Brooks, In Interest of

• Decision Date: 01 November 1980
• Docket Number: No. 51244,51244
• Citation: 228 Kan. 541,618 P.2d 814
• Parties: In the Interest of Debra BROOKS, A Deprived Child Less Than 18 Years of Age.
• Court: Kansas Supreme Court

Page 814

618 P.2d 814

228 Kan. 541

In the Interest of Debra BROOKS, A Deprived Child Less Than

18 Years of Age.

No. 51244.

Supreme Court of Kansas.

Nov. 1, 1980.

Syllabus by the Court

1. In determining constitutional challenges for "vagueness," greater leeway is afforded statutes regulating business than those proscribing criminal conduct.

2. Application of "vagueness" tests in regard to statutes pertaining to termination of parental rights lies somewhere between that given criminal law statutes and that given to statutes regulating business.

3. Mathematical certainty in language is not to be expected in a statute.

4. Flexibility and reasonable breadth, rather than meticulous specificity or great exactitude, are permissible in a statute, so long as its reach is clearly delineated in words of common understanding.

5. A statute which defines boundaries sufficiently distinct for citizens, policemen, juries, and appellate judges is not impermissibly vague.

6. Impossible standards of specificity are not required by the constitution; even a criminal statute meets constitutional muster if the language used conveys sufficient warning when measured by common understanding and practice.

7. It is not necessary that all kinds of conduct falling within reach of a statute be particularized.

8. A statute is not to be struck down as vague only because marginal cases could be put where doubts might arise.

9. A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law.

10. The term "unfit" in the statute permitting termination of parental rights (K.S.A. 1978 Supp. 38-824(c )), as construed by prior judicial decisions, is not impermissibly vague and, accordingly, is not violative of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

11. Standards for determining when parental rights should be terminated as opposed to the imposition of less restrictive alternative remedies are discussed and set forth in the opinion.

12. K.S.A. 1978 Supp. 38-824(c ), as judicially construed, does not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution for failure to incorporate the doctrine of the least restrictive alternative.

13. In an appeal from a district court decision finding the parents unfit and terminating parental rights pursuant to K.S.A. 1978 Supp. 38-824(c ) the record is examined and it is held : The evidence was sufficient to support the finding of parental unfitness and the termination of parental rights.

Karl A. Menninger, II, of the Mid-Central Legal Center for the Developmentally Disabled, Kansas City, argued the cause, and William J. Dittmeier and Penny R. Furman, Kansas City, Mo., of the same agency, were with him on the brief for appellants.

Muriel Andreopoulos, Sp. Juvenile Prosecutor, Kansas City, argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with her on the brief for appellee.

McFARLAND, Justice:

This is an appeal by Mary Ann Brooks and Jimmy Brooks from an order of the district court severing their parental rights in Debra Brooks, pursuant to K.S.A.1978 Supp. 38-824(c ).

The three issues before this court are:

1. Is the term "unfit" in K.S.A.1978 Supp. 38-824(c ) unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment to the United States Constitution?

2. Does K.S.A.1978 Supp. 38-824(c ) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it fails to incorporate the doctrine of the least restrictive alternative?

3. Was there sufficient evidence in this case to justify a finding of "unfitness"?

Inasmuch as the facts of this case are not involved in the determination of the constitutional issues, the recitation of same will be reserved until later in the opinion.

K.S.A.1978 Supp. 38-824 provides in pertinent part:

"(a ) The provisions of this section shall apply to any child under the age of eighteen (18) years found to be a deprived child, within the meaning of this act, either at the initial hearing or any subsequent hearing.

"(c ) When the parents, or parent in case there is one parent only, are found and adjudged to be unfit to have the custody of such deprived child, K.S.A.1978 Supp. 38-820, and other applicable provisions of this act having been fully complied with, the district court may make an order permanently depriving such parents, or parent, of parental rights and commit the child:

"(1) To the care of some reputable citizen of good moral character;

"(2) to care of some suitable public or private institution used as a home or place of detention;

"(3) to the care of some association willing to receive the child, embracing in its objects the purpose of caring for or obtaining homes for deprived children;

"(4) to the secretary of social and rehabilitation services."

By 1979 amendment the following language was substituted for (c )(2) above:

"(2) to a youth residential facility, subject to the limitations of subsection (f ) of K.S.A.1979 Supp. 38-819;"

This amendment is not pertinent to any issues herein.

The appellants contend the term "unfit" in K.S.A.1978 Supp. 38-824(c ) is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, appellants argue the term "unfit" is unconstitutionally vague because it (1) does not provide sufficient notice of what conduct the State is seeking to prohibit; (2) permits arbitrary and discriminatory enforcement of the law; and (3) inhibits the exercise of protected rights. These are the standards set forth in "Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), for determining whether a criminal statute is impermissibly vague.

The general principles which the courts must apply in determining the constitutionality of a statute were set forth in City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. PP 1-4, 598 P.2d 1051 (1979), and reaffirmed in In re Jones, 228 Kan. 90, 95, 612 P.2d 1211 (1980), as follows:

"The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution."

"In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done."

"Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt."

"The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere."

In determining constitutional challenges for vagueness, greater leeway is afforded statutes regulating business than those proscribing criminal conduct. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), contains a well reasoned discussion of the distinction and by what standards statutes pertaining to termination of parental rights should be judged. The Supreme Court of Arkansas concluded at pp. 120-121, 583 S.W.2d 37:

"(W)here standards for termination of parental rights are the subject of the statute involved, the application of 'vagueness' tests should lie somewhere between that given criminal law statutes and that given statutes regulating business, i.e., permitting greater flexibility than where criminal law statutes are involved and less flexibility than with business-regulatory statutes. See Minor Children of F. B. v. Caruthers, 323 S.W.2d 397 (Mo.App., 1959). This is because any parent should have some basic understanding of his obligations to his children, but many cannot be as alert to, and aware of, prevailing practices basic to establishment of standards as those engaging in business would likely be to settled and well understood standards and practices. Mathematical certainty in language is not to be expected in any statute. Grayned v. City of Rockford, supra. See also, Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945). Flexibility and reasonable breadth, rather than meticulous specificity or great exactitude, in a statute are permissible, so long as its reach is clearly delineated in words of common understanding. Grayned v. City of Rockford, supra; Minor Children of F. B. v. Caruthers, 323 S.W.2d 397 (Mo.App.1959). A statute which defines boundaries sufficiently distinct for citizens, policemen, juries and appellate judges is not impermissibly vague. Grayned v. City of Rockford, supra. Impossible standards of specificity are not required by the constitution, even in criminal statutes, and a statute meets constitutional muster, if the language used conveys sufficient warning when measured by common understanding and practice. Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951); United States v. Petrillo 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). It is not necessary that all kinds of conduct falling within the reach of the statute be particularized. City of Chicago v. Fort, 46 Ill.2d 12, 262 N.E.2d 473 (1970). A statute is not to be struck down as vague only because marginal cases could be put where doubts might arise. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed....