Appellants Brief — Doe v. Delaware

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OCTOBER TERM, 1979

No. 79-5932

JOHN DOE AND JANE ROE,

Appellants,

STATE OF DELAWARE,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF DELAWARE

BRIEF FOR APPELLANTS

JOHN DOE AND JANE ROE

MICHAEL BOUDIN GARY A. MYERS

ROBERT J. GAGE Community Legal Aid Society,

GREGG H. LEVY Inc.

Covington & Burling 144 East Market Street

888 Sixteenth Street, N.W. Georgetown, Delaware 19947

Washington, D.C. 20006 (302) 856-0038

(202) 452-6000

June 1980 Counsel for Appellants

i inntnsniietettintitieetaeteneel

Woshington, OC @e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393 0625

(i)

TABLE OF CONTENTS

Page

OPINIONS BELOW .....ccccccsccscccccsvcccsscscccses |

FEF EE cvccckcbebocnvescredsecccscsedeccennades 2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED. .........ccccccccccessccccccees 2

QUESTIONS PRESENTED........-.--+e+eeeeeeeeeeees 3

STATEMENT OF FACTS ..........-eseeeeeees sicoseee 3

A. Background ..........ccccccccssccccccsvvecceeees 4

B. The TPR Proceeding ............cesecceesceeecees 8

SUMMARY OF ARGUMENT..........-.::eeeeeeeeeee 12

ARGUMENT

I. THE DELAWARE TPR STATUTE IS

UNCONSTITUTIONALLY VAGUE AND

NDEI iia icc ccc cnciviqvecibecwnescvccese 15

II. IT IS UNCONSTITUTIONAL TO TER-

MINATE PARENTAL RIGHTS BASED

ON A MERE PREPONDERANCE OF

THE EVIDENCE ......cccscccccsccccccccccves 24

III. DUE PROCESS FORBIDS TERMINA-

TION OF PARENTAL RIGHTS ABSENT

A COMPELLING STATE INTEREST

EVIDENCED BY FINDINGS OF HARM

TO THE CHILD. ......cccccsccssvccvcccccioces 34

CONCLUSION . wc ccscccccsccccccsccccccvsccvcsesoces 44

APPENDICES OF PERTINENT CONSTITUTIONAL

PROVISIONS AND STATUTES ..............0000e la

(ii)

TABLE OF AUTHORITIES

Page

Cases:

Addington v. Texas,

441 U.S. 418 (1979) ........... 3,11,13,26,27,28,30,32

Alsager v. District Court,

406 F.Supp. 10 (S.D. Iowa 1975), aff'd per cur-

lam, 545 F.2d 1137 (8th Cir. 1976) ......... 19,21,32,38

Armstrong v. Manzo,

960 U.S. $45 (1965) 00... eee eee cece e soe... 25

Bellotti v. Baird,

443 U.S. 622 (1979) 0... cece eee. 17

Buckley v. Valeo,

| 17

Caruso v. Superior Court,

100 Ariz. 174, 412 P.2d 463 (i) 32

Cleveland Board of Education v. LaF eur,

ew Wa. OS2 (1974); ::................... 27,36,40,43

Colautti v. Franklin,

i le | Er 17

Connally v. General Construction Co.,

269 U.S. 385 (1926) ....... eee eee ee cece, 19

Dale County Dept. of Pensions v. Robles,

368 So.2d 39 (Ala. Civ. ey, ) i

Davis v. Smith,

266 Ark. 112, 583 S.W.2d 37 Se 19

Dunn v. Blumstein,

a 35

Gelling v. Texas,

a 17

Giaccio v. Pennsylvania,

MNO ies sicscesscececcesse..,. 18

Ginsburg v. New York,

BOR Re 0, ee rer rrr ey 16

Goldy v. Beal,

429 F. Supp. 640 (M.D. Pa. 1976) ......--. eee eeeeee 19

Grayned v. City of Rockford,

Ge at ay) Peer eee eC ee reii 20,23

In Interest of C.K.G.,

365 Soi20.424 (Fin. App. 1978)... 0.00 cccerccvsceccers 32

In Interest of Jackson,

Daa ae Pie CEM, Bi. TRI e) bees vc cec pe ve vesraes 32

In Interest of Kerns,

225 an. Fa, SOS Fae FBT CIS TO Pi cc ve ccecsccsss 32

In Interest of Pitts,

Og SO eR ie) See eee eee rer 32

In Interest of Souza,

204 Neb. 503, 283 N.W.2d 48 (1979).........0005- 32

In re Abdullah,

OD TA. App.3d.1144 (1960) .o.eccc cede ccccsves 32

In re Dingee,

ee ee Ee CO BFE 6a ka ehh heb br ese erevenns 24

In re K.S. & M.S.,

33 Colo. App. 72, 515 P.2d 130 (1973) ............ 16

In re Maria, Elisa, and Norma C.,

5 Fam. Law Rptr. 2098 (Terr. Ct. U.S.V.I. 1978)... 32

In re New England Home for Little Wanderers,

367 Mass. 631, 328 N.E.2d 854 (1975) ............ 21

In re Sego,

82 Wash.2d 736, 513 P.2d 831 (1973) ............. 32

In re Willis,

rR’ So Oe. eo Ae Sh 1°) Renew erers a 32

In re Winship,

ok Me Se Fran rena amr eae Tar 26,27,28

In re X, Y, and Z,

GOT Foe Sit CW. UIGGD o in niece cies sere cones 32

(iv)

In the Interest of G.M., ,

596 S.W.2d 846 (Tex. 1980).................... 32,33

Interstate Circuit, Inc. v. Dallas,

Pee We EP RUMI 0 oo oop has bs beard ooaoe. 8 17,21

Johnson v. Solomon,

464 F. Supp. 278 (D. Md. 1979):.......6.ccecccc.., 19

Linn. v. Linn,

205 Neb. 218, 286 N.W.2d 765 tS Aaa Sy 19

Matter of Adoption of J.S.R., :

374 A.2d 860 (D.C. App. cc Lg RO ARO OIE ULL 32

Matter of Five Minor Children,

sae Ae. a a re a 1,2

Matter of Guardianship of R.,

155 N.J. Super. 186, 382 A.2d 654 | 2 2) Sena 32

Matter of Sherol A.S.,

J01 P.2d 884 (Okla. 1978).:.........ccccccecee,. 21,38

Matter of Welfare of Rosenbloom,

266 N.W.2d 888 (Minn. 1978)..................... 32

May v. Anderson,

Co A 0h) | rn ad a re Se ea a 17,25

Meltzer v. C. Buck LeCraw & Co.,

a ee ool oo te kre 34

Meyer v. Nebraska,

Oe SA OED lee ose fk 16,25 ,27,35

Moore vy. City of East Cleveland,

el | es a re 15,16,27,35,43

Musser v. Utah,

eee ee ee edhe 18,20

NAACP vy. Button,

FED, ie WAR CROOOD oo aes cco ebe liken eee. 13,17

Parham vy. J.R.,

AEN one sho oss bho ook es 29

Pierce v. Society of Sisters,

ee | eee De eae ea 16

(vy)

Prince v. Massachusetts,

Eb ob ce vace ensued ba oe wane 13,15

Quilloin v. Walcott,

a a er Oe ss cus iwkavseedeaneen 12,16,36,38

Roe v. Conn,

417 F. Supp. 769 (M.D. Ala. 1976) ............ 18,19,38

Roe v. Wade,

EE ho gs os elo vis Gus haleoa a Oren 35

Rosenbloom v. Metromedia,

ee Ee ass rhe dalek when 26,40

Shapiro v. Thompson,

Be Be SR ei ok xcRdnwenenakseerndeecbone 35

Sims v. State Department of Public Welfare,

438 F. Supp. 1179 (S.D. Tex. 1977), rev'd, 442

BR RUPIERLL chk ep cde sebabnnaches want pueebebs 32

Skinner v. Oklahoma,

Pe Ms HE EOE os vac paccvicivervivecesceewens 25

Smith v. Goguen,

Re A TT eAG ec ie eee eeeRid chaweakenwen 17

Smith v. Organization of Foster Families,

GF1 U Be Cie CSTE) oc uccesi 14,16,18,29,30,35,36,41,43

Stamus v. Leonhardt,

414 F. Supp. 439 (S.D. Iowa 1976) ............0008: 19

Stanley v. Illinois,

GOS Ue O55 (ISTSZ) 0. voce secs 14,16,25,35,36,40,43,44

State v. Robert H.,

115 We TES, 29 ABE 1967 CIGTE) .. cccccccvcses 38

State ex rel. Juvenile Department of Multnomah

County v. Wade, 19 Or. App. 314, 527 P.2d 753

(1974), appeal dismissed, 423 U.S. 806 (1975)....... 30

Staub v. City of Baxley,

ee Ee FR EE ivcbcskedcticddwunewunuseudens 18

Trop v. Dulles,

RE ef 66a pvt baxacvpvexavaneuens 37

—

». ge

(vi)

Wisconsin v. Yoder,

We Bits OOP CEOTE) os. ees eccvevevccvesceceecdce, 16

Woodby v. INS,

ee CONOR igs stu nyo se vscancseccdccnc, 26

Vance v. Terrazas,

48 U.S.L.W. 4069 (Jan. 15, SO ieee ee 27

Constitution, Statutes and Rules:

Constitution of the United States:

hcpaith darerereorapsse, oP PERO TOPE 26

Eleventh Amendment .............................. 37

Fourteenth Amendment...................... 3,16,25,34

Delaware Code, Chapter 13 (1974 and 1978 Supp.):

Sn os Vis'y 6 isiek a U6 olde oak os is passim

Eta) Pic Vis ieuies cones euyade rk 2

cn eee oe 5,8,12,15,17,39

Er as eal Ash eh ye uee er ce bine 2

| ESSENCE ye peer Re 4,12,16,24,28

Alaska Stat. Ann. §47.10.080 SOE sb ve ivdaeein yada. 32

Cal. Civ. Code §232(a)(7) (1980 Supp.) ............... 32

Child Abuse, Prevention and Treatment and Adoption

Reform Act, P.L. 95-266, We, Bs TO on ok 23

45 Fed. Reg. 10622 (Feb. 15, Rea ES eae ee 23,33

Ga. Ann. Stat. § 24A-2201(c).(1976).........ccececee.., 32

Indian Child Welfare Act of 1978, 25 U.S.C. §1912

ey cant os hoe on cs sca hs Use 33,3943

Iowa Code Ann. §600A.8 (1979 | IR ae neh aRNee 32

Mich. Comp. Laws Ann. § § 722.23, 722.25 (1979

Wey Goo al nes coe: TRESS ee E eee ae 23,32

Mo. Stat. Ann. §211.447 (1980 RNB REN eae 32

N.H. Rev. Stat. Ann. §170-C:10 ERED Sp areas 32

N.M. Stat. Ann. § 40-7-4 (1979 | EE ea ae 32

N. Dak. Cent. Code §27-20-44(2) ude SOE eT RES 32

(vii)

42 Pa. Cons. Stat. Ann. §6341(c) (Purdon)............... 32

Tenn. Code Ann. 37-2296) (1977)... wc cccccccvccvvccecs 32

pp a ee go.) eee 22

PBR FR See 8G oC re 2

W. Va. Code § 49-6-2(c) (1980 Supp.) ............eee eee 32

ey OE, REED CODER ci hobs cdietsvs ee eenneve 32

Miscellaneous:

Amsterdam, ‘““The Void-For-Vagueness Doctrine in

the Supreme Court’, 109 U. Pa. L. Rev. 67

SUR CNASL EVE LCAa DV CAY REND SESE SARE ECL aA OO rie ens 18

Areen, “Intervention Between Parent and Child: A

Reappraisal of the State’s Role in Child Neglect

and Abuse Cases”, 63 Georgetown L.J. 887

SR Easel ec Rb iced cashew siee aes Evers es aes < 30,41

“Developments in the Law—The Constitution and the

Family”, 93 Harv. L. Rev. 1156 (1980)......... 21,29,38

H. Rep. No. 95-1386, 95th Cong. 2d Sess. (1978) ........ 34

Institute of Judicial Administration/American Bar

Association, Juvenile Justice Standards Project:

Standards Relating to Abuse and Neglect (tent.

8, RRR I rata ata eo ee etn Oat co a eer 23

J. Goldstein, A. Freud & A. Solnit, Beyond the Best

Sremarente OF the CHIE 31 (ISTE) osc cssccvcssvccccvess 29

Mnookin, “Child Custody Adjudication: Judicial

Functions in the Face of Indeterminancy”, 39 Law

ee wy ee 20,21

M. Phillips, A. Shyne, E. Sherman & B. Haring, Fac-

tors Associated With Placement Decisions in

Ce NT RS ie aia fick wdbavaweed ees bey 20

Statistical Abstract of the United States (1979)........... 40

Wald, “State Intervention on Behalf of ‘Neglected’

Children: A Search for Realistic Standards’’, 27

py ie Ge 21,29,37

9 Wigmore, Evidence (3d ed. 1940) .......... cece eee eeee 27

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. 79-5932

JOHN DOE AND JANE ROE,

Appellants,

STATE OF DELAWARE,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF DELAWARE

BRIEF FOR APPELLANTS

JOHN DOE AND JANE ROE

OPINIONS BELOW

The opinion of the Supreme Court of Delaware, dated

August 24, 1979, is attached to the jurisdictional statement

as Appendix A; the opinion was not officially reported but

excerpts are reported sub nom. Matter of Five Minor

Children, 407 A.2d 198.' Prior opinions in the same

proceeding include the oral opinion of the Delaware

Superior Court, delivered September 12, 1975, the order of

the Delaware Supreme Court, dated September 28, 1976,

and the letter opinion of the Superior Court, dated

December 30, 1976. The prior opinions are attached to the

jurisdictional statement, respectively as Appendices B, C,

and D, but are not officially reported.

JURISDICTION

The decision of the Supreme Court of Delaware was

entered on August 24, 1979, and a timely motion for

reargument was filed but subsequently denied by an order

entered on October 19, 1979, which is attached to the

jurisdictional statement as Appendix E. The judgment of

the Delaware Supreme Court was entered on the latter date

and is attached to the jurisdictional statement as Appendix

F. Notices of appeal were filed in the Delaware Supreme

Court and the Delaware Superior Court on January 7,

1980, and are attached to the jurisdictional statement as

Appendix G. On March 24, 1980, this Court noted

probable jurisdiction. Jurisdiction is conferred on this

Court by 28 U.S.C. §1257(1) (1976).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Due Process Clause of the Fourteenth Amendment

to the Constitution of the United States and the provisions

‘Under I Delaware law, the proceedings are confidential. 13 Del. Code

§ §1107(e), 1111 (1974),

of 13 Del. Code § §1101-13 (1974 and 1978 Supp.) are

set forth in Appendix A to this brief.

QUESTIONS PRESENTED

1. Is the Delaware statute, which provides for the

permanent termination of the parent-child relationship

where the parent is “‘not fitted,” unconstitutionally vague

and indefinite in violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution?

2. In light of the protected nature of the family relation-

ship under decisions of this Court, does the Due Process

Clause and this Court’s decision in Addington v. Texas,

441 U.S. 418 (1979), preclude the termination of the

parent-child relationship based upon a mere “‘preponder-

ance of the evidence’’?

3. Under the Due Process Clause, must the state

demonstrate a compelling state interest, by making specific

findings of existing or threatened harm to the child, before

terminating the parent-child relationship?

STATEMENT OF FACTS

Appellants John Doe and Jane Roe (“the Does’’) are the

natural parents of five young children: Amy, Bill, Charles,

David and Ellen.?, In December 1976, the Does’ parental

relationship with all of their children was permanently

severed by an order of the Delaware Superior Court on the

Statutory ground that the Does were “‘not fitted” to be

7On March 31, 1980, this Court granted the Does’ motion to

substitute pseudonyms for their real names and those of their children to

ensure confidentiality.

parents. 13 Del. Code § 1103(4).} If upheld by this Court,

that order would cause all parental rights and duties

between the Does and their children “forever . . . to cease to

exist as fully and to all intents and purposes as if [the

children and their natural parents] were and always had

been strangers.” 13 Del. Code § 1112.

A. Background

Delaware, like other states, provides a Statutory proce-

dure for permanent termination of the parent-child relation-

ship, commonly known as a “TPR” proceeding. 13 Del.

Code § §1101-13. Whereas a custody order transfers

control of a child on a temporary or indefinite basis, a TPR

order permanently severs all legal parental rights and duties

of the parent or parents affected.‘ In practical terms, it

forever excludes the parent or parents from any further

contact with the child, regardless of the parents’ improve-

ment or rehabilitation.

The provision of the Delaware statute involved in this

case provides for involuntary terminations of parental

rights when:

‘Chapter 13 of the Delaware Code is reprinted in Appendix A of this

brief.

*13 Del. Code § 1112 (1974), specifying “the effect of termination,”

reads in pertinent part:

‘Upon the issuance of an order terminating the existing parental

rights and transferring such parental rights to another person or

organization, the effect of such order shall be that all of the rights,

duties, privileges and obligations recognized by law between the

person or persons whose parental rights are terminated and the

child shall forever thereafter cease to exist as fully and to all intents

and purposes as if the chiid and the person or persons whose

parental rights have been terminated were and always had been

strangers.”

“The parent or parents of any such child, or any

person or persons or organization holding parental

rights over such child are not fitted to continue to

exercise parental rights.”” 13 Del. Code §1103(4)

(1978 Supp.).

Nothing in the statute provides any further guidance—by

definition, requirement, standards or otherwise —as to what

constitutes unfitness under this provision.’ A companion

provision, applicable to all terminations, makes it a

condition that termination also be “in the best interests of the

child” (13 Del. Code §1108(a) (1974)); but no criteria

are provided for making this judgment.

The TPR proceeding in this case culminated a bitter

relationship between the Does and the Division of Social

Services of the Delaware Department of Health and Social

Services (the “Division’’). That relationship had begun

several years before, when in 1972 Mr. Doe voluntarily

and temporarily placed with the Division Amy and Bill,

then the Does’ only children, because he had lost his job

and was not eligible for state assistance.* Although the two

children were returned several months later, and the

Division seemed satisfied with the family situation,’

antagonism developed between the Does and the Division.

43 Del. Code §1103(4) (1978 Supp.) is the basic subsection

governing involuntary termination; subsections (1), (2), (3) and (5) of

Section 1103 deal with voluntary relinquishment, abandonment, mental

incompetence and death of the parents (id.).

°Tr. 62, 67-68, 105, Dec. 7, 1976. References to “Tr.” are tothe TPR

hearing transcripts. By order of March 31, 1980, this Court directed that

the case be heard on the original record.

"The principal social worker testified: *“The [Does] had been in their

home and had obtained furniture and food, and everything seemed to be

going very well.” The children were “‘healthy” and normal in appear-

ance. Tr. 129, Dec. 7, 1976. See also id. at 130-31.

Before beginning the TPR proceeding, the Division

instigated two criminal actions against Mr. Doe.

First, in J anuary 1974, the Division caused to be brought

an unsuccessful prosecution against Mr. Doe for sexually

assaulting his oldest child. At trial, Mr. Doe flatly denied

the charges.* The alleged witnesses to the incident, each of

whom was hostile toward the parents for other reasons (see,

e.g., Tr. 482, Dec. 21, 1976), either failed to appear or

testified that they had never made the principal allegations

attributed to them by the Division. See Tr. 150, Dec. 7,

1976. While acquitting Mr. Doe of assault, the court con-

victed Mr. Doe of the misdemeanor of offensive touching—

with which he had not been charged—and placed him on

probation.

Second, shortly after the birth of their youngest, twin

children, the Division in January 1975 initiated a criminal

charge of incest against John Doe and Jane Roe on the

ground that they were half-brother and half-sister. Although

the Division had known about this relationship since 1972

and had assured the Does that it did not disqualify them for

custody (Tr. 163, Dec. 7, 1976), the criminal charge was

actually filed in order to obtain control of the children.°

*See Tr. 108-09, Dec. 7, 1976. As he testified laterin the TPR case, “I

put my tongue on the top of my daughter’s lip and her nose playing.”’ Tr.

75, Dec. 7, 1976. His daughter was then two years old.

*The notes taken by the Division representative who met with the state

deputy attorney general read in pertinent part as follows:

“(The DAG] said that the only way DSS could get a TPR was if

DSS also had custody of the twins, because we can’t prove the

[parents’] unfitness if there are children in the home. Therefore, it

was decided that [the DAG] would charge both [parents] with the

criminal charge of incest on 2/4/75. Then, DSS will petition for

custody of the twins. The TPR for all of the three older children will

follow pending the Court action over the criminal charges of

incest.” Parents’ Trial Exhibit 21, offered at Tr. 400, Dec. yi Wk

1976.

After a trial in which the parents were unrepresented by

counsel, they were convicted and placed on probation. Tr.

91, Dec. 7, 1976.

By this time, the Division had obtained custody of all five

Doe children.’® Nonetheless, the judge presiding at the

incest trial led the Does (who were then unrepresented by

counsel) to believe that their chances for regaining custody

of their children would be enhanced if each would undergo

medical procedures to prevent their bearing additional

children. See Tr. 92-93, 112-113, Dec. 7, 1976; Tr. 340,

375-79, Dec. 20, 1976; Tr.491, Dec. 21, 1976. Eager to

regain custody of their children, the Does agreed. Mr. Doe

and Ms. Roe underwent such procedures on March 19,

1975 and March 26, 1975, respectively. Tr. 340, Dec. 20,

1976.

Less than a week later, on April 1, 1975, the Division

informed the Does that it planned to seek termination of

their parental rights. Tr. 491-92, Dec. 21, 1976. On July 2,

1975, the Division filed such a petition in Delaware

Superior Court seeking to terminate parental rights of both

parents with respect to all five children. The children at that

time ranged in age from 8 months to 4 years. The ground

specified in the petition, pursuant to 13 Del. Code

§ 1103(4) (1978), was that the Does were not fitted to

exercise parental rights. Tr. 4, Dec. 6, 1976.

'9Custody of Amy, Bill and Charles had been taken at the time the

assault charge was filed. Tr. 136, Dec. 7, 1976. David and Ellen had

been taken when the Does were jailed and unable to post bond before

trial on the incest charge. Tr. 112, Dec. 7, 1976.

B. The TPR Proceeding

After a truncated hearing, the Superior Court ruled

summarily on September 12, 1975, “that the incestuous

relationship between the father and the mother is sufficient

in and of itself for termination of parental rights.” J.S. App.

5Sb."' On review, the Delaware Supreme Court remanded

the proceeding (J.S. App. 1c) on the ground that the record

did not contain a determination that the termination of

parental rights was also “‘in the best interests” of the Doe

children, as required under 13 Del. Code §1108(a)

(1974). There followed the full-scale TPR proceeding that

gives rise to this appeal.

On December 6, 1976, proceedings in the remanded

TPR case commenced before the same judge who had

issued the summary opinion. At the outset of the

proceedings, counsel for the Does challenged the TPR

Statute on the constitutional grounds asserted in this

appeal.'? The Division then presented its case beginning

with the introduction in evidence of a “social report”

prepared by the Division. Tr. 14-15, Dec. 6, 1976. This

report comprised a lengthy recitation of the “facts”

respecting the family compiled from the Division records

by a “writer who has no personal knowledge of the facts

and circumstances.” Social report, p. 1, offered at Tr. 14,

é The opinions below are reproduced in the separate apperdix filed

with the jurisdictional statement and cited in this brief as “J.S. App.

"See Tr. 6-10, Dec. 6, 1976, and Tr. 276, Dec. 20, 1976, reprinted in

J.S. App. 1i-8i. The claims were renewed in the Delaware Supreme

Court in appellants’ opening brief (pp. 8-36, 63-75), reply brief (pp. 1-

17), and motion for reargument (p. 112). See also Delaware Supreme

Court decision, August 24, 1979, pp. 5-15 (J.S. App. 5a-1 5a).

Dec. 6, 1976."

The Division then presented witnesses, including two

psychiatrists who had never examined either the Doe

parents or the children. Tr. 11, 39, Dec. 6, 1976; Tr. 176,

188, Dec. 7, 1976. Instead, assuming the facts stated in the

social report to be true, the witnesses concluded that the

parents lacked “nurturing” capacity (Tr. 20, Dec. 6, 1976)

and were not “capable of adequately raising children.” Tr.

182, Dec. 7, 1976. Other Division evidence showed that

John Doe had had one episode of drunkenness several

years before,’ and that Mr. Doe had moved his family

repeatedly as he changed jobs.'* No independent evidence

was introduced to show Jane Roe’s unfitness.

''The information in the report was avowedly “compiled . . . to support

the allegations that [the Does] are unfit parents of their five children.”

Social report, p. 4. However, the compiler testified that she did not make

any investigation beyond the Division’s records to determine the truth or

accuracy of the information. Tr. 500, Dec. 21, 1976.

“John Doe explained that the episode had followed the surrender of

his two eldest children to the Division at a time when he was out of work

and was unable to receive welfare and had resulted from his anxiety at

the loss of his children. Tr. 105-06, Dec. 7, 1976. His current employer

testified at the TPR proceeding that Mr. Doe, employed in a facility

where liquor was available, was invariably sober. Tr. 389-92, Dec. 21,

1976.

‘While the State suggested at trial that Doe’s employment record

reflected a lack of reliability, there was also evidence that he had lost

several jobs due to the State’s intervention. For example, Doe lost one

job because he had to take time off to defend the criminal suits brought by

the Division. See, e.g., Tr. 73, Dec. 7, 1976. He lost another job because

his employer was annoyed by frequent calls from the Division inquiring

about Doe’s “personal problems.” Tr. 80, Dec. 7, 1976. With regard to

the family’s relocations, some of which were to short-term temporary

locations arranged by the Division or other agencies, the State’s own

officials acknowledged that the Does lacked a car, requiring that they live

near Mr. Doe’s place of employment. Tr. 212-13, Dec. 8, 1976; Tr. 325,

Dec. 20, 1976.

For John Doe and Jane Roe, the evidence showed that

the Division itself did not regard the half-sibling relation-

ship as establishing parental unfitness; '* that while in the

State’s care, the eldest child has been moved through nine

foster homes and was suffering from these changes (Tr.

241-43, Dec. 8, 1976); that both parents had voluntarily

obtained counseling that was of substantial benefit to them '

(Tr. 494, Dec. 21, 1976); and that John Doe and Jane Roe

had for the prior year maintained a stable relationship

including employment of both parents at relatively

substantial wages. Tr. 82, 113, Dec. 7, 1976; Tr. 389-92,

Dec. 21, 1976.

The Does’ employer testified that they were reliable and

trustworthy employees. Tr. 389-92, Dec. 21, 1976. A

psychologist, in charge of psychological services for the

Division of Public Health, testified that the Does’ parental

rights should not be terminated and that his own interview

had impressed him that there was a “good relationship”

between the parents and a “strong desire to have their

children back.” Tr. 453-54, 457, Dec. 21, 1976.!" This

witness, unlike the State’s psychiatrists, had examined and

tested both parents and had also examined two of the Doe

children; and a psychologist on his staff had examined a

third. Tr. 449, 461, Dec. 21, 1976.

‘The Division’s own social-worker representative had assured the

parents that their relationship itself was not disqualifying (Tr. 163, Dec.

7, 1976), and its psychiatric witnesses either disclaimed reliance on the

relationship (Tr. 32, Dec. 6, 1976) or essentially ignored it (Tr. 176-

200, Dec. 7, 1976) in their testimony.

'7When custody of the children was taken from the parents, the court

provided for visitation rights. However, the Division refused to allow

such visits and successfully resisted an application by John Doe to

enforce their right to visit their children. See Parents’ Trial Exhibits £4.

18, offered respectively at Tr. 336, 343, Dec. 20, 1976.

A week later, the Superior Court issued a three-page

letter determining that the best interests of the children

would be served by terminating the Does’ parental

relationship with their children. J.S. App. 3d. The court

described the parents’ “‘pattern of living’ as reflecting

moves from job to job and “frequent[] resort to the

obtaining of public financial assistance in order for them

and their children to exist.”’ Jd. These factors, together with

“the moral atmosphere, the incestuous relationship

between the parents, and the past conviction of [John

Doe]” were cited by the court, without any further explana-

tion. Jd. At the same time, the court found that during the

past year the parents’ “employment record and place of

living has remained stable” (id.), but the court provided no

explanation of why these circumstances were discounted or

disregarded.

On review, the Delaware Supreme Court affirmed the

permanent termination of the Does’ parental rights. J.S.

App. 15a. It found that the statutory phrase “‘not fitted”

meant “unfitted for parental duties”’ and was not unconsti-

tutionally vague, indefinite or overbroad. J.S. App. 7a.

Rejecting a higher burden of proof than preponderance of

the evidence, the court distinguished Addington v. Texas,

441 U.S. 418 (1979) (requiring a higher standard for civil

commitment) on the ground that termination of parental

rights “‘is a civil proceeding, not a penal one....” J.S. App.

10a. Turning to the evidence,'* the Delaware Supreme

'SThe Delaware Supreme Court found that it was improper to admit

the social report in evidence “‘in light of the fundamental parental rights

at stake” (J.S. App. 12a), but it concluded that the facts relied on by the

Superior Court were established by independent evidence. /d. Since the

Division’s own experts testified on the assumption that the entire social

report was accurate and relied directly upon it (see p. 42, n.68, below),

the Delaware Supreme Court apparently assumed——without any basis—

that the Superior Court was not influenced by the expert testimony.

Court then decided in substance that (1) the asserted incest

rendered the parents unfit and (2) multiple jobs and moves

and the prior convictions established that the best interests

of the children would be served by termination. J.S. App.

12a-15a. Finally, the opinion criticized the trial court’s

exclusion of evidence concerning the inadequacy of the

foster home placement of the Doe Children and the

Division’s lack of planning for their future, but it deemed

the evidentiary rulings not to be reversible error. J.S. App.

15a.

A timely motion for re-argument was filed on September

5, 1979, renewing the constitutional attacks based on the

vagueness of the statute, the inadequate standard of proof

and substantive due process. On October 19, 1979, the

Delaware Supreme Court denied without Opinion the

motion for re-argument. J.S. App. le. This Court noted

probable jurisdiction on March 24, 1980.

SUMMARY OF ARGUMENT

The Delaware statute at issue in this case provides for the

permanent termination of parental rights of parents found

“not fitted” to exercise such rights where the court also finds

that the “best interests” of the child will be served by

termination. 13 Del. Code § §1 103(4), 1108(a) (1978

Supp., 1974). The statute neither defines nor provides any

standards or criteria for applying these extraordinarily vague

phrases. Yet, the remedy is the most drastic step possible in

relation to a family: a TPR order means that all rights and

duties between parent and child “shall forever thereafter

cease to exist” as if “the child and [its natural parents] were

and always had been strangers.” 13 Del. Code §1112.

The relationship between parent and child is “‘consti-

tutionally protected” (Quilloin v. Walcott, 434 U.S. 246,

255 (1978)), for “[i]t is cardinal with us that the custody,

care and nurture of the child reside first in the parents... .”

Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

Statutory terms comparable in vagueness to “‘not fitted” and

“best interests” have been condemned repeatedly by this

Court, which has insisted that “[p]recision of regulation

must be the touchstone in an area so closely touching our

most precious freedoms.” NAACPv. Button, 371 U.S. 415,

438 (1963). In judging family conduct, unnecessary vague-

ness is an invitation to ad hoc, personal and subjective

judgments. Because Delaware can provide greater spe-

cificity and guidance in its standards, as other states have

done, it is clearly obliged to do so.

Contrary to Delaware’s position, the State is also obliged

eerie

to establish the grounds for termination by clear and

convincing evidence and not merely by the preponderance of

evidence, as in ordinary suits for money damages. This

Court has ruled that in certain civil proceedings ‘‘the

individual’s interest in the outcome . . . is of such weight and

gravity that due process requires the state to justify [its

action] by proof more substantial than a mere preponder-

ance of the evidence.” Addington v. Texas, 441 U.S. 418,

427 (1979). All of the criteria which required a “clear and

convincing” standard in Addington are present in this case,

including a significant state impact on highly valued consti-

tutional interests, stigma resulting from the State’s action,

and the high risk of subjective and arbitrary judgment. In

addition, the permanency of the termination remedy makes

this an even stronger case than Addington for requiring the

higher burden of proof.

Such a requirement of clear and convincing evidence

serves practical as well as symbolic ends. It expresses the

high “degree of confidence” our society demands before

permanently depriving parents of their own children; it is a

counterweight to the danger that unfitness may be deter-

mined based upon the private values of the fact finder; and it

Serves as a partial check on the momentum of state

intervention directed for the most part at the poor and

helpless. See Smith v. Organization of Foster Families,

431 U.S. 816 (1977).

Finally, under the Constitution, “‘the dismemberment of

[the] family” (Stanley v. Illinois, 405 U.S. 645, 658

(1972)) cannot be ordered without findings that the parental

conduct in question has caused or threatens imminently to

cause significant harm to the child. Only clear proof of a

compelling state interest can justify the extreme remedy of

depriving parents forever of the “companionship, care, [and]

custody” of their own children. Jd. at 65 1. The only interest

that could be so compelling is the prevention of harm to the

child.

As this case illustrates, requiring explicit and supported

findings of harm is essential to assure that the compelling

State interest actually exists in the case at hand. Such an

“individualized” determination is required by due process

(Stanley v. Illinois, supra, 405 U.S. at 655, 65 7) for harm

cannot be merely conjectured or presumed. A judgment of

parental unfitness, not grounded in actual or imminent harm

specifically found, provides no reasonable basis for termi-

nating parental rights. Instead, it makes such termination

solely a form of punishment cruel and unusual to the parents

and affirmatively harmful to the child.

ARGUMENT

THE DELAWARE TPR STATUTE IS UN-

CONSTITUTIONALLY VAGUE AND IN-

DEFINITE.

The Delaware TPR statute provides for termination of

parental rights of parents who are found to be “‘not fitted to

continue to exercise parental rights.” 13 Del. Code

§ 1103(4) (1978 Supp.). This statute—whose language is

almost circular—offers no guidance as to what constitutes

unfitness, forcing courts, state officials and parents to guess

at its meaning. The companion “‘standard” for terminating

parental rights, that termination be “‘in the best interests of

the child’ (13 Del. Code §1108(a) (1974)), is similarly

imprecise; no criteria are offered for assessing a child’s best

interests. These “standards,” affecting constitutionally

protected interests of the most precious and fundamental

kind, fail to satisfy long-established due process require-

ments of definiteness and specificity.

This Court’s decisions “establish that the Constitution

protects the sanctity of the family precisely because the

institution of the family is deeply rooted in this Nation’s

history and tradition.” Moore v. City of East Cleveland,

431 U.S. 494, 503 (1977) (plurality opinion). The Court

repeatedly has struck down state attempts to violate the

integrity of the family, for:

“It is cardinal with us that the custody, care and

nurture of the child reside first in the parents, whose

primary function and freedom include preparation for

obligations the state can neither supply nor hinder . . . .

And it is in recognition of this that [our] decisions have

respected the private realm of family life which the state

cannot enter.” Prince v. Massachusetts, 321 U.S. 158,

166 (1944),

For example, this Court has recognized that traditional

parental authority to “establish a home and bring up

children” is sheltered by the Fourteenth Amendment’s Due

Process Clause. '9 Similarly, this Court’s decisions have

held that due process must be accorded to family members’

rights to mutual association and companionship—most

particularly to the rights of parents to the “companionship,

care and custody” of their children. 2°

In this case the State seeks not merely to limit traditional

parental authority or to regulate the conditions of “‘com-

panionship, care and custody.” Through the TPR proceed-

ing, Delaware sunders the family itself by abrogating the

reciprocal relationship between parent and child, a relation-

ship that this Court has expressly held to be “constitu-

tionally protected.” Quilloin v. Walcott, 434 U.S. 246, 255

(1978). The irrevocable consequences of such state action

are devastating. The parents lose forever rights of custody,

visitation, instruction and upbringing of the children that

they have conceived and nurtured. Delaware law expressly

provides that upon issuance of a TPR order, all rights and

duties between parent and child “shall forever thereafter

cease to exist” as if “the child and [its natural parents] were

and always had been strangers.”’ 13 Del. Code §1112

(1974),?!

'*Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Society of

Sisters, 268 U.S. 510, 534-35 (1925); Ginsberg v. New York, 390 US.

629, 639 (1968); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972),

*°Stanley v. Illinois, supra, 405 U.S. at 645, 651; Moore v. City of

East Cleveland, supra, 431 U.S. at 501; Smith v. Organization of

Foster Families, 431 U.S. 816, 844 (1977).

*!Just as the parents lose parental rights, so the child is deprived

permanently of the benefit of parental duties. Where parental rights are

terminated, each “child loses the right of support and maintenance, for

which he may thereafter be dependent upon society; the right to inherit:

and all other rights inherent in the legal parent-child relationship, not just

for the period during which he is subject to the code, but forever.” Jn re

KS. & M.S., 33 Colo. App. 72, 76, 515 P.2d 130, 133 (1973).

When the State seeks so drastic a remedy, it is obligated to

provide a standard of “‘a greater degree of specificity than in

other contexts,” a standard proportionate to the precious-

ness of the interests and relationships at stake. ? Indeed, this

Court has insisted that “[p]recision of regulation must be the

touchstone in an area so closely touching our most precious

freedoms,”’?? This Court has also held that the standard of

specificity and precision is not relaxed for statutes “adopted

for the salutary purpose of protecting children.” Interstate

Circuit, Inc. v. Dallas, 390 U.S. 676, 689 (1968).

It is difficult to imagine statutory standards more impre-

cise that those of the Delaware TPR statute. A standard that

poses the question whether parents “are not fitted to

continue to exercise parental rights” (13 Del. Code

§ 1103(4) (1978 Supp.)) is at least as vague as language that

this Court has found unconstitutional in prior cases. For

example, the terms “acceptable,” “proper,” and “‘not suited

for young persons,” were found unconstitutionally vague in

Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. at 676.

Nor is the companion “‘best interests” language (13 Del.

Code §1108(a) (1974)) more specific. Gelling v. Texas,

343 U.S. 960 (19152), invalidated the similar standard “‘such

character as to be prejudicial to the best interests of the

people.”’** This Court itself described as “vague” the “‘best

*§mith v. Goguen, 415 U.S. 566, 573 (1974). Accord, Colautti v.

Franklin, 439 U.S. 379, 391 (1979); May v. Anderson, 345 U.S. 528,

533 (1953).

**NAACP vy, Button, 371 U.S. 415, 438 (1963). Accord, Buckley v.

Valeo, 424 U.S. 1, 41, 76 (1976).

*4In a recent concurring opinion joined by four justices, Mr. Justice

Stevens addressed the “‘best interests” standard in another context and

observed: ‘That standard provides little rea! guidance to the judge, and

his decision must necessarily reflect personal and societal values”’ whose

enforcement cannot be reconciled with the constitutional interests being

protected. Bellotti v. Baird, 443 U.S. 622, 655 (1979),

interests of the child” standard as a test in child custody

proceedings. Smith v. Organization of Foster Families,

supra, 431 U.S. at 835, n.36.?5 When a definite standard is

required even for so mild a disability as court costs, surely an

indefinite standard cannot be a basis for terminating parental

rights, 76

Relying on the principles established by this Court, two

federal courts—the only federal courts that have addressed

vagueness challenges to TPR statutes—have invalidated

TPR statutes employing language indistinguishable from

that involved here. In Roe v. Conn, 417 F. Supp. 769 (M.D.

Ala. 1976), the offending language authorized termination

of parental rights of those whose homes were “unfit” and

“improper.” Recognizing the circular and Opaque character

of the statutory standard, the court held Alabama’s TPR

Statute unconstitutionally vague:

“Obviously [what is ‘unfit’ and ‘improper’ ] is a question

about which men and women of ordinary intelligence

would greatly disagree. Their answers would vary in

large measure in relation to their differing social, ethjcal

and religious views. Because these terms are too subjec-

tive to denote a sufficient warning to those individuals

who might be affected by their proscription, the statute

is unconstitutionally vague.” 417 F Supp. at 780.

Similarly, the lowa TPR Statute, employing the terms

“unfit” and “necessary parental care and provection,”’ was

*See also Staub v. City of Baxley, 355 U.S. 313, 322 (1958)

(“effects upon the general welfare of the citizens”’); Musser v. Utah, 333

U.S. 95, 97 (1948) (“injurious to public morals”). See generally

Amsterdam, “The Void-For-Vagueness Doctrine in the Supreme

Court,” 109 U. Pa. L. Rev. 67, 90 (1960).

**See Giaccio v. Pennsylvania, 382 U.S. 399 (1966), holding invalid

the imposition of court costs based on standards of “misconduct” and

“reprehensible conduct.”

invalidated in Alsager v. District Court, 406 F Supp. 10

(S.D. Iowa 1975), aff'd per curiam on other grounds, 545

F.2d 1137 (8th Cir. 1976). The court declared:

“[Al]rbitrary and discriminatory parental terminations

are inevitable . . . . The termination of the parent-child

relationship in any given case may thus turn upon which

state officials are involved in the case, rather than upon

explicit standards reflecting legislative intent. This

danger is especially grave in the highly subjective

context of determining an approved mode of child-

rearing.’’ 406 F.Supp. at 18-19.?’

In addition to these federal court decisions, at least two

State supreme courts have invalidated TPR statutes con-

taining language virtually identical to that upheld below.

Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979) (en

banc) (“‘parents . . . unable to provide a proper home’’); Linn

v. Linn, 205 Neb. 218, 286 N.W.2d 765 (1980) (“best

interests and welfare of the children”). The TPR statutes

struck down in Roe, Alsager, Davis and Linn, like the

Delaware TPR statute, lack “the first essential of due

process,’ for each statute contains “‘terms so vague that men

of common intelligence must necessarily guess at its mean-

ing and differ as to its application.” Connally v. General

Construction Co., 269 U.S. 385, 391 (1926). 8

Although in Alsager the Court of Appeals did not reach the

vagueness issue it did admonish: “[B]oth the vagueness and overbreadth

attacks upon these provisions are serious ones. By declining to affirm on

these grounds, however, we afford the Iowa courts an additional

opportunity to give the statutory provisions a plainly desirable limiting

construction.” 545 F.2d at 1138.

**Civil commitment statutes containing vague language similar to that

of the Delaware TPR statutes have been held unconstitutionally vague

by numerous federal courts. E.g., Johnson v. Solomon, 484 F.Supp.

278, 283 (D. Md. 1979) (“‘best suited to the physical, mental and moral

welfare of the child consistent with the public interest”; “in need of

assistance’); Stamus v. Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa

1976) (“best interest”); Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa.

1976) (three-judge court) (“need of care”).

The Delaware TPR statute entails each of the basic vices

of vague statutes. The term “not fitted” fails to “give the

person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

Even more important, the Statutory vagueness authorizes

enforcement of the drastic TPR remedy “‘on an ad hoc and

subjective basis, with the attendant dangers of arbitrary and

discriminatory application.” Jd. at 109. Thus:

“The use of an indeterminate standard means that state

Officials may decide on the basis of unarticulated

(perhaps even unconscious) predictions and prefer-

ences that could be questioned if expressed. Because of

the scope of discretion under such a standard, there is a

substantial risk that decisions will be made on the basis

of values not widely shared in our society.” Mnookin,

“Child Custody Adjudication: Judicial F unctions in the

Face of Indeterminancy,” 39 Law & Contemp. Prob.

226, 263 (1975).

The same danger has been expressly recognized by this

Court.?9

Moreover, this problem is particularly dangerous in the

highly subjective area of child-rearing.*° Thus, “*[m]Jany

See Musser v. Utah, supra, 333 U.S. at 97, where this Court

observed that the phrase “injurious to public morals” would encompass

‘almost any act which a judge or jury might find at the moment contrary

to his or its notion of what was good for health, morals, trade, commerce,

justice or order [and might depend on] the varying policies on such

matters as use of cigarettes or liquor and the permissibility of gambling.”

See M. Phillips, A. Shyne, E. Sherman & B. Haring, Factors

Associated With Placement Decisions in Child Welfare, 69-84 (1971 ).

Phillips et al. conducted a simulation study designed to analyze the

factors influencing a judge’s decision to remove a child from its parents’

home. Three judges, each with at least five years experience, were

independently given the actual files for 94 children. They agreed on the

appropriate disposition in only 45 of 94 cases. Yet, “even in Cases in

which they agreed on the decision, the judges did not identify the same

factors as determinants, each seeming to operate to some extent within

his own unique value system.” Id. at 84.

decisions reflect the personal biases of judges and appear to

result from a disapproval of the parents’ lifestyles rather than

an impartial judgment that the child would be harmed.’’*!

Moreover, available appellate review of TPR orders is

“rendered inoperative” by the statutory vagueness, which

“shield[s] from appellate scrutiny any judicial prejudice,

discrimination or value imposition that may have affected

the tribunal’s decision.”’*?

Finally, by failing to identify specific harms that justify

termination or to specify criteria by which to evaluate TPR

petitions, the vague statutory standard ‘“‘increase[s] the

likelihood that decisions to intervene will be made in

situations where the child will be harmed by intervention.’ **

Thus, in Alsager v. District Court, supra, the court observed

that the unduly vague Iowa statute had allowed “im-

provident physical separations and final terminations.” 406

F. Supp. at 23. Thus, the imprecise statutory language

threatens the welfare of children, as well as the constitutional

rights of their parents. **

>*“Developments in the Law—The Constitution and the Family,” 93

Har. L. Rev. 1156, 1318 n.60 (1980). Among examples given were

removal or custody orders issued in substance to “‘punish parents’

immaturity or choice of lifestyles which run afoul of the judges’ notion of

propriety.” E.g., In re New England Home For Little Wanders, 367

Mass. 631, 328 N.E.2d 854, 887 (1975) (mother “took an unrealistic

approach to her problems”); Matter of Sherol A.S., 581 P.2d 884, 888

(Okla. 1978) (social worker found parents “* ‘very lazy and lacking in

initiative’ ”’).

Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. at 684-85:

Developments, supra, 93 Harv. L. Rev. at 1234 n.222.

*3Wald, “State Intervention on Behalf of ‘Neglected’ Children: A

Search for Realistic Standards,” 27 Stan. L. Rev. 985, 1001 (1975).

Accord, Mnookin, supra, 39 Law & Contemp. Prob. at 270.

“This case demonstrates the dangers of unwarranted removal caused

by statutory vagueness. While there were no findings whatever that the

children were harmed by their relationship with their parents (see pp. 34-

44, below), uncontradicted evidence showed that Amy, the oldest child,

bore substantial emotional scars due to her experiences in being shuttled

through nine foster homes in five years of state custody. Tr. 241-42, Dec.

8, 1976.

The TPR proceedings in this case illustrate these failings. -

For example, the Superior Court’s finding of “‘unfitness”’

was based substantially on the parents’ half-sibling relation-

ship. Yet every other State official familiar with the family

circumstances—including another Delaware judge—had

rejected the view that that relationship rendered the Does

unfit parents. ** Similarly, the Superior Court’s finding of

“best interests” was expressly premised on the parents’

“pattern of living.” J.S. App. 3d. Yet, the elements of that

lifestyle—frequent changes in residence or employment and

reliance on public assistance—are typical of a vast segment

of the American population. See p. 40 and n.66, below. The

lower courts suggested no rcason why termination of

parental rights would be in the best interests of the Doe

children, but not in the best interests of other children raised

by poor families or subject to frequent changes in residence.

Vague statutory standards and their attendant vices are

not inherent in the problems addressed by TPR statutes.

There are numerous alternatives to the Delaware TPR

statute that could substantially increase the precision of the

statute. Thus, Delaware could specify determinate

standards that indicate to parents, courts and state officials

when termination of parental rights is appropriate. See, e.g.,

Tex. Code Ann. Tit. 2 §15.02(1) (1979) (reprinted in

Appendix B). With or without definite standards, the

**The Family Court judge who presided at the incest trial and who

issued various custody orders affecting the Doe children advised the

parents that their relationship would not bar their regaining custody. See

Tr. 92, 113, Dec. 7, 1976; Tr. 379, Dec. 20, 1976: Parents’ Trial

Exhibit 10, offered at Tr. 334, Dec. 20, 1976. The Division’s own

social-worker representative had offered the parents similar assurances.

Tr. 163, Dec. 7, 1976. The Division’s psychiatric witnesses disclaimed

reliance on the relationship (Tr. 32, Dec. 5, 1976) or essentially ignored

it in their testimony. Tr. 176-200, Dec. 7, 1976.

———

legislature could identify criteria relevant toa TPR adjudica-

tion; such criteria would focus the virtually unlimited

discretion of Superior Court judges under the present statute

and provide a framework for appellate review. See, e.g.,

Mich. Comp. Laws Ann. §722.23 (1979 Supp.) (reprinted

in Appendix B).

Alternatively, the State could implement structural

changes in the TPR adjudicatory process, varying the

standards and criteria for TPR determinations depending

upon objective circumstances (e.g., whether less severe

alternatives, such as therapy, had been explored; how long

the children had been outside the parents’ custody). Such an

approach has been suggested by the IJA/ABA Juvenile

Justice Standards Project.** In fact, structural reform,

determinative standards and relevant criteria were all in-

cluded in the model TPR provisions recently drafted by an

independent panel of experts and endorsed by the then

Department of Health, Education and Welfare.2”

Whatever scheme a state may choose, there is clearly an

opportunity to develop statutory language that limits the

potential for “arbitrary and discriminatory’ application.

Grayned v. City of Rockford, supra, 408 U.S. at 108. What

is fatal here is Delaware’s total failure, either by legislation

or judicial gloss, to provide any guidance whatever to

narrow, clarify or refine the bare statutory terms currently

used by the State to render parents and their natural children

*See Institute of Judicial Administration/American Bar Association,

Juvenile Justice Standards Project: Standards Relating to Abuse and

Neglect § §2.1-2.2, 8.2-8.4 (tent. draft 1977).

"This model legislation was prepared pursuant to the Child Abuse,

Prevention and Treatment and Adoption Reform Act, P.L. 95-266, Apr.

24, 1978, § 203. The proposed model act, as approved by the Secretary,

has been published in the Federal Register, 45 Fed. Reg. 10622-99

(Feb. 15, 1980).

_—

“strangers” by force of law. 13 Del. Code § 1112 (1974).38

There is no slide-rule calculation for determining when

Statutory language is unconstitutionally vague, but

Delaware’s TPR statute is condemned by every criterion. Its

standards are brief, general and almost circular; it affects

rights of a most precious character; it invokes a drastic and

permanent remedy; it virtually invites discriminatory, ad

hoc and subjective determinations; and, above all else, it is

vastly more vague and indefinite than it needs to be, in light

of existing alternative ways to provide greater guidance. The

Delaware TPR statute, unnarrowed by any judicial gloss,

should be declared unconstitutional on its face.

II.

IT IS UNCONSTITUTIONAL TO TERMI-

NATE PARENTAL RIGHTS BASED ON A

MERE PREPONDERANCE OF THE EVI-

DENCE.

In ruling that the Does were not fit parents and that the

best interests of their children required termination of

parental rights, the Delaware Superior Court employed the

“preponderance of the evidence” standard of proof ordi-

narily used in civil actions for money damages. The

termination of parental rights, affecting severely the funda-

**Contrary to the State’s assertion, the Delaware Supreme Court has

not narrowed the statute by interpretation. Compare Delaware motion to

dismiss or affirm, pp. 10-11. On the contrary, the Delaware Supreme

Court has asserted only that ‘‘not fitted” means “‘unfitted for parental

duties” and that “unfitness does not require precise definition to be

constitutionally sound.” J.S. App. 7a. In an earlier case, similarly

refusing to offer a narrowing construction, the Delaware Supreme Court

asserted that “each case must be decided on its own peculiar facts.” Jn re

Dingee, 328 A.2d 139, 140 (Del. 1974),

mental right of family integrity, requires clear and con-

vincing evidence. This conclusion is consistent with the

constitutional criteria set forth by this Court in standard of

proof cases; it reflects the interests involved in TPR cases

which are illustrated by the facts of this case; and it is

supported by numerous lower court authorities requiring

clear and convincing evidence in TPR cases.

It is well settled that “the right. . . to raise one’s children”’

is essential, and that the “‘liberty’”’ guaranteed by the Due

Process Clause of the Fourteenth Amendment is impaired

by the permanent separation of parents and children.

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

illustrative decisions, the Court there stated:

“The rights to conceive and to raise one’s children have

been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S.

390, 399 (1923), ‘basic civil rights of man,’ Skinner v.

Oklahoma, 316 U.S. 535,541 (1942), and ‘[rjights far

more precious . . . than property rights,’ May v.

Anderson, 345 U.S. 528, 533 (1953). ... The integrity

of the family unit has found protection in the Due

Process Clause of the Fourteenth Amendment, Meyer

v. Nebraska, supra, at399....”

What “due process” is required varies with the right affected

and the nature of the State’s action; but where family rights

are at stake, this Court has insisted upon a high standard of

procedural protection in a variety of contexts. °?

Notwithstanding ‘‘civil labels and good intentions,” “‘the

individual’s interest in the outcome . . . [may be] of such

weight and gravity that due process requires the state to

399F.g., Armstrong v. Manzo, 380 U.S. 545 (1965) (notice for

termination of rights); May v. Anderson, 345 U.S. 528 (1953) (personal

jurisdiction over parent required to transfer custody); Stanley v. Illinois,

supra, 405 U.S. 645 (hearing on termination).

justify [its action] by proof more substantial than a mere

preponderance of the evidence.” Addington v. Texas, 441

U.S. 418, 427 (1979). In Addington, this Court held that

civil commitment to a mental institution required the use of

the “intermediate standard” of clear and convincing

evidence (403 U.S. at 425), part way between a mere

preponderance and proof beyond a reasonable doubt. The

Court stressed the “significant deprivation of liberty”

involved in the state action (id. at 425); the “adverse social

consequences”’ or “‘stigma”’ resulting from an adverse state

determination (id. at 426); the possible risk that liberty will

be impaired “‘based solely on a few isolated instances of

unusual conduct” (id. at 427); and, above all, the “weight

and gravity”’ of the individual's interest in the outcome of the

proceeding. Jd. *!

Under the criteria of Addington, a similar requirement of

clear and convincing evidence is warranted in TPR pro-

ceedings. As in Addington, the “weight and gravity” of the

parents’ interest in the TPR proceeding are very great and

infinitely more important than the “mere loss of money.”

441 U.S. at 424. For most couples, their children are their

most important shared purpose and interest, and the

permanent severance of this family relationship involves a

deprivation of liberty at least as Significant as the temporary

“See also In re Winship, 397 U.S. 358 (1970) (civil juvenile

delinquency proceeding); Rosenbloom v. Metromedia, 403 U.S, 29

(1971) (civil libel action involving First Amendment protection).

“'These same considerations have repeatedly been stressed by the

Court in setting burden of proof requirements, whether resting on the

Constitution or on the Court’s supervisory power. See, e.g., Woodby v.

INS, 385 U.S. 276 (1966) (loss of liberty from deportation); Jn re

Winship, supra, 397 U.S. at 367 (loss of liberty and stigma in juvenile

delinquency proceeding); Rosenbloom vy. Metromedia, supra, 403 U.S.

at 50 (risk of error and preciousness of First Amendment rights).

isolation involved in Addington and Winship. Due process

restrictions have been applied to prevent constraints on

family autonomy far less intrusive than the permanent

separation of parents and children. *”

This case also resembles Addington in three other

respects: obvious stigma is attached to a determination that

parents are “unfit” to raise their children;*? the same

“possible risk” of an adverse determination based on

“unusual conduct” or “idiosyncratic behavior” is present

(441 U.S. at 427) because both cases involve an evaluation

of “life styles”; and while there may be no threat of jail, a

clear form of physical separation from one’s family is

imposed when a parent is told he or she may no longer live in

the same household or have any other continuing relation-

ship with his or her own child.“ If the standards applied in

“For example, the Court has protected the right of parents to direct

the education of their children(e.g., Meyer v. Nebraska, supra, 262 U.S.

390); the right of an extended family to dwell together (Moore v. City of

East Cleveland, supra, 431 U.S. 494); and the right of an expectant

working mother to resist fixed maternity leave (Cleveland Board of

Education v. LaFleur, 414 U.S. 632 (1974)).

“This concern, stressed in Winship as a constitutional matter, is also

present in civil cases where a higher burden of proof has traditionally

been imposed by common law. Classic examples are the widely applied

requirement of clear and convincing evidence where charges of fraud or

undue influence are made. See 9 Wigmore, Evidence §2498 (3d ed.

1940).

“This consideration alone distinguishes Vance v. Terrazas, 48

U.S.L.W. 4069 (Jan. 15, 1980). That case, decided by a five-to-four

vote, sustained expatriation based on a preponderance of the evidence,

but it did so only in the face of an explicit Congressional directive and a

stringent substantive standard of expatriation affording additional

protection to the individual. Moreover, to the extent Congress has

expressed a judgment on the standard of proof to be applied in TPR

proceedings, it is decidedly in favor of a standard at least as demanding

as clear and convincing evidence. See pp. 33-34, below.

Addington are followed, clear and convincing evidence is

required in this case as well.

Indeed, TPR proceedings involve one element, not

present in Addington, that strongly supports the use of a

higher burden of proof. While civil commitment or a juvenile

delinquency conviction involves at worst a temporary loss of

liberty, a TPR determination is by its very nature permanent,

once it has become final on appeal. It is unlike other steps the

state may take in dealing with the family, steps that may be

discontinued or reversed, such as social-worker visits or

temporary custody orders. Under the Delaware TPR

Statute, a termination of parental rights and duties means

that they “‘shall forever thereafter cease to exist” (13 Del.

Code §1112 (1974)); and the state is immediately free to

make new permanent arrangements for the child, including

its adoption by new parents, No form of State action, other

than the death penalty, is so certain to be irreversible. Thus,

the more stringent burden of proof should be used ‘“‘to

‘instruct the fact-finder concerning the degree of confidence

our society thinks he should have in the currectness of factual

conclusions for [the] particular type of adjudication’ ” here

involved. 45

The State’s argument for a lower standard of proof

appears to rest on the proposition that Addington juxtaposed

the rights of the individual with those of the state, while a

termination proceeding — in Delaware’s view — involves a

conflict of interests between the parents and their children.

However, the higher burden of proof does not protect the

parents’ interests alone but also the rights of children to the

care and protection of their parents, See p. 16, n.21, above.

There is, in substance, a strong constitutional interest in

“Addington v. Texas, supra, 441 U.S. at 423. quoting Jn re Winship,

supra, 397 U.S. at 370 (Harlan, J.. concurring),

favor of the integrity and autonomy of “the family as a unit.”

Parham v. J.R., 442 U.S. 585, 602 (1979). The children

have no presumptive competing interest in escaping their

natural family and entrustine themselves to the care of state

agencies or foster families where the state may assign them.

The constitutional presumption that parents and children

have a common interest in remaining together is grounded in

fact as well as the values of our civilization. It is a near

certainty that some injury will be done to the children when

the family is wrenched apart, for ‘‘the very fact of removal

from even an inadequate natural family is often traumatic for

the child.”’** No corresponding certainty exists that the child

will be better off in an unknowable future of foster homes or

State institutions.

“[T]here is substantial evidence that, except in cases

involving very seriously harmed children, we are unable

to improve a child’s situation through coercive state

intervention. In fact, under current practice,coercive

intervention frequently results in placing a child in a

more detrimental situation than he would be in without

intervention.”’ Wald, supra, 27 Stan. L. Rev. at 993

(footnote omitted).

If anything, the interests of the children reinforce a need for a

high standard of proof before their relationship with their

parents is finally and irrevocably terminated.

Substantively, as well as formally, a termination pro-

“*Smith v. Organization of Foster Families, supra, 431 U.S. at 837

n.40. See J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests

of the Child 31-35 (1973), describing the almost certain adverse

consequences of changes in routine and separation from parents in

infancy, in younger years, and even for school age children. ‘ Psycholo-

gists unanimously agree that removal from the home, even a compara-

tively ‘bad’ home, will itself usually cause the child serious psychological

injury.” Developments, supra, 93 Harv. L. Rev. at 1320 (footnote

omitted).

ceeding is a conflict between the parents and the state, not

between the parents and their children. The state’s interests

are not identical to those of the children. It would blink

reality to ignore the interests of the state welfare bureaucracy

whose raison d'etre is intervention, the presence of a large

foster-care establishment financially dependent on state

intervention, and the fact that “terminations aid the State in

meeting the demand for ‘adoptable’ children while also

relieving it from financial costs of long-term foster care,

home-maker services, and other welfare or public ser-

vices.”’*” Indeed, the state’s momentum toward intervention,

coupled with its greater resources, threaten to magnify “‘the

risk of error” for the individual (Addington v, Texas, supra,

441 U.S. at 423) unless checked by a demanding burden of

proof, *8

While the higher burden of proof has a symbolic value, it

serves practical interests as well, interests amply illustrated

by this case. The Doe children, including virtual infants,

were severed from their parents on evidence led by “‘expert”’

testimony by two psychiatrists who had never met either of

the parents or their children. See p. 9, above. Evidence also

included a “social report,” comprising hearsay compiled by

“State ex rel. Juvenile Department of Multnomah County v, Wade,

19 Or. App. 314,527 P.2d753 (1974), appeal dismissed, 423 U.S. 806

(1975), quoted and discussed in Areen, “Intervention Between Parent

and Child: A Reappraisal of the State’s Role in Child Neglect and Abuse

Cases,”’ 63 Georgetown L.J. 887, 893-94 (1975). See also Smith y,

Organization of. Foster Families, supra, 431 U.S. at834-35, discussing

the asserted “hostility of agencies to efforts of natural parents to obtain

the return of their children” and the reasons alleged for this bias,

“*How powerful that momentum may be is illustrated by this case.

Although the State had known of the Does’ half-sibling relationship for

many years, it brought a criminal incest proceeding against them for the

extraordinary specific purpose of assisting the State to obtain control of

the children. See p. 6 and n.9, above.

a writer who admitted having “no personal knowledge of the

facts and circumstances” (social report, p. 1), reflecting an

extensive but onesided account of the Doe family’s history. *°

The incest charge emphasized by the courts was discounted

by the State’s own witnesses and the Division of Social

Services. See p. 10 and n.16, above. The State’s evidence of

the Does’ numerous relocations and intermittent unem-

ployment and welfare applications mirrors the experience of

a vast number of Americans. See pp. 40-41, below.

By contrast, a psychologist who examined both of the

parents and several of the children testified to the “good

relationship” between the parents and their “strong desire to

have their children back.” Tr. 457, Dec. 21, 1976. Their

employer testified that they were reliable employees. See p.

10, above. The trial court admitted that their employment

record and place of living had remained stable during the

prior year. See p. 11, above. No direct evidence was offered

that the Does had caused harm to any of the children. See pp.

34-44, below. No one can say with any certainty that the

Does would have lost their parental rights if termination had

been conditioned on findings, based on clear and convincing

evidence, that they were unfit and that their children’s

interest would best be served by granting termination, °°

Finally, a requirement of clear and convincing evidence

finds substantial support in the authorities, including both

cases and statutes. Two decisions by federal district courts

“*Having secured the introduction of the lengthy and prejudicial

hearsay document, the State then proceeded tc object repeatedly to the

parents’ evidence on a variety of grounds, including hearsay. E.g., Tr.

291, 340. 375-77, Dec. 20, 1976, Tr. 394, 427, Dec. 21. 1976.

*°Given the inherent vagueness of the substantive standards applied, it

is literally impossible to prove that the fact finder would necessarily

reach the same ultimate conclusion in the face of a higher burden of

proof.

require clear and convincing evidence in TPR proceedings

as a matter of constitutional right. 5! In addition, a number of

State decisions have adopted the standard for TPR or

custody proceedings within recent years, *? and an additional

number of states require the standard by statute.** At least

two cases — the federal decision in Alsager and the state

decision In the Interest of GM. — rely directly on the

analogy to civil commitment. The latter case, decided by the

Texas Supreme Court after Addington, relied directly on

Addington and concluded:

*'Alsager v. District Court, supra, 406 F. Supp. at 25; Sims v. State

Department of Public Welfare, 438 F. Supp. 1179, 1194 (S.D. Tex.

1977), rev'd on other grounds, 442 U.S. 415 (1979).

“°E.g., Dale County Dept. of Pensions v. Robles, 368 So.2d 39, 42

(Ala. Civ. App. 1979); Caruso v. Superior Court, 100 Ariz. 174, 412

P.2d 463, 467 (1966); Matter of Adoption of J.S.R., 374 A.2d 860, 864

(D.C. App. 1977); In Interest of C.K.G., 365 So.2d 424 (Fla. App.

1978); In re Abdullah, 80 Il. App.3d 1144 (1980); Jn Interest of Kerns,

225 Kan. 746,545 P.2d 187 (1979);In Interest of Jackson, 312 So.2d

912 (La. App. 1975); Matter of Welfare of Rosenbloom, 266 N.W.2d

888, 889-90 (Minn. 1978); In Interest of Souza, 204 Neb. 503, 283

N. W.2d 48 (1979): Matter of Guardianship of R., 155N.J. Super. 186,

382 A.2d 654, 657 (1977); In the Interest of G.M., 596 S.W.2d 846

(Tex. 1980); In Interest Of Pitts, 535 P.2d 1244, 1248 (Utah 1975); In

re Maria, Elisa, and Norma C., § Fam. Law Rptr. 2089 (Terr. Ct.

U.S.V.I. 1978); In re Sego, 82 Wash.2d 736, 513 P.2d 831 (1973): In

re Willis, 207 S.E.2d 129, 140 (W. Va. 1973); In re X, Y, and Z, 607

P.2d 911 (Wyo. 1980).

F.g., Alaska Stat. Ann. §47.10.080 (1979) Cal. Civ. Code

§232(a)(7) (1980 Supp.); Ga. Ann. Stat. §24A-2201(c) (1976); lowa

Code Ann. §600A.8 (1979 Supp.); Mich. Comp. Laws Ann. §722.25

(1979 Supp.); Mo. Stat. Ann. §211.447 (1980 Supp. ); N.H. Rev. Stat.

Ann. §170-C:10 (1978); N.M. Stat. Ann. §40-7-4 (1979 Supp.); N.

Dak. Cent. Code §27-20-44(2) (1974): 42 Pa. Cons. Stat. Ann.

§6341(c) (Purdon); Tenn. Code Ann. §37-229(c) (1977); W. Va.

Code §49-6-2(c) (1980 Supp.); Wis. Stat. Ann. §48.31(1) (1979).

“The right to enjoy a natural family unit is no less

important than the right to liberty which requires at least

a clear and convincing standard of proof to inhibit such

liberty through involuntary and indefinite confinement

in a mental institution. Termination is a drastic remedy

and is of such weight and gravity that due process

requires the state to justify termination of the parent-

child relationship by proof more substantial than a

preponderance of the evidence. Hereafter, the ‘clear

and convincing evidence’ standard of proof will be

required in all proceedings for involuntary termination

of the parent-child relationship.” Jn the Interest of

G.M., supra, 596 S.W.2d at 847.

Recently, an independent expert panel recommended to

the then Department of Health, Education and Welfare a

model state adoption act. See p. 23 and n.37, above. The

model act specifically provides that involun‘ary termination

of parent-child relationships shall be made “‘only . . . upon

clear and convincing evidence” that the circumstances

specified in the statute do exist. 45 Fed. Reg. at 10676. In

the a-sociated commentary, the drafters explained that the

model act “requires this rigorous standard of proof as a

protection of the fundamental rights at stake in a termination

proceeding” in light of the fact that a “parent has a

constitutionally protected liberty interest in the family

relationship.” Jd. at 10678.

Finally, it is highly significant that Congress has explicitly

regulated state TPR and custody proceedings involving

Indian children and specially addressed the burden of proof

standard. Foster care placement may be ordered in such

proceedings only on a specified determination “supported

by clear and convincing evidence”; and “termination of

parental rights” may be ordered only upon “evidence

beyond a reasonable doubt.”’** The House Report observed

See Indian Child Welfare Act of 1978, 25 U.S.C. § §1912 (e), (

(1978 Supp.), which are reprinted as Appendix C to the brief and

discussed at pp. 38-39, below.

that “the committee feels that the removal of a child from the

parents is a penalty as great, if not greater, than a criminal

penalty....” H. Rep. No. 95-1386, 95th Cong., 2d Sess. 22

(1978).55

IIL.

DUE PROCESS FORBIDS TERMINATION

OF PARENTAL RIGHTS ABSENT A

COMPELLING STATE INTEREST EVI-

DENCED BY FINDINGS OF HARM TO

THE CHILD.

The final error committed by the lower courts is the

severance of the Does’ parental relations with their children

without any supported determination that such a severance

was necessary to protect the children against existing or

imminent harm. The Constitution requires such a demon-

stration, for without it the state interest necessary to justify

this drastic remedy does not exist. The substantive issue

Squarely presented by this case should be decided even if the

Court determined to reverse on one or both grounds set forth

in Parts I and II of this brief, *

It is settled that the “liberty” protected by the Fourteenth

Amendment to marry and raise children ‘see pp. 15-16, 24-

***Where the State initiates a civil proceeding to deprive [the parent]

of the custody of her children,” the case “‘by its very nature resembles a

criminal prosecution.” Meltzer v. C. Buck LeCraw & Co., 402 U.S.

954, 959 (1971) (Black, J., dissenting from denials of review).

**If the Delaware statute is held unconstitutionally vague, as we

submit it should be, then Delaware and other legislatures are likely to

enact new legislation. It is thus a timely and appropriate occasion for this

Court to rule on the recurring substantive issue raised by Part III of this

brief.

25, above) is afforded ‘both substantive and procedural pro-

tection.”’ Smith v. Organization of Foster Families, supra,

431 U.S. at 842 (footnote omitted). The constitutional

interest of a parent in the “companionship, care, custody,

and management of his or her children ‘*come{s] to this Court

with a momentum for respect lacking when appeal is made to

liberties which derive merely from shifting economic

arrangements.’ ”’ Stanley v. Illinois, supra, 405 U.S. at651.

When the state undertakes an “intrusive regulation of the

family” then “the usual judicial deference to the legislature is

inappropriate” (Moore v. City of East Cleveland, supra,

431 U.S. at 499); and such regulation can only be justified

by a compelling or substantial state interest proportionate to

the constitutional right being invaded.

This Court has repeatedly required such a compelling or

substantial state interest, where fundamental rights are

involved, in a variety of contexts.*°’ The same requirement is

reflected in practically all of this Court’s decisions protecting

family rights, from Meyer v. Nebraska through Moore vy.

City of East Cleveland; few, if any, of the cases could have

been decided the same way if the state were required merely

to demonstrate the same type of rational relation to a

permissible state goal that is sufficient for ordinary economic

legislation.** The question posed, therefore, is what

E.g., Roe v. Wade, 410 U.S. 113, 155 (1973) (decision whether to

bear children); Dunn v. Blumstein, 405 U.S. 330, 335 (1972) (right to

vote); Shapiro v. Thompson, 394 U.S. 618, 638 (1969) (interstate

travel).

‘8In Meyer, for example, the Court recognized that the invalid

statute’s general purpose of fostering proficiency in the English language

was permissible (262 U.S. at 398-99), and in Moore vy. City of East

Cleveland, the Court acknowledged that “preventing overcrowding,

minimizing traffic and parking congestion, and avoiding an undue burden

on East Cleveland’s school system” were “legitimate goals’ served

(continued)

governmental interest is sufficiently compelling or important

to justify the extreme remedy of a permanent separation of

parents from their natural children.

The answer must be that to justify a remedy so severely

affecting the fundamental ~ight to raise one’s own child, the

State must show parental behavior evidencing significant

harm to the child, either actual or imminent. Indeed, this

Court has already explicitly rejected the notion that the state

could constitutionally “force the breakup of a natural family

... without some showing of unfitness and for the sole reason

that to do so was thought to be in the children’s best

interest.” ** However, if the requirement of unfitness is to be

more than an abstraction readily ignored, then the unfitness

must be related to protecting the child against harm caused

by parental conduct.

The need for a showing of existing or imminent harm is

reinforced by practical considerations. Without this leash,

the concept of unfitness has a promiscuous Capacity to

reflect merely the personal taste or standards of a single

social worker or judge. Findings of unfitness, detached from

(footnote continued from preceding page)

marginally by the condemned ordinance. 431 U.S. at 499-500.

The problem in such cases is not that the goal is frivolous or the means

completely arbitrary but rather that, where fundamental constitutional

rights are concerned, mere rationality is not enough. Instead, “this Court

must examine carefully the importance of the governmental interests

advanced and the extent to which they are served by the challenged

regulation.” Id. at 499. See also, e.g., Stanley v. Illinois, supra, 405

U.S. at 652 (“legitimate interests, well within the power of the State’’):

Cleveiand Board of Education v. LaFleur, supra, 414 U.S. at 641

(“continuity of instruction is a significant and legitimate educational

goal’’),

“See Quilloin v. Walcott, supra, 434 U.S. at 255, quoting Smith vy,

Organization of Foster Families, supra, 431 U.S. at 862-63 (Stewart,

J., concurring).

examination of actual impact on the child, are notoriously

liable to be based only on someone’s view that the parents’

lifestyle is eccentric, unusual or unfortunate.

“For example, courts have removed children

because the parents were not married; because the

mother ‘frequent[ed] taverns’ or had men visitors

overnight; because the parents adhered to ‘extreme’

religious practices, or lived in a communal setting; or

because the parent was a lesbian, a homosexual, or the

mother of an illegitimate child. In none of these cases

was there evidence of harm to the children.” Wald,

supra, 27 Stan. L. Rev. at 1033 (footnote citations

omitted).

Only by focusing the fact finder on the need to determine

harm can the potential for arbitrary action be diminished.

Harm may not be measurable in every case with ruler-like

precision; but the standard is a model of objectivity

compared with an undirected inquiry into fitness at large.

Lastly, without a requirement of harm, a continuing

danger exists that TPR proceedings will be perverted into

means of punishing the parents for conduct that, however

improper, is essentially unrelated to protection of the child.

The automatic equation of incest with unfitness in this very

case was, at best, nothing more than a groundless pre-

sumption that parents who are half-brother and half-sister

are incapable of caring for an existing child.© At worst, the

automatic equation of a‘*Class A misdemeanor” (J.S. App.

12a) with unfitness amounts to mere punishment of the

parents, unrelated to protection for the child and therefore a

form of punishment patently cruel and unusual.®! Unless

*°No evidence exists that half-sibling parents are inherently less

affectionate or capable. In fact, the position of the Division and its trial

experts is inconsistent with any such suggestion. See p. 10 and n. 16,

above.

*'No one can doubt that to terminate parental rights as punishment for

a crime would be cruel and unusual under the Eleventh Amendment. See

generally Trop v. Dulles, 356 U.S. 86 (1958).

parental conduct is shown to cause or threaten harm to the

child, it is constitutionally irrelevant in a termination

proceeding.

The constitutional requirement of harm to justify taking

children from their parents has been recognized by the lower

federal courts. Thus, in Roe v. Conn, supra, 417 F. Supp. at

779, a three-judge district court struck down a statute that

permitted removal of a child from “‘an unfit or improper

home,” saying in part:

“States . . . may abrogate [parental] rights only to

advance a compelling state interest and pursuant to a

narrowly-drawn statute restricted to achieve only the

legitimate objective... . The State’s interest, however,

would become ‘compelling’ enough to sever entirely the

parent-child relationship only when the child is

Subjected to real physical or emotional harm and less

drastic measures would be unavailing.”

Other courts have taken the same view.® This Court has not

had occasion to specify the ‘showing of unfitness”’ that is a

constitutional precondition to ““forc[ing] the breakup” of a

natural family, Quilloin v. Walcott, supra, 434 U.S. at 25 5;

but its discussion “strongly suggests” that “actual or

imminent harm to the child” is required before such

intervention may be triggered. Developments, supra, 93

Harv. L. Rev. at 1319.

In the Indian Child Welfare Act of 1978, Congress

“xpressly required a determination of harm before termi-

“E.g., Alsager v. District Court, supra, 545 F.2d at 1137, in which

the Eighth Circuit held that the state had “failed to exhibit the threshold

harm necessary to give the state a compelling interest sufficient to justify

permanent termination of the parent-child relationships.”’ See also State

v. Robert H., 118 N.H. 713,393 A.2d 1387, 1391 (1978) (“showing of

specific harm” required); Matter of Sherol A. S., supra, 581 P.2d at 888

(termination permitted only to “protect children from HARM”)

(capitalized in original).

nation of parental rights may be ordered under state law for

Indian children. See p. 33, n.54, above. The statute states:

**No termination of parental rights may be ordered in

such proceeding [under state law] in the absence of a

determination, supported by evidence beyond a

reasonable doubt, including testimony of qualifed

expert witnesses, that the continued custody of the child

by the parent or Indian custodian is likely to result in

serious emotional or physical damage to the child.”’ 25

U.S.C. §1912(f) (1978 Supp.).

Such a requirement of harm is equally feasible and

appropriate here.

In this case, both lower courts found unfitness solely

because the Does were half-brother and half-sister and the

state legislature had made incest a crime. The Superior

Court in its first opinion said that ‘‘the Court is prepared to

rule at this time that the incestuous relationship between the

father and mother is sufficient in and of itself for the

termination of parental rights.’ J.S. App. 5b.° After

the Delaware Supreme Court affirmed this determination on

the explicit ground that “the General Assembly has made

incest a Class A misdemeanor” and had declined to modify

the provision in adopting a new criminal code. J.S. App.

12a-13a. Whether or not half-sibling marriage is a crime

under Delaware law, the State has not legislatively found

that half-sibling parents are necessarily incapable of raising

existing children; and the State offered no evidence to

support such a presumption or inference in this case.

Moreover, this Court has repeatedly disallowed irrebuttable

*°On initial review, the Delaware Supreme Court remanded the case

because the Superior Court had not made the further determination of

“best interests” required by 13 Del. Code §1108(a). The Superior

Court’s second opinion was addressed explicitly to the best interests

issue. J.S. App. Id, 3d.

presumptions as a basis for denying constitutional rights, **

The determination that the Doe children’s “best interests”

were served by terminating parental rights similarly does not

rest on any findings demonstrating existing or imminent

harm to the children. Certainly no findings of harm were

explicitly made either by the Delaware Superior Court or the

Delaware Supreme Court, and explicit findings of harm are

requisite to meet the constitutional standard.®’ Even if a

finding of harm could be inferred in a case where the findings

made permitted no other possible inference, certainly no

such inference is rationally compelled by the findings

actually made by the Superior Court with respect to the Doe

children’s best interests.

The principal findings of the Superior Court relate to the

Does’ alleged “pattern of living”: “frequent moving from

place to place,” many jobs held by Mr. Doe for short periods,

and *‘frequent{] resort to the obtaining of public financial

assistance [by the Does] in order for them and their children

to exist.” J.S. App. 3d. The fact is that job changes, moves

from one residence to another, and resort to welfare are the

lot of a vast number of Americans. Nothing in the Superior

**For example, in Stanley v. Illinois, supra, 405 U.S. at 654-55, this

Court held that the state could not irrebuttably presume that all

unmarried fathers are unsuitable and neglectful parents. In Cleveland

Board of Education v. LaFleur, supra, 414 U.S. at 645-46, the Court

held unjustified an automatic and conclusive presumption that an

expectant woman was incapable of working past an arbitrary date.

**Absent such findings, there is no way to be certain that the proper

constitutional standard has been applied by the court terminating the

rights of the parents. Such findings should serve the same role as a

determination of malice or reckless disregard in a libel case affecting

First Amendment rights. E.g., Rosenbloom v. Metromedia, supra, 403

U.S. 29.

**According to the 1979 Statistical Abstract of the United States,

between 20 and 30 million people lived below the poverty level in this

country each year between 1968 and 1977, the last reported year (id. at

462); unemployment has generally been at a rate of 5 to8 percent (id. at

404); and between 1965 and 1970. 47 percent of the population moved.

Id. at 39.

Court’s findings distinguishes the Does in this respect trom

thousands of other families, and surely nothing demonstrates

that the children were harmed or threatened with imminent

harm by this “pattern of living.”®’

This Court has itself noted the dangerous tendency,

among those who administer the official child care system, to

assume that ‘“‘the natural parents’ poverty and life style [is]

prejudicial to the best interests of the child.” Smith v.

Organization of Foster Families, supra, 431 U.S. at834. It

is not surprising that “perhaps the most prevalent

characteristic of families charged with neglect is poverty.”’

Areen, supra, 63 Georgetown L.J. at 888. Only by insisting

on clear evidence of actual or imminent harm to the child,

which certainly has not been shown in this case, can courts

prevent the dangerous and destructive confusion between

being poor and being an unfit parent.

None of the other “‘facts’’ mentioned by the Superior

Court demonstrates harm to the children. The half-sibling

relationship proves nothing whatever about the parents’

capacity to raise their existing children. See p. 10, n.16 and

p. 39, above. The prior conviction of Mr. Doe for offensive

touching involved a charge flatly denied by Mr. Doe (see Tr.

108-09, Dec. 7, 1976) relating to alleged misconduct

occurring three years prior to the 1976 TPR proceeding; and

the Superior Court made no independent finding concerning

the charges and no finding whatever of harm to any of the

children. Finaliy, Mr. Doe’s alleged ‘“‘alcoholic problem”’

(J.S. App. 2d) concerns an episode occurring in 1973, at a

time when the Doe children were not even in their parents’

®*’There is one piece of evidence in the record that directly discloses

harm to any of the children; and that is the harm inflicted on Amy, the

eldest child, as a result of her treatment while in the State’s custody. See

p. 10, above.

care (Tr. 62, Dec. 7, 1976); and Mr. Doe’s employer

testified at trial that Mr. Doe was invariably sober even

though he was employed in a facility where liquor was

available. Tr. 389-92, Dec. 21, 1976.

This is in substance a case in which five young children

were permanently barred from a home admittedly stable, in

both location and employment of the parents, at the time of

the TPR order (see J.S. App. 3d) with no finding of actual or

imminent harm to the children. The principal expert

testimony for the State was provided by two psychiatrists

- who had never examined the children or the parents. See p.

9, above. Instead, they both testified based on a double

hearsay “‘social report’’®* so untrustworthy that the Delaware

**For example, the State’s principal psychiatrist testified in response

to a hypothetical question, based on the stated assumption that “‘all

material facts contained [in the social report] are true,” that termina-

tion served the children’s best interests. Tr. 12-13, 15, Dec. 6, 1976.

Asked for his reasons, the psychiatrist began as follows: ‘“‘The reasons

are based on the report again and are based on the instability, geographic

instability, as well as the emotional instability, of multiple moves, There

is also indicated that there did exist an incapacity — really an inability of

the two parents to provide this. The nurturance and the stability that are

required for the optimum, let alone average, developments of the

ordinary human infant would seem, on the basis of that record, to be

beyond that capacity.” Jd. at 15-16. The psychiatrist continued in this

vein until finally he was asked about the parents’ capacity for change; he

then replied: “‘I saw no evidence in the summary | sic: social] report of the

'. Capacity for change.”’ Jd. at 20.

The other State psychiatrist, who testified more briefly, gave his

opinion in response to a hypothetical question that read as follows:

“Assuming, for the purposes of this question, that the facts contained in

that report are true and correct, based upon your professional

qualifications and based upon your analysis of the report, and assuming

the facts contained therein to be true and accurate, do you have an

opinion of Mr. and Mrs. [Doe]’s ability to continue to exercise parental

rights over their five children?” Tr. 181. ‘Dec. 7, 1976.

Supreme Court later found it inadmissible (J.S. App. 1 1a-

12a) even though that court improbably deemed its ad-

mission to be “harmless error.” See p. 11, n.18, above.

By contrast, the psychologist who had actually examined

the Does and several of the children testified that parental

rights should not be terminated and that he had found a

“good relationship” between the parents and their children,

as well as a “strong desire’ by the Does to have their

children back. Tr. 457, Dec. 21, 1976. There was also

testimony that the children were generally normal (Tr. 129-

31; Dec. 7, 1976), except that the eldest child had suffered

from her foster home experience. Tr. 241-43; Dec. 8, 1976.

The Superior Court, of course, made no findings of harm, so

the question whether the record would even support findings

of harm does not arise.

This Court’s “‘decisions establish that the Constitution

protects the sanctity of the family precisely because the

institution of the family is deeply rooted in this Nation’s

history and tradition.”®? Required findings of actual or

imminent harm would not impose an extraordinary or

unjustified burden upon the State,’? when considered in

' relation to the seriousness of the charge (that parents are

unfit to raise their own children) and the proposed remedy

(that they be permanently severed from further contact).

**Moore v. City of East Cleveland, supra, 431 U.S. at 503 (footnote

omitted). See also Smith v. Organization of Foster Families, supra,

431 U.S. at 842.

Indeed, Congress has in substance prescribed such findings in the

Indian Child Welfare Act of 1978. See pp. 38-39, above. Even if the

requirement were burdensome, which it is not, “the Constitution

recognizes higher values than speed and efficiency.” Stanley v. Illinois,

supra, 405 U.S. at 656 (footnote omitted). See also Cleveland Board of

Education v. LaFleur, supra, 414 U.S. at 646.

Rather, such a requirement would ensure that courts

confront and resolve the cardinal question whether there

actually exists that compelling state interest — the

protection of the children against harm from their parents —

which alone justifies “the dismemberment of [the] family.”

Stanley v. Illinois, supra, 405 U.S. at 658.

CONCLUSION

For the reasons stated, the judgment below should be

reversed.

Respectfully submitted,

MICHAEL BOUDIN | GARY A. MYERS

ROBERT J. GAGE Community Legal Aid

GREGG H. LEVY Society, Inc.

Covington & Burling 144 East Market Street

888 Sixteenth Street, Georgetown, Delaware

N.W. 19447

Washington, D.C. 20006 302-856-0038

202-452-6000

Counsel for Appellants

June 1980

APPENDIX A

United States Constitution, amendment XIV, section 1,

clause 3, provides:

“nor shall any state deprive any person of life, liberty, or

property, without due process of law.”’

13 Delaware Code § §1101-1113 (1974 and 1978 Supp.),

provide:

§1101. Definitions.

As used in this chapter:

(1) “Abandoned”’ shall be interpreted as referring to

any child who, for a period of 6 months, has not received

any regular and reasonable financial help from his parent

or parents or any person having parental rights or

responsibility and on whose behalf no substantial contacts

have been initiated by his parent or parents or any person

having parental rights or responsibility during that period.

(2) “Authorized Agency” means any agency licensed

by the Department of Health and Social Services of this

State to place children for adoption, or any agency duly

approved, certified, recognized or licensed by the proper

authority of any other state in which that agency is located

to place children for adoption.

(3) “Child” means any male or female who has not

attained his or her 18th birthday.

(4) “Mentally incompetent” shall be interpreted as

referring to a parent who is unable to understand and

discharge the natural and regular obligations of care and

support of a child by reason of mental illness,

psychopathology, mental retardation or mental de-

ficiency.

(5) “Natural father” means the biological male parent

of a child.

§1102. Jurisdiction and venue.

(a) The Superior Court shall have jurisdiction of

proceedings under this chapter to terminate parental rights.

(b) A petition for termination of parental rights may be

filed in the Superior Court of any of the following counties:

(1) The county in which the petitioner resides;

(2) The county in which the organization having

legal or physical care, custody or control of the child

involved is located;

(3) The county in which the child involved is located.

diction of a child for the purposes of this chapter, it shall be

deemed to have retained jurisdiction for the purposes of

proceeding under Chapter 9 of this title relating to adoption.

§1103. Grounds for termination of parental rights.

The procedure for termination of parental rights for the

purpose of adoption or, if a suitable adoption plan cannot be

effected, for the purpose of providing for the care of the child

by some other plan which may or may not contemplate the

continued possibility of eventual adoption, may be initiated

whenever it appears that:

(1) The parent or parents of any child, or the person

or persons or organization holding parental rights over

such child, desires to relinquish such parental rights; or

(2) Any child has been abandoned; or

(3) The parent or parents of any child or any person

or persons holding parental rights over such a child are

found by the Court to be mentally incompetent and,

from evidence of 2 qualified psychiatrists selected by

the Court, found to be unable to discharge parental

responsibilities in the foreseeable future. The Court

shall appoint a licensed attorney as guardian ad litem to

represent the alleged incompetent in the proceeding;

(4) The parent or parents of any such child, or any

person or persons or organization holding parental

rights over such child are not fitted to continue to

exercise parental rights; or

(5) Both parents of a child are deceased.

Unless adoption is contemplated, the termination of |

parent’s parental rights by the other parent shall not be

granted if the effect will be to leave only 1 parent holding

parental rights, unless the Court shall find the continuation

of the rights to be terminated will be harmful to the child.

§1104. Persons eligible to petition for termination of

parental rights.

A petition for the termination of parental rights may be

filed by any of the following:

(1) The mother or the natural father, or both, of a

child born out of wedlock;

(2) Both parents of a child born in wedlock if both

parents are living;

(3) The surviving parent of a child born in wedlock,

if 1 parent is dead;

(4) The mother or the natural father, or both, if the

mother’s legal husband at the time of the conception or

birth of the child was not the natural father of the child.

In the absence of evidence to the contrary, a notarized

statement of the legal husband that he is not the father

of the child shall be prima facie proof thereof;

(5) One parent alone if the other parent is in-

competent by virtue of mental illness or mental

retardation, or has abandoned the child, or is not fit to

continue to exercise parental rights;

(6) A blood relative of a child whose parents are

deceased or who are incompetent by virtue of mental

illness or mental retardation, or who have abandoned

the child, or who are not fitted to continue to exercise

parental rights;

(7) An authorized agency or the State Department

of Health and Social Services.

§1105. Contents of petition.

(a) The petition for the termination of parental rights shall

State the:

(a) Name and place of residence of the petitioner

or petitioners;

(2) Name, sex and date of birth of the child;

(3) Relationship of the petitioner or petitioners to

the child or the fact that no such relationship exists;

) (4) The names and addresses of the parents of the

child if born in wedlock;

(5) Ifthe child was born out of wedlock, the name

_and address of the mother and her marital status at the

time of the child’s conception and birth, and, in the event

she was married at the time of the child’s conception or

birth, the name and address of the mother’s husband at

those times, and an affidavit by the mother setting forth

either (i) the name and last known address of the natural

father, or (ii) a statement that the mother knows the name

of the natural father but is unwilling to disclose the name of

the natural father, or (iii) a statement that the mother does

not know the name of the natural father, or(iv) the name of

the natural father, and a statement that the mother has

never known his address;

(6) Name and last known address of the person or

‘ persons or organization holding parental rights and the

name and address of the person or persons or organization

having the care, control or custody of the child;

(7) Grounds for termination of parental rights;

(8) Name and address of the person or persons or

of the authorized agency or officer thereof or the State

Department of Health and Social Services or officer

thereof for whom or for which parental rights are re-

quested;

(9) In addition to other pertinent information, the

petition shall, if the name and/or address of the natural

father is not included, furnish detailed information con-

cerning the efforts made to identify and locate the natural

father so as to enable the Court to determine what further

steps, if any, should be taken.

(b) Any consents required in §1106 of this title shall

accompany the petition as exhibits.

parental rights has been filed and an authorized agency or the

State Department of Health and Social Services is a party to

the proceedings, there shall be attached to the petition a

social report.

§1106. Consent requirements; waiver of notice.

In the case of proceedings based on § 1 103(1) of this title:

(1) A petition for the termination of parental rights

shall be accompanied by the duly notarized consent in

writing of the person or persons or organization holding

parental! rights;

(2) The consent provided for in subdivision (1) shall be

required from:

a. Both parents of a child born out of wedlock; pro-

vided, however, that the consent of the alleged natural

father need not contain an admission that he is the

father. In the event that the named natural father

disclaims paternity, an affidavit signed by him to that

effect shall be attached to the petition in lieu of aconsent

from the natural father. It is further provided that in the

event of a petition containing statements described in

§1105(a)(5)(ii), (iii) or ( iv) of this title, after a hearing

in which it is established on the record that the mother

and father of the child are not living together as husband

and wife openly and that they have not done so nor

married since the birth of the child, the Court may,

following consideration of the social report, dispense

with the requirement of the father’s consent in com-

pliance with §11.13 of this title.

b. Both parents of a child born in wedlock ex-

cept as provided in subparagraph c. if both parents are

living, or from the survivor, if 1 is deceased, regardless

of the marital status of the parents at the time the

petition is presented:

c. The mother and the natural father, if the

mother’s legal husband at the time of the conception or

birth of the child was not the natural father of the child.

In the absence of evidence to the contrary, a notarized

statement of the legal husband that he is not the father of

the child shall be prima facie proof thereof. If such a

notarized statement of the legal husband cannot be

obtained, a notice of hearing shall be sent to him as

provided in §1107 of this title. The consent of the

natural father is subject to paragraph a. above;

d. Any other person or persons or organization

holding parental rights;

e. One parent alone if the other parent is in-

competent by reason of mental illness or mental

retardation, or has abandoned the child, or is not fitted

to continue to exercise the parental rights.

(3) Ifthe individual in whom the right to consent exists

is under the age of 21 years, this fact shall not be a bar to

the giving of consent nor render the consent when given

invalid;

(4) Every petition shall be accompanied by a formal

written consent executed by the person or persons or

organization for whom or for which parental rights are

requested;

(5) If the person or persons or organization holding

parental rights wish to waive their right to any and all

notice of hearing or right to appear at such hearing, the

petition shall be accompanied by a notarized statement to

this effect executed by the person or persons or organiza-

tion holding parental rights;..

(6) Consent by the natural father may be executed

either before or after the actual birth of the child involved.

§1107. Hearing procedure; notice of hearing; report.

(a) When a petition for the termination of parental rights

is filed in which an authorized agency or the State

Department of Health and Social Services is a party to the

proceedings, the Court shall set a date for a hearing thereon,

and shall cause notice of the time, place and purpose of the

hearing to be served upon the parent or parents, person or

persons or organization holding parental rights at his or their

last known address; provided, however, no such notice shall

be necessary if a waiver executed by the parent or parents,

person or persons or organization holding parental rights has

been filed with the petition, in accordance with the

provisions of § 1106(5) of this title. The Court may require

notice to be served upon any other person or organization.

(b) Ifthe Court shall find that personal service within the

State cannot be accomplished upon the parent or parents,

person or persons or organization holding parental rights, the

Court shall then cause notice of the time, place and purpose

of the hearing to be published once a week, for 3 successive

weeks, in such newspapers of the county, 1 or more, as the

Court may judge best for giving the parent or parents, or

person or persons or organization holding parental rights

notice, the formal wording of said notice to be approved by

the Court. Such publication shall constitute conclusive

evidence of service and a hearing will then proceed at the

time and date set with or without the appearance of the

parent or parents, person or persons or organization so

notified. Publication shall also be made in the locality in

which the parent or parents, person or persons or organi-

zation holding parental rights is believed to be located if

different from the county where the publication just

described has been caused. If any publication is ordered

pursuant to this subsection, the Court shall also order that

the Prothonotary, at least 3 weeks prior to the hearing, shall

send by regular and registered or certified mail to the parent

or parents, or person or persons or organization holding

parental rights, at the address or addresses given in the

petition, a copy of the same notice, or a similar notice of the

time, place and purpose of the hearing.

be sufficient to give jurisdiction.

(d) When a petition for termination of parental rights is

filed, and an authorized agency or the Department of Health

and Social Services, Division of Social Services, is not a

party to the proceedings, the Court shall, before any hearing,

order a social study and report on the petition by an

authorized agency or by the Department of Health and

Social Services, to be filed within 4 months, subject to such

additional time as the Court shall determine is reasonably

required. The Court shall set a date for hearing to take place

after the report is to be filed and notice shall be accomplished

as outlined above. Any social report filed with the petition,

or subsequently, as described above in this subsection, shall

include the information specifically referred to in §1105(c)

of this title, where indicated.

(e) All hearings shall be held before the Court privately,

but for reasons appearing sufficient to the Court the hearing

in any particular case may be public.

§1108. Order of termination and transfer of parental

rights.

(a) Should the Court find the termination of existing

parental rights and their transfer to be in the best interes.s of

the child, it shall make an order terminating such rights in the

parent or parents, person or persons or organization in which

they have existed and transferring them to some other person

or persons or authorized agency or the State Department of

Health and Social Services as may, in the opinion of the

Court, be best qualified to receive them.

(b) If a child is abandoned by | parent only, the rights of

such parent may be terminated without affecting the rights of

the other. ;

parent only, for the purposes of adoption by a stepparent,

upon the finding described in paragraph (a) of this section,

the Court may, in its discretion, in lieu of a final order enter

10a

an interlocutory order which the Court shall make final at the

completion of adoption proceedings, provided that any such

interlocutory order which does not become final within 18

calendar months of the issuance thereof Shall, upon the

expiration of such 18 calendar month period, become null

and void.

§1109. Appeal.

The petitioner, if the petition is not granted; or any person

or Organization whose parental rights have been terminated

by the order, may, at any time within 30 days after the

making and entry of such decree, take an appeal therefrom to

the Supreme Court.

§1110. Court costs,

All Court costs including costs of giving notice and

advertising shall be paid by the petitioners.

§1111. Confidential nature of records,

All records and dockets pertaining to any termination

Shall be confidential and shall be kept by the Prothonotary in

a sealed container which shall be opened only by the order of

a Judge of the Superior Court.

Anyone wishing to inspect any of the papers filed in

connection with any termination shall petition a Judge of the

Superior Court Setting forth the reasons for the inspection.

The Judge may refer the petition to the State Department of

lla

Health and Social Services or to an authorized agency for

investigation and report. If, in the opinion of the Court, the

information is necessary, and the interests of the child, the

natural parents or the adoptive parents will not be prejudiced

by its disclosure, the Court shall issue an order permitting the

release of the information and setting forth the terms under

which it shall be released.

§1112. Effect of termination of parental rights.

Upon ihe issuance of an order terminating the existing

parental rights and transferring such parental rights to

another person or organization, the effect of such order shall

be that all of the rights, duties, privileges and obligations

recognized by law between the person or persons whose

parental rights are terminated and the child shall forever

thereafter cease to exist as fully and to all intents and

purposes as if the child and the person or persons whose

parental rights have been terminated were and always had

been strangers. The person or organization to whom said

parental rights are transferred shall have custody and

guardianship of the child but such custody and guardian-

ship shall terminate automatically upon the entry of another

order transferring parental rights or on an order of adoption.

§1113. Interpretation.

This chapter is designed to achieve without undue delay

the paramount objective of the best interest of the child, and

all questions of interpretation shall be resolved with that

objective in mind.

APPENDIX B

Mich. Comp. Laws Ann. §722.23 (1979 Supp.) provides:

**Best interests of the child’’ means the sum total of the

following factors to be considered, evaluated and de-

termined by the court:

(a) The love, affection and other emotional ties existing

between the competing parties and the child.

(b) The capacity and disposition of competing parties

to give the child love, affection and guidance and

continuation of the education and raising of the child in its

religion or creed, if any.

to provide the child with food, clothing, medical care or

other remedial care recognized and permitted under the

laws of this state in lieu of medical care, and other material

needs.

(d) The length of time the child has lived in a stable,

Satisfactory environment and the desirability of main-

taining continuity.

(e) The permanence, as a family unit, of the existing or

proposed custodial home.

(f) The moral fitness of the competing parties.

(g) The mental and physical health of the competing

parties.

(h) The home, school and community record of the

child.

(i) The reasonable preference of the child, if the court

deems the child to be of sufficient age to express

preference.

(j) Any other factor considered by the court to be

relevant to a particular child custody dispute.

Tex. Code Ann. Tit. 2 § 15.02 (1979) provides:

A petition requesting termination of the parent-child

relationship with respect to a parent who is not the petitioner

may be granted if the court finds that:

(1) the parent has:

(A) voluntarily left the child alone or in the pos-

session of another not the parent and expressed an intent

not to return; or .

(B) voluntarily left the child alone or in the posses-

sion of another not the parent without expressing an intent

to return, without providing for the adequate support of the

child, and remained away for a period of at least three

months; or

sion of another without providing adequate support of the

child and remained away for a period of at least six

months; or

(D) knowingly placed or knowingly allowed the

child to remain in conditions or Surroundings which

endanger the physical or emotional well-being of the child:

(E) engaged in conduct or knowingly placed the

child with persons who engaged in conduct which

endangers the physical or emotional well-being of the

child; or

(F) failed to support the child in accordance with

his ability during a period of one year ending within six

months of the date of the filing of the petition; or

(G) abandoned the child without identifying the

child or furnishing means of identification, and the child’s

identity cannot be ascertained by the exercise of reasona-

ble diligence; or

(H) voluntarily, and with knowledge of the

pregnancy, abandoned the mother of the child beginning at

a time during her pregnancy with the child and continuing

through the birth, failed to provide adequate support or

medical care for the mother during the period of

abandonment before the birth of the child, and remained

apart from the child or failed to support the child since the

birth; or

(1) contumaciously refused to submit to a reasona-

ble and lawful order of a court under Section 34.05 of this

code; or

(J) been the major cause of:

(i) the failure of the child to be enrolled in

school as required by the Texas Education Code; or

(ii) the child’s absence from his home without

the consent of his parents or guardian for a sub-

stantial length of time or without the intent to

return; or

(K) executed before or after the suit is filed an

unrevoked or irrevocable affidavit of relinquishment of

parental rights as provided by Section 15.03 of this code;

and in addition, the court further finds that

(2) termination is in the best interest of the child.

APPENDIX C

Indian Child Welfare Act of 1978, 25 U.S.C. § §1912(e),

(f) (1978 Supp.), provides in pertinent part:

(e) No foster care placement may be ordered in such

proceeding in the absence of a determination, supported

by clear and convincing evidence, including testimony of

qualified expert witnesses, that the continued custody of

the child by the parent or Indian custodian is likely to

result in serious emotional or physical damage to the child.

(f) No termination of parental rights may be ordered in

such proceeding in the absence of a determination,

supported by evidence beyond a reasonable doubt, in-

cluding testimony of qualified expert witnesses, that the

continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or

physical damage to the child.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.