Doe v. Delaware

1 This Court granted appellants’ motion to seal the record, 445 U. S. 949 (1980), and the pseudonyms John Doe and Jane Roe have been substituted for appellants’ real names.

2 See Tr. of Oral Arg. 35. The Division has apparently not made any formal arrangements for adoptive homes for the children. See Del. Code Ann., Tit. 13, §§ 907-908 (1975) (making termination of the parental rights of the natural parents a prerequisite to adoption in the absence of the consent of the natural parents).

3 The order of termination issued orally by the Superior Court on September 12, 1975, App. to Juris. Statement 5b, was initially reversed by the Delaware Supreme Court for failure to decide whether termination of parental rights was in the best interests of the children, as required by Del. Code Ann., Tit. 13, § 1108 (1975). App. to Juris. Statement lc. On remand, the Superior Court concluded that Doe and Roe “are incapable of providing proper care for their children,” and that “it is in the best interests of the children that their parental rights of the children be terminated.” Id., at 3d. The Delaware Supreme Court affirmed. In re Five Minor Children, 407 A. 2d 198 (1979).

4 The Court apparently does not question the substantiality of the federal question presented by this appeal, since it is dismissing the appeal “for want of a properly presented federal question” rather than “for want of [a] substantial federal question,” e. g., Black v. Payne, 438 U. S. 909 (1978), or “for want of a properly presented substantial federal question,” e. g., Greenwald v. Maryland, 363 U. S. 721 (1960).

5 Appellants’ first argument “draw[s] in question the validity of a statute of [a] state on the ground of its being repugnant to the Constitution ... of the United States,” and is therefore within this Court’s appellate jurisdiction. 28 U. S. C. § 1257 (2). We may therefore assume jurisdiction to decide the second and third issues in the case as well. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 , 487, n. 14 (1975); Prudential Ins. Co. v. Cheek, 259 U. S. 530 , 547 (1922).

6 App. to Juris. Statement 2i-6i, 8i.

7 Opening Brief for Appellants in No. 259 (Del. Sup. Ct.) 2, 8 — 36; Reply Brief for Appellants in No. 259 (Del. Sup. Ct.) 1-21.

8 407 A. 2d, at 199-200 .

9 In Pearson v. Dodd, 429 U. S. 396 (1977), an appeal from the Supreme Court of Appeals of West Virginia was dismissed “for want of a properly presented federal question.” Id., at 398 . A reading of the per curiam opinion in Pearson reveals, however, that the dismissal should have been styled “for want of a substantial federal question,” for the Court determined that the appellant had “no constitutionally protected property or entitlement interest” upon which to base her claim. Ibid.

10 Dismissal for want of a properly presented federal question is distinguishable from dismissal because of the inadequacy of the record for deciding the question presented, e. g., Cowgill v. California, 396 U. S. 371 , 372 (1970) (Harlan, J., concurring); Mitchell v. Oregon Frozen Foods Co., 361 U. S. 231 (1960) (dismissal of writ of certiorari); but cf. Villa v. Van Schaick, 299 U. S. 152 , 155-156 (1936) (judgment on appeal vacated and remanded because of the inadequacy of the record), and from dismissal because problems of construction and interpretation of state law preclude addressing the constitutional issues “in clean-cut and concrete form,” e. g., Rescue Army v. Municipal Court, 331 U. S. 549 , 584 (1947). In the instant case, since appellants’ challenge to the Delaware termination-of-parental-rights statutes does not depend on the specific facts of the case, and since the Supreme Court of Delaware has resolved the questions of statutory interpretation relevant to this appeal, dismissal on the latter grounds would not be appropriate.

11 Naim v. Naim, 350 U. S. 985 (1956), is not to the contrary. In Naim, we dismissed the appeal for want of a properly presented federal question. In an earlier appeal in the same case, 350 U. S. 891 (1955), we vacated the judgment of the Supreme Court of Appeals of Virginia, and remanded for further proceedings. Our order explained: “The inadequacy of the record as to the relationship of the parties to the Commonwealth of Virginia at the time of the marriage in North Carolina and upon their return to Virginia, and the failure of the parties to bring here all questions relevant to the disposition of the case, prevents the constitutional issue of the validity of the Virginia statute on miscegenation tendered here being considered ‘in clean-cut and concrete form, unclouded’ by such problems. Rescue Army v. Municipal Court, 331 U. S. 549 , 584.” Ibid. On remand, the Supreme Court of Appeals of Virginia adhered to its decision, and noted that the record reflected the relation of the parties to the Commonwealth both before and after the marriage. Naim v. Naim, 197 Va. 734 , 735, 90 S. E. 2d 849 , 850 (1956). This Court’s subsequent dismissal of the appeal from that decision for want of a properly presented federal question is best understood, therefore, - as attributable to “the failure of the parties to bring here all questions relevant to the disposition of the case.” 350 U. S., at 891. In the instant case, there is no such failure.

12 Appellants state that the reason they have not seen their children since 1975 is that the Division did not permit them to visit. Brief for Appellants 10, n. 17. The record does not reflect, however, when or how often appellants attempted to see their children.

13 In order to require termination of parental rights, the Court must also make a “best interests of the child” determination as required by Del. Code Ann., Tit. 13, § 1108 (1975), which was not affected by the 1980 amendments.

14 In Sanks v. Georgia, 401 U. S. 144 (1971), this Court dismissed an appeal from the Supreme Court of Georgia after both the factual circumstances of the case and the applicable state law had so changed that the “focus of [the] lawsuit [had] been completely blurred, if not altogether obliterated, and our judgment on the important issues involved [had become] potentially immaterial.” Id., at 152 . The effect of dismissing in Sanks, however, was identical to vacating and remanding, because the appeal was from an interlocutory order, and the appellants were able to raise both state and federal claims, based on the altered circumstances and law, on remand. Id., at 148-150 . Moreover, it was doubtful that the federal constitutional question in Sanks continued to present a justiciable controversy sufficient to support Supreme Court jurisdiction in light of the *391 changed circumstances. Dismissal was therefore an appropriate disposition. To similar effect is United States v. Fruehauf, 365 U. S. 146 (1961).

15 That this Court has the power to decide for itself what effect the changes would have on the outcome of this case is not doubted. See Missouri ex rel. Wabash R. Co. v. Public Service Comm’n, 273 U. S. 126 , 131 (1927); Steamship Co. v. Joliffe, 2 Wall. 450 , 455-459 (1865). We have recognized, however, that the exercise of this power is at times “inconsistent with our tradition of deference to state courts on questions of state law.” Bell v. Maryland, 378 U. S. 226 , 237 (1964). To avoid this “pitfal[l],” we have adopted a policy of vacating and remanding the judgment where the effect of supervening events presents a question of state law. Ibid.

16 Appellants did not seek a remand in state court based on the changed factual circumstances. Tr. of Oral Arg. 12-14.

17 I express no opinion on whether appellants would be eligible for relief under Rule 60 of the Rules of Civil Procedure for the Superior Court of Delaware, which permits the Superior Court to “relieve a party . . . from a final judgment, order, or proceeding for . . . any . . . reason justifying relief from the operation of the judgment.” Nor do I mean to imply that the State, as custodian of the children, is without countervailing interest in obtaining a prompt resolution of this controversy. Until the order of termination is made final, the children may not be placed for adoption. Del. Code Ann., Tit. 13, §§ 907, 908 (1975). As this Court recognized in Smith v. Organization of Foster Families, 431 U. S. 816 , 833-838 (1977), the “limbo” in which children remain between leaving the care of their natural parents and entering the care of permanent adoptive parents may have deleterious consequences for them.

1 Appellants raise three constitutional objections to the termination order entered against them. See Brennan, J., dissenting, ante, at 384-385. In their brief on the merits, appellants argue the following questions: "1. Is the Delaware statute, which provides for the permanent termination of the parent-child relationship where the parent is ‘not fitted/ unconstitutionally vague and indefinite in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution? “2. In light of the protected nature of the family relationship under decisions of this Court, does the Due Process Clause and this Court’s decision in Addington v. Texas, 441 U. S. 418 (1979), preclude the termination of the parent-child relationship based upon a mere ‘preponderance of the evidence’? “3. Under the Due Process Clause, must the state demonstrate a compelling state interest, by making specific findings of existing or threatened harm to the child, before terminating the parent-child relationship?” Brief for Appellants 3. See also Juris. Statement 2-3.

2 If the standard-of-proof issue were not presented, I would agree with Justice Brennan’s proposed disposition. Because the substance of the unfitness standard has been revised in the new statute, see ante, at 388-389, the other two questions raised by appellants should be remanded to the Delaware Supreme Court for consideration in light of the new statute, after *394 a decision by this Court on the merits of the standard-of-proof question. The new statutory language would clearly be relevant to these questions if, as a matter of state law, the new statute is applicable in this termination proceeding.

3 Appellants did not seek a remand in the Delaware Supreme Court based upon the change in their status. See Brennan, J., dissenting, ante, at 391, n. 16. That court was informed of the changed circumstances, see App. to Juris. Statement 5a; Tr. of Oral Arg. 11-14, 29-30, but it apparently concluded that the new circumstances did not warrant a remand to the trial court in the absence of a request by one of the parties. In their opening brief in this Court, appellants do not even mention that the factual circumstances have changed, and in their reply brief they allude to their present status only in the vaguest of terms. It was only at oral argument that appellants’ counsel squarely addressed the details of their present living situation.

4 As the Court noted in Bell: “Petitioners’ convictions were affirmed by the Maryland Court of Appeals on January 9, 1962. Since that date, Maryland has enacted laws that abolish the crime of which petitioners were convicted.” 378 U. S., at 228 . In addition, it is not at all clear that the Delaware courts would regard the enactment of the new statute as a reason to modify or vacate the termination order entered against appellants. In Bell, the Court emphasized the fact that under Maryland law the supervening change in the governing criminal statute probably would result in reversal of the petitioners’ convictions by the state courts. See id., at 230-237 . In this case, we do not know what effect, if any, the new statute is likely to have on termination proceedings initiated and substantially completed prior to its enactment. The State of Delaware, in its brief in this Court, has not suggested that the new statute has any bearing, as a matter of state law, on this litigation.

5 Both the original and the revised statutes are silent with respect to the standard of proof applicable in termination proceedings. The Delaware Supreme Court, in its consideration of the standard-of-proof issue in this case, did not rely upon any specific language of the termination statute, but rather based its conclusion primarily upon the civil, nonpenal *396 nature of termination proceedings in Delaware. See App. to Juris. Statement 9a-lla; In re Five Minor Children, 407 A. 2d 198 , 200 (1979). Nothing on the face of the new statute suggests that it will be interpreted to change the civil nature of Delaware termination proceedings. Thus, even if the new statute would be applicable in this case as a matter of state law, the federal constitutional question would remain the same.

6 The initial termination order was entered in 1975. Appellants have not seen their five children, now ranging in age from 6 to 9 years old, since that time. The children are presently in four separate foster homes, and apparently have never lived together as a family. Because of the pendency of this proceeding, the children have been separated from each other and from their natural parents, and also have been ineligible for adoption because of the statutory requirement that the rights of the natural parents be finally terminated before adoption can take place without their consent. See Del. Code Ann., Tit. 13, §§907, 908 (1975). Further delay in a proceeding of this nature may well frustrate whatever hope remains that these children will ever be able to enjoy the benefits of a secure and permanent family environment.