In Re Biggers

274 S.E.2d 236 (1981)

In re BIGGERS, Two Minor Children.

No. 8019DC447.

Court of Appeals of North Carolina.

January 20, 1981.

Williams, Willeford, Boger, Grady & Davis by Samuel F. Davis, Jr., Concord and Forbis & Grossman by Steven A. Grossman, Kannapolis, for petitioner-appellee.

Johnson, Belo & Plummer by James C. Johnson, Jr., Concord, for respondent-appellant.

VAUGHN, Judge.

Respondent urges reversal of the judgment on two bases: the unconstitutionality of G.S. 7A-289.32 and the insufficiency of the evidence to permit the termination of parental rights under the statute. We disagree with respondent's contentions on both points and affirm.

At the outset, we must consider the inconsistency appearing in conclusion of law number three in which Judge Warren stated that grounds for termination existed "under G.S. 7A-289.32, subsections (1) and (3), as amended by Chapter 669 of the 1979 Session Laws...." Since the amendment repealed subsection (1) of the statute, Judge Warren must have meant to refer to the grounds given in subsections (2) and (4) instead, as evidenced by conclusions of law numbers one and two, supra. As only one of seven findings is necessary to order termination under G.S. 7A-289.32, however, we shall disregard conclusion of law number three as surplusage unnecessary to sustain the order. In addition, the 1979 amendment deleted the words "physically" preceding "abused or neglected" in subsection (2). Since that deletion did not change the meaning of "neglected," which is the relevant portion here, the applicability of the amendment to the proceeding is not raised even though the petition was filed before its effective date. We shall, therefore, proceed with our analysis of the statute as it is amended.

G.S. 7A-289.32 provides seven grounds upon which parental rights can be terminated. Judge Warren's conclusions of law numbers one and two, supra, sufficiently identify two of those grounds as applicable to this case: G.S. 7A-289.32(2) and (4). Respondent contends that the statute is generally unconstitutional because it violates the equal protection clause of the fourteenth amendment of the federal constitution. In this proceeding, however, the only question for our determination is the constitutionality of G.S. 7A-289.32(2) and (4). Though respondent has failed to articulate her constitutional arguments, we have carefully considered her general objections and find them to be of no avail.

Our Supreme Court has explained the scope of constitutional equal protection.

The equal protection clauses of the United States and North Carolina Constitutions impose upon lawmaking bodies the requirement that any legislative classification "be based on differences that are reasonably related to the purposes of the Act in which it is found." Morey v. Doud, 354 U.S. 457, 465, 77 S. Ct. 1344, 1350, 1 L. Ed. 2d 1485, 1491 (1957); Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971); State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972). Such classifications will be upheld provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. State v. Greenwood, supra; Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364 (1964).

In re Moore, 289 N.C. 95, 104, 221 S.E.2d 307, 313 (1976); Duggins v. Board of Examiners, 294 N.C. 120, 240 S.E.2d 406 (1978). Here, only G.S. 7A-289.32(4) would even seem to be susceptible to an equal protection claim. It provides for the termination of parental rights upon the finding that:

The child has been placed in the custody of a county department of social services, a licensed child-placing agency, or a child-caring institution, and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child.

The basis for an equal protection claim against this subsection would be that it discriminates against parents, according to their financial circumstances, by authorizing termination of their rights for the economic failure to pay for their child's foster care costs. See 70 Colum.L.Rev. 465, 469 n. 28 (1970). Such a claim cannot be sustained because subsection (4) does not make any distinction between parents similarly situated.

G.S. 7A-289.32(4) requires parents to pay a reasonable portion of the child's foster care costs, and this requirement applies to all parents irrespective of their wealth or poverty. The parents' economic status is merely a factor used to determine their ability to pay such costs, but their ability to pay is the controlling characteristic of what is a reasonable amount for them to pay. In the instant case, the court considered the parent's ability to pay in deciding what was a "reasonable portion" in the 1977 order awarding custody of the Biggers children to the Department. It found that Mr. Bigger made $100.00 per week and thus ordered him to pay $25.00 per week for his children's support while they were in the Department's custody. Respondent later agreed to pay $100.00 a month for the children's care (plan of care agreement, 6 October 1978). At the time, she was employed at Craftsman Fabrics, and the amount agreed to was surely based upon her ability to pay according to her wages and the needs of the children. Finally, in the termination order itself, the court found that respondent, despite her agreement to do so and her ability to be gainfully employed, had failed to pay "any sums whatsoever" for her children's support while they were in foster care for over two years.

All parents have the duty to support their children within their means, and the State, as the parens patriae of all children, may enforce that duty to prevent children from becoming public charges. 3 Lee, N.C. Family Law § 229 (3d ed. 1963). In G.S. 7A-289.32(4), the legislature has concluded that a child's best interest is served by a termination of parental rights when his parents cannot provide reasonable support. This statute meets the standard of strict judicial scrutiny, where fundamental rights are involved, under the equal protection clause. The State undoubtedly demonstrates a compelling interest for the health, welfare and safety of minor children, and this interest is directly related to the purpose of the statute. See also N.C. Ass'n for Retarded Children v. State of N.C., 420 F. Supp. 451 (M.D. N.C. 1976); In re Johnson, 45 N.C.App. 649, 263 S.E.2d 805 (1980). "It certainly is not an unreasonable or arbitrary exercise of the police power for the State to intervene between parent and child where that child is helpless and defenseless and is endangered by parental neglect, inattention, or abuse." In re Lassiter, 43 N.C.App. 525, 527, 259 S.E.2d 336, 337 (1979), review denied, 299 N.C. 120, 262 S.E.2d 6 (1980). In sum, we conclude that G.S. 7A-289.32(4) does not violate the equal protection clause by discriminating among persons similarly situated since it applies to all parents equally and allows due consideration of their specific individual financial circumstances.

Respondent further argues that G.S. 7A-289.32 is unconstitutionally vague. Our Supreme Court has enunciated the principles of the vagueness doctrine as follows:

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.... Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer in uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877.

In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969), aff'd, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) (citations omitted). A statute must be examined in light of the circumstances in each case, and respondent has the burden of showing that the statute provides inadequate warning as to the conduct it governs or is incapable of uniform judicial administration. State v. Covington, 34 N.C.App. 457, 238 S.E.2d 794, review denied, 294 N.C. 184, 241 S.E.2d 519 (1977). Respondent cannot meet this burden with respect to G.S. 7A-289.32(2) and (4).

G.S. 7A-289.32(2) provides that parental rights can be terminated if the child is neglected within the meaning of G.S. 7A-278(4). The applicable definition states that a

"[n]eglected child" is any child who does not receive proper care or supervision or discipline from his parent, guardian, custodian or other person acting as a parent, or who has been abandoned, or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law.

G.S. 7A-278(4). Our Court has not found it difficult to give a precise meaning to this definition of a neglected child in particular cases by analyzing the factual circumstances before it and weighing the compelling interests of the State with those of the parents and child. In re Cusson, 43 N.C.App. 333, 258 S.E.2d 858 (1979); In re McMillan, 30 N.C.App. 235, 226 S.E.2d 693 (1976). See also In re Yow, 40 N.C.App. 688, 253 S.E.2d 647, review denied, 297 N.C. 610, 257 S.E.2d 223 (1979). Viewed in this light, G.S. 7A-289.32(2) is not vague because the terms used in G.S. 7A-278(4) are given a precise and understandable meaning by the normative standards imposed upon parents by our society, and parents are, therefore, given sufficient notice of the types of conduct that constitute child neglect in this State. See 17 Ariz.L.Rev. 1055, 1070 (1975).

G.S. 7A-289.32(4) is also constitutionally clear. In no uncertain terms, it permits termination of parents' rights when they do not pay a reasonable portion of their child's foster care costs for six months preceding the filing of the petition. In this case, respondent was given even more specific notice in the plan of care agreement she signed with the Department on 6 October 1978. She promised to pay $100.00 a month for child support, and she was aware that the Department would decide within thirty-one days, among other things, whether to seek termination of her parental rights. In addition, we have already indicated that the judge does not have unbridled discretion in determining what a "reasonable portion" is. As with child support orders, this determination must be based upon an interplay of "(1) the amount of support necessary to ``meet the reasonable needs of the child' and (2) the relative ability of the parties to provide that amount." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980); G.S. 50-13.4(c).

We note that vagueness challenges to similar statutes have been increasingly made across the nation, but they have been almost uniformly rejected. See Comment, Application of the Vagueness Doctrine to Statutes Terminating Parental Rights, 1980 Duke L.J. 336, 341; Day, Termination of Parental Rights Statutes and the Void for Vagueness Doctrine: A Successful Attack on the Parens Patriae Rationale, 16 J.Fam.L. 213, 232 (1977-78); 70 Colum.L.Rev. 465, 469 (1970). But see Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979); Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976); Alsager v. District Court, 406 F. Supp. 10 (S.D. Iowa 1975), aff'd, 545 F.2d 1137 (8th Cir. 1976). An "impossible standard of statutory clarity" would be inappropriate in cases involving child care and custody. "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." State v. McMaster, 259 Or. 291, 296, 486 P.2d 567, 569 (1971) (rejecting a vagueness claim to the Oregon statute for termination of parental rights). Accord, In re Daniel H., 591 P.2d 1175 (Okla. 1979). This context requires flexibility in the weighing of each case's facts in order to give the child, as well as the parent, the highest form of due process. Otherwise, the clear legislative intent of Article 24B would be frustrated:

§ 7A-289.22. Legislative intent; construction of Article.—The General Assembly hereby declares as a matter of legislative policy with respect to termination of parental rights:

(1) The general purpose of this Article is to provide judicial procedures for terminating the legal relationship between a child and his or her biological or legal parents when such parents have demonstrated that they will not provide the degree of care which promotes the healthy and orderly physical and emotional well-being of the child.

(2) It is the further purpose of this Article to recognize the necessity for any child to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all children from the unnecessary severance of a relationship with biological or legal parents.

(3) Action which is in the best interests of the child should be taken in all cases where the interests of the child and those of his or her parents or other persons are in conflict.

To enforce these policies of Article 24B, we hold that the provisions of G.S. 7A-289.32(2) and (4) are sufficiently definite to be applied in a uniform manner to protect both the State's substantial interest in the welfare of minor children and the parents' fundamental right to the integrity of their family unit.

Respondent makes the final assertion that the evidence was insufficient to support the court's findings of fact in the termination order of 7 December 1979. Respondent, however, did not except to any of those findings as required by Rule 10(b)(1) of the Rules of Appellate Procedure, and does not, in addition, advance any argument in support of this position in her brief. Thus, the only question is whether the findings support the judgment. City of Kings Mountain v. Cline, 281 N.C. 269, 188 S.E.2d 284 (1972). It suffices to say that the Department presented overwhelming and uncontradicted evidence which supports the court's findings that these children were neglected and that their parents had failed to pay reasonable child support for their care. Without question, these findings support the judgment terminating respondent's parental rights. In such circumstances, it is in the children's best interests that parental rights be terminated so that permanent adoption plans can proceed to provide them with a secure, capable family. Otherwise, helpless children might be left to "grow up in ``legal limbo' in foster homes at public expense." Thomas, Child Abuse and Neglect, 50 N.C.L.Rev. 293, 341 and n. 173 (1972).

The judgment is affirmed.

Affirmed.

ROBERT M. MARTIN and WELLS, JJ., concur.