determining that statute providing for termination of parental rights based on the best interests of the child alone was "unconstitutional on its face” and explaining that "[u]nlike the standard of 'parental fitness,’ which imposes a high burden on the state in an adversary proceeding, the standard of ‘best interest’ of the child provides an open invitation to trample on individual rights through trendy redefinitions and administrative or judicial abuse”
How later courts described this case
- determining that statute providing for termination of parental rights based on the best interests of the child alone was "unconstitutional on its face” and explaining that "[u]nlike the standard of 'parental fitness,’ which imposes a high burden on the state in an adversary proceeding, the standard of ‘best interest’ of the child provides an open invitation to trample on individual rights through trendy redefinitions and administrative or judicial abuse”
- concluding “that the right of a parent not to be deprived of parental rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental to our society and so basic to our constitutional order . . . that it ranks among those rights referred to in Article I, [§] 25 of the Utah Constitution”
- noting that "[t]he rights inherent in family relationships-husband-wife, parent-child, and sibling-are the most obvious examples of rights retained by the people" under the Ninth Amendment
- concluding "that the Utah Constitution recognizes and protects inherent and retained right of a parent to maintain parental ties to his or her children under Article I, § 7 and § 25"
Written by the judges who cited it.
The opinion
STEWART, Justice
(dissenting):
I agree with the view of the majority that the family unit and the relationship of parents and children are constitutionally protected. However, in holding two different statutes — one of which is not even before the Court and whose constitutionality has been assailed by no one — unconstitutional, the Court, in my view, transgresses fundamental principles limiting the power of the Court to declare acts of the Legislature null and void. I respectfully submit that the first statute, the Children’s Rights Act of 1980 (the 1980 Act) is moot by virtue of the 1981 amendment to that Act (the 1981 Act) and that the constitutionality of the 1981 Act should not be ruled on because the issue of the validity of that Act is not before the Court.
On this appeal, this Court was asked to adjudicate the constitutionality of the 1980 Act only. The 1981 Act was not briefed or argued, and the Court has not asked for any such briefing. Nevertheless, the Court reaches out and holds the 1981 statute unconstitutional on its face, sua sponte, without submission of the issue by any party. I disagree not only with the procedure, but also with the conclusion that the 1981 Act is unconstitutional, assuming it is permissible to reach the merits of that Act. The 1980 and 1981 Acts are patently dissimilar, and a constitutional adjudication as to the 1980 Act does not control the 1981 Act or provide any basis for the Court’s reaching that Act and holding it unconstitutional. Moreover, by ruling on the 1981 Act now, the Court risks the likely undoing of adjudications based on that Act and further upheaval and insecurity to children and adults in cases tried under that Act. Because of the *1379 Court’s sweeping ruling, it now appears that all such cases may be clouded without any of the parties having had a day in court on the constitutionality of that Act.
It is a well-settled, long-standing rule that courts should not anticipate a constitutional issue in advance of the necessity of deciding it. State v. Wood, Utah, 648 P.2d 71 (1982); Hoyle v. Monson, Utah, 606 P.2d 240 (1980); Martineau v. Crabbe, 46 Utah 327, 150 P. 301 (1915); Clay v. Sun Insurance Office Ltd., 363 U.S. 207 , 80 S.Ct. 1222 , 4 L.Ed.2d 1170 (1960); United States v. Raines, 362 U.S. 17 , 80 S.Ct. 519 , 4 L.Ed.2d 524 (1960); Peters v. Hobby, 349 U.S. 331 , 75 S.Ct. 790 , 99 L.Ed. 1129 (1955). Even more fundamental is the axiom that this Court should not render an opinion on a moot question, yet that is what the majority does, in my view, in holding the 1980 statute unconstitutional when the Legislature in 1981 repealed that part of the 1980 Act which the Court finds invalid. Adjudicating the constitutionality of an already repealed statute is to decide a moot question. Concerned Parents v. Mitchell, Utah, 645 P.2d 629 (1982); Diffenderfer v. Central Baptist Church, 404 U.S. 412 , 92 S.Ct. 574 , 30 L.Ed.2d 567 (1972).
The Court argues that the controversy as to the 1980 statute is not moot under the doctrine of Wickham v. Fisher, Utah, 629 P.2d 896 (1981) because the controversy as to the 1980 Act will likely recur but escape review. How that can possibly be so in this ease, the majority does not explain. I submit it is unexplainable. The doctrine of Wickham v. Fisher just does not apply in this case.
Furthermore, the majority’s contention that the viability of the issue of the constitutionality of the “child’s best interest” standard remains because that standard is retained by the 1981 Act, is to ignore the substantial changes made by the Legislature in the 1981 Act which, I believe, make the child’s best interest depend upon a demonstration of parental unfitness. So construed, the 1981 Act, at least on its face, is in conformity with constitutional principles — not just those controlling vagueness, but also those substantive standards governing the integrity of the parent-child relationship.
Contrary to the majority’s position, the 1980 and 1981 Acts are, on their face, significantly different. Section 78-3a-48(l), as enacted in 1980, provides:
The court may decree an involuntary termination of all parental rights with respect to one or both parents if the court finds either (a), (b), or (c) as follows:
(a) That such termination will be in the child’s best interest. In determining the child’s best interest the court shall consider, but is not limited to, the following circumstances:
(i) The willingness of the parent or parents to receive or care for the child;
(ii) That the child has been removed from the custody of the parent by temporary order of the court for a period of six months and further finds that:
(A) The conditions which led to the removal still exist;
(B) There is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future; and
(C) The continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home;
(b) That the parent or parents have abandoned the child. It shall be prima facie evidence of abandonment that the parent or parents, although having legal custody of the child, have surrendered physical custody of the child, and for a period of six months following such surrender have not manifested to the child or to the person having the physical custody of the child a firm intention to resume physical custody or to make arrangements for the care of the child; or
(c) That after a period of trial, during which the child was left in his own home *1380 under protective supervision or probation, or during which the child was returned to live in his own home, the parent or parents substantially and continuously or repeatedly refused or failed to give the child proper parental care and protection. [Emphasis added.]
I recognize that a court could terminate a parent’s rights under paragraph (a) of that statute solely on a completely unrestricted “best interest test” because the court, under the plain meaning of the statute, is not limited to determining the best interest in light of the specific standards set out in the statute; and even if a court were so limited, those standards do not satisfy constitutional requirements. The highly objectionable consequence is that a court may for all practical purposes make the determination of a child’s best interest pursuant to any transient ideology or any other standard a court may deem appropriate for determining how children should be reared. The statute expressly states that a court need only consider the statutory standards “but is not limited to” them. Such vagueness results in depriving both parents and children of the constitutional protection to which they are entitled.
When the Legislature addressed the whole issue anew in 1981, it deleted the phrase “but not limited to,” and in effect confined the meaning of the term “best interests of the child” to those standards set out in the new statute. As amended in 1981, § 78-3a — 48(1), with deletions and additions as indicated, now reads as follows:
The court may decree an involuntary termination of all parental rights with respect to one or both parents if the court finds either (a), (b), or (c) as follows:
(a) That such termination will be in the child’s best interest. In determining the child’s best interest the court shall consider, but is not limited to; the following circumstances:
(i)The willingness of the-paront or parents to receive or care for-the-child-; Repeated conduct of the parent toward a child resulting in the serious neglect or abuse of the child:
(ii) Emotional illness, mental illness and mental deficiency of the parent, of such nature and extent as to render the parent unable for a reasonable period in the future to care for the physical, mental and emotional needs of the child:
(iii) Excessive and repeated use of intoxicating liquors or narcotics or dangerous drugs bv the parent with little likelihood of change:
(iv) Legal determination of the parent as a habitual felon:
(v) Unexplained serious iniurv or death of a sibling of the child:
(vi) Whether reasonable efforts bv appropriate public or private child caring-agencies have been made to rehabilitate the family:
(vii) The reasonable preference of the child, if the court deems the child of sufficient capacity to express a preference:
(ii) (viii) That If the child has been removed from the custody of the parent by temporary order of the court for a period of six consecutive months and the court further finds that:
(A) The conditions which led to the removal still exist;
(B) There is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future; and
(C) The continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home;
(b) That the parent or parents have abandoned the child. It shall be prima facie evidence of abandonment that the parent or parents, although having legal custody of the child, have surrendered physical custody of the child, and for a period of six months following such surrender have not manifested to the child or to the person having the physical cus *1381 tody of the child a firm intention to resume physical custody or to make arrangements for the care of the child; or
(c) That after a period of trial, during which the child was left in his own home under protective supervision or probation, or during which the child was returned to live in his own home, the parent or parents substantially and continuously or repeatedly refused or failed to give the child proper parental care and protection.
By deleting the words, “but is not limited to,” the Legislature obviously intended that the criteria enumerated in the subpara-graphs under paragraph (a) should guide the determination of what is in the child’s best interest. Thus, the statute now requires that an adjudication of termination be made on the basis of the eight standards enumerated under paragraph (a), or under the provisions of paragraph (b) or (c), neither of which is in issue here. The term “child’s best interest” appears only in paragraph (a); but the content of that term is found in, and defined by, the standards found in the subparagraphs of that paragraph.
As I read the statute, six of the eight subparagraphs under paragraph (a) require fault, unfitness, or injurious conduct toward the child on the part of the parent. The other two, the preference of the child and the efforts made to rehabilitate the family, were clearly intended to be factors which could be considered along with one or more of the fault factors. Neither of those two factors could reasonably be the basis for a termination; on the contrary, they presuppose the existence of one or more of the “fault” factors.
Because the term “child’s best interest” is confined to, and dependent upon, the specific standards enumerated, it is inaccurate, in my view, for the Court to state that “[t]he 1981 amendment did not alter the governing standard of the subsection — that the child’s best interest is the standard in the termination of parental rights — but merely added seven circumstances to be considered by the court in determining the child’s best interest.” For the same reason, I think it inaccurate to state that “on the question of the constitutionality of the best interest standard, the 1980 and 1981 amendments stand on equal footing.” In all events, if there is doubt as to the constitutionality of the 1981 Act, we are constrained to construe it to avoid constitutional pitfalls. In re Boyer, Utah, 636 P.2d 1085 (1981).
This Court has always been of the view that family units are the indispensable building blocks of civilized society and that parents have the inherent right to rear their children and be protected from improper state intervention. Only when the well-being of a child is threatened may the state interpose itself between parent and child. The state may never do so to promote some orthodoxy of thought. But once the welfare of the child is threatened, it is the child’s welfare, not the interest of the parents, which predominates. This fundamental principle is adequately protected by the 1981 Act.
Even in cases under the 1965 statute, which the Court now reinstates, and earlier statutes, this Court has repeatedly stated that the welfare of the child in termination proceedings is paramount to the rights of the parents. In re R_ J_, Utah, 589 P.2d 244 (1978); In re A., 30 Utah 2d 131 , 514 P.2d 797 (1973); State v. Lance, 23 Utah 2d 407 , 464 P.2d 395 (1970); In re Jennings, 20 Utah 2d 50 , 432 P.2d 879 (1967); State v. Dade, 14 Utah 2d 47 , 376 P.2d 948 (1962); In re Adoption of D, 122 Utah 525 , 252 P.2d 223 (1953); In re Olson, 111 Utah 365 , 180 P.2d 210 (1947); Walton v. Coffman, 110 Utah 1 , 169 P.2d 97 (1946). In In re Jennings, 20 Utah 2d at 52 , 432 P.2d at 880 (1967), this Court observed that the welfare of children “goes beyond the natural right and authority of the parent to the child’s custody.” In State v. Dade, 14 Utah 2d at 49-50 , 376 P.2d at 948-949 (1962), this Court stated:
Quite beyond and more important than the rights and privileges of the parents is *1382 the welfare of these children and their prospects for becoming well-adjusted, self-sustaining individuals. This is the consideration of paramount importance.
What our cases prior to 1980 add up to is that parental rights are dependent upon the performance of the duties of parents toward their children. Children do have a legal, moral, and even a biological claim to the performance of those duties by their parents. Thus, the correlative of parental rights is parental duties. When parents fail to, or are incapable of, performing their parental obligations, the child’s welfare must prevail over the right of the parent. Typically, the law affords a very wide latitude to parents in the rearing of children. But there are limits to that latitude. Since children are powerless and have no self-protection, the state must intervene when parents default in their basic parental duties and therefore forfeit their rights.
I readily concede that there appear to be difficulties with the 1981 statute. For example, one of the eight stated criteria is: “[unexplained serious injury or death of a sibling of the child.” That provision was apparently designed to reach serious child abuse, and to that extent it focuses on a proper consideration. But the language goes too far. Injury or death may be entirely unrelated to parental fault or neglect. Furthermore, as noted, the “reasonable preference of the child” cannot serve as an independent basis for severence of parental ties, although in some cases it may be relevant. Some of the other provisions, when applied, may also raise constitutional issues, but that is no basis for declaring the whole act unconstitutional. In any event, if there be fault with the 1981 Act, the appropriate procedure is to construe it so as to avoid unconstitutionality, if possible, In re Boyer, Utah, 636 P.2d 1085 (1981), and, if not, to declare that particular provision unconstitutional, but not the whole act.
It should also be noted that the 1981 Act contemplates requiring some kind of attempted rehabilitation under subparagraph (vi) before severing parental rights as a way of avoiding the harsh and irrevocable alternative of termination. That is now null and void because of today’s ruling.
I think the case should have been remanded to the district court for resolution of the petition under the 1981 Act.