Defendant was charged with three counts of child neglect. ORS 163.545. The trial court granted her demurrer and dismissed the case on the ground that the child neglect statute is unconstitutionally vague. The state appeals. We reverse and remand for trial.
ORS 163.545 reads as follows:
"(1) A person having custody or control of a child under ten years of age commits the crime of child neglect, if, with criminal negligence, he leaves the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child.”
Defendant’s demurrer specifically made the objection that the statutory language "* * * in or at any place for such a period of time as may be likely to endanger the health or welfare of such child” fails to inform a potential defendant of the conduct it proscribes and fails to provide a sufficient standard for the judge and jury in determination of guilt. On appeal, defendant’s argument centers principally on the "with criminal negligence” portion of the statute, and there is no specific challenge to any other statutory language. In construing the statute we consider it as a whole, with a view to effecting the overall policy it intends to promote, rather than dissecting individual phrases.
Wimer v. Miller,
"* * * the terms of a penal statute creating an offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. [Citations omitted.] * * * A law that permits the judge and jury to punish or withhold punishment in their uncontrolled discretion is defective as much for its uncertainty of adjudication as for its failure to notify potential defendants of its scope and reach.” 254 Chat 27.
See also, City of Portland v. Arndorfer,
At the outset we note the familiar rule that in construing a statute, we have a duty to construe it to save its constitutionality, if at all possible.
State v. Crane,
We are not, however, left entirely without guidance in this area. While what acts are likely to endanger the health or welfare of a child are not spelled out in the
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commentary to the child neglect statute, this is not the first time that Oregon courts have considered a constitutional challenge to language of this type. In
State v. McMaster,
"Even in cases involving criminal statutes an important consideration is whether the statute is as explicit as the legislature can draw and accomplish the purpose it intends. United States v. Petrillo, 332 U S 1,67 S Ct 1538 ,91 L Ed 1877 , 1882 (1946); 62 Harv. L Rev 76, 82-83 (1948). Mr. Justice Frankfurter, dissenting in Winters v. New York, 333 U S 507, 524-525,68 S Ct 665 , 674,92 L Ed 840 (1948), commented:
" '* * * But whether notice is or is not 'fair’ depends upon the subject matter to which it relates. Unlike the abstract stuff of mathematics, or the quantitatively ascertainable elements of much of natural science, legislation is greatly concerned with the multiform psychological complexities of individual and social conduct. Accordingly, the demands upon legislation, and its responses, are variable and multiform.’ ”259 Or at 298 .
In
McMaster,
the court went on to say that "in order to accomplish its primary purpose of caring for the welfare of the child, the legislature would have extreme difficulty being more specific.”
Other courts have found similar language adequate to inform those subject to it of the kind of behavior which will render them liable to criminal sanctions.
2
See
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People v. Ewing,
72 Cal App 3d 714, 140 Cal Rptr 299 (1977);
People v. Harris,
239 Cal App 2d 393, 48 Cal Rptr 677 (1966);
People v. Beaugez,
232 Cal App 2d 650, 43 Cal Rptr 28 (1965) (upholding a statute punishing "whoever, having the care or custody of any child, * * * wilfully causes or permits such child to be placed in such situation that its person or health may be endangered, * * *”);
Hunter v. State,
172 Ind App 397,
*783 In order to violate ORS 163.545, one must act with criminal negligence. "Criminal negligence” is defined at ORS 161.085(10) as a situation in which
"* * * a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” 4
We conclude, on the basis of the statutory language of ORS 161.085(10) and ORS 163.545, and the interpretation of similar language by our own courts and courts of other states, that the Oregon statute forbids only that conduct by those having custody of a child under the age of ten years which, by the location and period of time for which a child is left unattended, constitutes a gross deviation from the standard of care which a reasonable person would exercise in such a situation. 5 Recognizing the impossibility of detailing in advance all of the ways in which an unattended child may be potentially harmed, we hold that ORS 163.545 provides fair notice of the conduct it forbids and proscribes only conduct which is a gross deviation from the normal standard of care.
The overall policy the legislature intended to promote is, as noted by the California court in People v. Beaugez, supra, "a salutary social one.” 43 Cal Rptr at 32. All 50 states include, in their criminal or juvenile codes or both, statutes dealing with the problem of child neglect. See *784 State v. Ballard, 341 So2d 957, 962 (Ala Crim App 1976); and see Note, Constitutional Limitations on the Scope of State Child Neglect Statutes, 79 Colum L Rev 719 (1979). 6 Most of these statutes have wording similar to that of Oregon’s law, yet of the five successful constitutional challenges, only two have been for vagueness of the face of the statute. 7
The Oregon child neglect statute, ORS 163.545, is constitutional. The demurrer was improperly sustained. The order of the trial court dismissing the complaint is reversed and the case is remanded for trial.
Reversed and remanded for trial.
Notes
The commentary states, in part, as follows:
"Section 174 is intended to complement the sections on child abandonment and criminal nonsupport by providing coverage for situations involving criminal neglect. The crucial issue here is not whether the child was deserted or left without nominal support, but whether it was left unattended under circumstances likely to endanger its health or welfare.
"The term 'custody or control of a child’ extends the reach of the section beyond the child’s parents or guardian; it includes the temporary custodian, e.g., babysitter, relative, teacher.
* ** sfc ifi
"The mens rea element of criminal negligence is defined in § 7 of the Code to mean That a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstances exist. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
* * * s{«
"The term Tmattended’ means that the child is left under circumstances in which no responsible person is present to attend to his needs. Leaving a three month old child in the care of a nine year old child might, in some cases, amount to child neglect. An alleged offense under this section must be viewed as a totality of circumstances; the age of the child, place where left, whether it was left alone or in the company of others, period of time left and, finally, whether the sum of these circumstances are [sic] such as would endanger the health or welfare of the child.” Proposed Oregon Criminal Code, 159, Commentary § 174 (1972).
McMaster,
while making a distinction between the flexibility of juvenile versus criminal proceedings, noted that in terminations of parental rights
*782
"[ajdmittedly, a serious interest of the parents is in issue which can be assumed to be as important to the parents as their freedom, which is in jeopardy in a criminal proceeding.”
The legislature need not define an offense with such exactitude that a person could determine in advance whether specific conduct in all possible circumstances could be found to be an offense.
State v. Williams,
"We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach,280 US 396 , 399,50 S Ct 167 ,74 L Ed 508 (1930). Impossible standards of specificity are not required. United *783 States v. Petrillo,332 US 1 ,67 S Ct 1538 ,91 L Ed 1877 (1947). ***' (Cited in Bowers v. State, 38 Md App 2,379 A2d 748 , 750 (1977) finding 'cruel and inhuman treatment’ language in Maryland criminal child abuse statute not vague.)”
Cf. State v. Winters, 346 So2d 991 (Fla 1977), holding unconstitutional a child neglect statute imposing criminal penalties for acts of simple negligence.
This is in keeping with the facts of the two cases involving ORS 163.545 which have reached this court previously.
See State v. McLaughlin,
For cases upholding the constitutionality of various termination of parental rights statutes against challenges for vagueness,
see Matter of J.F.C.,
In addition to
State v. Winters, supra,
at n. 4, we have located only four other cases upholding a challenge to the constitutionality of a child neglect statute:
Roe v. Conn,
The Alabama termination of parental rights statute struck down in
Roe
allowed removal of a child under 16 who "has no proper parental care or guardianship or whose home, by reason of neglect, cruelty, or depravity, on the part of his parent or parents, guardians or other person in whose care he may be, is an unfit or improper place for such child.” Ala Code, tit. 13, § 350(2) (1958). The court found "unfit or improper” not to "be terms of common meaning.”