# Appellants Brief — Doe v. Delaware

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Brief
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 382

## Text

OCTOBER TERM, 1979

No. 79-5932

JOHN DOE AND JANE ROE,

Appellants,
v.
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

2

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),

3

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.

4

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.”

5

“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.

6

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.

7

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.

8
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.

10

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.

11

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.

12

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,

13

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

14

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.

.

¢

15

ARGUMENT
I.

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),

16

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).

17

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),

18

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.”

19

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”).

20

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.

2l
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.

22

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.

———

23

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).

_—

24

“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),

25

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).

%,

26

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).

27

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.

28

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),

29

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).

30

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.

31

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.

32

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).

33

“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.

34

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.

35

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)

36

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).

~>

37

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).

38

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).

39

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.

40

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.

41

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.

42

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.

43

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.

44

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.

2a

§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.
(c) Whenever the Superior Court shall assume juris-

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

3a

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;

4a

(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

5a

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.

(c) In any case in which a petition for the termination of
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;

6a

(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;

ia

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

8a

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.

(c) Personal service at any time prior to the hearing shall
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,

9a

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. ;

(c) Inthe case of the termination of the parental rights of 1
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.

lb

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.

(c) The capacity and disposition of competing parties
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.

2b

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

(C) voluntarily left the child alone or in the posses-
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:
or

(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

3b

(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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2665%3A04. Public record. Not legal advice.