State v. McMaster

• Decision Date: 23 June 1971
• Citation: 486 P.2d 567,92 Adv.Sh. 1563,259 Or. 291
• Parties: In the Matter of Anna Christine McMaster, a minor child. STATE of Oregon, Respondent, v. Edward McMASTER and Grace Nadine McMaster, natural parents of Anna Christine McMaster, Petitioners.
• Court: Oregon Supreme Court

Page 567

486 P.2d 567

259 Or. 291

In the Matter of Anna Christine McMaster, a minor child.

STATE of Oregon, Respondent, v. Edward McMASTER and Grace Nadine McMaster, natural parents

of Anna Christine McMaster, Petitioners.

Supreme Court of Oregon.

Argued and Submitted April 5, 1971.

Decided June 23, 1971.

Douglas S. Green, Portland, argued the cause for petitioners. With him on the briefs was Legal Aid Service, Portland.

Elizabeth Preston, Deputy Dist. Atty., Portland, argued the cause for respondent. With her on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

DENECKE, Justice.

This is a proceeding to terminate parental rights in a four-year-old child under ORS 419.523(2)(a), which provides for such termination if parents are found to be 'unfit by reason of conduct or condition seriously detrimental to the child.' The parents have petitioned for review of a decision by the Court of Appeals which affirmed an order terminating their parental rights in the child and authorized the Oregon State Public Welfare Commission to place the child for adoption without consent of the parents. Or.App., 91 Adv.Sh. 771, 476 P.2d 814 (1970).

Two questions are presented for decision:

(1) Whether the trial court erred in overruling a demurrer to the petition to terminate parental rights upon the ground that ORS 419.523(2)(a) is unconstitutional as a violation of due process of law under the Fifth and Fourteenth Amendments of the Constitution of the United States and Art. I, § 10, of the Oregon Constitution 'in that said statute is unconstitutionally broad, uncertain and vague,' and

(2) Whether the evidence was 'sufficient to hold that defendants were 'unfit by reason of conduct or conditions seriously detrimental to the child'.'

Because of the importance of the first of these questions, we granted the petition for review.

The facts of this case illustrate one of the serious social problems of our times. This child, four years of age at the time of trial, was born out of wedlock. The parents were subsequently married. When two months of age she was taken from her mother and placed in emergency custody. She was placed with foster parents, where she has remained. She was found to be within the jurisdiction of the juvenile court. The petition for termination of parental rights was filed pursuant to the order of the juvenile court.

In determining the constitutional issue a review of the entire procedure in a case such as this may be helpful in having the proper perspective.

In order for parental rights to be terminated under ORS 419.523 the child must be within the jurisdiction of the juvenile court. Jurisdiction is fixed by ORS 419.476(1), which provides:

'The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:

'(a) Who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city; or

'(b) Who is beyond the control of his parents, guardian or other person having his custody; or

'(c) Whose behavior, condition or circumstances are such as to endanger his own welfare or the welfare of others; or

'(d) Who is dependent for care and support on a public or private childcaring agency that needs the services of the court in planning for his best interests; or

'(e) Either his parents or any other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being; or

'(f) Who has run away from his home.'

Once a child is within the jurisdiction of the juvenile court, the court may take the child from the legal custody of the parents and place the custody of the child with other persons or an institution. ORS 419.507. Such a change in custody can be for the remainder of the child's minority.

ORS 419.523 provides:

'(1) The parental rights of the parents of a child within the jurisdiction of the juvenile court as provided in subsection (1) of ORS 419.476 may be terminated as provided in this section and ORS 419.525. The rights of one parent may be terminated without affecting the rights of the other parent.

'(2) The rights of the parent or parents may be terminated as provided in subsection (1) of this section if the court finds that the parent or parents:

'(a) Are unfit by reason of conduct or condition seriously detrimental to the child; or

'(b) Have wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child for one year. In determining whether the parent has wilfully deserted or neglected without just and sufficient cause to provide proper care and maintenance for the child, the court may disregard incidental visitations, communications and contributions.'

This is not a criminal procedure such as State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969). Admittedly, a serious interest of the parents is in issue which can be assumed to be as important to the parents as their freedom, which is in jeopardy in a criminal proceeding.

It is also not a regulatory proceeding in which the state is pitted against an individual. The statute is not one which forbids or requires the doing of an act. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). An example of what a regulatory proceeding is is Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375, 387 (1969). That decision involved an appeal from a decision of the Board of Education revoking a license to teach for violation of the Education Code. The court held the Education Code had to satisfy the same requirements for specificity as did criminal laws.

The procedure here is not the state against the parents. Three parties are involved: the state, the parents and the child. The welfare of the child is the primary consideration of the Juvenile Code of 1959. ORS 419.474. That the welfare of the child is the primary purpose does not lead to the conclusion that the rights of the parents are without constitutional protections. State v. Jamison, 251 Or. 114, 444 P.2d 15, 444 P.2d 1005 (1968). This emphasis upon the welfare of the child does imply, however, that, unlike criminal statutes in which the interests of only one set of individuals is involved, the constitutional issue must be examined with the interests of both the child and the parents. What might be unconstitutional if only the parents' rights were involved is constitutional if the statute adopts legitimate and necessary means to protect the child's interests. In our opinion it does.

It is significant that the statute we are testing is in the juvenile code and not the criminal code or some other portion of our laws. While the juvenile code is administered by courts, the code directs the juvenile courts to act in some manners similar to a social administrative agency. Much of the code and much of the juvenile court's budget is devoted to the proper disposition of the child after the child comes within the court's jurisdiction. To adequately perform this function the legislature reasonably deemed it desirable to give the juvenile court greater flexibility than may be thought desirable for a court functioning in its criminal role.

The flexibility granted the juvenile court by the legislature is epitomized by the general charge made in ORS 419.474(2):

'The provisions of ORS 419.472 to 419.587 shall be liberally construed to the end that the child coming within the jurisdiction of the court may receive such care, guidance and control, preferably in his own home, as will lead to the child's welfare and the best interests of the public, and that when a child is removed from the control of his parents the court may secure for him care that best meets the needs of the child.'

We are not shocked by a grant of flexibility to administrative agencies dealing with our material affairs such as businesses and professions. For example, a common carrier can receive or be denied a certificate to operate, depending upon whether or not the Public Utility Commissioner finds the service proposed 'is or will be required by the present or future public convenience and necessity.' ORS 767.135(4)(c). Admission to the bar is conditioned upon having 'the requisite learning and ability' as shown by an examination. ORS 9.220(3). There is no reason why the welfare of the children of the state should be relegated to a system of rigid rules and standards.

The United States Supreme Court has held that in the states' juvenile procedures at the adjudicatory stage, the states cannot ignore some of the procedural due process requirements. That Court, however, has not held that all the substantive due process requirements of the criminal law were applicable to juvenile proceedings, particularly the dispositional process of juvenile proceedings. It has indicated to the contrary. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Court held that the Due Process Clause required that a juvenile could be found to be 'delinquent' only by evidence convincing beyond a reasonable doubt. The Court, however, pointed out that under its decision, 'the opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging view of the child's social history and for his individualized treatment will remain unimpaired.' 397 U.S. at 366, 90 S.Ct. at 1074.

Even in cases involving criminal statutes an important consideration is whether the statute is as explicit as the legislature can draw and accomplish the purpose it intends. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877, 1882 (1946); 62 Harv.L.Rev. 76, 82--83 (1948). Mr. Justice Frankfurte...