of, and I was just curious if it was common practice when people or government entities donated equipment, to make sure they were donating something that was, at least, operable or safe.

 

Assemblyman Oceguera:

Generally, for instance, a fire engine has a first line serviceable [life] in a city of about five years, ten years, second line, but to a volunteer fire department that equipment may have another good ten years on it.  After we have put 100,000 miles on it in the city, a volunteer department that runs 300 calls a year may only put on another 10,000 miles over the next ten years.  Generally, that is how it works.

 

Assemblyman Brown:

I like the bill; I think it is an excellent bill; I am just curious to know whether the good faith language is patterned after some of these states, and if any of that has been challenged judicially, if there are any cases out there.  I think it is excellent, and I just wonder if the courts have construed or found their way around it at all.

Assemblyman Oceguera:

This is fairly new language.  Texas was the model for this language, but there are several other states, and then there was some federal legislation just recently enacted; one of our congressmen supported that as well.  I do not know of any court cases.

 

Assemblyman Brown:

I imagined there wasn’t, I just wondered if you knew.  Thank you.

 

Chairman Anderson:

I am always for anything we can do to help volunteer fire departments.  They are a most helpful group of individuals since they are usually the first responders in the remote areas of our state.  In fact, when forest fires and other catastrophes happen around us, they play an integral part in fighting that.  Those of you in the large metropolitan areas are appreciated for what you are doing as your companies currently stand by on watch.  What they do is absolutely essential for all of us.  I applaud you for bringing forth this strong piece of legislation. 

 

Anyone else?  Thank you, Mr. Oceguera.  Please rejoin the Committee.

 

Doyle Sutton, State Fire Marshal:

[Introduced himself]  Early on in my career in the fire service, I wondered why we were doing some of the things that we did.  One of them was to surplus excess equipment.  Many times, we would change out a hose and go to a large diameter hose.  We would change out our air packs and go to different types of air packs, and this equipment, many times, found its way into surplus sales to the general public.  Ladders would sometimes go to general painting contractors; hoses went to plumbers and construction companies, and I always thought that that was a waste of really good equipment.  I thought if I ever had the opportunity, I would try to get that changed.  This is one of the things we are attempting to change with this bill.  We want to get the equipment with a good four to six years of life left in it, to our volunteer departments who are in critical need of this equipment.  Most of them [volunteer fire departments] cannot afford a hose, let alone to buy, even from an auction, a used hose.  So I put this together to try to help our volunteers.  I had put together a little presentation, and I was going to read it, but I think Assemblyman Oceguera covered most of the points and did an excellent job on it, so I am going to pass on that and just make a couple of brief statements.

 

This bill is patterned after the Texas bill, called the “Volunteer Helping Hand” bill.  It was passed in 1997, and within three years, the Texas volunteer departments received $6 million worth of surplus and excess equipment.  The volunteer departments in Texas are structured much like those in Nevada, with several small counties and small departments with very little revenue.  Therefore, it was a beneficial and very excellent program they put in place.

 

This bill influenced H.R. 1919, which was the bill that went in front of Congress to give immunity at the federal level.  Since then about eight states have adopted the Texas plan; it has been recognized by many of the volunteer organizations, one of which is here today to speak.

 

Chairman Anderson:

I want to thank you and commend you for the hard work that you do in the area of trying to upgrade the volunteer efforts here in the state, and acknowledge the difficulty your agency deals with, such as funding problems and increased responsibilities for you; I know that homeland security issues fall close to your door too.

 

Ronna Hubbard, Legislative Representative, Nevada State Fire Fighters Association:

[Identified herself]  I would like to say good morning.  We represent approximately 2,000 volunteers in the state of Nevada.  Over the last 25 years, I have been a volunteer and have come up through the ranks and traveled through the states.  I have seen fire departments that do not have safety equipment and are unable to go into a burning building with SCBAs [Self‑contained Breathing Apparatus] because they only have one or two, and with new legislation, with the “two in, two out” rule, they are liable if anybody gets hurt.  And they do go in.  We just wanted to say that we do support this bill and would like to thank Assemblyman Oceguera and Fire Marshal Sutton for all their support and hard work to get it in.  Thank you.

 

Dan Musgrove, representing Clark County:

On the other side of the coin, [we are] a producer of equipment that seems to be in excess.  We have equipment that we wish we could give away.  Because of this bill sponsored by Mr. Oceguera, we actually will have an opportunity to give out some of those saws and turn-out suits and hoses and things that the volunteer fire departments badly need.  We appreciate the bill.  Thank you.

 

Nicole Lamboley, representing the City of Reno:

We, too, support this bill.  We have considered giving surplus equipment in the past, and looked very carefully at what type of equipment we can [donate], and this would further enable us to donate the surplus equipment that the City of Reno currently has to the many volunteer fire departments within our jurisdiction.

 

Chairman Anderson:

Does anyone wish to testify in opposition to A.B. 26; does anybody wish to give testimony on A.B. 26 from the south?

 

Let me close the hearing on A.B. 26 and indicate that the Chair has no proposed amendments to the legislation.  The Chair will entertain a motion.

 

assemblyman carpenter moved to do pass A.B. 26

 

Assemblyman Sherer seconded the motion.

 

the motion carried unanimously.

 

Chairman Anderson:

Mr. Oceguera, I presume you wish to defend your own bill upon the Floor.

 

Assemblyman Oceguera:

Thank you, Mr. Chairman.

 

Chairman Anderson:

Let us turn to Assembly Bill 28.

 

Assembly Bill 28:  Provides procedure for parties to adoption to enter into enforceable agreement for post-adoptive contact. (BDR 11-207)

 

A.B. 28 is a piece of legislation that I requested as a personal bill rather than as a Committee bill.  I wanted to explain to the members of the Committee why I did so.  I had several people who contacted me at various times during the interim as to why this particular issue, some small anomaly in the law relative to the rights of foster parents and the birth parents, needed to be resolved.  They talked to me early, but they did not call back again.  So I had requested the piece of legislation, and was going to set it aside when I received a series of telephone calls just before the start of session.  Ms. Lu volunteered her services, so the piece of legislation in front of us is partially due to that response.  I hope that it serves the task of the people that I talked to in the first instance; I think it does address some of the concerns.  We are going to hear from several of the local agencies that have problems in this area.  Some of the children here are here on one issue, and some are here concerning the next bill we are going to listen to.  I do not want to get ahead, but most of the people in the room are for “my fire” and not Mr. Oceguera’s!

 

I want to thank you, Ms. Lu; it is your show.

 

Cynthia Lu, Chief Deputy Public Defender, Washoe County:

[Introduced herself] Thank you, Mr. Chairman, and I would like permission for Myra Sheehan and Kathleen Baker to reside at the table with me while I give my presentation.

 

I want to thank Chairman Anderson and the honorable members of this Committee for allowing me to speak today in support of Assembly Bill 28.  Since 1994, I have represented both parents and children in dependency cases governed under the Nevada Revised Statutes 432B, the abuse and neglect cases.  I currently also supervise four attorneys whose entire caseloads consist of representing mainly parents, and some children, in abuse and neglect cases in Washoe County.

 

First, I wanted to provide some background information regarding A.B. 28.  The Adoption and Safe Families Act (ASFA), as you may recall, was adopted by the state of Nevada in the Legislative Session of 1999.  The purpose of ASFA was to require permanency planning for children in the welfare system so that children were not languishing in foster care.  The permanency planning timeline for children was changed to 12 months, as opposed to the old timeline of 18 months.  If a family has progressed well enough after 12 months, the child is very close to being returned home, and the court can grant some additional time for unification services.  Permanency plans under ASFA may range from continued reunification efforts with the family to other permanency plans, which include guardianships, long-term foster care for older children, mainly teenagers, which is now also called “Another Planned Permanency Living Arrangement,” or adoption.

 

Prior to an adoption, a separate termination of parental rights case needs to be filed.  The attorney who represents the agency usually does this.  Currently, in Washoe County, that attorney is in the District Attorney’s Office.  In the rural counties of Nevada, the Division of Child and Family Services (DCFS) provides those services, and they are represented by the Attorney General’s Office.  I believe that given the limited amount of staff that historically these cases have seen, and the full court calendars that the Family Court judges see daily, it may take many months for a termination of parental rights trial to be completed due to the lack of time and resources to move quickly.  Given this scenario, a parent who had an option of a voluntary relinquishment of parental rights, obviously, can significantly decrease the time to finalize an adoption and speed up permanency in the lives of children.  If a parent relinquishes, you obviously do not need to have a termination of parental rights trial.

 

The enactment of A.B. 28 would provide a significant tool in reducing the time children are spending in foster care, and promote permanency in the lives of children.  The bill simply provides that adoptive and birth parents have the option of entering into a legal agreement for post-adoptive contact.  This bill is not making such an agreement a requirement, it is simply offering a choice to families who wish to enter into one and have it recognized under Nevada law that these agreements are enforceable.  The statute will clarify to all parents and attorneys what the post-adoptive contact agreement is, what it does do and what it does not do.  It does allow the courts to enforce agreements, which is basically to have people keep the promises that they are making to other individuals.  It does not nullify an adoption or the stability of the adoptive home for the child. 

 

Post-adoptive contact, or open adoption, may range from actual visitation and telephone calls to just correspondence and pictures.  The agreement is made between the adopting parents and the biological parents.  In my experience, when the biological parents are offered an open adoption, knowing that they will be able to have some type of contact with their child, they will often choose to relinquish their parental rights, rather than going through a termination of parental rights trial.  A termination of parental rights trial results in all contact with the child being severed.  Terminations of parental rights trials are extremely emotionally draining trials where everybody loses.  On the other hand, a relinquishment and open adoption can create a win-win situation. 

 

In my experience, the majority of my terminations of parental rights trials have been vacated because the client had decided to sign a post-adoptive contact agreement and relinquishment.  I probably used to do termination of parental rights trials monthly, in addition to the ongoing caseload I had.  Now I only do about one or two trials a year because this option has been utilized, at least in Washoe County.

 

At times, this process is easier because the birth parents and the adopting parents, who in most of my cases turn out to be the foster parents, have already been conversing and know each other through the dependency case.  Because my clients have been visiting, and they will know who the foster parents are most of the time, they will often relinquish to an open adoption, even before a termination of parental rights case is filed.  A decision is made in the case.  The goal, the permanency plan, is adoption.  Before a termination of parental rights trial is filed, I have had clients and foster parents work out agreements where they relinquish and sign, and consequently, the case does not need to be filed at all.

 

I believe this has also become a cost-saving measure in saving court time, attorney’s time to write and file petitions, and costs of having to file publication notices, such as termination of parental rights notices.  I am sure everyone is well aware of the current budget crises, both on the state and county levels; this statute has the potential of providing a cost-saving measure to the state.

 

You may or may not have had the chance to review the suggested amendments (Exhibit E) that, I believe, would strengthen and promote clarification of this bill; copies have been provided.  Going through some of the suggested amendments, the first recommended amendment is to change the words “natural parent” to “birth parent” wherever written in the bill.  Even though the birth parent is also called the natural parent, it was not intended to infer at all, that an adoptive parent is not “natural.”  Therefore, we thought that the amendment would alleviate that situation.

 

In Section 2, paragraph 3, it is also recommended that we add the words “or adoptive parent” between “parent” and “who,” so that the first line will read, “The identity of a birth parent or adoptive parent who is a party to an agreement for post-adoptive contact is not required to be included in the agreement.”  This is recognizing the fact that some adoptive parents may also wish to have the ability not to be identified, and to use an attorney or other representative as a liaison or agent.

 

Also, it was recommend that Section 3 might need some clarification.  Add in the words “the adopting party by” between “by” and “applying;” therefore, the first sentence would read, “An agreement that provides for post-adoptive contact, entered into pursuant to Section 2 of this act, may be modified by the adopting party by applying to the court that issued the order which included the agreement.”

 

In paragraph 1 of Section 3, it is also suggested that the word “adopting” be inserted between “the” and “party” at the beginning of the sentence to clarify that the adopting party may apply to the court to change the agreement if it is not longer in the child’s best interest, but it does not allow a birth parent to apply to the court for an increase in visitation against the wishes of the adopting parents.

 

In paragraph 2 of Section 3, it is also suggested that “each party” be changed to “all parties” to clarify that all parties consent to any changes being made to the agreement.

 

Chairman Anderson:

Ms. Lu, some of this appears to be the style preference of the Legislative Counsel Bureau, and so generally speaking, we try to make sure that our style manual is consistent, so if the amendments are substantive in nature, maybe we need to properly deal with them.  Are there substantive changes in the suggested amendments that you see?

 

Cynthia Lu:

Yes, Mr. Chairman, there is.  In particular, in specifying the portion in Section 3, the “adopting party” may apply to the court in making changes based upon the best interest [of the child].  I believe the concern is, without specifying who is allowed, a birth parent may try to use that particular section to come into court to basically ask for increased visitation.  Basically, they would be trying to argue, for example, as a divorced parent who might come into court with post-divorce motions trying to argue over extended visitation.  I think the concern to be addressed is that this is only an avenue for the adopting party to support the autonomy that they, as an adopting party, basically become the parents of that child, and so they should be able to keep the autonomy to determine how much visitation they want to agree to and provide to that child.  So in that aspect, that would be a substantive change I believe would be necessary.

 

Chairman Anderson:

For those of you who are looking through your papers, that is the second document in the packet of materials.  There is a Nevada Supreme Court decision (Exhibit D) from a birth mother, then the second part of that was the proposed amendment; all the information is in that amendment.  Again, I want to point out that we have a tendency to let the Legislative Counsel Bureau do our verbiage for us.

 

[Are there any] questions for Ms. Lu, who practices in this area?

 

Assemblywoman Buckley:

Thank you, Mr. Chairman.  I have been trying to research this, because these are very tough issues, the rights of adoptive parents and the rights of the child.  It is very complicated, and I guess one thing that interests me is that, right now, you can do these contracts.  So what is the exact difference with the state taking a role?  I began to list them in my head; they might be, for example, the continuing jurisdiction, as opposed to having to file just a straight contract action, and certainly, the modifications.  I would hate to see these become custody actions, which are so harmful to the child.  Yet they are happening now, and so maybe it makes sense for there to be some sort of parameters.  My question is, what changes are proposed by this statute that do not exist under the current state of affairs where post-adoption contracts are entered into?  Currently these contracts occur, so how does this statute change what is currently legally permissible and occurring?

Cynthia Lu:

Thank you, Assemblywoman Buckley.  I believe, in looking at Supreme Court law prior to the decision that was handed down in December 2002, there was not anything in the statute.  There were some statements from previous Nevada Supreme Court cases that alluded to the fact that it would not be against public policy to have these agreements, but there was nothing else by statute or cases that solidified that.  The December 2002 decision solidified it to a point; however, the Supreme Court also, in their opinion, made a note that they felt that this should be an issue addressed by the Legislature, which I considered an invitation for the Legislature to address this situation.  I think this bill would basically solidify and clarify the existence of these types of agreements in adoption orders.  I also think that being in the statute does promote a consistency and longevity to this type of enforcement, as opposed to Supreme Court cases that may or may not change depending on the structure or members of the Supreme Court from time to time, as happens on the federal and state level.

 

I would like to defer to Ms. Sheehan, who also would like to respond.

 

Myra Sheehan, Nevada Trial Lawyers Association:

[Introduced herself]  I am here representing the Nevada Trial Lawyers Association in support of this bill as it is amended.  I would like to address Assemblywoman Buckley’s concern.  In the Nevada Supreme Court case that you have, Birth Mother v. Adoptive Parents and New Hope Child and Family Agency (Exhibit D), we actually have one of the attorneys here, Eric Stovall, who litigated this case.  The case specifically states, if you look at page 5, the Supreme Court says, “. . .these agreements do not per se violate Nevada’s public policy of protecting a child’s best interests.”  They go on to say, “Nevada fails to provide enforcement for such agreements.”  They go on to say, “. . .without such a specific Nevada statutory provision, the agreement between the birth mother and the adoptive parents is unenforceable.”  Justice Maupin, who concurred in part and dissented in part, ends his statement with, “. . .until the Legislature changes this, neither the parties nor district court have the power to enforce such an agreement.”  That is pretty strong language from the Supreme Court that says if we are going to do something here, if we are going to make it enforceable, we need the Legislature to look at this and make it enforceable.

 

Now, as far as custody battles are concerned, we had that concern also.  We worked with Cynthia Lu, and that language that we dealt with, saying only the adopting parent can modify, would eliminate that concern.  The reason we did that was because we thought it was important.  With the tenor of the law today, dealing with Troxel v. Granville and third-party visitation rights, we specifically said that we want these adoptive parents to have more authority and autonomy in these types of situations. 

 

I think Cynthia Lu has a little more testimony to give before I go on.  After she finishes I would like to address some issues that deal with the enforceability of this agreement and why we support this and why we think it is important.  But I would like Cynthia to tell you a little story, and that will help finish her testimony and also help us move on to the supporting testimony that both Ms. Baker and I have.  Thank you.

 

Chairman Anderson:

Ms. Buckley, was that sufficient on that particular point?

 

Assemblywoman Buckley:

Yes, thank you, Mr. Chair; I think I will just listen to the rest of the testimony.

 

Assemblyman Oceguera:

I’m still having trouble with the enforcement part of this.  [Regarding] the contract, I don’t understand this exactly.  What are we enforcing?  It just seems illusionary.  For example, if I ask you to marry me, and I don’t, how do you enforce that?  If I say that I will call you once a month, per this [adoption agreement], and I don’t, how do you enforce that?  What is the consideration?

 

Myra Sheehan:

The subject of enforceability of issues that deal in family law custody visitation are handled every day in court.  One of the concerns that I heard, and that was from DCFS, was the issue of how to enforce this.  We are not going to throw an adoptive parent in jail for not allowing the visitation.  We do not throw parents in jail for not allowing visitation.  Instead, the court will basically look at that party and say, “What is the situation before us?  Is it the issue of just bad blood between the parties, and if you don’t allow visitation, then I’m going to charge you with attorney fees on the other side, and I want make-up visits.”  That is how we enforce visitation in family court.  The judges do that every day.

 

What we want to do, when there is a serious issue of a biological parent who says, “I want to have contact with my child,” is to work out a contract, an agreement between these parties.  If the biological parent keeps coming drunk, or does not bring the child back, or there are some serious issues, the family court judge who gets this case will look at those issues and may terminate that visitation.  If there is a petty dispute between the biological parent and the adoptive parent, it is the policy of the family court to send them to mediation, where they try to resolve the issues.  The court is looking at what is in the best interest of the child, not what the problem is between the parents.  We are not like other lawyers; we do not go out there to litigate and win cases; we go out there because families are in need. 

 

The rest of the testimony will explain why we believe it is the best interest of the child.  So as far as enforcement goes, the court must look at the totality of the situation.  Is it a situation where the best interest of the child is or is not being served?  And sometimes it is, when it is just because the parents do not get along, or there is just a petty little misunderstanding and dispute.  So in family law, we go and say, “Let’s do something about it; let’s go to mediation; let’s work this out; let’s have visitation and enforce it by saying you need to allow more visitation.”  That is how we enforce things in family court.

 

Assemblyman Oceguera:

I understand that, and I agree with the concept of the best interest of the child; I understand that completely.  My concern, then, is the petty disagreements.  Do you now have the ability to file an action in court because of those petty disagreements?  Am I seeing that wrong?

 

Myra Sheehan:

Yes, you do have the ability to go into court and say, “I am not being allowed my visitation that we contracted to and agreed to,” if you are the birth parent and tried to enforce that visitation and agreement.  The adoptive parent at that point would have the obligation to say, “This is what’s happening, and I don’t think it’s in the best interest of this child anymore.”  If [the court] does not believe it is in the best interest of the child, the court will terminate.  What the change is, or modification is to this bill that we made, is that only the adoptive parent can go in to modify it.  Termination of the agreement by the natural, or biological, parent is easy; they just stop doing it, they just stop visiting, they just do not have contact anymore.  It is really the adoptive parent that needs to come in and say, “This isn’t good anymore; I don’t think visitation and contact is good anymore.”  It is an agreement, a contract.  One of the reasons we want to keep this in the family court is because we do not want it to go into district court as a contract action.  We want it to come into family court as an agreement between two parties that believed at the time they made that agreement, they were doing something in the best interest of the child.  Those judges that deal in the area of family law will deal with them with the sensitivity that they do in family laws cases and not with the situation of being just a contract.

 

Assemblyman Carpenter:

Do you think this is going to help or hinder the number of adoptions, after this in place?

 

Cynthia Lu:

I have seen no difference in hindering or helping; we have had the same number of adoptions going through.  However, what I have seen is that the adoptions go through quicker.  Because I do have clients, at least in my arena, relinquishing, we are not waiting months for trial, or waiting months to get a trial done before an adoption can be finalized.  I don’t know if this would increase the number of adoptions, but I do know it would make these adoptions quicker, and would provide permanency for these children.

 

Myra Sheehan:

One of the things that this also does, [from my point of view] as a family law practitioner, it helps the birth parent to not feel so stigmatized by society.  It is a huge stigma to have your rights terminated.  I can’t tell you how often I have counseled people in situations where I have represented parents whose rights were being terminated.  Sometimes they know it is in the best interest of their child to go with [the adoptive family], but the stigma that is attached to terminating your parental rights is huge in our society.  I would talk to them and say, “Listen, if you consent to an adoption, you can stand proud and say, ‘You know what, I know at this time in my life I couldn’t take you, I know at this time in my life I couldn’t be the best parent for you, so I gave you to [people who could] because they were going to take better care of you, and love you, and they did.’”  That is an important aspect.  Another important aspect of this is that adoptive children want to find their parents.

 

Chairman Anderson:

Thank you, Ms. Sheehan.  I think you have answered Mr. Carpenter’s question.

We need to try to get on here, so for a very specific question, I am looking for a very specific answer.

 

Assemblyman Brown:

I am not sure I understood the connection of the ”expedited relinquishment,” and I wonder if it is expedited on the basis of a negotiated plan of visitation.  Is that correct?

 

Cynthia Lu:

I believe it does because there is what I call an offer from the adopting parents for some ongoing contact for the birth parent.  Because that offer is there, as opposed to just going to termination of parental rights trial, that often will be something for the birth parent to consider, which would prompt him to relinquish, rather than just having the choice of relinquishing or being terminated on a trial.

Assemblyman Brown:

It sounds like we are trying to resolve an issue or problem dealing with, for the most part, foster care or existing natural or birth parent relationships with their children, but we are casting the net so broadly that it affects what I would call “infant adoption,” and I am concerned that by casting the net that broadly, we are going to make it more problematic for the infant birth adoption where the likelihood, in my understanding, would be more of a complete severance of all contact with the natural birth parent. [Do you have] any comment on that?

 

Chairman Anderson:

Mr. Brown, let me indicate that there are some people from the state and county agencies here, and if you keep that question in mind, I think it would be helpful, and I would ask the county agencies to keep that in mind also, before we hear this response.  I want to make sure that they take note of that so they include it in their testimony too.

 

Assemblyman Brown:

Thank you, Mr. Chairman.

 

Kathleen Baker, Attorney at Law:

I am a private law practitioner; I do a great deal in the area of adoption.  One of the things I did want to address is that it is not just infant adoptions.  While Ms. Lu comes from the abuse and neglect area, I also do a lot of private adoptions.  Certainly, the infant adoptions that I have, many of the birth parents are in their teens.  They are not always certain what they want to do.  It is a very difficult decision to make, and they may decide they are going to give this child up because they have the opportunity to have some contact.  Otherwise, they may keep that child, and that could be very detrimental for the child.

 

Additionally, I do grandparent adoptions, where we have parents that are unable to take care of their children anymore, and the grandparents step in.  Oftentimes, in these cases, an open adoption agreement is one of the things that allow that adoption to go forward.  The same thing happens in stepparent adoptions.  We have parents who often know these children.  These are older children who know who their parents and grandparents are; they know the stepparents.  They are trying to change their legal rights and responsibilities; they do not want to give up all the contact.  Neither the birth parents nor the children want to give up all the contact.  They want to maintain contact. 

 

Chairman Anderson:

Did that answer Mr. Brown’s question?  We are still on the first witness and I want to give you and Ms. Sheehan both opportunities to make your presentations separately.

Ms. Lu, if you want to make a concluding statement, then I can take testimony from Ms. Sheehan and Ms. Baker on the other issues that they would like heard.

 

Cynthia Lu:

Thank you, Mr. Chairman.  Briefly, I want to share a story about a child I have on my caseload who will be 18 years old in July.  He is developmentally delayed; he has been in foster care since he was 6 months old.  The parental rights for both parents were terminated back in 1986.  He needs such a high level of care that he has remained in care.  He had been placed in an adoptive home, but they failed to adopt, and that is why he has remained in care.  The only thing I wanted to mention was every time I bring him with me to court, he asks the judge if the judge can find his parents or his siblings who are no longer in care, and can he see them.  So I just wanted to share that one child’s story with you.

 

Chairman Anderson:

Ms. Lu, the Chair only has one question.  If we do not do this, and this is Ms. Buckley’s question too, which I think you have answered in part, in light of the Supreme Court decision, will we have done a disservice, then?  This process in California and other states holds the birth mother as the determining party; in Nevada we hold what is in the best interest of the child.  So we are a little different than the states that surround us in that regard.  We operate in the best interest of the child.  Without having the Legislature make an affirmative statement in this area, do we place all adoptions into a greater harm’s way?

 

Cynthia Lu:

Thank you, Mr. Chairman.  Yes, I would agree.  I think that the Supreme Court case basically indicates that.  It is left open; there is a gap in the law.  I think it is important for this Committee and this Legislature to address that.  I believe that we keep putting, potentially, any of these agreements in harm’s way.  Thank you.

 

Chairman Anderson:

Ms. Sheehan, I will let you go first.  Everyone, please understand that we have a long list of people that wish to testify and I want to make sure that the state agencies and interested parties have an opportunity to speak as well as the private attorneys and those in opposition to the bill.

 

Myra Sheehan:

I will try to just highlight the issues that need clarification.  As far as the need for this statute goes, I think it is clear when the Supreme Court states in a ruling that there is no specific Nevada statutory provision that allows this to be enforceable, and further states that until the Legislature changes this, neither the parties nor the district court have the power to enforce such an agreement.

 

I want to remind the Committee that this is an option, not a requirement.  An adoptive parent does not have an obligation to agree to any kind of contact [between the natural parent and] the child that is being put up for adoption.  For Ms. Lu, these are children already in the system. 

 

If the adoptive parent who has been chosen, or the foster parent who wants to adopt this child, wants to go forward with no agreement, then adoption will go forward.  Where this would change is, possibly, in the private arena.  [For example,] where I am trying to adopt out my child and I want to have some kind of contact and I find parents that say they do not want to do that, then yes, that adoption may not go through.  However, in the private arena, that is a whole different ball game.  So I find somebody who agrees that they can work with me to have some kind of contact with my child. 

 

It is no forced agreement in Ms. Lu’s arena.  They are already there.  Either they can make an agreement, or they do not have to.  There is no force; the adoptive parent is not forced to making this agreement because they want the adoption to go through; it is going to go through anyway.  It is just going to cost the state more money, because it has to go through the termination [of parental rights] process.  Just because they will not agree to have contact with the birth parent in Ms. Lu’s arena, does not mean the adoption will not go through.  [This is a] very important point I want you to understand.  The only way it will be affected is in the private arena, and quite frankly, in the private arena, if I am going to adopt my child out, I get to choose to whom I want to adopt my child out.  The state is not involved in it.  Remember, we are not taking away any of the ability of the adoptive parent to be the primary decision maker for this child.  If they decide it is not in the best interest of the child any longer, yes, they do have to go court to terminate that contact, but we have done this with third‑party visitation cases.  It does not give the birth parent any more rights than what they had before, which are none.  It is a contract; it is an agreement.  Is it in the best interest of this child; that is what we are looking at.  That is what this is all about.  Thank you.

 

Kathleen Baker:

Thank you, Mr. Chairman, Assembly members.  I will make [my statement] brief.  I think that one of the things to remember is that open adoption agreements can be as extended as visits and phone conversations.  Many of the agreements that I work with have to do with cards and pictures once a year, keeping a post office box where the parties can keep in contact.  They are voluntary.  If the parties do not want to enter into them, they are not forced to do so.  I think with the number of agreements that I have seen, it is very scary for these folks now that they may not be enforceable.  I also think that without legislation, at this point in time, and given the Supreme Court case, parties are going to be much more reluctant to enter into agreements because there is no assurance that those agreements are going to be upheld in court.  I think that is going to have an impact on slowing down the adoption process.  There will be kids that may not be adopted; there is no assurance that the parents will be able to stay in contact.  That is basically what I have to say.  Thank you.

 

Chairman Anderson:

Questions?  Thank you very much, and thank you for coming in support of the legislation.  It does demonstrate the difficulty.  I am going to take the law professor, Annette Appell, from Clark County next in support of the legislation, then I am going to take people who want speak in opposition.

 

Annette Appell, Law Professor, University of Nevada at Las Vegas:

[Introduced herself]  I have studied the area of child welfare and adoption extensively.  Particularly, I have studied laws like A.B. 28, which I and others refer to as “adoption with contact.”  I agree with the wonderful and accurate and informative testimony that has been given so far.  I have prepared written testimony (Exhibit F); however, I will not summarize that or do much else.  I will make a couple of points in response to some of the questions that have been asked, and also will field questions if there are any. 

 

One thing that I would like to add to the answer for the question of what A.B. 28 would add to the Supreme Court decision regarding birth mother versus adoptive parents is that that decision, besides leaving a lot of questions open, did not provide for things like enforcement, procedure, and how one would modify an agreement that was part of an adoption decree.  The fact is, under A.B. 28, you cannot undo an adoption because of a failure of a post-adoption contact agreement.  That is something that A.B. 28 adds, which is extremely important.  It preserves the permanency of adoption, which is the hallmark of adoption, a permanent family for a child.  I would say that A.B. 28 provides a very clear statement that if the agreement fails, the adoption persists.  Secondly, it provides a mechanism and standards for enforcement and for modification of the agreement.  Having these things clearly defined in the law will discourage litigation, will tell parties what is exactly expected of them and what is provided under the law.  It will not require additional litigation to determine those very things the statute addresses.  The post-adoptive contact agreements are common practice in Nevada, and clarity is extremely important in this area.  The concern regarding the lack of structure, clarity, and sanction for the practice of open adoption, particularly post-adoption contact, has led many other states to enact similar legislation.

I would like to say a couple of words about the other states.  Currently, 18 other states have some version of enforceable post-adoption contact agreements, including our neighbors in California, Arizona, Oregon, New Mexico, and Washington.  The United States Department of Health and Human Services has recommended that states enact some form of legislation like A.B. 28.  To cut to the chase, I have done a survey with a small grant from DCFS here.  Seventeen of the 18 other states have been overwhelmingly satisfied with the legislation, and the most important finding that I want to address is that there has been no known litigation over these agreements.  The oldest [agreement] dates back to 1980 in Washington.  I specifically asked people in the various states with knowledge about these things, and no one was aware of any post-adoption litigation arising out of adoption-with-contact statutes.  In addition, I have searched the reported decisions and there are none arising out of these statutes, except for a very poorly drafted one in New York some years ago.  With that I will conclude my presentation, and I certainly would welcome questions.

 

Chairman Anderson:

Thank you for the diligent search and strong testimony in support, and the written document submitted in a timely fashion.  We do appreciate the scholarship and deep thought that went into this background.

 

Assemblyman Horne:

Good morning, Professor Appell.  In the document that you provided to the Committee (Exhibit F), you mentioned on page 3 that A.B. 28 does not preserve parental rights, and then in “policy considerations” on page 5, you mentioned an instance where non-custodial parents may be unwilling to relinquish parental rights if they were cut off from their child.  Is it your position that this bill would or would not preserve parental rights?

 

Annette Appell:

I apologize if my written testimony was not clear.  I think on page 5, I was referring to the fact that a non-custodial parent may be willing to relinquish parental rights provided that there be post-adoption contact.  A.B. 28 would not preserve parental rights.  Parental rights of the birth parents would be terminated upon termination order or the adoption decree.  All that would be permitted under A.B. 28 would be quasi-contractual rights regarding an agreement that the birth parents and the adoptive parents had worked out regarding post-adoption contact.  That is the extent of the rights; they would not be parental rights at all.  The parental rights would be transferred entirely to the adoptive parents.

Chairman Anderson:

Okay, [are there] any other questions for the professor?  Thank you very much.  Again, we appreciate your support and scholarly work that it represents, and the awareness that, hopefully, this is not going to cause the problems that were caused in New York, and will clarify and support the Supreme Court [decision].  Is there any other information you want the Committee to have before you leave?

 

Annette Appell:

No, thank you.  I am open for questions if anyone wants to call or e-mail me.

 

Chairman Anderson:

I have some folks in the south who are concerned about the legislation and wish to testify in opposition, and I want to make sure they have an opportunity to do that.  The first is Mike Dahl, and then Chris Escobar, and then Michael Rasmussen, who are in opposition to the legislation.

 

The written testimony (Exhibit G) is now in front of us; I presume you are not going to read to us.

 

Mike Dahl, Private Citizen and Adoptive Parent:

I am going to try not to.  Actually, I was going to read most of it.  This is my first time in front of the Committee.

 

Chairman Anderson:

Sure, Mr. Dahl, I understand the need for that kind of support.  I use it all the time when I have to go speak at one of these groups; it manages to keep me on track.  So, go ahead; we surely want to take your testimony.

 

Mike Dahl:

Good morning.  Thank you, Mr. Chairman. [Introduced himself] I am an adoptive father here in Nevada.

 

I want to start with a story of John and Kathleen Hickman, a California couple, who were married and unable to conceive a child of their own.  After much soul‑searching and deliberation, the Hickmans came to the realization that the only way they could adopt a healthy baby in California was to seek out an adoption agency that practiced “open adoptions.”  Agencies that practice open adoption are, in fact, agencies that require post-adoptive contact agreements.  Shortly, thereafter, the Hickmans fell in love with a child through a California open adoption provider.  What is special about this case is that the birth mother’s parents were charged with the duties of seeing to the child’s adoptive needs.  This was because the biological mother was in a psychiatric hospital at the time.

 

While the grandparents wanted post-adoptive contact, they did not want to adopt the child because the child was biracial.  In fact, they were ashamed of this biracial grandchild, but nonetheless wanted contact.  Reluctantly, the Hickmans agreed to a yearlong, letters and photographs only, agreement.

 

The situation deteriorated quickly as the birth family began to demand more visitation rights.  To avoid a lengthy and expensive legal battle, the Hickmans acquiesced to the birth family’s demands.  What started out as letters and photographs abruptly became unannounced and uninvited visits to the Hickmans’ home.  Remember, all of the visits were at the Hickmans’ home because the birth family was ashamed of this biracial child.  Unfortunately, the constant barrage of the disruptions in their household took a toll on the Hickmans’ marriage.  When the living conditions changed, the adoption process dissolved as well.

 

The irony here is that this child was adopted by the same grandparents that were ashamed that he was biracial.  Putting aside the horrors the Hickmans went through, the reality is, this child is going to be raised in a household where he is deemed less than a full human being.  It is chilling to me that the state enabled this reality of racially insensitive grandparents raising this biracial child.  I don’t think the best interests of the child are being served well here.  I hope that we can agree that the state should never be an “enabler” of this possibility.  This was just one of my concerns, a story that I had picked up.

 

Also, I would like to talk to you about the potential negative effects for foster children here in Nevada.  I don’t know if foster kids have been totally recognized here.  I am concerned that post-adoptive contact agreements will create an unequal opportunity for adoptions, primarily among children in our foster care system.  This point is self-evident to me, especially if you factor in the competitive nature of the children waiting to be adopted.  If two equally desirable prospective adoptive children come before a prospective adoptive family, and one child has a post-adoptive agreement attached and the other does not, the child without the post-adoptive agreement attached is going to be the first choice.  In other words, the child with the post-adoptive strings attached will be, at best, an alternate choice.  It just seems terribly unfair to me.  I think that the state should try to ensure that every child has an equal opportunity for adoption.  This concludes my remarks.

 

Chairman Anderson:

Thank you, Mr. Dahl.  Are you an attorney, Mr. Dahl?

Mike Dahl:

No.  I am just an adoptive father here in Clark County.

 

Chairman Anderson:

[Are there any] questions for Mr. Dahl?  Thank you for raising your concerns.  Mr. Escobar, you are on the clock, sir.

 

Chris Escobar, Attorney at Law, Pico and Mitchell, Las Vegas:

I appreciate the opportunity to speak; I appreciate the honorable members of the Judiciary Committee and yourself.  I am an attorney in Las Vegas, Nevada.  I have practiced here for the past 18 years with the law firm of Pico and Mitchell; a significant portion of my practice is adoption.  I have finalized adoptions, both privately through the interstate compact and in conjunction with the Department of Child and Family Services, Catholic Charities, Jewish Family Services, LDS Family Services, and New Hope Family and Child Agency.  I am also the parent of two adopted children.  I have read the two Nevada Supreme Court cases, 118 Nevada Advanced Opinion No. 97, and 118 Nevada Advanced Opinion No. 96, that have been referred to here today.  I would like to comment on those briefly, later in my testimony.

 

As I view this bill and the problems it attempts to address, I believe there is a fundamental flaw in the philosophy.  Both of these Nevada Supreme Court cases and this bill are looking at a dispute between birth parents and an adoptive couple.  The court cases address the issues raised within the confines of the causes of action that were brought.  That, of course, is appropriate; that’s what courts do.  This Legislature simply is considering legislation to overturn those cases and to seek to enforce these types of post-adoptive contracts. 

 

The fundamental philosophy that is not being considered is this.  Placing a child for adoption and adopting a child is really about one choice, who will parent this child. 

 

I have yet to meet a birth mother, and I have met many, of an infant placed for adoption who did not love that child unconditionally.  They have come to their decision out of love.  They have decided that it is in their child’s best interest, which you have noted, Mr. Chairman, as the important part of Nevada law, to have another couple or individual parent raise that child.  I, for one, reverence that decision.  Understanding that parenting a child is a huge commitment by an adoptive couple, it will be these two who clean up the diapers, clean the face, and provide the unconditional love that is so necessary in the life of an infant.  They will be there to calm the troubled heart of a child wronged by her playmates.  They will spend the sleepless nights in agony as their child has a fever of 105 degrees.  They will pace the floor; they will parent.  Ultimately, that child will grow up and hopefully move out.

 

Chairman Anderson:

Mr. Escobar, you need to speak to the legislation.  It is a matter of would you like to be on the record or not.  Have you reviewed the Supreme Court decision?  We would like to hear some factual material so we can try to reach a decision as to whether or not we are going to do this.  Do you believe that we should stay where we are and let the Supreme Court decision stand alone?

 

Chris Escobar:

Yes, I do.  I think the Supreme Court decision specifically indicates why.  You have heard that I do not think all of the Supreme Court decision has been given to the Committee.

 

Chairman Anderson:

It has.

 

Chris Escobar:

In testimony today, they have emphasized certain aspects of it, but these aspects also need to be added.  The Supreme Court said, under the Nevada Administrative Code, it was clear that the child-placing agencies may offer open adoptions in which contact between the adoptive family and the biological parent may be arranged if that contact is agreed upon by the all persons involved.

 

The Court goes on to say, “It could be interpreted to permit agreements allowing such contact, especially because we conclude that these agreements do not per se violate Nevada’s public policy of protecting the child’s best interests.”  If you go to page 7 of that decision, it says, “Thus, subsequent to an adoption decree, a natural parent has no rights to the child, unless provided for in the decree.”  In the last paragraph of the decision, the Supreme Court said, “What many of these natural parents fail to realize is that if the agreement is not incorporated in the adoption decree, the rights as to the child are terminated upon adoption, and any contact with the child may be had only upon the adoptive parents’ permission regardless of the agreement.” 

 

That case clearly indicates that if you do incorporate this agreement into the adoption decree, it is enforceable in Nevada, and for that reason you do not need to change the law. 

 

I think what is important, what I would like the Committee to understand with regard to my position, is that vis-à-vis open adoptions, which we have heard testimony about, is what is happening in foster care issues, and these agreements may be appropriate there.  When you have a private adoption in Nevada, it is always an open adoption.  These agreements may be appropriate. . .

 

Chairman Anderson:

You are over your five minutes sir.  Are there any questions for Mr. Escobar?

 

Assemblywoman Angle:  

Mr. Escobar, you said that these types of agreements could be incorporated into existing adoption law so that they would be enforceable.  Do you have any firsthand experience of doing that?  Do you know that they have been incorporated by the law and are enforceable?

 

Chris Escobar:

Thank you, Ms. Angle.  I have not incorporated any of those agreements in adoption decrees.  Most of my practice has not been in open adoption; it has been more in semi-open adoption, where they do not tend to come up.  I was just reading from the Supreme Court decision that suggests that they can be incorporated and given the force of law. 

 

Assemblywoman Buckley:

Would your opinion change in that you would recommend that the state do get involved somehow in defining enforceability if it is a DCFS case?  [For example, if] a 13-year-old wants to have some contact with the birth parent, the birth parent wants it as well, and the adoptive parent is willing.

 

Chris Escobar:

I think my opinion would change; I think in that situation you already have a relationship between the child and the birth parent, and probably between the foster parents, who are probably going to be the adoptive parents.  In that instance, I think contact is appropriate and enforcement of these agreements may be appropriate.  You need to provide for the other types of adoptions that are semi-open, and be aware of that concern as well.

 

Assemblyman Brown:  

Is it then your interpretation of this case, which I have not had the opportunity to go through entirely, that these agreements are enforceable in Nevada, but only under the circumstance where it is part of the adoption decree?

Chris Escobar:

Yes, I believe the Supreme Court would vote six to one in that regard, based on this decision that they have.  The only judge who would be against it would be Judge Maupin.

 

Chairman Anderson:

Mr. Rasmussen, we have another bill to hear, and long list of people [waiting to speak]; I am going to have to reduce your time from five minutes to three; I apologize.  I want to try to get to the attorney who was at the Supreme Court presentation and we have yet to hear from the state agencies.

 

Michael Rasmussen, Citizen:

I understand, Mr. Chairman, and I will be very brief because most of my testimony has been before you already.  I have also sent, via e-mail last week, to you and the other members of the Committee, a letter that states most of my opinion.

 

There are two major points that I would like to bring up, Mr. Chairman.  First, A.B. 28 purports to be the best interest of the child.  I cannot see, in any way, how this legislation benefits children.  I can see how it has been enacted or potentially enacted for the benefit of a birth mother, and even for the benefit of the adoptive couple.  But I do not see how this rebuttable presumption that is brought up in A.B. 28 is in the best interest of the child.  What is in the best interest of the child is to provide a stable home without being interrupted by additional court hearings and items like that that people would bring up under this proposed legislation. 

 

The second item is that it seems that this A.B. 28 would impede the natural parenting process.  Adoptive parents are the parents; they are the ones who should choose what is in the best interest of the child.  If they have to go through courts to modify agreements for what is in the best interest of their child, I think that really impedes the process.  We do not require that of parents who give birth to their children naturally, but we are now somehow requiring that of adoptive parents.  I would just submit it with that, Mr. Chairman.  If there are any questions, I would be happy to field them.

 

Chairman Anderson:

It is the Chair’s intention to put this in a subcommittee, so we are going to be hearing some additional [information].

 

Mr. Stovall, I believe you brought this case to the Supreme Court.  I am going to put you on the timer; it is not one of my favorite things to do.  I ask that you make your presentation in three minutes; it is my intention to put this [bill] into subcommittee.  I want to get the state agencies on record too.  It is an important factor, and I think that they have some amendments they need to come along with.

 

Eric Stovall, Attorney at Law, Reno:

I represent agencies and individual parents doing private adoptions.  I have probably done 150 adoptions in the last five years or so.  The Supreme Court cases that have been mentioned this morning are cases that I worked on for about two and a half years.  I lived and breathed these cases.  I think they could have been solved, or at least the second case involving contact agreement would have been solved, had some form of A.B. 28 been in effect.

 

There have been several questions today that I think will be solved through the amendments that have been proposed.  The primary focus should be on allowing only the adoptive parents to change the contact agreement.  That, I think, will prevent these adoptive cases from becoming child custody cases.  If you are only allowing the adoptive family to enlarge or increase the communication agreement, I think that is a good thing. 

 

In my case, what happened was that the [birth] mother changed her mind about the adoption and tried to rescind her relinquishment.  Several other things were going on at the same time.  My clients, the agency and the adoptive parents, decided that that was a breach of the contact agreement that was in place.  We went to district court to try and rescind that contact agreement.  The district court judge said no. 

 

At that point in time, the Supreme Court challenge was filed after a district court case was filed by the birth mother.  My adoptive parents were sued for fraud, punitive damages, the whole nine yards, because they wanted to get out of the contact agreement.  A.B. 28, as in the proposed amendments, would have prevented that from happening. 

 

I think it is a good thing for the adoptive family to have some certainty that their rights are not going to be expanded upon.  I think the birth parents are protected because they have some certainty they are going to have contact, and the adoptive parents are not just going to be able to change that because they feel like it. 

 

So I see good things happening through the adoption of A.B. 28 with the suggested amendments.  I see that the whole system can be safeguarded through that adoption.  So that would be my testimony; I would be open for any questions.

 

Chairman Anderson:

Mr. Stovall is one of my former students.  Thank you very much. 

 

From the state agencies – Mr. Cotton, it appears that you are neutral on this; I know that you have some concerns, and I want to make sure that your concerns are heard by the Committee.

 

Edward Cotton, Administrator, Nevada Division of Child and Family Services:

Thank you, Chairman Anderson and members of the Committee.  I will keep this brief.  We are neutral.  I do not want to go over again the many positives that were already listed and that we agree with in terms of increasing opportunities for adoption and speeding up and making the process easier. 

 

Besides being the Administrator of DCFS in Nevada, I am also an adoptive parent of two children, one of whom did see birth parents and one who did not during the process after the adoption. 

 

We do have some concerns that I want to raise that do center around enforceability, and I think those concerns would be addressed, as Assemblywoman Buckley mentioned earlier, if we went a little further in defining what enforceability is.  We already, as you know, have a difficult enough time finding sufficient adoptive parents.  We have kids waiting for adoptions that we do not have adoptive parents for.  We do want to stress the attitude that adoptive parents are the child’s parents and should be the major decision-makers about that child. 

 

I deal with the other end sometimes.  I get extremely upset when an adoptive parent wants to give a child back, as though this was not a real family, as though this was not quite their child.  We do not want to enforce that situation; it is their child.  I think this would possibly, without some other language, create a situation where adoptive parents who have never abused a child are not presumed to be acting in the best interest of their child if they want to limit this contact.

 

Ms. Sheehan addresses several of my concerns.  A parent who is repeatedly late bringing a child back, or who may show up drunk, or the child is very upset about visits, or other causes, are further reasons an adoptive parent may consider that a child may not be benefiting from visits.  It is very hard to prove those kinds of things.  That adoptive parent would have to go to court, assume costs, whether they could be changed later or not, but certainly time costs.  They would have to, maybe, repeatedly go to court, and if there is disagreement about whether the kid is always late, or the parent is drunk, who is going to investigate that?  The judge is going have testimony, but who is going to look in and see what the truth is here?  I do get concerned about the bottom line, fines, jail, what are we going to do with a parent. 

 

I have not seen any research to show that open adoptions are good in the long term.  We have asked for that; we are trying to find some of that from other states that have them, but we have talked a lot about best interest of the child, and I would like to see some research on that.

 

Chairman Anderson:

We are not abandoning the best interests of the child, nor is it the intention, I believe, of the state to move to a position that California and many of our surrounding neighbors have.  We will place and keep “best interests,” I believe, it is this Chair’s intention anyway, that the best interest of the child will still remain the foremost authority for the state of Nevada.  And I think we need to do that against that backdrop, if we do this.

 

Mr. Cotton, would you or someone from your agency be available for a subcommittee that might need to deal with this piece of legislation?

 

Edward Cotton:

Certainly, we would appreciate the opportunity.

 

Chairman Anderson:

Thank you.  In the interest of time, Mr. Capello from Washoe County Public Services, I want to make sure I get you on the record.

 

Mike Capello, Director, Department of Social Services, Washoe County:

[Introduced himself]  Briefly, we are in support of this bill.  We do believe it adds some clarification and some legitimacy to this tool that has been used to move kids to adoption.  I think we support it as it was amended today.  I brought along our adoption supervisor, and I recognize we are short on time today, so we will reserve our comments in more detail for the subcommittee.

 

Chairman Anderson:

Okay.  Is there somebody who is here today who has come up from the south to testify on this piece of legislation who will not be available to operate with the subcommittee, or from Washoe County who feels that they need to get something on the record relative to this piece of legislation, either in opposition or support? 

 

Nancy Peterson, Professor of Social Work, University of Nevada at Reno:

Since I do not know when the subcommittee meets, I will just make this very brief.  I am a professor of social work at UNR, and I am also an adoptive parent.  I would like to make a stand that I do believe that open adoption is in the best interest for a child.  I have two children of open adoption situations; they have seen their birth parents frequently from birth, and I think there have been many, many benefits from them knowing; [my kids] are now 10 and 14.  There are many advantages of being able to address adoption issues with the birth parents.  So I do not want to leave it out there hanging that many of us think that open adoption from birth is a bad thing.  I think it is a very good thing.  Thank you.

 

Chairman Anderson:

Thank you.  Let us close the hearing on Assembly Bill 28, indicate that it is the Chair’s intention to turn the bill over to a subcommittee, consisting of Mr. Sherer, Mr. Horne, and Mr. Anderson.  I would ask that Mr. Horne be the chair of the subcommittee.  Anybody who has a language specification, make sure that Mr. Horne has that.  Mr. Horne, I am not going to hold you responsible for the first work session, but please recognize that I would like to see it by the end of month.

 

Let us open the hearing on the third piece of legislation that we have in front us today, Assembly Bill 42.

 

Assembly Bill 42:  Requires drivers of motor vehicles to stop in obedience to direction or traffic-control signal of school crossing guard and not proceed until highway is clear of all persons. (BDR 43-109)

 

[Sgt. McKenna], are you pitching for the Speaker on behalf of the Committee?  [Sgt. McKenna indicated no.]  I apologize, I know that you have come all this way for this piece of legislation; go ahead.

 

David McKenna, Sergeant, Henderson Police Department:

[Introduced himself] Good morning, Mr. Chairman, members of the Committee.  I have been with the Henderson Police Department for 15 years.  For the past three years I have been in charge of the Traffic Division.  When I took over the Traffic Division I began getting inundated with phone calls and complaints from schools and school crossing guards about problems that they were having crossing the children and people not paying attention to the stop signs, so I directed my traffic officers to go out and enforce the school zones. 

 

Come to find out, there is no law at all governing school crossing guards.  The only thing that governs them is the “right of way of pedestrian at a crosswalk.”  Briefly, what it says is that a motor vehicle has to yield the right of way to a pedestrian in a crosswalk when that pedestrian is on that half of the highway the motor vehicle is on, or when the pedestrian is so close as to cause danger; this is kind of open.  This causes many close calls in school zones.

 

In 1999, a crossing guard was struck and killed in the City of Henderson by an individual making a left turn while she was attempting to cross a group of elementary school children.  She was in the center, or near the center of the street.  The car, basically, by the law, had a right to be on one half of that road; however, she struck her in the center of the road.  The driver of that vehicle was subsequently arrested for manslaughter.  However, right now, we have no protection for the crossing guards or the kids.

 

In the City of Henderson, we have 145 crossing guards with an average age of 69 years old.  What they do every day is face these parents and drivers and cars who on a constant basis run their stop signs.  The elementary children think the stop signs mean something.  When you have a crossing guard start across at one end of the road, sometimes the children behind him try to catch up, or turn around and go back.  Either way, the vehicles, under the current law, have the right to go once they have passed half way.  Daily we have near misses of children and guards. 

 

This bill would make it illegal, as long as the crossing guard is out there, for any car to cross a crossing walk at either end, until the guard and all of the children are completely off the roadway.  It is the only way we can give them any kind of protection.  I have made this as brief as I could.

 

Chairman Anderson:

With all due respect, we are concerned about this piece of legislation.  It’s pretty straightforward.  Is there anybody else here that you feel—are any of these young people here to testify on this particular piece of legislation?

 

Sgt. David McKenna:

No, sir.  I did not bring anybody; these are my sons; I brought them for the education.

 

Assemblyman Claborn:

You’re saying, if there is a guard in a crosswalk, let’s put it into this perspective, if the guard was going north and south, you are saying no car could turn east or west.  Is that what you are saying, or go with the flow of the traffic?

 

Sgt. David McKenna:

What I am proposing is that no car is able to cross the crosswalk.  If the guard is crossing the road north and south, with east-west traffic, as the guard or any of the children are anywhere in that crosswalk, that no car crosses that crosswalk, whether it’s making a right to travel east and west, or making a left to travel east and west, or going straight.

 

Assemblyman Claborn:

So basically, if you have a guard in the crosswalk, then you do not turn right or left or go straight or whatever.  You just stop until she or he gets or the children get off the crosswalk.

 

Sgt. David McKenna:

Correct.

 

Chairman Anderson:

Mr. Claborn brings forth an interesting possibility.  Would you be able to proceed if your vehicle were traveling in the same direction as the child in the crosswalk?  In other words, he is protecting traffic in that direction?  You would still be able to add that additional protection.

 

Sgt. David McKenna:

As long as you are not crossing the crosswalk where the children are.  That’s my only concern.

 

Assemblyman Conklin:  

I’ll make this brief.  I have one small concern, Sergeant, and that is Section 1, subsection 2, where it lists this as a misdemeanor.  Any person guilty of this is [guilty of] a misdemeanor.  I have a limited legal background, so I apologize if I am construing this incorrectly, but does it move from moving violation to criminal act when somebody does this?

 

Sgt. David McKenna:

No, sir.  Most citable traffic offenses are misdemeanors, and that is what this is proposed as.

 

Risa Lang:

I wanted to mention, in Chapter 484 of NRS, any violation of that chapter is a misdemeanor unless a different penalty is specified in the statute.  We tend to, in the newer statutes, like to place the penalty in there, so you don’t have to go look at another provision to try and figure out what the penalty is.

 

Assemblyman Mortenson:

Do crosswalk people, the elderly people who do this job, are they trained?  Do they get any kind of instruction?

 

Sgt. David McKenna:

With the City of Henderson, yes, sir, they do.

 

Assemblyman Mortenson:

Will they be told that they must get off the street when all the children have crossed?  They won’t just stand there and impede the traffic, or just step off the edge of the curb or something of that nature?  [Sgt. McKenna responded in the affirmative.]

 

Assemblyman Claborn:

Basically, all we are doing then is making sure that the full crosswalk is protected, not only half of the street, the whole street.  We’re going to protect the guards and the children in the crosswalk from the time they leave one side until they reach the other side.  [Sgt. McKenna responded in the affirmative.]

 

Assemblyman Sherer:  

Sometimes it’s frustrating because police officers would not be in the area.  Is there a way you could have your crosswalk people write a ticket? 

 

Sgt. David McKenna:

I would discourage that, only because it is very dangerous.  It’s dangerous crossing the children, and the children do not always cross in the safest manner even though they are trying to with the guards.  The guards try to keep them in order. 

 

In the things I have copied for you (Exhibit H) [are letters from] the City of North Las Vegas and the City of Las Vegas, [indicating] their guards, when they get a chance, will write the license plate numbers of vehicles that violate, and [the city] will send letters.  We discourage them from going after them.  If they happen to see the license plate, they will write it down and then letters are sent to the offenders, discouraging that type of action, but [the crossing guards] do not issue citations.

 

Chairman Anderson:

We allow school bus drivers to copy [license] numbers of drivers who pass school buses, and we send them letters indicating that they passed a school vehicle.  However, anybody can make a citizen’s arrest, but somehow, I can’t see one of these kids on his bicycle chasing them down, although I’m sure they’d be willing to do it.  Having been a school crossing guard, I can well recall. 

 

I have some concerns that were raised by some school principals who have, in the past, been able to put cones in the middle of the street in small residential areas to act as reminders that children are present, and to slow traffic down.  Apparently, we have removed that from the statutes.  Is there any advantage that you can think of, other than from the traffic engineer, who I’m sure would tell us no, but for the safety aspect of the child, that would be a benefit to having those in place?  There are children who come to school after the time the school safety guards leave.  Do you have any thoughts about that, Sergeant?

 

Sgt. David McKenna:

I do.  I believe that anything they can do to make it safer is better.  I do believe we have a fair amount of kids who come late every day, and they do miss the crossing guard.  So I have no opposition to the schools putting out something to make it safer. 

 

Chairman Anderson:

Questions?  Thank you very much.  Is there anybody else who wishes to testify in support of this piece of legislation?

 

Jim Nadeau, Washoe County Sheriff’s Office:

[Introduced himself]  Mr. Anderson, you brought up the school bus, and I view this [crosswalk situation] very similar to the school bus situation.  When the school bus lights are flashing, all traffic in both directions is supposed to stop.  I view this [crosswalk situation] in very much the same fashion as that.  We support A.B. 42.

 

Bob Roshak, Las Vegas Metropolitan Police, and Nevada Sheriffs and Chiefs Association:

[Identified himself]  Very quickly, we say that we do support this and we’re in favor of helping to protect those children and the people that are getting them across the street.  Thank you.

Chairman Anderson:

Are there any questions for these two additional law enforcement officers?

Is there anyone in opposition to A.B. 42?

 

Let me close the hearing on A.B. 42.  I will bring it back to Committee.  The Chair is not going to take a motion on A.B. 42; I want to do a little research on the possibility of whether we need to find a place for the cones, but we will try to work it into the work session document we are putting forward for the week.

 

Are there any other issues that need to come before the Committee?

 

We are adjourned [at 11:11 a.m.].

 

 

RESPECTFULLY SUBMITTED:

 

 

                                                     

Sabina Bye

Committee Secretary

 

 

APPROVED BY:

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

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