Matter of Keyes ( 1977 )

BARNES, Justice:

This is an appeal by Appellant, Ann Keyes, from an order of the Trial Court terminating her parental rights and those of the natural father, Robert Wesley, to their child, Derrick Keyes, age two and one-half years at the time of the hearing. The natural father appeals in Case No. 49,-718, and the natural mother appeals in Case No. 49,717.

The pertinent facts are as follows: The child in question, Derrick Keyes, was living in the care and custody of his natural mother, Appellant Ann Keyes, with the concurrence of Robert Wesley, the child’s natural father, who was a sometimes resident of the mother’s home. On January 5, 1974, the child was admitted to Hillcrest Hospital in Tulsa, Oklahoma, with severe medical problems, including pneumonia, severe dehydration, vomiting, hypernatremia, and severe anemia.

As a result of subsequent investigation, the State, through the Department of Institutions, Social and Rehabilitative Services (Department), filed a petition in the Tulsa County District Court alleging the aforementioned medical problems were the result of improper care by the child’s mother. The child was made a ward of the Court pursuant to a temporary order, with custody in the Department, and later adjudicated a dependent and neglected child, with custody in the Department, pursuant to an order of May 17,1974, setting a review date for July 17, 1974. Further hearings were held September 4, 1974, and January 8, 1975, at which time custody was continued in the Department.

On March 19, 1975, both parents again appeared before the Court and temporary custody was restored to the natural mother under the Department’s supervision and review date set for September 17, 1975. On that date the matter was continued to permit the newly assigned caseworker to become acquainted with the case and to provide the Court with a written report. Hearing was reset for October 1, 1975.

However, on September 20, 1975, Appellant Ann Keyes left the child in Appellant Robert Wesley’s care while she went shopping with Mrs. Wesley. Upon return, the child was passing blood in his stool, whereupon Appellants took the child to Oklahoma Osteopathic Hospital, in Tulsa, Oklahoma.

On September 28, 1975, a motion was filed asking that the parental rights of both Appellants be terminated, alleging conditions existing January 18, 1974, had not been shown to be corrected, that on September 20, 1975, Appellant Wesley had assaulted the child, and that permanent termination of parental rights was necessary to protect the physical and mental health and morals of the child.

Temporary custody was again placed in the Department by order of September 23, 1975. Hearings were held before Referee Helen Kannady in Tulsa County District Court, Juvenile and Family Relations Division, on the motion asking that parental rights be terminated. Appellants herein were represented by counsel. The Court Referee found, after hearing testimony and evidence, that the conditions that had existed had not changed, that the child’s physical health continued to be in jeopardy, and that it was necessary for the proper care and protection of the child and in his best interests that all parental rights of the natural parents be terminated, and that the child be placed in permanent custody of the Department, with said Department to plan for and consent to the adoption of the child.

The matter came on for hearing before the Associate District Judge presiding over the Juvenile and Family Relations Division of the Court on April 15, 1976, at which time he entered an order stating the Appellants failed to show any prejudicial rights, to protect the child’s physical and mental well-being.

Thereafter, Appellant and Robert Wesley filed their independent appeals before this Court seeking to vacate the Trial Court’s judgment and urging that custody of the child be restored to both natural parents.

Appellant Keyes urges as error (1) that she was denied due process under 10 O.S. 1971, § 1130, which she contends is vague and overly broad; (2) that the Trial Court erred in overruling the demurrer to the State’s evidence; and (3) that a termination of parental rights is not a permissible dispo-sitional order, and that denial of trial by jury was violative of her constitutional and statutory rights.

Before considering Appellant’s allegations of error, we deem it necessary to review the evidence. Medical expert testimony reflects a life-threatening injury to the child which, based upon the doctor’s experience and examination of Derrick Keyes, would be consistent with anal abuse. However, medical testimony reveals cultures from specimens obtained in the hospital emergency room in search for sperm, acid phosphatase secretion, etc., were all negative.

A social worker with the Child Abuse Registry of the State Welfare Department testified she examined the child while in the hospital, observing small round sores on the back of one leg and upper arm and a looped scar on his leg. She further indicated no new injuries nor rectal or anal problems had occurred since the child’s release from the hospital and while in foster care.

Appellant Keyes testified the child had been bleeding from the rectum before the September 20, 1975, incident and that she had taken him to Moton Health Center three or four times, where the doctor told her the bleeding could have resulted from the child’s stool being hard, constipation, or something of that nature.

We will now consider Appellant’s allegations of error. It is first contended that 10 O.S.1971, § 1130, is unconstitutionally vague on its face and has not been sufficiently narrowed by the case law of Oklahoma to cure such vagueness. That statute provides:

“A. The finding that a child is delinquent, or mistreated or neglected, shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations:

“1. Upon a written consent of a parent, including a parent who is a minor, acknowledged as provided in 10 O.S.1961, Section 60.5(5), who desires to terminate his parental rights; or

“2. A finding that a parent who is entitled to custody of the child has abandoned it for one (1) year; or

“3. A finding that a parent who is entitled to custody of the child:

“a. has failed to give the child the parental care or protection necessary for his physical or mental health, or

“b. although financially able, has willfully neglected to provide the child with the necessary support or education, or

“c. is unfit by reason of debauchery, intoxication, or habitual use of narcotic drugs, or repeated lewd or lascivious behavior or other conduct that is detrimental to the physical or mental health or morals of the child, and the parent has failed to show that the conditions have been corrected within a period of six (6) months after the child, or children, were adjudged dependent or neglected and a permanent termination of parental custody of the child, or children, is necessary to protect its physical or mental health or morals; provided further, that the court may extend the time in which such parent may show the condition has been corrected, if, in the judgment of the court, such extension of time would be in the best interest of the child or children; or

“4. A finding that a parent, having been ordered to contribute to the support of the child, has willfully failed to contribute during the preceding year.

“5. A finding that a parent has physically abused a child subsequent to having been found guilty of child beating or child abuse either in a criminal action or specifically so found in a child dependency neglect action in a proceeding in the juvenile division of a district court.

“B. However, nothing contained herein shall prevent a court from immediately assuming custody of a child and ordering • whatever action may be necessary, including medical treatment, to protect his health or welfare. Nothing in this act shall be construed .to authorize any court to terminate the rights of a parent to a child, solely because the parent, in good faith, provides for his child, in lieu of medical treatment, treatment by spiritual means alone through prayer in accordance with the tenets and practice of a recognized church or religious denomination.”

This Court finds that the issue of constitutional validity of 10 O.S.1971, § 1130, squarely confronts it. The injuries here are consistent with sustained anal abuse, and negate the possibility of self-injury administered by a two and one-half year old child’s physical capabilities.

Appellant places great reliance upon Alsager v. District Court of Polk City, Iowa, 406 F.Supp. 10 (S.D.Iowa, 1975), affirmed at 545 F.2d 1137 (8th Cir., 1976), to support the position that 10 O.S.1971, § 1130, is unconstitutional. In that case the United States District Court for the Southern District of Iowa was presented with a constitutional challenge to the Iowa statute dealing with termination of parental rights. The challenge had been presented in prior proceedings (384 F.Supp. 643), in which the District Court declined to rule thereon until remand by the Circuit Court of Appeals (518 F.2d 1160, 8th Circuit) with an appropriate direction. In holding the Iowa statute unconstitutional, the Alsager Court relied upon (A) its defective vagueness and the fact that the Iowa Supreme Court had never judicially restricted its application; and (B) its failure to accord procedural due process in requiring “clear and convincing evidence” as opposed to the “preponderance standard then in effect.”

Alsager, supra, declared the Iowa Statute, Code of Iowa, § 232.41, overly vague, both on its face and as applied to the Alsag-ers. The Court found that neither the case law nor the way in which the law had been applied in that case had sufficiently narrowed the statute and defined the standard of necessary parental care and protection. The Court said:

“In sum, the Iowa parental termination standards of ‘necessary parental care and protection’ and of ‘(parental) conduct . detrimental to the physical or mental health or morals of the child,’ are unconstitutionally vague, both on their face and as applied, in that (1) they do not, and did not here, give fair warning of what parental conduct is proscribed, (2) they permit, and permitted here, arbitrary and discriminatory terminations, (3) they inhibit, and inhibited here, the exercise of the fundamental right to family integrity. * * *”

The Iowa Court said standards of “necessary parental care and protection,” § 232.-41(2)(b), and of “parental conduct . detrimental to the physical or mental health or morals of the child,” § 232.41(2)(d), are susceptible to multifarious interpretations, which prevent the ordinary person from knowing what is and is not prohibited. The Iowa Court noted that a reading of the petition and the termination statute would not have given the Alsagers notice of what they were doing wrong, i. e., they were not given a factual basis from which to predict how they should modify their past conduct, their “parenting,” to avoid termination.

We are not persuaded by the Alsager case, supra, nor the reasoning of Roe v. Conn, 417 F.Supp. 769 (N.D.Ala.1976), which found a statute on child neglect unconstitutionally vague, adopting the reasoning and language of Alsager, supra, which requires the State to clearly identify and define the evil from which the child needs protection and to specify what parental conduct so contributes to that evil that the State is justified in terminating the parent-child relationship.

We agree with Appellants that the terms such as “care and protection necessary for the child’s physical or mental health” are terms about which men and women of ordinary intelligence may disagree. Their answers would vary in large measure in relation to their differing social, ethical, and religious views, and to that extent such terms are vague. However, in our view, we do not find the statute unconstitutionally vague and overly broad nor couched in terms that have no common meaning.

We observe the Oklahoma termination statute, unlike that of Iowa, requires that the State grant parents six months at a minimum to correct the conditions found to be true as to neglect, 10 O.S.1976 Supp., § 1130(A)(3)(a).

We also note that in the instant case, in both the original petition filed January 18, 1974, and the motion regarding termination filed September 23, 1975, both the factual basis for termination and the legal standards permitting same were set forth clearly and precisely and that Appellants had adequate and fair warning of what parental conduct was found to be at issue — care and protection necessary for the child’s physical health.

Appellant Keyes next raises the issue that her demurrer to the State’s evidence was improperly overruled by the Trial Court. She argues that the record fails to show that any of the allegations of the State’s petition filed January 18, 1974, existed on September 23,1975, when the State filed its motion to terminate parental rights, alleging Keyes had failed to correct the conditions which resulted in the child’s adjudication as dependent and neglected, after the six-month statutory period.

In determining whether a demurrer to the evidence should be sustained, the Trial Court should consider as true all evidence favorable to the party against whom the demurrer is directed, and all inferences that may be reasonably drawn from such evidence, and disregard all evidence favorable to the demurrant. Stegall v. Davis, 280 P.2d 706 (Okl.1955); Nye v. Cox, 440 P.2d 683 (Okl.1968). Based upon the motion, allegations and evidence in the record, we think the Trial Court properly overruled Appellant’s demurrer.

Finally, Appellant Keyes argues that the denial of trial by jury in the termination proceedings was violative of her constitutional and statutory rights. This question was recently considered by this Court in J. V. v. State of Oklahoma, Department of Institutions, Social and Rehabilitative Services, 572 P.2d 1283 (Okl.1977), and determined contra to Appellant.

AFFIRMED.

HODGES, C. J., LAVENDER, V. C. J., and DAVISON, IRWIN and BERRY, JJ., concur. WILLIAMS, SIMMS and DOOLIN, JJ., dissent.