J. P., In re

• Decision Date: 09 June 1982
• Docket Number: No. 17386,17386
• Citation: 648 P.2d 1364
• Parties: In re J. P.
• Court: Utah Supreme Court

Page 1364

648 P.2d 1364

In re J. P.

No. 17386.

Supreme Court of Utah.

June 9, 1982.

David L. Wilkinson, Atty. Gen., Sharon Peacock, Asst. Atty. Gen., Salt Lake City, for appellant.

Steven Kuhnhausen, Salt Lake City, for respondent.

OAKS, Justice:

In the Children's Rights Act, ch. 40, 1980 Utah Laws 288, amending U.C.A., 1953, § 78-3a-48(1), the Utah Legislature repealed the statutory provision allowing a court to "decree a termination of all parental rights" to a child on a finding that a parent is "unfit or incompetent by reason of conduct or condition seriously detrimental to the child," and substituted a provision permitting "involuntary termination" upon a finding that "such termination will be in We emphasize at the outset that this case involves a permanent termination of all parental rights, not a question of which party shall have custody of a minor child for the time being. ¹

the child's best interest." The sole question in this appeal is whether this new provision is constitutional under the Constitutions of Utah and the United States.

The record facts are scanty. On May 20, 1980, the Utah Division of Family Services (DFS) filed a petition with the juvenile court praying that the parental rights of the natural mother of J. P., then four years old, be terminated in the best interest of the child pursuant to U.C.A., 1953, § 78-3a-48(1), as amended. The mother filed a motion to dismiss the petition, alleging that the statute relied upon by DFS was unconstitutional. After a hearing, Presiding Judge Judith Whitmer granted the mother's motion to dismiss, holding the amended statute to be a violation of the mother's substantive right to "liberty, privacy, and family integrity" as guaranteed by the Ninth and Fourteenth Amendments to the United States Constitution, and void on its face for vagueness in contravention of procedural due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 7 of the Constitution of Utah. DFS has appealed. No other facts are before us. We have no inkling of the circumstances giving rise to the petition for termination of parental rights, since no evidentiary hearing was held.

I. THE 1980 AND 1981 AMENDMENTS

The 1980 amendment to the Juvenile Court Act, U.C.A., 1953, § 78-3a-48(1), represents a major departure from the statutory and decisional law of this state, which has invariably upheld the rights of natural parents except in extreme circumstances.

The first compilation of statutory law after statehood gave a father and a mother the right to prevent the adoption of his or her child (with its concomitant termination of the parent's rights) unless the parent was "deprived of civil rights, or adjudged guilty of adultery, cruelty, or desertion, and for either cause divorced, or adjudged to be a habitual drunkard, or who has been judicially The Juvenile Court Act of 1965 empowered the juvenile court to terminate the rights of a natural parent (a) who was "unfit or incompetent by reason of conduct or condition seriously detrimental to the child," (b) who "abandoned the child," or (c) who "substantially and continuously or repeatedly refused or failed to give the child proper parental care and protection." U.C.A., 1953, § 78-3a-48, before amendment by Ch. 40, 1980 Utah Laws. As in the adoption statute, the rights of the parents were respected: No parent could be deprived of his or her parental rights without a prior showing of unfitness, abandonment, or substantial neglect. So long as a parent's conduct remained within those broad bounds, the state was not empowered to terminate the parent-child relationship.

deprived of the custody of the child on account of cruelty, neglect, or desertion." R.S.Utah 1898 § 4. This solicitude for parental rights is reflected in our current adoption statutes, which permit the adoption of a child without a natural parent's consent only if that parent "has been judicially deprived of the custody of the child on account of cruelty, neglect, or desertion," or has abandoned the child. U.C.A., 1953, §§ 78-30-4, 78-30-5.

As a counterweight to this concern for parental rights, this Court has consistently emphasized the interest of the state, as parens patriae, in children whose parents abuse them or do not adequately provide for their welfare. For example, in State in re F v. Dade, 14 Utah 2d 47, 376 P.2d 948 (1962), a leading pre-1965 case, a unanimous Court declared that "the cutting of family ties is a step of the utmost gravity which should be done only for the most compelling reasons...." Nevertheless,

Quite beyond and more important than the rights and privileges of the parents is the welfare of these children and their prospects for becoming well-adjusted, self-sustaining individuals. This is the consideration of paramount importance.

14 Utah 2d at 49-50, 376 P.2d at 949-50. At the same time, the Court recognized the long-standing presumption "that it is generally for the best interest and welfare of children to be reared under the care of their natural parents." 14 Utah 2d at 49, 376 P.2d at 949.

After the enactment of the termination of parental rights provision of the Juvenile Court Act of 1965, the Court continued to uphold the natural and legal right of parents while stressing the strong interest of the state in protecting children whose parents are unfit and who suffer serious detriment as a result. For example, in State in re Jennings, 20 Utah 2d 50, 52, 432 P.2d 879, 880 (1967), this Court stated:

While ordinarily the parents have a right to the custody of their children, the State has an interest in the welfare of the children which is paramount thereto. It goes beyond the natural right and authority of the parent to the child's custody, and so children may be taken away from parents in proper circumstances.

We have been willing to uphold the termination of parental rights when circumstances clearly showed that the condition or conduct of the parents exceeded the natural and legal limits of parental discretion. State in re Mullen, 29 Utah 2d 376, 510 P.2d 531 (1973) (father brutally killed wife in presence of children); State in re S J, Utah, 576 P.2d 1280 (1978) (parents suffering from "acute alcoholism," and had done nothing when daughter was sexually molested in their presence); State in re R J, Utah, 589 P.2d 244 (1978) (father suffered "severe personality disturbance," had attempted suicide on two occasions, had assaulted children on numerous occasions; mother, a deaf mute with brain damage or schizophrenia, was "unable to deal with concepts such as 'good and bad' "); Adoption of McKinstray v. McKinstray, Utah, 628 P.2d 1286 (1981) (father who had not provided child support or contacted children for over six years held to have abandoned them); State in re Orgill v. Thomason, Utah, 636 P.2d 1075 (1981) (mother who had not contacted children for In short, both before and after the Juvenile Court Act of 1965, this Court has recognized the limits of the "natural right and authority of the parent" and the importance of considering the interests of the child.

over six years held to have abandoned them).

Against this statutory and decisional history, the 1980 Legislature enacted a statute entitled "Children's Rights." Ch. 40, 1980 Utah Laws 288. In addition to making some minor editorial improvements in the statute, which are not challenged here, this Act deleted from U.C.A., 1953, § 78-3a-48(1) all reference to parental unfitness and empowered the juvenile court to order an "involuntary termination" of all parental rights of one or both parents upon a finding

(a) That such termination will be in the child's best interest. In determining the child's best interest the court shall consider, but is not limited to, the following circumstances:

(i) The willingness of the parent or parents to receive or care for the child;

(ii) That the child has been removed from the custody of the parent by temporary order of the court for a period of six months and further finds that:

(A) The conditions which led to the removal still exist;

(B) There is 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; and

(C) The continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home ....

As amended in 1980, the statute makes no reference to the right of a fit, competent parent to continue the parent-child relationship. On the contrary, it suggests that if, after "considering" certain specified factors, the juvenile court concludes that the "child's best interest" will be served by terminating the parent's rights, the parent can be stripped of her rights without any showing of wrongdoing or unfitness on her part. ²

In its brief, the State attempts to minimize the legal change wrought by the 1980 amendment. While we agree with the State's explanation that "the best interests of a child are served by a fit parent, and a fit parent will serve the best interests of the child," we cannot join the State in its conclusion that "any distinction (between the best interest and unfitness standards) is a mere matter of semantics," and consequently that "any concern over the new standard is unfounded." On the contrary, the 1980 amendment did not merely refine or elaborate the requirement that a parent be found "unfit or incompetent" in order to terminate his or her parental rights. Instead, it replaced that subsection, and in doing so deleted a statutory protection for the parental rights of fit parents.

The 1980 amendment's substitution of "the child's best interest" as the governing standard for termination does not provide equivalent protection for parental rights. The best interest of the child has always been a paramount or "polar star" principle in cases involving termination of parental rights, but it has not been the sole...