Amicus Brief — Doe v. Delaware

IN THE : er ie.

Supreme Court of the United States

October Term, 1979 }

No. 79-5932

Joux Dor ann JANE Ror,

Appellants,

v.

Tue Strate or DeLaware,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE

STATE OF DELAWARE

BRIEF FOR THE LEGAL AID SOCIETY OF THE

CITY OF NEW YORK, JUVENILE RIGHTS

DIVISION, AS AMICUS CURIAE

CHARLES Scuinitsky, Esq,

Attorney-In-Charge

THe Lecat Ar Soctery

JUVENILE Ricuts Drvision

189 Montague Street

Brooklyn, New York 11201

(212) 858-1300

Amicus Curiae

JANET Fink, Esq.

Kay McNatty, Esa.

(‘aroL SHERMAN, Esa.

Jane M. Surtan, Esa.

Henry S. WEINTRAUB, Esa.

TABLE OF CONTENTS

PAGE

Interest.of Asmetows Curtae .....ccscsoricccsrersercssesessorcesesceseece 1

Pe Oe iio sanecachsnsandiiesabadinensrosabiodenitirens 3

SE TI asics csntcsermesdeebdaninsabiteibvaseceannesdias 4

ARGUMENT:

I. Proceedings to Terminate Involuntarily the

Parent-Child Relationship Impinge upon a

Constitutionally Protected Liberty Interest of

the Child That Can Only Be Effectively Guar-

anteed by Separate and Independent Counsel 7

II. Involuntary Termination of the Constitu-

tionally Protected Parent-Child Relationship

Constitutes Such a Severe Deprivation of Lib-

erty That Due Process Requires That the Basis

for Termination Be Proven by Clear and Con-

ee a TN RTE LUTTE EW 15

III. The Delaware Statute Allowing Termination

of Parental Rights on the Grounds of Unfit-

ness and Best Interests of the Child Is Uncon-

stitutionally Vague and Overbroad .................... 20

CINE, Onin el ed se 27

TABLE or AUTHORITIES

Cases:

A.B. Small v. American Sugar Refining Co., 267 U.S.

| __. RErag ee SAT nese Ty 21

Addington v. Texas, 441 U.S, 418 (1979) ....15, 16, 16n, 17, 18

il

PAGE

In re Adoption of J.S.R., 374 A.2d 860 (D.C, 1977) .... 17n

Alsager v. District Court of Polk County, Iowa, 406 F.

Supp. 10 (8.D. Iowa 1975), aff’d as modified, 545 F.2d

BRE CU AB, ATED cncesinicceseccevcnseosiens 9, 13, 16, 17, 22, 22n, 24

In re Angelia M.P., [1980] 6 Fam. L. Rep. (BNA) 2490

CCRT, TR. aa TE Te, BID astetccehstistcteentidenee 9,17, 18n

Armstrong v. Manzo, 380 U.S. 545 (1965) o000.... 14

Baggett v. Bullit, 377 U.S. 360 (1964) 000. 23n

Bellotti v. Baird, 443 U.S. 622 (1979) 2. 12, 12n

Blakey v. Blakey, 72 Ill. App. 3d 946, 391 N.E.2d 545

eS ERE IER. SOY AN tO NO Ee 9,16

Breed v, Jones, 421 U.S. 519 (1975) on... cececceees 9-10

Brown v. Guy, 476 F, Supp. 771 (D. Nev. 1979) ............ 8, 9n

In re Carmelita B., 21 Cal.3d 482, 579 P.2d 514, 146 Cal.

a: a csceiauidedoiiciune 25n

In re C.L.T., 597 P.2d 518 (Alaska 1979) 0000000000. anid 16

In re Chad S., 580 P.2d 983 (Okla. 1978) 2.0... 9n

Chaunt v. United States, 364 U.S. 350 (1960) ................ 18n

Cleaver v. Wilcox, 499 F.2d 940 (9th Cir, 1974) 0000.0... 9n

Coates v. City of Cincinnati, 402 U.S. 611 (1971) ........ 23n

Connally v. General Construction Co., 269 U.S. 385

ERE SSESRET Es oe ORES INR oe ELADED Toi Ge SEER 21

Corey L. v. Martin L., 45 N.Y.2d 383, 380 N.E.2d 239,

AB, SNRs OOD REN RE 25n

Cramp v. Board of Public Instruction, 368 U.S. 278

1 phe SR LEN TORTS, RE Te 22

In re D., 24 Or. App. 601, 547 P.2d 175 (Ct. App. 1976),

cert, denied sub nom. C. v. F., 429 U.S. 907 (1976) .... 14n

Davis v. Smith, 583 S.W.2d 37 (Ark. 1979) ........ 22, 23, 24, 25

In re Dingee, 328 A.2d 139 (Del. 1974) ooo. ccccecceseceeee. 20

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) ...... 8

iii

In re Fish, 569 P.2d 924 (Mont. 1977) oo... cceeeeeeeeee 25n

In re Five Minor Children, 407 A.2d 198 (Del. 1979) ..20, 24

In re G.M., [1980] 6 Fam. L. Rep. 2349 (Tex. Mar. 19,

RR I Se a i = ee 16, 16n

In re Gault, 387 U.S. 1 (1967) 0.0... 2,4, 9, 9n, 10n

Giacco v. Pennsylvania, 382 U.S. 399 (1966) 21

Goss v. Lopez, 419 U.S. 565 (1975) 2... eeeeceeceeecceceeeeeeeeee 9

Grayned v. City of Rockford, 408 U.S. 104 (1972) 21, 22, 23n

Griswold v. Connecticut, 381 U.S. 479 (1965) 0. 7

In re Guardianship of R., 155 N.J. Super. 186, 382 A.2d

a Se ; } eee nee 17n

In re Hambelton, 2 K.A.2d 68, 574 P.2d 982 (Ct. App.

gh EE SEES ESE EE SARIN WA ne OPC aCe 17n

In re Heidi T., 87 Cal. App. 3d 864, 151 Cal. Rptr. 263

a aiid anced acictgleantnsitiibcaecsedeianbishninienshine 17

Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973) _...... 17n

Hynes v. Mayor and Council of Oradell, 425 U.S. 610

EPI dlaiilailetitanstralidtptas ldstendspepieirnipebgedininniestbioimcineion 21, 22, 24

In re J.A., 283 N.W.2d 83 (N.D. 1979) .ooo..eeeceecececeeee- 16-17

In re J.L.B., 594 P.2d 1127 (Mont. 1979) 200... 9, 16,17

In re Jewish Child Care Ass’n (Sanders), 5 N.Y.2d 227,

156 N.E.2d 700, 183 N.Y.S.2d 65 (1959) 2.0 13

In re Kelley, 262 N.W.2d 781 (Iowa 1978) 200000000000... 17

In re LaRue, 244 Pa. Super. Ct. 218, $66 A.2d 1271

RAS SI ney Eh a a 25n

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

22, 23, 24

Mathews v. Eldridge, 424 U.S. 319 (1976) oo... 10

Meyer v. Nebraska, 262 U.S. 390 (1923) 2000. 7

.

a

iv

' PAGE

Moore v. Sims, 442 U.S, 415 (1979)... 11, 14n, 17

Morrissey v. Brewer, 408 U.S. 471 (1972) woe 10

New York State Ass’n for Retarded Children v. Rocke-

feller, 357 F.Supp. 752 (E.D.N.Y. 1973) .0000...0.002....... 13n

In re Orlando F., 40 N.Y.2d 103, 351 N.E.2d 711, 386

SP 8g Ee, ROME ART Cd ern mn Reet OES 14, 14n

Page v. Davis, 442 F.Supp. 258 (S.D. Fla. 1977) ........ 9n

Parham v. J.L., 442 U.S, 584 (1979) oe 11n, 13n

Planned Parenthood v. Danforth, 428 U.S. 52 (1976) 10

Prince v. Massachusetts, 321 U.S. 158 (1944) 00000000... 7

Quilloin v, Walcott, 434 U.S. 246 (1978) oo. 24n

In re Raya, 255 Cal. App.2d 260,63 Cal. Reptr. 252 (Ct.

SB, FARPeTnd Te MEST ENY Rt ONE RS, ee ORAS 13

Ricketts v. Ricketts, 576 S.W.2d 932 (Ark. 1979) ........ 14n

Roe v. Conn, 417 F.Supp. 769 (M.D. Ala. 1976) ...... 10n, 14n,

21, 24

In re Rosenbloom, 266 N.W.2d 888 (Minn. 1978) ............ 17

Rose v, Locke, 423 U.S. 48 (1975) oun... cecesescsceceseseceseeees 24

Sanchez v. Texas Dept. of Human Resources, 581

Sie OF ee MP ROIS. BTU D issu ccssdnineednicii.cpadnccaccdoideseonsensies 8

In re Sanjivini K., 47 N.Y.2d 374, 391 N.E.2d 1316, 418

Pie NE CTD vaericsheteiccxiestiveanbncecccstls Behera: 25n

Schneiderman v. United States, 320 U.S. 118 (1943) .... 18n

In re Sego, 82 Wash.2d 736, 513 P.2d 831 (1973) .......... 17n

Sims v. State Dept. of Public Welfare, 438 F.Supp.

1179 (S.D. Tex. 1977), rev’d on other grounds sub

nom. Moore v, Sims, 442 U.S. 415 (1979) ....11, 12, 14n, 17

Smith v. Goguen, 415 U.S. 566 (1974) occ ccceeeeceeeeee 24

PAGE

Smith v. Organization of Foster Families for Equality

and Reform, 431 U.S. 816 (1977) .0........... 8, 13, 19, 24n

In re Souza, 204 Neb, 503, 283 N.W.2d 48 (1979) ............ 16

Stanley v. Illinois, 405 U.S. 645 (1972) ooe.eeeeccccecsseceseseeeee 7-8

Stapleton v. Dauphen County Child Care Services, 228

Pa, Super. Ct. 371, 324 A.2d 562 (1974) oe 14n

State v. Jamison, 251 Or, 114, 444 P.2d 15 (1968) .......... 9

State v. Robert H., 20 N.H. 90, 393 A.2d 1387 (1978) 16, 17

Vance v. Terrazas, —— U.S. ——, 100 8.Ct. 540 (1980) 18n

Wagstaff v. Superior Court, 535 P.2d 1220 (Alaska

| Bar ARP Ee a Se Nee aD eS a Ne 14n

Westerlund v. Croaff, 68 Ariz. 36, 198 P.2d 842 (1948) 25n

In re Winship, 397 U.S, 358 (19703 oon eceoeeeeee 16n

Woodby v. Immigration and Naturalization Service,

I EE UID sien ssscdiectinassenees sane alcomadlidécatabicdiocic 18n

Statutes:

Ala. Code § 26-14-11 (Ala. Code 1975) wo.ecccccccceceseeee 6n

Cal. Family Protection Act of 1976

EOE CR PO TTD shsscccscsinccivesoctsescseorsecoctnoscvesscnce 24n

Constitution of the United States

BPMN WINE hcddicethschiccsccscanacomssevesecboucscstecssokatsdbcate 23n

WOUPCOOMEN AMMOMGIIONE no.nn.cccccccccccccosecsecctoveccecvccosceoes. 4,7

Del. Code, ch. 13

Ee REESE DORR PRR NOR PURO EE 3

IIL, Aidicidevvieciadschidlictechackouatsistilicacks Medisisantasn suasadacs 4, 20

GRRE None Wee eRe RENNES Fe TNO 4, 20

Indian Child Welfare Act, 25 U.S.C. §§1901 et seq.

CAPO - eoinilatiag eb tindondes hecledeai can toccaitdbasseenincastielcdadtinine is 19n

vi

PAGE

Kan. Stat. §§ 38-817, 38-820, 38-821 (Kan. Stat. Ann.

Me | MEN nE ER OME SLT ne ras US 6n

La. Civ. Code Ann, art. 13:1602 (West Supp. 1979)... 6n

N.Y. Fam. Ct. Act § 249 (McKinney Supp. 1976-79) .... 6

N.Y. Soc. Serv. Law § 384-b (McKinney Supp. 1979-80) 24n

Miscellaneous:

Chermerinsky, Defining the Best Interests: Constitu-

tional Protections in Involuntary Adoptions, 18 J.

i Bs, en Se aE S| 23n, 24n

L, Cole, Our Children’s Keepers (1974) 20.0 0.ccccceccce--. 13n

Crouch, International Convention Efforts and the Cur-

rent Status of Children’s Rights in the U.S.A.,

[1980] 6 Fam. L. Rep. (BNA) 4023 (May 13, 1980) 19

Day, Termination of Parental Rights Statutes and the

Void for Vagueness Doctrine: A Successful Attack

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

CROTT ) suisscncessnsorsebeiessgiciapeoveinnetiiienbalniciaeiiaed:e sauna 23n

Developments in the Law: The Constitution and the

Family, 93 Harv. L. Rev. 1156 (1980) ............ 12, 22n, 25n

Genden, Separate Legal Representation for Children:

Protecting the Rights and Interests of Minors in

Judicial Proceedings, 11 Harv. C.R.-C.L. L. Rev.

GE CEDIWOD: <csscenseccdonssiinmniascieacaccsandeadigiii dash ane 12

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

Interests of the Child (1979) ..0.0.002..... 12, 12n, 23, 24n, 25n

Grumet, Plaintive Plaintiffs: Victims of the Battered

Child Syndrome, 4 Fam. L, Q. 296 (1970) o....ccccccccee. 14

Vii

PAGE

M. Guggenheim & A. Sussman, The Rights of Parents

(unpublished manuscript, Avon Books 1980) ............ 22n

Mnookin, Child-Custody Adjudication: Judicial Func-

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

temp. Prob. 226 (Summer 1975) ooo. 12

, Foster Care—In Whose Best Interests?,

43 Harv. Educ. Rev. 599 (1973) ooocecccccccceccceccecceceeeeeeeee 13

Note, Constitutional Limitations on the Scope of State

Child Neglect Statutes, 79 Colum, L. Rev. 719 (May

SITE Aistssscneenestninissnncanenevvpessenanscoosocensencseqersesonscstenesineiseratervioace 25n

Note, The Fundamental Right to Family Integrity and

Its Role in New York Foster Care Adjudication, 44

Brooklyn L. Rev. 63 (1977) oo.c.cccccccceeccccecsesseceeeeeees 21n, 22n

Note, The Right to Family Integrity: A Substantive

Due Process Approach to State Removal and Ter-

mination Proceedings, 68 Geo. L. J. 213 (Oct. 1979)

22n-23n, 24n

Note, Parens Patriae and Statutory Vagueness in the

Juvenile Court, 82 Yale L. J. 745 (1973) oc. 21n

Wald, State Intervention on Behalf of “Neglected”

Children: A Search for Realistic Standards, 27 Stan.

L. Rev. 985 (1975) un... eeesecscecesccececcececesseececsccececceceees 18

, State Intervention on Behalf of “Ne-

glected” Children: Standards for Removal of Chil-

dren from Their Homes, Monitoring the Status of

Children in Foster Care, and Termination of Paren-

tal Rights, 28 Stan. L. Rev. 625 (1976) ............ 18, 21n, 25n

K. Wooden, Weeping in the Playtime of Others (1976) 13n

IN THE

Supreme Court of the United States

October Term, 1979

No. 79-5932

JoHN Dor anv Jane Rog,

Appellants,

v.

Tue State or DeLaware,

Appellee,

ON APPEAL FROM THE SUPREME COURT OF THE

STATE OF DELAWARE

BRIEF FOR THE LEGAL AID SOCIETY OF THE

CITY OF NEW YORK, JUVENILE RIGHTS

DIVISION, AS AMICUS CURIAE

Interest of Amicus Curiae

The Legal Aid Society is a private, non-profit legal as-

sistance agency, which since 1876, has sought -to provide

quality legal representation to persons living in New York

City who cannot afford to pay a private lawyer. The

Society has a full-time staff in excess of 600 attorneys, who

provide assistance to more than 200,000 people a year in all

trial courts in New York City, in the state and federal

appellate courts and in this Court.

Amicus curiae, the Juvenile Rights Division of The Legal

Aid Society, has been in existence since 1962, when the

New York State Legislature enacted the Family Court Act

and mandated the assignment of counsel in juvenile pro-

2

ceedings. The Division at present comprises 76 trial, ap-

pellate and special litigation attorneys and a social services

support staff of 34, including 18 persons with masters de-

grees in social work, whose primary responsibility is the

representation of juveniles who are the subject of Family

Court proceedings in New York City.* In 1979, the Juve-

nile Rights Division lawyers (referred to by state statute

as “law guardians”) were assigned as counsel in 17,614

proceedings. The cases included juvenile delinquency,

abuse and neglect, persons in need of supervision (PINS),

special education, violation of probation, extension, ter-

mination or transfer of placement within the child care

system, family offense, custody and foster care review pro-

ceedings, as well as over 700 proceedings involving the

termination of the parent-child relationship.

In addition, staff members represent children in a

myriad of cases related to but separate from Family Court

assignment, and on a daily basis deal with the home life

and foster care problems of New York City are» children.

Charles Schinitsky, who has been attorney-in-charge of

the Division since 1962, regularly has been asked to testify

at local, state and federal legislative and administrative

hearings concerning the care and protection of children.

His study of the role of the lawyer in Children’s Court was

cited by this Court in In re Gault, 387 U.S. 1, 37 n. 62

(1967). He has also served on many committees concerned

with children’s issues, such as the New York State Juvenile

Justice Advisory Board, which dealt with the expenditure

of funds under the federal Juvenile Justice and Delin-

quency Prevention Act, the New York City Mayor’s Task

Force on Child Abuse and Neglect, an advisory committee

to the National Council of Juvenile Court Judges, a com-

*The Division makes extensive use of psychiatric and psycho-

logical experts as well.

ee

3

mittee on public and private child care agencies established

by New York State’s First and Second Judicial Depart-

ments, and the Temporary State Commission to Recodify

the Family Court Act.

Based upon its experience, Amicus has consistently main-

tained that children have a right to live in their natural

homes, that they should be removed from those homes and

placed in foster care only as a last resort, and that they

should then be returned to their homes as soon as possible.

Amicus therefore has urged the introduction of extensive

community services so that wherever possible children re-

main at home and will not have to enter the costly foster

care system.

The central issue presented in this case—whether the

Delaware proceedings to terminate the parent-child rela-

tionship are unconstitutional—is obviously of great im-

portance to the thousands of youngsters in New York City

represented by the Juvenile Rights Division in such ter-

mination proceedings,

Amicus is submitting this brief because of its concern

about the impact of this case on its clients. Amicus, as the

single largest legal representative of children in the United

States, wishes to provide this Court with an analysis of

the issues from the viewpoint of the child, which may not

otherwise be presented, and which Amicus believes itself

especially qualified to present.

Statement of the Case

The action to terminate the parental rights of John Doe

and Jane Roe was initiated in 1975 in the Delaware Supe-

rior Court by the Delaware Department of Health and

Social Services pursuant to 13 Del. Code §§ 1101-13. The

statutory ground for termination asserted was that the

ee

4

parents were “not fitted to continue to exercise parental

rights” to their five children. 13 Del. Code § 1103(4). The

Delaware statute further provided that termination must

be “in the best interests of the child.” 13 Del. Code

§ 1108(a). Counsel for the parents challenged the con-

stitutionality of the statute based on its vagueness, and

the constitutionality of the termination proceeding based on

the use of an inadequate standard of proof. The children

were not represented by independent counsel, which is not

provided for by the Delaware code or case law.

Subsequently, the Superior Court ordered the parental

rights of John Doe and Jane Roe terminated on the grounds

that Doe and Roe were “incapable of providing proper care

to their children” and that termination was in the children’s

best interests. The Delaware Supreme Court affirmed the

order of the Superior Court, and later denied the motion

for reargument filed by the parents. Probable jurisdiction

was noted by this Court on March 25, 1980. 48 U.S.L.W.

3613 (1980).

Amicus has received consent from both appellants. and

the appellee to file this brief.

Summary of Argument

This Court has established that “[n]either the Fourteenth

Amendment nor the Bill of Rights is for adults alone.”

In re Gault, 387 U.S. at 13. A child has fundamental liberty

interests in life and freedom from harm as well as in family

integrity. Usually these interests are consonant with the

parents’ fundamental interest in the preservation of the

family’s integrity and the parent-child relationship. There

are points, however, at which a child’s interests poten-

tially diverge from his parents’ in a proceeding to terminate

parental rights. Once parents are faced with a court pro-

5

ceeding in which the involuntary termination of their pa-

rental rights is at issue, their primary concern is to defend

themselves against that loss. This focus may be contrary

to the rights and interests of the child.

At the same time, the child’s interests do not thereby

become identical with the state’s. The “best interests of the

child” claimed to be protected by the state is not a mono-

lithic entity, but rather is composed of separate rights,

at least one of which, the right to family integrity, cannot

be adequately represented by the state. By filing a petition

to terminate parental rights, the state has committed itself

to the position that termination of the family entity is

necessary, and thus the state is principally involved in sus-

taining the allegations of the petition. The interests of the

child, however, may lie in remaining with or returning to

his family.

In this case, although the central concern of the action

is the welfare of five minor children, there has been no

representation of their interests independent of the parents’

and the state’s interests. There should be little dispute

that the child has the most at stake in a termination pro-

ceeding. It is ironic that the party with the greatest inter-

est in the outcome of the litigation has no voice in the

proceeding. Amicus maintains that in order for the full

panoply of the children’s rights to be protected and for the

facts to be fairly and fully presented to the fact-finder,

independent counsel for the child is required, Independent

counsel is in the best position to establish a confidential,

trusting relationship with the child and thus to determine

and present the child’s wishes, concerns, needs and fears.

The child’s attorney would function as an advocate and

fully participate in the litigation.

Independent counsel for the child who is the subject

of a termination proceeding is not a theoretical and untested

6

concept. An estimated thirty-eight states* at present man-

date or permit independent representation of the child in

a proceeding that may result in the termination of the

parent-child relationship. In New York City since 1976,

when the state legislature mandated such representation,

see N.Y. Family Court Act § 249 (McKinney Supp. 1976-79),

Amicus has represented over 1,500 children in termination

proceedings.

Based on its experience, Amicus also supports the ap-

pellants’ claim that clear and convincing evidence should be

the standard of proof in termination proceedings. From

the child’s perspective, the right to family integrity is

sufficiently fundamental that only when it has been proved

by a more rigorous standard than preponderance of the

evidence that his right to life and to freedom from harm

are endangered, would the presumption be overcome that

his best interests lie in being with his natural family.

For the same reasons, Amicus supports appellants’ posi-

tion that the Delaware statute is so unconstitutionally vague

that it permits arbitrary, subjective and discriminatory

interference in the constitutionally protected parent-child

relationship. While no statute terminating parental rights

should be so rigid as to specify every detail of required or

proscribed behavior, it should, at a minimum, provide no-

tice as to what conduct by the parent will allow the state

to file such a proceeding. Further, the Delaware statute

is so overbroad as to permit the state to intervene in the

family relationship in a manner that is in violation of funda-

mental constitutional rights.

Therefore, Amicus urges this Court to declare the Del-

aware termination statute unconstitutional, to declare that

*See e.g., Ala. Code § 26-14-11 (Ala. Code 1975); Kan. Stat.

§§ 38-817, 38-820, 38-821 (Kan. Stat. Ann. Supp. 1979); La. Civ.

Code Ann. art. 13:1602 (West Supp. 1979).

7

the Delaware courts used a constitutionally inadequate

standard of proof, and to remand this proceeding for a new

hearing at which the child’s vital interests are represented

by independent counsel.

ARGUMENT

I,

Proceedings to Terminate Involuntarily the Parent-

Child Relationship Impinge Upon a Constitutionally Pro-

tected Liberty Interest of the Child That Can Only Be

Effectively Guaranteed by Separate and Independent

Counsel.

In any proceeding where the state seeks the involuntary

and permanent termination of the parent-child relation-

ship, the child has substantial individual liberty interests

in life and freedom from harm, as well as in the preserva-

tion of the family relationship. These interests are equal

or superior to those of the parent and are equally deserv-

ing of constitutional protection. Given the existence of

these fundamental interests, the parent-state conflict that

enhances the risk for the child of an erroneous determina-

tion, and the grievous loss to the child from improper

termination, Amicus submits that due process requires that

the child be afforded separate and independent legal repre-

sentation.

The integrity of the natural family unit, free from the

coercive interference of the state, has consistently been

recognized by this Court to be an essential liberty interest

protected by the Due Process Clause of the Fourteenth

Amendment. Meyer v. Nebraska, 262 U.S. 390 (1923) ;

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

Connecticut, 381 U.S. 479 (1965); Stanley v. Illinois, 405

8

U.S. 645 (1972). This right to the enjoyment of familial

privacy, which has its source in “intrinsic human rights, as

they have been understood in ‘this Nation’s history and

tradition’ [cite omitted],” Smith v. Organization of Foster

Families for Equality and Reform, 431 U.S. 816, 845 (1977),

encompasses the reciprocal rights of both parents and

children. Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.

1977).

Because parents typically possess the warmth and sen-

sitivity toward their children that make them best suited

to the task of child-rearing, it follows that the child is most

likely to derive from his natural family the affection, sup-

port and protection he requires for positive growth and

social adjustment. Sanchez v. Texas Dept. of Human Re-

sources, 581 S.W.2d 260, 262 (Tex. 1979). The child’s

interest lies in “not being dislocated from the emotional

attachments that derive from the intimacy of daily associa-

tion with the parent [cite omitted].” Duchesne vy. Sugar-

man, 566 F.2d at 825. Indeed, a child inappropriately re-

moved from parental custody

may suffer such serious emotional disturbance and

conflict that his ability to function as a normal human

being ... is impaired to such an extent that he can

gain no meaningful benefit from his constitutional

right to the pursuit of happiness.

Brown v. Guy, 476 F.Supp. 771, 773 (D. Nev. 1979).

Thus, to the extent that parents adequately fulfill their

obligations to satisfy the child’s needs, his interest in family

integrity is coterminous with that of his parents. To the

extent, however, that parents threaten their children with

actual harm, the presumption that the parent-child rela-

tionship is transcendant may be overcome,

9

In so-called “termination of parental rights” proceedings,

the state seeks permanently to destroy the parent-child

relationship. Indisputably, this action represents one of

the most drastic that the state can take against its citizens,

State v. Jamison, 251 Or. 114, 117, 444 P.2d 15, 17 ( 1968) ;

In re J.L.B., 594 P.2d 1127, 1134 (Mont. 1979); In re

Angelia M.P., [1980] 6 Fam. L. Rep. (BNA) 2490, 2491

(Cal. Ct. App. May 1, 1980); Blakey v. Blakey, 72 Tll. App.

3d 946, 947, 391 N.E. 2d 545 (App. Ct. 1979). The threat of

grievous loss occasioned by the state’s interference in the

constitutionally protected family unit has been held to re-

quire the exercise of maximum procedural safeguards.

See, e.9., Alsager v, District Court of Polk County, Iowa,

406 F.Supp. 10 (S.D. Iowa 1975), aff’d on other grounds,

045 F.2d 1137 (8th Cir. 1976). For parents, these safe-

guards have been widely declared to include the right to

counsel,*

For children, however, the right to counsel is not uni-

formly recognized in all jurisdictions. Amicus maintains

that while the interests of all family members in the preser-

vation of the home may be interwoven, the child’s interest

should be independently articulated from his unique per-

snective.

Far from being regarded today as the “property” of his

parents, a child is a “person” protected by the Constitution

and endowed with constitutional rights. In re Gault, 387

U.S. 1;** Goss v. Lopez, 419 U.S. 565 (1975); Breed v.

* See, e.g., Cleaver v. Wilcox, 499 F.2d 940 (9th Cir, 1974) ;

Brown v. Guy, 476 F.Supp. 771 (D. Nev. 1979); Page v. Davis,

442 F.Supp. 258 (S.D. Fla. 1977); In re Chad 8., 580 P.2d 983

(Okla. 1978).

**In Gault, this Court recognized the separate liberty interest

of a child in a delinquency proceeding as one deserving of con-

stitutional protection, and held that the parens patriae model of

those proceedings could not justify denying children the right to

counsel. That termination proceedings are labelled “civil” rather

than “criminal” or “quasi-criminal” should not obscure the fact

10

Jones, 421 U.S. 519 (1975); Planned Parenthood v. Dan-

forth, 428 U.S. 52 (1976). Thus, as an individual with a

personal stake in the integrity of the parent-child relation-

ship and in his own well-being, the child is constitutionally

entitled to no less procedural protection than his parent

when the state attempts to intervene in the relationship.

A determination of what process is due depends upon the

demands of the particular situation. Morrissey v. Brewer,

408 U.S. 471, 481 (1972). Apart from the identification of

a private interest that rises to the level of a constitutional

right, such determination must involve an analysis of the

adequacy of existing procedures in protecting the interests

affected. Mathews v. Eldridge, 424 U.S. 319 (1976). In

termination proceedings in the State of Delaware, the

child, who is the subject of the action, is obliged to accept

“joint” representation with either of the other two neces-

sary parties. Amicus suggests that due process cannot be

achieved by such an arrangement. Only independent coun-

sel for the child can effectively dedicate himself to the sole

representation of the child at the fact-finding hearing.

There is a potential for conflict between the interest of

the child and those of both the parent and the state that

substantially increases the risk of an erroneous determina-

tion. Notwithstanding the strong presumption that the

natural bonds of affection lead parents to act in the best

interests of the child, it is manifest that the parent is in-

capable of adequately representing his child’s interests in

termination proceedings. Because the parent stands ac-

cused of acts or omissions that threaten the welfare of the

that the nature of the interest at stake is similar: the child is

threatened with removal from his family and possible long-term

institutionalization, an “awesome prospect” for non-delinquent as

well as delinquent children. In re Gault, 387 U.S. at 35. Regard-

less of the nomenclature employed, the due process analysis is

identical. Roe v. Conn, 417 F.Supp. 769, 780 (M.D. Ala. 1976).

11

child, a potential conflict is created that weakens the unity

of interest between parent and child. Counsel for the

accused parent is professionally duty-bound to attempt to

refute the charges and to preserve the parent-child rela-

tionship for his client, regardless of the interests of the

child. Whether or not the child’s interest is ultimately

determined to reside in the continuation of the natural

family relationship, until such determination is made the

interests of parent and child remain potentially adverse.*

At the same time, the state is equally incapable of pro-

viding the effective representation that the child’s interests

require. An ex parte determination by the state that the

natural parents threaten their child’s well-being does not

create a reverse presumption that the child’s ultimate best

interest lies in his removal from or the destruction of ties

to the natural family unit. To the contrary, the fact that

the state seeks the permanent severance of familial bonds

in which the child presumptively has a fundamental interest

constitutes an obvious conflict. Sims v. State Dept. of Pub-

lic Welfare, 438 F.Supp. 1179 (S.D. Tex. 1977), rev’d on

other grounds sub nom. Moore v. Sims, 442 U.S. 415 (1979).

Further, while there may be an appearance of congruity

of interest between the state and the child because of the

state’s recognized right and duty to protect the welfare of

its minor citizens, the fact that the termination of a natural

parent’s rights would make the state the new custodian of

the child should immediately indicate the potential for sub-

* The situation in termination proceedings is readily distinguish-

able from that in Parham v. J.L., 442 U.S. 584 (1979), where this

Court held that although the child possessed a substantial liberty

interest in not being erroneously institutionalized, there was an

identity of interest between parent and child in obtaining necessary

care and treatment. An adversary precommitment hearing would

unduly strain the parent-child relationship and discourage parents

from seeking treatment. Here, such a hearing is already a reality,

and the parent’s and child’s interests are potentially adverse.

12

stantial conflict as well. Sims v. State Dept. of Public Wel-

fare, 438 F.Supp. 1179. As parens patriae, the state lacks

both the resources and sensitivity to provide the intimacy,

stability and emotional support necessary for the healthy

development of individual children. See Developments in

the Law: The Constitution and the Family, 93 Harv. L.

Rev. 1156, 1214 (1980) ; Mnookin, Child-Custody Adjudica-

tion: Judicial Functions in the Face of Indeterminacy, 39

Law & Contemp. Prob. 226, 257-61 n. 102 (Summer 1975) ;

Bellotti v. Baird, 443 U.S. 622 (1979).* The state is simply

“too crude an instrument to become an adequate substitute

for flesh and blood parents.” J. Goldstein, A. Freud & A.

Solnit, Before the Best Interests of the Child 12 ( 1979).**

Where a particular child is considered “adoptable,” the

state may favor termination of parental rights regardless

of an individual child’s peculiar interests, both because

termination assists in satisfying the demand for “adopt-

able” children and because it relieves the state from the

financial burden of providing either institutional and foster

care or public services that might be necessary for the re-

inforcement or rehabilitation of the child’s natural family.

Genden, Separate Legal Representation for Children: Pro-

tecting the Rights and Interests of Minors in Judicial Pro-

ceedings, 11 Harv. C.R.-C.L. L. Rev. 564, 575 (1976). How-

ever, since adoption is not a realistic expectation for many

children who become wards of the state, other forms of

custodial care, such as institutionalization, must be utilized,

* The parental role in teaching and guiding children to become

responsible adults “in large part, is beyond the competence of im-

personal political institutions.” Bellotti v. Baird, 443 U.S. at 638.

** Generally, Amicus agrees with many of the concepts contained

in the Goldstein, Freud and Solnit work. Based on its extensive

experience in the representation of children, however, Amicus

finds the Goldstein, et al., position that the child should only be

entitled to independent counsel after the fact-finding stage to be

unrealistic and mistaken.

13

often with unfortunate, even disastrous consequences."

Similarly, long-term foster care, which is the state’s princi-

pal alternative resource, can never replace nurturing ad-

vantages lost to the child from the breakup of his natural

family, and may be distinctly inimical to the needs of

children. See Mnookin, Foster Care—In Whose Best In-

terests?, 43 Harv. Educ. Rev. 599, 605-6 (1973); In re

Jewish Child Care Ass’n (Sanders), 5 N.Y.2d 227, 156 N.E.

2d 700, 183 N.Y.S.2d 65, (1959); Smith v. Organization of

Foster Families for Equality and Reform, 431 U.S. at

856 (concurring opinion, Stewart, J.)** It is clear that

although the familial environment may be adjudged defi-

cient by predominating standards, the state’s intervention,

however benevolently intended, may provide equally un-

desirable or worse alternatives. Alsager v. District Court

of Polk County, Iowa, 406 F.Supp. at 23; In re Raya, 255

Cal. App. 2d 260, 265, 63 Cal. Rptr. 252, 255-6 (Ct. App.

1969).

Amicus has found that independent counsel has proved

to be the most effective method for minimizing the risk of

an erroneous termination. In essence, practical experience

demonstrates that in dependency proceedings:

[eJach attorney presents his arguments from the view-

point of his client, with the child caught in the mid-

* The state may choose to institutionalize a child, not necessarily

because of his individual needs, but because there are no suitable

custodial resources available. Parham v. J.L., 442 U.S. at 625

(Brennan, J., concurring in part, dissenting in part).

The appalling conditions in some institutions and the detrimental

effects of institutionalization in general upon children have been

abundantly demonstrated. New York State Ass’n for Retarded

Children v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y. 1973); K.

Wooden, Weeping in the Playtime of Others (1976); L. Cole, Our

Children’s Keepers (1974).

** The record in the case at bar poignantly illustrates the de-

ficiencies of the foster care system, There was evidence that the

child had been shunted by the state through a series of nine dif-

ferent foster homes,

+

14

dle... . While each side argues in terms of the “best

interests of the child,” beneath this altruistic veneer

lies the desire to win the case for the client—who is

not the child.

Grumet, Plaintive Plaintiffs: Victims of the Battered Child

Syndrome, 4 Fam. L. Q. 296, 314 (1970). Accord, In re

Orlando F., 40 N.Y.2d 103, 351 N.E.2d 711, 386 N.Y.S.2d

64 (1976).

One of the basic elements of due process is the right to

be heard “in a meaningful manner.” Armstrong v. Manzo,

380 U.S. 545, 552 (1965). In light of the foregoing, it is

clear that the child’s interests cannot be adequately voiced

by either of the adult parties to the action. Consequently,

numerous lower courts, both federal and state,* have con-

cluded that because of the competing interests necessarily

involved in any suit affecting the parent-child relationship,

the child’s interest can only be effectively protected by the

engagement or appointment of separate and independent

counsel. Amicus strongly urges the adoption of this view.

* See, e.g., Roe v. Conn., 417 F.Supp. 769 (M.D. Ala. 1976) ;

Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179 (S.D.

Tex. 1977), rev’d on other gounds sub nom. Moore v. Sims, 442

U.S. 415 (1979); Ricketts v. Ricketts, 576 S.W.2d 932 (Ark.

1979) ; Wagstaff v. Superior Court, 535 P.2d 1220 (Alaska 1975) ;

In re Orlando F., 40 N.Y.2d 103; Stapleton v. Dauphen County

Child Care Services, 228 Pa. Super. Ct. 371, 324 A.2d 562 (1974).

Cf. In re D., 24 Or. App. 601, 547 P.2d 175 (Ct. App. 1976), cert.

denied sub nom. C. v. F., 429 U.S. 907 (1976).

15

II.

Involuntary Termination of the Constitutionally Pro-

tected Parent-Child Relationship Constitutes Such a Se-

vere Deprivation of Liberty That Due Process Requires

That the Basis for Termination Be Proven by Clear

and Convincing Evidence.

Amicus submits that to satisfy the requirements of pro-

cedural due process, the standard of proof in a proceeding

to terminate involuntarily and permanently the constitu-

tionally protected parent-child relationship must be clear

and convincing evidence. Amicus’ experience in repre-

senting children in termination proceedings counsels that

this standard strikes a fair and reasonable accommodation

of the various interests at stake, reflects the value for the

child of the preservation of the parent-child relationship,

and minimizes, to an appreciable extent, the risk of an

erroneous decision.

This Court has firmly established that the parent-child

relationship merits constitutional protection. See Point I,

supra, When the state intervenes and attempts to separate

the child permanently from his parents, the child’s para-

mount liberty interest in the family unit is jeopardized.

For this reason alone, a standard of proof higher than

mere preponderance of the evidence must be required in a

termination proceeding.

A proceeding to terminate the parent-child relationship

is simply not an ordinary civil lawsuit. Private interests of

the highest magnitude are subject to adjudication. “[O]ne

way to impress the factfinder with the importance of the

decision and thereby perhaps to reduce the chances that

inappropriate ... [termination] will be ordered” is to in-

crease the standard of proof. Addington v. Texas, 441 U.S.

418, 427 (1979).

16

In Addington, this Court unanimously rejected, on due

process grounds, the use of the preponderance of the ev-

idence standard in the context of an individual’s involun-

tary civil commitment to a state mental institution, Adding-

ton’s holding and rationale apply with equal, if not greater,

force to a proceeding directed at terminating the parent-

child relationship.

Just as civil commitment entails a “significant depriva-

tion of liberty,” so does termination of the parent-child

relationship. Addington v. Texas, 441 U.S. at 425. In fact,

termination “is even more final than involuntary commit-

ment or delinquency proceedings.” State v. Robert H., 20

N.H. 90, 393 A.2d 1387, 1389 (1978).* Termination of the

parent-child relationship has been aptly described as “an

extreme intervention into family integrity,” In re J.L.B.,

594 P.2d at 1134, “as drastic and permanent an action as

can be taken,” Blakey v. Blakey, 72 Ill. App. 3d at 947, 391

N.E.2d 545, and a “drastic, final step which, when im-

providently employed, can be fraught with danger,” Al-

sager v. District Court of Polk County, Iowa, 406 F.Supp.

at 24.

Cognizant of the fundamental rights involved in a termi-

nation proceeding, an increasing number of jurisdictions

have required that the evidence supporting termination

must be established by, at least, clear and convincing ev-

idence. In re G.M., [1980] 6 Fam. L. Rep. 2349 (Tex. Mar.

19, 1980) ;** In re C.L.T., 597 P.2d 518 (Alaska 1979) ; In re

Souza, 204 Neb. 503, 283 N.W.2d 48 (1979); Blakey v.

Blakey, 72 Ill. App. 3d 946, 391 N.E.2d 545; In re J.A., 283

* In juvenile delinquency adjudications the standard of proof is

beyond a reasonable doubt. In re Winship, 397 U.S. 358 ( 1970).

** In re G.M. is especially instructive because, relying expressly

on Addington, the Texas Supreme Court held that the clear and

convincing evidence standard of proof is required in all proceedings

seeking involuntary termination of the parent-child relationship.

17

N.W.2d 83 (N.D. 1979) ; In re J.L.B., 594 P.2d 1127; In re

Kelley, 262 N.W.2d 781 (Iowa 1978); In re Rosenbloom,

266 N.W. 2d 888 (Minn. 1978) ; In re Heidi T., 87 Cal. App.

3d 864, 151 Cal. Rptr. 263 (Ct. App. 1978); State v. Robert

H., 20 N.H. 90, 393 A.2d 1387 (beyond a reasonable

doubt) ; In re Angelia M.P., [1980] 6 Fam. L. Rep. (BNA)

2490 (Cal. Ct. App. May 1, 1980) (beyond a reasonable

doubt); Alsager v. District Court of Polk County, Iowa,

406 F.Supp. at 25,aff’d on other grounds 545 F.2d 1137,

Sims v. State Dept. of Public Welfare, 438 F.Supp. at 1194,

rev’d on other grounds sub nom. Moore y. Sims, 442 U.S.

415.*

The standard of proof “serves to allocate the risk of

error between the litigants and to indicate the relative

importance attached to the ultimate decision.” Addington

v. Texas, 441 U.S. at 423. There can be no doubt that both

the parent and the child have a significant interest in pre-

venting the erroneous termination of this fundamental

human relationship. Since the harm to the child and the

parent resulting from an erroneous termination of their

relationship is significantly greater than any conceivable

harm to the state, the possibility of error must be reduced.

Thus, in a termination proceeding the child and parent

should not be required to share equally with the state the

risk of error. Moreover, the gravity of an improvident

termination decision is underscored by the fact that, unlike

an initial erroneous decision to commit an individual to an

institution, which may be corrected when the individual’s

case is periodically reviewed by the professional staff, the

*See also In re Sego, 82 Wash. 2d 736, 513 P.2d 831 (1973) ;

Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973) ; In re Adoption

of JS.R., 374 A.2d 860 (D.C. 1977); In re Guardianship of R.,

155 N.J. Super. 186, 382 A.2d 654 (Super. Ct. App. Div. 1977) ;

In re Hambelton, 2 K.A. 2d 68, 574 P.2d 982 (Ct. App. 1978).

18

decision to terminate the parent-child relationship perma-

nently and irrevocably destroys the family unit. Cf.

Addington v. Texas, 441 U.S. at 428-429. Under these cir-

cumstances, the standard of proof in a termination pro-

ceeding must be equal to the standard required in civil

commitment cases.*

Amicus maintains that the state’s interest in protecting

the welfare of children can be effectively furthered if the

standard of proof in termination proceedings is more strin-

gent than the ordinary civil standard of preponderance of

the evidence.** Moreover, despite articulating benevolent

motives, the state has often been charged with exceeding

its authority in supervising the parent-child relationship

and in reorganizing family units. See, e.g., Wald, State

Intervention on Behalf of “Neglected” Children: A Search

for Realistic Standards, 27 Stan. L. Rev. 985 (1975) ; Wald,

State Intervention on Behalf of “Neglected” Children:

Standards for Removal of Children from Their Homes,

Momtoring the Status of Children in Foster Care, and

Termination of Parental Rights, 28 Stan. L. Rev. 625

(1976).

*In other civil contexts where substantial individual interests

were at stake, this Court has required a standard of proof higher

than preponderance of the evidence. See, ¢.g., Woodby v. Immigra-

tion and Naturalization Service, 385 U.S. 276 (1967) (deporta-

tion) ; Chaunt v. United States, 364 U.S. 350 (1960) (denaturali-

zation); Schneiderman v. United States, 320 U.S. 118 (1943)

(denaturalization). But see Vance v. Terrazas, —— U.S, ——

100 S.Ct. 540 (1980) (expatriation).

’

** Indeed, most recently, a California appeals court, in holding

that the beyond a reasonable doubt standard was to be employed

in termination proceedings, observed that “[t]he burden, though

heavy, is manageable. ... In all too many cases it is a burden

that will easily be met. In unclear cases substantive due process

requires that the relationship of parent and child be secure.”

In re Angelia M.P., [1980] 6 Fam. L. Rep. (BNA) at 2492.

19

In addition, termination proceedings have been criticized

on the grounds that the parent-child relationship was

severed abruptly in order to supply the adoption market’s

demand for young children, and because following termina-

tion children would spend many years in state institutions

or foster-care placements. Crouch, International Conven-

tion Efforts and the Current Status of Children’s Rights in

the U.S.A., [1980] 6 Fam, L. Rep. (BNA) 4023, 4025 (May

13, 1980). Moreover, termination proceedings have been at-

tacked on the basis of cultural and class prejudice.* Cf.

Smith v. Organization of Foster Families for Equality and

Reform, 431 U.S. at 833-34 (foster care).

Therefore, it is critical to the child’s interests as well as

the parent’s interests that the state meet a high standard of

proof in a proceeding to terminate the parent-child rela-

tionship. To safeguard the integrity of the family unit and

to prevent the unjustified destruction of the parent-child

relationship, the standard of proof in a termination pro-

ceeding must be clear and convincing evidence,

*In enacting the Indian Child Welfare Act, 25 U.S.C. §§ 1901

et seq. (1978), Congress found that many of these same evils

existed in child custody proceedings involving Indian families,

As a result, Congress required that in a proceeding to terminate

the parent-child relationship the evidence supporting termination

be established beyond a reasonable doubt. 25 U.S.C. § 1912(f).

ee

20

Ill.

The Delaware Statute Allowing Termination of Pa-

rental Rights on the Grounds of Unfitness and Best

Interests of the Child Is Unconstitutionally Vague and

Overbroad,

The parent-child relationships of the five minor children

in the case at bar were terminated on the basis of a Del-

aware statute allowing such termination when the parents

have been found “not fitted to continue to exercise parental

rights” and when it is in the “best interests” of the chil-

dren. 13 Del. Code §§1103(4), 1108(a). No explication of

these terms or criteria is provided by ‘the statute. Nor

have the Delaware courts provided a limiting construction

or clarification, except to provide that “not fitted” connotes

“unfitted for parental duties.” In re Five Minor Children,

407 A.2d 198, 199 (Del. 1979); In re Dingee, 328 A.2d 139

(Del. 1974). Amicus joins with appellants in their conten-

tion that the Delaware statute, even as thus construed, is

constitutionally infirm on the grounds of vagueness and

overbreadth.

As discussed in Point I, supra, minors possess a funda-

mental liberty interest in the preservation of the family

unit and in family autonomy, independent of the interests

of both their parents or guardians and the state. Critical to

juveniles’ effective exercise of their due process rights in

the termination context is the need for sufficient statutory

specificity, notwithstanding the flexibility recognized to be

necessary in the domestic relations context. Amicus thus

contends that the invocation of a vague, overbroad termina-

tion statute, which is susceptible to arbitrary application,

such as the Delaware statute at issue in the present case, is

violative not only of the constitutional rights of the parents

but of the children as well.

21

In order for a statute to be sustained against a chal-

lenge of unconstitutional vagueness, this Court has iden-

tified three constitutional minima that must be satisfied.

First, as held by this Court in the seminal case of Con-

nally v. General Construction Co., 269 U.S, 385, 391 (1926),

the statute must not be “so vague that men of common in-

telligence must necessarily guess at its meaning and differ

as to its applications.” This is critical, regardless of

whether the statute is civil or penal in nature. A.B. Small

v. American Sugar Refining Co., 267 U.S. 233 (1925). See

also Giacco v. Pennsylvania, 382 U.S. 399, 402 (1966). The

statute must therefore give “fair warning” of what is pro-

hibited, so as not to “trap the innocent.” Grayned v. City

of Rockford, 408 U.S. 104, 108-09 (1972). See also Hynes

v. Mayor and Council of Oradell, 425 U.S. 610, 621 (1976).

In the child-protective area, standards such as the gen-

eral unfitness and best interests of the child standards em-

bodied in the Delaware termination statute have been held

to be unconstitutionally vague precisely because of the risk

of “multifarious interpretation” and inadequate notice see,

e.g., Roe v. Conn, 417 F.Supp. 769.* Relying on Grayned v.

City of Rockford, the court in the child-neglect case of

Roe v. Conn, 417 F.Supp. at 780, rejected a “welfare” stan-

dard equally as vague as that in the case at bar. The court

concluded :

When is a home an “unfit” or “improper” place for a

child? Obviously, this is a question about which men

and women of ordinary intelligence would greatly

*See also Wald, State Intervention on Behalf of “Neglected”

Children: Standards for Removal of Children from Their Homes,

Monitoring the Status of Children in Foster Care, and Termina-

tion of Parental Rights, 28 Stan. L. Rev. at 649, 688-700; Note,

The Fundamental Right to Family Integrity and Its Role in

New York Foster Care Adjudication, 44 Brooklyn L. Rev, 63,

87 (1977) ; Note, Parens Patriae and Statutory Vagueness in the

Juvenile Court, 82 Yale L.J. 745, 746-7 (1973).

22

disagree. Their answers would vary in large measure

in relation to their differing social, ethical, and re-

ligious views. Because these terms are too subjective to

denote a sufficient warning to those individuals who

might be affected by their proscription, the statute is

unconstitutionally vague.

See also Alsager v. District Court of Polk County, Iowa,

406 F.Supp. at 17-18;* Linn v. Linn, 205 Neb. 218, 286

N.W.2d 765 (1980) (“best interests”); Davis v. Smith,

583 S.W.2d 37 (Ark. 1979) (“proper home”).

Second, and perhaps more significant from the minor’s

point of view, is the requirement that a statute provide suf-

ficiently “explicit standards” for those who apply it to

ensure against “arbitrary and diser‘minatory enforcement”

on an “ad hoc and subjective basis.” Grayned v. City of

Rockford, 408 U.S. at 108-109. See also Hynes v. Mayor

and Council of Oradell, 425 U.S. at 623; Cramp v. Board of

Public Instruction, 368 U.S. 278 (1961).

This stricture is particularly critical in the “highly sub-

jective context of determining an approved mode of child-

rearing.”** Alsager v. District Court of Polk County, Iowa,

*In Alsager, the Eighth Circuit ruled the parental rights ter-

mination statute at issue unconstitutional as applied, without ex-

pressly resolving the issue of facial vagueness. The court ab-

stained to allow the Iowa courts to accord the statute a “plainly

desirable limiting construction.” 545 F.2d at 1138. Nevertheless,

the court held that “at minimum . . . both the vagueness and

overbreadth attacks [on the statute] ... are serious ones”, id.,

leaving unchallenged the reasoning of the District Court.

**See generally M. Guggenheim & A. Sussman, The Rights of

Parents (unpub. manuscript, Avon Books 1980); Developments

in the Law: The Constitution and The Family, 93 Harv. L. Rev.

at 1215 (1980) ; Note, The Fundamental Right to Family Integ-

rity and Its Role in New York Foster Care Adjudication, 44

Brooklyn L. Rev. at 64; Note, The Right to Family Integrity:

A Substantive Due Process Approach to State Removal and Ter-

23

406 F.Supp. at 18-19; Linn v. Linn, 205 Neb. 218, 286 N.W.2d

at 769; Davis v. Smith, 583 S.W.2d at 42. As the Alsager

court noted:

The termination of the parent-child relationship in

any given case may thus turn upon which state officials

are involved in the case, rather than upon explicit

standards reflecting legislative intent.

406 F.Supp. at 18-19. Vague standards such as unfitness

and best interests endow state officials as parens patriae

with unfettered discretion to the detriment of both child

and parents. Goldstein, et al., Before the Best Interests of

the Child 13-14, 17, Amicus’ experience reveals that this

type of official discretion permits discrimination against

poor, minority and other disfavored families,

Third, and most central to children’s exercise of their

independent liberty interests in family integrity, life and

freedom from harm is the requirement that a statute not

be so overbroad as to impinge upon fundamental consti-

tutional rights or to punish constitutionally protected con-

duct.* In essence, the fundamentality of rights at stake

has been held to require a more rigorous degree of scrutiny

than challenges to statutes solely on notice and arbitrary

enforcement grounds, essentially causing the state to as-

mination Proceedings, 68 Geo. L. J. 213, 240 (Oct. 1979) ; Chem-

erinsky, Defining the Best Interests: Constitutional Protections

in Involuntary Adoptions, 18 J. of Fam. L. 79, 110 (1979).

* This stricture was first recognized in cases where fundamental

First Amendment freedoms were at stake. See, e.g., Grayned v.

City of Rockford, 408 U.S. at 108-109; Coates v. City of Cincinnati,

402 U.S. 611, 614 (1971); Baggett v. Bullit, 377 US. 360, 368

(1964). See generally Day, Termination of Parental Rights

Statutes and the Void for Vagueness Doctrine: A Successful At-

tack on the Parens Patriae Rationale, 16 J. of Fam. L. 213, 218

(1977).

24

sume the burden of demonstrating that no overreaching

is involved. See Hynes v. Mayor and Council of Oradell,

425 U.S. at 621; Rose v. Locke, 423 U.S. 48, 50 n. 3 (1975);

Smith v. Goguen, 415 U.S. 566, 572-3 (1974).

The concept has been recognized in Alsager v. District

Court of Polk County, Iowa, 406 F.Supp. at 18-19, aff’d as

modified, 545 F.2d 1137, that the danger of an overbroad or

vague statute in this context is that it can inhibit the exer-

cise of the “fundamental right to family integrity.” See

also Roe v. Conn, 417 F.Supp. at 777, 779; Linn v. Linn, 205

Neb. 918, 286 N.W.2d at 768; Davis v. Smith, 583 S.W.2d at

40. An overbroad statute impinging upon this right, there-

fore, encroaches upon the child’s as well as the parent’s

constitutionally based right to family autonomy.

This rigorous degree of scrutiny necessitates that state

intrusions into family life can only be justifiable by a

compelling state interest in protecting the child from seri-

ous and concrete harm, and only then if less drastic forms

of rehabilitative intervention have already been tried or

are futile.* The court below properly recognized that ter-

mination of the parent-child relationships in the case at

bar could not be justified solely upon the basis of “best

interests” or by reason of the parents’ poverty or life-

style. In re Five Minor Children, 407 A.2d at 199.** Ney-

*See generally Goldstein, et al., Before the Best Interests of

the Child 5, 9, 18; Chemerinsky, Defining the Best Interests:

Constitutional Protections in Involuntary Adoptions, 13 J. of Fam.

L, at 105; Note, The Right to Family Integrity: A Substantive

Due Process Approach to State Removal and Termination Pro-

ceedings, 68 Geo. L. J. at 235 (specifically criticising the failure

of the Delaware termination statute at issue to mandate considera-

tion of less destructive dispositions). Cf. California Family Pro-

tection Act of 1976 (1976 Cal.Stats. § 977); N.Y. Soe. Serv. Law

§ 384-b (McKinney Supp. 1979-80).

** See also Quilloin v. Walcott, 434 U.S. 246 (1978) [citing

Smith v. Organization of Foster Families for Equality and Reform,

431 U.S. at 856 (concurring opinion, Stewart, J.)]. Several

25

ertheless, the Court’s coupling of the unfitness and best

interests standards fails to cure the statute of unconstitu-

tional overbreadth, where no guidelines for the application

of either standard have been provided.

Surely, any intrusion into family life must be necessi-

tated by, and be only in direct proportion to, the state’s

interest in protecting children.* Moreover, while “[m]athe-

matical certainty,” and “meticulous specificity or great

exactitude” in familial-rights termination statutes would be

unnecessary in light of the “[f]lexibility and reasonable

breadth” desirable in the child welfare context, Davis v.

Smith, 583 S.W.2d at 42, objective guidelines should be es-

tablished. The guidelines should focus on the effects of

parental conduct upon children, not merely upon the con-

duct. Intervention should be allowed only to prevent actual

or imminent serious harm to children. Moreover, inter-

vention should only be permitted to the extent to which

the risk of harm can be decreased.** Most important,

state courts as well have held that termination of parental rights

may not rest on considerations of best interests alone. See. e.9.,

In re Sanjivini K., 47 N.Y.2d 374, 391 N.B.2d 1316, 418 N.Y.S.2d

339 (1979) ; Corey L. v. Martin L., 45 N.Y.2d 383, 380 N.E.2d 239,

408 N.Y.S.2d 439 (1978) ; In Re Fish, 569 P.2a 924 (Mont. 1977) ;

In re La Rue, 244 Pa. Super. Ct. 218, 366 A.2d 1271 (1976) ;

Westerlund v. Croaff, 68 Ariz. 36, 198 P.2d 842 (1948). Moreover,

several courts have required consideration of less detrimental alter-

natives. See, e.g., In re Carmelita B., 21 Cal. 3d 482, 496, 579 P.2a

514, 523, 146 Cal. Rptr. 623 (1978); In re LaRue, 244 Pa. Super.

Ct. 218, 366 A.2d 1271.

*See generally Note, Constitutional Limitations on the Scope

of State Child Neglect Statutes, 79 Colum. L. Rev. 719, 727 (May,

1979).

** See generally, Goldstein, et al., Before the Best Interests of

the Child 16, 59, 72, 91; Developments in the Law: The Consti-

tution and the Family, 93 Harv. L. Rev. at 1318-19; Wald, State

Intervention on Behalf of Neglected Children: Standards for Re-

moval of Children from Their Homes, Monitoring the Status of

Children in Foster Care, and Termination of Parental Rights, 28

Stan. L. Rev. at 688-700.

26

statutory guidelines should conform to the constitutional

minima discussed above — that is, definitional precision

should be embodied so as to give sufficient notice of pro-

scribed conduct, to guard against arbitrary and discrimina-

tory enforcement, and to prevent overreaching into the

protected realm of family life.

In summary, the Delaware termination statute at issue

in the present case meets none of these constitutional

minima. Without further delineation, neither “unfitness”

nor “best interests” is sufficiently precise to provide ade-

quate warning of unacceptable behavior or sufficiently ob-

jectified to guard against enforcement on the basis of an

official’s individal child-rearing preferences. The harms to

children to be prevented are not spelled out; nor is there

any mandate to use any alternative short of the drastic

step of parent-child rights termination. As such, the statute

impinges upon both the children’s and the parents’ exer-

cise of vital constitutional rights and should, therefore,

be rejected as unconstitutionally vague and overbroad.

27

CONCLUSION

For the foregoing reasons, Amicus respectfully urges

this Court to declare the Delaware termination of parental

rights statute unconstitutional, to hold that the Delaware

Court’s use of the preponderance of the evidence standard

in termination proceedings is unconstitutional, and to re-

mand the case for a new hearing at which counsel for the

children would be mandated.

Dated: Brooklyn, New York

June 7, 1980

Respectfully submitted,

CuHarues Scuinitsxy, Esq.

Attorney-In-Charge

THe Lecat Ar Society

JUVENILE Ricuts Division

189 Montague Street

Brooklyn, New York 11201

(212) 858-1300

Amicus Curiae

JANET Fink, Esq.

Kay McNa ty, Esq.

Caro, SHERMAN, Esa.

JANE M. Surtan, Esa.

Henry S. Werntravs, Esq.