Gentry, Matter of
| Citation | 142 Mich.App. 701,369 N.W.2d 889 |
| Decision Date | 12 July 1985 |
| Docket Number | Docket No. 74602 |
| Parties | In the Matter of Everette Elizabeth GENTRY, Minor. Michigan DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Nordiya GENTRY and Solomon David Bryson, Respondents-Appellants. |
| Court | Court of Appeal of Michigan (US) |
John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Civ. and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for Department of Social Services.
Ilene Weiss Fruitman, P.C. by Ilene Weiss Fruitman, Union Lake, for Everette E. Gentry.
Michael A. Courtney, Detroit, for Nordiya Gentry and Solomon Bryson.
Before DANHOF, C.J., and T.M. BURNS, and MEGARGLE *, JJ.
Respondents are the natural parents of Everette Gentry, born out of wedlock on December 23, 1982. On September 13, 1983, the probate court terminated respondents' parental rights. This Court granted respondents' application for delayed appeal.
Four days after Everette's premature birth, Dr. Kunhutselo one of the examining physicians, concluded that Everette was suffering symptoms consistent with neonatal addiction to drugs. Dr. Kunhutselo filed a report of actual or suspected child abuse or neglect with the Michigan Department of Social Services (DSS). On the basis of Dr. Kunhutselo's report and the DSS's prior contact with respondent mother, DSS caseworker Julie Farina filed a petition for the temporary removal of Everette from respondent mother's custody. In accordance with the petition, Everette was placed in the temporary custody of the probate court on December 28, 1982.
On February 2, 1983, a supplemental petition for the termination of parental rights was filed against respondents. The petition alleged that the parents had neglected to provide Everette with proper and necessary care. On September 13, 1983, the probate court held a hearing on the petition to terminate parental rights. Both respondents were represented by counsel.
DSS caseworker Julie Farina testified that respondent mother was the mother of five other children, all of whom had been made permanent wards of the court. Testimony also revealed that respondent mother had been committed at various times to Ionia State Hospital for the Criminally Insane, Ypsilanti State Mental Hospital and Detroit Psychiatric Institute. The testimony at the hearing strongly indicated that respondent mother's mental problems had continued into the present. Ruth Adsit, a DSS foster care worker, testified that she had tried on three occasions to outline a plan for the return of Everette to her mother's custody, but respondent mother was not able to understand what was being discussed. Ms. Adsit also stated that respondent mother was unable to comprehend that a two-month-old baby was unable to talk, eat table food, and walk and the home was uninhabitable. Ms. Farina's testimony regarding the home was similar.
Both the DSS caseworker and the foster care worker testified that respondent father had had no contact of any type with his daughter. Although he had stated that he was Everette's father, he had made no attempt to file paternity proceedings. He had never visited the child or brought gifts. Furthermore, the father had paid nothing in support for the child and had expressed no interest in the child's welfare.
The probate court terminated respondents' parental rights and placed the child in the permanent custody of the court. The court found that respondent father had not made regular or substantial efforts to communicate with the child and had therefore abandoned and deserted his daughter. The probate court determined that respondent mother was unable to provide proper care and custody for the child because of mental deficiency and that there was no reasonable expectation that she would be able to assume care and custody of the child within a reasonable length of time. The court also found that both parents appeared unable to provide the child with a fit home, by reason of neglect, and there was no reasonable prospect that they would be able to do so in the foreseeable future.
On appeal, respondents argue that Sec. 2(b), M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178 (598.2[b], and Sec. 19a, M.C.L. Sec. 712A.19a; M.S.A. Sec. 27.3178 (598.19a), are unconstitutionally vague. We note that respondents did not raise this issue before the probate court. Therefore, the issue is not preserved for appellate review in the absence of manifest injustice. People v. Clopton, 117 Mich.App. 673, 675, 324 N.W.2d 128 (1982). A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States. See In the Matter of LaFlure, 48 Mich.App. 377, 210 N.W.2d 482 (1973), lv. den. 390 Mich. 814 (1973). Since manifest injustice to respondents would occur if their parental rights were terminated under an unconstitutional statute, we choose to review respondents' constitutional argument.
Jurisdiction was initially asserted over Everette pursuant to Sec. 2(b) of juvenile code, M.C.L. Sec. 712A.1 et seq.; M.S.A. Sec. 27.3178(598.1) et seq., which provides in pertinent part:
"(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in, or whose mother is unmarried and without adequate provision for care and support." M.C.L. Sec. 712A.2(b); M.S.A. Sec. 27.3178(598.2[b].
Section 19a of the juvenile code sets forth the circumstances under which a parent's right to custody and control of his or her child may be permanently severed. In the present case, respondents' parental rights were terminated pursuant to the following subsections:
* * *
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"(e) The parent or guardian is unable to provide a fit home for the child by reason of neglect." M.C.L. Sec. 712A.19a; M.S.A. Sec. 27.3178(598.19a).
Respondents argue that Sec. 2(b) as well as Sec. 19a are unconstitutionally vague. Specifically, respondents claim that "fit home", "proper home", "proper care and custody", "mental deficiency or mental illness", and "reasonable expectations and probabilities" are terms which are too vague to permit a person of ordinary or reasonable intelligence to discern what behavior is prohibited by Secs. 2(b) and 19a. Respondents also argue that the statute is overbroad and confers too much discretion on the trier of fact.
A statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overbroad and impinges on First Amendment freedoms. People v. Howell, 396 Mich. 16, 20, 238 N.W.2d 148 (1976). In the present case, respondents challenge the statute on all three grounds. However, constitutional challenges on the basis of vagueness, other than those based on First Amendment rights, must be examined in light of the facts of the case at hand. Howell, supra, p. 21, 238 N.W.2d 148. Moreover, for respondents to have standing to challenge the statute based on overbreadth, the statute must be overbroad in relation to respondents' conduct. One may not challenge a statute on grounds of overbreadth when the statute clearly applies. People v. Green, 123 Mich.App. 563, 565, 332 N.W.2d 610 (1983). 1
In the present case, there is no question that respondents' conduct clearly fits within the statute. The uncontradicted testimony at the hearing indicated that respondent father had no contact whatsoever with his daughter; he has never seen her, provided for her support, or sent her gifts. Consequently, abandonment, as well as total neglect, was established. As for respondent mother, the fact that the child suffered from drug withdrawal at birth constituted strong evidence in itself of neglect. In the Matter of Baby X, 97 Mich.App. 111, 293 N.W.2d 736 (1980). In addition, respondent mother had a 20-year history of serious mental problems, which included several...
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