Amicus Brief — Doe v. Delaware

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

No. 79-5932

JOHN Dot AND JANE ROE, Appellants,

STATE OF DELAWARE, Appellee.

On Appeal From The Supreme Court of Delaware

BRIEF OF AMICI CURIAE

American Orthopsychiatric Association, Association for

Children of New Jersey, Child Welfare League of

America, Inc., Children’s Defense Fund, Institute for

Child Advocacy, National Association of Social Workers,

Inc., New York State Citizens’ Coalition for Children,

North American Council on Adoptable Children, Inc.,

Youth Policy and Law Center

CAROL R. GOLUBOCK

NANCY E. EBB

DANIEL YOHALEM

MARIAN WRIGHT EDELMAN

CHILDREN’S DEFENSE FUND

1520 New Hampshire Ave., N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae

PRESS OF BYRON 8S. ADAMS PRINTING, INC., WASHINGTON, DAC.

SUBJECT INDEX

perenaer Ce Anns CE oo os es

SUMMART GH AROUNIIIT oin5i. 6 5 locas od bkch onde een

ARORMIGE fii bce

II.

III.

Children’s Fundamental Rights To Continuous

And Permanent Family Relationships Are

Violated By State Action Which Unnecessarily

Destroys Those Relationships ................

A. Children have a fundamental interest in the

continuity and permanence of family rela-

OE hs Saxe ctres naan eee. ae

B. Unnecessary removal from a permanent

family violates children’s rights...........

Vague Standards Increase The Likelihood That

Temination Proceedings Will Not Protect

COD. vi. 5c oe vi vevensieinct Ale cn eee

A. Termination has not served its function in

protecting children from harm ...........

1. Parental rights are being terminated

inappropriately when there have been

Jew efforts to avoid removal or to

ibaa CD TN ag. eo ec Ge

2. Parental rights are not being ter-

minated when there is little possiblity

that the parent-child ties can be re-

established without harm to the child .

B. Vague statues do not protect children from

Wo <2 Ssicweikindacteeees.

C. Vague standards were not developed to in-

sure family integrity ............0.0ccec..

Standards Governing Termination Decisions

Can And Must Provide Specific Guidelines

Which Focus On The Child’s Needs To Ensure

Protection Of The Family Unit And To

Minimize Harm To Children.................

A. Standards for termination must focus on

a SE PE ee elie QMIU SI ve

Subject Index Continued

PAGE

B. Standards for termination of parental

rights can contain specific guidelines which

focus on the child’s needs ............... 36

es A a ee oT. a eceihe er 45

iii

TABLE OF AUTHORITIES CITED

CASES: PAGE

Belotti v. Baird, _._-_=s~U.S. ___, 99 S. Ct. 3035

SEPP sds tat nina sabe ensl- eu ws wee sakes ee 9, 24, 34

Caban v. Mohammed, 441 U.S. 380 (a, ieee 9, 10, 24

C.S. v. Smith, 483 S.W. 2d 790 (Mo. Ct. App. 1972)... 20

Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 675 (1979). 29

Giaccio v. Pennsylvania, 382 U.S. 399 SR 23

Grayned v. City of Rockford, 408 U.S. 104 lt: er 24

Griswold v. Connecticut, 381 U.S. 479 Se 8

In re Anita “P.P.’"(N.Y. App. Div. 12/7/78) 3 Fam. L.

We SEW eae rec iciuG ee e 20

In re Christopher H., 577 P. 2d 1292 (Okla. eee 20

wr OU, FP CE, WAR oe oink oo vec 17, 33

In re Hirsch, 93 Misc. 2d 399, 402 N.Y.S. 2d 743 (Fam.

Sk MOE hare sea Ved eee Cee ge, orl ee 20

In re Ray M., 37 N.Y. 2d 619, 376 N.Y.S. 2d 431 (Ct.

de at, Fee Ee Cena ONE PDN ORME ante nan) 20

In re Susan Lynn M., 53 Cal. App. 3d 311, 125 Cal.

“ae pra, Moser de ccanci:, SORT SAE DT Oe an (ODT a Le at 20

In re Taylor, 334 N.E. 2d 194 (Ill. App. Ct. 1975)...... 20

In re W.M. IIT, 393 A. 2d 410 (Pa. 1978).............. 20

Jordan v. DeGeorge, 341 U.S. 223 | EEA ily eae 23

Kennedy v. Mendoza-Martinez, 273 U.S. 144 (1963) .... 23

King v. Smith, 392 U.S. 309 (1968) ................. 32, 33

Mahoney v. Arizona Department of Economic Security,

24 Ariz. App. 534 (Ct. App. oc, MRCP e eae 20

McKeiver v. Pennsylvania, 403 U.S. 528 oy 33

Mercein v. People, 35 Am. Dec. 653 8 8) |. Be 34

Moore v. City of East Cleveland, 431 U.S. 494 (1977)... 8,9

Parham v. J.R., U.S. » 99S. Ct. 2493 (1979) 12

Table of Authorities Continued

CASES: PAGE

Planned Parenthood v. Danforth, 428 U.S. 52 (1976)... 12

Poe v. Ullman, 367 U.S. 497 (1961)...............000, 9

Quilloin v. Walcott, 434 U.S. 246 (1978) .............. 10

Smith v. Organization of Foster Families for Equality

and Reform, 431 U.S. 816 (1977) .............00. 8, 11

14, 17, 21, 26, 43

Stanley v. Illinois, 405 U.S. 645 (1972) ........ 9, 10, 15, 24

State v. Robert H., 393 A. 2d 1387 (N.H. 1978)........ 20

Wisconsin v. Yoder, 406 U.S. 205 (1972) .............. 8

Zablocki v. Rechail, 434 U.S. 374 (1978) .............. 8

MISCELLANEOUS:

Abbott, The Child And The State (1938) ............ 11, 12

Advisory Committee on Child Development, Toward A

National Policy For Children And Families (1976) .. 9

Areen, /ntervention Between Parent and Child: A Reap-

praisal of the State’s Role in Child Neglect and

Abuse Cases, 63 Geo. L. Rev. 887 (1975)........ 11, 12

31, 32, 34

Beck, The White House Conference on Children: An

Historical Perspective, 43 Harv. Educ. Rev. 653

ig APE RRR SES 7 a te ECO ae 11, 32

Billingsley and Giovannoni, Children of the Storm:

Black Children and American Child Welfare

CS Sa CA b Oy ov wi dakar DEW Gale in tee 27

Boehn, The Community and the Social Agency Define

Neglect, 43 Child Welfare 453 (1963).............. 27

Bowlby, Child Care And The Growth Of Love, (2d ed.

FRE reas argh sie tives BeeV Cube a ten die chs 10

Bryce and Ehlert, /44 Foster Children, 50 Child Welfare

MP GNTER Cee eee d ie beat etdas oth ds ch 22

Buxbaum, The Problem of Separation and the Feeling of

Identity, Child Welfare 8 (1955)............. 10, 21, 44

Table of Authorities Continued

MISCELLANEOUS: PAGE

Campbell, The Neglected Child: His and His Family’s

Treatment Under Massachusetts Law and Practice

and Their Rights Under the Due Process Clause, 4

IE Gis Os ME CPTI a o's vc cccccediccuvcces 25

Child Abandonment: The Botched Beginning of the

Adoption Process, 60 Yale L. J. 1240 (1951)....... 30

Child Neglect: Due Process for the Parent, 70 Col. L.

SERS Sener AER re Lele 23, 33

Children’s Defense Fund, Children Without Homes: An

Examination Of Public Responsibility To Children

In Out-Of-Home Care (1978) ........ 18, 19, 21, 26, 30

Daly, Termination of Parental Rights and the Void for

Vagueness Doctrine: A Successful Attack on the

Parens Patriae Rationale, 16 J. Fam. L. 213

Ns 00 ON ads oss ke ad Ow ian Cs ik Come wae 23

Developments in the Law, The Constitution and the

Family, 93 Harv. L. Rev. 450 (1980).......... 9, 23, 33

Fanshel and Shinn, Children In Foster Care: A

Longitudinal Investigation (1978) ........ 19, 22, 38, 42

Fox, Juvenile Justice Reform: An Historical Perspective,

Se Ss Cin ls BONNE UE sg Se tN a ndnk GaVewicaae 32

Geiser, The Illusion Of Caring: Children In Foster Care

SN canvas KAK bak 4 Weds OC URES 10, 19, 21, 22, 44

Goldberg, Legislative Guides for the Termination of

Parental Rights and Responsibilities and the Adop-

tion of Children (Children’s Bureau Publication No.

CRA Mbucinka Gan oa Geiss k cated seca eek. 14

Goldstein, Medical Care for the Child at Risk: On State

Supervision of Parental Autonomy, 86 Yale L. J.

ITE Minis etek ras: vay u's'a bbb as baw ele Calin tenes 35

Goldstein, Freud and Solnit, Beyond The Best Interests

o£: fo 7). ee 10, 11, 38, 43, 44

Governor’s Advocacy Council on Children and Youth,

Why Can’t I Have a Home? A Report on Foster

Care and Adoption in North Carolina (1978)..... 18, 21

Tabie of Authorities Continued

MISCELLANEOUS: PAGE

Institute of Judicial Administration, American Bar

Association, Standards Relating To Abuse and

Neglect (Tentative Draft 1977) .............. 38, 39, 43

Jeter, Children, Problems and Services in Child Welfare

UI ee oe aig es fo 25

Joint Commissior» On Mental Health For Children,

Crisis In Child Mental Health: Challenge For The

RR EERE ea apne or nS ne 7

Jones, Newman and Shyne, A Second Chance For

Families: Evaluation Of A Program To Reduce

Pe ots ee eee tek ea 41

Kadushin, Child Welfare Services (3d ed. 1974) ........ 2

Katz, Howe, McGrath, Child Neglect Laws in America,

ee ee ee OOO ere eae reiccy evs 13, 14, 32

Keniston And Yhe Carnegie Council On Children, A//

Our Children; The American Family Under Pressure

SOOO CIOS POG CU Cena a bile beh eh ee re backed Wat

Ketcham and Babcock, Statutory Standards for the In-

voluntary Termination of Parental Rights, 29

ee Oo, eee ee 43

Levine, Caveat Parens: A Demystification of the Child

Protection System, 35 U. Pitt. L. Rev. 1 (1973) .... 26

Littner, Some Traumatic Effects Of Separation And

a ke em rey et et ree 10

Littner, The Importance of the Natural Parents to the

Child in Placement, 54 Child Welfare (1975) ....... 10

Maas & Engler, Children In Need Of Parents (1959) .. 20, 22

Masem, Child Welfare in Arkansas (1979) ............. 27

Mnookin, Child Custody Adjudications: Judicial Func-

tions in the Face of Indeterminancy, 39 Law & Con-

temp. Prob. 226 (1975) ....... 20, 21, 23, 24, 26, 28, 34

Mnookin, Foster Care—In Whose Best Interest? 43

Harv. Ed. Rev. 599 (1973) ..... ccc ccc c ccc cece 25, 28

vii

Table of Authorities Continued

MISCELLANEOUS: PAGE

Model Adoption Legislation and Procedures Advisory

Panel, Model State Adoption Act and Model State

Adoption Procedures, 45 Fed. Reg. 10622

gE SOR ey Seay eee 37, 39, 40, 41, 43, 44

National Commission on Children in Need of Parents,

Who Knows? Who Cares? Forgotten Children In

PI CP ENE Sho codes be REUR SEOs oes ‘2. 2i, 20

Neglected Children Committee, National Council of

Juvenile Court Judges, Lincoln Model Statute for

Termination of Parental Rights, 27 Juvenile Justice

Ens VeeeOERENLEL KE MR EPR ESCO 38, 41, 43, 44

New Jersey State Legislature Office of Legislative Ser-

vices, Division of Budget and Program Review,

Characteristics Of DYFS Children In Residential

po ge ERR NC rere a 27

Note, The Void for Vagueness Doctrine in the Supreme

Court, 1098 U. Pa. L. Rev. 67 (19GO) oc ccccccccces 23

Note, Parens Patriae and Statutory Vagueness in the

Juvenile Court, 82 Yale L.J. 745 (1963) ........... 33

Pike, Permanent Planning for Foster Children: The

Oregon Project, § Children Today 22 (1976) ....... 41

ye: fe Pk A eae ee ee TS 26

President’s Commission on Law Enforcement and Ad-

ministration of Justice, Task Force Report: Juvenile

Delinquency and Youth Crime (1967) .........0065 32

Richan, Personnel Issues in Child Welfare, in Child

Welfare Strategy in the Coming Years (DHEW

Publication No. OHDS 78-30158, 1978) ........... 25

Shapiro, Agencies and Foster Children (1976) .......... 42

Sherman, Newman and Shyne, Children Adrift In Foster

Care: A Study of Alternative Approaches (1973) ... 40

Shyne and Schroeder, National Study of Social Services

to Children and Their Families (1978) ............. 24

viii

Table of Authorities Continued

MISCELLANEOUS: PAGE

Task Panel on Mental Health and American Families,

Report of Sub-Task Panel on Infants, Children, and

Adolescents, in III Task Panel Reports Submitted

to the President’s Commission on Mental Health ‘

CIRTEE aos 0 va ckee shen cebs ches tex |

tenBroek, California’s Dual System of Family Law: Its

Origin, Development and Present Status, Part I, 16

UO... BV Ae AME: 05.6 vss Skee gaabions aka 31

Thomas, Child Abuse and Neglect, Part I: Historical

Overview, Legal Matrix, and Social Perspectives, 50

i E> : Eee, eel ap 11, 32, 33

United States Commission on the International Year of

the Child, Report to the President (1980) .......... 7

Vasaly, Foster Care In Five States: A Synthesis And

Analysis Of Studies From Arizona, California,

Iowa, Massachusetts and Vermont (1967) ........ 18, 19

21, 22, 42

Wald, State Intervention on Behalf of ‘‘Neglected’’

Children: A Search For Realistic Standards, 27

ween. L; OV. DEp CHW 6 osc ¥eciciccevepeeioeu 26

Wald, State Intervention on Behalf of ‘‘Neglected’’

Children: Standards for Removal from Their

Homes, Monitoring the Status of Children in Foster

Care and Termination of Parental Rights, 28 Stan.

L. Rev. 623 (1976)........ 14, 20, 21, 23, 25, 26, 28, 33

White House Conference on the Care of Dependent

Children, Letter to the President of the United

States Embodying the Conclusions of the Con-

ference on the Care of Dependent Children,

reprinted in The Proceedings Of The Conference On

the Care of Dependent Children (1909) ............ 1]

Wiltse and Gambrill, Foster Care 1973; A Reappraisal,

32 Public-Welfare 7 (1974). i 5. te boeeb 25

Table of Authorities Continued

CODEs: PAGE

Ala. Code tit. 12 § 12-15-71 (1975) .............0.005. 28

Alaska Stat. § 47.10.080(c)(1979)...............0.005. 28

Ark. Stat. Ann. § 56-220 (Supp. 1979)................ 15

Cal. Civ. Code § 232(a)(2) (West Supp. 1979).......... 15

Cal. Civ. Code § 232(a)(7) (West Supp. 1979).......... 15

Cal. Welf. & Inst. Code § 366.5(e)(1)(B) (West Supp.

ERE SOY SOE re no ev nn 39

Colo. Rev. Stat. § 19-3-111 (1973)...............0005. 28

Conn. Gen. Stat. Ann. § 17-43a(a) (West Supp. 1980) 28, 29

Del. Code tit. 10 § 902 (1974). ..... 0... cee. 32

Del. Code tit. 10 § 933 (Supp. 1978).................. 13

Del. Code tit. 10 § 937 (Supp. 1978).................. 14

Del. Code tit. 31 § 301 (1974). ...................... 31

D.C. Code § 16-2320 (West 1967) .................... 28

D.C. Code § 16-2353(b)(3) (West Supp. 1978).......... 44

D.C. Code § 16-2354(b) (West Supp. 1978)............ 29

D.C. Code § 16-2360 (West 1967) .................... 30

Fla. Stat. Ann. § 39.41 (West 1979) ................ 28, 29

Ga. Code Ann. § 24A-3201(a)(2) (Supp.1979).......... 28

Haw. Rev. Stat. § 571-61 (Supp. 1979)................ 29

Ill. Rev. Stat. ch. 37 § 705-9(3) (West 1975) ........... 15

Ill. Rev. Stat. ch. 40 § 9.1-1(D)(m) (West 1975, Supp.

8 5S SER Si he a aD RL 15

Ind. Code § 31-6-5-4 (Supp. 1979).................. 29, 41

lowa Code § 232.114(4) (West Supp. PPM kiidtwtis aded VW

lowa Code § 232.114(5) (West Supp. a en 40

lowa Code § 232.114 (West Supp. 1979)...... 29, 39, 41, 42

Table of Authorities Continued

CODES: PAGE

lowa Code § 232.115 (West Supp. 1979) .............. 28

Kans. Stat. § 38-824 (Supp. 1979) .................... 28

BY. REV. Stat. § IDPGOO IGT) occccc cic cccussecesct« 29

Ky. Rev. Stat. § 199.603(3) (Supp. 1978) .............. 41

La. Rev. Stat. Ann. § 13:1601.B, D. (West Supp. 1975). 29

Md. Ann. Code art. 16 § 75 (Supp. 1979) ............. 29

Mass. Gen. Laws Ann. ch. 210 § 3(a)(ii) (West Supp.

tat EERE EET RET PEO TE A OE Oe tne eee 15

Mass. Gen. Laws Ann. ch. 210 § 3(b) (West Supp. 1979) 15

Minn. Stat. § 260.221 (b)(5) (Supp. 1980) ............. 29

Minn. Stat. § 260.235 (Supp. 1979)..............0005. 29

Mo. Ann. Stat. § 211.447 (2) (h) (Vernon Supp. 1980).. 29

Neb. Rev. Stat. § § 43-202 (2), 43-209 (1972) .......... 29

N.H. Rev. Stat. Ann. § 170-C:5 (III) (1978) .......... 29

N.M. Stat. Ann. § 40-7-4-B(4) (Supp. 1979) ........... 15

N.Y. Fam. Ct. Act § 614.1 (West 1979) ............... 29

N.C. Gen Stat. § 7A-289.32 (2) (Supp. 1979) .......... 29

N.C. Gen. Stat. § 7A-289.32 (3) (Supp. 1979).......... 29

N. Dak. Cent. Code § 27-20-44 (Supp. 1979) .......... 29

Ohio Rev. Code Ann. § 2151.353 (1970) .............. 29

Okla. Stat. tit. 10 § 1130.A (3) (West Supp. 1978)...... 29

Or. Rev. Stat. § 419.523(2)(e) (1978). .......... 000005. 29

Pa. Stat. Ann. tit. 1 § 311 (Purdon Supp. 1977) ....... 15

R.I. Gen. Laws § 40-12-15 (1977) ......... 0.0. cccceeee 15

Oe kh 29

S.C. Code § 20-11-20(2)(a) (1976) .................... 29

SC, Code § 20-01-40 (1976)... oo ccc cc cccccccvecs 29

Table of Authorities Continued

CODEs: PAGE

S.Dak. Compiled Laws Ann. § 26-8-35 (Supp. 1979).... 29

S.Dak. Compiled Laws Ann. § 26-8-36 (Supp. 1979).... 29

Tenn. Code Ann. § 37-238(d) ds aR IS aie eleia 29

Tenn. Code Ann. § ue EL, an a ar 29

Utah Code Ann. § 78-3a-48(1)(c) (1977) ............... 29

Vt. Stat. Ann. tit. 3 § 667(4) (Supp. 1979)........... 41, 44

Va. Code § 16.1-279 (Supp. 1979) .................... 29

Va. Code § 16.1-283 (Supp. Pe nan ea 29

Va. Code § 16-1-283 B,C Sy, ir ae 29, 41

Va. Code § 16.1-283E (Supp. 1979)................... 39

Vt. Stat. Ann. tit. 33 § 656 re 29

Wash. Rev. Code Ann. § 13.34.180(4) (Supp. 1979) .... 44

Wash. Rev. Code Ann. § 13.34.180(5) (Supp. 1979) .... 41

Wash. Rev. Code Ann. § 13.34.180(6) (Supp. 1979) .... 41

Wash. Rev. Code Ann. § 13.34.180 (Supp. 1979)....... 29

Wash. Rev. Code § 13.34.210 (Supp.1979) ............ 30

W.Va. Code § 49-6-5 (Supp. SET aie 29, 41

W.Va. Code § 49-6-5(6) (Supp. 1979) ................. 39

Wis. Stat. Ann. § 48.40(2)(e) (West Supp. 1979) ....... 29

Child Abuse Prevention and Treatment and Adoption

Reform Act, 42 U.S.C. § 5101 et. WO ek Cauien ease e 37

Soc. Sec. Act, 42 U.S.C. Care etc, 33

> a

IN THE

Supreme Court of the United 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 OF AMICI CURIAE

American Orthopsychiatric Association, Association for

Children of New Jersey, Child Welfare League of

America, Inc., Children’s Defense Fund, Institute for

Child Advocacy, National Association of Social Workers,

Inc., New York State Citizens’ Coalition for Children,

North American Council on Adoptable Children, Inc.,

Youth Policy and Law Center

INTEREST OF AMICI CURIAE

This brief is filed on behalf of the American Or-

thosychiatric Association, Association for Children of

New Jersey, Child Welfare League of America, Inc.,

Children’s Defense Fund, Institute for Child Advocacy,

National Association of Social Workers, Inc., New York

State Citizens’ Coalition for Children, North American

Council on Adoptable Children, Inc., and the Youth

Policy and Law Center.*

*(1) The American Orthopsychiatric Association is a national

professional membership educational organization with over 8,000

members that brings together leading professionals in the disciplines

devoted to mental health and the study of human behavior.

(2) The Association for Children of New Jersey is a nonprofit

citizen organization which works to improve programs and policies

affecting children in New Jersey through research, community

education, and legislative and administrative advocacy.

(3) The Child Welfare League of America, Inc. is a national

voluntary standard-setting organization with over 400 local af-

filiates, many of which are involved in providing services to

children and their families, including foster care and adoption ser-

vices.

(4) The Children’s Defense Fund is a national nonprofit, public

interest organization which has gathered evidence about the pro-

blems facing children at risk of or in out-of-home care in this coun-

try and is attempting to address these problems systematically,

through litigation, legislation, and v rk with local and state

organizations.

(5) The Institute for Child Advocacy, a citizen-based public in-

terest organization, works primarily in Ohio to improve the systems

that serve children, particularly those in foster care, by impacting

on public policy through citizen organizing, administrative negotia-

tion, legislation and litigation.

(6) The National Association of Social Workers, Inc. is the

largest professional association of social workers in the world, com-

prised of 81,000 social workers with chapters in all fifty states and

the District of Columbia.

(7) The New York State Citizens’ Coalition for Children is com-

prised of approximately 45 foster parent and adoptive parent

organizations throughout New York State.

(8) The North American Council on Adoptable Chiidren, Inc. is

a national organization representing over 250 adoptive parent

groups who are united in the belief that every child has a right to a

permanent family.

(9) The Youth Policy and Law Center, Inc., is a private non-

profit public interest organization in Wisconsin advocating

simultaneously in the legislative, judicial and administrative bran-

ches of government for the rights of youth.

ee ee

Amici share a deep conviction that the family must

be preserved as the fundamental social unit in our socie-

ty. In cases where children must be removed from their

families, Amici believe that every reasonable effort

should be made to make it possible for the child to be

returned to his or her natural parents. Where return to

the parents is not possible, we believe that each child is

entitled to a permanent family, preferably through

adoption.

Amici represent a vast range of professionals and

agencies involved’ in meeting the needs of families and

children in diffigulty, as well as organizations of parents

and others advocating on behalf of children who too

frequently are removed from their homes inappropriate-

ly and left indefinitely in care, with little chance of per-

manence or security.

Amici submit this brief in order to inform the

Court of the important consequences of this case for

children in this country, many of whom are now being

denied their fundamental right to permanence and fami-

ly integrity by being left to linger in foster care, neither

returned to their families nor provided new permanent

families through adoption.

SUMMARY OF ARGUMENT

The Court in this case is faced with problems in the

delicate and complicated area of state intervention into

family life. We have filed this brief in order to present a

point of view which is not fully represented by the

parties to this case. We are concerned both that families

are broken up and parental rights terminated for the

wrong reasons and also that parental rights are not be-

ing terminated when children need to be freed from

legal ties and provided new permanent families through

adoption. We are concerned with the harm to children

in both situations.

Our concerns lead us to ask the Court to do three

things: 1) to confirm that the children’s interests at stake

here are interests in permanent and continuous family

relationships and that those interests are violated by

State action which unnecessarily destroys either the per-

manence or continuity of these relationships; 2) to

declare the Delaware termination of parental rights

statute void for vagueness because its vague standards

increase the probability that decisions to terminate or

not terminate will harm children; and 3) to give

guidance as to what are proper considerations to those

who must design constitutionally adequate standards for

termination of parental rights.

1. The interests of children at stake when a state

removes them from their family are substantial. There is

universal agreement in the jurisprudence of this Court,

the country’s political traditions and _ scientific

knowledge that children need a permanent and con-

tinuous relationship in a family, natural or adoptive,

and are harmed by separation from the family. Protec-

tion of family ties flows in part from this recognition of

children’s needs. In addition, the country’s commitment

to family life flows from the recognition that state care

throughout the years has proven to be harmful to

children.

2. State statutes authorize the removal of

‘“*neglected’’ children from their families for indefinite

periods of time or permanently. The stated purpose of

state intervention into families is to strengthen families

and to break them up only when the interests of the

child demand it. However, each time the state removes

children from the physical custody of their parents, their

interests in permanent and continuous relationships are

threatened and they are subjected to the risks involved

in state care. As the interests in family relationships are

substantial, permanent removal of the child from the

family through termination of parental rights should not

occur unless there are compelling interests to justify it.

We stress the crucial role of termination as an integral

part of the entire foster care process because this

Court’s characterization of the interests at stake here

will have a significant impact on all children at all stages

of the child welfare system.

1. Termination of parental rights is one measure a

state may take to protect children. It is intended to in-

sure that there is a potential exit from the impermanen-

cy of foster care when a child cannot be returned home.

Termination proceedings have failed to perform this

function. Terminations of parental rights are occurring

inappropriately with no or little consideration of the

needs of children and without efforts to keep families

together. In addition, terminations are not occurring

when the interests of the child in a permanent family de-

mand them.

2. Vague statutes contribute significantly to the

failure of termination proceedings to serve their func-

tion. They violate several basic principles of due process

by delegating basic policy matters to state officials with

no guidance to ensure appropriate decision-making, by

encouraging arbitrary and discriminatory decision-

making, by providing little Opportunity for review of

crucial decisions and by increasing the risks of harmful

decisions in an area where there is substantial likelihood

of inappropriate decision-making.

2. Vague standards like ‘‘not fitted to continue to

exercise parental rights’’ reflect outdated notions of the

needs of children and do not serve current national

goals. They were not developed to ensure the protection

of family integrity nor to protect children from the

harms of separation or of state care. As in the juvenile

delinquency area, unbridled discretion has led not to in-

dividualized decision-making carefully adjusted to the

needs of each child, but rather to the ignoring of their

needs and harm to children. The ‘‘best interests of the

child’’ standard was also not developed to ensure family

integrity but was designed to be used when a family

member, not the state, sought to destroy the family

unit.

The elimination of vague standards will not alone

protect the due process rights of children in their

familial relationships unless they are replaced by specific

standards which focus on the child. The fundamental in-

terests of children require that the harms of separation

and state care as compared to the harms of remaining

with the family be considered when children are

removed from their families.

Specific standards which focus on the child rather

than on parental conduct alone can be drafted. There

exists a great deal of scientific knowledge which can

guide and has guided both legislators in amending

statutes and several eminent bodies in drafting model

codes which contain constitutionally adequate standards.

ARGUMENT

I. Children’s Fundamental Rights To Continuous

And Permanent Family Relationships Are

Violated By State Action Which Unnecessarily

Destroys Those Relationships.

There is virtually universal agreement that families

are vital to the healthy development of children.

Children need to feel wanted and accepted; they need

continuity in their relationships with their biological or

psychological parents; they need a permanent relation-

ship to give them a sense there is a regular, dependable

quality to the world.'

The jurisprudence of this Court and this country’s

political traditions, as well as scientific knowledge, sup-

port the fundamental nature of children’s interest in

their continuous relationship in a family. Faced with

State interference into familial relationships this Court

has reviewed such activities with great concern,

acknowledging the severe harm to each family member

caused by state intervention.

All states have laws governing the protection of

neglected children, which authorize the state to remove

children from their families and to terminate familial

rights. Because of the fundamental nature of children’s

interest in a permanent and continuous family relation-

ship and the harm to them which accompanies breaking

up of the*family unit, decisions to remove children from

their parents are ones involving ‘‘issues of unusual

' See Advisory Committee on Child Development, Toward a Na-

tional Policy for Children and Families (1976); Joint Commission

on Mental Health for Children, Crisis in Child Mental Health:

Challenge for the 1970's (1969); Keniston and The Carnegie Council

on Children, All Our Children: The American Family Under

Pressure (1977); and U.S. National Commission on the Interna-

tional Year of the Child, Report to the President (1980).

delicacy,’’ Smith v. Organization of Foster Families for

Equality and Reform, 431 U.S. 816, 855 (1977), which

require careful balancing of the interests of each family

member and an understanding of how state decisions af-

fect families.

Because we are concerned with the whole process of

state intervention and the role of termination in it, we

urge this Court to carefully characterize the interests of

the child affected when the state intervenes into a fami-

ly. The child’s fundamental right to permanency and

continuity in family relationships is threatened by ter-

mination of parental rights not only because termination

involves the permanent severing of the legal relationship

between child and parent, but also because it makes per-

manent the removal of the child from the physical

custody of the parent. This careful characterization is

necessary not only to an analysis of the constitutional

standards for termination but also because of its impact

on the standards for initial removal from the home and

for indefinite maintenance of a child in the limbo of

foster care.

A. Children have a fundamental interest in the

continuity and permanence of family relation-

ships.

This Court has had several occasions to note that

the primacy ‘‘of parents in the upbringing of their

children is now established beyond debate as an endur-

ing American tradition,’’ Wisconsin v. Yoder, 406 U.S.

205, 232 (1972), and has stressed the ‘‘sacred’’ nature of

family ties, Griswold v. Connecticut, 381 U.S. 479, 486

(1965); the warm affectional ties, Zablocki v. Redhail,

434 U.S. 374, 384 (1978); the mutual sustenance and

security in family life, Moore v. City of East Cleveland,

431 U.S. 494, 505 (1977) (plurality opinion).? Although

the Court has spoken of the interest in family integrity,

it has recognized that each family member, the child as

well as the parent, has an individual interest in being

part of a family.’ The children’s interest is in the per-

manency and continuity of the relationships that they

enjoy as members of a family, relationships which are

essential to their healthy development. Thus, this Court

has recognized that the deference due family ties flows

from the recognition that the State, as an ‘‘impersonal

political institution is not competent to provide the in-

timacy, stability and emotional support necessary for a

child’s development,”’ Belotti v. Baird, _..___. *wU:«S.

, 99 S. Ct. 3035, 3045 (1979)(opinion of Powell,

J.)* and has afforded great protection to existing family

units.

* The Court has based its protection of the family on several con-

stitutional provisions: ‘‘The home derives its preeminance as the

seat of family life and the integrity of that life is something so fun-

damental that it has been found to draw to its protection the prin-

ciples of more than one explicitly granted constitutional right.’’ Poe

v. Ullman, 367 U.S. 497, 551-52 (1961) (Harlan, dissenting). Recent

commentary argues that this Court’s cases have established the due

process clauses as the bases for special protection of **family’’

rights from state interference, Note, Developments in the Law—The

Constitution and the Family, 93 Harv. L. Rev. 1156, 1166-68

(1980).

’ Thus in Caban vy. Mohammed, 441 U.S. 380 (1979), the Court

recognized that the children had individual interests in being com-

pletely incorporated into a family unit, interests which might be

distinct from those of their father or mother,

““[The deference due familial ties has also] arisen from our

historical commitment to diversity of views and lifestyles,’’ Moore,

431 U.S. at 503-04,

* Where the Court has been presented with an existing parent-

child relationship in which the father has ‘‘sired and raised’’ his

children as in Stanley v. Illinois, 405 U.S. 645, 651 (1972), or has

had a ‘‘substantial relationship with them,’’ Caban, 441 U.S. 380,

—_.__, 99 S. Ct. at 1969, it has granted the protection for the rela-

The Court’s evaluation of the importance for

children of preserving the continuity of family ties has

been confirmed by psychological and_ sociological

knowledge® which emphasizes the severe harm to the

child caused by separation from the family.’ Even where

children have been removed from inadequate homes,

separation from parents is extremely painful to the

tionship sought. In Stanley the Court held the state must accord a

father a hearing before removing his illegitimate children from his

home. In Caban the Court invalidated a statute which required the

consent of mothers but not of fathers before their illegitimate

children could be adopted.

However, in Quilloin v. Walcott, 434 U.S. 246 (1978), where the

Court viewed the parent-child relationship as one in which the

father ‘‘never exercised actual or legal custody,’’ 434 U.S. at 255,

the Court refused to recognize his right to ‘‘veto’’ the adoption of

his child by the mother’s new husband and to stop the legal

recognition of ‘‘a family unit already in existence.’’ /d. at 255.

The custody disputes presented in Caban and Quilloin differ

substantially from that presented here. In those cases some con-

tinuity of family relationships was to be preserved for the child as

one natural parent would have custody of and legal ties to the child

whatever the outcome. Here, as in Stanley, the children’s family

has been broken up by the state which is challenging the parents’

right to custody.

* The child’s need for continuity and a sense of belonging has

recently been reiterated. Goldstein, Freud and Solnit, Beyond the

Best Interests of the Child 31-34 (1973); Task Panel on Mental

Health and American Families, Report of the Sub-Task Panel on

Infants, Children, and Adolescents, in 111 Task Panel Reports Sub-

mitted to the President’s Commission on Mental Health 26-27

(1978).

” The severe psychological harm of separation from the family is

well documented. Bowlby, Child Care and the Growth of Love

13-20 (2d ed. 1965); Buxbaum, The Problem of Separation and the

Feeling of Identity, Child Welfare 8 (1955); Geiser, The /llusion of

Caring: Children in Foster Care 35-129 (1972); Goldstein, Freud

and Solnit, supra note 6, at 19-20; Littner, The Importance of the

Natural Parents to the Child in Placement, 54 Child Welfare 175

(1975); Littner, Some Traumatic Effects of Separation and Place-

ment (1956).

—

child. OFFER, 431 U.S. at 837. Children need to be

returned to permanent family relationships either with

their natural parents or, if that is not possible, with

adoptive parents without delay. Goldstein, Freud &

Solnit, supra note 6, at 20.

With regularity in the last century, this country has

reaffirmed its commitment to preserving family life as

‘the highest and finest product of civilization,’’ and the

need to keep children ‘‘as a general rule’’ with their

parents. Letter from White House Conference on the

Care of Dependent Children to the President of the

United States Embodying the Conclusions of the Con-

ference on the Care of Dependent Children, reprinted in

Proceedings of the Conference on the Care of Depen-

dent Children 192-94 (1909).* The reaffirmance of the

national commitment has been prompted in part by con-

tinuous evidence of the state’s inability to improve the

lot of most children by removing them from their

homes. Since the state began intervening in families

there has been criticism of its care of its wards.°

* The first White House Conference on Children was held in

1909. Since then conferences are held every decade and the commit-

ment to the family reiterated. Beck, The White House Conference

on Children: An Historical Perspective, 43 Harv. Educ. Rev. 653,

657-68 (1973).

* In the colonies, children removed from their parents by the

state were ‘‘indentured’’ for work or training. An indenture was a

contract which created the terms of the placement. Thomas, Child

Abuse and Neglect, Part I: Historical Overview, Legal Matrix, and

Social Perspectives, 50 N.C.L. Rev. 293, 301; Areen, /ntevention

Between Parent and Child: A Reappraisal of the State’s Role in

Child Neglect and Abuse Cases, 63 Geo. L.: Rev. 887, 899 (1975).

This system was widely criticized. New Jersey Pension Survey Com-

mission, State Care of Dependent Children in New Jersey, Report

No. 5, 9-10, and U.S. Children’s Bureau, Children Indentured by

the Wisconsin State Public School (1925), excerpted in | Abbott,

The Child and the State 223-29 (1938).

Criticism of state care continues today. National Com-

mission on Children in Need of Parents, Who Knows?

Who Cares? Forgotten Children in Foster Care (1979)

[hereinafter cited as National Commission].

B. Unnecessary removal from a permanent family

violates children’s rights.

In stressing the fundamental importance to the child

of permanence and continuity in familial ties and the ex-

treme harm that occurs to children when separated from

their parents, we are not negating the necessity for state

intervention when the parent-child relationship is harm-

ful to the child. The interest and needs of the child may

not always coincide with the interest and needs of the

parent.'® All states have statutes authorizing state action

to protect children variously described as neglected, in

need of assistance and dependent.'' These statutes pro-

A reform of the nineteenth century was the establishment of poor

houses or alms houses to which children were sent along with ‘‘in-

sane, indecent, and idiotic adults.’’ Letchworth, Report on Paupers

and Destitute Children in 2 Abbott, The Child and the State 68-71

(1938). These institutions soon received widespread criticism for the

poor care of children. The latter half of the nineteenth century saw

the creation of separate institutions for children which at their in-

ception were recognized as offering inadequate care. In the nine-

teenth century, some states turned to foster care as an alternative to

institutional care. But whatever the system, all states had difficulty

insuring adequate care. Areen, supra note 9, at 905-08.

'° This Court has recognized extreme situations where the interest

of the child may conflict with the maintenance of the integrity of

the family unit. A minor’s pregnancy may ‘‘fracture’’ the family

structure, Planned Parenthood v. Danforth, 428 U.S. 56, 75 (1976);

a parent may seek to institutionalize his child because of family

conflicts, Parham v. J.R., US. , 99 S. Ct. 2493,

2509 (1979).

'' A typical statutory definition of ‘neglected child’’ is a person

under 18 years of age, abandoned, and/or lacking proper parental

care, control or guardianship, and whose parent, guardian or custo-

vide for an array of protective measures that may be

taken on a child’s behalf, including termination of

parental rights, the permanent removal of the child from

the home.

However, the stated purpose and theory of state in-

tervention into the family is declared by all states to be

the strengthening of families; families are to be broken

up only when the child’s interest cannot be safeguarded

without removal.'? State statutory schemes place respon-

sibilities for intervention in a state agency which is to in-

vestigate any complaint of child neglect. In many states

the agency is authorized to seek a voluntary arrange-

ment with the parent whereby services are provided to

the family or to petition a court for authority to act.

Del. Code tit. 10 § 933 (Supp. 1978). The agency may

remove the child from the home on an emergency basis

pending the adjudication. Following a hearing and an

dian refused or was unable to provide necessary medical, surgical or

other special care made necessary by the child’s particular condi-

tion. A ‘“‘dependent’’ child and a child ‘‘in need of assistance’’ are

defined similarly. Katz, Howe, McGrath, Child Neglect Laws in

America, 9 Fam. L.Q. 1, 70 (1975). Throughout this brief,

“*neglected’’ and ‘‘neglect’’ shall be used.

‘* In an article summarizing and digesting neglect statutes, com-

mentators have described a ‘‘typical’’ child neglect statute as con-

taining a purpose clause stating that the intent of the law is to be

liberally construed: ‘‘to secure care, guidance and discipline for

each child, preferably in his own home; to preserve and strengthen

family ties whenever possible, removing him from the care, custody

and discipline of his parents, only when his welfare or safety and

the protection of the public cannot be adequately safeguarded

without removal; and when removed, to secure care, custody and

discipline as nearly as possible equivalent to that which should have

been given by his parents.’’ Katz, supra note 11, at 70.

adjudication of neglect, the court. may make either of

two types of dispositions of a case if the allegations are

proven: protective supervision by the court in the child’s

own home with specified services to be provided; or

placement of the child outside the home and transfer of

legal custody to a public agency or other persons. Del.

Code tit. 10 § 937 (Supp. 1978). See generally Wald,

State Intervention on Behalf of ‘Neglected’ Children:

Standards for Removal from their Homes, Monitoring

the Status of Children in Foster Care and Termination

of Parental Rights, 28 Stan. L. Rev. 623, 629-630 (1976)

[hereinafter cited as Wald 1].

Children who are removed from their families are

placed by the state in foster homes or in institutions for

care. Such placements are intended to be temporary and

transitional until the child can be returned to a perma-

nent setting either by return home or integration into an

adoptive home. OFFER, 431 U.S. at 824-25, 833. Ter-

mination of parental rights causes the permanent

removal of the child from the parents and the severing

of all legal ties. '* It is designed to make full integration

into a new family possible through adoption by the

severance of old legal ties.'‘ However, termination of

'’ A ‘‘typical’’ definition of termination is: ‘‘the permanent

elimination by court order of all parental rights and duties, in-

cluding residual parental rights and responsibilities.’”’ Colo. Rev.

Stat. Ann. § 22-1-8 (1973). Katz, supra note 11, at 55.

'* Termination statutes were designed to correct perceived prob-

lems in the adoption process: the provisions on who had to consent

to adoption were unclear, leading to natural parent challenges to

adoption; the tendency to compare the natural parents with the pro-

posed adoptive parents in the adoption proceeding was considered

unfair to the natural parents; and adopting parents often desired to

maintain confidentiality. Goldberg, Legislative Guides for the Ter-

mination of Parental Rights and Responsibilities and the Adoption

of Children, (Children’s Bureau Publication No. 394 1961).

parental rights can occur in many states before there are

potential parents who wish to adopt the child.'* Thus,

termination is not the last step of the process. After ter-

mination, an adoptive family must be found for the

child.

Decisions to terminate or not to terminate implicate

children’s fundamental interests in continuous and per-

manent family relationships, relationships which are

essential to their healthy development. This is true not

only because legal ties are broken, but also because deci-

sions to separate children from their parents, whether

for permanent or indefinite periods of time, destroy the

continuity and permanence of their relationships and

may cause serious harm to children.

As the interests of the child and parents in the

maintenance and continuity of their relationship are

“‘substantial,’’ Stanley v. Illinois, 405 U.S. 645, 652

(1972), and ‘‘absent a powerful countervailing interest,’’

warrant protection, id. at 651, each time a state removes

children from their parents permanently or indefinitely

destroying the continuity of their relationships and sub-

jecting them to harms of separation and of state care,

there must be a compelling interest requiring removal.

When the purpose of the state in removing children is to

protect them from harm, it should not remove unless

'* Only seven states provide for termination solely in the context

of an adoption proceeding: Arkansas, Ark. Stat. Ann. § 56-220

(Supp. 1979); California, Cal. Civ. Code §§ 232(a)(2), (7) (West

Supp. 1979); New Mexico, N.M. Stat. Ann. § 40-7-4-B(4) (Supp.

1979); Pennsylvania, Pa. Stat. Ann. tit. | § 311 (Purdon Supp.

1977); Illinois, Ill. Rev. Stat. ch. 37 § 705-93), ch. 40

§ 9.1-1(D)(m) (West 1975, Supp. 1979); Massachusetts, Mass. Gen.

Laws Ann. ch. 210 § 3(a)(ii), 210 § 3(b) (West Supp. 1979); Rhode

Island, R.I. Gen. Laws § 40-12-15 (1977).

the children are subjected to greater harm in the home

than they suffer by separation and state care.

Because of the interrelation of neglect and termina-

tion standards and proceedings, see note 42 at p.28 in-

fra, the Court’s characterization of the interests at stake

here will affect the probability of whether children’s

rights are violated at the initial removal as well as the

termination stage. That is, no matter what the Court

does in this case it will have a far-reaching impact on

the entire foster care process. Thus, much will be done

to protect children if the Court, in reaffirming the na-

tion’s commitment to the family and the need for

**nowerful’’ state interests to justify state intervention,

makes it clear that removal of a child from the home

for indefinite periods, as well as permanently, seriously

implicates fundamental interests of the child. Such a rul-

ing will help correct the current failure of termination

proceedings to accomplish their function, which we

discuss next in this brief, and will protect many children

from inappropriate removal from their families.

Children will be thus saved from the intolerable state of

limbo in which the state does not return them home but

does not have grounds to seek to terminate parental

rights so as to provide new permanent families through

adoption.

II. Vague Standards Increase The Likelihood That

Termination Proceedings Will Not Protect

Children.

Termination proceedings have not accomplished the

function for which they were developed: to conclude the

temporary status of the child when return to the home

would be harmful and integration into another perma-

nent family through adoption is to be encouraged. In-

stead, parental rights are being terminated inap-

propriately without attention to the needs of the child

and the harm to children of termination, and with few

efforts first to avoid removal or to reunite the family

after removal. At the same time, in other cases termina-

tion proceedings are not occurring when the children’s

needs demand them. There is a great deal of empirical

evidence of these failures. Thus, as this Court has had

recent occasion to note, the result of neglect intervention

is a system widely condemned by commentators for

causing great harm to children. OFFER, 431 U.S. at

833-83.

Because of several basic offenses to the principles

of due process, vague standards increase the likelihood

of inappropriate terminations of parental rights which

violate family members’ rights to the integrity of their

unit and cause serious harm to children. Also, they

discourage termination of parental rights in situations in

which the child is thereby caused further harm by being

left in the impermanence of foster care.

The ‘‘historical credentials’? of termination of

parental rights standards, which provide only ‘‘parental

unfitness’’ and ‘‘best interests of the child’’ as stan-

dards, like the ‘‘parens patriae’’ justification for exclu-

sion of juveniles from constitutional protections rejected

by the Court in Jn re Gault, 387 U.S. 1 (1967), are ‘‘of

dubious relevance’’ and their interpretation is likewise

‘“‘murky.’’? Jd. at 16. The ‘‘murkiness’’ of standards

such as “‘not fit to exercise parental rights’? and ‘best

interests of the child’’ results in part from their

historical credentials: they were developed not to insure

the safeguarding of family autonomy and integrity, the

purported present purpose of their use, but to further

other state goals which have since been rejected by

courts and legislatures or which have never been ap-

plicable to termination decisions.

A. Termination has not served its function in pro-

tecting children from harm.

1. Parental rights are being terminated inap-

propriately when there have been few ef-

forts to avoid removal or to reunite the

family.

Rather than there being protection of children’s and

parents’ interests in the continuity and permanence of

the family unit with removal from the home only when,

and only for as long as, necessary to protect the child,

families are being broken up unnecessarily and children

subjected to the harms of state care. Although removal

is only one of many alternatives available, neglect hear-

ings commonly result in removal rather than protective

supervision in the home.'* Once children are removed,

services which could help reunite the family are rarely

offered.'’ In fact, agency policies often discourage

‘© Studies have shown the high incidence of removal as the

disposition at neglect proceedings. One commentator has suggested

50% of such proceedings end with removal. Wald I, supra at 626

n.4, Unnecessary removals occur because services which could pre-

vent the need for placement (day care or homemaker services, or

treatment programs for handicapped children) do not exist or exist

but are not used effectively. Children’s Defense Fund, Children

Without Homes; An Examination of Public Responsibility to

Children in Out-of-Home Care 15-21 (1978) [hereinafter cited as

Children’s Defense Fund]; Vasaly, Foster Care in Five States: A

Synthesis and Analysis of Studies from Arizona, California, lowa,

Massachusetts and Vermont 24-27(1967).

'’ Natural parents are typically not offered rehabilitative services

after the children are removed. For example, a North Carolina

study reported that 59% of the natural parents surveyed said they

received no services after their child was placed in foster care.

Governor’s Advocacy Council on Children and Youth, Why Can’t 1

—

reunification. For example, little effort is made to

facilitate parental visiting, although visitation is a

significant predictor of the likelihood that a child will be

able to return home and js extremely significant in

resolving the identity conflicts arising for children from

separation.'* In addition, parents are sometimes denied

information about their children in placement. They

may not even be notified when their children are

transferred from one placement to another.'® Deprived

of contact with each other and of services to reunify

them, families are broken up. Parental rights are then

Have a Home? A Report on Foster Care and Adoption in North

Carolina 48-49 (1978). A Survey of a random sample of 160 natural

parents of children in foster care in Massachusetts in 1971 revealed

too that there had been little service provided the families since the

child’s removal, although only 17% of the parents indicated they

did not intend to take the child back, and over 40% indicated their

family situation had not changed or had deteriorated since the

child’s removal. An Arizona studysimilarly reported that 56% of

the mothers of children in care were not offered services during

placement. Vasaly, supra note 16, at 34-35,

‘* In a five-year longitudinal study of children in foster care in

New York City, patterns of parental visiting proved to be the best

indicator of whether the children returned home. Sixty-six percent

of the children who received no visiting during the first year in care

were still in care five years later. In contrast, Only 27% of the

children whose parents visited on all occasions permitted by the

agency were still in care at the end of five years. Fanshel and

Shinn, Children in Foster Care: A Longitudinal Investigation 93-98

(1978). A study of over 5,000 children in lowa reported similar

positive correlations between continuing meaningful parental con-

tact with the child and the likelihood of the child’s return home.

Vasaly, supra note 16, at 63. Other Studies have documented the

importance of visiting to identity formation. Geiser, The Illusion of

Caring: Children in Foster Care 68-80 (1973); Weinstein, The Self-

Image of the Foster Child 17 (1960). Yet, in spite of the

significance of parental visiting for children, agency policies typical-

ly do not encourage parental visiting. Rather, policies which do ex-

ist are often restrictive, thus discouraging visits. Children’s Defense

Fund, supra note 16, at 22-23.

'* Children’s Defense Fund, supra note 16, at 23-24,

terminated inappropriately when the child might have

been able to be returned home.

2. Parental rights are not being terminated

when there is little possibility that the

parent-child ties can be_ re-established

without harm to the child.

Some judges faced with the failure on the part of

State agencies to provide services and facilitate reunifica-

tion are reluctant to terminate parental rights even when

they do not think a child can be returned home.?”°

Judges may deny termination petitions but then refuse

to order the child returned home.?' Social workers too

often do not seek termination of parental rights even

*° In at least seven jurisdictions, courts have denied termination

of parental rights where the service agency has either failed to pro-

vide services aimed at reunification or has provided inadequate or

misleading information about parental responsibilities, parental ac-

cess to children, services available or agency concerns. Jn re Taylor,

334 N.E.2d 194 (Ill. App. Ct. 1975); Mahoney v. Arizona Depart-

ment of Economic Security, 24 Ariz. App 534, 540 P.2d 153 (Ct.

App. 1975); In re Christopher H., 577 P.2d 1292 (Okla. 1978), con-

curring opinion at 580 P.2d 143; C.S. v. Smith, 483 S.W.2d 790

(Mo. Ct. App. 1972); In re Susan Lynn M., 125 Cal. Rptr. 707, 53

Cal. App. 3d 311 (Ct. App. 1975); State v. Robert H., 393 A.2d

1387 (N.H. 1978); Jn re Anita “‘P.P.”’ (N.Y, App. Div. 12/7/78) 3

Fam. L. Rep. (BNA) 2177. But see In re W.M. III, 393 A.2d 410

(Pa. 1978) (agency services desirable but not mandated by state

law); In re Hirsch, 402 N.Y.S.2d 743, 93 Misc. 2d 399 (Fam. Ct.

1978) (extraordinary circumstances of child may relieve agency of

responsibility for making ‘‘diligent efforts’’); Matter of Ray M.,

376 N.Y.S.2d 431, 37 N.Y. 2d 619 (Ct. App. 1975) (agency need

not make ‘‘diligent efforts’ if they are against child’s best

interests).

*' Many observers have noted that even though many judges do

not terminate they still may not return the child to the parents.

Wald |, supra at 689; Mnookin, Child Custody Adjudications:

Judicial Functions in the Face of Indeterminancy, 39 Law & Con-

temp Prob. 226, 273 (1975) [hereinafter cited as Mnookin I]; Maas

& Engler, Children in Need of Parents 390-91 (1959).

when there has been no contact between child and

parents for long periods. In fact for too many neglected

children in state care, there is little chance for return

home or for termination of parental rights and adop-

tion,”?

Children removed pursuant to neglect proceedings

remain in foster care for long periods of time — on an

average of five years — without any permanent family.??

While in care for long periods, children are frequently

subjected to multiple changes in placements, repeatedly

moved from one foster home or institution to another,

at extreme psychological cost.** Generally the probabili-

*? In some states like North Carolina, the number of children ex-

pected to return home is limited (about 20% of the cases), but at

the same time the effort to terminate parental rights and free

children for adoption is a slow process. At the time of the state

study of foster care, over 300 children were awaiting termination.

Governor’s Advocacy Council on Children and Youth, supra note

17, 62-67. Studies in other states show similar patterns. Vasaly,

supra note 16, at 68-74. See Wald I, supra at 632. Many commen-

tators also agree that few terminations occur: Wald I, supra at 635

n.59; Mnookin I, supra note 21, at 217 n.39. We show below some

of the reasons for this reluctance to terminate. See pp. 25, 28-30 in-

Sra.

** This Court has already seen evidence that children stay in

foster care for much longer than contemplated by the theory of the

system: ‘‘The District Court found as a fact that the median time

spent in foster care in New York was over four years.”” OFFER,

431 U.S. at 835. In Delaware, the average child spends seven years

in care, National Commission, supra at 23-33.

** The record in OFFER showed that nearly 60% of the children

in foster care in New York City had experienced more than one

placement, and about 28% tiad experienced three or more. Id., 431

U.S. at 837. Data from studies of foster care in Arizona, Califor-

nia, lowa and Massachusetts, as well as from two national studies

have revealed similar placement patterns. Vasaly, supra note 16, at

55-57; Children’s Defense Fund, supra note 16, at 40-41; National

Commission, supra at 32-33. The psychological damage done to

children by repeated moves has been well documented. Buxbaum,

supra note 7, at 13-14; Geiser, supra note 17, at 88-90; Kadushin,

Child Welfare Services 445 (3d ed. 1974).

ty of a child’s returning home or being adopted decrease

rapidly after a child has been in care for over two

years.’?* This impermanence of foster care is extremely

harmful to a child.”

* * *

As all the facts are not known in this case, we do not

know if the decision to terminate met the needs of Bill,

Amy, Charles, Ellen and David. As the record below

was sealed, we do not know if there was sufficient

evidence for a correct decision to be made. It is impossi-

ble to determine this from the decisions below as they

do not discuss the possibility of returning the children

home but focus on the parents’ conduct and their rela-

tionship to each other. The decisions below do not in-

dicate whether the parental conduct harmed the children

or whether the conduct, if harmful, caused more harm

than separation from the parents.?’ The decision to ter-

minate in this case, like so many other termination deci-

sions, does not reflect consideration of the harms to

children that are caused by termination.

** See Fanshel and Shinn, supra note 18, at 120-21; Maas and

Engler, supra note 21, at 421; Vasaly, supre note 16, at 54.

** In a study of 144 children in foster care, Bryce and Ehlert con-

cluded: ‘‘It is our conviction that no child can grow emotionally

while in limbo, never really belonging to anyone except on a tem-

porary and ill-defined or partial basis. He cannot invest except in a

minimal way (just enough to survive) if tomorrow the relationship

may be severed . . . to grow the child needs at least the promise of

‘permanency in relationships and some continuity of environment.”’

Bryce and Ehlert, /44 Foster Children, 50 Child Welfare 499

(1971). See Geiser, supra note 18, at 35-129.

*” Therefore, we are unable to take a position on the current

disposition for the children in this case if the Court declares the ter-

mination statute to have violated the parents’ constitutional rights

and reverses the decision of the Supreme Court of Delaware. At

that point it would be necessary for the Superior Court to hold a

hearing, hear new evidence on the Status of the children and their

parents and make a determination in accord with the principles that

this Court will enunciate.

eC er ee Te ee

B. Vague statutes do not protect children from

harm.

Vague statutes contribute significantly both to the

likelihood of inappropriate terminations of parental

rights without consideration of thé children’s needs and

to the likelihood of the failure to terminate when the

child’s interests would be served. Vague termination

Statutes** violate several basic principles of due

process:*° they delegate basic policy matters to state of-

ficials, they encourage discriminatory decision-making,

they provide little opportunity for judicial review, and

they increase the risks of harmful decisions.

1. Vague statutes allow social workers and judges

to resolve sensitive questions regarding family life on the

basis of personal values as to appropriate child rearing

techniques, an area in which there is little agreement.

The terms themselves do not offer guidance to social

workers and judges as to what factors they should con-

** There has been widespread criticism of the common use of

vague language in neglect and termination statutes. Wald I, supra

at 629, 639-41; Mnookin I, supra note 21, at 268; Note, Child

Neglect: Due Process for the Parent, 70 Colum. L. Rev. 405 (1970);

Note, Developments in the Law, supra note 2, at 1232; Daly, Ter-

mination of Parental Rights and the Void for Vagueness Doctrine:

A Successful Attack on the Parens Patriae Rationale, 16 J. Fam. L.

213 (1977-78).

** The ‘‘void for vagueness’’ rationale for invalidating statutes

has most often been applied in the criminal context, Note, The

Void for Vagueness Doctrine in the Supreme Court, 109 U. Pa. L.

Rev. 67 (1960), but it has also been held by this Court to apply to

civil statutes. Giaccio v. Pennsylvania, 382 U.S. 399 (1966). In ad-

dition, in deciding when to review a statute for vagueness the Court

has looked at the seriousness of the “disability or restraint.’’? Jor-

dan v. DeGeorge, 341 U.S. 223 (1951); Kennedy v. Mendoza-

Martinez, 273 U.S. 144 (1963). Termination of parental rights,

although a civil proceeding, involves fundamental interests in family

life.

sider. ‘‘Not fit to continue to exercise parental rights’’

and ‘‘best interests of the child’’*°are so vague that

‘‘men of common intelligence must necessarily guess at

[their] meaning and differ as to [their] application.’’

Connally v. General Const. Co., 269 U.S. 385, 391

(1925). As there is no agreement as to what is a ‘‘fit’’

parent nor what is the ‘‘best interest of the child,’’>!

judges and social workers operating under vague statutes

have only personal values about child-rearing to guide

them.*? Thus, vague statutes ‘‘impermissibly delegate

basic policy matters to ... judges and ... [social

workers] for resolution on an ad hoc and subjective

basis.”” Grayned v. City of Rockford, 408 U.S. 104,

108-09 (1972).

The initial application of these vague standards is

made by social workers in public and private child

welfare agencies, many of whom have insufficient train-

ing to enable them to make crucial decisions without

guidance on whether to remove children, return them

home or prepare them for adoption.** Also, the typical

*° This Court has used these terms but not to provide guidance as

to the constitutional adequacy of state statutory standards. Rather,

it has used these terms to state general principles of constitutional

law. Stanley, supra; Caban, supra.

*' Our historic commitment to diversity and freedom to choose

lifestyles has militated against acceptance of any national standard

of child rearing. Belotti, 99 S. Ct. at 3045.

‘As one commentator concluded from an examination of

available court decisions, ‘ta judge’s attitude toward child rearing,

sexual mores, religion, or cleanliness can affect the result of court

proceedings.’ Mnookin I, supra note 21, at 269-70.

** A recent Department of Health, Education and Welfare-funded

national study of social services to families and children reported

that three out of four children being served by public social service

departments in this country were assigned to staff who were depen-

dent on in-service training to acquire whatever knowledge or skill

about families and children they brought to their work. Shyne and

ee ee ee ae

child welfare worker has a large caseload, leaving little

time for individualized attention to individual cases and

children.** As vague laws do not inform child welfare

workers what is expected of them, many workers are

unable and fail to plan appropriate placement and ser-

vices for children in their charge.**

In the absence of any articulation of standards for

when to return a child home or to terminate parental

rights, there is little effort to periodically review the

Status of children in care and to force dispositions in in-

dividual cases so as to provide permanence in a manner

appropriate to the needs of each child. Only about 25

States currently require periodic review of children in

Schroeder, National Study of Social Services to Children and Their

Families 147-48 (1978). See Campbell, The Neglected Child: His

and His Family’s Treatment Under Massachusetts Law and Practice

and Their Rights Under the Due Process Clause, 4 Suffolk L. Rev.

632, 641-44 \!970). Several studies have evidenced the vast disagree-

ment among social workers on the application of vague criteria to

decisions to remove a child from home. See Mnookin, Foster

Care—In Whose Best Interest?, 43 Harv. Ed. Rev. 599, 619 (1973)

(hereinafter cited as Mnookin II]; Richan, Personnel Issues in Child

Welfare, in Child Welfare Strategy in the Coming Years 227,

231-33 (DHEW Publication No. OHDS 78-30158 1978); Wald I,

supra at 1001-02 n.98.

** The National Commission on Children in Need of Parents in

its inquiry into the failures of the foster care system found

estimates of 50 to 90 cases per worker in the majority of the 34

States for which data were available. National Commission, supra

at 36-37.

** For example, ‘‘the average child in foster care in North

Carolina has spent 40% of his life in foster care, without a perma-

nent home. More than half this time in foster care is being spent

without any plan for the child’s future.’? Governor’s Advocacy

Council on Children and Youth, supra note 17, at vi. When plans

do exist, too frequently they simply call for continuation of foster

care. Governor’s Advocacy Council on Children and Youth, supra

note 17, at 59; Jeter, Children, Problems and Services in Child

Welfare Programs (1963); Wiltse and Gambrill, Foster Care 1973:

A Reappraisal, 32 Public Welfare 7 (1974),

foster care by a body independent of the agency pro-

viding care. Children’s Defense Fund, supra note 16, at

Appendix L. The lack of guidance to social workers

perpetuates a ‘‘rescue’’ syndrome in which some

workers lose sight of their appropriate role** and act too

quickly seeking to terminate parental rights prematurely.

Or other workers often find it difficult to act at all

because they do not know what will be expected by the

judge who will decide the case. Wald, State Intervention

on Behalf of ‘Neglected’ Children: A Search for

Realistic Standards, 27 Stan. L. Rev. 985, 1001 n. 97

(1975) [hereinafter cited as Wald II],

As this Court has already noted, ‘‘judges too may

find it difficult, in utilizing vague standards like ‘the

best interests of the child’, to avoid decisions resting on

subjective values.’”” OFFER, 431 U.S. at 835 n.36. They

are not trained to make without guidance delicate deci-

sions on what is appropriate for a given child. Wald I,

supra at 640 n.83; Mnookin I, supra note 21, at 671-72.

Vague statutes do not instruct them as to what factors

to consider and how to measure them.°’

The decision in this case demonstrates the lack of

guidance vague standards offer to courts. The Superior

Court had no guidance as to how to measure or apply

the ‘‘best interests’’ standard, and, as a result, its deci-

sion reflects its disapproval of the parents but little con-

** Numerous commentators have discussed this syndrome. Platt,

The Child Savers (1969); Levine, Caveat Parens: A Demystification

of the Child Protection System, 35 U. Pitt. L. Rev. 1 (1973).

’ In recognition of the need to further advise judges about the

harms of the foster care system, and the importance of post-

dispositional review hearings in which the appropriateness of each

child’s continued placement is carefully considered, the National

Council of Juvenile and Family Court Judges is in the process of

developing a Bench Book for its judges.

sideration of the children’s needs or the harms threaten-

ing their interests.

2. Inadequate standards for decision making are

particulariy unfair because of the considerable dif-

ferences in life styles between the subjects of termination

proceedings and those making decisions—judges and

agency social workers.** Minority children are especially

vulnerable to the harms of the child welfare system?

Biases against the poor significantly affect decisions con-

cerning initial removal and eventual return, and are in

part responsible for the overrepresentation of the poor

in the foster care system. *°

** Vagueness is particularly harmful in this area in that decision-

making is ‘‘shaped by a service enterprise and a professional culture

dominated by middle class, majority assumptions, and a tendency

to read pathology into behavior that does not conform.”’ Richan,

supra note 33, at 232.

** A study of child welfare in Arkansas, for example, reported

that 22% of the black children in care had been there for over ten

years, as contrasted with only 2% of the white children. Seventy-

seven percent of the white children had been in care /ess than two

years; 60% of the black children had been in care over three years.

The average length of stay in foster care for a white child in 1978

was 7.52 years, for a black child 12.76 years. Masem, Child

Welfare in Arkansas 12-13 (1979). See also Billingsley and Giovan-

noni, Children of the Storm: Black Children and American Child

Welfare (1972).

*° One study showed that while only 3% of the families in the

general population were on public assistance, 42% of the neglect

families were relief recipients. Boehn, The Community and the

Social Agency Define Neglect, 43 Child Welfare 453, 459 (1964).

“In Massachusetts, in 1971, 61 percent of children in foster care

came originally from families with incomes under $5,000; only 6

percent came from families with incomes over $10,000.’ Keniston

and The Carnegie Council on Children, supra note 1, at 32. More

recent state data have revealed similar patterns. See, for example,

Governor’s Advocacy Council on Children and Youth, supra note

17, at 17; New Jersey State Legislature Office of Legislative Ser-

vices, Division of Budget and Program Review, Characteristics of

DYFS Children in Residential and Foster Care 14-15 (1979). Other

3. There is little opportunity for review of the deci-

sions. In this area which is of fundamental importance

to those affected and where the probabilities of viola-

tions of interests are so high, vague standards do not re-

quire careful articulation of the bases for decisions.

Without specific articulation of reasons, a reviewing

court cannot determine when inappropriate considera-

tions have entered into decision-making.‘

4. The risk of children being harmed by vague ter-

mination of parental rights standards is especially high

because the vague termination standards are applied on

top of vague standards for removal in the initial neglect

proceeding. In most states the same or similar vague

standards are grounds for initial removal from the home

and for termination.‘*? The double vagueness‘? harms

reasons also partially account for the overrepresentation of the poor

in the child welfare system. Mnookin II, supra note 33, at 619;

Rein, Nutt and Weiss, Foster Family Care: Myth and Reality, in

Children and Decent People (Schorr ed. 1974).

*' There has also been criticism that parents are deprived of due

process because they are not given adequate notice of what conduct

will lead to removal of children and termination of parental rights,

and are unable to present adequate defenses in judicial proceedings

because of the inability to predict upon what grounds the court will

base its decision. Mnookin I, supra note 21, at 260-262. This latter

problem is further exacerbated by the lack of counsel for parents

and/or children in neglect proceedings, Wald I, supra at 30 n.28,

which occurs because of parents’ lack of financial means to afford

counsel and the inability of publicly funded attorneys to represent

the poor in all legal proceedings affecting them.

** In 20 states, removal and termination are dispositional alter-

natives at neglect proceedings, often with no or little guidance as to

which to order: Alabama, Ala. Code tit. 12 § 12-15-71 (1975);

Alaska, Alaska Stat. § 47.10.080(c) (1979); Colorado, Colo. Rev.

Stat. § 19-3-111 (1973); Connecticut, Conn. Gen. Stat. Ann.

§ 17-43a(a) (West Supp. 1980); District of Columbia, D.C. Code

§ 16-2320 (West 1967); Florida, Fla. Stat. Ann. § 39.41 (West

1979); Georgia, Ga. Code Ann. § 24A-3201(a)(2) (Supp. 1979);

lowa, lowa Code § 232.115 (Supp. 1979); Kansas, Kans. Stat.

children: vague standards encourage removal at the

neglect proceeding but often discourage termination.

§ 38-824 (Supp. 1979); Kentucky, Ky. Rev. Stat. § 199.600 (1977);

Minnesota, Minn. Stat. § 260.235 (Supp. 1979); Nebraska, Neb.

Rev. Stat. § 43-209 (1978); North Carolina, N.C. Gen. Stat.

§ 7A-289.32(2) (Supp. 1979); North Dakota, N. Dak. Cent. Code

§ 27-20-44 (Supp. 1979); Ohio, Ohio Rev. Code Ann. § 2151.353

(1970); South Carolina, S.C. Code § 20-10-170 (1976); South

Dakota, S. Dak. Compiled Laws Ann. §§ 26-8-35, 26-8-36 (Supp.

1979); Vermont, Vt. Stat. Ann. tit. 33 § 656 (Supp. 1979); Virginia,

Va. Code §§ 16.1-279, 16.1-283 (Supp. 1979); West Virginia, W.

Va. Code § 49-6-5 (Supp. 1979).

In 23 states a prior adjudication of neglect is grounds for ter-

mination. Some jurisdictions require only an additional finding that

termination is in the child’s best interests: District of Columbia,

D.C. Code § 16-2354(b) (West Supp. 1978); Florida, Fla. Stat.

Ann. § 39.41(a)(d)(1) (West 1979). Some states require only an ad-

ditional finding that conditions which resulted in prior adjudication

of neglect are likely to continue: Connecticut, Conn. Gen. Stat.

Ann. § 17-43a(a) (West Supp. 1980); Hawaii, Haw. Rev. Stat.

§ 571-61 (Supp. 1979); Michigan, Mich. Comp. Laws Ann.

§ 712A.19a(f) (West Supp. 1979); Oklahoma, Okla. Stat. tit. 10

§ 1130.A(3) (West Supp. 1978); Utah, Utah Code Ann.

§ 78-3a-48(1)(c) (1977). Other states require additional findings that

conditions will continue and that parents were offered rehabilitative

services: Indiana, Ind. Code § 31-6-5-4 (Supp. 1979); lowa, Iowa

Code § 232.114 (West Supp. 1979); Louisiana, La. Rev. Stat. Ann.

§ 13:1601.B, D (West Supp. 1975); Maryland, Md. Ann. Code art.

16 § 75 (Supp. 1979); Minnesota, Minn. Stat. § 260.221(b)(5)

(Supp. 1980); Missouri, Mo. Ann. Stat. § 211.447(2)(h) (Vernon

Supp. 1980); Nebraska, Neb. Rev. Stat. §§ 43-202(2), 43-209(6)

(1972); New Hampshire, N.H. Rev. Stat. Ann. § 170-C:5(III)

(1978); New York, N.Y. Fam. Ct. Act § 614.1 (West 1979); North

Carolina, N.C. Gen. Stat. § 7A-289.32(3) (Supp. 1979); Oregon,

Or. Rev. Stat. § 419.523(2)(e) (1978); South Carolina, S.C. Code

§§ 20-11-20(2)(a), 20-11-40 (1976); Tennessee, Tenn. Code Ann.

§§ 37-238(d), 37-238(2) (1977); Virginia, Va. Code §§ 16.1-283(B),

§§ 13.34.180, 13.34.190 (Supp. 1979); Wisconsin, Wis. Stat. Ann.

§ 48.40(2)(e) (West Supp. 1979).

“ Problems of notice, discriminatory application and chilling ef-

fect are aggravated by ‘‘double ambiguity’’ as this Court has seen

in the abortion context, Colautti v. Frankin, 439 U.S. 379,

Despite the realities of the length of time children spend

in foster care, social workers and judges view the initial

removal from the home as a temporary measure, neither

harmful to children’s interest in permanence nor

destructive of the family unit. This view is consistent

with the stated purpose of neglect statutes and of foster

care. At the initial removal, it is not clear that the child

will be severely harmed by removal unless it is admitted

that placement is not temporary and will often lead to

long and harmful stays in foster care. However, at ter-

mination, it is clear that the family unit will be

destroyed and the child subjected to the harms of

separation and that often there is no guarantee the child

will leave foster care for a new permanent family

through adoption.** In light of this, some judges and

social workers are often reluctant to terminate whatever

family ties remain.

In addition, social workers and judges often share

the country’s ideological commitment to the natural

family and are, therefore, reluctant to terminate,

although they do not see reunification of the family as a

possibility.‘ Vague standards are thus to a significant

extent responsible for the foster care limbo.

99 S. Ct. 675, 685 (1979), when the Court invalidated a law which

was vague as to the stage of development requiring the exercise of a

special standard of care as well as to the standard for judgment.

** Termination of parental rights in and of itself does not mean

that a child will be adopted, although termination is a necessary

step preceding adoption. In fact, some state termination statutes

specifically require that efforts be taken to seek prompt adoptive

placement after termination, and that the court be advised of the

status of such efforts. See, for example, D.C. Code § 16-2360

(West 1967); Wash. Rev. Code § 13.34.210 (Supp. 1979).

* As one child welfare worker expressed it, ‘‘Judges sometimes

become rather sentimental about abandonment proceedings. They

don’t want to be the one who ‘took the child from the mother.’ ”’

Note, Child Abandonment: The Botched Beginning of the Adop-

tion Process, 60 Yale L.J. 1240, 1242 n.11 (1951). See Children’s

Defense Fund, supra note 16, at 27-29.

C. Vague standards were not developed to ensure

family integrity.

The statutes, from which come key concepts of

what constitutes grounds for removal of a child from

the home and termination of parental rights, were based

on notions that certain parental characteristics were per

se grounds for separating families. The first statutes

were enacted in the colonies in the seventeenth century.

These standards were aimed at the children of the poor

and were in that regard specific. In the eighteenth cen-

tury terms like ‘‘incapable of bringing up or supporting

their child’? were added, but the statutes were rarely us-

ed against others than the poor. Areen, supra note 9, at

899-900; tenBroek, California’s Dual System of Family

Law: Its Origin, Development and Present Status, Part

IT, 16 Stan. L. Rev. 257 (1969). Although poverty has

been rejected as a ground in and of itself for state in-

tervention by the courts and by our national commit-

ment of financial aid to preserve the integrity of poor

families, it is still listed directly or indirectly as a ground

for neglect proceedings in several states. Areen, supra

note 9, at 926.

In the latter part of the last century, neglect and

dependency, like delinquency,were seen as grounds for

removing children permanently from their parents in

order to prevent a life of crime.*® The concept was one

of ‘‘preventive penology’’: the conditions of the home

which led to crime, including poverty and immorality of

parents, were to be identified and children to be

** For purposes of setting out the responsibilities of the Delaware

Division of Social Services for the care and custody of children, the

definition of ‘‘neglected child’’ includes ‘‘a child ... who

associates with vagrant, vicious or immoral persons.’’ Del. Code tit.

31 § 301 (1974).

removed from homes which exhibited such conditions.

Thomas, supra note 9, at 324; Fox, Juvenile Justice

Reform: An Historical Perspective, 22 Stan. L. Rev.

1187, 1193 (1970). Again these statutes were often

specific as to what was an immoral person. Areen, supra

note 9, at 903.

In the twentieth century while attitudes toward per-

manently severing family ties because of parents’ life

styles have changed, statutory standards have not. Now

there is widespread recognition that the maintenance of

a child in a home offers the child the best opportunities

for development. Beck, supra n. 8. The President’s

Commission on Law Enforcement and Administration

of Justice, Task Force Report: Juvenile Delinquency and

Youth Crime 7 (1967). Almost all state neglect laws con-

tain purpose clauses which reiterate that belief.*’

Although the precursor of the AFDC program limited

aid to those who were considered ‘‘morally fit,’’ King v.

Smith, 392 U.S. 309, 321 (1968), in the AFDC program

Congress determined that immorality and illegitimacy

“’ The Delaware Code provides as the purpose for state interven-

tion:

In the firm belief that compliance with the law by the in-

dividual and preservation of the family as a unit are fundamen-

tal to the maintenance of a stable, democratic society, the

General Assembly intends by enactment of this chapter that

one court shall have original statewide civil and criminal

jurisdiction over family and child matters and offenses as set

forth herein. The court shall endeavor to provide for each per-

son coming under its jurisdiction such control, care, and treat-

ment as will best serve the interests of the public, the family,

and the offender, to the end that the home will, if possible, re-

main unbroken and the family members will recognize and

discharge their legal and moral responsibilities to the public

and to one another.

Del. Code tit. 10 § 902 (1974). Other state purpose clauses are

similar. Katz, supra note 11, at 70.

should be dealt with through rehabilitative measures. Jd.

at 325.** But child welfare statutes have not been

modified to reflect these changes.

With the juvenile court movement in the twentieth

century, the concept that broad and vague standards

would encourage individualized decision-making to meet

the unique needs of each child was introduced into

neglected child proceedings but it has failed there as it

failed in the juvenile delinquency area.‘? Instead,

“parents patriae’’ power was and still is used to punish

parents rather than further the children’s interests and

meet their needs.*°

The use of the ‘‘best interests of the child’’ stan-

dard as a guide to the choice of disposition*’' for

“* The Aid to Families with Dependent Children program which

offers funds to states for support of needy children stated the na-

tional goal of keeping children in their homes and funding ‘*protec-

tive services’ for that purpose as the preferred alternative for the

care of children who are dependent, neglected or ‘‘in danger of

becoming delinquent.’’ 42 U.S.C. § 601 (1974).

* This Court has found, ‘‘[jJuvenile court history has again

demonstrated that unbridled discretion, however benevolently

motivated, is frequently a poor substitute for principle and pro-

cedure.”” In re Gault, 387 U.S. at 18. The ‘‘vague and overbroad

grounds for delinquency adjudication’’ have been noted by at least

one member of this Court. McKeiver v. Pennsylvania, 403 U.S.

528, 553 (1970) (White, J., concurring). There has been widespread

criticism of vague standards in the juvenile area. Note, Parens

Patriae and Statutory Vagueness in the Juvenile Court, 82 Yale L.J.

745, 768 n.137 (1963). is

*° The children who were brought to court under juvenile court

statutes as neglected were and are still often treated similarly to

those brought to court as ‘‘delinquent.’’ Note, Developments in the

Law, supra note 2, at 1225-26; Thomas, supra note 9, at 300-07;

Note, Child Neglect: Due Process for the Parent, 70 Col. L. Rev.

465, 469 (1970).

*' “Best interests’’ is used in many statutes to direct the disposi-

tion of the child after a finding that there exist grounds for removal

and/or termination. Wald I, supra at 634-35.

children was also not developed to ensure family per-

manence. It was developed to decide custody disputes

between parents.*? Such disputes, unlike termination

proceedings, are the result of voluntary actions on the

part of family members to destroy the integrity of the

family unit. Children are not faced with the total loss of

continuity and permanence that they face when the state

is taking them from both parents.*?

Thus although the wording of neglect and termina-

tion statutes remains, in some states, much as it was in

the nineteenth century, the statutory goals of interven-

tion as well as the knowledge of how best to protect

children have changed radically. The retention of vague

statutory language has meant that social workers and

judges are not guided in furthering the current goals of

state intervention into families.

When a decision has such profound effects on the

fundamental interest of a child** and can cause such

great harm as the decision to permanently remove a

child from the home, vague statutes whose only

guidance to state officials is to remove from ‘‘unfit’’

parents when in the ‘‘best interests of the child’’ fail to

protect children from harmful decisions.

*? The first reported judicial use of the standard was in 1840 in

Mercein v. People, 35 Am. Dec. 653 (N.Y. 1840), where the court

was faced with a custody dispute between a father and a mother.

Areen, supra note 9, at 900 n.74.

** As one commentator has argued, private disputes over child

custody do not implicate, as do disputes over state neglect interver-

tions, ‘‘profound questions of political and moral philosophy con-

cerning the proper relationship of children to their family and the

family to the state.’’ Mnookin I, supra note 21, at 226, 268.

** The ‘‘best interest of the child’’ standard is used in many con-

texts other than custody decisions. Its use has been criticized in

these contexts also. See, e.g., Belotti, U.S. » 9 S Ch.

at 3054 (Stevens, J., concurring) (use of best interests to decide

III. Standards Governing Termination Decisions

Can And Must Provide Specific Guidelines

Which Focus On The Child’s Needs To Ensure

Protection Of The Family Unit And To

Minimize Harm To Children.

The elimination of vague standards is essential, but

this Court must also provide guidance to others to en-

sure a system in which family integrity is protected,

harm to children minimized, and constitutional rights

protected. Due process requires statutory standards

which focus on the interests and needs of the child, not

merely on parental misconduct, to ensure termination

decisions are made appropriately and only when there

are the requisite ‘‘compelling’’ interests.

Standards can be drawn which are specific and

which reduce the risk of harm to children and parents.

Psychological and sociological research supports the use

of specific standards which are based on considerations

reflecting the interests and needs of the child. Model

codes have been drafted which incorporate these con-

cepts and states have acted to adopt these more specific

standards.

A. Standards for termination must focus on the

child.

Present standards for termination lead to decisions

which do not consider the interests of the child but

focus on parental conduct alone. As we argued above,

standards which focus solely on parental misconduct,

even if specific, do not promote family integrity and are

whether to allow abortion); Goldstein, Medical Care for the Child

at Risk: On State Supervision of Parental Autonomy, 86 Yale L.J.

645 (1977) (use of best interests to decide whether to intervene in

medical decision concerning child).

not consistent with our national commitment to the

family. Termination of parental rights may lead only to

the perpetual limbo of foster care and its harmful ef-

fects, in addition to the other harms caused by separa-

tion from the family for the child. Before embarking on

a course which may result in such great harm to a child,

the state must ensure that a decision is made that the

harm of remaining in or returning to the home, along

with the child’s interest in a new permanent family,

outweigh these concerns. See pp. 15-16 infra.

Standards which focus on the needs of the child,

rather than on arbitrary notions as to proper child-

rearing and home conditions, promote family integrity

by limiting the removal of children and the break-up of

the family to situations of ‘‘compelling’’ need, where it

is necessary to protect children and ensure continuous

and permanent family relationships. Finally, in cases

where return home is impossible or inappropriate, such

standards make it easier for judges and social workers

to make difficult decisions and to begin the process of

find.ag the child a new permanent family. See pp. 28-30

infra.

The protection of children’s fundamental interests

in continuous and permanent family relationships

demands that standards for termination require decision-

makers to weigh relative harms to the child.

B. Standards for termination of parental rights

can contain specific guidelines which focus on

the child’s needs.

It is the task of state legislators to draft new and

constitutionally adequate standards for termination.

However, this Court should give guidance to them as to

the contours of an interest compelling enough to justify

terminating family ties.

There are five basic considerations which can be

measured and which can guide decision-makers to ter-

minate parental rights only when necessary to protect

children’s and parents’ fundamental interests. These five

considerations (age of the child, length of time in care,

attempts made to eliminate the harms resulting in

removal and the likelihood of reunification, relationship

of the parent and child, and relationship of the child

and his or her caretaker) must all be addressed to ensure

a decision to terminate the parent-child relationship is in

fact in the best interests of the child, We are not sug-

gesting that a statute is sufficiently specific if it simply

lists these five factors as matters which can be con-

sidered. Rather, we maintain that these factors should

guide legislators in drafting statutes which specify how

the factors are to be applied.

Recent statutory changes have been made in some

States which reflect these five key considerations and

which provide specific guidance to decision-makers.

Model codes which reflect these considerations have

been drafted by several eminent bodies. Model Adoption

Legislation and Procedures Advisory Panel,** Model

State Adoption Act and Model State Adoption Pro-

cedures, reprinted in 45 Fed. Rew. 10622, 10686 (1980)

** The Model Adoption Legislation and Procedures Advisory

Panel was established pursuant to the Child Abuse Prevention and

Treatment and Adoption Reform Act, 42 U.S.C. § 5101 ef seq.

(1977), as an independent expert panel to recommend to the

Secretary of the United States Department of Health, Education

and Welfare model legislation and procedures relating to adoption,

with special attention to barriers to the adoption of special needs

children. The Panel is composed of a state legislator, state child

welfare administrator, a juvenile court judge, a birth parent, adop-

tive parent, and others with expertise in child welfare. The model

law as submitted by the Panel to the Secretary has been published

for public comment, 45 Fed. Reg. 10622 (1980).

[hereinafter cited as Model State Adoption Act]; In-

stitute of Judicial Administration, American Bar

Association, Standards Relating to Abuse and Neglect

(Tentative Draft) (1977) [hereinafter cited as ABA Draft

Standards]; Neglected Children Committee, National

Council of Juvenile Court Judges, Lincoln Model

Statute for Termination of Parental Rights, 27 Juvenile

Justice 3 (1976) [hereinafter cited as Lincoln Model

Statute].

Further elaboration on each of the criteria, and

how these criteria have guided recent statutory amend-

ments and the drafting of model codes is set forth

below.

1. Age of Child. A child’s age is intimately related

to his interest in permanence and in a continuous family

relationship. Disruptions of continuity have different

consequences for children cf different ages.** Decisions

concerning termination should reflect consideration of

the age of the child in relation to the length of time the

child has been separated from his or her family and the

child’s capacity to maintain existing relationships or

develop new interpersonal relationships.*’ The impact of

** “The significance of parental absences depends, then, upon

their duration, frequency, and the developmental period during

which they occur. The younger the child, the shorter is the interval

before a leave-taking will be experienced as a permanent loss ac-

companied by feelings of helplessness and profound deprivation.

Since a child’s sense of time is directly related to his capacity to

cope with breaches in continuity, it becomes a factor in determining

if, when, and with what urgency the law should act.”’ Goldstein,

Freud, and Solnit, supra note 6, at 42.

’’ For example, the longitudinal study of 624 children in foster

care in New York City revealed that the younger children were

more likely to maintain the greater level of attachment to their

families than the children who entered care at an holder age. Fan-

shel and Shinn, supra note 18, at 402-404.

a lingering discontinuous relationship, for example, may

be more harmful for children of certain ages than for

others. The ABA Draft Standards §§ 8.3A,B provide

that consideration of termination is triggered by dif-

ferent periods of parent-child separation depending on

the child’s age. —

Age also affects the extent to which a child’s wishes

should be considered in a decision to terminate. In some

states, for example, statutes specify that parental rights

shall not or need not be terminated if the child is of a

certain age and objects to the termination. Va. Code

§ 16.1-283E (Supp. 1979) (fourteen years of age or age

of discretion determined by court); Iowa Code

§ 232.114(6)(b) (West Supp. 1979) (over ten years of

age); W.Va. Code § 49-6-5(6) (Supp. 1979) (fourteen

years of age or age of discretion as determined by the

court); Cal. Welf. & Inst. Code § 366.5(e)(1)(B) (West

Supp. 1979) (fourteen years of age or older); Model

State Adoption Act § 313(d)(6) (termination where child

over ten years of age consents to adoption and has been

out of home three years); ABA Draft Standards § 8.4E

(child over ten years of age can object).

Similarly, the child’s age is relevant in considering a

child’s desire to remain with a caretaker with whom the

child had developed a relationship over time.

2. Length of Time in Care. The length of time

since separation from the parent is an important con-

sideration in determining the appropriateness of ter-

mination. Numerous studies have documented that the

probability of a child’s returning home is greatest earlier

in placement and decrease rapidly after the child has

been in care for from eighteen months to two years.**

The likelihood of multiple placements and lack of mean-

ingful parental contact also increases with the length of

time children are in care, and thus the likelihood of

severe harm to the child from lingering in foster care is

increased.*® The length of time since separation from the

natural parent and the extent of contact with the parent

during the time of separation are also relevant to an

evaluation of the child’s relationships with his or her

parents and present caretaker.

In some states the grounds for termination change

as the length of time in care increases. In Iowa, for ex-

ample, when a child has been adjudicated in need of

assistance and has been in care for at least six but less

than twelve months, the court may order termination if

there is clear and convincing evidence that the child can-

not be returned to his/her parents and that the parents

have not maintained contact during the previous six

months and made no reasonable efforts to resume care

despite an opportunity to do so. When a child has been

in care for twelve months or longer, contact and efforts

to resume care are no longer required considerations.

lowa Code §§ 232.114(4), (5) (West Supp. 1979).

Model statutes suggest similar alterations in stan-

dards depending on length of separation. Model State

Adoption Act §§ 313(d)(5), (6), 313(e) (standard of

review where child has been out of home for one year

** Fanshel and Shinn, supra note 18, at 116-123; Maas and

Engler, supra note 21, at 420; Vasaly, supra note 16, at 54.

** Fanshel and Shinn, supra note 18, at 98-99, 110-111; Vasaly,

supra note 16, at 54-56. For documentation of the harms incurred,

see note 26 at page ___, supra; Sherman, Neuman and Shyne,

Children Adrift in Foster Care: A Study of Alternative Approaches

3 (1973)

requires detailed findings, id. at §§ 313(d)(5), 313(e),

but where child has been out of home three years and is

over ten, child can consent to adoption and termination

can proceed without further findings, id. at § 313(d)(6)).

3. Attempts to Eliminate Harms and the Likelihood

of Reunification. The progress in eliminating the specific

harms which led to the child’s removal and placement in

foster care must be assessed to determine the likelihood

that the child wil be able to return home within a <

specified time period. The provision of rehabilitative ser-

vices can facilitate and make possible return home.® In

evaluating whether or not termination is in a child’s best

interest, progress toward reunification must be weighed

together with the length of time the child has been in

care and his or her relationship with natural parents and

other caretakers.

A number of state termination of parental rights

Statutes now specifically direct the court to consider the

effect and amount of services provided to the parent to

facilitate reunification and/or parental visitation or con-

tact. See, for example, Ky. Rev. Stat. § 199.603(3)

(Supp. 1978); Va. Code §§ 16-1-283 B, C (Supp. 1979);

Iowa Code § 232.114 (West Supp. 1979); Wash. Rev.

Code Ann.§§ 13.34.180(5),(6) (Supp.1979); Ind. Code

§ 31-6-5-4 (3) (Supp. 1979); W.Va. Code

§§ 49-6-5(a),(b) (Supp.1979); Vt. Stat. Ann. tit. 3

§ 667(4) (Supp. 1979); Lincoln Model Statute

§ 12(1)(g); Model State Adoption Act § 313(e) (1).

*° Studies have shown that when services are provided to the fami-

ly, harmful situations can be elilminated and families can be

reunited. See, Jones, Neuman and Shyne, A Second Chance for

Families: Evaluation of a Program to Reduce Foster Care, 121-123

(1974); and Pike, Permanent Planning for Foster Children: The

Oregon Project, § Children Today 22-25, 51 (1976).

4. Relationship of the Parent and Child. The emo-

tional attachment of the parent and child is crucial to an

assessment of the harm which will be caused by termina-

tion of the parent-child relationship. The relationship of

the parent and child at the time of the termination pro-

ceeding can be measured by the expressed attitudes of

each and the degree of contact while the child has been

in placement. Studies have demonstrated that children

with sufficient parental contact stay in foster care for

shorter periods and experience fewer placements,

thereby minimizing the harms incurred from

placement.*' Parental visiting has been shown to be a

significant predictor of the likelihood that a child will be

able to return home.*? However, the significance of con-

tact for an individual child may also vary with the age

of the child.

lowa law governing termination of parental rights,

for example, specifically provides that regardless of the

existence of grounds for termination, ‘‘the court need

not terminate the relationship between parents and child

if the court finds:...there is clear and convincing

evidence that such termination would be detrimental to

the child at the time due to the closeness of the parent-

child relationship... .’’ Iowa Code § 232.114(6)(c)

(West Supp. 1979).

One model statute directs the court to consider the

‘feelings and emotional ties of the child with respect to

his parents,’’ and to evaluate the effort the parent has

made to facilitate the child’s return, including regular

visitation or contact, provision of support, and regular

*' Fanshel and Shinn, supra note 18, at 93-99; Shapiro, Agencies

and Foster Children 32-34 (1976); Vasaly, supra note 16, at 64-65.

*? Fanshel and Shinn, supra note 18, at 93-99; Vasaly, supra note

16, at 63. See also note 18, supra.

communication with the child’s custodian. Model State

Adoption Act §§ 313 (e) (3), (4). See also Lincoln

Model Statute § 12(2); ABA Draft Standards § 8.4A.

5. Relationship of the Child and the Child’s

Caretaker. The relationship of the child and the child’s

caretaker and the child’s chance for a permanent rela-

tionship in a new family must be weighed in a termina-

tion decision. The extent of this relationship can be

measured by the length of time together, the age of the

child when it commenced, expressed attitudes toward

each other and the caretaker’s willingness to ensure per-

manence for the child.® | ,

A child who has been with a substitute caretaker

for a long period of time may form a ‘‘psychological’’

parent relationship with that caretaker. The child’s need

for a family (the need for acceptance, continuity of rela-

tionships, a sense of stability in emotional attachments)

may be met by these other parents and it may be ex-

tremely harmful to a child to end such a relationship.

Goldstein, Freud, and Solnit, supra note 6. In. situations

where the caretaker wants to form a permanent relation-

ship with the child, as through adoption, the interests

and desire of the child may be the cementing of the rela-

tionship with this ‘‘psychological parent.’’ In OFFER,

431 U.S. at 835, this court recognized the warmth of ties

that may form between child and foster parent. The

relationship of the child and the caretaker is critical to

*’ It has been recommended that when termination of parental

rights occurs incidental to a petition for adoption of a child by a

psychological parent that the termination order should be dissolved

if the adoption of the child by that parent is not effected within six

months (under six years old) or one year (over six). Ketcham and

Babcock, Statutory Standards for the Involuntary Termination of

Parental Rights, 29 Rutgers Law Rev. 530, 555-556 (1976).

assessing the harm to a child that will result from

uprooting him or returning him home.“

A number of states and model statutes detailing

criteria for assessing the appropriateness of termination

include factors which are relevant to the child-caretaker

or child-psychological parent relationship. Vermont, for

example, assesses the interaction and interrelationship of

the child both with his natural parents and with his

“‘foster parents if any.’’ Vt. Stat. Ann. tit. 33§ 667

(Supp. 1979). The District of Columbia, in determining

whether it is in the child’s best interest that the parent

and child relationship be terminated requires that a

judge consider ‘‘the quality of the interaction and inter-

relationship of the child with his or her parent, siblings,

relatives and/or caretakers, including the foster parent.’’

D.C. Rev. Code Ann. § 16-2353 (b)(3) (Supp.1978). In

Washington State, a petition seeking to terminate the

parent-child relationship must allege, among other

‘things, ‘‘that continuation of the parent and child rela-

tionship clearly diminishes the child’s prospects for early

integration into a stable and permanent home.”’ Wash.

Rev. Code Ann. § 13.34.180 (4) (Supp. 1979).

One model statute directs the court to consider the

child’s ties with the caretaker family, the capacity and

disposition of that family to give the child “‘love, affec-

tion, and guidance’’, the length of time the child has liv-

ed in a “‘stable, satisfactory environment’? and the

desirability of maintaining the continuity and the per-

manence as a family unit of the child’s placement fami-

ly, Lincoln Model Statute § 12(3). See also Model State

Adoption Act. § 313 (d) (6).

** Buxbaum, supra note 7, at 21; Geiser, supra note 7, at 88-90;

Goldstein, Freud and Solnit, supra note 6, at 17-19.

Only through statutes which incorporate considera-

tion of key factors and provide specific guidelines to

judges and social workers will children’s fundamental

interests be protected. We, therefore, maintain that the

Court must not only invalidate the Delaware statute as

vague, but must provide guidance as to what are con-

Stitutionally adequate standards in this delicate area.

CONCLUSION

For the reasons set forth above, amici urge this

Court to reverse the decision of the Delaware Supreme

Court.

Respectfully submitted,

CAROL R. GOLUBOCK

NAnNcY E. Ess

DANIEL YOHALEM

MARIAN WRIGHT EDELMAN

CHILDREN’S DEFENSE FUND

1520 New Hampshire Ave., N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae*

Dated: June 6, 1980

* We wish to acknowledge the assistance of MaryLee Allen,

M.S.W.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.