Linn v. Linn

• Decision Date: 03 January 1980
• Docket Number: No. 42539,42539
• Parties: Leilani Lee LINN, Appellee and Cross-Appellant, v. Roland Roberts LINN, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 765

286 N.W.2d 765

205 Neb. 218

Leilani Lee LINN, Appellee and Cross-Appellant, v. Roland Roberts LINN, Appellant and Cross-Appellee.

No. 42539.

Supreme Court of Nebraska.

Jan. 3, 1980.

Syllabus by the Court

1. Constitutional Law: Statutes: Waiver: Appeal and Error. Although normally the constitutionality of a legislative act must be raised at the trial or it will be considered to be waived, this court reserves the right to note and correct plain error which appears on the face of the record in furtherance of the interests of substantial justice.

2. Appeal and Error. Depending upon the nature of the action, we are inclined to note plain error which, if regarded, would necessitate a reversal and, if disregarded, would impose unjust results or consequences.

3. Divorce: Parent and Child. The right of a parent to maintain custody of his or her own child free of interference from the state is a natural right subject only to the paramount interest which the public has in the protection of the rights of a child.

4. Constitutional Law: Statutes: Due Process. The Due Process Clause of the Fourteenth Amendment of the Constitution of the United States requires that a statute's language must be sufficiently specific that persons of ordinary intelligence must not have to guess at its meaning. The statute must provide adequate notice of what conduct it requires or proscribes, as well as guidelines by which a violation of the statute may be fairly and nonarbitrarily determined.

5. Divorce: Parent and Child: Statutes: Constitutional Law. Termination of parental rights because it is in the "best interests and welfare of the children," as provided for in section 42-364, R.R.S.1943, is not sufficiently specific to apprise parents of why the state may find it necessary to terminate parental rights and is an insufficient warning of prohibited conduct by which the parents can regulate their parental activities. As such, it is impermissibly vague and is unconstitutional.

6. Constitutional Law: Statutes. Where an offending portion of a legislative act can be separated from the remainder so that the latter may be enforced independent of the former, and the invalid portion did not constitute such an inducement to the passage of the valid parts so that the latter would not have been passed without the former, the act is severable and the valid portions may remain enforceable.

Regina C. Williams-Rotar of Ellick, Spire & Jones, Omaha, for appellant.

William L. Monahan, Omaha, for appellee.

Ronald L. Schiltz and Thomas C. Prohaska of Reedy, Schiltz & Prohaska, Omaha, guardians ad litem.

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

HASTINGS, Justice.

This was a divorce action in which, after application by the guardian ad litem of the parties' minor child born November 8, 1971, the trial court terminated the parental rights of both parties under the provisions of section 42-364, R.R.S. 1943, enacted as a result of the passage of L.B. 169, Laws 1978. Respondent has appealed and petitioner has cross-appealed. Errors assigned are: (1) The unconstitutional vagueness of section 42-364; (2) that both were denied substantive due process, contrary to the Fourteenth Amendment to the Constitution of the United States, in that section 42-364 does not set forth specific and reasonable standards for termination; (3) that both were denied procedural due process due to inadequate notice and employment by the trial court of an improper standard of proof; (4) that both were denied equal protection of the laws, in contravention of the Fourteenth Amendment, in that section 43-202 (sic), R.R.S. 1943 (section 43-201 et seq.), requires notice of reasons for termination and the parents are judged by different standards than those under section 42-364; and (5) the evidence, in any event, was insufficient to justify termination.

Roland and Leilani Linn are 27 and 38 years of age, respectively, and were married on June 25, 1971. Their minor child Juanita was born on November 8, 1971, has cerebral palsy, but is ambulatory; however, she is supposed to use braces. She has visual problems which with glasses make her correctable vision 20/50. Roland completed the seventh grade and has an I.Q. of 82. According to Dr. Jack Kenney, the court-appointed medical expert who examined him, Roland manifests "a willingness to be of help to his daughter and until the daughter outgrows Mr. Linn's intellectual capabilities, I feel that he could be an adequate parent." Leilani completed the eighth grade, and at the time of trial was trying to obtain her GED through enrollment in a survival skills program in Lincoln.

Although Roland has been unemployed on several occasions during the marriage and has held a variety of jobs, some temporary in nature, at the time of trial he was employed as a dishwasher and busboy for a restaurant, with a take-home pay of approximately $91 per week. Leilani apparently has not been employed during the marriage.

Various social agencies, including Child Protective Services, have worked with the parents since 1975 in an effort to provide a safe and adequate home for Juanita. In June of 1977, custody of Juanita was placed in the court with temporary possession in Roland. Later, upon a report that the child was found at home unattended, the court, in August of 1977, placed her in the temporary possession of the Douglas County welfare department. In November joint custody was placed with the court and Douglas County Social Services. Juanita has been in a foster home since that time and has shown considerable improvement in her personal hygiene, eating habits, social skills, and school work.

There is considerable evidence that Leilani does not feel capable of coping with the child's raising and has expressed her desire on one or more occasions to "give up the child." On the other hand, Roland has always wanted to keep Juanita and, during the times when he was not working, did a creditable job. However, he has no real practicable program for her long-term care. Everyone pretty well concedes that in the recent past both Roland and Leilani have been quite faithful in their allowed visitations with Juanita and a great deal of love and concern is expressed by and among all three of the parties. However, on the theory that adoption was a preferred alternative to long-term foster care, the parental rights were terminated, which gave rise to this appeal.

It is first necessary for us to address the constitutional question. It is conceded by all parties that no constitutional issues were raised in the pleadings or in the motions for a new trial. "The challenge to constitutionality of the statutes was not raised at the trial. Presentation of an issue for the first time in a motion for a new trial is not a ground for granting the motion. The constitutionality of a legislative act must be raised at the trial or it will be considered to be waived." State v. Norwood, 194 Neb. 595, 234 N.W.2d 601 (1975). "However, this court reserves the right to note and correct plain error which appears on the face of the record in furtherance of the interests of substantial justice." Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977). More specifically as to the problem at hand: "Considering the nature of this action and the fact that the custody of a minor child is involved, we have examined this record to determine whether or not there was plain error which, if regarded, would necessitate a reversal and, if disregarded, would impose unjust results or consequences." Smallcomb v. Smallcomb, 165 Neb. 191, 84 N.W.2d 217 (1957).

Although under the circumstances of this case we would be entitled to refuse to consider the constitutional issues, because of their importance and the uniqueness of the facts of this particular case, we do not choose to do so. We therefore review the trial court's decision against the backdrop of the parents' claims of unconstitutional vagueness and denial of substantive and procedural due process and equal protection. They all find their genesis in the Fourteenth Amendment to the Constitution of the United States, which prohibits a state from depriving any person of "life, liberty, or property, without due process of law" or from denying any person the "equal protection of the laws," and may be considered together.

It was well said by Mr. Justice McReynolds in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), when, referring to the fact that there had been no exact definition of the liberty thus guaranteed, "Without doubt, it denotes * * * the right of the individual * * * to marry, establish a home and bring up children * * * and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Within permissible limitations, of course, "the custody, care and nurture of the...