Appeal in Maricopa County Juvenile Action No. JS-5209 and No. JS-4963, Matter of, JS-5209

Citation692 P.2d 1027,143 Ariz. 178
Decision Date23 October 1984
Docket NumberJS-5209,CA-JUV,Nos. 1,JS-4963,s. 1
PartiesIn the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.AND NO.246, 1 247.
CourtCourt of Appeals of Arizona
Barry M. Hatch, Phoenix, for appellant Mother
OPINION

JACOBSON, Chief Judge.

This is an appeal by the natural mother from an order of the trial court terminating her parental rights.

The mother's problems in rearing her children were formally recognized in May 1975, when a dependency petition was filed on behalf of her six minor children. The petition alleged abuse and neglect by both parents. It was alleged that the mother had been physically abusing the children because of acute distress and that she was in need of psychiatric help.

At that time, the investigating social worker observed bruises on the face, back and legs of the two youngest children and the mother admitted she had inflicted some of the injuries herself. The social worker referred the mother to a mental health clinic for psychotherapy. All of the children were removed from the home by child protective services and subsequently, on August 19, 1975, they were adjudicated dependent by the court. The four youngest children have remained in foster care since being found dependent, except for a short period in 1976 and 1977 when they were returned to the custody of their father. They were subsequently removed from the father's custody and returned to foster care when it was established that they had suffered additional abuse while in his custody. It also appeared that the mother had known about the abuse by the father but had not reported it.

Calvin, the next to oldest child, was returned to his mother's custody in 1976 and the dependency petition, as it related to him, was dismissed by the court. Calvin has lived with his mother since that time. The oldest child, Terry, after having been adjudicated dependent, was also adjudicated incorrigible and was assigned to a series of residential treatment facilities. Terry voluntarily returned to live with his mother in March of 1983. He was 18 in November of 1983.

The mother herself was physically and sexually abused and neglected as a child and she lived in foster homes from ages 7 through 18. In 1975 she received psychiatric care, including psychotherapy from Phoenix South Community Mental Health Center, where she was diagnosed as having a depressive neurosis. The trial court found that throughout the course of the dependency proceedings the mother received, or was offered various services by the Department of Economic Security, including family counseling, personal counseling, and group therapy, to improve her skills as a parent. At one point, Dr. DiBacco, one of the mother's treating physicians, suggested that a course of psychotherapy should be tried in order to better evaluate the mother. Such one-on-one psychotherapy by a certified psychiatrist or psychologist was never offered to the mother, however. In June 1982, the case worker was ordered by the court to draw up a social contract outlining the steps the mother should take in order to regain custody of the children. This agreement was never signed or pursued. Instead, in July 1982, a petition to sever parental rights was filed in regard to the two girls. A similar petition was filed in regard to the younger two boys in December of 1982. The petitions were consolidated for trial. After a hearing, the trial court entered its order terminating the parent-child relationship between the four minor children and their natural father and mother. 1 The court found that:

The evidence is clear and convincing that [the mother] is unable to discharge her parental responsibilities because of a mental illness and mental deficiency, and that her mental illness and mental deficiency, and the inability to discharge parental responsibilities caused thereby, will continue for a prolonged indefinite period.

The mother's appeal from the trial court's order terminating her parental rights raises the following issues:

1. Whether the evidence was clear and convincing that she was unable to discharge her parental responsibilities.

2. Whether the evidence was clear and convincing that she is mentally deficient.

3. Whether the evidence was clear and convincing that she suffers from a mental illness.

4. Whether the Department of Economic Security failed in its duty to attempt rehabilitation.

5. Whether the severance is in the best interests of the children.

6. Whether A.R.S. § 8-533(B) is unconstitutionally vague because it does not define the terms "mental illness" or "mental deficiency".

CONSTITUTIONALITY OF A.R.S. § 8-533(B)

We first answer the mother's argument concerning the constitutionality of the statute under which her parental rights were terminated. A.R.S. § 8-533(B)(3) establishes, as a ground for termination,:

That the parent is unable to discharge the parental responsibilities because of mental illness, mental deficiency or a history of chronic abuse of dangerous drugs, controlled substances or alcohol and there are reasonable grounds to believe that the condition will continue for a prolonged indeterminate period.

The mother argues that because Title 8 of the Arizona Statutes dealing with child welfare contains no definition of what constitutes a mental illness or a mental deficiency, A.R.S. § 8-533(B)(3) is unconstitutionally vague. She maintains that as a result of this failure to define the terms, parents are not given adequate notice of what illness might deprive them of their children and further, that the lack of such definitions leaves the determination of mental illness to the subjective determination of judges or mental health experts. In the mother's view, this is constitutionally unacceptable.

The mother also complains that, at least as applied in this case, the statute is overbroad because the mental health experts who testified concerning the mother's mental condition at trial relied upon the definition of mental disorder found in the Diagnostic and Statistical Manual of Mental Disorder, DSM III, published by the American Psychiatric Association (DSM III). DSM III includes within its definition of "mental disorder" such conditions as stuttering, sleepwalking, and premature ejaculation. The mother's argument is that obviously such conditions would not be a legitimate basis for the termination of parental rights and that therefore the definition of "mental disorder" is overbroad.

The vagueness and overbreadth arguments are founded upon the due process clause of the Fourteenth Amendment to the United States Constitution. It is now well established that a parent's right to the custody and control of his or her children is a fundamental right guaranteed by the United States Constitution. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Pima County Juv. Action J-46735, 112 Ariz. 170, 540 P.2d 642 (1975); Pima County Juv. Action S-111, 25 Ariz.App. 380, 543 P.2d 809 (1975).

Statutes terminating parental rights must therefore comport with basic due process requirements guaranteed by the Fourteenth Amendment. A statute whose terms are vague and conclusory does not satisfy due process requirements. See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979); In Interest of Lewis, 257 N.W.2d 505 (Iowa 1977).

"Vagueness" and "overbreadth", however, are separate and distinct concepts. A statute is unconstitutionally vague if it fails to give "a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly" or if it allows for arbitrary and discriminatory enforcement by failing to provide an objective standard for those who are charged with enforcing or applying the law. Grayned v. City of Rockford, supra. This vagueness test is applicable to parental rights termination cases as parents are entitled to notice of what type of conduct will cause them to lose the custody and control of their children. See Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10 (S.D.Iowa 1975), aff'd 545 F.2d 1137 (8th Cir.1976). The state argues, however, that the notice requirement of the vagueness doctrine has little relevance in this case because the appellant's parental rights are not being terminated because of willful conduct for which notice must be given, (see A.R.S. § 8-533) but rather because of the mother's inability to be an effective parent caused by her mental illness. Notice therefore is irrelevant since notice of the conduct would not have enabled the mother to alter her mental condition.

We agree that the notice requirement of the vagueness doctrine is not really the issue here. However, the doctrine has another aspect which is applicable: The statute's failure to provide explicit standards which can lead to arbitrary and discriminatory parental terminations; this would violate due process. See Grayned, supra; Davis v. Smith, supra; In the Matter of J.N.M., 655 P.2d 1032 (Okla.1982). As the mother's arguments embrace this contention, we must therefore consider whether the failure of A.R.S. § 8-533(B) to define the terms "mental illness" and "mental deficiency" leaves it open to such arbitrary application that it must be found to be unconstitutionally vague.

We start from the well established principle that there is a strong presumption in favor of the constitutionality of a legislative enactment. Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); New Times, Inc. v. Arizona Board of Regents, 110 Ariz. 367, 519 P.2d 169 (1974). See also State v. Grijalva, 111 Ariz. 476, 533 P.2d 533 (1975). In keeping with this...

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