Neglected Child, In re, 158-71

• Decision Date: 18 October 1972
• Docket Number: No. 158-71,158-71
• Citation: 130 Vt. 525,296 A.2d 250
• Court: Vermont Supreme Court
• Parties: In re Proceedings Concerning a NEGLECTED CHILD.

Page 250

296 A.2d 250

130 Vt. 525

In re Proceedings Concerning a NEGLECTED CHILD.

No. 158-71.

Supreme Court of Vermont.

Oct. 18, 1972.

Kimberly B. Cheney, State's Atty., for the State.

Alan W. Cheever, Barre, for the child.

John J. Easton, Jr., Montpelier, for the mother.

Thomas F. Koch, Barre, for the father.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

DALEY, Justice.

This is a proceeding brought under the Juvenile Procedure Act, 33 V.S.A. §§ 631-666. The proceeding was commenced when, on August 7, 1970, the state's attorney for Washington County brought a petition to the District Court of Vermont, Unit No. 5, Washington Circuit, sitting as a Juvenile Court. In the petition, the state's attorney alleged that the child in question, then approximately two months of age, was a neglected child because 'He is without proper parental care and control and subsistence, medical and other care and control necessary of his well being.'

On the same day as the filing of the petition, the Chief of the City of Montpelier's Police Department took the child into custody as he had 'reasonable grounds' to believe the child was in immediate danger from the child's surroundings, and that the child's removal was necessary for the protection of the child. 33 V.S.A. § 639(3). The child was delivered to the court, and later that day, a temporary detention hearing was held. 33 V.S.A. §§ 640(2), 642. At this hearing, at which the mother was present, a social worker with the Child Welfare Section of the Vermont Department of Social Welfare, testified as to the condition of the child when she observed him in the mother's apartment on two occasions. At the close of the hearing, the court found 'The child may be harmed by continued residence in the child's present environment.' Based upon this finding, the court issued a temporary detention order transferring legal custody of the child to the Commissioner of Social Welfare until a hearing on the neglect petition brought by the state's attorney could be held. In the detention order, the court also ordered the child to be detained at 'a place to be determined by the Commissioner of Social Welfare.'

During the next few days the court appointed counsel for the mother, father, and child. A guardian ad litem was also appointed for the child. 33 V.S.A. § 653.

Commencing on August 19, 1970, three hearings were held on the neglect petition which had previously been filed by the state's attorney. At these hearings testimony was taken from a physician who had previously treated the child, a Montpelier Home Health Agency nurse, a Family Services social worker, a psychiatric social worker, and a neighbor. At the third hearing, prior to the state's resting its case, held on October 9, 1970, counsel for the parents stipulated that the child may be placed in a foster home by order of the court on a temporary basis solely because the mother was unable to take care of the child due to the fact her husband was presently incarcerated in state prison. On the facts stipulated, the court made a finding the child was without parental care at that time; and therefore was a neglected child. At that time the judge made it clear to all 'that if circumstances change with the mother or father whereby they are in a position to assume the role of mother and father of this child and provide the care and parental responsibility necessary, you (the attorneys) can petition the court at any time for hearing to reconsider the Order made today.'

Counsels for the father, mother, and infant waived the disposition hearing, and custody to the child was transferred to the Commissioner of Social Welfare with residual parental rights and guardianship remaining with the mother, 33 V.S.A. § 654.

On July 23, 1971, the state's attorney petitioned the court for commitment of the child to the Commissioner of Social Welfare without limitation with respect to adoption. During the hearing held on this petition, testimony as to the father's condition was taken from a psychiatrist, who had known the father for two years, and studied his case. The psychiatrist classified the father's mental state as being personality pattern disturbance, anti-social personality. He further stated the father's anti-social personality would never terminate and that it was his opinion the father would not be a fit custodian to have care of the child.

Testimony as to the mother's condition was taken from the chief medical records' librarian at Central Vermont Hospital, the child's maternal grandmother, a social worker, and two psychiatrists. This testimony amply indicated the mother was not fit to raise the child.

At the close of this hearing the court, on September 22, 1971, ordered transferral of legal custody of the child to the Commissioner of Social Welfare without limitation as to adoption, guardianship transfered to the Commissioner of Social Welfare, and residual parental rights transferred to the Commissioner of Social Welfare. It is from this order the parents have appealed to this Court.

The appellants have raised and briefed five assignments of error; namely, (1) that 33 V.S.A. § 632(12) is so broadly termed that it deprived the appellants due process because it allowed the state to take the child without a showing of a compelling state interest; (2) that the failure of the police chief to write down the time the child was taken and testify at the hearing, and the court to name the place where the child was detained constituted a deprivation of due process; (3) that the mother had a right to counsel at the initial detention hearing held on August 7, 1970; (4) that there had been no changed circumstances since the finding of neglect on October 9, 1970; and (5) that it was erroneous for the court to entertain the state's petition for commitment without limitation with respect to adoption because of the condition under which the stipulation was offered at the October 9, 1970 hearing, and to do so constituted an abuse of the court's discretion.

The first issue raised by the appellants assumes the neglect statute, 33 V.S.A. § 632(12), which states as follows:

"Neglected child' means a child who:

(A) has been abandoned by his parents, guardian or other custodians, or

(B) is without proper parental care or control, or subsistence, education, medical or other care or control necessary for his well-being.',

is so broadly termed that the state need not show a compelling state interest when it brings a neglect petition. In making this assumption, the appellants are challenging the statute as being unconstitutional on its face.

That the state must first show a compelling state interest before it encroaches upon the private realm of family life is not questioned. See Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). The interest of the state in child neglect is found in the purposes sought to be effectuated by the entire Juvenile Procedure Act. Those purposes are found at 33 V.S.A. § 631(a) wherein it is stated in part:

'(1) to provide for the care, protection and wholesome moral, mental and physical development of children coming within the provisions of this chapter;

(3) to achieve the foregoing purposes, whenever possible, in a family environment, separating the child from his parents only when necessary for his welfare or in the interests of public safety; and

(4) to provide judicial procedure through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.'

See also In re Rathburn, 128 Vt. 429, 434, 266 A.2d 423 (1970).

The ability of the state to separate neglectful parents from their children has been recognized as a legitimate state interest, and it also is not questioned. Stanley v. Illinois, 405, U.S. 645, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551, 559 (1972). When the state is regulating in this area, it acts as parens patriae to the child. The proceedings conducted thereto are entirely concerned with the welfare of the child. In re Rathburn, supra, 128 Vt. at 434, 266 A.2d 423; Town of Brighton v. Town of Charlestown, 114 Vt. 316, 321, 44 A.2d 628 (1945).

The Due Process Clause of the Fourteenth Amendment acts as a safeguard to insure the rights of the parents are not indiscriminately encroached upon. It compels the state to draw its statutes narrowly enough to not sweep beyond that area which the state seeks to regulate. To withstand the charge of being an unconstitutional delegation of legislative power, the statute, in this instance, 33 V.S.A. § 632(12), must establish reasonable standards to govern the achievement of its purposes and the execution of the powers which it confers. Vermont Home Mortgage Credit Agency v. Montpelier National Bank, 128 Vt. 272, 278, 262 A.2d 445 (1970).

In the instance of neglect the many diverse circumstances which give rise to a finding of neglect must be considered when the standards embodied in 33 V.S.A. § 632(12), are viewed in light of the due process clause. Once this is done, it becomes apparent the standards embodied within 33 V.S.A. § 632(12), are detailed enough to govern the achievement of the purposes the act seeks to fulfill; thereby avoiding an unconstitutional sweep beyond that area which the state has sought to regulate. We find no basis to support the appellants' contention that 33 V.S.A. § 632(12), is so broadly termed that it is unconstitutional on its face.

Appellants' second claim of error relates to several alleged procedural defects in the manner in which the child was taken into custody. The first error was allegedly committed by the police chief when he failed to note on the statement of custody the time the child was taken into custody. Instead the police chief merely indicated the date, August 7, 1970, on which the...