Interest of Metteer, In re, 42229

• Decision Date: 22 May 1979
• Docket Number: No. 42229,42229
• Parties: In re Interest of David METTEER, a child under eighteen years of age. STATE of Nebraska, Appellee, v. Jeannette METTEER, Appellant.
• Court: Nebraska Supreme Court

Page 374

279 N.W.2d 374

203 Neb. 515

In re Interest of David METTEER, a child under eighteen years of age.

STATE of Nebraska, Appellee, v. Jeannette METTEER, Appellant.

No. 42229.

Supreme Court of Nebraska.

May 22, 1979.

Syllabus by the Court

1. Statutes: Parent and Child: Minors: Constitutional Law. Sections 43-202 and 43-209, R.S.Supp., 1978, which, respectively, define parental responsibilities and prescribe the conditions under which parental rights may be terminated, are sufficiently definite and are not void for vagueness. The constitutional requirement that statutory language must be reasonably certain or be held void for vagueness is satisfied by the use of ordinary terms which find adequate interpretation in common usage and understanding; the due process clause requires that the law give sufficient warning of conduct which is forbidden but it does not require a precise checklist of parental responsibilities and prohibited behavior.

2. Statutes: Parent and Child: Minors. Section 43-209, R.S.Supp., 1978, is not void because it allows the judge to consider the circumstances of individual cases in determining whether to terminate parental rights.

3. Statutes: Parent and Child: Minors. The State has a compelling interest in protecting minor children from abuse and neglect, and that interest may be implemented by statutes such as sections 43-202 and 43-209, R.S.Supp., 1978.

T. Clement Gaughan, Lancaster County Public Defender, and Dennis G. Carlson, Deputy Public Defender, Lincoln, for appellant.

Ronald D. Lahners, Lancaster County Atty., and Toni G. Thorson, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

This is an appeal from an order of the Separate Juvenile Court of Lancaster County, made on June 12, 1978, terminating the parental rights of Jeannette Metteer as to her son, David, who was born on September 16, 1974. The contentions made in the appellant's first seven assignments of error may be stated as one, i. e., the evidence is insufficient to support the termination order. The eighth assignment relates to the contention that section 43-209, R.S.Supp., 1978, is void and unconstitutional because it is vague. We affirm.

The action out of which this appeal grew commenced on November 19, 1975, with the filing of a petition in the juvenile court under the provisions of section 43-202(2), R.S.Supp., 1978. The petition alleged David was a child whose health and well-being was endangered in that his mother, Jeannette, had assaulted him and threatened to kill him. The evidence adduced at the adjudication hearing established that the assault and injuries to the child had occurred on October 15, 1975, when the child was 13 months old. It further showed Jeannette was hallucinating at the time of the assault and she believed that David was a lizard from which she had to protect herself. The assault was brought to an end by a third person then on the premises. Jeannette had experienced somewhat similar hallucinations on other occasions. After the assault the child was removed from the home by the department of welfare and Jeannette was placed under psychiatric care.

On December 30, 1975, after hearing, the court entered an adjudication of neglect, placing David in the protective custody of the court and placing his legal custody in the Lancaster County department of public welfare. Thereafter, until the termination disposition, David resided in foster homes while his mother received a variety of psychiatric care including, at various times, hospitalization, day care, outpatient care, counseling, and medication. During portions of this period, sometimes on a regular and sometimes on an irregular basis, Jeannette exercised the right to visit David and sometimes had physical custody of him on weekends, pursuant to order of the court. The medical diagnosis was that, at the time of the assault, Jeannette was schizophrenic and psychotic. The ultimate diagnosis was schizophrenia, chronic undifferentiated type, meaning that Jeannette was not psychotic any longer, but her psychosis could return, especially during periods of stress.

In December 1976 and January 1977, a review hearing was held at which time the court found that Jeannette did not have the ability to care for David and the situation had not materially changed.

On March 30, 1978, a petition asking termination of the parental rights of Jeannette and of the child's father was filed. Its substance was that David continued to be without parental care because of the mental illness of the mother and there were reasonable grounds to believe the mental condition would continue for a prolonged and indefinite period of time; that Jeannette had been treated for a period of 21/2 years since the assault episode with little improvement; and that the father had abandoned the child and his whereabouts were unknown.

Both Jeannette and David were represented by guardians at litem and counsel throughout all the proceedings. Jeannette's position at the termination hearing was not that she should have custody of the child, but that the current arrangement of foster care and periodic visitations should continue until Jeannette could improve to the point where she might function as a parent. Jeannette did not testify at the termination proceeding. However, a psychiatrist who had examined her at the request of her counsel did testify on her behalf. He confirmed the diagnosis of schizophrenia, residual type, which he said was substantially the same as schizophrenia, chronic undifferentiated type. He admitted Jeannette could not meet the emotional needs of David, but thought the continuation of further therapy and counseling in parenting was worth a try, although he could not say for sure that Jeannette could ever function as a parent. After having called to his attention the types of treatment already administered and Jeannette's lack of motivation, he stated the prospects for change were very remote.

The evidence indicated the father of the child had never seen the boy nor supported him, and that the father's whereabouts were unknown.

We will not summarize the other evidence adduced at the termination hearing as it would serve no useful purpose. It was clearly sufficient to establish mental illness of the mother of such a degree and scope as to interfere in a very high degree with her ability to function as a parent and to show there was little or no prospect of improvement, in part because she could not or would not recognize she had a severe problem.

The court announced prior to making any determination that it would require clear and convincing proof of the allegations in the petition. Applying that standard, the evidence supported the judgment.

We now examine the claim that section 43-209, R.S.Supp., 1978, is void for vagueness. The appellant's position is founded upon the following premises and reasoning. The integrity of the family unit, in this instance the continuing legal and social relationship of parent and minor child, is one of the fundamental rights guaranteed by the Constitution of the United States. Stanley v. Illinois, 405 U.S....