Doe v. Delaware – Oral Argument – January 12, 1981

Media for Doe v. Delaware

Audio Transcription for Opinion Announcement – March 09, 1981 in Doe v. Delaware

del

Warren E. Burger:

We will hear arguments first this morning in Doe vs. Delaware, No. 79-5932.

Mr. Myers, you may proceed whenever you are ready.

Gary A. Myers:

Mr. Chief Justice, and may it please the Court:

This is an appeal by two parents, John Doe and Jane Roe, from a final decision of the Delaware Supreme Court.

By this appeal they seek to overturn lower court orders which permanently and irrevocably terminated all of their relationships with their five children.

Harry A. Blackmun:

Do they want the children back, Mr. Myers?

Gary A. Myers:

The parents… if this order was vacated at this time, custody would still remain within the State.

Hopefully we could meet with representatives of the State, establish visitation with these children, with the eventual goal of the mother regaining them in her custody.

Harry A. Blackmun:

Say that again.

With the essential goal of what?

Gary A. Myers:

The mother regaining them in her custody.

Harry A. Blackmun:

In her custody.

Gary A. Myers:

Yes.

Harry A. Blackmun:

So he doesn’t want them back?

Gary A. Myers:

Well, he is more than willing to allow the mother to have custody and allow him to have reasonable visitation rights so he can maintain his fatherly role with the children.

William J. Brennan, Jr.:

Well, am I correct that neither mother nor father has seen these children in several years?

Gary A. Myers:

State has resisted efforts for the–

William J. Brennan, Jr.:

No, no; but they have not seen the children in several years, have they?

Gary A. Myers:

–Since 1975.

William J. Brennan, Jr.:

They are now separated, are they not?

Gary A. Myers:

The father lives and works in Atlanta and the mother lives with her stepson and her husband, and remains in Delaware.

William J. Brennan, Jr.:

She is now married?

Gary A. Myers:

Yes.

William J. Brennan, Jr.:

But all they want, really, is access to these children, just want to know where they are, is that it?

Gary A. Myers:

No, I think they want to regain their children back into their own family, into their own family.

Warren E. Burger:

They… when you speak, “they”, they are not–

Gary A. Myers:

The mother wants to–

Warren E. Burger:

–They are not a family unit anymore, are they?

Gary A. Myers:

–Well, I think the mother had a family relationship with her children before the State intervened in this family and she is more than willing to again create those day to day attachments.

William J. Brennan, Jr.:

There are five children?

Gary A. Myers:

That’s correct.

William J. Brennan, Jr.:

And she wants all five?

And how old are the children now?

Gary A. Myers:

They range in ages from six through nine.

William J. Brennan, Jr.:

Six through nine?

Five of them?

Gary A. Myers:

Yes.

There is a… their ages are… the oldest one is nine, and the two youngest ones who are twins are six now.

William J. Brennan, Jr.:

I see.

Gary A. Myers:

The nature of the proceeding below was a termination of parental rights proceeding, or a TPR.

That proceeding is unique in Delaware.

It seeks not only just to remove children from the custody of their parents; rather it seeks to forever break the parent child relationship.

It is not a temporary removal of a child.

In the words of the Delaware statute, its sole purpose is

“to make parents and the children as if they were and have always been strangers. “

It’s in effect a death penalty for the family.

This appeal raises three questions against the TPR outlined above.

William J. Brennan, Jr.:

When it ends the relationship with the parents I gather it has the same effect as an adoption, doesn’t it?

Gary A. Myers:

Well, a TPR does not necessarily lead to an adoption.

William J. Brennan, Jr.:

No, but in terms of termination of any relationship of parent and child, doesn’t it have the same effect as an adoption?

Gary A. Myers:

As to the parent, it makes him a stranger.

It doesn’t necessarily guarantee to the child that there’s going to be a replacement.

As I said, this appeal raises three questions against the termination order below.

The first question is whether the statutory standards used to break up this family were unconstitutionally vague.

The second standard is whether the State could proceed to break up this family in a judicial proceeding using a mere preponderance of the evidence standard.

The third standard is whether the State could break up this family without demonstrating that any of the conduct alleged against these parents had caused any actual, substantial harm to the children.

Briefly stated, the facts of the case were these.

John Doe and Jane Roe were half brother and sister, and beginning in the 1970s they lived together and had five children.

The Delaware State Welfare Agency, the Division of Social Services, knew about Mr. and Mrs. Doe’s relationship since 1972, and had previously indicated to them that that relationship would not be a factor that the Division would consider about them raising their children.

However, in early 1975 workers from the Division went to the local Attorney General, the attorney that advised them.

Gary A. Myers:

He told them at that meeting that so long as there were children in the Doe home, they would not be able to prove the Does were unfit parents and would not be able to get a termination of parental rights.

At that meeting, then, it was decided that in order to remove the children from the home the parents would be charged with the criminal charge of incest.

Once they were charged with that, the Division would then proceed to obtain custody of the children and then file a termination of parental rights as to all of their children.

That plan of action by the Division was followed through.

Within a week after the meeting the Attorney General brought a criminal charge of incest against the parents.

The parents were incarcerated in default of a $1,000 bond for 19 days.

Given their absence, the Division of Social Service was in effect given temporary custody of the children.

Subsequently, the parents were convicted of the criminal charge of incest, a misdemeanor in Delaware, and permanent custody of the children was given to the Division.

What’s important to note about the incest conviction is that, as the parents testified, after the conviction of the misdemeanor they were told by the presiding judge that presided at that trial that if they underwent sterilization that would be a substantial factor in them regaining their children.

William J. Brennan, Jr.:

And did they?

Gary A. Myers:

Yes, they did.

Anxious to get their children back, and relying on that advice, they underwent sterilization.

Within a week after undergoing that sterilization the Division told them that they were going to terminate all their parental rights.

The Division–

Harry A. Blackmun:

It’s totally irrelevant.

Did the judge pay for the sterilization procedures?

Gary A. Myers:

–Yes, he did.

Harry A. Blackmun:

Has he ever been reimbursed?

Gary A. Myers:

I don’t believe so.

The record doesn’t reflect that, but to my knowledge he wasn’t.

The Division then filed the termination of parental rights proceeding.

The statute under which they based that provision was a former Delaware provision which allowed the termination if the parents were not fitted to continue to exercise parental rights.

That short phrase was the sum extent of the statutory definition of when a termination could go forward.

In its original petition the Division alleged that the not fitted conduct sufficient to trigger the statute was their half brother and half sister relationship.

It’s this conduct that the Division had known about for almost three years and had in fact told them in the past that it wasn’t going to be used against them.

William H. Rehnquist:

Well, Mr. Myers, in reading the opinion of the Delaware Supreme Court at page 199 of Atlantic, 2d, the Court says that

“under our statute there must also be a finding that the termination of parental rights is in the best interest of the child. “

indicating that parental unfitness is not by itself sufficient.

Gary A. Myers:

Well, we contend also that “best interest” is just as vague as “not fitted” language.

The triggering criteria to get to “best interest” is in effect the “not fitted” standard.

Gary A. Myers:

Unless you can go forward on “not fitted”, I don’t think that “best interest” as a matter of State law comes into play.

And both the Superior Court and the Supreme Court emphatically stated that the half brother… half sister relationship was the disqualifying, triggering criterion of “not fitted”.

William H. Rehnquist:

Well, but, it wouldn’t have been sufficient, as I read the Delaware Supreme Court opinion.

Gary A. Myers:

It’s a precondition.

If in effect the precondition has been met, then it would have to go into “best interest”.

I think this opinion points out exactly the limited scope the Delaware Supreme Court has read into the term “best interest”.

I think that the phrase itself is a comparative phrase and it requires looking at all the elements concerning the child.

How the trial court and… both… the Supreme Court construed it was that they were again merely looking not to any harm to the children that had occurred but rather to some sort of conduct of the parents in the abstract.

John Paul Stevens:

Mr. Myers, do you agree or what is your view on whether the issues are the same for the mother and the father?

Now, the reason I ask that, there’s the evidence of the offensive touching as to the father and the alcoholism… at least at some time in the past… as to the father, and one thing and another.

But now the parents are in different places and presumably it would make a difference as to which parent had the contact with the child.

Do you concede that if the order is proper as to one parent, it’s proper as to both?

Gary A. Myers:

I don’t think the order is proper as to either parent.

John Paul Stevens:

I understand that, but is it the same issue as to both?

Gary A. Myers:

Yes, I think… again, there’s no conduct on behalf of either parent, particularly the mother, but even to the father’s conduct, there’s no conduct on his part which was shown that any of that conduct caused harm to his children.

John Paul Stevens:

I understand on your harm argument, but on the best interests of the child argument, perhaps now that they’re separated there’s at least an arguable basis for drawing a distinction between the two?

Gary A. Myers:

Well, I think the best interests–

John Paul Stevens:

In fact, are their interests entirely parallel?

Are they the same?

I know you represent them both, but it seems to me if one were representing the mother separately perhaps the mother could make some arguments the father can’t make.

Gary A. Myers:

–Well, I think once the order terminating both of their parental rights, in effect giving their children to strangers, is vacated, then in effect those interests, the State courts may have to adjudicate those interests if they decide they conflict.

My discussions with the parents at this point is that they don’t seem to conflict.

She is more than willing to have custody and he is willing to have that.

She is more than willing to allow him to have visitation, given the distance he is away, and she’s more than willing to allow that.

That’s the discussions we’ve had.

Byron R. White:

Well, when did the change of circumstance take place in these proceedings?

Gary A. Myers:

When did they separate?

Byron R. White:

Yes, when did they separate?

Gary A. Myers:

The record below does not reflect that.

She was married in July of 1977.

Byron R. White:

Well, was it before or after the case went through the Delaware courts?

Gary A. Myers:

They had separated prior to the final opinion of the Delaware Supreme Court.

Byron R. White:

Did the Delaware Supreme Court know these facts?

Gary A. Myers:

They knew they were separated.

In the Delaware Supreme Court opinion… appendix.

Byron R. White:

Well, do you suppose the same thing would have happened… do you think the same termination of parental rights would have occurred if the facts that now exist had existed at the time of the petition to terminate parental rights?

Gary A. Myers:

You mean the parties’ separation?

Byron R. White:

Yes.

And the marriage of the mother?

Gary A. Myers:

I can only speculate that that information was given to the Delaware Supreme Court and was–

Byron R. White:

It was never given to the trial court, though?

Gary A. Myers:

–No.

But it was given to the Delaware Supreme Court and they didn’t think a remand with those new facts was appropriate.

Byron R. White:

Did you ask them to?

Gary A. Myers:

No, because we believe that even though those facts existed in ’75–

Byron R. White:

Well, I know, that’s why I’m asking you, you never–

Gary A. Myers:

–There was no specific request of the Delaware Supreme Court to remand with those factual situations changed.

Byron R. White:

–Well, I would have supposed you might have had an easier time in the trial court on these facts, wouldn’t you?

Just on parental termination, because you’re not asking, you’re not objecting right now to the change of custody.

Gary A. Myers:

The parents aren’t seeking if this order would be overturned to get their children back, given the passage of time, the next day.

Byron R. White:

No.

Gary A. Myers:

They want to regain contact with the children and work towards eventually having them reintegrated into their home.

Byron R. White:

You’re interested in having the termination of parental rights overturned?

Gary A. Myers:

That’s correct; as a starting point.

Byron R. White:

But you’ve never asked anybody… this judgment isn’t final yet, is it?

Gary A. Myers:

Yes, I believe it is, if it… well–

Byron R. White:

No, it isn’t–

Gary A. Myers:

–Not by direct appeal, it’s not.

Byron R. White:

–If isn’t final.

Gary A. Myers:

Until you rule it’s not final.

Byron R. White:

But you’ve never asked a Delaware court to reconsider in the light of new facts, have you?

Gary A. Myers:

No.

Those facts have been told to the Delaware Supreme Court.

As I indicated, originally, the trial court agreed with the Division that the half brother… half sister relationship of the parents wasn’t sufficient to be the “not fitted” conduct.

An appeal was then taken to the Delaware Supreme Court.

The Delaware Supreme Court did not reach any of the legal issues but remanded it back to the trial court to have a separate findings made on the second statutory standard of “best interests”.

A five day trial was held in the trial court and as I indicated, although the term “best interest” seems to mandate some sort of comparative analysis, the trial court and the State resisted any efforts by the parents to show what type of care the children were receiving while they were in the State’s custody.

What information did leak through is that the oldest child had been, during her period, while she was in the State’s custody, had been shuffled back and forth between nine different foster care placements.

At the end of that the trial court entered a final judgment indicating that it found it was in the best interests of the children to terminate their parental rights, based on several factors.

One was frequent moves of the parents, as Mr. Doe frequently changed jobs.

The second was the half brother and half sister relationship of the parents.

And the third was the prior conviction Mr. Doe had suffered for a misdemeanor of offensive touching.

That last factor was a hotly contested issue.

It arose in 1973 when the Division charged Mr. Doe with sexually assaulting one of his daughters.

After a trial on that matter he was acquitted of any sexual offense.

He did suffer an offensive touching conviction and was placed on probation.

He described the conduct which formed the basis of the conviction.

It was playfully placing his tongue on his 2-1/2-year-old daughter’s nose and mouth.

Again, the case was returned to the Delaware Supreme Court.

They rejected the parents’ vagueness challenge to the statutory standards, they upheld the trial court’s use of the preponderance of the evidence, and they found specifically that the half brother… half sister relationship was the triggering criterion, not fitted criterion.

William H. Rehnquist:

Mr. Myers, is it part of your position that a state may not ever terminate parental rights?

Gary A. Myers:

We think that the only interest that the State can assert in a termination of parental rights that’s so compelling is prevention of actual substantial or imminent harm to the children.

Any less intrusion without proving that is not permissible.

Thurgood Marshall:

Physical or mental harm?

Gary A. Myers:

Pardon me, Justice Marshall?

Thurgood Marshall:

Physical or mental harm?

Gary A. Myers:

Physical harm, surely, and mental harm when it’s characterized by some overt symptoms, not merely speculation, but symptoms such as aggressiveness withdrawal and so forth.

Thurgood Marshall:

I just wanted to know, do I have to get degree in psychiatry to decide the case?

Gary A. Myers:

Well, I think the trial courts decide these types of issues every day and it’s not difficult to show those types of actual harm.

William H. Rehnquist:

Then you think also that the criteria for termination have to be spelled out in some detail, I take it?

Gary A. Myers:

I think that the appropriate way for state legislatures to go in this field is, in effect, to spell out the criteria of harm.

William H. Rehnquist:

Well, appropriate isn’t really what I had in mind, because we are dealing with a constitutional question.

You think the states are required to list factors?

Gary A. Myers:

I think that’s required so that individual social workers or judges don’t in effect define within vague statutes what their own ideas of good parenting or bad parenting are.

It’s a legislative choice and the legislature should set those criteria.

Warren E. Burger:

Well, is the issue the welfare of the children, the interests of the children, not good parenting or bad parenting?

Gary A. Myers:

I think that’s why the legislature should look to harm to the children rather than trying to detail any right or wrong parent.

If there’s any harm to children they’re in effect looking to the welfare of the children.

Byron R. White:

So you don’t really… you don’t really say that the welfare of the children is necessarily an insufficient standard.

If a state happened to construe that standard as requiring some showing of injury to the children, you wouldn’t have any objection to it.

Gary A. Myers:

If the legislature defined the welfare–

Byron R. White:

No, I’m not saying legislature.

I said the state court construed it that way.

Gary A. Myers:

–A construction that would limit welfare to harm, I think, would be constitutional.

Byron R. White:

Or in any specific case, if in applying the welfare of the children standard as a matter of fact they found that there was harm to the children?

I don’t know how you’d–

Gary A. Myers:

If the harm was in effect actual harm or imminent threat of actual harm, whether that be psychological or physical.

The problem with dealing with it on a case to case basis without any criteria of what the legislature has denominated as harmful is that that’s an easy way for judges in effect to impose their own values.

Byron R. White:

–You wouldn’t require the same standard for termination of custody, would you?

Gary A. Myers:

Well, that case is not before you today.

I think the State can by imposing–

Byron R. White:

It is in a sense because I take it that you would say, if the State had custody of the children, and validly so, that there could never be an adoption, unless your standard is satisfied?

Gary A. Myers:

–Unless returning these children to their parents would cause them actual harm.

Byron R. White:

So unless the State could prove that, the State would always just have to retain custody?

Gary A. Myers:

When the State is trying to take children from both of their parents and give them to someone–

Byron R. White:

And you would be required not to put these children in any kind of a permanent family?

Gary A. Myers:

–Well, I think they can return to their natural family, if the State in effect can’t show that it’s going to cause harm that the–

Byron R. White:

So are you saying custody then rests on the same standard or not?

Gary A. Myers:

–Well, I think that any time the State seeks to intrude in a family, that in effect the State surely has to show some possibility of harm at the custody stage and much more at the termination state where in effect it’s permanent.

Warren E. Burger:

In taking this record as a whole, are you telling us that this record would not support a conclusion, a finding and conclusion that there was emotional harm to these children?

Gary A. Myers:

Well, there’s been no finding below and I think that that’s the responsibility of the state court.

Warren E. Burger:

I’ve asked you a hypothetical question: that it would not support?

Are you saying that it would not support such a finding?

Gary A. Myers:

Well, I think that any of the criteria that the trial court lists, frequent moves of the family, the half brother and half sister relationship, would not support a finding of sufficient harm for them to in effect permanently break up this family.

The moving of a family as the father changed jobs is something that occurs to millions of American families, I believe.

There’s not a scintilla of evidence in this record concerning the half brother… half sister relationship which showed that that caused any harm to these children who were already in existence.

The experts brought forth by the State who generally had never seen the parents nor the children even in that situation disclaimed any reliance upon the half brother… half sister relationship as causing any harm to the children.

Thurgood Marshall:

The problem I have is that you admit that they’re living in incest; they were.

Gary A. Myers:

They were half brother and half sister and had five children and they were convicted of the crime.

Yes, sir.

Thurgood Marshall:

And you don’t think that a child brought up in the home of two criminals continuing to practice their criminality is not a good home?

Gary A. Myers:

Well, that’s a decision that the Delaware Legislature has not made and that’s a problem with the “not fitted” conduct.

There’s no explicit grounds in Delaware that says conviction of a misdemeanor means the forfeiture of your children.

Thurgood Marshall:

That wasn’t my question.

My question was what you think about it.

Gary A. Myers:

My personal opinion?

Thurgood Marshall:

Yes.

Gary A. Myers:

In the absence of showing any of the types of harm I’ve outlined before, I’m not sure that the State had any reason to take children from both of these parents.

Thurgood Marshall:

Well, suppose a state has murder as a misdemeanor, would a home of husband, mother and father convicted murderers, making murder their pastime, be a decent home, in your opinion?

Gary A. Myers:

Absent the showing that the conviction and the conduct that caused the conviction harmed the child, there should be no reason for the state to intervene.

Thurgood Marshall:

So it’s perfectly all right to live in the home of murderers?

What’s your position?

Gary A. Myers:

I think, in the absence of harm, I think it has–

William H. Rehnquist:

I’m just trying to get your position.

Well, haven’t courts run into problems before when they have attempted to lay down very definite criteria such as Justice Holmes in the earlier days of railroads, when he said, we declare it to be negligent as a matter of law when you come to a railway crossing and fail to obey the

“stop, look, and listen. “

sign, or when in the McGautha opinion Justice Harlan referred to the Royal Commission Report saying that it had just proved impossible, virtually, to define the standards that made one subject to capital punishment, that there’s necessarily an element of vagueness there.

Negligence embraces so many situations in the tort field that I don’t think any court today says that it’s vague because all we require is negligence and the jury deliberates as to what is negligent and what is not.

Gary A. Myers:

–Well, I think my response would be twofold.

Initially, in effect stating standards of conduct as to how you drive an automobile, how you run a commercial business, where there may be accepted standards outside the law, is a lot different than when a state tries to interfere in a family, something this Court has recognized as a fundamental interest to both the parents and the children.

Gary A. Myers:

Secondly, I would point out that while we’re not asking for absolute certainty, the Delaware statute used against these parents without any statutory definition, without any narrow construction, is surely vague.

It doesn’t give any guidance to anyone either under the “not fitted” standard or the “best interest” standard.

William H. Rehnquist:

Well, how about capital punishment in the McGautha case?

Gary A. Myers:

Well, I think this Court has now in effect required the states to in effect take into those… to legislate and make law the types of factors the jury would consider.

That’s what basically, as we’ve pointed out the examples in the appendix to our brief, and some of the amici point out, that that would be the proper way for the courts to go about this procedure, not try to detail and outline every type of conduct a parent can or cannot do, but in effect delineate the types of harm that will be sufficient and will allow judges to decide whether in effect parental rights should be forever forfeit.

Potter Stewart:

Well, if the Delaware Legislature should say that a mother and father who were living in an incestuous relationship are unfitted as parents and that that alone is ground for termination of the parental rights, that would certainly eliminate the vagueness problem.

Gary A. Myers:

That’s correct.

Potter Stewart:

But as I understand your answers to questions propounded to you by my colleagues, that would not eliminate either of the other two problems in this case.

Gary A. Myers:

Well, I think–

Potter Stewart:

Is that correct?

Gary A. Myers:

–That’s a difficult issue.

Potter Stewart:

And is my understanding correct?

Gary A. Myers:

And it should be decided on that case if the legislature makes that choice.

The Delaware Legislature has not made that choice.

Potter Stewart:

But the court has.

The court has construed this statute to mean that.

Gary A. Myers:

To say that conviction of a misdemeanor of incest was the triggering criterion.

Potter Stewart:

Right.

Correct.

Gary A. Myers:

As I responded to Mr. Justice Marshall, my feeling is, in the absence of a final determination that that conduct caused harm to the children–

Potter Stewart:

So, in other words, it would not eliminate your other two challenges to the legislation?

Is that correct?

Gary A. Myers:

–No, no.

Potter Stewart:

Is my understanding correct?

That’s my only question.

Gary A. Myers:

As to my personal belief whether that would be–

Potter Stewart:

Well, not your personal belief.

Your belief as an advocate here, before this Court.

Gary A. Myers:

–No.

Potter Stewart:

It would not.

Potter Stewart:

It would eliminate the vagueness problem, clearly.

Gary A. Myers:

Surely it would eliminate the vagueness problem, but not the substantive due process problem.

Potter Stewart:

Right.

Gary A. Myers:

I’ll just briefly point out that the third issue presented to this Court is the proper standards of proof.

Recently in Addington v. Texas this Court has outlined those factors where the Constitution compels states to require in its judicial proceeding something beyond a mere preponderance of evidence, and to apply the Addington criteria of loss of liberty, stigmatization, and the possibility of decisions based on unauthorized conduct.

Those factors clearly are present in a TPR.

There is an additional criterion, as I pointed out, in a TPR that wasn’t present in Addington.

In Addington an original commitment could in effect be changed, an erroneous original commitment could be changed.

In a TPR an original erroneous termination is forever.

It cannot be changed.

And despite the State’s protest I don’t think a higher standard of proof as we asked for causes any problems.

As we point out in the brief, numerous states have adopted the clear and convincing evidence, and when Congress has spoken on the issue it has required a showing of harm, and has required a showing of harm beyond a reasonable doubt.

It did so analogizing that TPR was in effect a greater punishment than a criminal conviction.

In sum, unless the lower courts are reversed, the State of Delaware will have taken these children from their parents under an ill defined standard by proving its case by a mere preponderance of evidence, and without any demonstration that any of the children had been harmed by the parents’ conduct.

In so doing, because of the sterilization, the State will have taken the only children these parents will ever have.

Warren E. Burger:

Mrs. Small.

Regina M. Small:

Mr. Chief Justice, and may it please the Court:

This case involves abstruse academic and abstract principles of constitutional law but as the Justice’ questions have demonstrated, cases that come to this Court are neither abstruse, abstract, or academic.

This case involves five children and their biologic parents, and the right of those parents now separated, and the mother remarried and raising the child of her present husband, to regain parental rights… if this order is final except in the sense that it’s not finally final because it’s before the Court… to regain the right to some form of contact with these children and perhaps some custody at some future time after planning, according to counsel.

Ms. Roe testified at the TPR hearing that what she wanted was to keep a good home for them, the children, to keep them clothed and fed good.

That was her concept of parenting duties.

The testimony in the record… and there is the transcript of a five day trial on remand to the Delaware Superior Court which conducted the termination hearing, the record before that court indicates that in visitation and the time between the removal on custody grounds of these children and the termination hearing, Ms. Roe was not particularly interested in the children, unable to relate to them.

The social worker who participated in the visitations testified at one point that the young child, a baby at that time, Charles, was brought in, cried.

The mother was unable to comfort him, unable to bring any emotional succor to him, and the foster mother who was in the building at the time of this visitation had to be brought in to calm the child down so that the visitation could continue for but a short time.

The mother made no emotional responses when the children left, no–

John Paul Stevens:

How old was the child then?

Regina M. Small:

–My recollection is that he was an infant, Justice Stevens.

He would have been–

John Paul Stevens:

There are all sorts of reasons why a child may continue to cry.

Regina M. Small:

–But the foster mother was able to calm him very quickly.

Harry A. Blackmun:

I suspect something like that happens to every parent, though, doesn’t it, Mrs. Small?

Regina M. Small:

I have no doubt that it does, and more often than once, but this is the reaction that happened in a specific visitation session.

And the testimony was that beyond this particular visitation session… in fact, when the children were in voluntary custody of the Division, the eldest two, Amy and Bill, Ms. Roe indicated no particular interest in where the children were or how–

John Paul Stevens:

Mrs. Small, why do you suppose they’re still litigating this case?

Regina M. Small:

–That’s a question I ask myself without a good answer, Justice Stevens.

The children in this case have not seen their parents since–

John Paul Stevens:

But is it not true that they did make efforts to and they were denied access to the children?

Regina M. Small:

–They made some efforts through the Division and through counsel to–

John Paul Stevens:

And they were denied.

Regina M. Small:

–And they were denied.

They also–

John Paul Stevens:

Well, what were they supposed to do after that?

Other than fight this lawsuit?

Regina M. Small:

–They made an attempt in 1977, December of 1977, more than a year and four months after the first termination hearing, to obtain a stay of the termination hearing for the purposes of obtaining visitation rights.

That application was made to the trial court as Delaware procedure requires.

It was denied, the application was not renewed in the Delaware Supreme Court.

And so a full year and eight months after the last of the children were removed from their custody, much less their parental control, was the first time they made an application to the court to stay the order so that they could–

John Paul Stevens:

Had they made informal requests to the agency?

Regina M. Small:

–Yes, they had, and they continued–

John Paul Stevens:

Made and denied.

Had they regularly been denied?

Regina M. Small:

–That’s correct.

John Paul Stevens:

Maybe they got a little discouraged.

And then they tried in court, and they were denied in court.

Regina M. Small:

And they had the opportunity to make the application to the Delaware Supreme Court and did not do so.

Byron R. White:

Well, Mrs Small, has there ever been a request to reconsider this case in light of the current facts?

Regina M. Small:

No, Justice Stevens, there has not been and in fact, at the time of oral argument before the Delaware Supreme Court, as the full opinion of the Delaware Supreme Court which appears in the appendix to the jurisdictional statement discloses, the Delaware Supreme Court was aware of the fact that Mr. Doe was living in Georgia.

Byron R. White:

Do you think this represents a judgment by the Delaware Supreme Court that these changed circumstances wouldn’t make any difference in the?

Regina M. Small:

I think it undoubtedly does because not only was Mr. Doe’s parental rights terminated but Ms. Roe’s parental rights were terminated also.

And there was evidence with respect to each of the parents put forward in the termination trial.

Regina M. Small:

And on the basis that–

Byron R. White:

Yes, but some of the problems that existed at the time of the proceeding in the trial court didn’t exist anymore, did they?

They weren’t living together incestuously, the lady was married.

Now–

Regina M. Small:

–That’s correct.

However, no application was made to the Delaware Supreme Court, although it was upon question–

Byron R. White:

–So you really can’t say that the Delaware Supreme Court has acted on a request to remand for further proceedings in light of the changed circumstances?

Regina M. Small:

–Undoubtedly they have not acted because they have not been requested to act, although it was a question of the Chief Justice of the Delaware Supreme Court which elicited the information on the present condition, then present condition, 1978, of the parents of these children.

So that fact was clearly before them, that Ms. Roe was married to another man and raising his child–

Byron R. White:

In Delaware, does this same statute govern removing children from the custody of the parents?

Regina M. Small:

–No, it does not, Justice White.

The first point I should make is that this statute is now repealed and we’re only talking about nine children who would be affected by the decision of this Court, the five children here and the four children in Able v. Delaware case where the appeal has not–

Byron R. White:

Well, what if this case were pending now in the Delaware Supreme Court?

Suppose it had just been filed.

Suppose it was filed in the Delaware Supreme Court the day after the new statute was passed.

Under what law would the Delaware court review the case?

Regina M. Small:

–If the appeal were pending on… if the appeals were filed the day after the new statute was enacted, as I understand your question–

Byron R. White:

Yes?

Regina M. Small:

–the Delaware Supreme Court would review the case under the statute existing at the time of the termination of parental rights.

Byron R. White:

It wouldn’t review it in the light of the new statute?

Regina M. Small:

With the–

Byron R. White:

That’s a little odd, isn’t it?

Regina M. Small:

–With the attack made on appeal, I can’t see how the court could review it in light of the new statute except to say–

Byron R. White:

Well, it could remand to see if the trial court… for reconsideration in light of the new statute.

Wouldn’t that be the thing to do?

Regina M. Small:

–You anticipated my exception: except to say that it could take cognizance of the record and make a determination on its own from the record, or more likely, to remand to the trial court.

But at the time of the termination the now repealed statute was the one that governed.

Byron R. White:

But our rule here normally is in civil cases to adjudge a case in the light of the current law, the current statute.

Why shouldn’t we remand for reconsideration to see if the new statute makes any difference to the Delaware courts?

Regina M. Small:

I can only give a practical answer to that question, Justice White.

Regina M. Small:

That is–

Byron R. White:

Well, I’m really wanting a legal answer.

Regina M. Small:

–Then I shall attempt to give a legal answer.

Byron R. White:

Which will probably be the same thing, so go ahead.

Regina M. Small:

A remand of this case for application of the present Delaware statute by the Delaware courts would be no more and no less than a tacit recognition that the former statute was vague and likely–

Byron R. White:

Why is that?

Delaware has replaced its statute.

Regina M. Small:

–As part of a more comprehensive statutory–

Byron R. White:

Well, but it’s nevertheless replaced the statute.

It isn’t the same standard, is it?

Regina M. Small:

–No, it’s… the language of the statute is different, although in the generic terms both unfitness and best interests are still required.

In fact, the new statute is remarkably similar in its language to the statutes to which the appellants point the Court in the appendices to their brief as being models of the kind of flexibility that is required.

Byron R. White:

Well, then, why shouldn’t… in a case that’s not final, why shouldn’t these parents now have their case judged in the light of the current State standards?

And why should we pass on the constitutionality of a statute that’s been replaced?

Regina M. Small:

That leads me only to my practical answer that it will be several more years before there can be permanent placement for these children.

The State thinks that that would be travesty.

Delaware’s termination of parental rights statute, the TPR statute, is not, as counsel suggests, unique.

We know of no state which doesn’t have a similar statutory provision.

In fact, in appellants’ brief at page 32, notes 52 and 53, in making their standard of proof argument, the appellants list a number of states that use the clear and convincing evidence standard of proof in termination of parental rights standards, parental rights acts.

So I would assume that they will concede that there are other TPR statutes.

In fact, Delaware was in the forefront of having statutes which require both the best interest and the fitness of the parents to be considered with the Cline case in 1967, the very standards which this Court has alluded to in both Offer and in Kilwarren.

Counsel in his brief recitation of the facts seems to pass over the years intervening between the first contact between Doe and Roe and the Division of Social Services, and the time at which the termination of parental rights action was filed.

In those three years there was continued contact between the agency and the family.

The children were first placed voluntarily, because Mr. Doe came to the agency and said that he was not able at that time to provide support for his family.

After helping him obtain employment and helping the family find a nice home, the younger of the two children at that time, Bill, was replaced in the home.

The Division observed the family life, was satisfied that at that point in 1973 the family was coping, providing stability for the one child replaced, the elder child, Amy, shortly thereafter.

The reaction to that was that Mr. Doe quit his job very promptly; he went out and found another, was fired.

The family moved in the middle of the night, the night before a worker was to make a regular visit, leaving no forwarding address.

From that time on the relationships between the Division and the family continued to increase.

The Division’s policy is to maintain the family unit whenever possible, and when it becomes impossible by reason of incapability or failure of the parents to be able to provide the nurturing stable environment that the child has a right to, and family integrity, then the Division believes that a permanent placement alternative as close to the family situation that is a new adoptive family is the preferable one.

Regina M. Small:

And in fact the record discloses that it was not until the Division made the determination that these children should be put in adoptive care where they could be received into a new family, albeit not a biologic one, but a new family, that the TPR was filed.

John Paul Stevens:

Ms. Small, does the record tell us whether all the children are in the same family.

Are they perhaps in five separate families?

Regina M. Small:

The record does not disclose that.

They are in four families.

The twins are in the same placement, the youngsters.

Thurgood Marshall:

The record does show that one was in nine families in one year.

Regina M. Small:

The record does not disclose that, Justice Marshall.

A reference to Miss Kinkaid’s testimony at the trial, termination trial, is where that information comes from.

Miss Kinkaid, who was a psychologist employed by the Division to test and observe these children, testified… and her testimony can be found at page 241 of the record… that she thought from some information she saw that was provided by either the Division or Children’s Bureau, that Amy had been in nine placements.

On our cross examination she was asked, “Nine placements, foster placements”?

And she said,

“No, I think it’s nine. “

“Well. “

–and I’m paraphrasing… I’d have to go back and check I’m not sure.

The next piece of evidence that was put before her was the records of the State Hospital, the Child Psychiatric Center where Amy was tested several years before.

And at that point there was a showing that she had been in three foster placements.

Her placement worker testified–

Thurgood Marshall:

But didn’t you have a record of your own where the child was?

Regina M. Small:

–Yes.

And–

Thurgood Marshall:

Didn’t the agency have a record?

Regina M. Small:

–Yes, the agency–

Thurgood Marshall:

Well, didn’t the agency put the record in to contradict that?

Regina M. Small:

–There was no affirmative showing to contradict that rather questionable recollection on Miss Kinkaid’s part.

Thurgood Marshall:

But you could have done it, couldn’t you?

Regina M. Small:

It could have been done.

I can represent to the Court that the child has been in a total of six placements, including with her own family, in her entire life till today.

But that’s not on the record.

The evidence, though, that is on the record that is alluded to to support nine placements does not support nine placements.

Thurgood Marshall:

Is there anything in the record that shows that the present husband will take the five children?

Regina M. Small:

There is nothing in the record, to my knowledge.

I’m getting back to what Justice White was talking about, I don’t know what we’ve got here.

The one side–

Regina M. Small:

Neither do I, Justice Marshall.

–One side argues that this lady is dying to get these children back, and the record shows she is married to another man whom nobody vouches for.

Now, what conclusion can I draw?

Regina M. Small:

I think you can draw no conclusion from that, Justice Marshall.

I think that you have to look back to the time of the termination proceeding and Ms. Roe’s interest in regaining custody of her children I think is belied by the facts of the case.

For example, when the sexual misconduct charge was filed against Mr. Doe, custody of their then three children was in the State, actual physical custody, as well as legal custody; and then when Roe disappeared for a period of four months after the charge was filed, leaving the State, making no attempts to have any contact with her children at that point.

The record does disclose history of instability in the family that relates both to Mr. Doe and Ms. Roe, and a lack on her part of any strong emotional attachment to any of the children.

The youngest have been out of the home since under the age of six months.

Well, do you deny that she wants these children?

Regina M. Small:

The only thing in the record that I can point to as her positive assertions are the testimony which I quoted–

Well, isn’t this suit one example of positive assertion?

Regina M. Small:

–She now seeks, as I understand it from her affidavit in forma pauperis contact, I understand from counsel’s argument this morning, that they would seek to reunite the family.

I understand from a quotation in the local newspaper yesterday that he didn’t know what they wanted to do with the children.

This is a perplexing point for the Division as well as it clearly is for the Court.

Well, do you have any evidence that she does not want them, and if so why haven’t they given it to her?

Regina M. Small:

There is no direct evidence that she has abandoned the children, which is a separate basis for termination.

Her parental rights were terminated on the basis of her individual unfitness without regard to Mr. Doe, except that one of the reasons was they lived in an incestuous relationship.

Well, my question is, fit or unfit, it is true that she wants the children?

Regina M. Small:

I have only counsel’s representation to rely upon and–

Well, do you have anything to the contrary?

Regina M. Small:

–The record’s been closed in this case since December, 1976, Justice Marshall.

Do you have anything to the contrary?

The answer is, no.

Right?

So, we’ll just take that point.

I’m not saying how important it is.

Doe and Roe are no longer living together?

Regina M. Small:

That’s correct.

And so they obviously, if they… they couldn’t both want the children as parents of the children and as co homemakers for the children because they’re not co homemakers anymore for even themselves, are they?

Regina M. Small:

No, and that’s what counsel admitted in his opening statement, that–

He also said that she wanted them.

He said positively that she wanted the children.

What becomes of John Doe then?

But the question is, did he say that or not?

Regina M. Small:

–He did say that, Your Honor.

Well, thank you.

Now, do you have anything to contradict that, any fact?

Regina M. Small:

No, Your Honor, we have not conducted discovery in this case while it was before the Court, didn’t think it appropriate.

Ms. Small, I’d be interested in your discussion of the constitutional issues that I thought we took this case to consider.

Regina M. Small:

There is, we believe, before the Court one properly raised constitutional issue and that’s the attack on the former Delaware statute for vagueness.

The standard and the rationale for a vagueness standard is that the State in enacting legislation which affects individuals should put the reasonable man on notice as to what conduct is prohibited so that he may act accordingly and so that in applying such standards the courts may determine without a discriminatory or standardless application whether the statute is in force.

We think that the former Delaware statute survives an attack as void for vague.

It is not a question of what’s preferable draftsmanship.

The question is whether it meets the threshold requirements, either on its face or assuming, not on its face, through narrowing interpretations of the Delaware courts.

The statute says that parental rights may be terminated when one is considered not fitted to exercise parental duties.

That seems to me to be… and to the Delaware courts… to be a standard that is comprehensible by the ordinary person: care, feeding, clothing, providing for the emotional needs, and the need to stay in out of the rain, Plaintiffs submit that there are no slide rule calculations for determining what’s a statute which would survive the void for vagueness attack, and as the amici agree, there should be in the case of child custody some flexibility for determining the statutes.

As I say, I think the Delaware Supreme Court in referring to the dictionary definition has suggested that the statute is on its face sufficient to give standards.

Even if it’s not the Delaware courts have over the years interpreted the statute so that any reasonable person ought to know what conduct is proscribed.

Now, Mrs. Small, you said that you thought that only one constitutional issue is properly here.

Counsel for the appellants says that three constitutional issues are properly here.

Why do you think the others are not properly here?

Regina M. Small:

The question–

I.e., the burden of proof, and the substantive due process standard, as he calls it, that any state need establish that there be harm to the children before it can terminate the parents’ relationship.

Regina M. Small:

–As to the latter, Justice Stewart, it was not raised in the Delaware Supreme Court until–

How about the second one?

Regina M. Small:

–until motion for reargument.

Regina M. Small:

As to the former, the argument in the Delaware Supreme Court was that the standard of proof was to be beyond a reasonable doubt.

Appellants correctly point out in their reply brief that they make reference to the Addington case in their reply brief in the Delaware Supreme Court and in their motion for reargument.

But they do not discuss the context in which that reference was made.

With respect to the burden of proof issue, Addington is cited in their reply brief in the Delaware Supreme Court directly after the positive statement that the standard of proof in this case must be beyond a reasonable doubt.

Well, in any event, you concede that–

Regina M. Small:

The case was cited.

–The argument was clearly made that a standard of proof by preponderance of the evidence was constitutionally impermissible and insufficient.

Regina M. Small:

That is correct.

The standard which was urged was not the standard which is now urged in this Court.

Mrs. Small, may I ask you this?

This has reference to Delaware’s new statute.

I’ve just looked at it and it certainly seems to me that the standard under the new statute, which is best interests of the children, is surely quite different from the standard under the old statute of not fitted.

And my question to you is this, in Bell and Maryland, where we vacated a state Court of Appeals of Maryland judgment and remanded for reconsideration in light of new law in the State of Maryland, we relied on Patterson and Alabama in 294 United States 600, where Mr. Chief Justice Hughes stated the following, and my question to you is, why isn’t this statement applicable in this case?

Chief Justice Hughes said,

“We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. “

“And in determining what justice does require, the Court is bound to consider any change either in fact or in law which has supervened since the judgment was entered. “

“We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act. “

“We have said that to do this is not to review in any proper sense of the term the decision of the state court upon a non federal question but only to deal appropriately with a matter arising since its judgment and having a bearing upon the right disposition of the case. “

Regina M. Small:

Well, my answer suggests two things, Justice Brennan.

First, the change in the statute enacted this summer does not add the best interests standard.

That has been a standard by statute or by court decisions since before 1967.

The change was in the phraseology respecting fitted or not fitted.

To answer, I think, the thrust of your real question now, I can only suggest that the new statute is presently under constitutional attack for the same reasons in the Delaware state courts and it’s likely that–

Yes, but neither you nor we, I gather, really know what the Delaware state courts would do if we sent this back for reconsideration in light of that statute.

Regina M. Small:

–In light of the new statute?

How they would interpret it, how they would deal with any constitutional challenge to it, we don’t know, do we?

Regina M. Small:

No, we do not know, although–

But surely we ought not decide the constitutional questions tendered if the Delaware courts would on reconsideration apply that new statute, should we?

Regina M. Small:

–Well, I think it’s fair to say that even the appellants would agree that the new statute, although they won’t concede it’s constitutionally acceptable, is better than the old statute and that the Delaware Supreme Court did not find the old statute vague, and for a determination of parental rights under that statute they would likely affirm that as precedent.

Your practical, your so called practical answer to my brother White earlier, however, would still be applicable here, that any delay would delay the potential adoption of these children.

Regina M. Small:

That’s correct.

Because in Delaware termination of parental rights is a prerequisite for the adoption–

Of course it is.

It is anywhere.

Regina M. Small:

–In some states–

A child can’t have two mothers and two fathers.

Regina M. Small:

–That’s correct.

I suppose you would rather have a remand, though, than a declaration of unconstitutionality, wouldn’t you?

Regina M. Small:

Certainly, Justice White.

Warren E. Burger:

Mr. Myers, you have two minutes remaining.

Gary A. Myers:

Well, at this point, concerning the remand question, I think the remand question and the questions we’ve been posed concerning the vagueness issues, regardless of the change in the statutory language of the new section, I think the other two constitutional issues which we raised are properly before the Court and would have to be decided regardless of any remand.

Well, the whole point, I gather, of Chief Justice Hughes’ statement in the Patterson case, and it’s been followed in a great many others, including Bell and Maryland where it was quoted, is that this Court ought not determine constitutional questions if perhaps they will disappear on reconsideration under the new law.

Gary A. Myers:

Well, I think that the standard of proof argument is not going to disappear, and a remand may entail another evidentiary hearing and to allow it to go forward under what we contend is an impermissible standard of proof should not be–

Well, that may be so, but you may win.

Gary A. Myers:

–Well, I think the lower courts need some instructions.

You may win, and then we may never have to decide the question.

Gary A. Myers:

And again, I would point out as to the substantive due process, I think it’s before this Court because I think the Delaware court in this case and other cases, what few there are, has indicated that it’s not going to require harm and we think that’s the constitutional requirement.

Mr. Myers, under your view of the law, if there were a remand and a new hearing, what would the issue be at the hearing, whether the parents are presently unfit or whether they were unfit in 1976?

Gary A. Myers:

I think in fairness to the parents it would be whether they presently meet whatever statutory requirements the state courts would apply.

And under the present law.

Under the present law.

The facts are quite different than they were five years ago.

Gary A. Myers:

I would respectfully beg off on that because I’m not sure whether Delaware would apply the present law.

I know it.

I understand you would like to have a decision here; yes.

Gary A. Myers:

Thank you.

Warren E. Burger:

Thank you, counsel.

The case is submitted.