State v. McMaster

486 P.2d 567, 259 Or. 291, 1971 Ore. LEXIS 377

• Court: Oregon Supreme Court
• Decided: June 23, 1971
• Status: Published

Opinions

DENEGUE, J.

This is a proceeding to terminate parental rights in a four-year-old child under ORS 419.523 (2) (a), which provides for such termination if parents are found to be “unfit by reason of conduct or condition seriously detrimental to the child.” The parents have petitioned for review of a decision by the Court of Appeals which affirmed an order terminating their parental rights in the child and authorized the Oregon State Public Welfare Commission to place the child for adoption without consent of the parents. 4 Or App 112, 476 P2d 814 (1970).

Two questions are presented for decision:

(1) Whether the trial court erred in overruling a demurrer to the petition to terminate parental rights upon the ground that ORS 419.523 (2) (a) is unconstitutional as a violation of due process of law under the Fifth and Fourteenth Amendments of the Constitution of the United States and Art I, § 10, of the Oregon Constitution “in that said statute is unconstitutionally broad, uncertain and vague,” and

(2) Whether the evidence was “sufficient to hold that defendants were ‘unfit by reason of conduct or conditions seriously detrimental to the child’.”

Because of the importance of the first of these questions, we granted the petition for review.

The facts of this case illustrate one of the serious social problems of our times. This child, four years of age at the time of trial, was born out of wedlock. The parents were subsequently married. When two months of age she was taken from her mother and placed in emergency custody. She was placed with foster parents, where she has remained. She was found to be within the jurisdiction of the juvenile court. The petition for termination of parental rights was filed pursuant to the order of the juvenile court.

In determining the constitutional issue a review of the entire procedure in a case such as this may be helpful in having the proper perspective.

1. In order for parental rights to be terminated under OES 419.523 the child must be within the jurisdiction of the juvenile court. Jurisdiction is fixed by OES 419.476 (1), which provides:

“The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:

“(a) Who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city; or

“(b) Who is beyond the control of his parents, guardian or other person having his custody; or

“(c) Whose behavior, condition or circumstances are such as to endanger his own welfare or the welfare of others; or

“(d) WTio is dependent for care and support on a public or private child-caring agency that needs the services of the court in planning for his best interests; or

“(e) Either his parents or any other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or faded to provide Mm with the care, guidance and protection necessary for his physical, mental or emotional well-being; or

“(f) Who has run away from his home.”

2. Once a child is within the jurisdiction of the juvenile court, the court may take the child from the legal custody of the parents and place the custody of the child with other persons or an institution. OES 419.507. Such a change in custody can be for the remainder of the child’s minority.

OES 419.523 provides:

“(1) The parental rights of the parents of a child within the jurisdiction of the juvenile court as provided in subsection (1) of OES 419.476 may be terminated as provided in this section and OES 419.525. The rights of one parent may be terminated without affecting the rights of the other parent.

“(2) The rights of the parent or parents may be terminated as provided in subsection (1) of this section if the court finds that the parent or parents:

“(a) Are unfit by reason of conduct or condition seriously detrimental to the child; or

“(b) Have wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year. In determining whether the parent has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions.”

This is not a criminal procedure such as State v. Hodges, 254 Or 21, 457 P2d 491 (1969). Admittedly, a serious interest of the parents is in issue which can be assumed to be as important to the parents as their freedom, which is in jeopardy in a criminal proceeding.

It is also not a regulatory proceeding in which the state is pitted against an individual. The statute is not one which forbids or requires the doing of an act. Connally v. General Const. Co., 269 US 385, 391, 46 S Ct 126, 70 L Ed 322 (1926). An example of what a regulatory proceeding is is Morrison v. State Board of Education, 1 Cal3d 214, 82 Cal Rptr 175, 461 P2d 375, 387 (1969). That decision involved an appeal from a decision of the Board of Education revoking a license to teach for violation of the Education Code. The court held the Education Code had to satisfy the same requirements for specificity as did criminal laws.

3, 4. The procedure here is not the state against the parents. Three parties are involved: the state, the parents and the child. The welfare of the child is the primary consideration of the Juvenile Code of 1959. ORS 419.474. That the welfare of the child is the primary purpose does not lead to the conclusion that the rights of the parents are without constitutional protections. State v. Jamison, 251 Or 114, 444 P2d 15, 444 P2d 1005 (1968). This emphasis upon the welfare of the child does imply, however, that, unlike criminal statutes in which the interests of only one set of individuals is involved, the constitutional issue must be examined with the interests of both the child and the parents. What might be unconstitutional if only the parents’ rights were involved is constitutional if the statute adopts legitimate and necessary means to protect the child’s interests. In our opinion it does.

It is significant that the statute we are testing is in the juvenile code and not the criminal code or some other portion of our laws. While the juvenile code is administered by courts, the code directs the juvenile courts to act in some manners similar to a social administrative agency. Much of the code and much of the juvenile court’s budget is devoted to the proper disposition of the child after the child comes within the court’s jurisdiction. To adequately perform this function the legislature reasonably deemed it desirable to give the juvenile court greater flexibility than may be thought desirable for a court functioning in its criminal role.

The flexibility granted the juvenile court by the legislature is epitomized by the general charge made in ORS 419.474 (2):

“The provisions of ORS 419.472 to 419.587 shall be liberally construed to the end that the child coming within the jurisdiction of the court may receive such care, guidance and control, preferably in his own home, as will lead to the child’s welfare and the best interests of the public, and that when a child is removed from the control of his parents the court may secure for him care that best meets the needs of the child.”

We are not shocked by a grant of flexibility to administrative agencies dealing with our material affairs such as businesses and professions. For example, a common carrier can receive or be denied a certificate to operate, depending upon whether or not the Public Utility Commissioner finds the service proposed “is or will be required by the present or future public convenience and necessity.” ORS 767.135 (4)(c). Admission to the bar is conditioned upon having “the requisite learning and ability” as shown by an examination. ORS 9.220 (3). There is no reason why the welfare of the children of the state should be relegated to a system of rigid rules and standards.

The United States Supreme Court has held that in the states’ juvenile procedures at the adjudicatory stage, the states cannot ignore some of the procedural due process requirements. That Court, however, has not held that all the substantive due process requirements of the criminal law were applicable to juvenile proceedings, particularly the dispositional process of juvenile proceedings. It has indicated to the contrary. In Re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed2d 368 (1970), the Court held that the Due Process Clause required that a juvenile could be found to be “delinquent” only by evidence convincing beyond a reasonable doubt. The Court, however, pointed out that under its decision, “the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging view of the child’s social history and for his individualized treatment will remain unimpaired.” 397 US at 366.

Even in cases involving criminal statutes an important consideration is whether the statute is as explicit as the legislature can draw and accomplish the purpose it intends. United States v. Petrillo, 332 US 1, 67 S Ct 1538, 91 L Ed 1877, 1882 (1946); 62 Harv L Rev 76, 82-83 (1948). Mr. Justice Frankfurter, dissenting in Winters v. New York, 333 US 507, 524-525, 68 S Ct 665, 92 L Ed 840 (1948), commented:

* * But whether notice is or is not ‘fair’ depends upon the subject matter to which it relates. Unlike the abstract stuff of mathematics, or the quantitatively ascertainable elements of much of natural science, legislation is greatly concerned with the multiform psychological complexities of individual and social conduct. Accordingly, the demands upon legislation, and its responses, are variable and multiform. * * *”

In our opinion, to accomplish its primary purpose of caring for the welfare of the child, the legislature would have extreme difficulty being more specific. The legislature could specify certain conduct upon the part of the parents which would cause them to he deprived of their parental rights; however, that is not the intent of the legislature or of this court in interpreting this statute. The legislature and this court do not desire to sever parental rights for any conduct by the parents unless such conduct seriously affects the child’s welfare. For example, imprisonment was not held conduct “seriously detrimental to the child,” in State v. Grady, 231 Or 65, 371 P2d 68 (1962); wilful fraud upon the court likewise was held not sufficient to sever parental rights. Cutts v. Cutts, 229 Or 33, 43, 366 P2d 179 (1961).

The legislature could “spell out” what aspects of the child’s well-being harmed by the parents’ conduct were grounds for severing parental rights as the Missouri statute does in specifying “health, morals, or well-being.” Missouri Revised Statutes 211.441. This does not add anything, however. Because the Oregon statute does not specify, the inference is that it is conduct detrimental to any major aspect of the child. This is undoubtedly what the legislature intended.

That we are not concerned with the criminal statute also makes inapplicable one of the bases for State v. Hodges, supra (254 Or at 27), that is, “the terms of a penal statute creating an offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” We would hope that in the case of the McMasters, or any parents, there is no need for an explicit statute to “spell out” how poorly they can treat their child before risking loss of their parental rights.

If some notice of conduct which will cause a result is required in a noneriminal statute, the parental rights statute gives adequate notice of the kind of conduct involved and the result which will occur. The conduct is of a kind detrimental to the child, not beneficial. It is not just any detrimental conduct but seriously detrimental conduct. We see no policy to be furthered by attempting to elaborate on what conduct is seriously detrimental and what is not. The ordinary parent should “get the message” from the statute as it is now worded.

5, 6. The other basis for State v. Hodges, supra (254 Or 21), is labeled “adjudication”; a statute must be certain enough so that a court or jury does not have uncontrolled discretion to act or withhold action. The history of the parental rights statute reveals that the juvenile court does not have unbridled discretion under that law. As this court and the Court of Appeals have held, under that statute, the juvenile court does not have uncontrolled discretion to terminate or not terminate parental rights. Only when the parents’ conduct is seriously detrimental to the child can parental rights be terminated. As stated, in State v. Grady, supra (231 Or 65), we held that imprisonment on a felony charge and the mother’s commitment of a felony and of later acts causing her probation to be revoked was not sufficient to support the trial court’s finding that such conduct and condition were seriously detrimental to the child.

In State v. Easley (Hull), 228 Or 472, 473, 365 P2d 293 (1961), “possibly untrue answers given by defendant [mother] in her testimony” was an insufficient ground to support the juvenile court’s termination of parental rights upon the ground that such conduct was seriously detrimental to the child.

“Even if it were true that Stanford Cutts [the father] wilfully worked a fraud upon the court, which has not been demonstrated, we do not believe such collateral misconduct is sufficient ground to constitute the kind of depravity required to invoke the provisions of OES 419.523.” Cutts v. Cutts, supra (229 Or at 43).

On the other hand, in State v. Blum, 1 Or App 409, 463 P2d 367 (1970), the Court of Appeals found the parent’s condition was seriously detrimental to the child and affirmed the termination of parental rights. The uncontradicted evidence was that the mother had a recurring mental illness and that the prognosis was that she never would be able to care for her child and that the mother’s mental condition and the incapability accompanying such mental condition made her condition seriously detrimental to the child.

7. For these reasons we are of the opinion that the statute is not constitutionally vague.

8. We are further of the opinion, however, that the evidence does not support the juvenile court’s finding that the conduct of the parents has been seriously detrimental to the child within the meaning of OES 419.523 (2) (a).

The child was born in June 1965. About two months later the child was taken from her mother and placed in emergency custody. This was done under a warrant issued pursuant to an affidavit stating that the Women’s Protective Division (WPD) received complaint that the child was not receiving proper care and other allegations. The child was subsequently placed with a foster couple and in April 1966 made a ward of the juvenile court. The foster parents, who have had the child since some time before April 1966, desire to adopt the child and Mrs. McMaster refuses to consent.

The essence of the case against the MeMasters is stated in the following testimony by a representative of the Multnomah County Welfare Department:

“The original removal [emergency custody] would have been based on conditions in the home and the neglect of the child; but subsequently to that the primary problems have been the mutual instability of the parents, probably paramount, and numerous separations and lack of concern and consistency that they might have for anyone else that might be living in the home, the family’s management. At times there has been adequate money. At times there has been money, not from the assistance grant, of sufficient nature to manage and it has not been managed properly; and also frequent moving because they have lived in many places during the past four years.”

This testimony was elaborated upon by evidence that the parents frequently quarreled, McMaster never held a job more than a month and seldom that long, they were usually on welfare, and McMaster frequently left home with the welfare check, leaving Mrs. McMaster destitute. They were unable, particularly Mr. McMaster, to handle their financial affairs. The caseworker testified that the foster parents were the complete antithesis, — stable, consistent and mutually supportive.

There was testimony which was uncontradicted that if the child were now taken from the foster parents and placed with her natural parents it would have a serious detrimental effect upon the child. This same testimony developed, however, that this is primarily because the child has lived with foster parents for almost all of her now almost six years. The detrimental effeet on the child is not necessarily because of the conduct of her natural parents, except that the child may resent being taken from the better all-around environment provided by her foster parents as compared to that which would be provided by her natural parents.

9. However, a decision in favor of the natural parents in this termination proceeding does not result in the child being transferred to the custody of her natural parents. We are only deciding that the McMaster’s parental rights cannot be terminated at this time. The juvenile court must determine whether custody should remain with the foster parents. If it does, we realize that the foster parents may be kept in a state of anxiety never knowing when the child might be taken from their custody. Nevertheless, we are of the opinion that the natural parents’ rights cannot now be terminated.

We are of the opinion that the state of the McMaster family is duplicated in hundred of thousands of American families, — transiency and incapacity, poverty and instability. The witness was undoubtedly correct when he stated that living in the McMaster s’ household would not “allow this child to maximize her potential.” However, we do not believe the legislature contemplated that parental rights could be terminated because the natural parents are unable to furnish surroundings which would enable the child to grow up as we would desire all children to do. When the legislature used the phrase, “seriously detrimental to the child,” we believe that they had in mind a more serious and uncommon detriment than that caused by the conduct of parents such as the McMasters. The best interests of the child are paramount; however, the courts cannot sever the MeMasters’ parental rights when many thousands of children are being raised under basically the same circumstances as this child. The legislature had in mind conduct substantially departing from the norm and unfortunately for our children the Mciviaster’s conduct is not such a departure.

Reversed.