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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2089%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 987

## Text

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
Cl

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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/ {
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

— =

KO Oe

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2089%3A1. Public record. Not legal advice.