Jurisdictional Statement — In re Trapp
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RECEIVED
MAY 12 800)
OFFICE OF THE CLERK
SUPREME COURT. US.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
so. 79-6584
In the Matter of
SHERYL ANN TRAPP, DEE ANN TRAPP,
and DUANE EDWIN TRAPP, Minors,
ROBERT EMERY TRAPP, Father,
LINDA MAE TRAPP, Mother and
Appellant.
ON APPEAL FROM THE SUPREME COUFT OF MISSOURI
JURISDICTIONAL STATEMENT
JAMES L. MULLER
Legal Aid of Western Missouri
330 Professional Building
1103 Grand Avenue
Kansas City, Missouri 64106
(816) 474-6750
Attorney for Appellant
TABLE OF CONTENTS
Grete DELO. 6s eee 4 8 8 8 Se ee ee ee 8S ee ee 1
SUSTEOSCTION 2. bas 8 8 ee ow 4 Re ES 8 6 1
STATUTORY PROVISIONS INVOLVED ... + + ©.2¢ © © © © © © © © * # * 4
QUESTIONS PRESENTED ..-s« ce eee eeseeve7eees27 882% © # 8 4
STATEMENT GF THE CASE . « « © 0 © & * £6 “SH 6 Oe © eo SOS * * 2 6
THE QUESTIONS ARE SUBSTANTIAL. . . «© © © © © © © © © © © © © # # * 20
I.A. THE MISSOURI NEGLECT STATUTES ARE UNCONSTI-
TUTIONALLY VAGUE AND OVERBROAD ... +++ ++ © © © *© © * 20
I.B. THE MISSOURI NEGLECT STATUTES DO NOT REQUIRE
A THESHHOLD OF HARM AND ARE NOT NARROWLY
DRAM 6 kc we 4 6 6 668 le ee eee eee eee 30
Il. THE NEGLECT PETITION WHOLLY FAILED TO
SATISFY THE NOTICE OF ISSUES REQUIREMENT
OF DUE PROCESS. . « « 0 @ eo (es) 6h 8) 3 68 90s © ee eee 34
III. THE CUSTODY ORDER WAS TOTALLY WITHOUT
EVIDENTIARY SUPPORT IN VIOLATION OF DUE
PROCESS . «0s 0 & 6 6 © 6) 6 wie nee ee ee ee eee 37
IV. DUE PROCESS REQUIRES AT LEAST THE CLEAR
AND CONVINCING EVIDENCE STANDARD OF PROOF
IN NEGLECT PROCEEDINGS ..<«eeeee ee eee eee 8 40
V. DUE PROCESS REQUIRES A STATEMENT OF REASONS
FOR A FINDING OF NEGLECT IN ORDER TO PERMIT
MEANINGFUL REVIEW... 2 c«eeee tse eveesee es © & © 6 * 41
V1. THE CHILD SUPPORT ORDER IS INVALID FOR THE
REASONS SET FORTH UNDER QUESTIONS I(A) AND
I(B). . >. * . . >. . . . * . . . > . . . . . . * . . * . . . 42
VII. THE CHILD SUPPORT ORDER IS INVALID BECAUSE
ENTERED WITHOUT NOTICE AND OPPORTUNITY TO
SE SEARMD .. .« s 0 6 6 Bb © 8 6 Se, 0 eee eee eee 43
COMCLUGION « « « 6 0. @ © & &) 65m Rh Mie bese eee) 6 ee ee ee eee 44
APPENDIX (Opinion of Supreme Court of Missouri) ..... .- . App. A
APPENDIX (Judgment of Supreme Court of Missouri) ... .. . . App. B
APPENDIX (Order on Motion for Rehearing) . ... +++ + + + + APP- c
APPENDIX (Notice of Appeal). . .. + +++ ++ 2*# 2©+ ee © © # * App. D
APPENDIX (Statutory Provisions Involved) ...+ +++ ++: +s App. E
TABLE OF AUTHORITIES
Addington v. Texas, 441 U.S. B88 ok 6 wie a ee a ee eee
Alsager v. District Court of Polk County, Iowa,
406 F.Supp. 10 (S.D.Ia.), aff'd. 545 F.2d 1137
(8th on . . . . . . . . . . 7 . * . . . . ale 28, 2. ce aes 40 -
Aptheker v. Secretary of State, 378 U.S. SG. <«t 2a 6 es
Armstrong v. Manzo, 380 U.S. 545 . 2. 2 + 2+ © © © © © es es es se ee 35
Breed Ve Jones, 421 i 519 . . . > *. . . . . . * . . . >. . . >. * 24
Carey v. Population Services International,
431 U.S. 678 . . . > . . . . * . >. > . . . . >. . * .* . . . . oe * 22
Charleston Federal Savings & Loan Ass'n v.
Aldereon, 326 U.8: 282 2 3s 2 2 8 6 oe we we
City of Raytown v. Roach, 360 S.W.2d 741 (Mo.App.)
Cleveland Board of Education v. LaFleur, 414 U.S. 632. ....
Cobb v. Wyrick, 379 F.Cupp. 1287 (W.D.Mo.) .. .
Connally v. General Construction Co., 269 U.S. 385...
Cunha v. Brewer, 511 F.2d 894 (8th Cir)... .
Danforth v. State Dept. of Health and Welfare,
303 A.2d 794 (Me.Sup.) . .« « «© © «© «© «© © © ©
Davis v. Paige, 442 F.Supp. 258 (S.D.Fla.)
Davis v. Smith, 583 S.W.2d 37 (Ark.Sup.)
Duchesne v. Sugarman, 566 F.2d 817 (2d Cir.) ..
Dupree v. Wyrick, 415 F.Supp. 168 (E.D.Mo.).
Garner v. Louisiana, 368 U.S. 157.
In re Gault, 387 U.S. l.
Giaccio v. Pennsylvania, 383 U.S. 399.
Grayned v. City of Rockford, 408 U.S. 104.
Kent v. United States, 383 U.S. 541.
In re Luscier, 84 Wash.2d 135, 524 P.2d 906. .
Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123
May v. Anderson, 345 U.S. 528.
Meyer v. Nebraska, 262 U.S. 390.
Minor Children of F.B. v. Caruthers,
323 S.W.2d 397 (Mo.App.)
Mullane v. Central Hanover B. & Tr. Co., 339 U.S
In re Myricks, 85 Wash.2d 252, 533 P.2d 841.
In re Neglected Child, 130 Vt. 525, 296 A.2d 250
Pierce v. Society of Sisters, 268 U.S. 510...
Prince v. Massachusettes, 321 U.S. 158 .... .
R. v. Superior Court, 19 Cal.App.3rd 895, 97 Cal
Raley v. Ohio, 360 U.S. 423. . 2. 2. «© © © ws ww
Reynolds v. Stockton, 140 U.S. 254 . ...+. -
Roe v. Conn, 417 F.Supp. 769
24,
- 306.
-Rptr. 158
(M.D.Ala.) . . . . . . . . . . . . . 22, 23% als 28, 30, Jk»
Roe Vv. Wade, 410 U.S. 113. * 7 * * * .* . . * * *
Rose Vv. Locke, 423 U.S. 48 * > * * . . . *. . . *
Shelton v. Tucker, 364 U.S. 479. . . «2. «+26 © « «»
Sims v. State Dept. of Public Welfare,
438 F.Supp. 1179 (S.D.Tex.) ....+s-+s«e
ii
22,
35,
24,
Small Co. v. American Sugar Refining Co., B67 °G.8. 233. 2. « © +2 8
Smith v. Goguen, 415 U.S. Bee ie Mole el a ee oe eee 8 26, a7
Smith v. Organization of Foster Families, 431 U.S. 816. ... + > 24
Stanley v. Illinois, 405 U.S. BNO ol se ate ee ee ao ORG ee Oe
State ex rel. Brault v. Kyser, 562 S.W.2d 172 (Mo.App.) .. + ++ 25
State ex rel. Lemaster v. Oakley, 203 S.E.2d 140
(W.Va.Sup.) * . . * * . . . . . . . . . . . . . . . . * . . . . 24
Thompson v. Louisville, 362 U.S. Yi ee ror Seer at a
In re Trapp, 528 S.W.2d 489 (Mo.App.) . + + + + © e+ © es © ee es 13
United States v. National Dairy Products Corp.,
ee eer eee te ee OW aah WOR RSS Ce RLS OC 8 eee 27
Windsor v. McVeigh, 93 U.S. 274 ... »© 2+ +2e*s2e ee 2 2 © © # © 8 44
in ce Winship, 397 0.8. 258 wee cee ever eee eeneees 24
Zablocki v. Redhail, 434 U.S. 374 . «© «© © © © © © © # # 22, 29, 31
MISCELLANEOUS:
ABA Juvenile Justice Standards Project, Standards
Relating to Abuse and Neglect foOT7). «6 0 6 © ote O04, aa 33, “4k
iii
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No.
In the Matter of
SHERYL ANN TRAPP, DEE ANN TRAPP,
and DUANE EDWIN TRAPP, Minors,
ROBERT EMERY TRAPP, Father,
LINDA MAE TRAPP, Mother and
Appellant.
ON APPEAL FROM THE SUPREME COURT OF MISSOURI
JURISDICTIONAL STATEMENT
The appellant, Linda Mae Trapp, appeals from the judgment of
the Supreme Court of Missouri en banc, entered on January 15, 1980,
affirming an order of the juvenile court below overruling appellant's
motions to set aside the juvenile court's custody order of January 2,
1973, and its support order of February 27, 1973. Appellant submits
this Statement to show that the Supreme Court of the United States
has jurisdiction of the appeal and that substantial questions are
presented.
OPINION BELOW
The opinion of the Supreme Court of Missouri en banc is reported
in 593 S.W.2d 193. A copy of said opinion is attached hereto as Ap-
pendix A. In re Trapp, 528 S.W.2d 485 (Mo.App. 1975), is a related case.
JURISDICTION
This case was originally commenced in the juvenile division of
the Circuit Court of Henry County, Missouri, on December 19, 1972, by
the filing of a petition by the juvenile officer under §211.031 RSMo
1969 to have the juvenile court take jurisdiction of appellant's four
minor children (Robert Emery Trapp, DOB 1-9-68; Sheryl Amn Trapp, DOB
4-25-69; Dee Ann Trapp, DOB 4-7-70; and Duane Edwin Trapp, DOB 9-8-72)
as being in need of care and treatment under the supervision of the
court.
A hearing was had on the petition on January 2, 1973, and there-
upon the juvenile court entered an order of custody under §211.181
RSMo 1969, finding the children to be neglected children within the
meaning of the law, making them wards of the court, and vesting
their care, custody, and control in the Welfare Department of Henry
County, Missouri, until further order of the court.
Although no appeal was taken from the custody order, a number
of additional proceedings have ensued in the case. On October 28,
1975, the juvenile court entered an order returning custody of ap-
pellant's eldest child, Robert, to her and her husband, and his
custody is therefore not involved in this appeal.
On May 22, 1978, appellant filed a motion (Tr. 10-14) to set
aside the custody order of January 2, 1973, and to dismiss the neg-
lect petition. Therein appellant alleged (Tr. 12-14) that said order
is null and void for the reasons, inter alia, that:
"C. [The juvenile court) was without jurisdiction to enter the
custody order of January 2, 1973, because the statutes (§§211.031 and
211.181 RSMo 1969) on which said order was based are unconstitutional
on their face and as applied because they operate to permit parents
to be deprived of their fundamental liberty or right to the immediate
companionship, care, custody, and management of their minor children
in violation of the Due Process Clause of the Fourteenth Amendment
in that:
"(1) The standards of ‘proper support . . . or other care neces-
sary for [the child's] well-being,’ embodied in §211.031(1) (a); of
‘otherwise without proper care, custody or support," in §211.031(1) (b);
and of ‘behavior, environment or associations . . . injurious to {the
child's) welfare or to the welfare of others,’ in §211.031(1)(c), are
unconstitutionally vague and overbroad because: (a) They do not, and
did not here, give fair warning of what parental conduct is proscribed;
(b) They permit, and permitted here, arbitrary and discriminatory
separation of the child from the parents; and (c) They inhibit par-
ents from freely and fully exercising their fundamental ‘liberty’ and
‘privacy’ rights in maintaining the integrity of their family end the
rearing of their children.
"(2) The statutes (§§211.031 and 211.181 RSMo) are also unconsti-
tutional on their face and as applied because they deny the parents
substantive due process of law in that; (a) They do not require the
State to balance its child-protection interest against the parents’
» 2«
countervailing interest in being able to raise their children in an
environment free from governmental interference; (b) They do not
require the State to show by clear and convincing evidence that the
child is subjected to a real and substantial degree of harm and that
more harm is likely to befall the child by being permitted to remain
with his parents than by being separated from them, so as to give
the State the compelling state interest necessary to justify depriv-
ing the parents of the fundamental right to the custody of their
children; and (c) They are not narrowly tailored to achieve only
the State's compelling state interest in that they do not require
the State to pursue less drastic alternatives, such as providing
supervisory guidance to the parents and the child in the home, before
resorting to separation of the child from the parents."
On May 30, 1978, appellant filed a motion (Tr. 15-17) to set
aside the child support order entered by the juvenile court on Febru-
ary 27, 1973. Therein appellant alleged (Tr. 15) that said order is
null and void for the reason , inter alia, that:
"A. (The juvenile court] was without jurisdiction under §211.241
RSMo 1969 to enter the support order of February 27, 1973, because the
jurisdictionally prerequisite [custody] order of January 2, 1973,
. « » Was null and void for the reasons set forth in [appellant's] mo-
tion to set aside the custody order of January 2, 1973, which was
filed herein on May 22, 1978 .. ..”
On September 25, 1978, the juvenile court rejected the consti-
tutional challenges to the statutes and entered an order overruling
appellant's motion to set aside the custody order of January 2,
1973, and the child support order of February 27, 1973. On January
15, 1980, the Missouri Supreme Court entered its judgment affirming
the juvenile court's order of September 25, 1978, upholding the con-
stitutionality of the statutes. A copy of said judgment is attached
hereto as Appendix B.
A timely motion for rehearing was filed, and said motion was
overruled on February 11, 1980, by an order of the Missouri Supreme
Court which is attached hereto as Appendix C.
Notice of appeal to the Supreme Court of the United States was
filed in the Supreme Court of Missouri on February 26, 1980, and a
a
copy thereof is attached hereto as Appendix D.
Jurisdiction of this appeal is conferred on this Court by the
provision of 28 U.S.C. §1257(2).
The following decisions sustain the jurisdiction of this Court
to review the judgment on appeal in this case: Manhattan Life Ins.
Co. v. Cohen, 234 U.S. 123, 134 (1914); Charleston Federal Savings
& Loan Ass'n. v. Alderson, 324 U.S. 182, 185-186 (1945); Raley v.
Ohio, 360 U.S. 423, 436 (1959).
STATUTORY PROVISIONS INVOLVED
Sections 211.011, 211.031, 211.041, 211.091, 211.101, 211.171,
211.181, 211.241, 211.251 and 211.261 of the Revised Statutes of
Missouri (RSMo) 1969, are set forth in Appendix E hereto.
QUESTIONS PRESENTED
I.
Are the Missouri parental neglect statutes (§§211.031 and 211.181
RSMo 1969) on which the juvenile court depended for its jurisdiction
to enter the custody order of January 2, 1973, and the child support
order of February 27, 1973, unconstitutional on their face and as ap-
plied because they operate to permit parents to be deprived of their
fundamental liberty or right to the immediate companionship, care,
custody, and management of their minor children in violation of the
Due Process Clause of the Fourteenth Amendment in that:
A. The neglect standards embodied in §211.031(1) (a,b,c) —"pro-
per support . . ., medical, surgical or other care necessary for [the
child's) well-being," “otherwise without proper care, custody or sup-
port,” and “behavior, environment or associations... injurious to
{the child's] welfare or to the welfare of others" — are unconstitu-
tionally vague and overbroad because: (1) They do not give fair
warning of the parental conduct proscribed; (2) They permit arbitrary
and discriminatory separation of the child from the parents; and (3)
They inhibit the exercise of the parents’ “liberty” and "privacy"
rights in maintaining the integrity of their family and rearing
their children?
B. The statutes (§§211.031 and 211.181 RSMo) are unconstitu-
tional on their face and as applied because they deny substantive
due process in that they do not require the State to balance its
a
child-protection interest against the strong countervailing in-
terest of the parents, to wit: (1) The statutes do not require the
State to show by clear and convincing evidence that the child is im-
minently subject to a substantial risk of suffering serious harm due
to the culpable conduct of his parents and that more harm is likely
to befall the child by being permitted to remain with his parents
than by being separated from them, so as to give the State the com-
pelling state interest necessary to justify depriving the parents of
the fundamental right to the custody of their children; and (2) the
statutes are not narrowly tailored to achieve only the State's com-
pelling state interest in that they do not require the State to pur-
sue less drastic alternatives, such as providing supervisory guidance
to the parents and the child in the home, before resorting to sepa-
ration of the child from the purents?
II.
Was the neglect petition insufficient to vest the juvenile court
with jurisdiction to enter the custody order because the petition
merely alleged neglect in the conclusory language of §211.031 RSMo
1969 and thus violated the requirement of §211.091 RSMo 1969 and of
the Due Process Clause of the Fourteenth Amendment that such a peti-
tion must set forth the alleged factual basis for the preteeding?
Ill.
Is the custody order of January 2, 1973, constitutionally in-
valid and void because there was a total absence of competent and
substantial evidence to support the juvenile court's finding of neg-
lect, and said order therefore deprived appellant of her fundamental
right to the immediate companionship, care, custody, and management
of her children in violation of Due Process Clause of the Fourteenth
Amendment?
Iv.
Was appellant deprived of her fundamental right to the custody
of her children without procedural due process of law in that the
standard of proof of alleged neglect required by the statutes
(§211.031 and 211.181 RSMo 1969) was a mere preponderance of the evi-
dence rather than at least “clear and convincing” evidence?
SS
Vv.
Does the juvenile court's finding in the custody order that
the children were “neglected children within the meaning of the
law and in need of care and protection,” satisfy the dye process re-
quirement of the Fourteenth Amendment that the juvenile court must
accompany its order with a statement of the reasons or considera-
tions therefor, and set forth the basis for the order with sufficient
specificity to permit meaningful review?
vi.
Is the juvenile court's child support order of February 27,
1973, invalid and void because the court was without jurisdiction
to enter the order under §211.241 RSMo 1969 because the jurisdic-
tionally prerequisite custody order of January 2, 1973, finding the
children to be within the purview of the provisions of §211.031
RSMo 1969, was null and void for the reasons set forth in Question
I(A,B) aforesaid?
vil.
Is the child support order of February 27, 1973, invalid be-
cause it was entered without notice and an opportunity to be heard
on the issue of a monetary judgment for support of the children, and
it thus deprived appellant of her property in violation of the Due
Process Clause of the Fourteenth Amendment?
STATEMENT OF THE CASE
As previously indicated, this case was originally commenced on
December 19, 1972, when the juvenile officer of Henry County, Mis-
souri, filed in the Juvenile Court of Henry County a printed form
petition (Tr. 2) alleging in the language of §211.031 RSMo 1969
(See App. E, p. 1) that appellant's four children were under the
age of 17, physically present in Henry County, Missouri, and in need
of care and treatment under the supervision of the court because:
"“(a) The parents or other persons legally responsible for
the care and support of the child have neglected and refused
to provide proper support, education which is required by law,
medical, surgical or other care necessary for the well being
of said child.
(b) Said child is otherwise without care, custody or sup-
port.
(c) The behavior, environment or associations of the child
are injurious to his welfare or to the welfare of others."
On December 22, 1972, the juvenile court (Judge Kelso Journey)
entered a temporary order (Tr. 2b), dated December 18, 1972, finding
that the facts alleged in the juvenile officer's neglect petition
were true and “that the best interests of said children require"
that the Division of Welfare be given temporary custody of the child-
ren. Accordingly, the court granted temporary custody of the four
children to the Division of Welfare and ordered that a hearing on
the neglect petition be held on January 2, 1973, and that the parents
be notified and summoned to appear.
Service of summons was had upon appellant but not upon her hus-
band, and thereafter on January 2, 1973, Judge Journey entered the
following order of custody under §211.181 RSMo 1969 (See App. E, pp.
2-3):
"Comes now Morran D. Harris, Juvenile Officer, and comes Linda
Mae Trapp in person, and she being without funds to employ an attor-
ney, the Court assigned George Lilleston to act as attorney for her
and he appears, as well as Bill Edmonds, Child Welfare Aide, and Dr.
Coleberd and associate physician and evidence is heard on the peti-
tion herein. The Court finds the four children herein are neglected
children within the meaning of the law and are in need of the care
and protection of the State of Missouri and are hereby made wards of
this Court until further order. Said children's care, custody and
control is hereby vested in the Welfare Department of Henry County,
Missouri, until further order of this Court.”
No stenographic notes or recording were requested or made of
the hearing on January 2, 1973. However, as disclosed in the tran-
script of the subsequent proceedings to terminate parental rights in
the related case of In re Trapp, 528 S.W.2d 489 (Mo.App. 1975), the
matter of the testimony given at the neglect hearing on January 2,
1973, was fully covered at the trial of the termination case herein
on April 29, 1974, at which botl: Dr. Coleberd and Mr. Edmonds testi-
fied. Said transcript, which was filed with the Missouri Supreme
Court as an exhibit in this case, will hereinafter be referred to as
“ExhTr.”
= a
From the opinion and transcript in that case, it appears that
on August 10, 1972, Mrs. Trapp contacted the Henry County Welfare
office seeking public assistance and employment for her husband.
(ExhTr. 78) Mr. Trapp had been unemployed for some time except for
occasional employment on Sundays at a filling station at $1.00 an
hour. Mrs. Trapp was employed by Rival Manufacturing, but would
have to quit soon because her doctor had advised her that her fourth
child was due at any time. (ExhTr. 78-79) It was explained to her
that since her husband was employable, and even though he could not
find employment, she would not be eligible for. Aid to Dependent Child-
ren or general relief so long as he was present in the home. (ExhTr.
78) Mrs. Trapp was then referred to the service worker who suggested
that Mr. Trapp continue to make contact with a Mrs. Fletcher at "West
Central” in regard es inceting a job. (ExhTr. 78-79)
On September 8, 1972, the child, Duane Edwin Trapp, was born to
Mr. and Mre. Trapp at Golden Valley Hospital in Clinton, Missouri.
On October 20, 1972, Mrs. Trapp reapplied for Aid to Dependent
Children, representing that Mr. Trapp left her a few days before the
baby was born and that his whereabouts were unknown. Her immediate
need was for food and she was given commodities. (ExhTr. 73, 76-77,
80-81)
On October 27, 1972, Mrs. Trapp's application for Aid to De-
pendent Children was approved at $158 per month. She subsequently
received checks in that amount for November and December, 1972.
(ExhTr. 79, 81)
Mr. Bill Edmonds testified that on November 2, 1972, Mrs. Trapp
came to the welfare office in Clinton, Missouri, seeking food for
her family and medical attention for the baby, Duane. Mr. Edmonds
get a grocery order for her and followed her out to her home in
Montrose, Missouri, where they picked up the baby and brought it
back to the hospital in Clinton. (ExhTr. 36, 39) Mr. Edmonds
testified that the baby couldn't keep any food down and that, as he
recalled (on April 29, 1974), the illness the baby had on November
2, 1972, was “dehydration.” (ExhTr. 37) In his written report made
in November 1972 and introduced at the trial on April 29, 1974, ina
folder marked Exhibit 2 (ExhTr. 33), Mr. Edmonds stated: "Dr. Coleberd
e @ =
was the physician who attended the child and it was his opinion that
the child was sick because Mrs. Trapp had changed the [baby's) formu-
la. It seems that the child would not keep anything on its stomach
and also had some diarrhea. Dr. Coleberd made a prescription to
correct this and instructed the mother to keep the child on one par-
ticular formula.”
The baby was not hospitalized. Mr. Edmonds testified that he
picked up the prescription and took Mrs. Trapp and the baby back
home that evening on November 2, 1972. (ExhTr. 40-41) Mr. Edmonds
noted that the home in Montrose was a four-room house, that it was
being heated only by a small Coleman cooking stove, and that the three
older children (then 2, 3, and 4 years old) were inside the house
dressed only in undershorts, although the weather outside was begin-
ning to turn cold. (ExhTr. 38-39)
The case was first brought to the attention of the juvenile
authorities by Dr. James C. Coleberd after seeing the oldest child,
Robert, in the hospital in Clinton on December 15, 1972. Robert, who
was then four years old, had been brought to the emergency department
by his mother. He had been ill for two weeks, but Mrs. Trapp had
not been aware of any pneumonia until she took him to the hospital.
She had been unable to go sooner due to impassable roads. Examina-
tion by Dr. Coleberd, the Trapps' family physician, revealed a
severely dehydrated child who was lethargic. The diagnosis was acute
streptococcal pneumonia with severe dehydration. He was otherwise
normal, but his condition was critical, life threatening. (ExhTr.
9-11) Dr. Coleberd thereupon notified the juvenile authorities be-
cause he “felt” that Robert was a neglected child. (ExhTr. 11-12,
22-2.) Dr. Coleberd acknowledged that it is difficult for a lay
person to distinguish dehydration as a sequela of pneumonia in its
onset from less serious maladies, such as a chest cold or a fever of
a relatively benign type (ExhTr. 15-16); that the dehydration could
have had its onset as little as 24 to 48 hours before he saw the
child (ExhTr. 18-19, 24-25); and that the dehydration could have been
due to difficulty in swallowing because of a sore throat rather than
any withholding of fluids (ExhTr. 27).
Dr. Coleberd saw the three younger children in December, 1972,
= 9-
and found them in normal health and good condition. (ExhTr. 13-14,
17, 25-27)
On December 18, 1972, Mr. Edmonds received a complaint from
the prosecuting attorney in connection with the hospitalization of
Robert on December 15, 1972. (ExhTr. 43) On December 19, 1972, af-
ter the juvenile officer had submitted the petition and a temporary
order placing the children in the care and custody of the Division
of Welfare, Mr. Edmonds went out to the home to check on the situa-
tion as to the other three children. (ExhTr. 43, 51) Mrs. Trapp
had moved and the home was now located in an isolated rural area east
of Deepwater, Missouri, which was seven or eight miles from the hos-
pital in Clinton. (ExhTr. 43, 48-49, 51) It was a two-room cabin
which had formerly been used as a hunting lodge and had been ac-
quired in condemnation proceedings by the Army Corps of Engineers
in connection with the construction of the Truman Reservoir. (ExhTr.
49, 51) The roads were very bad at the time, and Mr. Edmonds had to
borrow a jeep to get out there, (ExhTr. 45) The road conditions
were such that you couldn't make it in an ordinary passenger car.
(ExhTr. 48) Mrs. Trapp did not have a telephone and there were no
close neighbors in the area. (ExhTr. 45, 49)
When Mr. Edmonds arrived at the home on December 19, 1972, he
found Mrs. Trapp and the three younger children there. Although the
three children [the oldest being age 3) were clothed in their under-
wear, the house was warm and there was plenty of firewood. There
appeared to be plenty of food; “it was considerably a better situa-
tion than the first time” when they lived in Montrose. (ExhTr. 45,
52) The three children were in good health and appeared to be well-
fed, well-nourished, and clean. (ExhTr. 45, 65, 68) “Other than
being maybe scantilly clothed,” the children appeared to be receiv-
ing proper care. (ExhTr. 68) Mr. Edmonds recommended to Mrs. Trapp
that she move from this isolated area and find a place in town which
would be closer to medical facilities. (ExhTr. 45) My Edmonds did
not feel that the children were in any apparent danger, so he left
them in the home with their mother. (ExhTr. 51)
Mrs. Trapp testified that she was unaware that Robert was suf-
fering from pneumonia until the night she got out to take him to the
- 10 -
hospital when the road got good enough to drive out, and that she
was unable to get out before that “because it was muddy and we had
that ice, snow and everything.” (ExhTr. 125)
Mr. Edmonds testified that both Mr. and Mrs. Trapp were unem-
ployed at the time of the hearing on January 2, 1973, when Judge
Journey entered the order of custody. (ExhTr. 47-48) Mr. Edmonds
further testified that Mr. and Mrs. Trapp were still unemployed at
the time of their “reconciliation” when they resumed living together
on or about January 27, 1973, and it was not until after that, that
they obtained employment. (ExhTr. 64-65, 73) He testified moreover
that he discussed employment with both Mr. and Mrs. Trapp and had
knowledge that Mrs. Trapp got a job at Wiley's Cafe and “Mr. Trapp
went to work for Meyerco in Clinton sometime in February, 1973.
(ExhTr. 54-55)
On February 27, 1973, Judge Journey entered an order (Tr. 3-4)
finding that the three youngest Trapp children “are deprived of pro-
per financial support while in foster care due to the falsification
of information on the part of the natural parents of said children;"
ordering that the Trapp parents “who are gainfully employed," pay
support for said children in the amount of $198.00 per month or
$66.00 per child, commencing March 5, 1973, and that this amount be
garnisheed from the wages of the parents through the Henry County
Circuit Clerk; and directing the sheriff to serve the parents with a
copy of said order. On March 5, 1973, a summons with the order at-
tached was issued and delivered to the sheriff, and on March 14,
1973, he made return of service of the summons on Mr. and Mrs. Trapp.
(Tr. 4a)
On March 16, 1973, Mr. »nd Mrs. Trapp filed a motion for re-
hearing (Tr. 4a-5) to regain custody of their children on the ground
that they had met the terms of the custody order of January 2, 1973,
that they were to be heard regarding the custody of their children
at such time as they were gainfully employed and able to provide ade-
quate food, clothing and shelter.
Also on March 16, 1973, execution was issued against Mr. and
Mrs. Trapp under the support order of February 27, 1973, and their
employers were subjected to garnishment proceedings returnable
April 16, 1973.
On March 26, 1973, Mr. and Mrs. Trapp offered evidence on their
motion seeking custody of their children. The motion was denied not-
withstanding recommendation by child welfare worker Fritts that cus-
tody be restored to Mr. and Mrs. Trapp.
On April 23, 1973, Mrs. Trapp's employer deposited $80.36 on
garnishment of her wages, and the court ordered it paid to Henry
County in reimbursement of monies paid out on behalf of the Trapp
children. Judgment was rendered against Mr. Trapp's employer on its
failure to respond to the execution and on May 23, 1973, $45.84 was
paid into court. This sum was also ordered paid to Henry County in
reimbursement of support monies paid for the Trapp children.
At the time of the garnishment, Mrs. Trapp was clearing less
than $37.00 per week, and the $80.36 represented more than two weeks'
wages. The $117.64 for which judgment was entered against Mr.
Trapp's employer represented what he cleared every two weeks; how-
ever, only $45.84 was returned because that was all that was due him
when his employment was terminated upon his arrest on April 16, 1973.
On April 14, 1973, Mr. and Mrs. Trapp were charged by informa-
tion with the felony of stealing $86.00 from the Department of Wel-
fare by deceit in falsely representing that Mr. Trapp was absent
from the household when he actually was in the home, in order to ob-
tain Aid to Dependent Children. Mr. Trapp was arraigned April 16,
1973, and was committed to jail to await trial in lieu of $1,000 bond.
Mrs. Trapp likewise was arraigned and committed to jail on April 27,
1973.
On May 18, the charge was reduced to the misdemeanor of steal-
ing under $50.00. Both Mr. and Mrs. Trapp pleaded guilty, were
sentenced to a year in the Henry County jail and placed on probation
for two years conditioned upon good behavior and payment of costs
(including room and board while in jail) within six months and pay-
ment of $474.00 to the Department of Welfare within one year. Upon
their release, Mr. and Mrs. Trapp went to the Henry County Welfare
Office, reported the terms of their probation, and renewed their re-
quest for the return of their children.
In June, 1973, Mr. Trapp went to work for Royal Transports in
- 12 «-
Kansas City, Missouri, making $140 to $160 per week. On June 28,
1973, Mr. and Mrs. Trapp initiated an effort through the Jackson
County Welfare Office to obtain return of their children. Their re-
quest was again denied because of Judge Journey's position that the
judgment for child support and the monetary terms of their probation
had to be satisfied in full before custody of the children would be
returned to the parents.
As previously indicated, on January 3, 1974, the Henry County
juvenile officer filed a petition in this case to terminate the pa-
rental rights of Mr. and Mrs. Trapp under §§211.441 et seg. RSMo 1969.
Trial was held on April 29, 1974, and thereupon Judge Journey entered
a judgment terminating their parental rights. The parents appealed
and the Missouri Court of Appeals, Western District, reversed the
judgment on September 2, 1975, in In re Trapp, supra, 528 S.W.2d 489
(Mo.App. 1975).
During pendency of the appeal, in July of 1974 the Henry County
Office of the Division of Family Services placed the child, Sheryl
Ann Trapp, in the licensed foster home of David L. and Judy E. Bridge-
man. On October 8, 1974, the Bridgemans filed a petition for adop-
tion of Sheryl Ann in case No. J-1847 in the Circuit Court of Henry
County, Missouri, and on October 15, 1974, Judge Journey entered an
order granting them temporary legal custody pursuant to that peti-
tion.
Likewise during pendency of the appeal, on October 15, 1974,
Judge Journey also entered an order granting temporary legal custody
of the child, Dee Ann Trapp, to Joseph W. and Lois A. Petty pursuant
to their petition for adoption in case No. J-1848 in the Circuit
Court of Henry County, Missouri; and then on December 16, 1974, Judge
Journey entered an order granting temporary legal custody of the
child, Duane Edwin Trapp, to Ronald D. and Carol J. Johnson pursuant
to their petition for adoption in case No. 74-3357 in the Circuit
Court of Bates County, Missouri.
On October 28, 1975, after the decision in In re Trapp, supra,
came down, Judge Journey entered an order in this case returning the
care, custody and control of the fourth child, Robert Emery Trapp,
vo his parents “in view of the opinion of the Missouri Court of Appeals
= 33 «
{in said case);" but requesting the Missouri Division of Family Ser-
vices to make a home study of the parents as to the return of the
three remaining children whom he had preliminarily placed in adop-
tion. (Tr. 5-6)
On December 27, 1975, the Trapp parents filed a motion to set
aside the custody order of January 2, 1973, and the support order of
February 27, 1973, or in the alternative for a hearing to restore
custody of the three remaining children to the parents. (Tr. 6-19)
Thereafter, the Trapp parents moved to vacate the proceedings
in each of the three pending adoption cases. On April 12, 1976,
Judge Journey set aside the proceedings by Ronald D. and Carol J.
Johnson for the adoption of Duane Edwin Trapp in case No. 74-3353 in
the Circuit Court of Bates County, transferred jurisdiction of said
child back to the Circuit Court of Henry County, and revested legal
custody in the Henry County Office of the Division of Family Ser-
vices under the custody order of January 2, 1973, in this case. On
April 26, 1976, Judge Journey set aside the proceedings by David L.
and Judy E. Bridgeman for the adoption of Sheryl Ann Trapp and the
proceedings by Joseph W. and Lois A. Petty for the adoption of Dee
Ann Trapp in cases No. J-1847 and No. J-1848, respectively, in the
Circuit Court of Henry County, and revested legal custody of said
children in the Henry County Office of the Division of Family Ser-
vices under the order of January 2, 1973, in the instant case. The
Bridgemans, the Pettys, and the Johnsons have taken no appeal from
the judgments dismissing their respective petitions for adoption.
On April 27, 1976, the Bridgemans filed in this case a motion
for leave to intervene accompanied by proposed petition to intervene
which included a prayer for termination of parental rights to Sheryl
Ann Trapp. This Bridgeman motion was granted ex parte on April 28,
1976.
On April 29, 1976, the Trapp parents filed an application for
change of judge on their motion (filed herein on December 27, 1975) to
set aside the custody order of January 2, 1973, and the support order
of February 27, 1973; and on May 28, 1976, Judge Journey granted the
application. On June 1, 1976, the Missouri Supreme Court assigned
Judge H. A. Kelso, of the Vernon County Circuit Court at Nevada,
a. oe
Missouri, in place of Judge Journey in the Circuit Court of Henry
County at Clinton, Missouri.
On June 15, i976, the Trapp parents moved to set aside the ex
parte order granting the Bridgemans leave to intervene and for a new
order denying the intervention. On February 7, 1977, the Bridgemans
filed a new motion to intervene accompanied by a petition to inter-
vene which, unlike their first petition, did not seek the termination
of parental rights. On February 22, 1977, Judge Kelso having retired,
the Missouri Supreme Court returned the jurisdiction of the case to
Judge Harold A. Kyser, who had succeeded Judge Journey in the Circuit
Court of Henry County. On February 25, 1977, Judge Kyser granted the
petition of the Bridgemans to intervene.
Following this, on April 29, 1977, the Henry County juvenile
officer filed in this case a new petition to terminate parental rights
to the child, Sheryl Ann Trapp. In response thereto, appellant filed
an application for change of judge which Judge Kyser denied on June
10, 1977. Pursuant to a petition for writ of prohibition, change of
judge on the termination petition was granted appellant by the Mis-
souri Court of Appeals, Western District, on January 30, 1978, in
State ex rel. Brault v. Kyser, 562 5.W.2d 172 (Mo.App. 1978). In
due course the Missouri Supreme Court assigned Judge Don W. Kennedy
of the Ci.cuit Court of Vernon County to conduct the termination of
parental rights proceeding in the Juvenile Court of Henry County.
On March 28, 1978, appellant filed herein a motion to dismiss
the second petition to intervene, which the Bridgemans were given
leave to file on February 25, 1977, on the grounds that notice was
not properly given and that the juvenile court is without jurisdic-
tion to entertain such a petition in this case.
On June 7, 1978, the Bridgemans filed their third motion to
intervene in this case (Tr. 17-19). Therein they stated that the
motion was being filed “for the purpose of clarifying the records
and relieving the Appellate Court of the necessity of considering
[the] matters [raised by appellant with respect to their previous
interventions]." They then alleged that they are licensed foster
parents and that Sheryl Ann Trapp resides with them in Phelps County,
Missouri, by authority of the Henry County Office of the Division of
a
15 =
Family Services, which placed the child with them (in July of 1974);
that they are "desirous" of adopting said child; and that they “have
a direct and substantial interest in this proceeding in that the
Court's ruling herein could have the possible effect of terminating
their right to petition for adoption of said child and to merely
maintain said child in their home as a foster child."
On July 14, 1978, appellant filed suggestions in opposition to
the Bridgemans' third motion to intervene (Tr. 19-20) on the ground,
inter alia, that permitting the Bridgemans to intervene and their
attorney to participate in this action would be inherently and funda-
mentally unfair, potentially prejudicial, end contray to public
policy.
On March 31, 1978, appellant filed in the termination proceeding
before Judge Kennedy a motion to dismiss the petition to terminate
parental rights to Sheryl Ann Trapp on the grounds that the juvenile
court has no jurisdiction to proceed thereon because at the time of
the filing of the petition on April 29, 1977, Sheryl Ann was neither
a resident of nor found within Henry County as required by §211.631
RSMo, and the court's order of January 2, 1973, making said child a
ward of the court and piacing her in the legal custody of the Henry
County Office of the Division of Family Services is null and void
for want of jurisdiction for reasons which are alleged by appellant
in the instant neglect proceeding before Judge Kyser.
On May 22, 1978, appellant filed in the neglect proceeding be-
fore Judge Kyser a mot’on to set aside the custody order of January
2, 1973, and to dismiss the neglect petition (Tr. 10-14); and on
May 30, 1978, a motion to set aside the child support order of Febru-
ary 27, 1973 (Tr. 15-17).
In the motion filed on May 22, 1978, to set aside the custody
order of January 2, 1973, appellant alleged (Tr. 10-14) that said
order is null and void for the reasons that the juvenile court was
without jurisdiction to enter the order because:
(A) The special limited statutory jurisdiction of the
juvenile court to enter such an order does not appear on the
face of the record inasmuch as (1) the neglect petition on which
the order was entered wholly failed to state "[t]he facts which
a $8 «
bring the child within the jurisdiction of the court," as re-
quired by §211.091 RSMo 1969, and (2) the court in said order
wholly failed to "make a finding of fact upon which it exer-
cise[d) its jurisdiction over the child," as required by
§211.181 RSMo 1969;
(B) As disclosed in the opinion and the transcript on
appeal in the related case of In re Trapp, 528 S.W.2d 489 (Mo.
App. 1975), the custody order of January 2, 1973, was totally
devoid of evidence to support any finding that the children
were in need of care and treatment under §211.031 RSMo 1969,
and said order therefore violated the Trapp parents’ fundamental
liberty or right to the immediate companionship, care, custody,
and management of said children under the Due Process Clause of
the Fourteenth Amendment to the United States Constitution; and
(C) The statutes (§§211.031 and 211.181 RSMo 1969) on
which the custody order of January 2, 1973, was based are un-
constitutional on their face and as applied because [they vio-
late the Due Process Clause of the Fourteenth Amendment as
heretofore set forth (ante at 2-3) in the statement of the
grounds on which the jurisdiction of this Court is invoked);
and said statutes are also unconstitutional as applied because
they denied the Trapp parents procedural due process of law in
that: (a) Pleading the mere language of §211.031 did not sat-
isfy the notice requirement of due process that the neglect
petition must contain the alleged factual basis for the pro-
ceeding as well as the legal standard authorizing the separa-
tion of the child from the parents; and (b) The standard of
proof required was a mere preponderance of the evidence rather
than at least “clear and convincing” evidence.
In her motion filed on May 30, 1978, to set aside the support or-
der of February 27, 1973, appellant alleged (Tr. 15-17) that the sup-
port order is null and void for the reasons that the juvenile court
was without jurisdiction under §211.241 RSMo 1969 (See App. E, p. 3)
to enter said order because:
(A) The jurisdictionally prerequisite order of January 2,
1973, finding the children to be within the purview of the
~ 17 «©
provisions of §211.031, was null and void for the reasons set
forth in appellant's motion (filed herein on May 22, 1978) to
set aside said custody order of January 2, 1973;
(B) As appears on the face of the record, the juvenile
court lacked the special, limited statutory jurisdiction neces-
sary to enter the support order of February 27, 1973, inasmuch
as (1) the Trapp parents neither voluntarily appeared, not were
they summoned to appear, for said proceeding to inquire into
their ability to support or to contribute to the support of
said children, as required by §211.241(1) RSMo 1969, and (2)
the court made no finding that the parents were able to support
or to contribute to the support of said children, as required
by §211.241(2) RSMo 1969; and
(C) As alleged in the motion which the Trapp parents
filed herein on December 27, 1975 (Tr. 6-10 at 8), it is appar-
ent on the face of the record that said support order is con-
stitutionally invalid because it was made in excess of the
court's jurisdiction and in a patently irregular manner in that
it was entered without affording the parents notice and an op-
portunity for a prior hearing and it thereby deprived them of
their property in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. (Tr. 16)
On September 14, 1978, appellant served a notice (Tr. 20-21) call-
ing up for hearing on September 25, 1978, all motions pending in the
neglect proceeding before Judge Kyser, including the Bridgemans' third
motion for leave to intervene filed herein on June 7, 1978 (Tr. 17-
19); appellant's motion filed herein on December 27, 1975, to set
aside the custody order of January 2, 1973, and the support order of
February 27, 1973 (Tr. 6-10); her motion filed herein on May 22, 1978,
to set aside said custody order and dismiss the neglect petition (Tr.
10-14); and her motion filed herein on May 30, 1978, to set aside the
support order of February 27, 1973 (Tr. 15-17).
On September 25, 1978, a hearing was had on the motions (Tr. 22-
' 60), and thereupon Judge Kyser entered a judgment and order granting
the Bridgemans' third motion for leave to intervene and overruling
all of appellant's motions herein (Tr. 59-61). The case was then
= 19 «
duly and timel:; appealed to the Supreme Court of Missouri.
The Questions presented herein, ante at 4-6, were presented and
briefed in the Missouri Supreme Court as follows:
1. Question I and the subsidiary Questions I(A) and I1(B) were
presented and briefed as Point I and subsidiary Points 1(c) (1) and
I(C) (2) at pages 45 and 53 of Appellant's Brief.
2. Question II was presented and briefed under Points I(A) (1)
and 1(C)(3) (a) at pages 37 and 56 of Appellant's Brief.
3. Question III was presented and briefed as Point 1(B) at
page 43 of Appellant's Brief. .
4. Question IV was presented and briefed under Points I(A) (2)
and 1(C)(3)(b) at pages 37 and 56 of Appellant's Brief.
5. Question V was presented and briefed as Point 1'ta) (2) at
page 37 of Appellant's Brief.
6. Question VI was presented and briefed as Point II(A) at
page 59 of Appellant's Brief.
7. Question VII was presented and briefed under Points II(B)
and II(C) at pages 60 and 62 of Appellant's Brief.
In its opinion (Appendix A) the Missouri Supreme Court held:
(1) That the standards for neglect in §211.031 RSMo are not unconsti-
tutionally vague and overbroad, and that due process does not require
the neglect statutes to embody the standard of harm urged by appel-
lant; (2) That the neglect petition couched in the language of the
statute satisfied the notice requirements of due process and was ade-
quate to vest the juvenile court with jurisdiction to enter the cus-
tody order; (3) That the juvenile court's finding of neglect was not
totally without evidentiary support so as to violate federal due pro-
cess; (4) That due process does not require the State to prove alleged
neglect by “clear and convincing” evidence rather than a mere pre-
onderance of the evidence; and (5) That the finding of the juvenile
court that the children were "neglected children within the meaning
of the law and in need of care and protection,” satisfied the re-
quirements of due process as established in Kent v. United States,
383 U.S. 541 (1966) and in In re Gault,387 U.S. 1 (1966).
The majority of the Missouri Supreme Court further held, over
the dissent of three of the seven judges, that the child support
» 19 ©
order entered on February 27, 1973, without further hearing after
the custody proceeding at which appellant appeared on January ¢,
1973, was valid and did not violate appellant's due process rights
to notice and an opportunity to be heard before entry of the mone-
tary support order against her.
In conclusion, the Missouri Supreme Court affirmed the juvenile
court's order of September 25, 1978, overruling appellant's motions
to set aside the custody order of January 2, 1973, and the support
order of February 27, 1973. The Court reversed that portion of the
juvenile court's order of September 25, 1978, granting the Bridgemans'
motion to intervene in the custody proceedings, and further ordered
Judge Kyser to enter an order disqualifying himself from presiding
over further proceedings concerning the custody of appellant's child-
ren.
Thus, the validity of the Missouri neglect statutes are drawn
in question on the ground of their being repugnant to the Constitu-
tion of the United States, and the decision of the Missouri Supreme
Court is in favor of their validity so that the Supreme Court of the
United States has jurisdiction of this appeal under 28 U.S.C. §1257(2).
THE QUESTIONS ARE SUBSTANTIAL
I.
THE MISSOURI PARENTAL NEGLECT STATUTES (§§211.031 and 211.181
RSMo 1969) ON WHICH THE JUVENILE COURT DEPENDED FOR ITS JURISDICTION
TO ENTER THE CUSTODY ORDER OF JANUARY 2, 1973, AND THE CHILD SUPPORT
ORDER OF FEBRUARY 27, 1973, ARE UNCONSTITUTIONAL ON THEIR FACE AND
AS APPLIED BECAUSE THEY OPERATE TO PERMIT PARENTS TO BE DEPRIVED OF
THEIR FUNDAMENTAL LIBERTY OR RIGHT TO THE IMMEDIATE COMPANIONSHIP,
CARE, CUSTODY, AND MANAGEMENT OF THEIR MINOR CHILDREN IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT IN THAT:
A. THE NEGLECT STANDARDS EMBODIED IN §211.031(1) (a,b,c) —
"PROPER SUPPORT . . ., MEDICAL, SURGICAL OR OTHER CARE NECESSARY FOR
{THE CHILD'S) WELL-BEING,” “OTHERWISE WITHOUT PROPER CARE, CUSTODY
OR SUPPORT,” AND “BEHAVIOR, ENVIRONMENT OR ASSOCIATIONS . . . INJURI-~
OUS TO [THE CHILD'S] WELFARE OR TO THE WELFARE OF OTHERS” — ARE UN-
CONSTITUTIONALLY VAGUE AND OVERBROAD BECAUSE: (1) THEY DO NOT GIVE
FAIR WARNING OF THE PARENTAL CONDUCT PROSCRIBED; (2) THEY PERMIT
- 20 -
ARBITRARY AND DISCRIMINATORY SEPARATION OF THE CHILD FROM THE PAR-
ENTS; AND (3) THEY INHIBIT THE EXERCISE OF THE PARENTS' "LIBERTY"
AND "PRIVACY" RIGHTS IN MAINTAINING THE INTEGRITY OF THEIR FAMILY
AND REARING THEIR CHILDREN,
As the United States Supreme Court has made clear, the loss of
a fundamental constitutional “liberty” or right is at steke in pro-
ceedings to deprive parents of the companionship, care, custody, and
management of their minor children. In Meyer v. Nebraska, 262 U.S.
390, 399 (1923), the Court announced that the "liberty" guaranteed
by the Fourteenth Amendment "[w)ithout doubt, . . . denotes ... the
right of the individual . . . to marry, establish a home and bring
up children." Similarly, in Pierce v. Society of Sisters, 268 U.S.
510, 534-535 (1925), the Court affirmed the enjoining of an Oregon
statute which was deemed to interfere “with the liberty of parents
and guardians to direct the upbringing and education of children
under their control." In Prince v. Massachusetts, 321 U.S. 158, 166
(1944), the Court noted that "It is cardinal with us that the custody,
care and nurture of the child reside first in the parents, whose pri-
mary function and freedom include preparation for obligations the
State can neither supply nor hinder. * * * And it is in recognition
of this that these decisions [Meyer and Pierce) have respected the
private realm of family life which the state cannot enter."
In May v. Anderson, 345 U.S. 528, 533 (1953), the Court denied
full faith and credit to an ex parte custody decree, noting that the
Fourteenth Amendment's liberty included a parent's “immediate right
to the care, custody, management and companionship of . . . minor
children.” In Cleveland Board of Education v. LaFleur, 414 U.S. 632,
639 (1974), the Court observed that the “freedom of personal choice
in matters of marriage and family life is one of the liberties pro-
tected by the Due Process Clause of the Fourteenth Amendment."
in Roe v. Wade, 410 U.S. 113, 152-153 (1973), the Court pointed
out that a constitutional right of personal privacy extends to “acti-
vities relating to marriage, procreation, contraception, family re-
saiaagae~ and child rearing and education," and that “only personal
a
rights/can be deemed ‘fundamental’ or ‘implicit in the concept of
ordered liberty' are included in this guarantee of personal privacy."
And the Court further expressed its belief that this right of pri-
vacy is “founded in the Fourteenth Amendment's concept of personal
liberty and restrictions upon state actinn.” See also Carey v.
Population Services International, 431 U.S. 678, 684-685 (1977);
=2P
Zablocki v. Redhail, 434 U.S. 374, 384-385 (1978).
In Stanley v. Illinois, 405 U.S. 645, 652 (1972), the Court in
considering the constitutional dimensions of an unwed father's right
to the custody of his children, said:
"The private interest here, that of a man and the child-
ren 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 ar-
rangements.' * * *
“The Court has frequently emphasized the importance of the
family. The rights to conceive and raise one's children have
been deemed ‘essential,’ .. . ‘basic civil rights of man’...
and ‘rights far more precious .. . than property rights’ .
* * * The integrity of the family unit has found protection in
the Due Process Clause of the Fourteenth Amendment, .. . the
Equal Protection Clause of the Fourteenth Amendment, . . . and
the Ninth Amendment .. .." (Citations omitted.)
The inescapab)e conclusion from the foregoing is that the parent's
right to the immediate companionship, care, custody, and management
of his or her children is a fundamental liberty protected by the Due
Process Clause of the Fourteenth Amendment. See Alsager v. District
Court of Polk County, Iowa, 406 F.Supp. 10, 15-16 (S.D.Ia. 1975),
aff'd, 545 F.2d 1137 (8th Cir. 1976); Roe v. Conn, 417 F.Supp. 769,
778, 779 (M.D.Ala. 1976) (three judge court); Sims v. State Dept. of
Public Welfare, 438 F.Supp. 1179, 1190 (S.D.Tex,. 1977); Davis v.
Paige, 442 F.Supp. 258, 261-262 (S.D.Fla. 1977). It is also apparent
that the Fourteenth Amendment's deferential protection is not limited
to permanent or final deprivations of that fundamental right such as
result form proceedings to terminate parental rights. Indeed, in
Stanley v. Illinois, supra, 405 U.S. at 647, the Supreme Court re-
jected such 4 suggestion and held that such protection extended to
a dependency proceeding in which the deprivation of the right to
custody was temporary or nonfinal. In doing so, the Court observed
that in the interim between the removal and the regaining of the
custody of the children, the parent “suffers from the deprivation of
his children, and tne children suffer from uncertainty and disloca-
tion.”
The same is true of a neglect proceeding such as the instant
one. As pointed out in Duchesne v. Sugarman, 566 F.2d 817, 825 (2d
Cir. 1977): “(Such a proceeding is) concerned with the most essen-
tial and basic aspect of familial privacy —the right of the family
to remain together without the coercive interference of the awesome
power of the state. This right to the preservation of family in-
tegriiy encompasses the reciprocal rights of both parent and child-
ren. It is the interest of the parent in the ‘companionship, care,
custody, and management of his or her children,' Stanley v. Illinois,
405 U.S. 645, 651 (1972), and of the children in not being dislocated
from the ‘emotional attachments that derive from the intimacy of
daily association,’ with the parent, Smith v. Organization of Foster
Pamilies, 431 U.S. 816, 844 (1977).”
It is well recognized that the State's removal of a child from
the parent in a neglect proceeding is a drastic action. Roe v. Conn,
supra, 417 F.Supp. at 778 n. 9; R. v. Superior Court, 19 Cal.App.3d
895, 97 Cal.Rptr. 158, 162-163 (1971). The loss which accompanies the
State's action is quite grievous and substantial for both the c...1d
and the parent. The generally prevailing view is that most children
have strong psychological attachments to their parents, and when
those ties are broken by separation, the child suffers short-term
trauma and pain and possibly long-term
emotional damage. See the American Bar Association Juvenile Justice
Standards Project's Standards Relating to Abuse and Neglect (1977),
1
Commentary at 124, Reciprocally, most parents view the loss of
custody in such a proceeding as dire punishment. R. v. Superior
1 These Standards Relating to Abuse and Neglect were among
seventeen volumes o tandards for Juvenile Justice approved by the
American Bar Association's House of Delegates at its Mid-Year Meet-
ing in 1979. See 48 U.S. Law Week 2527-2528.
Court, supra, 97 Cal. Rptr. at 162. In fact, such loss of the right
to custody of one's child may be viewed as a sanction more severe
than imprisonment. State ex rel. Lemaster v. Oakley, 203 S.E.2d 140,
144 (W.Va. 1974); Danforth v. State Department of Health and Welfare,
303 A.2d 794, 800 (Me. 1973). Indeed, it has been recognized that
the right of a parent to the custody and companionship of his child
is “more precious to many people than the right of life itself.” In
re Myricks, 85 Wash.2d 252, 533 P.2d 841, 842 (Banc 1975); In re
Luscier, 84 Wash.2d 135, 524 P.2d 906, 908 (Banc 1974).
The theoretical “temporary” separation, moreover, may well prove
to be quite prolonged. Under §211.041 RSMo 1969 (App. E, p. 1), the
State may retain custody of the child until he reaches the age of 21;
and while under §211.251 RSMo 1969 (App. E, p. 3) a parent may peti-
tion the juvenile court at any time for a modification of the custody
order, the court may in its discretion deny the petition without even
a hearing. Cf. Davis v. Paige, supra, 442 F.Supp. at 265. See also
Smith v. Organization of Foster Families, 431 U.S. 816, 834-836 (1977).
In ruling that the neglect standards embodied in §211.031 RSMo
1969 are not unconstitutionally vague and overbroad, the Missouri
Supreme Court (App. A, p. 11) followed the holding in Minor Children
of F.B. v. Caruthers, 323 S.W.2d 397, 401 (Mo.App. 1959). It should
be noted that the Caruthers court prefaced its holding with the
statement that "since no crime has been charged . . . and since the
purpose of the proceeding is . . . not to punish, the constitutional
guarantees [against vagueness) in respect to criminal cases do not
apply.” 323 S.W.2d at 399-400. In effert the Caruthers court dis-
tinguished the proceedings in question here from criminal cases by
use of what the United States Supreme Court in In re Gault, 387 U.S.
1, 50 (1967), called the “'civil' label-of-convenience which has been
attached to juvenile proceedings.” But, as the Supreme Court pointed
out in In re Winship, 397 U.S. 358, 365 (1970), “Gault expressly re-
jected that distinction as a reason for holding the Due Process
Clause inapplicable to a juvenile proceeding.” And as the Court de-
clared in Breed v. Jones, 421 U.S. 519, 529 (1975), “it is clear
under our cases that determining . . . the applicability of consti-
tutional rights, in juvenile proceedings, requires that courts eschew
«(24 «
the ‘civil’ label-of-inconvenience which has been attached to
juvenile proceedings, and that 'the juvenile process .. . be can-
didly appraised,'"
Moreover, in Small Co. v. American Sugar Refining Co., 267 U.S.
233, 238-242 (1925), the Court held that the due process guarantee
against vagueness applies with equal force to statutes in "civil"
as well as "criminal" cases. Referring to criminal cases wherein
the statutes were held void for vagueness, the Court said at 239:
"The defendant [like the Caruthers court] attempts to distinguish
those cases because they were criminal cases. But that is not an
adequate distinction. The ground or principle of thlose] decisions
was not... . applicable only to criminal prosecutions. It was not
the criminal penalty which was held invalid, but the exaction of
obedience to a rule or standard which was so vague and indefinite
as really to be no rule or standard at all."
In striking down a statute under which the defendant was as-
sessed court costs of $230.95 after acquittal in Giaccio v. Pennsyl-
vania, 382 U.S. 399, 402-403 (1966), the Court reiterated the point:
"* * * Both liberty and property are specifically pro-
tected by the Fourteenth Amendment against any state depri-
vation which does not meet the standards of due process, and
this protection is not to be avoided by the simple label a
State chooses to fasten upon its conduct or its statutes.
So here this state Act whether labeled 'penal' or not must
meet the challenge that it is unconstitutionally vague.
"It is established that a law fails to meet the require-
ments of the Due Process Clause if it is so vague and standard-
less that it leaves the public uncertain as to the conduct it
prohibits or leaves judges and jurors free to decide, without
any legally fixed standards, what is prohibited and what is not
in each particular case. * * *" (Emphasis added.)
In other words, as the Court stated in Connally v. General Con-
struction Co., 269 U.S. 385, 391 (1926), “a statute which either for-
bids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ
as to its application, violates the first essential of due process
of law."
In Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972),
the Court set forth the elemental principles of the void-for-
vagueness doctrine:
"It is a basic principle of due process that an enact-
ment is void for vagueness if its prohibitions are not clearly
defined. Vaque laws offend several important values. First,
because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordi-
nary intelligence a reasonable opportunity to krow what is
prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates policy matters to police-
men, judges, and juries for resolution on an ad hoc and subject-
ive basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a vague
statute ‘abut[s] upon sensitive areas of basic First Amendment
freedoms' it ‘operates to inhibit the exercise of [those]
freedoms.' Uncertain meanings inevitably lead citizens to
‘steer far wider of the unlawful zone... than if the boun-
daries of the forbidden areas are clearly marked.'”
The Supreme Court, moreover, has made it clear that the void-
for-vagueness doctrine requires a greater degree of specificity where
the statute threatens the exercise of a fundamental right. Rose v.
Locke, 423 U.S. 48, 50 n. 3 (1975); Smith v. Goguen, 415 U.S. 566,
572-573 (1974). While the Court was speaking in the context of the
First Amendment, the principle is equally applicable here. As here-
tofore seen, the Court has made it clear that it is a fundamental
right which is affected by the parental neglect statutes. Indeed,
the right to the custody of one's own children, free from unwarranted
state interference, may be viewed as a right even more basic and
precious to a parent than freedom of speech. In such a case, unlike
in cases dealing with purely economic regulation, the question of
vagueness must be determined from the statute "on its face” without
@ 26 ©
regard to the conduct to which it is applied. See Smith v. Goguen,
supra, 415 U.S. at 573 n. 10. Compare United States v. National
Dairy Products Corp., 372 U.S. 29, 36 (1963).
The neglect standards embodied in §211.031 RSMo 1969 (App. E,
p. 1) — “proper support .. ., medical, surgical, or other care
necessary for [the child's] well-being," “otherwise without proper
care, custody or support,” and “behavior, environment, or associa-
tions . .. injurious to [the child's) welfare or to the welfare of
others” — are plainly susceptible to multifarious interpretations
which prevent the ordinary person from knowing what conduct is pro-
hibited, and afford state officials with so much discretion in their
application that arbitrary and discriminatory deprivations of
parental custody are inevitable.
What is meant by “proper care"? According to Webster's New
International Dictionary, 2d Ed., the word “proper” may mean:
"appropriate; suitable; right; fit; * * * correct; * * * conform-
ing to the best usage ethically or socially.” What then is proper
care? Is it correct care? Fit care? Appropriate care? Care con-
sistent with propriety? Is propriety to be determined ethically,
socially, or economically? Or on the basis of morality? Or pros-
perity? Is the standard a maximum, a minimum, a mean, or an average?
As held with respect to a neglect standard cf "proper parental care,”
in Roe v. Conn, supra, 414 F.Supp. 769, 780: “Obviously, this is a
question about which men and women of ordinary intelligence would
greatly disagree. Their answers would vary in large measure in re-
lation to their differing social, ethical, and religious views. Be-
cause these terms are too subjective to denote a sufficient warning
to those individuals who might be affected by their proscription,
the statute is unconstitutionally vague.” And as held with respect
to a standard of a “proper home,” in Davis v. Smith, 583 S.W.2d 37,
43-44 (Ark.Sup. 1979), such a standard is unconstitutionally vague
because it means one thing to one judge, something else to another,
and something yet different to still another.
The same is true of the Missouri neglect standards of "care
necessary for [the child's] well-being,” and of an “environment .. .
injurious to [the child's] welfare." Webster's Third New Internationa)
-27-
Dictionary defines the word “well-being” as "the state or condition
of being well; a condition characterized by happiness, health or
prosperity; moral or physical welfare." And it defines the word
“welfare” as “the state of faring or doing well; thriving or success-
ful progress in life; a state characterized esp. by good fortune,
happiness, well-being, or prosperity; * * * a social optimum.”
The Missouri standard of “care necessary for [the child's]
well-being,” is essentially the same as the Iowa parental termina-
tion standard of “necessary parental care and protection,” which was
struck down as unconstitutionally vague in Alsager v. District Court
of Polk County, Iowa, supra, 406 F.Supp. at 17-21. The Missouri
standard is also similar to the Alabama parental neglect standard
that custody of the child may be taken when "its welfare requires,"
which was likewise struck down in Roe v. Conn, supra, 414 F.Supp. at
777-778.
The Missouri neglect standard of an “environment .. . injuri-
ous to [the child's] welfare,” is also essentially the same as the
Iowa standard of "“[parental) conduct .. . detrimental to the physical
or mental health or morals of a child," which was struck down as un-
constitutionally vague in Alsager, supra, 406 F.Supp. at 17-21.
The question arises in this case as to when is a home an "en-
vironment . . . injurious to [the child's] welfare” under the Mis-
souri statute. Is a substandard or otherwise inadequate home such
an "environment"? If it is, then there are millions of American
families whose children could potentially be adjudged neglected on
that count. See 42 U.S.C.A. §§1441, 144la of the National Housing
Act. Is a home without running water such an “environment”? Is a
home in an isolated rural area such an "environment"? If it is,
then there are still a good number of parents who could lose custody
of their children for that reason. Does this standard apply to
parents who are unable to provide an adequate home because of their
poverty? The Missouri Supreme Court here indicated that it does.
(App. A, pp. 3-4, 10 n. 10) But such a view that parents may be
deprived of their constitutionally protected right to custody of
their children solely because of their indigency, is totally unpre-
cedented and inconsistent with our tradition of administering justice
a ae
equally to the rich and to the poor. See the concurring opinions
of Mr. Justice Powell and Mr. Justice Stevens in the case of Zablocki
vy. Redhail, supra, 434 U.S. at 402-403 and 404-405.
The Missouri Supreme Court suggests (App. A, P- 11) that the
neglect standards are necessarily broad and imprecise because of the
many ways in which the need of children for care may arise, but this
contention is not well founded. Such vagueness not only should but
can be cured by defining the grounds for state intervention in terms
of specific harms to the child so as to permit the State to inter-
vene only when the child is and will continue to be imminently sub-
ject to a substantial risk of serious harm as a result of the culpable
conduct of his parents, and more harm is likely to befall the child
by remaining with his parents than by being separated from them, as
has been done in the ABA Standards Relating to Abuse and Neglect
2
(ante at 23 n. 1).
While the facial defect of vagueness in a statute can be cured
’ As pointed out in the Commentary to the ABA Standards kelat-
ing to Abuse and Neglect, supra, at 40-41:
"The present resort to vague, general statutes is unacceptable
for a number of reasons. Most importantly, by failing to identify
the specific harms which justify intervention, such laws increase
the likelihood that decisions will be made to intervene in situa-
tions where the child will be harmed by intervention. It has be-
come increasingly clear in recent years that coercive intervention
can be harmful to children as well as helpful. * * * This is es-
pecially true when intervention leads to removal of the child from
the home. * * * Therefore, it is necessary to provide specific
guidelines to courts and social work agencies regarding those types
of harm which justify intervention and that define the situations
in which intervention is likely to be beneficial to the child.
"Moreover, vague laws facilitate arbitrary, and even discrimi-
natory, intervention. Unless the bases for intervention are clearly
defined, each social worker and judge can make his/her own ° »lue
judgments about those harms which justify intervention. There is
substantial evidence that such decisions sometimes involve imposing
middle class values upon poor families without taking into account
different cultural patterns of child rearing. Vague laws also re~-
sult in unequal treatment of similarly situated persons. Again, it
must be recognized that such arbitrary intervention not only is vio-
lative of basic values in our society, it may also be quite harmful
to the children who are being ‘protected.’
“Pinally, all intervention involves value judgments about ap~
propriate childrearing practices and value choices about where and
how a child should grow up. Considering the seriousness of the de-
cision to intervene, intervention should be permissible only where
there is a clear-cut decision, openly and deliberately made by re-
sponsible political bodies, that the type of harm involved justifies
intervention. Such value judgments should not be left to the indi-
vidual tastes of hundreds of nonaccountable decisionmakers." (Cita-
tions omitted."
- 29 -
by judicial construction restricting the vague standards to consti-
tutionally permissible bounds, the Missouri appellate courts have not
undertaken to make any such restrictive construction. In the great
majority of the decisions involving an application of the parental
neglect standards, the Missouri courts have simply made a determina-
tion as to the substantiality of the evidence to support a finding
based on those standards.
§211.031 RSMo 1969 is also unconstitutionally vague as applied.
The statute did not give appellant fair warning that it prohibited
her from permitting her small children to be dressed only in under-
wate while inside the a al Or from living in a house without
‘running water. Or from living in a two-room cabin on land that had
been condemned. Or from living in an isolated rural area.
Thus, contrary to the opinion of the Missouri Supreme Court,
the neglect standards embodied in §211.031 RSMo 1969, are unconsti-
tutionally vague, both on their face and as applied, in that (1)
they do not, and did not here, give fair warning of what parental
conduct is proscribed; (2) they permit, and permitted here, arbi-
trary and discriminatory separation of the child from the parent;
and (3) they inhibit parents from freely and fully exercising their
fundamental “liberty” and “privacy” rights in maintaining the in-
tegrity of their family and rearing their children. See Alsager,
supra, 406 F.Supp. at 21; Roe v. Conn, supra, 417 F.Supp. at 778-780.
See also Alsager, supra, 545 F.2d 1137, 1138, where the Eighth Cir-
cuit Court of Appeals in affirming the decision of the District
Court on other grounds (which will hereinafter be presented in the
instant case), felt compelled to note that the vagueness and over-
breadth attacks on the facial validity of such statutory standar’s
are “serious ones,” and that the placing of a limiting construction
upon such provisions is “plainly desirable.”
B. THE STATUTES (§§221.031 AND 211.181 RSMo) ARE UNCONSTITU-
TIONAL ON THEIR FACE AND AS APPLIED BECAUSE THEY DENY SUBSTANTIVE
DUE PROCESS IN THAT THEY DO NOT REQUIRE THE STATE TO BALANCE ITS
3
Compare Alsager, supra, 406 F.Supp. at 22, where the pro-
hibited conduct of which the Iowa statute did not give the Alsager
parents fair warning, includ permitting their children to leave
the house in cold weather without winter clothing on.
= 39
CHILD-PROTECTION INTEREST AGAINST THE STRONG COUNTERVAILING INTEREST
OF THE PARENTS, TO WIT: (1) THE STATUTES DO NOT REQUIRE THE STATE
TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD IS IMMINENTLY
SUBJECT TO A SUBSTANTIAL RISK OF SUFFERING SERIOUS HARM DUE TO THE
CULPABLE CONDUCT OF HIS PARENTS AND THAT MORE HARM IS LIKELY TO BE-
FALL THE CHILD BY BEING PERMITTED TO REMAIN WITH HIS PARENTS THAN BY
BEING SEPARATED FROM THEM, SO AS TO GIVE THE STATE THE COMPELLING
STATE INTEREST NECESSARY TO JUSTIFY DEPRIVING THE PARENTS OF THE
FUNDAMENTAL RIGHT TO THE CUSTODY OF THEIR CHILDREN; AND (2) THE STA-
TUTES ARE NOT NARROWLY TAILORED TO ACHIEVE ONLY THE STATE'S COMPEL-
LING STATE INTEREST IN THAT THEY DO NOT REQUIRE THE STATE TO PURSUE
LESS DRASTIC ALTERNATIVES, SUCH AS PROVIDING SUPERVISORY GUIDANCE
TO THE PARENTS AND THE CHILD IN THE HOME, BEFORE RESORTING TO SEPA-
RATION OF THE CHILD FROM THE PARENTS. :
As heretofore seen, the interest of a parent in the companion-
ship, care, custody, and management of his children is one of the
most fundamental rights protected by the Constitution. As the Su-
preme Court pointed out in Roe v. Wade, 410 U.S. 113, 115 (1973):
“Where certain ‘fundamental rights’ are involved, the Court has held
that reguiation limiting these rights may be justified only by a
‘compelling state interest,” and that legislative enactments must be
narrowly drawn to express only the legitimate state interest at
stake.” Similarly, in Zablocki v. Redhail, supra, 434 U.S. 374, 388
(1978), the Court declared: “When a statutory classification signi-
ficantly interferes with the exercise of a fundamental right, it can-
not be upheld unless it is supported by sufficiently important state
interests and is closely tailored to effectuate only those interests.”
In other words, a State “may abrogate such rights only to advance a
compelling state interest and pursuant to a narrowly-drawn statute
restricted to achieve only the legitimate objective." Roe v. Conn,
supra, 417 F.Supp. at 779.
As held in Stanley v. Illinois, supra, 405 U.S. 645, 652 (1972),
the interest of a parent in the companionship, care, custody, and
management of his or her children “undeniably warrants deference and,
absent a powerful countervailing interest, protection.” Thus while
the State has a legitimate interest in protecting children, that
os 32 «
interest must be balanced against the parents’ strong countervailing
interest in being able to raise their children in an environment
free from unwarranted government interference. Alsager, supra, 406
F.Supp. at 22. Due process therefore requires the showing of a cer-
tain threshhold of harm to the child to give the State a "child-
protection interest" campelling enough to justify the deprivation of
parental custody. Id. at 22-23. "Without danger of immediate harm
or threatened harm to the child, the State's interest in protecting
the child is not sufficient to justify a removal of the child [from
his parents)." Roe v. Conn, supra, 417 F.Supp. at 778. The State's
burden is to show that the harm to which the child is subjected is
real and substantial. Id. at 779. And to have an interest "compel-
ling” enough to curtail the parents' rights, the State must show
that more harm is likely to befall the child by remaining with his
parents than by being separated from them. Alsager, supra, 406
F.Supp. at 24, aff'd, 545 F.2d 1137 (8th Cir. 1976).
The Missouri Supreme Court indicated (App. A, p. 10) that such
a standard of harm is limited to permanent or final deprivations of
custody such as result from proceedings to terminate parental rights.
But in Roe v. Conn, supra, 417 F.Supp. at 777-778, the standard was
applied in the context of a proceeding to temporarily remove the
child from his parents, as well as a proceeding to terminate parental
rights. So, too, in a neglect proceeding in Sims v. State Dept. of
Public Welfare, 438 F.Supp. 1179, 1193-1194 (S.D.Tex. 1977), the
three-judge court held that the State was required to show "by clear
and convincing evidence” that the State's taking of custody "is
necessary to protect the child from physical injury.” The court did
not strike down the Texas statute in this respect, however, because
the statute allowed the State to take custody of a child in order
"to protect him from an immediate danger to his health or physical
safety." The court held that such language represents a constitu-
tionally adequate standard, and noted (Id. at 1192 n. 14) that the
standard is far more acceptable than that of the Alabama statute
which provided for taking custody of the child when “its welfare re-
quires,” and was found unconstitutional in Roe v. Conn, supra.
Moreover, as previously indicated (ante at 29), the ABA Standards
a ae
Relating to Abuse and Neglect, ante at 23, embody the standard that
the State should be authorized to intervene only when the child is
and will continue to be imminently subject to a substantial risk of
serious harm as a result of the culpable conduct of his parents, and
more harm is likely to befall the child by remaining with his parents
than by being separated from them. (See Standards 1.1, 1.2, 1.3, and
2.1.)
The Missouri neglect statutes provide no such restrictive stan-
dard, and by the same token, require no threshhold of harm. On the
contrary, §211.011 RSMo 1969 (App. E, p. 1) declares that the pur-
pose of the Juvenile Courts Chapter "is to facilitate the care, pro-
tection, and discipline of children,” and proceeds to speak in
expansive terms of removal "to the end that each child coming within
the jurisdiction of the juvenile court siall receive such care...
as will conduce to the child's welfare and the best interests of the
state.” Thus, as this case demonstrates, the Missouri Act on its
face permits the removal of a child from his parents without any
showing that the child is suffering, or will be imminently subject
to a substantial risk of suffering serious harm due to culpable con-
duct of his parents, if left with them.
As previously seen (ante at 8-10), the only harm being suf-
fered by any of the four children at the time the petition was filed
on December 19, 1972, was the streptococal pneumonia for which the
oldest child was taken to the hospital by his mother on December
15, 1972. But there was no evidence that the pneumonia was due to
his mother's neglect. The three younger children involved on this
appeal were all found at the time to he in good health, well-fed,
well-nourished and clean. The matter of changing the baby's formula
which caused the illness for which he received out-patient medical
attention on November 2, 1972, had obviously been corrected. There
simply was no evidence of any risk of harm to which the three younger
children, and the oldest child upon his release from the hospital,
would be subjected if left with their mother.
Thus, the Missouri neglect statutes (§§211.031 and 211.181 RSMo)
are unconstitutional on their face and as applied because they deny
substantive due process in that they permit deprivations of parental
custody without the showing of a level of harm sufficient to give
=: $3.<
the State a “child-protection interest" compelling enough to justify
such separations.
Furthermore, it is a familiar and basic principle that "a
governmental purpose to control or prevent activities constitution-
ally subject to state regulation may not be achieved by means which
scons wnnseeseunl broadly and thereby invade the area of protected
freedoms.” Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964).
In a series of decisions, the Supreme Court has held that, "even
though the governmental purpose be legitimate and substantial, that
purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgement must be viewed in the light of
less drastic means for achieving the same purpose." Shelton v.
Tucker, 364 U.S. 479, 488 (1960). "“(T)he Constitution requires that
the powers of government ‘must be so exercised as not, in attaining
a permissible end, unduly to infringe’ a constitutionally protected
freedom.” Aptheker, supra, 378 U.S. at 509.
Section 211.181 RSMo 1969 (App. E, pp. 2-3), however, does not
require the State to pursue less drastic alternatives, such as pro-
viding supervisory guidance to the parents and the child in their
home, before resorting to separation of the child from the parents.
See Roe v. Conn, supra, 417 F.Supp. at 779. See also Alsager, supra,
406 F.Supp. at 24 n. 19. The Missouri neglect statutes therefore
“sweep too broadly” and again deny due process both on their face
and as applied in the instant case.
II.
THE NEGLECT PETITION WAS WHOLLY INSUFFICIENT TO VEST THE
JUVENILE COURT WITH JURISDICTION TO ENTER THE CUSTODY ORDER BECAUSE
THE PETITION MERELY ALLEGED NEGLECT IN THE CONCLUSORY LANGUAGE OF
§211.031 RSMo 1969 AND THUS VIOLATED THE REQUIREMENT OF §211.091
RSMo 1969 AND OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
THAT SUCH A PETITION MUST SET FORTH THE ALLEGED FACTUAL BASIS FOR
THE PROCEEDING.
As heretofore seen (ante at 6-7), the printed form neglect
petition in this case merely alleged in the language of §211.031
RSMo 1969 that the parents “have neglected and refused to provide
o (34
proper support, . . . medical, surgical, or other care necessary for
the well-being of said child," that said child “is otherwise without
care, custody or support,” and that “the behavior, environment or
associations of the child are injurious to his welfare or to the
welfare of others." As held in In re Gault, 387 U.S. 1, 31-33 (1967),
a petition alleging in general conclusory terms that the child is
"neglected, dependent or delinquent" does not satisfy the notice re-
quirements of due process. In this regard, the Supreme Court stated,
387 U.S. at 33-34:
"* * * Notice, to comply with due process requirements
must be sufficiently in advance of scheduled court proceedings
so that reasonable opportunity to prepare will be afforded,
and it must ‘set forth the alleged misconduct with particula-
rity.' * * * [Due process) require[s] that the child and his
parents . . . be notified, in writing, of the specific charge
or factual allegations to be considered at the hearing, and
that such written notice be given... sufficiently in advance
of the hearing to permit preparation. Due process of law re-
quires notice of the sort we have described -- that is, notice
which would be deemed constitutionally adequate in a civil or
criminal proceeding. It does not allow a hearing to be held
in which a youth's freedom and his parents’ right to his cus-
tody are at stake without giving them timely notice, in advance
of the hearing, of the specific issues that they must meet.”
(Emphasis added.)
In other words, as the Court pointed out, 387 U.S. at 17 n. 22, “no-
tice of issues" is one of the constitutional requirements of due
process which apply in “civil” as well as “criminal” proceedings.’
It should be noted that Gault held that due process required
that the above-described notice be given to the parents as well as
the child in such a case; such notice was required to be given to
the child because his freedom was involved, and to the parents
Another, but not the sole, notice requirement of due process
in any case is that the form of the notice be “reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendancy of the action and affcrd them an opportunity to present
their objections.” Mullane v. Central Hanover B. & Tr. Co., 339 U.S.
306, 314 (1950); Armstrong v. Manzo, 380 U.S. 545, 550 (1965).
— en
because their right to custody of the child was at stake in the de-
linquency proceeding. The same parental right to custody is in-
volved in a neglect proceeding. Indeed, the deprivation of parental
custody which may be at stake in a neglect proceeding is as grea’
as that vhich was at stake in Gault.” By the same token, the apoli-
cability of the holding of Gault with respect to the parents' due
process right to adequate notice of the factual basis for the pro-
ceeding to deprive them of custody, cannot be denied on the ground
that in Gault the child's freedom was at stake, while here it is not.
The rationale of the due process requirement that the petition
must notify the parents of the factual basis for the proposed depri-
vation of parenial custody, is well stated in City of Raytown v.
Roach, 360 S.W.2d 741, 743 (Mo.App. 1966), with reference to the suf-
ficiency of the complaint in a municipal ordinance prosecution:
“The prime purpose of such a pleading (as can be said of the peti-
tion in any civil action) is to inform the defendant of the nature
of the action lodged against him in order that he may defend against
it. * * * He should not be required to guess at what he is to de-
fend against or speculate as to the meaning of the allegations in
the complaint [* * * nor have any) difficulty in determining what
evidence would be admissible under them... .."
Measured against this notice requirement of due process, the
petition here fails to pass constitutional muster. By no stretch
of the imagination can the petition be construed to have notified
appellant of any specific charge or factual situation she would need
to prepare to defend against. The petition did not inform her of
whether she wo.ld have to meet the general conclusory charge of:
(1) neglect to provide proper support; or of (2) neglect to provide
necessary medical care; or of (3) neglect to provide other (unspeci-
fied) care necessary for the children's well-being; or of (4, 5, 6)
permitting the children to be otherwise without proper care, or
custody, or support; or of (7, 8, 9) permitting the behavior, or
the environment, or the associations of the children to be injurious
In a delinquency proceeding the parents may be deprived of
the custody of the child until he reaches the age of 21 and becomes
emancipated. See Gault, 387 U.S. at 36-37. In a neglect proceed-
ing the juvenile court may retain jurisdiction of the child until he
reaches the age of 21. See §21).041 RSMo 1969 (App. E, p. 1).
= 3% =
to their welfare or that of others.
Even if the petition had made clear which of these general
charges were lodged against appellant, it would not have inforned
her of the specific issues of fact she would have to meet. This
would plainly be true if, for example, the petition had clearly
charged her with neglect to provide medical or other care necessary
for the children's well-being, because the need for care “may arise
in so many ways,” Minor Children of F.B. v. Caruthers, 323 S.W.2d
397, 401 (Mo.App. 1959), and there are so “many diverse circumstances
which give rise to a finding of neglect ...." In re Neglected Child,
130 Vt. 525, 296 A.2d 250, 254 (1972).
Contrary to the view adopted by the Missouri Supreme Court (App.
A, p. 7), such a general charge does not constitute an allegation of
facts. As clearly recognized in Missouri Supreme Court Rule 114.01
V.A.M.R.»” such a charge constitutes a “standard of conduct,” as
distinguished from “the facts" which are the acts, including the
time, place and manner thereof, which allegedly violate the standard
of conduct. By the .wme token, the petition here did not “set forth
plainly ... [t]he tacts which bring the child within the jurisdic-
tion of the court,” as required by §211.091({2) RSMo 1969 (App. E, p. 1).
Failing, as it did, to comply with the mandate of §211.091 and
the due process requirement of notice of issues, the neglect petition
was wholly insufficient to give the juvenile court jurisdiction to
proceed to enter the custody order of January 2, 1973.
III.
THE CUSTODY ORDER OF JANUARY 2, 1973, IS CONSTITUTIONALLY IN-
VALID AND VOID BECAUSE THERE WAS A TOTAL ABSENCE OF COMPETENT AND
SUBSTANTIAL EVIDENCE TO SUPPORT THE JUVENILE COURT'S FINDING OF
NEGLECT, AND SAID ORDER THEREFORE DEPRIVED APPELLANT OF HER FUNDA-
MENTAL RIGHT TO THE IMMEDIATE ee ee — CUSTODY, AND
MANAGEMENT OF HER CHILDREN IN VIOLATION or Suz PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT .
S Rule 114.01(b) (3) provides that the petition in a neglect pro-
ceeding “shall set forth plainly and concisely, with reasonable par-
ticularity . . . the facts which bring the juvenile within the
urisdiction of
manner o e acts an aw or standard of conduct, any, al-
legedly violated by the note."
- 37 «-
As previously seen, it is clear that the right of a parent to
the immediate companionship, care, custody, and management of his or
her minor children is a fundamental “liberty” protected by the Due
Process Clause of the Fourteenth Amendment. It is also well recog-
nized that where a judgment depriving a person of liberty or property
is totally devoid of evidentiary support, such a judgment is consti-
tutionally invalid and void under the Due Process Clause and may be
collaterally attacked. Thompson v. Louisville, 362 U.S. 199 (1960);
Garner v. Louisiana, 368 U.S. 157 (1961); Cunha v. Brewer, 511 F.2d
894, 898[1-3] (8th Cir. 1975); Dupree v. Wyrick, 4i5 F.Supp. 168,
169[3] (E.D.Mo. 1976); Cobb v. Wyrick, 379 F.Supp. 1287, 1295[8,9]
(W.D.Mo. 1974),
The evidence to which the Missouri Supreme Court refers in its
Opinion does not amount to even a scintilla of evidence that the
children were suffering or were likely to suffer any harm as a result
of neglect by the parents to provide medical or other care necessary
for the children's well-being or of the environment maintained by the
parents. The State's own evidence discloses that there was no neglect
to provide necessary care: Dr. Coleberd testified that Mrs. Trapp
brought the oldest child, Robert, to the hospital on December 15,
1972, to receive necessary treatment for the streptococcal pneumonia
which he had contracted (ExhTr. 9), and Mr. Edmonds testified that
she had sought medical attention for the illness of the youngest
child, Duane, on November 2, 1972 (ExhTr. 36-37).
Mr. Edmond's testimony that the youngest child was diagnosed on
November 2, 1972, as suffering from “dehydration” (ante at 8-9), does
not give rise to any legitimate inference that the child's illness
was due to the environment of the child or the neglect of the par-
ents to provide necessary care. As pointed out by the medical
authorities in Home Health Guide and Medical Encyclopedia (Home Li-
brary Press, 1960), pp. 49, 550: “Dehydration is a body state in
which [there is a) loss of an abnormal quantity of water from the
body. It may result from perspiration in warm weather or from disease.
Fever, diarrhea, or excess urination cause excessive amounts of water
to pass from the system.” As to the youngest child's condition on
November 2, 1972, Mr. Edmonds in his written report made in November,
1972, and introduced in evidence as an exhibit, stated: "Dr. Coleberd
—
was the physician who attended the child and it was his opinion
that the child was sick because Mrs. Trapp had changed the [baby's]
formula. It seems that the child would not keep anything on its
stomach and also had some diarrhea. Dr. Coleberd made a prescription
to correct this and instructed the mother to keep the child on one
particular formula." The baby was not hospitalized but was returned
home with his mother by Mr. Edmonds on the same day (ExhTr. 40-41).
The problem with the formula was obviously corrected, for Dr. Coleberd
testified that he saw the baby and the other two of the three younger
children involved here in December 1972, and found them to be in
normal health and good condition (ExhTr. 13-14, 17, 25-57), and Mr.
Edmonds testified that the three younger children were ir. good health
and appeared to be well-ced, well-nourished, and clean when he saw
them on December 19, 1972, the day the neglect petition was filed
(ExhTr. 45, 65, 68).
The evidence that the oldest child, Robert, was suffering from
acute streptococcal pneumonia in both lung fields (ante at 9) like-
wise fails to give rise to any legitimate inference that his condi-
tion was due to the environment maintained by the parents or any
neglect by them to provide necessary care.’ Contrary to the popular
misconception, pneumonia is not caused by exposure to cold. As
pointed out in Home Health Guide and Medical Encyclopedia, supra, at
pp. 196-197:
"Pneumonia is an infection of the air spaces of the lungs.
There are many different types .... Lobar pneumonia is a
type caused by pneumococcal bacteria, hemolytic streptococci,
and occasionally by Friedlander's bacillus. It is characterized
by involvement of one or more entire lobes of the lungs. * * *
Pneumonia may also be caused by a variety of other organisms
and conditions — tularemia, rh matic fever, fungi, foreign
bodies in the lungs or bronchial tubes, aspiration of mucous or
pus, or other materials from the throat — or by nearly any other
7
Contrary to the view indicated by the Missouri Supreme Court
(App. A, p-. 10 n. 10), it is not enough that the child is suffering
serious harm; that harm must also be due to the culpable conduct of
the parents. Obviously, the fact that a child is suffering a life-
threatening illness is not in itself reason for the State to take
the child from his parents.
2 =
type of bacteria that gains a foothold through lowered re-
sistance in the patient. * * * Lowered resistance due to any
cause may lay the groundwork for the development of pneumonia.”
Moreover, Mr. Edmonds testified that, unlike the house in which the
children were living in November, the hunting cabin in which they
were living in December when Robert contracted pneumonia was warm
inside; “it was considerably a better situation .. ..” (ExhTr. 45)
And of further significance is the fact that the other three child-
ren, who were living in the same environment under the same parental
care, not only had not contracted pneumonia but were admittedly in
good health and appeared to be well-fed, well-nourished, and clean.
Thus it appears that there was a total absence of substantial
evidence to support any finding that the three younger children in-
volved here, and the oldest child upon his release from the hospital,
were or would be subjected to any risk of harm, if left with their
parents. The custody order of January 2, 1973, is therefore consti-
tutionally invalid and void under the Due Process Clause of the Four-
teenth Amendment.
Iv.
APPELLANT WAS DEPRIVED OF HER FUNDAMENTAL RIGHT TO THE CUSTODY
OF HER CHILDREN WITHOUT PROCEDURAL DUE PROCESS OF LAW IN THAT THE
STANDARD OF PROOF OF ALLEGED NEGLECT REQUIRED BY THE STATUTES
(§211.031 and 211.181 RSMo 1969) WAS A MERE PREPONDERANCE OF THE
EVIDENCE RATHER THAN AT LEAST “CLEAR AND CONVINCING" EVIDENCE,
Although proof by clear and convincing evidence is reguired in
proceedings to terminate parental rights under §§211.441 et seqg.,
RSMo 1969, no such requirement is found in §§211.031 and 211.181 RSMo
1969, or the reported cases dealing with the latter sections. In
other words, the standard of proof required under the Missouri neg-
lect statutes is proof by a mere preponderance of the evidence.
In its opinion (App. A, p. 10), the Missouri Supreme Court took
the position that the “clear and convincing” standard of proof is
not required as a matter of due process in a neglect proceeding. But
as held in Sims v. State Dept. of Public Welfare, supra, 438 F.Supp.
at 1194, and Alsager v. District Court of Polk County, Iowa, supra,
406 F.Supp. at 25, where the fundamental right of a parent to the
- 40 -
custody of his child is at stake in either a neglect or a termination
proceeding, due process of law requires at the very least that the
State prove its case by "clear and convincing” evidence.
Standard 6.4C.2. of the ABA Standards Relating to Abuse and
Neglect (ante at 23) provides for the "clear and convincing" standard
of proof in proceedings to remove the child from his parents. The
applicability of this standard of proof to a neglect proceeding is
further supported by the reasoning and the holding of the Supreme
Court in Addington v. Texas, 441 U.S. 418 (1979). In that case, the
Court held that due process requires such a standard of proof in
civil commitment proceedings because the possible injury to the indi-
vidual is significantly greater than any possible harm to the state.
The Court furthermore pointed out that the “clear and convincing”
standard has been applied in civil cases involving allegations of
fraud or some other quasi-criminal wrongdoing, in order to reduce the
risk to the defendant of having his reputation tarnished erroneously.
By the same token, appellant was deprived of her fundamental
right to the custody of her children without procedural due process
of law in that the State was not required to prove the alleged neglect
by clear and convincing evidence.
Vv.
THE JUVENILE COURT'S FINDING IN THE CUSTODY ORDER THAT APPEL-
LANT'S CHILDREN "ARE NEGLECTED CHILDREN WITHIN THE MEANING OF THE
LAW AND IN NEED OF CARE AND PROTECTION,” DOES NOT SATISFY THE DUE
PROCESS REQUIREMENT OF THE FOURTEENTH AMENDMENT THAT THE JUVENILE
COURT MUST ACCOMPANY ITS ORDER WITH A STATEMENT OF THE REASONS OR
CONSIDERATIONS THEREFOR, AND SET FORTH THE BASIS FOR THE ORDER WITH
SUFFICIENT SPECIFICITY TO PERMIT MEANINGFUL REVIEW.
As heretofore seen (ante at 6-7), the neglect petition alleged
in the language of §211.031(1) RSMo 1969 (App. E, p. 1) that appel-
lant had violated the provisions of subdivisions (a), (b), and (c)
thereof. Section 211.181 RSMo 1969 (App. E, p. 2) provides that
“When a child is found by the court to come within the provisions
of section 211.031, the court shall so decree and make a finding of
of fact upon which it exercises its jurisdiction over the child
+ « «+" In its custody order of January 2, 1973 (ante at 7), the
|. ie
juvenile court merely made a finding that the children herein "are
neglected children within the meaning of the law and are in need of
care and protection.”
Such a finding wholly fails to indicate not only what acts ap-
pellant was found to have committed but which provisions of the sta-
tute she was found to have violated. And yet, as heretofore seen
(ante at 23-24), the loss which accompanies the custody order is
quite grievous and substantial. Such being the case, due process
requires that the juvenile court accompany the order with a statement
of the reasons or considerations therefor, and set forth the basis
for the order with sufficient specificity to permit meaningful re-
view. Kent v. United States, 383 U.S. 541, 561 (1966). Contrary to
the Missouri Supreme Court's opinion (App. A, p. 8), the juvenile
court's finding did not satisfy that requirement.
VI.
THE JUVENILE COURT'S CHILD SUPPORT ORDER OF FEBRUARY 27, 1973,
IS INVALID AND VOID BECAUSE THE COURT WAS WITHOUT JURISDICTION TO
ENTER THE ORDER UNDER §211.241 RSMo 1969 BECAUSE THE JURISDICTIONALLY
PREREQUISITE CUSTODY ORDER OF JANUARY 2, 1973, FINDING THE CHILDREN
TO BE WITHIN THE PURVIEW OF THE PROVISIONS OF §211.031 RSMo 1969,
WAS NULL AND VOID FOR THE REASONS SET FORTH UNDER QUESTIONS I(A) AND
I(B) AFORESAID.
The jurisdiction of the juvenile court to enter the support or-
der of February 27, 1973, is derived from and confined to the au-
thority given by §211.241 RSMo 1969 (App. E, p. 3). In pertinent
part, §211.241 provides: "When the juvenile court finds a child to
be within the purview of the applicable provisions of Section 211.031
it may in the same or subsequent proceedings .. . proceed to inquire
into the ability of the parent of the child to support it or to con-
tribute to its support. * * * If the court finds that the parent
is able to support the child or to contribute to its support, the
court may enter an order requiring the parent to support the child
or to contribute to its support .. .." (Emphasis added.)
Thus it appears that §211.241 authorizes the juvenile court to
proceed to enter such a support order only after making a finding
under §211.181 that the child comes within the provisions of §211.031.
o 42 «
In other words, the custody order of January 2, 1973, was a juris-
dictional prerequisite for the juvenile court to enter the support
order of February 27, 1973. And since the custody order of January
2, 1973, is null and void for the reasons set forth under Questions
I(A) and I(B) aforesaid, the support order of February 27, 1973, is
invalid and void.
Vil.
THE CHILD SUPPORT ORDER OF FEBRUARY 27, 1973, IS INVALID BECAUSE
IT WAS ENTERED WITHOUT NOTICE AND AN OPPORTUNITY TO BE HEARD ON THE
ISSUE OF A MONETARY JUDGMENT FOR SUPPORT OF THE CHILDREN, AND IT THUS
DEPRIVED APPELLANT OF HER PROPERTY IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT.
As previously indicated, this point is supported by Chief Jus-
tice Bardgett in his dissenting opinion (App. A, pp. 14-16), which
was concurred with in the separate opinions of Judges Seiler and
Higgins (App. A, p. 16).
The original neglect petition was served upon appellant but not
upon her husband, Mr. Trapp. The petition merely sought to have the
juvenile court take jurisdiction of the children on the ground that
they were neglected, and it contained no claim against appellant for
child support.
Appellant personally appeared at the hearing on January 2, 1973,
and thereupon the juvenile court entered the custody order (ante at
7) making the children wards of the court. The custody order made
no reference whatsoever to the matter of child support.
The record further shows that on February 27, 1973, without any
prior notice to Mr. and Mrs. Trapp and without their being personally
present, the juvenile court entered an order directing that Mr. and
Mrs. Trapp “who are gainfully employed,” pay support for said child-
ren in the amount of $198.00 per month or $66.00 per child. (See
App. A, p. 15.)
The majority of the Missouri Supreme Court (App. A, p. 9) re-
lied on the provision of §211.241(1) RSMo 1969 (App. E, p. 3) au-
thorizing the juvenile court to inquire into the parents' ability
to make support payments either in the initial custody proceedings
or in subsequent proceedings, and the majority assumed in the
ao: AS: w
absence of a transcript, that such an inquiry was made at the hear-
ing on’ January 2, 1973. But in doing so, the majority overlooked
the fact that although the juvenile court may have such authority,
there is still the due process matter of notice to the parents.
As held in Reynolds v. Stockton, 140 U.S. 254, 270-271 (1891),
it is a well settled proposition "that in order to give a judgment,
rendered by even a court of general jurisdiction, the merit and
finality of an adjudication between the parties, it must .. . be
responsive to the issues tendered by the pleadings. In other words,
- » « when a complaint tenders one cause of action, and in that
suit service on, or appearnce of, the defendant is made, a subse-
quent judgment therein, rendered in the absence of the defendant,
upon another and different cause of action than that stated in the
complaint, is without binding force ...." Indeed, "A judgment
upon a matter outside of the issue {tenderé/ must, of necessity, be
altogether arbitrary and unjust, as it concludes a point upon which
the parties have not been heard. And it is upon this very ground
that the parties have been heard, or have had the opportunity of a
hearing, that the law gives so conclusive an effect to matters
adjudicated." Id. at 268-269. Cf. Windsor v. McVeigh, 93 U.S. 274
(1876). See also Chief Justice Bardgett's dissenting opinion herein
(App. A, pp. 14-16).
It follows that the child support order of February 27, 1973,
is invalid because it was entered without notice and an opportunity
to be heard on the issue of a monetary judgment for support of the
children, and it thus deprived appellant of her property in viola-
tion of the Due Process Clause of the Fourteenth Amendment.
CONCLUSION
For the foregoing reasons, this Court should note probable
jurisdiction and set this case for plenary briefing and argument.
Respectfully submitted,
Giller
JAMES L. MULLER
Legal Aid of Western Missouri
330 Professional Building
1103 Grand Avenue
Kansas City, Missouri 64106
(816) 474-6750
Attorney for Appellant
« 44 «
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