dissenting:
The State has permanently deprived these parents of five of their eleven children because they are (to use the language of the trial court) “destitute.” Today, we see five more children being swept away by the State’s child-devouring juggernaut because, as put in the majority opinion, the parents “could not provide for [their] own children.”
The parents’ destitution and poverty are not, of course, put forth as the grounds for depriving these five children of their natural parents. The “official” grounds for termination of the parental relationship are “abandonment” and “failure of parental adjustment.” Abandonment and failure of parental adjustment have become the standard rubric for taking poor children away *96from their parents.1 When we examine these grounds as “jurisdictional grounds” in this case, we can see that the children lost their parents primarily because their parents were “destitute.”
If we look at the official ground of “abandonment” for example, it is easy to see that in this case (as in most cases where abandonment is relied on to terminate the rights of parents) there is not even a hint of the parents’ having any intention to abandon or “relinquish all parental rights” to five of their children. The evidence in this case shows only an inability to support their children, not an unwillingness. The parents’ “lack of support,” which is at the root of the abandonment charges, is based upon their inability and failure to make child support payments to the State. (For example, Mr. Kidwell was required to pay $300.00 per month in support when welfare agents knew that he was only earning $200.00 per month.)
This case is yet another example of the State’s growing inclination to seek termination of parental rights “for reasons of poverty.”2 The pattern is familiar:3 Hungry children, dirty children, *97unkempt children, and improperly attended children come to the attention of welfare officials. The children are, without the parents’ having the benefit of legal counsel, “temporarily” removed from their homes. The poor parents are forced into submitting to some kind of “plan” devised by welfare officials. Frequently, the poverty-stricken parents are not able to cope with the State’s demands; and legal proceedings are instituted to deprive the poor parents of their children permanently, and, more importantly, to deprive the poor children of their parents.
As I see the operation of the welfare system in this state, when child-rearing problems arise as a result of poverty, the problem is rarely addressed by attending to the poverty but, rather, by assigning blame to the parents and then permanently depriving the children of their natural parents. The poor parents in these *98kinds of cases are invariably found to have psychological or moral problems that must be “treated.” The children are removed from the home in order to give the parents an opportunity to reform, that is to say, to “adjust” and “reunify” with their children. The parents are almost always required to submit to demeaning, and often totally unproductive, “counselling,” “parent training,” and “family therapy.” The result is almost always the same. The parents remain poor; their poverty cannot be “counselled” away; parents, forcefully separated from their children, become estranged from their children, who are placed in a federally-subsidized foster home with “new parents”; and, finally, the State moves to terminate the parental rights of the poor natural parents.
As with so many of our past termination cases involving poverty and disability, my principal concern in this case is employing poverty as “jurisdictional grounds,” depriving poor children of their parents “by reason of poverty.” There are, however, other reasons why the judgment of the trial court should be reversed. The first of these reasons is the failure of disposi-tional grounds; the second is the failure to provide these “destitute” parents with legal counsel to defend themselves and their children at the critical stage in these proceedings, namely, the judicial removal of these children from their parents’ homes.
The majority correctly defines dispositional grounds. Under Nevada law, parental rights cannot be terminated unless it is convincingly proved that the children’s best interest cannot, under any reasonable circumstances, be served by sustaining the parental ties. In this case, it is not that the interests of the children cannot be served by maintaining the parental ties, it is quite clear that the children’s best interest cannot possibly be served by permanently depriving them of their parents. These children are homeless and parentless. Some are biracial, some are emotionally disturbed; and, according to welfare officials, prospects for a future adoption for any of these children are somewhere between impossible and “problematic.” They have no place to go. Before our judicial system took its Herodian action in this case by depriving these children of their parents, the five children at least had parents, even if they were poor. Now they have no parents at all. This is a case of termination for termination’s sake. There is no rhyme or reason to it. This court is even more clearly wrong in approving the dispositional grounds than it is in approving the ill-disguised jurisdictional ground, “for reasons of poverty.”
With regard to the parents’ not having counsel at the crucial time that the district court removed the children from the home, again, it is obvious that poverty is at the root of the problem. *99These parents did not have an attorney because they were “destitute.”4 At oral argument of this appeal the parents’ counsel represented to the court that, in his opinion, termination would not have been effected in this case if the parents had had counsel at the time the children were removed from their home. My review of the record persuades me that counsel was correct in making this representation. The trial judge had this to say about the parents’ having the advice of counsel in these kinds of proceedings:
My honest opinion is that persons that are destitute under the statute probably should be required or should be allowed to have private attorneys. It is not presently the law in the State of Nevada. The law in Nevada is that destitute parents may be entitled to attorneys, the Court may appoint attorneys for them in 432(B) proceedings. I agree with you, that I think the idea would be to have them appointed to all parents in 432(B) cases. . . . I do think that perhaps it might have made a difference as to the father [Appellant Kidwell], It is not yet required by due process, at least from my understanding of what due process is — or what due process requirements are ... . It’s not compelled, it’s not required and we don’t do it.
(Emphasis added.)
I must say that it is also my “honest opinion” that counsel should be appointed for “all parents in 432(B) proceedings,” where parents are threatened with having their children removed from the home. Once the children are removed from the home, the chances of losing the children permanently is greatly increased.
The appellant cites widespread authority for the proposition that parents should have counsel in proceedings in which their children are being “temporarily” taken away. In holding that a right to counsel in these situations was constitutionally required, the Washington Supreme Court in In the Matter of the Welfare of H. Luscier, 524 P.2d 906 (1974), quoted from the Columbia Law Review, thus:
[Sjince there is not evidence indicating that .the average respondent who can retain counsel is better or less neglectful than one who cannot, the conclusion seems inescapable that a significant number of cases against unrepresented parents result in findings of neglect solely because of the absence of counsel. In other words, assuming a basic faith in the adver*100sary system as a method of bringing the truth to light, a significant number of neglect findings (followed in many cases by a taking of the child from his parents) against unrepresented indigents are probably erroneous. It would be hard to think of a system of law which works more to the oppression of the poor than the denial of appointed counsel to indigents in neglect proceedings.
Note, Child Neglect: Due Process of the Parent, 70 Colum. L. Rev. 465, 476 (1970).
In Brown v. Guy, 476 F. Supp. 771 (D. Nev. 1979), the Nevada District Court held that due process requires appointed counsel when there is a reasonable probability of termination of parental rights or of prolonged separation from a child. Almost all of the cases that come before us are based on NRS 432B proceedings which are geared toward ultimate parental termination. Because of this and because of the “inherent imbalance of experience and expertise between the parent and the state,” I would adopt a per se rule that would provide counsel in all cases in which the state seeks removal of a child from its home.
It is clear to me that Brown required counsel to be appointed in the present case at the time the children were removed from the home; and I think that this alone calls for a reversal of the termination decree. The majority should have reversed the judgment of the trial court while adopting the per se rule that I have mentioned.5 I dissent on this ground and because there is no showing by clear and convincing evidence of either jurisdictional grounds or dispositional grounds for “terminating” this family.
There is mention in the majority opinion of drug abuse on the part of one of the parents. This failing is not, however, relied on by either the trial judge or the attorney for the State as a ground for termination; and, again, the termination is based on a supposed “abandonment” and failure to “adjust,” which, I maintain, are in most of these kinds of cases, simply euphemistic terms for disabling poverty and “destitution.”
For Reasons of Poverty, written by University of Nevada, Las Vegas professor Leroy Pelton, Ph.D., should be required reading for jurists who are wont to take children away from their parents because they are poor. Referring to a 1990 White House Conference report on poor and “dependent” children, which recommended that “the home should not be broken up for reasons of poverty,” Dr. Pelton presents a most valuable social science study of the overriding role of poverty in child-removal and termination proceedings. The author establishes that poverty is “the most predominant characteristic of parents” whose children are removed from the home. Dr. Pelton concludes that the cause of removal of children from their homes and of foster care placement is “often that the natural parents, frequently due to poverty, do not have the resources to off-set the impact of situational or personal problems, which themselves are often caused by poverty, and the agencies have failed to provide the needed supports.” Noting that “it is largely poor children that populate the foster care system,” Dr. Pelton provides us with the following salient quotation from a paper by Bernice Boehm:
It is more than half a century since the tenet was first annunciated that “no child should be separated from his family by reasons of poverty alone.” It is unforgivable that in more than half a century this basic principle, to which there is such strong commitment, has not been implemented. . . .
During much of child-welfare history, “poverty alone” was taken as being sufficient reason to remove children from their homes. Once it was accepted that children should not be removed from their homes because of “poverty alone,” Dr. Pelton explains that “it was incumbent upon the child removers to make separate ‘findings’ of the unfitness and immorality of impoverished *97parents [and] [in] more recent times the parents are not perceived as immoral, but as psychologically defective in some way. . . . The behavioral effects of poverty would now call forth the attribution of motives and personality characteristics indicative of psychological deficiencies. Thus, the reasons would be couched in modern benevolent language of psychology, but the results would be the same: The victims of poverty would be blamed, and the children would be removed.” Pelton at 107-108.
In Nevada, poverty, as such, is, of course, not a ground for termination of parental rights, but the “behavioral effects” of poverty are. Welfare officials ordered these parents, in effect, not to be poor anymore. As pointed out in the majority opinion, they were ordered to stop living in squalor and, rather, to “maintain adequate and stable housing.” They were ordered to get some money and “secure stable employment” and, as always, to “seek counsel-ling.” Most importantly, the State ordered these destitute parents to pay to the State “child support in the amount of $300.00 per month.” (Kidwell, according to the majority, earned a little over $200.00 per month.) The parents’ inability (and thus their failure) to pay this amount was taken by the State as evidencing abandonment of the children and as grounds for terminating parental rights.
I commend Dr. Pelton’s book to any one who does not yet understand that most of the terminations of parental rights ordered by Nevada’s courts are based on poverty-by-another-name, namely (as in this case), “abandonment,” “lack of support, failure to communicate, and failure to send gifts” and “failure of parental adjustment.”
Cooley v. State, Dep’t Hum. Res., 113 Nev. 1191, 946 P.2d 155 (1997) (Springer, J., dissenting) (poverty and temporary immaturity of teenage mother); Matter of the Parental Rights of Gonzales, 113 Nev. 324, 933 P.2d 198 (1997) (Springer, J., dissenting) (parent temporarily indisposed and unable to attend to parental duties); Matter of Parental Rights as to Bow, 113 Nev. 131, 930 P.2d 1128 (1997) (Springer, J., dissenting) (abject poverty); Matter of Parental Rights as to Deck, 113 Nev. 124, 930 P.2d 760 (1997) (Springer, J., dissenting) (schizophrenic parent); Bush v. State, Dep’t Hum. Res., 112 Nev. 1298, 929 P.2d 940 (1996) (Springer, J., dissenting) (mentally deficient parents); Matter of Parental Rights as to Weinper, 112 Nev. 710, 918 P.2d 325 (1996) (Springer, J., dissenting) (fraudulently presenting duplicate of prior welfare report in lieu of current status report and not informing court of events during review period denies parent opportunity to comply with reunification plan).
“In England, Justice is open to all, like the Ritz Hotel.” Lord Justice Sir James Mathew.
Appellant cites in his opening brief the case of Davis v. Page, 640 F.2d 599 (5th Cir. 1981). The case was a class action suit by litigants denied representation in child deprivation cases. The class challenged the constitutionality of child dependency proceedings against indigent parents who were not provided with counsel. Perhaps this is what is needed in Nevada to slow down the wholesale termination industry.