*1 23, 1971 Argued April June reversed McMaster, Anna Christine Matter a Minor Child Respondent, v. OREGON, STATE OF Petitioners. McMASTER et ux, 486P2d 567 *2 Oreen, Douglas 8. Portland, argued the cause for him on With the briefs was petitioners. Legal Aid Portland. Service, Preston,
Elizabeth District Deputy Attorney, Port- for the cause argued respondent. With her land, on George Yan Hoomissen, the brief District At- Portland. torney, Presiding Justice,
Before McAllister, Bryson, Howell Denecke, Holman, Tongue, Justices.
DENEGUE, J. proceeding terminate
This four-year-old (2) in a child under ORS (a), provides parents for such termination if which are found to be “unfit reason conduct or condition seriously detrimental to the child.” The have petitioned for review a decision the Court of Appeals terminating affirmed an order which their parental rights Oregon the child authorized the place State Public the child Welfare Commission adoption parents. App without consent of the 4 Or (1970). P2d 112, 476 questions presented
Two are for decision: *3 (1) overruling Whether the trial court erred in petition parental rights a demurrer to the to terminate upon ground (2) (a) the that ORS 419.523 is unconsti- process as a tutional violation of due of law under the Fifth and Fourteenth Amendments of the Con- § stitution of the United States and Art I, 10, of the Oregon “in Constitution said statute is uncon- stitutionally vague,” broad, uncertain
(2) the Whether evidence was “sufficient to hold that defendants were ‘unfit reason of conduct or seriously conditions detrimental to the child’.” importance Because the of of the first of these questions, granted petition the we for review. facts of this case illustrate one of the problems of
serious social our times. This child, four years age wed- trial, time was born out of of at the of subsequently parents were married. When lock. The age taken her mother and of she was from two months custody. placed emergency рlaced was with in She parents, was where she has remained. She foster juvenile jurisdiction court. found to be within parental petition termination of for juvenile pursuant order court. filed determining the constitutional issue a review procedure in a case such as of the entire proper perspective. having helpful for be terminated In order 1. juris- child must within 419.523 under OES juvenile court. Jurisdiction is fixed diction provides: (1), which OES original juris- court has exclusive “The involving person any a case who is under diction age years and: “(a) has committed an act Who which is a vio- by an if done adult would lation, which constitute or law or ordinance of violation, of United county city; or or state, or a States beyond parents,
“(b) his is control of Who having person custody; his guardian or other or “(c) behavior, condition or circum- Whose endanger his own welfare are or stances the or others; welfare of dependent support “(d) for care on WTio child-caring agency private public or needs planning the court his best services interests; or any person “(e) his other Either *4 custody
having provide by have abandoned him, failed to his support required or education with him cruelty depravity subjected him to or or law, guidance provide the care, faded to Mm with necessary protection physical, or for his mental well-being; or emotional
“(f) away has run from his home.” Who jurisdiction a child is within the of the 2. Once juvenile may the court take the child from the court, custody parents legal place custody of the persons or an the child with other institution. OES change custody can be for the re- 419.507. Such minority. mainder of child’s provides:
OES parental rights “(1) parents The of the of a jurisdiction within the child court provided (1) as in subsection of OES 419.476 provided terminated as be this section and OES rights parent may 419.525. nated of one be termi- affecting without of the other parent. “(2) parent parents may or provided (1) as terminated subsection of this parent parents: if the court
section finds that the or “(a) Are unfit reason of conduct or condi- seriously child; tion detrimental to the or “(b) wilfully neglected Have or deserted with- just provide proper and sufficient cause out year. care and maintenance for the child for one determining parent wilfully whether the has de- neglected just serted without and sufficient cause provide proper care and maintenance for may disregard the court incidental child, visita- communications and tions, contributions.” procedure This is not a criminal such as State Hodges, (1969). Admittedly, P2d 491 254 Or parents a serious interest of the is in issue which can important be assumed to as their jeopardy proceeding. which is in in a criminal freedom, *5 296 regulatory proceeding in which
It
is
a
also not
against
pitted
an individual.
statute
the state is
doing
requires
of an
is
one which forbids or
the
not
Connally
Co.,
385, 391,
269 US
act.
v. General Const.
example
(1926). An
what
3, parents. parties are the state, Three involved: the the child. The welfare the child is the primary consideration of the Code of 1959. Juvenile welfare of the child is the 419.474. That the ORS primary purpose lead the does not conclusion parents аre without constitutional the protections. 444 P2d Jamison, 251 Or State (1968). emphasis upon the 444 P2d This welfare imply, that, does unlike criminal of the child only one in- in which the interests of set of statutes constitutional issue involved, is the must be dividuals the interests of the child and examined with both the might only parents. if unconstitutional the What parents’ is if were involved constitutional legitimate pro- adopts necessary means to statute opinion In our it interests. does. tect the child’s significant testing the statute we are is It juvenile not the code and criminal code is in juvenile portion laws. of our While other some by the code directs courts, is administered code juvenile manners act in some similar to courts agency. Much of the code and administrative social juvenile budget much of the is court’s devoted to the proper disposition of child after child comes jurisdiction. adequately perform within the court’s To legislature reasonably function deemed it juvenile give greater flexibility desirable to court thought functioning than desirable for a court in its criminal role. flexibility granted court
legislature epitomized general charge made *6 (2): ORS provisions
“The of ORS 419.472to 419.587shall liberally be construed to the end that the child com- jurisdiction ing may within the of the court receive guidance preferably care, control, and in his own as will home, lead to the child’s welfare and public, the best interests child is removed and that when from control of his him court secure for care that best meets the child.” needs of the by grant flexibility are
We not shocked agencies dealing administrative with our material af- professions. example, fairs such as businesses and For a common carrier can receive or be denied a certificate operate, depending upon whether or not the Public Utility proposed finds the Commissioner service “is or by required present public will or future con- necessity.” (4)(c). venience and ORS 767.135 Admis- upon having the bar conditioned sion to “the ability” learning requisite as shown an exam- (3). why is no There reason ination. ORS 9.220 relegated the state should welfare of the children of rigid system rules standards. to a Supreme Court States has held United juvenile procedures adjudicatory at states’ in the ignore procedural stage, cannot some of the states 398 process requirements. has Court, however,
due That require process due the substantive held that all juvenile applicable law ments of the criminal were process dispositional proceedings, particularly the contrary. juvenile proceedings. It has indicated to the Winship, 25 L Ed2d 358, 1068, 397 90 S Ct Re US that the Due Process 368 the Court held Clause required could be found to be “de that a convincing beyond linquent” only evidеnce a rea pointed out that Court, however, doubt. sonable opportunity during post- “the decision, under its hearing adjudicatory dispositional for a wide- history ranging social his view of child’s unimpaired.” will remain 397 individualized treatment 366. US at involving criminal an in cases statutes
Even important is whether the statute is as consideration accomplish legislature explicit can draw and purpose Petrillo, it States v. intends. United US (1946); 1877, 91 L Ed Harv Ct 1, 67 S (1948). Mr. Justice dis Frankfurter, L 82-83 Rev senting York, New 507, 524-525, in Winters v. US *7 L Ed commented: 840 S Ct * * is is But whether notice or not ‘fair’ subject upon
depends
matter to which it re-
the abstract stuff
or
mathematics,
lates. Unlike
quantitatively ascertainable elements of much
greatly
legislation is
concerned
science,
natural
complexities
psychological
multiform
with the
Accordingly,
conduct.
the de-
and social
individual
legislation,
responses,
upon
and its
are var-
mands
* * *”
and multiform.
iablе
accomplish
primary pur-
opinion,
its
to
In our
legis-
caring
the child,
welfare of
pose
for the
difficulty being more
extreme
would have
lature
legislature
specific.
specify certain conduct
The
could
part
parents
upon
would cause them
of the
which
parental rights;
deprived
that is
to
their
he
legislature
or of this court in
not the intent
legislature
interpreting
and this
this statute.
parental rights
any
court
not desire to sever
for
do
seriously
conduct
unless such conduct
example, imprisonment
affects
child’s welfare. For
“seriously
not held conduct
detrimental
Grady,
(1962);
v.
child,” in State
231 Or
of the child’s harmed con- grounds severing parental rights duct were as the specifying Missouri does in statute “health, or morals, well-being.” Missouri Revised Statutes 211.441. This anything, Oregon does not add however. Because the specify, statute does not the inference is that it is any major aspect conduct detrimental of the child. undoubtedly legislature what This intended. That we are not concerned with the criminal inapplicable statute also makes one of the bases for Hodges, (254 supra 27), State Or at that is, “the creating penal terms of a statute an offense must sufficiently explicit subject to inform those who are part their to it what conduct on will render them liable penalties.” hope to its would We that in the case of any parents, McMasters, there is no need for explicit “spell poorly they an statute to out” how can risking their child before loss treat of their rights.
If some notice of conduct which will cause a *8 parental required statute, in a noneriminal
result is rights gives adequate kind notice of the statute will and the result which occur. conduct involved to the not child, is of kind detrimental cоnduct just any It detrimental conduct but beneficial. is not policy seriously no to be detrimental conduct. We see by attempting elaborate on what conduct furthered ordinary seriously what not. The detrimental and is is message” “get parent from statute should is it now worded. Hodges, supra basis for v. 6. other State
5, 21), “adjudication”; (254 a statute must is labeled Or jury enough that a court or does not have certain so to act or withhold action. The uncontrolled discretion history parental statute reveals that juvenile under court does not have unbridled discretion Appeals have As this court and Court law. juvenile court statute, under that does held, to terminate or not ter- have uncontrolled discretion rights. Only parents’ parental when the con- minate seriously parental detrimental to child can duct Grady, stated, terminated. As State v. imprisonment supra (231 65), we held that on a Or felony charge felony mother’s commitment of a and the causing probation her to be revoked later acts and of support finding sufficient to trial court’s was not seriously conduct and condition were detri- that such the child. mental to Easley (Hull), 228 Or State “possibly given by untrue answers
P2d 293 testimony” [mother] in her was an insuf- defendant support ground court’s termi- ficient rights upon ground nation of seriously detrimental to the child. conduct
-301 *9 [the “Even if it were true that Stanford Cutts wilfully father] upon worked a fraud the which court, has not been we such demonstrated, do not believe ground collateral to constitute misconduct is sufficient pro- depravity required the to invoke the kind of (229 supra Cutts, v. 419.523.” Cutts visions of OES 43). Or at App 1 Or Blum, in State hand, the other
On Appeals found Court the 463 P2d seriously to detrimental parent’s was the condition termination affirmed the the child and the that rights. evidence The uncontradicted reсurring that illness and mental mother had a to care prognosis be able never would was that she condition mental mother’s for her child and that the accompanying incapability mental con- and the seriously to detrimental dition made her condition the child. opinion that the are of the For these reasons we
7. constitutionally vague. statute opinion, that 8. are further of We juvenile support court’s find- evidence does not ing seriously parents has been that the conduct of the meaning detrimental the child within the of OES (2) (a). in The child was born June 1965. About two months later the child was taken from her mother and placed emergency custody. done under This was pursuant stating an warrant issued affidavit that (WPD) Protective Division Women’s received receiving proper complaint the child was not care that allegations. subsequently child was other couple Aрril placed and in 1966 made with a foster parents, foster court. The who ward of the April have had child since some time before adopt desire to the child and Mrs. McMaster refuses to consent. against
The essence of case the MeMasters following testimony by representa- is stated in the County Department: tive of the Multnomah Welfare original [emergency custody] “The removal would have been based on conditions the home neglect subsequently and the of the but child; primary problems have been mutual instability parents, probably paramount, separations numerous and lack of concern con- sistency anyone they might have for else that might ment. At times there has been living family’s manage- home, *10 money. adequate At money, times there has been from assistance manage grant, of sufficient nature to and it has managed frequent properly; not been ing and mov- also they places during many because lived in have years.” past four testimony upon This was elaborated evidence frequently quarreled, parents that the McMaster never job long, held more than a month and seldom that they usually frequently were and welfare, on McMaster leaving left with home the welfare Mrs. Mc- check, They particularly Master were unable, destitute. Mr. to handle financial affairs. The case- McMaster, their parents worker testified foster were the that the com- plete mutually sup- consistent and antithesis, stable,— portive. testimony
There was which was uncontradicted parents that taken if the child were now from the foster parents placed with her natural would have it upon serious detrimental effect the child. This same testimony developed, primarily that this is parents child lived with because the has foster years. detri- her now almost six almost all of necessarily because mental effeet the child is not on parents, except that natural the conduct of her may being from the better all-around child resent taken parents provided as com- her foster environment provided by pared natural would be her to that which parents. par-
9. a decision in favor of the natural However, proceeding ents in this does not result termination being custody her the child transferred to the parents. only deciding natural are that the Mc- We parental rights Master’s cannot be terminated at this time. The court must determine whether custody parents. remain with If should the foster it kept we does, realize that the foster anxiety knowing might a state of never when the child custody. taken from their we are Nevertheless, opinion parents’ rights that the natural cannоt now be terminated. opinion
We are of the the state of the family duplicated McMaster in hundred of thousands transiency incapacity, of American families, — poverty instability. undoubtedly The witness was living correct when he stated that in the McMaster s’ household would not “allow this child to maximize her potential.” legislature However, we do not believe the contemplated parental rights could be terminated *11 parents because the natural are unable to furnish sur- roundings grow up which would enable the child to as legis- we would desire all children to do. When the phrase, “seriously used the lature detrimental to the they had in we believe that mind a child,” more serious by and uncommon detriment than that caused the con- parents such as duct of the McMasters. The best in- paramount; terests of the child are however, courts cannot sever the MeMasters’ mаny being when thousands of children are raised basically under the same circumstances as this child. legislature substantially had in mind conduct de- parting unfortunately from the norm and for our children the Mciviaster’s conduct is not such a de- parture.
Reversed. concurring. TONGUE, J., I majority opinion concur in the result of the that of the should not be severed in agree, child involved in this case. I do not how- reasoning by majority par- ever, with the and, holding (a) (2) in the ticular, that ORS 419.523 is a valid and constitutional statute. agree
I that the facts of this as case, reviewed by majority, illustrate one of the serious social problems particularly of our times. this is Indeed, tragic calling case and one for the wisdom of a century Perhaps twentieth Solomon. that ancient de- persuade yield cree would this mother to to the best regardless interests of her child, constitutional con- procеss.” siderations of “due Otherwise, emotional and mental health of this child well be maimed surely proverbial as if sword. profess possess do not courts, however, power. such either such wisdom or Nevertheless, involving deciding problems, cases the courts must framework and act within the limitations of the con- this state stitution and laws of and nation. respect majority, to the all due
With imposed my upon limitations it is view constitutions United state States and the
305 by previously Oregon, the Su- construed State by also this preme and States United Court by provisions of OES are not satisfied court, holding require (a) statute (2) that this and vagueness constitutionally and in- invalid definiteness. subject, part as a of what understand this
To necessary “family it is first to con- law,” called is now history development in and this state. sider its subject Oregon on was first stated law of 1888 the (involving validity Furgeson 17 204 Jones, Or proceeding), p adoption at 217: of an permanent transfer of the natural “The against policy parent was of the common of a right adoption, as conferred this to its law. repugnant unknown to it, was statute, s * * right adoption, principles. ing then be special derogation power law, is a of common rule is, and the that such statute, conferred * * * strictly must construed. This statutes interpre being receive a the statute must strict so, requirement every essential to authorize tation, special power exercise conferred court to strictly complied with.” must be years Nearly still in accord with this later, 69 P2d Schein, in In re Or court view, judgment declaring jury verdict reversed taking “dependent child” and be a her Helen Schein holding (at pp 667-68): custody father, her from the legislature of the was the intention never “It parent parent away from its because the a child take provide financiаlly a home unable to with all appurtenances appliances and modern the would be * * * ordinary city home. in the found parent legislature intended that a never “The discipline in the proper home and enforces who gives proper training, his child the moral furnishes clothing sufficient food, and shelter for should it, deprived custody and control of such child just because someone in better circumstances finan- cially give society would be able to that child what *13 might greater advantages consider than it would * * receive in its humble home. Twenty-four years later, Smith, Simons v. 366 P2d Or this court also re- granting petition adopt versed a decree children parents terminating without the consent of the and parental rights, holding (at 278): p their general proposition, protects “As a the law rights parents.” natural 280): (at p and later terminating parental
“The reason fоr ought ent. In their most parent’s par- to be related to the conduct as a palatable discretionary form, require judge statutes the trial to consider ‘the best interests of the child.’ Courts which base their decisions on ‘the best interests of the child’ use that juris- term as a term of art borrowed from divorce prudence. cases collected in Cf. Annotation, unacceptable ALR2d This rationale is 824. several reasons.” primary recognizing reason for the dis- concept
tinction between the of “the best interests of applied litigation ap- as child,” divorce and plied proceedings parental rights to terminate all by placing adoption in a child it for without consent parents, (at p 281): was stated “The best-interests-of-the-ehild standard has no presented pro- to the issues similar relation in ceeding dispense adoption. with consent for an adoption, every an right a court is asked to terminate parent. Adoption and interest of the natural goes beyond question far the child-centered of cus- tody during minority. adop- the denial of an Indeed, necessary petition bearing tion has no on the physical custody of the child. The child’s environ- protected ways, ment can be in a number of under petition laws code. The divorce adopt right, concerns a different kind of subjective right parent tie child, between parent with his of a to be identified child for religious may reasons. A emotional, or other father hope ticipate his a mother his son will bear an- name; daughter property.
that her will inherit her ordinarily there is in- hand, the other no vital On requires the terest of the child which termination * * rights. parents’ of his (at p 285): further and,
“Because of the differences between the issues involved in divorсe cases petitions those involved in adoption, we hold that the reasons for terminating objective must be related to an required all standard rather competing than to the child-oriented evaluation of *14 employed in divorce home environments suits.” added) (Emphasis (at p
Finally, court said in Simons v. Smith 287): general, dispense with
“In statutes which the parent require pleading a the natural and consent of degree may vary proof of which fault, of moral from statute to statute. state to state and from statutory Running through schemes is the such parent alienated to be that idea forever from either an intent have demonstrated must his child depravity such moral as to the child or abandon (Em- equivalent abandonment.” an amount to of added) phasis further went no than to decision, That given proper notice must be of that hold pass upon did court proсeedings. Thus, validity 419.523. It is nevertheless to be of OES the view this court in that case was of that noted that applied rationale, best interest of the child” “the custody appropriate pro- proceedings, in was not a only ceeding parental and that to terminate “objective upon an extreme misconduct based justify of such would a termination standard,” under OES 419.523. Grady, much the same effect,
To
State
(1962), this court
an
But see (1964), criticizing L at 208 decision. Eev Or subject statutes on this un- Meanwhile the had “Eeport dergone as a result of the drastic revision Legislature Interim on Committee Judicial Ad- including in as established Part ministration,” “Family Law.” recommendations One II, on report that: establishing defining powers The laws “1. prescribing pro- court and its *15 completely rewritten cedures should remedy following deficiencies: “(a) and outmoded definitions. Uncertain “(b) Vagueness important pro- or silence in * * cedural matters report support In text of the of that recom- (at pp 22-3) mendation was stated that: “Sections 26 and with 27 deal termination of the * * * rights parents. of the child’s may
“The dereliction or be actions lack ac- which tions work harm serious to the child. See paragraph (2). (a) of section dereliction may this simply the be respect, abandonment of the child. In proposed important bill makes * * * changes present from law. ÍÍ* [*] [*] provisions [relating abandonment] “These perhaps exacting present
are more than law. judgment, present the committee’s represents altogether law great emphasis too an on parent emphasis of the and too little on parent of the duties and the interests the child. A child still be treated a chattel for some purposes, but this should not be one of them.” upon report, Based a new Juvenile Code By adopted expressly it is 1959. OBS 419.474 recognized primary the welfare of child is the purpose pro- of that statute and OBS 419.474it is liberally vided statute shall be construed. Also pro- included the statute is OBS which now 419.523, vides as follows: grounds. parental rights;
“Termination “(2) pаrent parents may or provided (1) or terminated as in subsection of this parent parents.: if the court finds that the section “ (a) Are reason conduct or condition unfit seriously detrimental to the child; wilfully neglected
“(b) Have deserted or with- just provide proper out and sufficient cause care
310 year. one In de-
and maintenance for the child for wilfully termining parent deserted whether the has just neglected cause to and sufficient or without provide proper the child, care maintenance for disregard visitations, incidental the court (Emphasis and contributions.” communications added)
Upon reading noted that this section it will be relating although provisions (2)(b), of subsection specific more than have made abandonment, to been statutory provisions, ‹ provisions previous of sub previous specific (2) (a) less were made than section provisions. › statutory this subseсtion of the Thus, purpose hardly with of in accord the stated statute is remedy to “uncertain” Revision the Juvenile Code “important “vagueness” in eliminate and to definitions procedural matters.” fi years Winters, in State v. later, Seven Or ‹ ORS relating (b), abandonment, to was later 419.523 by Oregon 152, (a) 1963, 1, ch was amended Laws but subsection § at that time. not amended › Prior rights permanently parental to 1959 could be termi conduct to nated ORS 419.526 for detrimental the child under abandonment) only upon finding (other a of “child than de pendency,” in ORS 419.102. which was defined fi In “Oregon’s entitled, Code,” article New Juvenile an pp 312, Ralph Holman, (1960), at 311 to the Hon. M. Or L Rev 305 problems court, of of of now a this discussed some member parental adoption terminating rights consent after without hardship personal process of on service taxpayer large of number abandoned children on specific welfare rolls and in foster homes. Without discussion provisions (a), he concluded his discussion on ORS general subject by saying: feeling “It committee a child would integrated opportunity completely an to be
never have
family
long
any legal
privileges,
relationship,
as
another
responsibilities
respect
remained with
to his real
whatsoever
Thus,
well-being
parents.
the child’s emotional
his re-
society
require
only
relationship
truth
sultant
rights.”
permanent
of all
severance of custodial
but
However,
Jamison,
State
251 Or
*17
P2d
“While the case at bar is not a criminal matter, the consequences the denial of counsel are as serious they prosecutions.” as are in most criminal Again, no contention was made that ORS 419.523 constitutionally vagueness invalid for or in- definiteness. question recently
That
presented
was, however,
although
to this court for consideration,
under another
Hodges,
21,
State v.
statute,
Or
viction OES provided delinquency minor). That statute a imprisonment fine of: tbe or *“* * any any person does which mani- who act festly any child to de- tends to cause become linquent child.” “delinquent (c), child” was
Under OES including child condi- behavior, “whose defined as endanger such as to his own tion circumstances are ** others; the welfare of welfare or validity determining the constitutional OES adopted approved court the follow 167.210 this ing Supreme of the stated Court United test, as Pennsylvania, 382 US States Giaccio (1966): L ed 2d 518, 15 86 CtS that a to meet is established law fails “It requirements Due Process Clause if it is so public vague that it leaves the un- and standardless prohibits the conduct it or leaves certain judges jurors any without decide, free prohibited legally what is standards, fixed whаt particular case.” is not in each (as p 27), a rule on for such stated The reason *18 that: due-process put- its function of to “In addition
ting persons law’s demands, on notice of the reason- purpose: adjudica- certainty a second serves able judge jury permits and law that to A tion. punishment punish in their withhold uncontrolled or uncertainty for as much its is defective discretion notify adjudication potential to as its failure for of scope reach.” its defendants of Applying 167.210, this court rules to OES these vague- of because its unconstitutional held that it was 28): (at saying p ness, only danger creates serious a statute
“Such of the administration of the criminal inequality it runs law, contrary hut to the squarely purpose of Constitution, Art which Oregon I, pro- § hibits the of delegation legislative power. very
“The looseness of the of ORS language encourages 167.210 to utilize the prosecution statute rid the indi- selectively community of than viduals deemed less desirable subjectively other offenders. It of the language looseness which offends due and makes the catch-all process an clause of statute instrument of potential abuse.” test
On of same to the application pro visions I am of the (2) of OES (a), opinion I that result must agree same follow. with the it is duty Court of that our if attempt, Appeals construe possible, the statute such a manner that its can be sustained. constitutionality my opinion, is not reasonably it to so possible construe this statute. fl fl It was also held Appeals, App 112, the Court of 4 Or (a) (2) 476 P2d 814 that where ORS 419.523 is con pari (2) strued materia with ORS 419.474 (l)(e), and 419.476 requisite specificity.” agree. “we find the I do not ORS 419.474(2) provides no than more that these statutes “shall be
liberally may construed” to the end that a child receive such care as its will lead to welfare and the court secure care that 419.476(1)(e) jurisdiction needs. best meets its ORS confers of provide the court over child whose have “failed to him guidance necessary care, protection physical, with the for his being.” mental or emotional well Furthermore, well-organized there is a distinction between proceedings temporary custody juveniles for of reason parental neglect proceedings permanent termination “Legislative rights. Recognition See Note: and Judicial Custody the Distinction Between and Termination Orders in Child Custody Family (1967). Cases,” Indeed, 7 Journal of Law 66 419.523(2) (a) state in this case concedes violation ORS (b) finding jurisdiction must established “in addition to a under ORS 419.476.” recognized by See also the distinction this court in Simons v. supra, pp 280-81, Smith, opinion. quoted in this
314 by (a) provided (2) 419.523 standard ORS
The sole determining application in of whether permanently pаrents in their own children determining par- that whether such terminated is by condition ser- ents are “unfit reason of conduct or purported iously detrimental to the child.” Such pro- requirements of to meet the due “standard” fails public as “leaves uncertain to cess both because it prohibits” it “leaves it and also because conduct * * * any legally judges fixed free without decide, prohibited in each is and what is not standards, what particular case.” majority agree with statement that
I do not (to parents) “gives adequate notice the statute ordinary that “the Mnd of conduct involved” and parent ‘get message’ from the statute as it should QRS language (2) (a) is worded.” The now notify parents vague completely to is as to fail so agree prohibits. I with do not Also, the conduct it concept warning the state that “the contention of statutory implicit appellant’s demand for definite agree inappropriate.” language IWhile that is require “impossible standards,” does not constitution “convey(s) language sufficiently a statute must warning proscribed as to the conduct when definite understanding practices,” common as measured Petrillo, 332 1, 7-8, States v. US held United S quoted ap L ed with 1538, Ct proval by state in its brief this case. agree holding by with the also do not
I
provides
majority
the statute
a sufficient
stand-
juvenile
exercising
courts from
as to restrain
ard so
in such cases.
“unbridled discretion”
The answer
an
question
majority
this most serious
by any authority,
support
without
state,
*20
courts do not have “unbridled discretion” under this
“only
parent’s
statute because it is
when the
conduct is
seriously
parental
detrimental to the child can
away.”
responsible
be taken
To
this is not a
me,
question,
begs
ques-
answer to a serious
but
the entire
tion.
majority
Grady,
cites State v.
Indeed, me to it cannot be contended judge that a statute under a which is to decide for by parent “seriously himself what conduct is detri- provides applica- mental” to a child a “standard” for making prevents judge tion in decision and from acting upon representa- recommendations welfare exercising tives and from an “uncontrolled discretion, benevolently however motivated.” Ilodges languаge the “looseness” of the (OES 167.210) in the statute involved that ease encourage prosecution held to to rid the com- munity subjectively of individuals “deemed less de- resulting offenders,” sirable than other a “catch-all potential clause” as an “instrument of abuse.” So also language (2) (a) of OES “looseness” representatives encourage welfare could institute proceedings deemed terminate the subjectively parents and thus less “fit” than other as an “instrument “catch-all,” in a similar also result potential abuse.” distinguish Hodges majority on would ground statute was involved in that that a criminal is a criminal 419.523 not case, statute, while ORS regulatory under which the state is statute also majority Thus, “pitted” against an individual. statute is to be administered contends that this solely interests” of children and “best courts “flexibility” similar involved the con- awith agency, rather than the an administrative duct of *21 criminal statute. of a enforcement though opinion, my In even is rights parents proceeding, are of never- a criminal parents protection. If constitutional entitled to theless they protection before can be de- such are entitled to surely parents property, prived are entitled to of their rights parents protection their can be before put up adoption for their children over terminated parents. objection their of recog- supra, Jamison, this court v. State although proceeding under 419.523, nized a ORS subject is to constitutional matter,” criminal “not a requirements process due for the reason that “the of rights parental permanent of is termination one of * * actions the state can take drastic the most in Morrison v. State Board Edu- And even of by (relied upon case), supra the state in this cation, (at Supreme p 387): Court said the California criminal statutes must as well as be suf- “Civil ficiently give warning a fair as to the con- clear they provide prohibited, must a standard duct
317
against
uniformly
guide
or
which conduct can be
agencies.” (cid:176)
judged by courts and administrative
It
that neither
remembered, however,
must be
deciding
validity
away
from
current trend
rights
proceedings
by
em
termination of
parents
phasis upon
of the
toward
greater emphasis upon
child,”
“the best interests of the
proposition
question
policy
that this
one
nor
legislature,
to be decided
rather than the courts,
are issues
be decided
this case. The
in this
issue
case
whether the
is not
are more
important
than
child,
those
but whether the
sufficiently
statute involved
this case is
definite to
process. –
satisfy
requirements
the constitutional
due
majority
It
is also contended
it
accomplish
primary purpose
would bе difficult to
(cid:176) Among
holding
opinions
other cases
other
statutes
to be
vagueness, however,
Gelling Texas,
960,
invalid for
see
v.
343 US
1002,
holding
(1952),
S Ct
96 L
72
authorizing
deemed to
ed 1359
invalid an ordinance
showing
picture
denial of
license for
of motion
prejudicial
“of
such character as to
to the best
people
city”;
Vincent,
interests of the
of said
Moore v.
174 Okla
339,
(1935),
Spriggs Robinson,
best the of a served statute which adequate society adequate guidelines upon notice to and which way the court can make its decision. Such a statute in no purpose proceeding defeats the ultimate decide of a termination —to * * * is in what the child’s best interests.” protect of welfare children, of to the statute, specific” provisions than the of this statute. be “more contrary, legislatures is for to make the trend On the regarding parental strict “unfitness” more the rules and definite. † by in this And it is conceded the state legislature option setting “the had the forth case that guide and conduct which could a of conditions list procedure specifically and render con courts veniently that it chose instead to mechanical,” but “general, pro adopt terms,” inclusive in an effort “to protect parents.” ‡ to child and tect the my it is reasons, all these view For constitutionally (2) (a) is for invalid OE.S vagueness indefiniteness, with the result that overruling in erred the demurrer to trial court petition ground. on that disagree holding by not with the further
I do majority the effect that the evidence of mis- to sufficiently by parents in this ease was not conduct proper provide as basis for termination serious so † See Family (1967). Note, supra, 7 Journal of Law at 77 Simpson, The Unfit Parent: Conditions Under also Which See May Adopted Parent, the Consent of His Without 39 U he Child of 347, 355, 362-69. L J Detroit ‡ It Oregon also note even under Code is of interest supra, 33-619, Schein, In re this court considered § “dependent child,” together grounds with the of a definition declaring “dependent,” so as to a child terminate for parental following child, stated in the were terms: such age eighteen years, sex under who “Persons of either any destitute, homelеss, abandoned; or or are reason are for public support; upon dependent or have for * * * guardianship; or home reason whose or care drunkenness, depravity part neglect, cruelty, on guardians, persons [they] parents, may whose it or other care * * * place children; whose an unfit * * * proper parental discipline to exercise fail neglected (Em are classed as children.” over them control added) phasis
-319 rights by adoption permitting of their n childover their objection. me, To the fact majority that the of this court consider themselves to position question be in a that better to decide than an judge, years experience able trial after in such observing parents matters and after both and all reject findings of the other witnesses—and to his purely judgment, application as a matter of without any legal only criteria or standards —serves emphasize further demonstrate and the unconstitu- vagueness (2) (a) tional of ORS 419.523 and the ab- any proper application by sence of standards making courts in such a decision. judge
The trial found that “it would be tragedy for Anna to return her” to the MeMasters’ where she had never and move home, lived, her from parents, given a home foster who had her excellent adopt Accordingly, care and desired to her. he held that it was her best interests of her parents natural should terminated. majority
I cannot understand how of this making court can reverse decision without subjective purely judgment, guid- without control or any statutory my ance standards. view, destroy decision whether or not constitutionally cannot decided in such a manner. disagree all of these reasons I with
For the basis majority opinion, for the but concur the result. opinion. concurs in J.,
McAllister,