In Re the Welfare of Sumey

*766 Brachtenbach, J.

(dissenting) — The majority sanctions a serious intrusion into the fundamental, constitutionally protected, parent-child relationship. In so doing, the majority approves a statute which is fatally defective because it lacks sufficient criteria to justify such trammeling of parental rights. If the record in this case justifies removal of a child from the family home, it means the Department of Social and Health Services and a recalcitrant juvenile can cause a child to be taken from the home of fit and proper parents whose only "fault" was to try to impose reasonable behavioral standards upon their minor child.

The nature of the constitutionally protected parent-child relationship has been clearly articulated by the United States Supreme Court, this court and other courts. In Stanley v. Illinois, 405 U.S. 645, 651 , 31 L. Ed. 2d 551 , 92 S. Ct. 1208 (1972), the court stated:

The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." Kovacs v. Cooper, 336 U. S. 77, 95 [ 93 L. Ed. 513 , 69 S. Ct. 448 ] (1949) (Frankfurter, J., concurring).

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U. S. 390, 399 [ 67 L. Ed. 1042 , 43 S. Ct. 625 ] (1923), "basic civil rights of man," Skinner v. Oklahoma [ex rel. Williamson], 316 U. S. 535, 541 [ 86 L. Ed. 1655 , 62 S. Ct. 1110 ] (1942), and "[rjights far more precious . . . than property rights," May v. Anderson, 345 U. S. 528, 533 [ 97 L. Ed. 1221 , 73 S. Ct. 840 ] (1953). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U. S. 158, 166 [ 88 L. Ed. 645 , 64 S. *767 Ct. 438 ] (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399 , the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541 , and the Ninth Amendment, Griswold v. Connecticut, 381 U. S. 479, 496 [ 14 L. Ed. 2d 510 , 85 S. Ct. 1678 ] (1965) (Goldberg, J., concurring).

(Italics mine.)

The family entity is the core element upon which modern civilization is founded. Traditionally, the integrity of the family unit has been zealously guarded by the courts. The safeguarding of familial bonds is an innate concomitant of the protective status accorded the family as a societal institution.

(Citations omitted.) In re Luscier, 84 Wn.2d 135, 136 , 524 P.2d 906 (1974). In re Myricks, 85 Wn.2d 252 , 533 P.2d 841 (1975), confirmed that the fundamental right of parents to custody necessitates strict compliance with due process requirements even in a temporary deprivation hearing.

In ruling upon the right of an indigent parent to assistance of counsel when the State attempts to declare a child a temporary ward of the court, the Michigan Supreme Court observed:

The interest of parent and child in their mutual support and society are of basic importance in our society and their relationship occupies a basic position in this society's hierarchy of values. Clearly any legal adjustment of their mutual rights and obligations affects a fundamental human relationship.

Reist v. Bay Circuit Judge, 396 Mich. 326, 341 , 241 N.W.2d 55 (1976).

Because the right to raise one's children is fundamental, any proceeding by the State to deprive a person of that right must take place under the aegis of the equal protection and due process clauses of the Fourteenth Amendment.

Pima County v. Howard, 112 Ariz. 170 , 171, 540 P.2d 642 (1975).

*768 Where fundamental rights are involved, state interference may be justified only by a compelling state interest and such interference must stem from legislative enactments narrowly drawn to express only the legitimate state interest involved. Roe v. Wade, 410 U.S. 113, 155 , 35 L. Ed. 2d 147 , 93 S. Ct. 705 (1973).

With this background, let us examine the statute and facts applicable in this case. The statute permits the juvenile, acting unilaterally, to petition for alternative residential placement. Former RCW 13.32.020. The essential finding necessary for alternative residential placement is that the family is in "conflict". Absolutely no definition, standard, nor guideline is provided to define "conflict". Apparently a child can create the conflict by refusing to obey reasonable parental directions and be moved to an alternative residential placement more to his or her liking.

What criteria must be satisfied before the juvenile court is empowered to deprive the parents of the physical custody of their child? What narrowly drawn standard, expressing a compelling state interest, allows the court to sever, in 6-month increments, the parents' fundamental right to the companionship, supervision, and control of their child?

The court need only find, by a preponderance of the evidence, that the reasons for the child's request for alternative placement are not capricious and that there is a conflict between the parent and the child that cannot be remedied by counseling, crisis intervention, or continued placement in the parental home. RCW 13.32.040.

If "capricious" is used in a popular sense, it denotes: "Marked or guided by caprice: given to changes of interest or attitude according to whims or passing fancies: not guided by steady judgment, intent, or purpose ..." Webster's Third New International Dictionary (1963). "Capricious" has been legally defined in various ways: e.g., apt to change suddenly, freakish, whimsical, humorous (United States v. Carmack, 329 U.S. 230 , 244 n.14, 91 L. Ed. 209 , 67 S. Ct. 252 (1946)); or freakish, whimsical, fickle, changeable, unsteady, and arbitrary. (Webb v. Dameron, *769 219 S.W.2d 581 (Tex. Civ. App. 1949)). Accord, Bundo v. Walled Lake, 395 Mich. 679 , 238 N.W.2d 154 (1976). Cf. Hayes v. Yount, 87 Wn.2d 280, 286, 552 P.2d 1038 (1976) ("arbitrary and capricious" has acquired a special meaning in administrative law, a meaning which is not applicable here). Noncapriciousness is an imprecise criterion too easily satisfied, and therefore it cannot be the standard by which substantial interference with cherished, fundamental, parental rights zealously guarded by the constitution is justified. This intrusion into parental rights is exacerbated by the light evidentiary burden which must be met to establish a lack of capriciousness (preponderance of the evidence).

If the court finds that the noncapriciousness standard is satisfied, it need then only determine that an undefined "conflict" which cannot be remedied by certain actions is present. Upon what facts did the court find a "conflict" in this case? The juvenile signed a form petition which alleged in material part:

That said child is in conflict with his/her parents as defined in RCW 13.32 [where it is not defined] as follows: . . . that said child refuses to endure the physical and verbal fighting and friction within the home and refuses to return; that counseling has been utilized . . .; that said child would like to live with [a named family] or in an alternative foster home.

Next: "Said conflict cannot be remedied by counseling, crisis intervention or continued placement in the parental home."

Petitioning juvenile was asked at the court hearing the following:

Q. Could you please tell us why you believe there is a conflict in that home?

A. I just feel that there's a communication gap there . . . That is the sum and substance of the petitioner's testimony upon which she was taken from her parents' custody over their objections.

What standards of conduct had these parents laid down which led to this "lack of communication"? They asked *770 their 15-year-old daughter not use drugs, or associate with those who had furnished drugs, that she not use alcohol, that she not be sexually active, and that she be in at a reasonable hour. Because of the daughter's unwillingness to follow these obviously reasonable standards, the parents are summarily deprived of custody and the best opportunity to resolve these problems within the family.

There was no claim or proof of unfitness or neglect by the parents. There was no claim or proof of any imminent threat of harm or danger to this 15-year-old. The only manifestation of any potential harm to the child was her threat to run away. She had done so once in the past and occasionally stayed overnight with friends without permission.

Based upon this skimpy petition and proof, the parents were deprived of custody for a minimum of 6 months (if the "conflict" was not resolved earlier), and possibly for additional periods of 6 months thereafter, following review by the court. RCW 13.32.050.

The court's justification for this extensive deprivation of fundamental parental rights consisted merely of conclusory findings of fact which met the unconstitutionally vague and inadequate standards of the statute:

That the conflict cannot be remedied by counseling, crisis intervention or continued placement in the home.

Finding of fact No. 6.

That the evidence establishes by a preponderance that the reasons for the request of alternative residential placement are not caprious [sic].

Finding of fact No. 7.

That the parents of the minor child are willing to provide for her in their home.

Finding of fact No. 8.

That the parents of the minor child have continuously sought reconcilation [sic] with and the return of the child and they have not abused or neglected the child.

Finding of fact No. 9.

*771 It is interesting to note that in the 1979 amendments the legislature recognized the very points raised in this dissent. Laws of 1979, ch. 155, § 15 (codified as RCW 13.32A.010). It specifically declared that the family unit should remain intact in the absence of compelling evidence to the contrary. It provided:

The legislature finds that within any group of people there exists a need for guidelines for acceptable behavior and that, presumptively, experience and maturity are better qualifications for establishing guidelines beneficial to and protective of individual members and the group as a whole than are youth and inexperience. The legislature further finds that it is the right and responsibility of adults to establish laws for the benefit and protection of the society; and that, in the same manner, the right and responsibility for establishing reasonable guidelines for the family unit belongs to the adults within that unit. The legislature reaffirms its position stated in RCW 13.34.020 that the family unit is the fundamental resource of American life which should be nurtured and that it should remain intact in the absence of compelling evidence to the contrary.

RCW 13.32A.010.

The majority characterizes the alternative residential placement as a minor infringement by the State upon parental rights. I disagree. The child may be removed from the parents' home for an initial period of 6 months. After review, the placement may be extended for additional periods of 6 months each. The balance of a child's minority might well be spent in alternative placement solely because the child refuses to try to cope with reasonable parental controls. Deprivation of the physical presence of the child and therefore deprivation of the in-home opportunity to guide and influence the child during these critical years, is a serious intrusion upon the parents' fundamental right to raise and nurture their offspring.

I would hold that the statute, on its face and as applied in this case, violates the the due process rights of the parents. On its face, the statute permits a serious infringement of a fundamental and scrupulously guarded constitutional *772 right without providing adequate safeguards to justify such infringement. As applied, the facts and the findings in this case do not demonstrate a compelling state interest being exercised pursuant to a narrowly drawn legislative enactment.

Rosellini and Hicks, JJ., concur with Brachtenbach, J.