Doe v. Delaware

• Decision Date: 09 March 1981
• Docket Number: No. 79-5932,79-5932
• Citation: 450 U.S. 382,67 L.Ed.2d 312,101 S.Ct. 1495
• Parties: John DOE and Jane Roe, appellants, v. State of DELAWARE
• Court: U.S. Supreme Court

450 U.S. 382

101 S.Ct. 1495

67 L.Ed.2d 312

John DOE and Jane Roe, appellants,

v State of DELAWARE

No. 79-5932

Supreme Court of the United States

March 9, 1981

Rehearing Denied April 27, 1981.

See 451 U.S. 964, 101 S.Ct. 2036.

PER CURIAM.

The appeal is dismissed for want of a properly presented federal question.

Justice BRENNAN, with whom Justice WHITE joins, dissenting.

Appellants, a half brother and sister, are the natural parents of five children who were in the custody of the Division of Social Services of the Delaware Department of Health and Social Services at the beginning of this litigation.¹ After de- termining that the children should be put up for adoption,² the Division filed suit pursuant to Delaware law to obtain termination of appellants' parental rights over their children. The Superior Court of Delaware ordered termination, and the Supreme Court of Delaware affirmed.³ Appellants appealed to this Court, arguing that the termination order and the Delaware statute authorizing it were unconstitutional. We noted probable jurisdiction. 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed.2d 775 (1980).

The Court today dismisses this appeal for want of a properly presented federal question, thereby permitting the termination order to remain in effect despite the existence of a substantial federal constitutional challenge to the Delaware statutory scheme under which the order was entered.⁴ Because I believe that the federal question was properly presented within the definition of that requirement in our cases, I dissent from this dismissal. Instead, I would vacate the judgment below, and remand for reconsideration in light of supervening changes in the factual circumstances and the applicable state law.

I

Appellants challenge the constitutionality of certain portions of the former Del. Code Ann., Tit. 13, §§ 1101-1112 (1975), in effect while this litigation was pending in the state courts. These provisions established a "procedure for termination of parental rights for the purpose of adoption or, if a suitable adoption plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption." § 1103. Petitions for termination of parental rights could be filed by certain specified categories of persons, including the Division. § 1104(8). Upon a finding by the Superior Court that the parents were "not fitted to continue to exercise parental rights," § 1103(4), and that termination of existing parental rights would be "in the best interests of the child," the court was required to issue an order of termination, and to transfer parental rights to another person, organization, or agency. § 1108(a). The effect of the termination order was "that all of the rights, duties, privileges and obligations recognized by law between the [parents] and the child shall forever thereafter cease to exist as fully and to all intents and purposes as if the child and the [parents] were and always had been strangers." § 1112. Either an order of termination or the consent of the natural parents was required before children in the custody of the State could be placed for adoption. §§ 907-908.

Appellants argue here, as they did at each stage of the litigation in the state courts, that this statutory scheme for termination of parental rights was invalid under the United States Constitution. Specifically, they contend: (1) that Del. Code Ann., Tit. 13, § 1103(4) (1975), which provides for such termination where the parent is "not fitted," is unconstitutionally vague and indefinite; (2) that a higher standard than the mere "preponderance of the evidence" is required to terminate parental rights; and (3) that substantive due process forbids termination of parental rights in the absence of a demonstration of a compelling state interest, in the form of specific findings of existing or threatened injury to the child.⁵ There is no doubt that appellants raised their federal constitutional claim in a timely manner in both the Superior Court ⁶ and the Supreme Court ⁷ of Delaware, nor that the Delaware Supreme Court explicitly considered and rejected the federal constitutional challenge.⁸

Dismissal of this appeal for want of a properly presented federal question is, therefore, unwarranted. The practice in this Court has been to dismiss an appeal taken under 28 U.S.C. § 1257(2) for want of a properly presented federal question only when the federal question was not raised at the proper juncture in the state-court proceedings or in accordance with reasonable state rules. Jones v. Florida, 419 U.S. 1081, 1083, 95 S.Ct. 671, 672, 42 L.Ed.2d 676 (1974) (BRENNAN, J., dissenting); Godchaux Co. v. Estopinal, 251 U.S. 179, 181, 40 S.Ct. 116, 117, 64 L.Ed. 213 (1919); R. Stern & E. Gressman, Supreme Court Practice 380-381 (5th ed.1978).⁹ See e. g., Street v. New York, 394 U.S. 576, 581-585, 89 S.Ct. 1354, 1360-1362, 22 L.Ed.2d 572 (1969); Safeway Stores, Inc. v. Oklahoma Retail Grocers Assn., 360 U.S. 334, 342, n. 7, 79 S.Ct. 1196, 1202, 3 L.Ed.2d 1280 (1959); Raley v. Ohio, 360 U.S. 423, 434-435, 79 S.Ct. 1257, 1264-1265, 3 L.Ed.2d 1344 (1959); Bailey v. Anderson, 326 U.S. 203, 206-207, 66 S.Ct. 66, 68, 90 L.Ed. 3 (1945); Asbury Hospital v. Cass County, 326 U.S. 207, 213-214, 66 S.Ct. 61, 64-65, 90 L.Ed. 6 (1945); Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 185-187, 65 S.Ct. 624, 627-628, 89 L.Ed. 857 (1945); Hunter Co. v. McHugh, 320 U.S. 222, 226-227, 64 S.Ct. 19, 20-21, 88 L.Ed. 5 (1943); Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 462-463, 56 S.Ct. 556, 561-562, 80 L.Ed. 796 (1936); Whitney v. California, 274 U.S. 357, 360-361, 47 S.Ct. 641, 642-643, 71 L.Ed. 1095 (1927); Live Oak Water Users' Assn. v. Railroad Comm'n, 269 U.S. 354, 357-359, 46 S.Ct. 149, 150-151, 70 L.Ed. 305 (1926); Rooker v. Fidelity Trust Co., 261 U.S. 114, 116-117, 43 S.Ct. 288, 289, 67 L.Ed. 556 (1923); Zadig v. Baldwin, 166 U.S. 485, 488, 17 S.Ct. 639, 640, 41 L.Ed. 1087 (1897); Crowell v. Randell, 10 Pet. 368, 391-392, 398, 9 L.Ed. 458 (1836); cf. Cardinale v. Louisiana, 394 U.S. 437, 438-439, 89 S.Ct. 1161, 1162-1163, 22 L.Ed.2d 398 (1969) (dismissal of writ of certiorari); Beck v. Washington, 369 U.S. 541, 549-554, 82 S.Ct. 955, 959-962, 8 L.Ed.2d 98 (1962) (same).¹⁰ If the record shows that a federal constitutional challenge to a state statute was brought to the attention of the state court "with fair precision and in due time," then "the claim is . . . regarded as having been adequately presented." New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928). Indeed, if the highest state court reaches the federal constitutional question and decides it on the merits, this Court will consider the case despite any possible failure of the litigants to raise the federal question in compliance with state procedural requirements. Charleston Federal Savings & Loan Assn. v. Alderson, supra, at 185-186, 65 S.Ct., at 627; Louisville & Nashville R. Co. v. Higdon, 234 U.S. 592, 598, 34 S.Ct. 948, 950, 58 L.Ed. 1484 (1914); see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476, 95 S.Ct. 1029, 1036, 43 L.Ed.2d 328 (1975).

Since appellants challenged the constitutionality of the Delaware statutory scheme at each stage of the state-court litigation, and the Delaware Supreme Court expressly addressed the issue, ruling that the termination-of-parental-rights procedure was constitutional, this Court's dismissal of the appeal for want of a properly presented federal question is unprecedented and inexplicable.¹¹

II

The living situation of appellants and their children has changed dramatically since the trial court proceedings in this case. Doe and Roe have ceased to live together, thus ending the incestuous relationship that formed the predicate for the Superior Court's original judgment of unfitness. See App. to Juris. Statement 5b. According to their attorney, Doe now resides in another State, while Roe has married and now lives with her husband and his child in Delaware. Tr. of Oral Arg. 4. Doe and Roe have not seen their five children since 1975.¹² The children, who ranged in age from 11 months to 4 years old when the Superior Court issued its first order of termination in 1975, are now about 6 to 9 years old. The children have never lived together as a family, and are now in four separate placements. Appellants' attorney stated at oral argument that "the eventual goal of the mother" is to obtain custody of her children, and that she would permit the father to visit them. Id., at 3. There is no evidence on any of these matters in the record because it has been closed since December 1976. Id., at 39.

Moreover, Del. Code Ann., Tit. 13, § 1103 (1975), was amended, effective July 11, 1980, to alter the standard for termination of parental rights. Instead of requiring a finding of "unfitness" as a predicate for termination, the new statute provides for termination if the parents "are not able, or have failed, to plan adequately for the child's physical needs or his mental and emotional health and development" and:

"a. In the case of a child in the care of an authorized agency:

"1. The child has been in the care of an authorized agency for 1 year, or there is a history of previous placement or placements of this child, or a history of neglect, abuse, or lack of care of other children by this parent; and

"2. The conditions which led to the child's placement still persist, and there appears to be little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future.

"b. In the case of a child in the home of the stepparent or blood relative:

"1. The child has resided in the home of the stepparent or blood relative for a period of at least 1 year; and

"2. The Court finds the noncustodial parent or parents incapable of exercising parental...