In the Matter of the Welfare of SHEILA MARIE SUMEY.
No. 46600
In the Supreme Court of Washington
December 4, 1980
Reconsideration denied December 24, 1980
94 Wn.2d 757
En Banc.
Assignment of error to the pretrial suppression order and the argument of that issue does not bring before us, even indirectly, the entirely separate issue of whether the order of dismissal was properly granted. Although in this case the two orders may have stemmed from similar circumstances, the consequences of each are different. The pretrial suppression order simply excluded evidence; as a result the State was left with little upon which to base its case. The order dismissing the charge against the respondent did much more, however. By dismissing the underlying criminal charge the case itself was obliterated leaving nothing further for this court to consider but an abstract question of law pertaining to a nonexistent case. We have consistently and logically refused to act in such cases.
The motion to dismiss the appeal is granted.
Reconsideration denied December 24, 1980.
Kathryn Guykema, for respondent.
Harry F. Reinert and Luvern V. Rieke on behalf of University of Washington Law School and Slade Gorton, Attorney General, and Larry Watters, Assistant, amici curiae.
UTTER, C.J.—This appeal was certified to this court by Division Two of the Court of Appeals to determine whether the residential placement procedures of
Sheila Marie Sumey, the petitioner at trial, is the daughter of appellants Rolin and Laura Sumey. At the time of trial in August 1978, Sheila was 15 years old. In the years preceding the initiation of this action, a number of problems had developed between Sheila and her parents. The parents set several rules for Sheila‘s conduct, which she did not always follow. On a number of occasions, Sheila ran
In early June 1978, there was again conflict in the home and Mrs. Sumey began to believe that Sheila would once again run away from home. On June 17, Mrs. Sumey called the police to prevent Sheila from running away. The police placed Sheila in a receiving home on that day. The Department of Social and Health Services (DSHS) began to provide crisis intervention services to the family and on June 20, Mrs. Sumey signed a consent form stating that Sheila should be in receiving care.
The DSHS crisis intervention services did not succeed in reconciling the differences between Sheila and her parents. The DSHS staff concluded that Sheila could not be returned home at that time, and she remained in receiving care. On July 15, Sheila filed a petition for alternative residential placement with the Pierce County Juvenile Court, pursuant to
Mr. and Mrs. Sumey appealed the juvenile court order and challenged the constitutionality of
Under
If either the parents or the child do not agree with the current placement, then they or the child can petition the juvenile court under
Appellants Mr. and Mrs. Sumey contend that
The parents’ constitutional rights, however, do not afford an absolute protection against State interference with the family relationship. Although “[h]istorically, the natural parent‘s right to custody of a child . . . [was considered to be] absolute, barring a showing of unfitness . . . [g]rowing concern for the welfare of the child and the disappearance of the concept of the child as property has led to a gradual modification in judicial attitude.” In re Becker, 87 Wn.2d 470, 477, 553 P.2d 1339 (1976). It is now well established that when parental actions or decisions seriously conflict with the physical or mental health of the child, the State has a parens patriae right and responsibility to intervene to protect the child. See Parham v. J.R., 442 U.S. 584, 603, 61 L. Ed. 2d 101, 119, 99 S. Ct. 2493 (1979); Wisconsin v. Yoder, 406 U.S. 205, 230, 233-34, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). As we observed in State v. Koome, 84 Wn.2d 901, 907, 530 P.2d 260 (1975),
Although the family structure is a fundamental institution of our society, and parental prerogatives are entitled to considerable legal deference . . . they are not absolute and must yield to fundamental rights of the child or important interests of the State.
See also, e.g., In re Tarango, 23 Wn. App. 126, 129-30, 595 P.2d 552 (1979), review denied, 92 Wn.2d 1022 (1979). Thus, in assessing the constitutionality of a procedure which infringes upon parents’ rights to the care, custody,
The central question in this case, therefore, is whether the interests of the State and child which underlie the
In proceedings for child neglect, abuse, or abandonment, where the potential consequence is termination of parental rights on a temporary or permanent basis, the ultimate nature of the abridgement of parental constitutional rights necessitates an extremely substantial justification. Thus, a parent‘s constitutional rights to care, custody and companionship of the child can only be terminated if the evidence shows that the child has suffered or is likely to suffer physical, mental or emotional harm as a result of the parents’ conduct. See Roe v. Conn, 417 F. Supp. 769, 779-80 (M.D. Ala. 1976) (3-judge court); Alsager v. District Court, 406 F. Supp. 10, 26 (S.D. Iowa 1975), aff‘d, 545 F.2d 1137 (8th Cir. 1976). In re Tarango, supra at 129-30. However, a residential placement under
Under
It must be determined, therefore, whether the
The interests of the State and child supporting the
Accordingly, it must be concluded that appellants’ due process challenge to
STAFFORD, HOROWITZ, DOLLIVER, and WILLIAMS, JJ., and HOPP, J. Pro Tem., concur.
The nature of the constitutionally protected parent-child relationship has been clearly articulated by the United States Supreme Court, this court and other courts. In Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the court stated:
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U. S. 77, 95 [93 L. Ed. 513, 69 S. Ct. 448] (1949) (Frankfurter, J., concurring).
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one‘s children have been deemed “essential,” Meyer v. Nebraska, 262 U. S. 390, 399 [67 L. Ed. 1042, 43 S. Ct. 625] (1923), “basic civil rights of man,” Skinner v. Oklahoma [ex rel. Williamson], 316 U. S. 535, 541 [86 L. Ed. 1655, 62 S. Ct. 1110] (1942), and “[r]ights far more precious . . . than property rights,” May v. Anderson, 345 U. S. 528, 533 [97 L. Ed. 1221, 73 S. Ct. 840] (1953). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U. S. 158, 166 [88 L. Ed. 645, 64 S. Ct. 438] (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U. S. 479, 496 [14 L. Ed. 2d 510, 85 S. Ct. 1678] (1965) (Goldberg, J., concurring).
(Italics mine.)
The family entity is the core element upon which modern civilization is founded. Traditionally, the integrity of the family unit has been zealously guarded by the courts. The safeguarding of familial bonds is an innate concomitant of the protective status accorded the family as a societal institution.
(Citations omitted.) In re Luscier, 84 Wn.2d 135, 136, 524 P.2d 906 (1974). In re Myricks, 85 Wn.2d 252, 533 P.2d 841 (1975), confirmed that the fundamental right of parents to custody necessitates strict compliance with due process requirements even in a temporary deprivation hearing.
In ruling upon the right of an indigent parent to assistance of counsel when the State attempts to declare a child a temporary ward of the court, the Michigan Supreme Court observed:
The interest of parent and child in their mutual support and society are of basic importance in our society and their relationship occupies a basic position in this society‘s hierarchy of values. Clearly any legal adjustment of their mutual rights and obligations affects a fundamental human relationship.
Reist v. Bay Circuit Judge, 396 Mich. 326, 341, 241 N.W.2d 55 (1976).
Because the right to raise one‘s children is fundamental, any proceeding by the State to deprive a person of that right must take place under the aegis of the equal protection and due process clauses of the Fourteenth Amendment.
Pima County v. Howard, 112 Ariz. 170, 171, 540 P.2d 642 (1975).
With this background, let us examine the statute and facts applicable in this case. The statute permits the juvenile, acting unilaterally, to petition for alternative residential placement. Former
What criteria must be satisfied before the juvenile court is empowered to deprive the parents of the physical custody of their child? What narrowly drawn standard, expressing a compelling state interest, allows the court to sever, in 6-month increments, the parents’ fundamental right to the companionship, supervision, and control of their child?
The court need only find, by a preponderance of the evidence, that the reasons for the child‘s request for alternative placement are not capricious and that there is a conflict between the parent and the child that cannot be remedied by counseling, crisis intervention, or continued placement in the parental home.
If “capricious” is used in a popular sense, it denotes: “Marked or guided by caprice: given to changes of interest or attitude according to whims or passing fancies: not guided by steady judgment, intent, or purpose . . .” Webster‘s Third New International Dictionary (1963). “Capricious” has been legally defined in various ways: e.g., apt to change suddenly, freakish, whimsical, humorous (United States v. Carmack, 329 U.S. 230, 244 n.14, 91 L. Ed. 209, 67 S. Ct. 252 (1946)); or freakish, whimsical, fickle, changeable, unsteady, and arbitrary. (Webb v. Dameron, 219 S.W.2d 581 (Tex. Civ. App. 1949)). Accord, Bundo v. Walled Lake, 395 Mich. 679, 238 N.W.2d 154 (1976). Cf. Hayes v. Yount, 87 Wn.2d 280, 286, 552 P.2d 1038 (1976) (“arbitrary and capricious” has acquired a special meaning in administrative law, a meaning which is not applicable here). Noncapriciousness is an imprecise criterion too easily satisfied, and therefore it cannot be the standard by which substantial interference with cherished, fundamental, parental rights zealously guarded by the constitution is justified. This intrusion into parental rights is exacerbated by the light evidentiary burden which must be met to establish a lack of capriciousness (preponderance of the evidence).
If the court finds that the noncapriciousness standard is satisfied, it need then only determine that an undefined “conflict” which cannot be remedied by certain actions is present. Upon what facts did the court find a “conflict” in this case? The juvenile signed a form petition which alleged in material part:
That said child is in conflict with his/her parents as defined in
RCW 13.32 [where it is not defined] as follows: . . . that said child refuses to endure the physical and verbal fighting and friction within the home and refuses to return; that counseling has been utilized . . .; that said child would like to live with [a named family] or in an alternative foster home.
Next: “Said conflict cannot be remedied by counseling, crisis intervention or continued placement in the parental home.”
Petitioning juvenile was asked at the court hearing the following:
Q. Could you please tell us why you believe there is a conflict in that home?
A. I just feel that there‘s a communication gap there . . .
That is the sum and substance of the petitioner‘s testimony upon which she was taken from her parents’ custody over their objections.
What standards of conduct had these parents laid down which led to this “lack of communication“? They asked
There was no claim or proof of unfitness or neglect by the parents. There was no claim or proof of any imminent threat of harm or danger to this 15-year-old. The only manifestation of any potential harm to the child was her threat to run away. She had done so once in the past and occasionally stayed overnight with friends without permission.
Based upon this skimpy petition and proof, the parents were deprived of custody for a minimum of 6 months (if the “conflict” was not resolved earlier), and possibly for additional periods of 6 months thereafter, following review by the court.
The court‘s justification for this extensive deprivation of fundamental parental rights consisted merely of conclusory findings of fact which met the unconstitutionally vague and inadequate standards of the statute:
That the conflict cannot be remedied by counseling, crisis intervention or continued placement in the home.
Finding of fact No. 6.
That the evidence establishes by a preponderance that the reasons for the request of alternative residential placement are not caprious [sic].
Finding of fact No. 7.
That the parents of the minor child are willing to provide for her in their home.
Finding of fact No. 8.
That the parents of the minor child have continuously sought reconcilation [sic] with and the return of the child and they have not abused or neglected the child.
Finding of fact No. 9.
The legislature finds that within any group of people there exists a need for guidelines for acceptable behavior and that, presumptively, experience and maturity are better qualifications for establishing guidelines beneficial to and protective of individual members and the group as a whole than are youth and inexperience. The legislature further finds that it is the right and responsibility of adults to establish laws for the benefit and protection of the society; and that, in the same manner, the right and responsibility for establishing reasonable guidelines for the family unit belongs to the adults within that unit. The legislature reaffirms its position stated in
RCW 13.34.020 that the family unit is the fundamental resource of American life which should be nurtured and that it should remain intact in the absence of compelling evidence to the contrary.
The majority characterizes the alternative residential placement as a minor infringement by the State upon parental rights. I disagree. The child may be removed from the parents’ home for an initial period of 6 months. After review, the placement may be extended for additional periods of 6 months each. The balance of a child‘s minority might well be spent in alternative placement solely because the child refuses to try to cope with reasonable parental controls. Deprivation of the physical presence of the child and therefore deprivation of the in-home opportunity to guide and influence the child during these critical years, is a serious intrusion upon the parents’ fundamental right to raise and nurture their offspring.
I would hold that the statute, on its face and as applied in this case, violates the the due process rights of the parents. On its face, the statute permits a serious infringement of a fundamental and scrupulously guarded constitutional
ROSELLINI and HICKS, JJ., concur with BRACHTENBACH, J.