Jurisdictional Statement — J. K. S. v. Colorado

Beas | RECEIVED

OCT 181979

69-5507 OFFICE OF THE CLERK

SUPREME COURT, U.S.

Wook sy

OU"

IN THE

SUPREME COURT OF TEE UNITED STATES

October Term, 1979

NO. MISC.

THE PEOPLE OF THE STATE OF COLORADO,

DREEETONER-APPELLEE,

IN THE INTEREST OF D. A. K.

MINOR CHILD

-AMB=GONGERNENG J. K. S.,

RESUERBENT - APPELLANT

ON APPEAL FROM THE

SUPREME COURT OF THE

STATE: OF COLORADO

JURISDICTIONAL STATEMENT

James A. Burke

Lenny L. Croce

William P. Bethke

Attorneys for Respondent-Appellant

Rural Legal Services of Tennessee, Inc.

P.O. Box 3358

Oak Ridge, Tennessee 37830

John Marshall

Jefferson County Legal Aid

1621 Arapehoe

Golden, Colorado 80401

TABLE OF CONTENTS

TABLE OF AUTHORITIES’. . . « «© 6 © wo 6 0 ‘cs

JURISDICTIONAL STATEMENT ........

OPINIONS BELOW “2s Soy tae ae ae ee I ls ee es

JURISDICTION ene me eS

CONSTITUTIONAL AND STATUTORY PROVISIONS

- INVOLVED. ‘ ‘

QUESTION PRESENTED .... .

STATEMENT OF THE CASE

THE QUESTION PRESENTED IS SUBSTANTIAL

A. A parent's right to the companionship,

Care, custody and management of her

child is a fundamental right protected

by the due process clause of the

ourteenth Amendment of the United

States Constitution. alee a

B. The constitutional doctrines of

Vagueness and overbreadth apply to

neglect and dependency statutes which

affect and may deprive parents of their

Fundamental right to the companionship

care, custody and management of ry

children . ; Sik wes Soa ays

C. The increasingly intrusive and extensive

regulation of parental conduct by the

States without legislatively fixed

Standards should be s subjected to

constitutional restraint ;

D. The Colorado Statutes for neglected

and dependent children are constitutionally

deficient due to unclear and ambiguous

Ianguage and due to the absence of an

Clear ascertainable standards with which

to measure an ¥ parental conduct or

practice .

CONCLUSION .

APPENDIX A .

APPENDIX B .

PE Gees ag ae Sa Tee

PAGE:

ao f& F W

10

14

16

18

Al

Bl

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ee

Bivwee y,

MOP ag 7 ee |

TABLE OF AUTHORITIES

TABLE OF CASES

A.B. Small Co. v. American Sugar Ref.

267 U.S. 233 (apaee ss ‘ : ae

Allen v. Huffman, 307 P.2d 802 (Colo. 1957).

Alsager v. Ber aS ots of Polk count

owa, 5)

aff'd 545 F. 2d 1137 (8th Cir 1976)

Amalgamated Food Emplo ees Union Local

B50. et al. v. v= Logan Valley Plaza,

nc., et al, U.

Aptheker v. Sec. of Stat

(9a) a".

Bouie v. Columbia, 378 U.S. 347 (1964)

Central R.R. Company of Penn. v. Comm. of

Penn., 370 U.S> 607 (1962) .

Cleveland Board of Education v. LaFle

414 U.S. 632 (1974) a —

Connally v. General Constructio C

U.S. 385 (1926)... ia ate.» 269

Devlin v. Huffman, 339 P.2d 1008 (Colo. 1959).

Edwards v. California, 314 U.S. 160 (1941)

Giaccio v. Penn., 382 U.S. 399 (1965).

Gibson v. Florida Le islative Investigation

Commission, 372 im 539 (1963)...

Gooding v. Wilson, 405 U.S. 518 (1972)

Grayned v. City of Rockford, — U.

aus (is7i).. ‘ =

Griswold v. Connecticut, 381 U

ae. arenes

Harmsen v. Fizzell, 351 Mich. 86 (1957).

In_ re Cooper, 248 A. 2d 384 (Md. App. 1968).

In re Gault, 387 U.S. 1 (1967)

In the Interest of D.A.K., Supreme Court

of Colorado No. 28303, S56 P 2d 747

(1979) and P. 2a

an ‘

(July 16, 1575).

In re People in the Interest of K.S., 515

P. 2a 130 (Colo. App, 1972) roe en ae ee

PAGE:

17

13

16

9, 13

passim

15

TABLE OF CASES

Ceont “d.)

In re People in the Interest of R.K,, 505

~P, 2d 37 (Colo. App. 1972) . oor

In re Raya, 255 Cal. App. 2d 260, 63

Cal. Rep. 252 (1967) ... ;

In re Welfare of Karen, 159 N.W. 2d

402 (Minn. 1966) ‘ Sere A

In re Youn 270 N.Y.S. 2d 250

(Fam. Bt. 1 ee RNR .

Jordon v. DeGeorge, 341 U.S. 223 (1951).

Kennedy v. Mendoza- “Martinez, 372 U.S. 144

(1963) . ; . ‘

Levy v. Louisiana, 391 U.S. 68 (1968).

May v. Anderson, 345 U.S. 528 (1953)

Mercantile National Bank at Dallas v.

Langdeau, 371 U.S. 555 (1963) ....

Meyer v. Nebraska, 262 U.S. 390 (1923)

Moody v. Moody, 211 So. 2d 842 (Miss. 1968).

Moore v. City of East Cleveland, U.S.__,

-Ct. Foe ae a ee ee

N.A.A.C.P. v. Button, 371 U.S. 415 (1963).

Palko v. Connecticut, 302 U.S. 319 (1937).

Papachristou v. Jacksonville. 405 U.S. a

(1972) .

Robinson v. State of Florida, 378 U.S.

153 (1964) ; oe eee

Roe v. Conn, 417 F. Supp. 769 (M.D.

Se Pn aces te ck ee Oke es

Roe v. Wade, 410 U.S. 113 (1973)

Scull v. Virginia, 359 U.S. 344 (1959) .

Skinnér v. Oklahoma, 316 U.S. 535 (1942) .

Smith v. Organization of Foster Families

for E. and Keforn, U.S.

ed, 1977) ‘

Stanley v. Illinois, 405 U.S. 645 (1972) .

United States v. L. Cohen Grocery Co.,

Soo U<O. Ob Clvee). «ss ee

United States v. National Dairy Products,

MP reh. den.

U.S. 961 (1963) ‘

PAGE:

16

il hei Lito bate

ee ee a eee

TABLE OF CASES

(cont'd. )

Washburn v. Washburn, 49 Cal. ac 2d

Wisconsin v. Yoder, 406 U.S. 205 (1972)

Wright v. Georgia, 373 U.S. 284 (1963)

‘STATUTES INVOLVED

28 U.S.C, §1257(2)

a a |. re

Colorado Revised Statutes 1973

§§19-1-101 et seq and 19-1-103 et seq

§19-1-103(20)

§19-1-104(c)

§19-3-101(2)

§19-3-106 .

§19-3-111 .

Idaho Code §16-1625 (1971)

MISCELLANEOUS

Amsterdam, "The Void-for-Vagueness Doctrine

in the Supreme Court," 109 U. ca. L. Sey:

ee A ee cee

Comment, "Child Neglect - Due Process for

the Parent,"' 70 Colo. L. Rev. 479 (1968).

Goldstein, Freud and Solnit, Beyond the Best

Interest of the Child (1973). ;

Katz, When Parents Fail, Beacon Press (1971).

Kempe, Silverman, Droegemueller and Silver,

"The Battered Child Syndrome," 181

J. of Amer. Med. Assoc. 17

u y ¢ — . . . . . . .

¥

Mnookin, "Foster Care - In Whose Best

Interest," 43 Harv. Ed. Rev. 624

ee REPRE: Goes. ok ws ae ee

PAGE:

16

14

10

MISCELLANEOUS

(cont *d,)

PAGE;

National Juvenile Law Center, Law and

Tactics in Juvenile Cases, a 14

Newberger and Boume, "The Medicalization

Tan of Child Abuse,"

er. J. Orthopyschiatry 59

(Oct. 1978) - — 14

Sullivan, "Child Neglect: The Davkveueninte’

Aspects," 29 Ohio St. L. J. 92 (1968) .. 12

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’

a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979 |

NO. MISC.

THE PEOPLE OF THE STATE OF COLORADO,

PETITIONER-APPELLEE,

IN THE INTEREST OF D. A. K.

MINOR CHILD

AND CONCERNING J. K. S.,

RESPONDENT -APPELLANT

ON APPEAL FROM THE

SUPREME COURT OF THE

STATE OF COLORADO

JURISDICTIONAL STATEMENT

Pursuant to United States Supreme Court Rules

12(2) and 15, appellant submits this statement of the basis

for jurisdiction of the Supreme Court of the United States

on direct appeal from the ruling of the Colorado Supreme

Court, affirming the judgment of the District Court of

Jefferson County, State of Colorado, and the reasons for

exercise of such jurisdiction in this case.

OPINIONS BELOW

The opinions of the Supreme Court of the State of

Colorado affirming the judgment of the District Court of

Jefferson County, State of Colorado, are reported at

596 P.2d 747 and P.2d and attached as Appendix A.

JURISDICTION

This appeal is taken from the final judgment ina

proceeding to adjudicate a child dependent and neglected

under the Colorado Children's Code, Sections 19-1-101, et seq.,

and 19-3-101 et seq. Colorado Revised Statutes (C.R.S) 1973,

attached as Appendix B.

The decision of the Colorado Supreme Court was

rendered on June 4, 1979, and rehearing denied on July 16,

1979. Notice of appeal was filed in the District Court of

Jefferson County, State of Colorado, (court possessed of.

the record) and served upon the Clerk of the Supreme Court

of Colorado on October 10, 1979.

The Supreme Court of the United States has jurisdiction

to review the ruling of the Colorado Supreme Court by direct

appeal pursuant to 28 U.S.C. § 1257(2) in that appelj-ant

asserts that a state statute is repugnant to the Constitution

of the United States and the Colorado Supreme Court upheld

that statute's validity. See, Levy v. Louisiana, 391 U.S.

68 (1968); Mercantile National Bank at Dallas v. Langdeau,

371 U.S.555 (1963); Robémson v. State of Florida, 378 U.S.

153 (1964); Amalgamated Food Fmnloyees Union Local 590, et al.

v. Logan Valley Plaza, Inc., et al., 391 U.S. 308 (1967);

Central R.R. Company of Penn. v. Comm. of Penn., 370 U.S.

607 (1962).

In the event the Court does not consider appeal the

proper mode of review appellant requests this jurisdictional

statement be acted upon as a petition for certiorari pursuant

to 28 U.S.C. § 2103.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

. This case involves a challenge, under the Due Process

Clause of the Fourteenth Amendment to the Constitution of

the United States, to the validity of Section 19-1-103(20)

C.R.S. 1973, which states:

“Neglected or dependent child" means a child:

(a) Whose parent, guardian, or legal custodian has

abandoned him or has subjected him to mistreatment or ~

abuse or whose parent, guardian, or legal custodian

has suffered or allowed another to mistreat or abuse

the child without taking lawful means to stop such

mistreatment or abuse and prevent it from recurring;

(b) Who lacks proper parental care through the actions

or omissions of the parent, guardian, or legal custodian;

(c) Whose environment is injurious to his welfare;

(d) Whose parent, guardian, or legal custodian fails

or refuses to provide proper or necessary subsistence,

education, medical care, or any other care necessary

for his health, guidance, or well-being; or

(e) Who is homeless, without proper care, or not

domiciled with his parent, guardian, or legal custodian

through no fault of his parent, guardian, or legal

custodian.

No other definition of dependency or neglect exists

in Colorado statutes or case law, nor was any more definite

standard provided by either court in this case.

Families found to have dependent or neglected children

are subject to encroachment by the state into familial autonomy

and integrity which, at its extreme, results in the dis-

solution of the family by permanently removing the child

from the home and legally severing parental rights. Sections

19-1-104(c), 19-3-101(2), 19-3-106 and 19-3-111, C.R.S. 1973.

QUESTION PRESENTED

Whether Colorado's dependency and neglect definitional

statute, Section 19-1-103(20) C.R.S. 1973, offends the

Due Process Clause of the Fourteenth Amendment to the

United States Constitution in that it is so vague that it

fails to provide adequate notice of its meaning and the

scope of its application andso overbroad that it threatens

to inhibit the exercise of fundamental rights of parents

and to allow undue interference by the state into the

integrity of the family?

caletibeding tee ae a,

STATEMENT OF THE CASE : i

The proceedings from which this appeal arises began

with a neglect and dependency petition brought "in the

yong etm

interest of D.A.K., minor child." The petition was

brought in the District Court of Jefferson County, State

of Colorado, by the Jefferson County Department of Social

Services

eT ee ee oe ee ue

and named J.K.S., the child's mother, as respondent.

The petition was filed on February 27, 1975 and alleged

that “the parent . . has subjected the child herein to

mistreatment or abuse" . . and that the child "lacks

proper parental care through the actions or omissions of

the parent" . . and that the “parent . . fails or

refuses to provide proper or necessary subsistence, educa-

tion, medical care or any other care necessary for his

health, guidance or well-being." These vague allegations

were directly quoted from Section 19-1-103(20) C.R.S. 1973.

By preliminary motions, the various grounds for neglect

and dependency raised by petitioner were reduced to those

consisting solely of "emotional abuse":

In this case no physical abuse of the child

was alleged or proved. Rather the petition and bill

of particulars set forth specific allegations of

emotional abuse... .

In ‘he Interest of D.A.K., Supreme Court of Colorado,

No. 28363 (June 4, 1979), Appendix A., at A-5.

Respondent moved the trial court to dismiss the

petition on grounds that Section 19-1-103(20) C.R.S.

1973 was vague and overbroad on its face and as applied

in violation of the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States. The

court denied the motion to dismiss, specifically ruling

that Section 19-1-103(20) C.R.S. 1973 was constitutional.

At trial respondent J.K.S. requested and proposed

an instruction defining emotional abuse with particularity,

See, Proposed Instruction attached as Appendix C. The

trial court denied the proposed instruction, perhaps because

no definition of emotional abuse is provided by statute.

Indeed, the Colorado neglect and dependency statute, Sections

19-1-101 et seq. and 19-3-101 et seq., C.R.S. 1973,

nowhere mentions emotional abuse.

After trial, on October 28, 1976, the jury found

D.A.K. to be a dependent and neglected child. Following

a dispositional hearing on November 8 and 9, 1977, the court

issued a Dispositional Order, on January 3, 1978, terminating

appellant's parental rights. Appellant moved for a new

trial, raising the statute's unconstitutional vagueness and

overbreadth as grounds.

1978.

This motion was denied on April 6,

Appellant filed Notice of Appeal to the Colorado

Court of Appeals on May 2, 1978. Because the constitution-

ality of a state statute was questioned, the case was trans-

ferred to the Colorado Supreme Court on September 11, 1978.

The Supreme Court accepted jurisdiction and oral arguments

were heard on December 12, 1978. On June 4, 1979, the

Supreme Court of the State of Colorado issued its ruling

affirming the judgment of the District Court. The court

specifically ruled that Section 19-1-103(20) C.R.S. 1973

was not unconstitutionally vague or overbroad.

[R]espondent next argues that Section 19-1-103(20) (a)

-_+ « is so vague and uncertain that it fails to meet

the constitutional requirements for statutory definiteness

_ + «+ +» We do not agree .... While a nowledging

that the possible consequences of adjud#tating a child

to be neglected or dependent can be e, we hold

that the statute gives the parents sufficient notice

of the kinds.of conduct which could result in their

losing parental rights.

In the Interest of D.A.K., Supreme Court of Colorado, No.

28363 (June 4, 1979), Appendix A, at A-5.

Appellant petitioned for rehearing on July 2, 1979,

specifically raising the issues of vagueness and overbreadth.

The Supreme Court of Colorado denied the Petition for Re-

hearing on July 16, 1979, without addressing the issues of

vagueness and overbreadth, and again upholding the statute

See, In the Interest of D.A.K., Supreme Court of Colorado, No.

28363 (July 16, 1979), Appendix A., at A-16.

THE QUESTION PRESENTED IS SUBSTANTIAL

As construed by Colorado's highest court, the

Colorado neglect and dependency statutes, and specifically

Section 19-1-103(20) C.R.S. 1973, allow a court to remove

a child from its parent or guardian and terminate the

parent-child relationship based on emotional abuse. The

appellant mother in this case recognizes that emotional

abuse can be as damaging to a child as physical abuse

and acknowledges the state's interest in protecting child-

ren from such abuse. However, emotional abuse by its

sents

nature is a complex subject which demands inquiry into a

family's most intimate beliefs, mores, standards and culture.

Only the most specific statutes and standards should govern

when and what state interference is appropriate.

Acceptable statutes have been drafted in other states.

However, Colorado's statute does not meet applicable con-

stitutional standards and, as the result in this case shows,

the protection of fundamental rights is delegated to wel-

fare workers, judges and juries for resolution on a standard-

less, ad hoc basis. The failure of the statutory language

to include or define emotional abuse as grounds for find-

ing a child neglected and dependent and, ultimately, to

terminate the parent-child relationship violates the Due

Process Clause of the Fourteenth Amendment to the United

States Constitution because of vagueness and overbreadth.

Caretakers of children across the United States

are subject to the sanctions available under dependency

and neglect statutes. More particularly, the mother here,

J.K.S., had her parental rights terminated by the State

of Colorado because her child, D.A.K., was found to be

dependent and neglected as a ~esult of “emotional abuse"

from his mother, even though, at trial, no resulting harm

was shown and none was required o be found under the

statute or by the courts.

The problems of abused children have become a matter

of intense public interest and debate in recent years.

Child abuse is now recognized to be more widespread than

previously thought, and to cut across lines of race,

economic status and culture. The “battered child syndrome"

is now believed to be the cause of many serious problems

among adults, including criminal behavior, emetion21 ill-

ness and abuse of the victim's own children.

As a result of this fast-growing interest (often

resulting from public outcry following notorious local

cases of physical abuse), welfare agencies, police depart-

ments and courts have understandably become much more

willing to remove children from their families. State

authorities now inquire into and interfere with the parent-

child relationship to an unprecedented degree.

* Much of this attention is long overdue, but the

potential dangers are obvious. Now, as state authorities

expand their interest into the area of emotional abuse,

fundamental constitutionally protected aspects of the

parent-child relationship are threatened. Without the

guidance of clear statutory standards, overreaction in.

the face of intense public pressure has begun to stimulate

a degree of interference with family life that could cause

more serious, lasting harm to children than that sought to

be avoided. ;

The mother in this case, who has now been without

her child for over three years due to her "conduct" constitu-

ting “emotional abuse" absent a clear showing of resulting

harm to her child, asks this Court to examine the statutory

standards governing state interference in response to such

behavior.

A. A parent's right to the companionship, care,

custody and management of her child is a fundamental right

—_—_—————— i

protected by the due process clause of the Fourteenth

Amendment of the United States Constitution.

Deeply rooted in the traditions and conscience

of the American people are those liberties that are so

important as to be ranked as fundamental and deserving

of protection through the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

Palko v. Connecticut, 302 U.S. 319, 325 (1937). See also,

Griswold v. Connecticut, 381 U.S. 479, 481-485 (1965) ;

Cleveland Board of Education v. LaFleur, 414 U.S. 632,

639-640 (1974). A parent's companionship and management of

children is such a liberty.

This Court has frequently emphasized the importance

of the parent's right to the companionship, care, custody

and management of their children. This right has been

deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399 (1923);

and recognized as 'bne of the basic civil rights of man,"

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); and "far

more precious . . than property rights," May v. Anderson,

345 U.S. 528, 533 (1953) .2/ This right cannot be unreason-

ably or impermissibly interfered with by the State.

1/courts throughout the country have recognized

the importance of the family relationship: "There is

no satisfactory substitute for a mother's love . . rare

Washburn v. Washburn, 49 Cal.App.2d 581,588, 12 P.2d 96,

100, (1942); “A dominant parental right to custody of

the child pervades our law," In Re Raya, 255 Cal.App.2d

260, 63 Cal.Rep. 252 (1967); “the presumption in all

cases is that the child's parents will love it most and

care for it best," Moody v. Moody, 211 So. 2d 842 (Miss.

1968); "We are not unmindful of the fact that a father

° . should be given eee aie assistance at every point

in his effort to re-establish a proper home for the

children for whose care he has the right and duty to

provide," Harmsen v. Fizzell, 351 Mich. 86, 110 (1957). \

See, Allen v. Huffman, .2d 802 (Colo.1957);

Devlin v. Huffman, 339 P.2d 1008 (Colo. 1959).

In Stanley v. Illinois, 405 U.S. 645, 651 (1972),

the Court stated:

It is plain that the interest of a parent in

the companionship, care, custody and manage-

ment of his or her children come[s] to this

court with a momentum of respect lacking when

appeal is made to liberties which derive merely

from shifting economic arrangements. (Citation

omitted).

The Colorado Supreme Court explicitly acknowledged

the fundamental protected right of parents by its own

opinion in In the Interest of D.A.K.:

[T]he parent has much at stake in the outcome of

the proceeding. Once the child is adjudicated to be

neglected or dependent the court may take various

actions including entry of a decree terminating

the legal relationship of parent and child.

Section 19-3-111(2). Thus, although no criminal

sanction is involved, a serious and substantial

parental interest is at stake, which in many,

if not most, cases is as important to the parents

as their freedom.

In the Interest of D.A.K., Supreme Court of Colorado, No.

i

28363 (June 4, 1979), Appendix A, at A-.

Similarly, a child has a fundamental, substantial

interest in the weno of neglect and dependency proceed-

ing since “it is generally assumed that separation carries sub-

stantial risks for the child . ."" Mnookin, "Foster

Care -- In Whose Best Interests?", 43 Harv. Ed. Rev. 624

(Nov. 1973). See, Goldstein, Freud, and Solnit, Beyond

the Best Interests of the Child (1973).

Thus, for both the parents and the child, the rights

of familial companionship and parental custody and control

have been recognized a fundamental constitutionally pro-

tected interest.

B. The constitutional doctrines of vagueness

and overbreadth apply to neglect and dependency statutes

which affect and may deprive parents of their fundamental

right to the companionship, care, custody and management

of their children.

—— ==) le ee

The void-for-vagueness and overbreadth doctrines

apply to civil statutes. In A. B. Small Co. v. American

Sugar Ref. Co., 267 U.S. 233 (1925), this Court held:

The ground or principle of the [vagueness] deci-

ree was nc Algy . to be applicable only to crim-

nal prosecutions. t was not th ir

that was held invalid, but the ow Be ogee “iyi

obedience to a rule or standard which was so

vague and indefinite as really to be no rule or

standard at all.

Supra, 239. See also, Jordan v. DeGeorge, 341 U.S. 223,

231 (1951).

Moreover, the strict standards of statutory de-

finiteness and scope required of penal statutes and

statutes potentially infringing on constitutional rights

should apply to dependency and neglect statutes.

When considering the constitutional rights of parties

in juvenile proceevings, substance cannot be disregarded

"because of the feeble enticement of the ‘civil’ label

of convenience attached to juvenile proceedings." In Re

Gault, 387 U.S. 1, 50 (1967). Several fundamental aspects

of neglect cases indicate that the "civil" label attached

to neglect statutes conceals the seriousness of neglect

adjudications. .

In a neglect proceeding the state asserts its weight

and immense resources on behalf of the public against the

parent. Although in theory the state acts to protect

the child, the parent is summoned to answer the full

force of the state's contention that the parent has engaged

in some misconduct. As such, the state's function in a

neglect case approaches more closely the state's traditional

role in criminal rather than civil proceedings.

A neglect adjudication imposes harsh consequences

upon both the parent and child.

A neglect or dependency proceeding is not

intended to punish the parent for conduct

involving the child. However, we recognize

that the parent has much at stake in the outcome

of the proceeding. Once the child is adjudicated

to be neglected or dependent the court may take

various actions including entry of a decree

terminating the legal relationship of parent and

child. Section 19-3-111(2). Thus, although no

criminal sanction is involved, a serious and sub-

stantial parental interest is at stake, which

in many, if not most, cases is as important to

the parents as their freedom. :

In the Interest of D.A.K., Supreme Court of Colorado,

No. 28363 (June 4, 1979), Appendix A, at A-8.

Parental conduct for which a child may be declared

neglected may also constitute grounds for criminal

prosecution against the parent for contributing to the

neglect or delinquency of a child or for child abuse.

In essence, parents in neglect cases are alleged to have

engaged in conduct which may constitute a crime. Kennedy

v. Mendoza-Martinez, 372 U.S. 144 (1963). ;

Although courts ritually recite their intentions

to act in the child's best interest, neglect adjudications

typically reflect court disapproval of parental conduct

rather than any consideration of whether the child will

be endangered by allowing him to remain in parental custody.

Sullivan, "Child Neglect: The Environmental Aspects,"

29 Ohio St. L. J. 92 (1968). This becomes poignantly

clear in the instant case where the Colorado Supreme

Court narrowly focuses upon the conduct of the respondent

mother, J.K.S., in dismissing the constitutional challenge

for vagueness:

Fundamental fairness does not require

a statute to enumerate in all-encompassing

examples, or exactly described acts, precisely

how poorly a parent can treat a child before

risking loss of parental rights. [Citation

omitted] Our legal system occasionally requires

courts to draw lines. In any event, the conduct

chicwe.

fof] J.K.S. here involved would clearly qualify

as emotional abuse even if such parameters

more accurately defining emotional abuse were

required. [Emphasis added]

In the Interest of D.A.K., Supreme Court of Colorado, No.

28363 (June 4, 1979), Appendix A, at A-8.

"Taken together, the aforementioned features of

neglect proceedings present a picture hardly distinguish-

able.from criminal prosecution." Comment, "Child Neglect-

Due Process for the Parent," 70 Col. L. Rev. 479 (1970).

Furthermore, constitutional restrictions on statutory

vagueness and overbreadth are applied strictly when

fundamental rights, especially First Amendment rights,

are implicated. N.A.A.C.P. v. Button, 371 U.S. 415 (1963);

Gooding v. Wilson, 405 U.S. 518 (1972). This strict

application of the vagueness and overbreadth doctrines

extends to "penumbral" First Amendment rights. Edwards v.

California, 314 U.S. 160 (1941) (right to travel);

Aptheker v. Secretary of State, 378 U.S. 500 (1964) (right

to travel); Gibson v. Florida Legislative Investigation

Committee, 372 U.S. 539 (1963) (right to free and private

association). The right to private familial association

is such a fundamental "penumbral" First Amendment right.

Griswold v. Connecticut, 381 U.S. 479 (1965); Wisconsin v.

Yoder, 406 U.S. 205 (1972); Roe v. Wade, 410 U.S. 113 (1973);

Moore v. City of East Cleveland, _U.S.___, 97 S.Ct. 1932

For these reasons, neglect statutes should be tested

by the same standards of definiteness required of criminal

statutes and statutes implicating fundamental rights. Only

then will parents be afforded the fundamental fairness

which due process guarantees them.

C. The increasingly intrusive and extensive

regulation of parental conduct by the states without

legislatively fixed stai“irds should be subjected to

constitutional restraint.

With the advent of the medical diagnosis of

"battered-child syndrome" in 1962, the public has

become increasingly concerned to protect children

from abusive and neglectful parents. 2/ See, Newberger

and Boume, "The Medicalization and Legalization of

Child Abuse," 48(4) Amer. J. Orthopychiatry, 593-607

(Oct. 1978). Responding to this public interest,

legislatures enacted statutes to protect dependent and

neglected children and defined "abuse" in terms of

"mistreatment" or "parental cruelty." See, Law and

Tactics in Juvenile Cases, 2nd Ed., National Juvenile

Law Center, §§ 16.6 and 16.8.

Early court decisions concerning child abuse

have focused upon cause and effect. The cause was some

act or omission by the parent and the effect was physical

harm to the child resulting in sudden death or “where

the degree and type of injury is at variance with the

history given regarding the occurrence of the trauma."

Kempe, Silverman, Droegemueller, and Silver, “The

Battered-Child Syndrome", 181 J. of Amer. Med. Assoc.

17 (July 7, 1962). See, In re Young, 270 N.Y.S. 2d

250 (Fam. Ct. 1966); In re People in the Interest of hs

2/Kempe, Silverman, Steele, Droegemueller, and Silver,

"The Battered-Child Syndrome," 181 J. of Amer. Med. Assoc.

17 - 24 (Juiy 7, 1962). Although courts, under the doctrine

of parens patriae, had long imposed sanctions upon parents

who had unreasonably physically abused their children, the

medical profession and other fields had not recognized the

phenomenon of child abuse as a disease or a clinical diag-

nosis. The work and study by Dr. Kempe and others resulted

in the identification of clinical manifestations of physi-

cally abused children described as the "battered-child

syndrome."' The recognition of physical child abuse by the

medical profession as a condition which could be diagnosed

has significantly heightened the public's awareness of the

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505 P.2d 37 (Colo.App. 1972); In re People in the

Interest of K.S., 515 P.2d 130 (Colo.App. 1973).

Courts and legislatures have more recently rea-

lized "that the emotional well-being of children is more

important than their physical health." Katz, When

Parents Fail (Beacon Press, 1971). Responding to the

relatively new concept of emotional maltreatment, states

began enacting or amending their children codes to

include actions detrimental to the mental health of a

child as ground for termination of parental rights.

Some states have carefully defined “emotional abuse".

See, e.g., Idaho Code § 16-1625 (1971) (condition of a

child who has been denied proper parental love, or ade-

quate affectionate parental association, and who behaves

unnaturally and unrealistically in relation to normal

situations, objects and other persons) .>/ {

In the absence of statutory guidance, however, court

actions based on emotional abuse have resulted in injustice.

The psychological neglect category has been used to ter-

minate parental rights in the situation where a child was

in the home with other illegitimate children, In te

Cooper, 248 A.2d 384 (Md.App. 1968); and where a mother

was writing bad checks, In re Welfare of Karen, 159 N.W.

2d 402 (Minn. 1968). In Roe v. Conn , 417 F.Supp. 769

(M.D.Ala. 1976), an Alabama juvenile court used the

justification of protecting a child's "health" -- pre-

sumably emotional health since no physical harm was shown --

to justify the removal of a white child from its mother

vacates they were living in a black neighborhood. The

district court in Roe v. Conn went on to declare the

3/ nccording to the National Center for Child Abuse

in Washington, D.C., more than 45 states refer to emotional

maltreatment, using different terms for this form of child

abuse or neglect.

Alabama statutes applied in that case unconstitutionally

vague.

Increasing recent awareness of child abuse has been

accompanied by violations of fundamental rights when the

standards for dependency and neglect are vague or of

sweeping application. | Such violations create a need for

delineating the constitutional requirements for valid

dependency and neglect statutes.

D. The Colorado Statutes for neglected and de-

pendent children are constitutionally deficient due to

unclear and ambiguous language and due to the absence

of any clear ascertainable standards with which to

measure any parental conduct or practice.

The Due Process Clause of the Fourteenth Amendment

requires statutes to meet three basic requirements of

definiteness and scope: (1) the statute's language

must be sufficiently specific so that a person of ordinary

intelligence need not guess at its meaning; (2) the

statute must contain standards by which it may be applied

in a non-discriminatory fashion; and (3) the statute must

not sweep so broadly that it proscribes or inhibits con-

stitutionally protected interests. Grayned v. City of

Rockford, 408 U.S. 104 (1971). See, Connally v. General

Construction Company, 269 U.S. 385 (1926); United States

v. L. Cohen Grocery, 255 U.S. 81 (1921).

If the statute fails to give a person of ordinary

intelligence fair notice of the illegality of his con-

templated act, it is unconstitutional. Wright v. Georgia,

373 U.S. 284 (1963); Bouie v. Columbia, 378 U.S. 347

(1964); Scull v. Virginia, 359 U.S. 344 (1959); United

States v. National Dairy Products, 372 U.S. 29 (1963)

reh. den., 372 U.S. 961 (1963).

Thus, in Giaccio v. Pennsylvania, 382 U.S. 399, 404

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(1965), the Court held:

It would be difficult if not impossible for a:

person to prépare a defense against such general

abstract charges as 'misconduct' or ‘reprehensible

misconduct’.

Similarly, in Alsager v. District Court of Polk

County, Iowa, 406 F.Supp. 10, 18 (S.D.Iowa 1975) aff'd.

545 F.2d 1137 (8th Cir. 1976) the court held an Iowa parental

rights termination statute unconstitutionally vague, stating

that:

The standards of ‘necessary parental care and

protection’, . . . and of '[parental] conduct

detrimental to the physical or mental health or

morals of the child’, . are susceptible to

multifarious interpretations which prevent the

ordinary person from knowing what is and is

not prohibited. An examination of these phrases

will not inform an ordinary person as to what

conduct is required or must be avoided in order

to prevent parental termination.

By the same reasoning, Section 19-1-103(20) C.R.S. 1973

as amended does not provide adequate warning of what ‘

conduct is proscribed or mandated.

The Colorado statute also fails to provide standards

to guide social workers, judges, and juries in determining

what conduct or condition is, or is not, dependency or

neglect. The vagueness of the Colorado neglect statute

thus permits social workers, courts and juries to make highly

subjective determinations on the appropriate application

of the statute to specific families. The great discretion

thus given administrative agencies and the judiciary fre-

quently results in, as this Court has recognized, "class

based intrusion[s] into the family life of the poor," because

of "a bias that . . the natural parents' poverty and

lifestyle [are] prejudicial to the best interests of the

child." Smith v. Organ. of Foster Families for E. and Reform,

U.S. , 97S.Ct. 2094, 2104-2105 (1977) (citations

omitted). See also, Papachristou v. Jacksonville, 405

U.S. 156 (1972); Amsterdam "The Void-for-Vagueness Doctrine

in the Supreme Court," 109 U.Pa. L. Rev. 67 (1960).

Finally, the Colorado dependency and neglect statute

infringes upon constitutionally protected conduct. The

scope of parental rights is nowhere exhaustively defined.

However, at a minimum, they include the right to the care,

custody, and control of the child, the right to discipline

the child, and the right to control the child's religious

and moral education. The manner and method of exercising

these parental rights and responsibilities varies from

"permissiveness" to "strict disciplinarianism."

In this case the Colorado statute resulted in an

accusation, jury instructions, and findings of neglect

and dependency based solely upon emotional abuse without

any definition or standard for that term and without any

evidence, inquiry, or apparent concern for actual emotional

harm to the child D.A.K. Such broad authorization for

intervention in individual lives is not constitutionally

permissible.

CONCLUSION

For the foregoing reasons, probable jurisdiction

should be noted.

Respectfully submitted,

és A. Burke

ny L. Croce

lliam P. Bethke

Attorneys for Respondent-Appellant '

Rural Legal Services of Tennessee, Inc.

P.O. Box 3358

Oak Ridge, Tennessee 37830

John Marshall

Jefferson County Legal Aid

1621 Arapahoe

Golden, Colorado 80401