Johnson, Matter of

• Citation: 45 N.C.App. 649,263 S.E.2d 805
• Decision Date: 18 March 1980
• Docket Number: No. 793SC541,793SC541
• Parties: In the Matter of Tempie J. JOHNSON.
• Court: Court of Appeal of North Carolina (US)

Page 805

263 S.E.2d 805

45 N.C.App. 649

In the Matter of Tempie J. JOHNSON.

No. 793SC541.

Court of Appeals of North Carolina.

March 18, 1980.

Beaman, Kellum, Mills & Kafer by Charles William Kafer, New Bern, for respondent-appellant.

Ward & Smith by Michael P. Flanagan, New Bern, for petitioner-appellee.

CLARK, Judge.

We consider first the respondent's argument that the trial court erred in denying her motion for directed verdict at the close of all the evidence. In doing so we think it appropriate to make some analysis of the statutory scheme (North Carolina General Statutes, Ch. 35, Art. 7, effective 1 January 1975), for involuntary sterilization of persons who are mentally ill or mentally retarded.

Procreation, together with marriage and marital privacy, are recognized as fundamental civil rights protected by the due process and equal protection clauses of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Where fundamental personal liberties are at issue the state may prevail only by demonstrating a compelling governmental interest, as for example, in the public health and welfare. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

The North Carolina Supreme Court found that the hearing procedures provided for in the sterilization statutes (N.C.Gen.Stat. §§ 35-36 to 35-50) protected the due process rights of the respondent and that the statutory scheme was constitutionally valid. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976). The statutory scheme also survived a constitutionality attack in a Federal Court, except for subsection (4) of N.C.Gen.Stat. § 35-39, which provided that a petitioner should initiate proceedings, "(w)hen requested to do so in writing by the next of kin or legal guardian of such patient, resident of an institution, or noninstitutional individual." This subsection was held to be an arbitrary and capricious delegation of unbridled power. N. C. Association for Retarded Children v. State, 420 F.Supp. 451 (M.D.N.C.1976).

Though the sterilization statutes have been determined to meet the tests of constitutionality, the absence of standards and statutory definitions requires that the courts construe and apply the statutory provisions to the evidence in each case so as to adequately protect the respondent's fundamental rights.

The statutory scheme provides in substance two bases for sterilization: (1) the respondent because of mental deficiency would probably be unfit to care for a child or children, and (2) the respondent would be likely to procreate a child or children who would probably have serious mental deficiencies. N.C.Gen.Stat. § 35-43. The second basis was involved in Moore, supra. The first basis is involved in the case sub judice. The legislative dual purposes, and compelling state interest, are, first, to prevent the birth of a child that cannot be cared for by its parent, and, second, to prevent the birth of a defective child.

Under the second basis, if requested, a hearing is required to determine the respondent's ability to care for a child or children. Id. The burden is on the petitioner (the State officer) to prove by "clear, strong, and convincing" evidence that the respondent:

1. is a mentally ill or retarded person subject to the sterilization statutes (Art. 7, supra );

2. has a physical, mental or nervous disease or deficiency;

3. the disease or mental deficiency is not likely to materially improve, and

4. would probably be unable to care for a child or children.

The absence of statutory guidance for determining what constitutes proper care of a child and a person's inability to provide that care places on the courts the burden of requiring that the evidence establishes conclusively a compelling state interest before the fundamental right of procreation can be infringed. The statute does not limit unfitness to mental retardation. The term "physical, mental or nervous disease or deficiency" includes qualities other than diminished intelligence. The range of retardation can vary from mild to severe. We hold that a presumption of unfitness founded solely on retardation is unwarranted. See, e. g., Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (presumption of teacher's unfitness due to pregnancy is unconstitutional). The burden on the petitioner to show personality defects or traits of unfitness apart from...