Motion to Dismiss or Affirm — J. K. S. v. Colorado

RECEIVED

:0V 19 1979

OFFICE OF THE CLERK

SUPREME Court, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

Number 79-5507

THE PEOPLE OF THE STATE OF COLORADO,

PETITIONER/APPELLEE

IN THE INTEREST OF D. A. K.,

A CHILD

AND CONCERNING J. K. S.,

RESPONDENT/APPELLANT

ON APPEAL FROM THE SUPREME COURT OF COLORADO

ene see,

iil no

se Sete oie 2 ee ee © eee By 2 OO 7

_MOTION OF APPELLEE TO DISMISS OR AFFIRM

James P. Culbreth

Assistant County Atto

for the County of Jef

State of Colorado

——

rney

ferson,

Jefferson County Courthouse

Golden, Colorado 8:04

(303) 279-6511, Ext.

19

333

INDEX

os CASES: PAGE

CITATIONS OF AUTHORITY

Kister v. Ohio Board of Regents, 365 F. Supp. 27

(D.C. Ohio 1973); affirmed 414 U.S. 1117, 94 S.Ct.

CASES: PAGE : 855, 38 L«hasea 747 (1974). . o 7 a . - a ° . . - - - 7

’ i Newton v. Burgin, 363 F. Supp. 782 (D.C.N.C.

Alsager v. District Court of Polk County, Iowa, 1973), affirmed 414 U.S. 1139, 94 S.Ct. 889,

406 F. Supp. 10 (S.D. Ta. 1975), affirmed 545 r 39 L.Ed. 2d 96 (1974). = Roe Slt ee ee oe ee ee a a i ee 3

F.2d Lae (8th Ci? < 1976) . - - 7 - * - 7 - . - . . . 4

Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547,

Berry am Gity of Portmouth, 562 F.2d 307, 41 L.Ed.2d 439 (1974) PP ee i Pie oe Se Ae ee 2 ek oe pea

4 h es _ i . 1 77 . . . . = . . _ . . 7 . . . . . ll

(4t r Xiz 977) . People in the Interest of M. B., 188 Colo.

Broadrick v.\Oklahoma, 413 U.S. 601, 93 S.Ct. : 970, 535 P.24 192 (1975). 2 2 we ee ww te oo oo S05

2908, 37 L.Ed.2d 830 (197 SN eT a ere ae ee

on id Pervis v. LaMarque Ind. School District, 466

Bykofsky We Burough of Middletown, 401 ae Supp. ‘ae 2d 1054 (5th Cir. Tex. 1972) 6 « -s es, & . . ££ & & 8

1242 (D.C. Pa. 1975), affirmed 535 F.2d 1245 ;

(3a Cir. 1976), cert. denied 429 U.S. 964, 97 Robinson v. People, 173 Colo. 113, 476 P.2d

S.Ct. 394, 50 L.Ed.2d 333 (1977). - - + 2 2 ee eo 2 Se? AG «a ke eA ee ee «> 8+ 0 Tyee

California Water Service Co. v. Redding, Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46

304 U.S. 352, 58 S.Ct. 865, 82 L.Ed.2d 1323 (1938). . 11 See SOS CASTE). Soe 6 oe see sa eee bo oe FeBe dt

Clark v. Weeks, 414 F. Supp. 703 (D.C. ose. 2676) .. 8 Smith v. McGriff, 434 F. Supp. 674 (D.C. Ala. 1976) . 8

ford v. Mi ; 409 U.S. 811, 93 S.Ct. 174 Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208,

ying aon)... . . J . . o : . . J J . . ‘ J .* rt 31 L.Ed. 2d 551 (1972) ba bad bad © e e ba ” © ° S e ° ® ° ad 2

Devlin v. Huffman, 139 Colo. 417, 339 P.2d 1008 State v. McMaster, 254 Ore. 291, 486 P.2d 567

(1959) . r A - ” . a. - a x ‘ . = 7 ‘a a ‘ Pe 3 ‘ x r s 10 | (1971) - . . . . . . . . - o - . . . . . . - ° . . + 5,6,7

ai Leo v. Greenfield, 541 F.2d 949, (2d Cir. Conn. United States v. Jeffries, 45 F.R.D. 110

1976) e > + ‘ " is 4 ‘ . - = > “ ‘ a - éc = e é . . ® i» ll : (p.C.D.C. 1968) o a . - . 7 . . + . . 7 . . . . 7 . 7 8

Dixon v. Pennsylvania Crime Commission, 347 F. Supp. , United States v. Maude, 481 F.2d 1062, 156

138 (D.C. Pa. 1972) . . . . . . . 7 - . . - . 7 . o 7 é U.S. App. D.C. (C.A.D.C. 1973) ¥ ad e 2 ® 2 co » ad aad S e 7

ry

i -

Fulton v. Martensen, 129 Colo. 125, 267 P.2d 658 ; United States v. Petrillo, 332 U.S. 1, 67 S.Ct.

As 0 af ies tg a ape RNG 4 o Ae aly (igo aren ; 1538, 91 L.Ed. 1877 (1946)... - 2 ese ee 2 oe © Gel

j

Ginsberg v. State of New York, 390 U.S. 629, ? United States v. Powell, 423 U.S. 87, 96 S.Ct.

88 S.Ct. 1274, 20 L.Ed.2d 887 (1968). .- +--+ +++ 7 316, 46 L.Ed.24 228 (1975)... + eee eee ee ee Ht

United States v. Truedell, 563 F.2d 889

Halleck v. Berliner, 427 F. Supp. 1225 (D.C.D.C. 1977) . 7 ,

/ (8th Cul. N.D. 1977) . . . . . . . . . . . . . + . o 7 ll

Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45

L.Ed.2d 223 (1975). ovis 6-H neo ©. eS ea Se Oe Be - 1l Whitfield Vv. Simpson, 312 F. Supp. 889 (D.C. Tll.

1970) . . . . 2 . * . . . ° + . . ° . . . . 7 . . - . tie

Horn v. Burns and Ro 536 F.2d 251 (8th Cir. 1976) . 7,8

. bean radann sg ( , Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526,

In Re Alexander, 336 F. Supp. 1305 (D.C.D.C. 1972). . 8 32 &.Bd.20 15 (1972). 2 2 se ee ee we ee sree &

In Re People in the Interest of M. M., 184 Colo.

206 SOR: P.O 228 (A0TR). 2 ee Ee ee Ue ee 10

STATUTES: (Colorado Revised Statutes)

19-1-102, C.R.S. 1973, as amended a'ats @ & a 2 80 OS 9

19-1-103, C.R.S. 1973 as amended oo 2 ele! S & eee 8 6,9

Insurers' Action Council v. Heaton, 423 F. Supp.

921 (D.C. Minn. 1973) . . ~ . . . . . . . - . . : . . 8

Johnson v. People in the Interest of W. J., 170

® . - . . . . . 7 . . . . . 3 5

Oe Ree tee ene : 19-1-103(20) (a), C.R.S. 1973, as amended ... + + + 243

STATUTES:

19-1-106(1), C.R.S. 1973,

19-1-106(4), C.R.S. 1973,

19-1-107,

19-3-102,

19-3-103,

19-3-105,

19-3-106,

19-3-109,

OTHERS:

Colorado Rules of Juvenile Procedures,

APPENDICES:

C.R.S.

C.R.S.

C.R.S.

C.R.S.

C.R.S.

C.R.S.

1973, as

1973, as

1973, as

1973, as

1973, as

1973, as

as amended

as amended

amended

amended

amended

amended

amended

amended

Rule l

Opinion of Supreme Court of Colorado .... -

Respondent/Appellant's Statement of Issues

Raised on Appeal... .-

Copies of Statutes cited... ++ +++ ess

iii

PAGE

w wow wowovyo wo Oo 0

4

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

Number 79-5507

THE PFOPLE OF THE STATE OF COLORADO,

PETITIONER/APPELLEE

IN THE INTEREST OF D. A. K.,

A CHILD

AND CONCERNING J. K. S.,

RESPONDENT/APPELLANT

ON APPEAL FROM THE SUPREME COURT OF COLORADO

MOTION OF APPELLEE TO DISMISS OR AFFIRM

The Appellee, pursuant to Supreme Court Rules 16(1) (b),

16(1)(c), and 53(4) respectfully moves this honorable Court to

dismiss the appeal filed herein, or, alternatively, to affirm

the judgment of the Supreme Court of Colorado on the following

grounds:

a.

2.

That no substantial federal question is presented;

That there exists adequate state grounds for the

decision; and

That it is manifest that the questions on which the

decision of this appeal depends are so unsubstantial

as not to require further argument.

— o

ee

OPINION BELOW

A memorandum opinion of the Supreme Court of Colorado

(the same being ‘reported at 596 P.2a 747) is attached hereto

as Appendix A.

JURISDICTION

The Appellee does not contest jurisdiction based upon

the premise that the highest state court has upheld a state

statute against a claim of unconstitutionality.

QUESTION PRESENTED

Whether or not 19-1-103(20) (a), Colorado Revised Statutes

of 1973 as amended, which defines a neglected or dependent child

as one who has been subjected to "mistreatment" or "abuse" is

violative of the Due Process Clause of the Fourteenth Amendment

to the United States Constitution because of vagueness if that

statute can be read to include emotional abuse as a grounds for

an adjudication of dependency or neglect?

STATEMENT 2F FACTS

For purposes of this Motion only, the Appellee will ac-

cept as generally accurate the Statement of the Case found in

the Appellant's Jurisdictional Statement at pp. 4 - 6 thereof.

ARGUMENT

The decisions of this Court and several other federal

courts clearly establish that the right of parents to the care,

custody and control of their minor children is, although substan-

tial, not unlimited, and that the protection of the moral, emo-

tional, mental and physical welfare of minors is acknowledged

to be a legitimate area of state concern well within its legi-

slative powers. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.

1208, 31 L.Ed.2d 551 (1972); Wisconsin v. Yoder, 406 U.S. 205,

caneuned

pice oeitbleen Hs nib tok anid

“a

digs

we cP ail Bate cat

A AR eM asc en tls IOS thes ob . 5 i lite

whe oe Oy thew

92 S.Ct. 1526, 32 L.Ed.2da 15 (1972); Bykofsky v. Burough of Mid-

dletown, 401 F. Supp. 1242 (D.C. Pa. 1975), affirmed 535 F.2d

1245 (3d Cir. 1976), cert. denied 429 U.S. 964, 97 S.Ct. 394,

50 L.Ed.2da 333 (1977); and Newton v. Burgin, 363 F. Supp. 782

(D.C.N.C. 1973), affirmed 414 U.S. 1139, 94 S.Ct. 889, 39 L.Ed. 2d

96 (1974). Title 19 of the Colorado Revised Statutes (herein-

after referred by section as C.R.S.) is precisely designed to

affect these legitimate ends.

In enacting this law (commonly referred to as the

"Childrens' Code") the General Assembly of Colorado not only

defined a neglected or dependent child as one who had been mis-

treated or abused, it also provided that a judicial determina-

tion of the existence of these conditions and the most appropri-

ate remedy therefor are to be the result of a system providing

for bifurcated hearings. See 19-1-103(20) (a), 19-3-106, and

19-3-109, C.R.S. The first of these hearings (the “adjudicatory")

is concerned solely with the existence or nonexistence of abuse,

and only in the latter ("dispositional") is any consideration

given to the possibility of terminating parental rights as a

dispositional alternative. See People in the Interest of M. B.,

188 Colo. 370, 535 P.2d 192 (1975); and Johnson v.- People in the

Interest of W. J., 170 Colo. 137, 459 P.2d 579 (1969).

The Appellant's child was adjudicated dependent or neg~-

lected after a three day trial to a jury and her parental rights

were terminated after a subsequent two day dispositional hearing

to the court. However, the appeal which followed concerned

itself only with the adjudication and not the disposition (see

the issues raised on appeal copied from the Appellant's Brief

in the Court below and attached as Appendix B). Presumeably,

this was based upon the Appellant's theory that if the adjudica-

tion were to be reversed, the disposition would dissolve of its

own accord.

This point is made to emphasize the fact that although

the Appellant makes much of the importance and fundamentality

of her parental rights, the only issues before the Supreme Court

of Colorado on appeal had not to do with terminating those rights,

but were relative only to the adjudicatory trial at which the

sole issue was whether or not the subject child was dependent or

neglected by virtue of being mistreated or abused. Thus it is

that the question of the vagueness of the subject statute must

be considered with reference only to that proposition. And thus

it also is that the Appellant's reliance on Alsager v. District

of Polk County, Iowa, 406 F. Supp. 10 (S.D. Ia. 1975), affirmed

545 F.2d 1137 (8th Cir. 1976) is misplaced. It is clearly

stated in footnote 3 at p. 16 thereof that:

"The court is only concerned with the

parents' right in a termination context

vis-a-vis the state .. . thus the

court's ruling today does not prevent

the state from temporarily separating

the child from its parents upon an adju-

dication of neglect or dependency...

the court's ruling goes only to state

action which permanently destroys the

family unit, not to a temporary physical

separation for the protection of the

child." (Emphasis added)

Hence Alsager dealt with the applicability of a statute

alleged to be vague na the context of a dispositional proceeding.

Herein the adjudicatory trial and that only has been appealed,

and the sole issue therein was as stated above. Although paren-

tal rights may be terminated if the child is found to be neglec-

ted, that determination is made at a subsequent proceeding. The

Appellant cannot have both sides of the street. She cannot

appeal from the adjudicatory trial and then complain that the

termination of the parent-child relationship has such an affect

upon "fundamental rights" that the high standards of strictly

construed criminal statutes were not adhered to when those

rights were not the subject of the proceeding. Nor can s* in

appealing the one and excluding all reference to the other,

overlook this distinction at her convenience and state that,

5 a IOS a a ES oN, ot

really though, they are part and parcel of the same transac-

tion when 19-3-106, 19-3-109 and such decisions of the Colorado

Supreme Court as People in the Interest of M. B., supra, and

Johnson, supra, declare that difference between the two.

In its decision per Justice Jim R. Carrigan (unanimous

except for Justice William H. Erickson who did not participate),

the Supreme Court affirmed the lower court rejecting each of the

Appellant's contentions and declining to accept her analogies

and comparisons to criminal law. Repeating its statement from

Robinson v. People, 173 Colo. 113, 476 P.2a 262 (1970), it

found that "A proceeding to determine whether a child is depen-

dent or neglected is civil in nature". (See Opinion, p.7)

While it recognized the substantial rights of parents in such

cases throughout, it also recognized that which the Appellant

seemingly fails to see. That is that other substantial rights

are involved as well, i.e.:

"The proceeding does not involve the

state against the child's parents.

Rather, three parties are affected:

the child, the parents, and the state.

The state is in the position of parens

atriae and the matter for determina-

tion is what will best serve the inter-

ests of the child."

This wording is, essentially, a quote from the decision

of the Supreme Court of Oregon in the case of State v. McMaster,

254 Ore. 291, 486 P.2d 567 (1971) wherein similar issues were

raised. Since that decision is cited with approval, it is sub-

mitted that some additional language therefrom reflects the

unfailing logic which lies at the heart of the Colorado Court's

decision:

"That the welfare of the child is the

primary purpose does not lead to the

conclusion that the rights of the par-

ents are without constitutional pro-

tections . . . This emphasis upon the

welfare of the child does imply how-

ever, that unlike criminal statutes

in which the interests of only one set

of individuals is involved, the consti-

tutional issue must be examined with

the interest of both the child and the

parents. What might be unconstitutional

only if the parents' rights were involved

is constitutional if the statute adopts

legitimate and necessary means to protect

the childs interests." (Emphasis added)

In addressing the issue of the vagueness of 19-1-103,

the Court declared that "An ordinarily reasonable parent can

understand what it means to ‘abuse’ and 'mistreat' a child."

(Opinion, p. 8) Then, quoting McMaster, supra, and citing the

United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed.

1877 (1946) it found that:

"Fundamental fairness does not require a

statute to enumerate in all-encompassing

examples, or exactly described acts, pre-

cisely how poorly a parent can treat a

child before risking loss of parental

rights . . . Our legal system occasional-

y requires courts to draw lines...

Furthermore, the statute is as explicit

as could be in order to accomplish the

purposes intended . . The protection

of an abused or mistreated child is an

area of legitimate legislative concern

which does not lend itself to more precise

definition. The legislature wouldfind itex-

tremely difficult, if not impossible, to

write a statute more specific to accomplish

the purposes of protecting a child's safety

and welfare while still allowing the juven-

ile court reasonable flexibility in deter-

mining the best interests of the child and

society in each case." (Emphasis added)

(See Opinion, pp. 8 - 9)

The Appellant would now have this Court find fault with

the foregoing reasoning and reverse on the apparent theory that

in order to protect the rights of the parents, to satisfy the

requirements of fundamental fairness to them, to afford due pro-

rc

Ee ET, ee ee sais

I a i i is as,

the child in question was abused, and that the subject of the

possible termination of parental rights was, as emphasized

above, considered in a subsequent hearing which was not appealed

from.

The Colorado Court was correct in determining that the

requirement of inordinate specificity and exactitude would ren-

der the drafting of legislation in this critical area of state

concern virtually impossible. In reaching this decision it

simply utilized and reiterated principles relative to due pro-

cess and legislative vagueness previously enunciated by this

Court and many others. For instance, it is clearly estabiished

that the Constitution does not demand of legislatures scienti-

fically certain criteria of legislation, impossible standards or

unattainable feats of clarity. Ginsberg v. State of New York,

390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 887 (1968); United States

v. Petrillo, supra, Bykofsky, supra; United States v. Maude,

481 F.2d 1062, 156 U.S. App. D.C. 370 (C.A.D.C. 1973); and

McMaster, supra. Nor does vagueness invalidate a statute mere~-

ly because the reviewing court believes that it could have been

drafted with greater precision; because it fails to provide for

every possible contingency; because it is difficult to determine

whether marginal conduct falls within its scope; because it may

be more detailed in its provisions; or because ordinary terms

are used to express ideas which find adequate interpretation in

common usage and understanding. See respectively, Rose v. Locke,

cess to them and to avoid being void for vagueness, a child

423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2a 185 (1975); Kister v. Ohio

£firmed 414

abuse statute must specifically define every conceiveable form

Board of Regents, 365 F. Supp. 27 (D.C. Ohio 1973), a

S.Ct. 1117, 94 S.Ct. 855, 38 L.Ed. 2d..747; Halleck.v. Berliner, 427

of abuse. It is respectfully submitted that the Appellant's

argument, which stresses the profoundness of parental rights and

1225 (D.C.D.C. 1977); Whitfield v. Simpson, 312 F. Supp-

ignores the valid purposes of the statute amounts to a naked F. Supp.

assertion that their rights are greater than the right of the 889 (D.C. Ill. 1970); Dixon v. Pennsylvania Crime Commission,

347 F. Supp. 138 (D.C. Pa. 1972); and Horn v. Burns and Roe,

child to protection and the right of the state to protect him.

536 F.2d 251 (8 Cir. 1976).

If due process requires less literal exatitude in a

This it does while ignoring the fact that the decision appealed

from was concerned only with the issue of whether or not the

statute lacking criminal sanctions as indicated in Horn, supra,

and Insurers' Action Council v. Heaton, 423 F. Supp. 921 (D.C.

Minn. 1973), then the principles stated above deriving from cri-

minal cases should apply with increased force herein. If this

Court ane as it did in Rose, supra, that the term "crime

against nature" in a criminal statute is not impermissibly vague,

then it is not surprising that cases may readily be found where-

in terms such as the following have withstood challenges of

being void for vagueness: "incorrigible" in a statute authori-

zing the suspension of a student from school; “gross disobedience

or misconduct" in the statute permitting the expulsion of stu-

dents from school; “incompetent to drive a motor vehicle" in a

licensing statute; "injure himself or other person" in an invol-

untary mental health commitment statute; and "misconduct in

office" in a statute providing for the removal of a public offi-

cial from office. See respectively: Pervis v. LaMarque, Ind.

School District, 466 F.2d 1054 (5th Cir. Tex. 1972); Whitfield

v. Simpson, supra; Smith v. McGriff, 434 F. Supp. 674 (D.C. Ala.

1976); In Re Alexander, 336 F. Supp. 1305 (D.C.D.C. 1972); and

Clark v. Weeks, 414 F. Supp. 703 (D.C. Ill. 1976). If all of

these terms are not so vague as to offend the oft-stated rule

that the language of a law must not be so vague that men of com-

mon intelligence must necessarily guess at its meaning and dif-

fer as to its application, how then is the term “abuse" so

different?

It cannot be denied that the challenged statute has a

rational relation to a legitimate and constitutionally permissible

objective and, such being the case, it cannot be judged vague in

a vacuum without consideration of the stated legislative purposes,

its overall thrust and the judicial interpretations which have re-

fined its meaning. See Broadrick v. Oklahoma, 413 U.S. 601, 93

S.Ct. 2908, 27 L.Ed.2d 830; United States v. Jefferies, 45 F.R.D.

110 (D.C.D.C. 1968); Clark v. Weeks, supra. If Title 19 is so

examined in its totality and its various sections are considered

BCS AB

POs Ae oe aS SR KS

CI Be

in context, it can be seen that a genuine and effective effort

has been made to insure that the rights of all persons involved

in dependency or neglect cases are protected.

In 19-1-102, C.R.S., the General Assembly declared its

purposes in enacting the Childrens Code to be:

"1(a) To secure for each child subject to

these provisions such care and guid-

ance, preferably in his own home, as

will best serve his welfare and the

interests of society;

(b) To preserve and Strengthen family ties

whenever possible, including improve-

ment of home environment;

(c) To remove a child from the custody of

parents only when his welfare and

safety or the protection of the public

would otherwise be endangered;

(d) To secure for any child removed from

the custody of his parents the neces-

Sary care, guidance and discipline to

assist him in becoming a responsible

and productive member of society.

(2) To carry out these purposes the provi-

sions of this title shall be liberally

construed." (Emphasis added)

Thereafter, it not only provided for the two tiered

system of hearings referred to above, it also established such

safeguards as: the requirement that both the summons and the peti-

tion shall include a statement that the termination of parental

rights is a possibility (19-3-102, 19-3-103); trial by jury at the

adjudicatory phase if demanded (19-1-106(4) (a)); discovery pursu-

ant to the Rules of Juvenile Procedures or the Rules of Civil

Procecures if the former do not apply (19-1-107, Rule 1, Rules

of Juvenile Procedure) ; representation of the parents by counsel

(19-1-106(1)); ana representation of the child by a guardian ad litem

(19-3-105). All of these things occured during the adjudication

appealed from.

In addition to the foregoing, the Supreme Court of Colo-

rado, in interpreting Title 19, has specifically declared that

dependency or neglect cases must afford the fundamental fairness

required by the Fourteenth Amendment; that parents are presumed

to be fit and proper persons to have the care and custody of

a ae. ae > | ——

their children until overcome by convincing evidence to the

contrary; that the interest and welfare of the child control;

and that alt*ough termination of parental rights is a possibility

in every dependency or neglect action, it is by no means manda-

tory. See Robinson v. People, supra, Devlin v. Huffman, 139

Colo, 417, 339 P.2d 1008 (1959); Fulton v. Martensen, 129 Colo.

125, 267 P.2d 658 (1954); and In Re People in the Interest of

M. M., 184 Colo. 298, 520 P.2d 128 (1974). It cannot be said,

therefore, that no procedural or judicial standards exists in

Colorado concerning cases of this type.

It appears that the argument of the Appellant would re-

ject all of the foregoing as inconsequential and demand instead

a legislative listing of all the various forms and manifestations

of abuse before the subject statute can be considered valid. And

yet in the Jurisdictional Statement filed herein (at p. 6), it

is plainly stated that "The Appellant mother in this case recog-

nizes that emotional abuse can be as damaging to a child as

physical abuse and acknowledges the state's interest in protect-

ing children from such abuse." (Emphasis added). If she herself

recognizes that "abuse" may take the form of “emotional abuse"

which her son was found to be a victim of, how can she at the

same time claim in good faith that the statute failed to provide

her with adequate notice of proscribed activity? The logic of

her position seems to be something to the effect that "I knew

what was meant but, because I was not informed in exact terms of

that which I admittedly recognize, I was not given fair notice

and, therefore, the decision below should be reversed."

The Appellant would also urge reversal because (as stated

in pp. 7 - 8 of the Jurisdictional Statement) unidentified "Accep-

table statutes have been drafted in other states"; because

"Caretakers of children across the United States are subject to

the sanctions available under dependency and neglect statutes";

because "The problems of abused children have become a matter of

increased public interest and debate in recent years"; and because

10

unidentified "State authorities now inquire into and interfere

with the parent-child relationship to an unprecedented degree".

Both of these approaches fly in the face of at least two

well established rules of law. One is that a statute must be

considered in light of its application under the facts of the

particular case involved. See Berry v. City of Portsmouth, 562

F.2d 307 (4th Cir. Va. 1977). Another is that one attacking a

statute must show that it lacks specificity with regard to his

actual conduct or behavior and not with regard to some hypothet-

ical situation or with respect to the conduct of other parties

who might not be forewarned by the statute's alleged vague lang-

uage. In this regard see United States v. Powell, 423 U.S. 87,

96 S.Ct. 316, 46 L.Ed.2d 228 (1975); Parker v. Levy, 417 U.S.

733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); United States v. True-

dell, 563 F.2d 889 (8th Cir. N.D. 1977); di Leov. Greenfield,

541 F.2d 949 (2d Cir. Conn. 1976).

In reading the state court's opinion and then the Appel-

lant's Jurisdictional Statement, it becomes clear that the as-

serted reasons for this appeal are unsubstantial and that the

opinion rests both upon principles established by this Court

(and decisions of other courts affirmed by this Court) sufficient

to foreclose the issue, and upon adequate state grounds as well.

Hence, the asserted federal question lacks substantiality, is with-

out merit and leaves no room for real controversy. See Rose v.

Locke, supra, Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45

L.Ed.2d 223 (1975); Crawford v. Missouri, 409 U.S. 81l, 93 S.Ct.

174, 34 L.Ed.2d 66 (1972); and California Water Service Co. v.

Redding, 304 U.S. 252, 58 S.Ct. 865 (1938), 82 L.Ed.2d 1323.

A fair trial was held and the jury reached its decision.

The highest court in the state found that it could have reached

the decision it did from the evidence presented, that the trial

court committed no error and that the statute in question was as

precise as the legislature could reasonably draw it given the

nature of its purpose. The Appellant, in pursuing this appeal

ll

while acknowledging the existence of the type of abuse found for consideration of this cause via certiorari (Jurisdictional

to exist by the jury and acknowledging the state's right to Statment, p. 3) should be denied as well.

prevent it, is merely seeking a technical and arbitrary rever- It is so moved.

jit RAE INE AEN A ORAL AT

sal based in large measure upon the hypothetical injury to all the

Respectfully submitted

state's parents as a class. She is thus, in effect, merely ° J ‘

: Patrick R. Mahan

asking this court to second guess both the trial court and the : County Attorney

Jefferson County, Colorado

Boe

Colorado Supreme Court as to the validity of this law and its

eee a ee

application.

‘James P. Culbreth

: ‘ ; ssistant County Attorney

It should be noted that the child whose rights were Jefferson County Courthouse

1700 Arapahoe Street

protected in this case has now been in the care of foster par- Golden, Colorado 80419

. . A (303) 279-6511, Ext. 333

ents for almost five years. They are virtually the only parents

he has known and yet he remains in a legal limbo while the slow

and arduous appellate process continues its tedious course. Re-

cognizing that it would be a cruel thing indeed to allow him to

be adopted so long as there exists any possibility whatsoever of

a reversal on appeal which would nullify such an adoption, the

Jefferson County Department of Social Services has retained

legal custody of him. No one disputes that it is a hard thing

to lose a child, but the Appellant was afforded all that due

process requires in an action which involved not only her rights

but the best interests of her son and the rights of the state.

The Supreme Court of Colorado was correct, "Our legal system

sometimes requires courts to draw lines." This child is entitled

to at least the promise of a stable future and this court should

not permit his fate to hang in the balance while the Appellant and

her attorneys pursue their "test case" crusade tilting at the

windmills of statutory perfection. It is time this matter was

ended.

CONCLUSION

For the foregoing reasons this appeal should be dismissed

or, alternatively, the decision of the Supreme Court of Colorado

should be affirmed. Likewise, the Appellant's alternative request +s