Jurisdictional Statement — Able v. Delaware

“

RECEIVED |

APR 7 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S.

"79-6370

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

ALBERT ABLE and BETTY ABLE

vs.

STATE OF DELAWARE

On Appeal From The Supreme Court of Delaware

JURISDICTIONAL STATEMENT

FREDERICK S. KESSLER, ESQUIRE GARY A. MYERS, ESQUIRE

Roeberg & Associates Staff Attorney

1122 North French Street Community Legal Aid Society, Inc.

Wilmington, Delaware 19801 144 East Market Street

(302) 658-8700 Georgetown, Delaware 19947

(302) 856-0038

Counsel for Appellants

April, 1980

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

QUESTION PRESENTED

STATEMENT OF FACTS

THE QUESTION, POSING A CHALLENGE IDENTICAL TO

THAT IN DOE V. DELAWARE, No. 79-5932 PROBABLE

JURISDICTION NOTED, 48 U.S.L.W. 3613

(U.S. MARCH 24, 1980), IS SUBSTANTIAL

THE DELAWARE TPR STATUTE IS

UNCONSTITUTIONALLY VAGUE

AND INDEFINITE

CONCLUSION

TABLE OF AUTHORITIES

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

(S.D. Towa 1975), aff'd, 545 F. 2d 1137

(8th Cir. 1976)

Cleveland Board of Education v. LaFleur,

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

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

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)

In Re Five Minor Children, 407 A. 2d 198 (1979)

prob. juris. noted sub nom., Doe v.

Delaware, No. 79-5932 48 U.S.L.W. 3613

(U.S. March 24, 1980)

In Re William L., 383 A. 2d 1228 (Pa. 1978)

Interstate aeeLTy Inc. v. Dallas, 390 U.S.

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

Moore v. East Cleveland, 431 U.S. 494 (1977)

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Pierce v. Society of Sisters, 268 U.S. 510 (1925)

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

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

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

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

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

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

CONSTITUTION, STATUTES AND RULES

Constitution of the United States:

Fourteenth Amendement

Delaware Code, Chapter 13:

Section 1103(4)

Section 1105(c)

Section 1107

Section 1112

28 U.S.C. §1257(2)

Delaware Supreme Court Rule 19

United States Supreme Court Rule 10(3)

ARTICLES

Day, Termination of Parental Rights Statutes

and the Void for Vagueness Doctrine:

A Successtul Attack on the Parens

Patriae Rationale, . Fam. L.

Due Process and the Fundamental Right to

Family Integrity: A Re-evaluation of

South Dakota's Sarental Termination

Statute, 24 50. Dak. L. R. G47 (1979)

Note, The Aine to Family Integrity:

A Substantive Due Process Approach

to State Removal and Termination

Proceedings, 68 Geo. L. J. 213 (1980)

O216A |

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

ALBERT ABLE and BETTY ABLE

vs.

STATE OF DELAWARE

On Appeal From the Supreme Court of Delaware

JURISDICTIONAL STATEMENT

Appellants Albert Able and Betty Able appeal from

the judgment of the Supreme Court of Delaware entered January

8, 1980 affirming the permanent termination of their

relationship with their four children.

OPINIONS BELOW

The per curiam opinion of the Supreme Court of Delaware,

dated January 7, 1980, is attached to this jurisdictional

statement as Appendix A. Prior opinions in the same proceeding

include an oral opinion of the Superior Court, delivered August

23, 1977, and a final order of judgment of the Superior Court

dated May 31, 1978, which are attached, respectively, as

Appendices B and C. None of the three opinions is officially

reported.

2s

JURISDICTION

The proceedings below were commenced in the Delaware

Superior Court pursuant Co 13 Del. C. §§1101-13 to terminate

Appellants’ parental rights in their four minor children.

Following the opinion of the Delaware Supreme Court entered on

January 8, 1980 (Appendix A), the Clerk of that Court entered a

final judgment and mandate on January 29, 1980 (Appendix D).*

A notice of appeal in this case was filed in the Delaware

Supreme Court on April 3, 1980, and is attached as Appendix

E.** Jurisdiction is conferred on this Court by 28 U.S.C.

§1257(2).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Due Process Clause of the Fourteenth Amendment

to the Constitution of the United States and the provisions of

13 Del. Code §§1101-13 are set forth in Appendix F.

QUESTION PRESENTED

Is the Delaware statute, which provides for the

permanent termination of the parent-child relationship where

the parent is "not fitted," unconstitutionally vague and

indefinite in violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution?

® Under Delaware Supreme Court Rule 19, a final judgment

issues 15 days after the entry of an opinion.

we A notice of appeal in identical form, also attached as

Appendix E, was filed in the Delaware Superior Court on

April 2, 1980, in the event that that Court should now be

oot). the Court “possessed of the record." Sup. Ct. R.

STATEMENT OF FACTS

Delaware, like many other states, provides a

statutory procedure for termination of the parent-child

relationship, commonly known as a "TPR" proceeding.* The TPR

remedy is different from, and far more drastic than, a custody

proceeding that transfers control of the child on a temporary

or indefinite basis. The TPR remedy, by contrast, permanently

terminates all legal rights of the parent or parents affected.

In practical terms, it excludes the parent or parents from any

further contact or relationship with the child, regardless of

improvement or rehabilitation of the parent. When parental

rights are terminated the “child is dead so far as the parent

is concerned". In Re William L., 383 A. 2d 1228, 1252 (Pa.)

(Manderino J., dissenting) cert. denied 439 U.S. 880 (1978) cf.

13 Del. C. §1112 ["..as if the child and the person or persons

whose parental rights have been terminated were and always had

been strangers."].

On August 13, 1976, the Division of Social Services

of the Delaware Department of Health and Social Services (the

"Division") filed a TPR petition in the Delaware Superior Court

against ALBERT ABLE and BETTY ABLE, the natural married parents

of four children whose ages then ranged from 20 months to seven

* “TPR is an acronym for “termination of parental

rights." 13 Del. C. §§1101-13. The entire chapter is

reprinted in Appendix F.

«is

years. The statutory "ground" asserted in the TPR petition was

that set forth in 13 Del. Code §1103(4), which reads in its

entirety:

"The parent or parents of any such child,

Or any person or persons or organization

holding parental rights over such child

are not fitted to continue to exercise

parental rights."* ae

Nothing in the statute provides any further guidance -- by

definition, requirement, standards or otherwise -- as to what

constitutes unfitness under this provision.

On August 22, 1977, the TPR petition was heard in

the Superior Court. The Division, through the testimony of

several social workers, spoke of their contacts with the Ables

and their children. In response, the Ables presented the |

testimony of Dr. D_, a psychiatrist who had been counseling

the Ables on a weekly basis since May, 1976. Dr. D__ testified

that he saw no reason why the Ables could not in the near

future provide adequate care for the children and assume

parental responsibilities.

ed The TPR petition served upon the parents pursuant to 13

Del. Code §1107 did not indicate what activities rendered

them unfit. Although the Division filed a narrative

social oonets in the Superior Court pursuant to 13 Del.

Code §1105(c), such was not served with the petition.

In fact, the Division refused to produce the report for

the parents’ inspection in the absence of a court order.

o §.«

At the conclusion of the trial the trial judge

delivered his oral findings and order.* He found that, as of

March, 1976, the Ables were unfit because (1) Fred, then

eighteen months, was unable to walk, preferred a bottle, and

experienced difficulty speaking, (2) Candy, then six years

old, had difficulty sleeping and threw food and (3) Elizabeth

was not receptive to communications and control.** A. 2b.

However, relying on Dr. D_, “the true professional in the

case" (A. 4b), he continued the case for six months and asked

Dr. D__ to report in six months concerning “the present

condition of the [Ables] in handling their children." A. 4b.

Dr. D__ did so, indicating he believed that the parents’

progress enabled them to presently care for two of their

children.

The Superior Court reconvened the hearing in April,

1978, and heard not only from Dr. D__ but from a psychiatrist

produced by the Division. The two psychiatrists offered

conflicting views about the parents’ abilities. After

post-hearing briefing***, the trial judge issued a written

opinion. Finding that the parents’ “dependency needs" were

® No finding was made concerning Dorothy.

ae The trial judge prefaced his remarks by stating:

"Gentlemen, it is unfortunate that many times

the person who has to decide cases such as this are

always influenced by their own personal backgrounds,

but that's the case. I guess maybe that's something

that's built into justice.

Being an Italian, I'm a firm believer that a

oceans family can take on the world and survive."

wee = =6hdIn that briefing, the eyo: reiterated their

vagueness challenge to Del. C. §1103(4).

se

"still so great" (A. lc), he held that it would be in the best

interests of the children to sever their relationship with

their parents.

On appeal the Delaware Supreme Court, by per curiam

opinion, affirmed. Relying on its recent holding in In Re Five

Minor Children, 407 A. 2d 198 (1979) [prob. juris. noted sub

nom., Doe v. Delaware, 48 U.S.L.W. 3613 (U.S. March 24, 1980)],

the Court rejected the Appellants’ vagueness attack on 13 Del.

Code §1103(4). A. 3a.

———— eel lh

oF

THE QUESTION, POSING A CHALLENGE IDENTICAL

TO THAT IN DOE V. DELAWARE, NO. 79-5932 PROBABLE

JURISDICTION NOTED, 48 U.S.L.W. 3613

(U.S. MARCH 24, 1980), IS SUBSTANTIAL

THE DELAWARE TPR STATUTE IS

UNCONSTITUTIONALLY VAGUE

AND INDEFINITE.

Rejecting the Appellants’ challenge, the Delaware

Supreme Court sustained the "fitness" provision of 13 Del. Code

§1103(4) against charges of unconstitutional vagueness.

Whether that statute satisfies due process requirements is a

substantial constitutional question involving rights and

telationships of the most fundamental nature. Indeed, in Doe

v. Delaware, No. 79-5932., prob. juris. noted, 48 U.S.L.W. 3613

(U.S. March 24, 1980), this Court has agreed to review an

identical challenge to this statute. Doe, Jurisdictional

Statement at 2, 10.

It is well established that parents’ relationship

with their children is one of the liberties to which due

process must be accorded. Quilloin v. Walcott, 434 U.S. 246,

255 (1978). Indeed, this Court repeatedly has struck down

state attempts to violate the integrity of the family.

Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974);

Moore v. East Cleveland, 431 U.S. 494 (1977); Wisconsin v.

Yoder, 406 U.S. 205 (1972); Stanley v. Illinois, 405 U.S. 645

(1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944);

Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v.

Nebraska, 262 U.S. 390 (1923). See also Duchesne v. Sugarman,

566 F. 2d 817 (2nd Cir. 1977). When the state seeks to

regulate or curtail the parent-child relationship, it must do

so under a standard evidencing "a greater degree of specificity

than in other contexts." Smith v. Goguen, 415 U.S. 566, 573

(1974) .*

Delaware provision 13 Del. C. §1103(4) lacks that

required degree of specificity. The statute, by providing no

guidance as to what constitutes unfitness, forces courts, state

officials and parents to guess at its meaning and breadth. It

leaves the fact finder to determine from his own subjective

values whether the parents have committed any misconduct. But

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

TPR statutes employing essentially similar language

have been held invalid by two federal courts. Thus, in Roe v.

Conn, 417 F. Supp. 769 (M.D. Ala. 1976), the offending language

authorized termination of parental rights of those whose homes

were "unfit" and "improper." Recognizing the circular and

opaque character of the statutory standard, the court held

Alabama's TPR statute unconstitutionally vague. Similarly, the

lowa TPR statute, focusing on the terms "unfit" and “necessary

parental care and protection," was invalidated in Alsager v.

District Court, 406 F. Supp. 10 (S.D. Lowa 1975), aff'd on

other grounds, 545 F. 2d 1137 (8th Cir. 1976) (per curiam) .**

* This Court has held that vagueness is not paper bert

solely because a statute was enacted for the protection

of children. Interstate Circuit, Inc. v- Dallas, 390

U.S. 676, 689 (1965).

ae In Alsager, the Court of Appeals admonished:

"Both the vagueness and overbreadth attacks upon

these provisions are serious ones. By declining to

affirm on these grounds, however, we afford the Lowa

courts an additional opportunity to give the

statutory provisions a plainly desirable Limiting

construction." 545 F. 2d at 1138.

» @ se

In addition to these federal court decisions, at least one

state supreme court has invalidated language virtually

identical to that upheld below. Davis v. Smith, 583 S.W. 2d 37

(Ark. 1979) ("parents . . . unable to provide a proper home") .*

The findings made in relation to 13 Del. C. §1103(4)

in this case illustrate the vices of vague statutes. Whether

Appellants are “not fitted" so as to forfeit permanently their

relationship with their children because their eighteen month

old baby cannot walk or prefers a bottle or because their seven

year old child throws food (A. 2b) are issues over which men of

ordinary intelligence can argue interminably. Moreover,

reasonable men would not unanimously conclude that Appellants’

"dependency" on others allows the state to intervene into their

family. Indeed, in the trial judge's first opinion he realized

that in making the "unfitness" determination he had to rely

upon his own background and a subjective opinion. A. 2b.**

* The statutory language of TPR statutes has not escaped

scholarly criticism. See e.g., Note, The Right to Family

Integrity: A Substantive Due Process approach to State

emoval and Termination Proceedings, 6 eo. L. J.

(1980); Due Process and the Fundamental Right to Famil

peat ty: A Re-evaluation of South Dakota’s Parental

ermination Statute, 24 50. Dak. L. R. 447 (1979); Day,

Termination of Parental Rights Statutes and the Void for

Vagueness Doctrine: A Successtul Attack on the Parens

Patriae Rationale, 16 J. Fam. L. 213 (1977-78).

ae The effects of such indeterminate statutory grounds are

gteatly accentuated when the state's burden is merely to

pursuade the fact finder of his subjective wisdom by a

reponderance of the evidence. See In Re Five Minor

hildren, supra.

» Ba

The Delaware statute's extraordinary vagueness, the precious

quality of the family relationships terminated by the statutory

remedy, and the underlying conflict on this precise issue

between Delaware and the Federal courts all demonstrate that

this appeal presents a substantial question warranting plenary

review.

Since their vagueness challenge is presently pending

before this Court in Doe v. Delaware, supra, Appellants request

that the Court grant review in their appeal and defer

disposition until a decision on the constitutionality of 13

Del. C. §1103(4) is rendered in Doe. A decision in Doe

concerning the Delaware TPR statute will be dispositive of the

issue here presented.

o 32 @

CONCLUSION

For the reasons stated, and because the Court noted

probable jurisdiction in Doe v. Delaware, supra, an appeal

which involves the identical question, the Court should note

probabie jurisdiction.

Respectfully Submitted:

Gary 4 Tuer

GARY A. MYERS, ESQUIRE

Attorney for Appellants

Staff Attorney

Community Legal Aid Society, Inc.

144 East Market Street

Georgetown, Delaware 19947

April 3, 1980