TONGUE, J., concurring.

I concur in the result of the majority opinion that the rights of the parents should not be severed in the child involved in this case. I do not agree, however, with the reasoning by the majority and, in particular, in the holding that ORS 419.523 (2)(a) is a valid and constitutional statute.

I agree that the facts of this case, as reviewed by the majority, illustrate one of the serious social problems of our times. Indeed, this is a particularly tragic case and one calling for the wisdom of a twentieth century Solomon. Perhaps that ancient decree would persuade this mother to yield to the best interests of her child, regardless of constitutional considerations of "due process." Otherwise, the emotional and mental health of this child may well be maimed as surely as if by that proverbial sword.

The courts, however, do not profess to possess either such wisdom or such power. Nevertheless, in deciding cases involving such problems, the courts must act within the framework and limitations of the constitution and laws of this state and nation.

With all due respect to the majority, however, it is my view that the limitations imposed upon the state by the constitutions of the United States and the State of Oregon, as previously construed by the Supreme Court of the United States and also by this court, are not satisfied by the provisions of ORS 419.523 (2)(a) and require a holding that this statute is constitutionally invalid for vagueness and indefiniteness.

To understand this subject, as a part of what is now called "family law," it is first necessary to consider its history and development in this state. In 1888 the law of Oregon on this subject was first stated in Furgeson v. Jones, 17 Or. 204 (involving the validity of an adoption proceeding), at p 217:

"The permanent transfer of the natural rights of a parent was against the policy of the common law. The right of adoption, as conferred by this statute, was unknown to it, and repugnant to its principles. * * * The right of adoption, then being in derogation of common law, is a special power conferred by statute, and the rule is, that such statutes must be strictly construed. * * * This being so, the statute must receive a strict interpretation, and every requirement essential to authorize the court to exercise the special power conferred must be strictly complied with."

Nearly 50 years later, still in accord with this view, the court in In re Schein, 156 Or. 661, 69 P.2d 293 (1937), reversed a jury verdict and judgment declaring Helen Schein to be a "dependent child" and taking her from the custody of her father, holding (at pp 667-68):

"It never was the intention of the legislature to take a child away from its parent because the parent was financially unable to provide a home with all the modern appliances and appurtenances that would be found in the ordinary city home. * * *

"The legislature never intended that a parent who enforces proper discipline in the home and gives his child the proper moral training, furnishes sufficient food, clothing and shelter for it, should be deprived of the custody and control of such child just because someone in better circumstances financially would be able to give that child what society might consider greater advantages than it would receive in its humble home. * * *."

Twenty-four years later, in Simons v. Smith, 229 Or. 277, 366 P.2d 875 (1961), this court also reversed a decree granting a petition to adopt children without the consent of the parents and terminating their parental rights, holding (at p 278):

"As a general proposition, the law protects the natural rights of parents."

and later (at p 280):

"The reason for terminating parental rights ought to be related to the parent's conduct as a parent. In their most palatable form, discretionary statutes require the trial judge to consider `the best interests of the child.' Courts which base their decisions on `the best interests of the child' use that term as a term of art borrowed from divorce jurisprudence. Cf. cases collected in Annotation, 47 ALR2d 824. This rationale is unacceptable for several reasons."

The primary reason for recognizing the distinction between the concept of "the best interests of the child," as applied in divorce litigation and as applied in proceedings to terminate all parental rights in a child by placing it for adoption without consent by the parents, was stated (at p 281):

"The best-interests-of-the-child standard has no similar relation to the issues presented in a proceeding to dispense with consent for an adoption. In an adoption, a court is asked to terminate every right and interest of the natural parent. Adoption goes far beyond the child-centered question of custody during minority. Indeed, the denial of an adoption petition has no necessary bearing on the physical custody of the child. The child's environment can be protected in a number of ways, under the divorce laws and the juvenile code. The petition to adopt concerns a different kind of right, the subjective tie between a parent and child, the right of a parent to be identified with his child for emotional, religious or other reasons. A father may hope his son will bear his name; a mother may anticipate that her daughter will inherit her property. On the other hand, there is ordinarily no vital interest of the child which requires the termination of his parents' rights. * * *."

and, further (at p 285):

"Because of the differences between the issues involved in divorce cases and those involved in petitions of adoption, we hold that the reasons for terminating parental rights must be related to an objective standard required of all parents rather than to the child-oriented evaluation of competing home environments employed in divorce suits." (Emphasis added)

Finally, this court said in Simons v. Smith (at p 287):

"In general, statutes which dispense with the consent of the natural parent require a pleading and proof of moral fault, the degree of which may vary from state to state and from statute to statute. Running through such statutory schemes is the idea that the parent to be forever alienated from his child must have demonstrated either an intent to abandon the child or such moral depravity as to amount to the equivalent of an abandonment." (Emphasis added)

That decision, however, went no further than to hold that the parents must be given proper notice of such proceedings. Thus, the court did not pass upon the validity of ORS 419.523. It is nevertheless to be noted that this court in that case was of the view that "the best interest of the child" rationale, as applied in custody proceedings, was not appropriate in a proceeding to terminate parental rights and that only extreme parental misconduct based upon an "objective standard," would justify a termination of such rights under ORS 419.523.

To much the same effect, in State v. Grady, 231 Or. 65, 371 P.2d 68 (1962), this court reversed an order permanently terminating the parental rights of a mother, despite evidence of gross immorality and conviction for forgery, holding (at p 68):

"It is no slight thing to permanently deprive a parent of the care, custody and society of a child, or a child of the protection, guidance and affection of a parent, notwithstanding that the parent has erred in the past, and especially when there is yet a possibility that the parent may later demonstrate a rehabilitation by sufficient conduct and character in accord with the accepted standards and duties of motherhood."

Meanwhile the statutes on this subject had undergone drastic revision as a result of the 1959 "Report of the Legislature Interim Committee on Judicial Administration," as established in 1957, including Part II, on "Family Law." One of the recommendations of that report was that:

"1. The laws establishing and defining the powers of the juvenile court and prescribing its procedures should be completely rewritten to remedy the following deficiencies:

"(a) Uncertain and outmoded definitions.

"(b) Vagueness or silence in important procedural matters * * *."

In the text of the report in support of that recommendation was stated (at pp 22-3) that:

"Sections 26 and 27 deal with termination of the rights of the child's parents. * * *

"The dereliction may be actions or lack of actions which work serious harm to the child. See paragraph (a) of section 26 (2). The dereliction may be simply the abandonment of the child. In this respect, the proposed bill makes important changes from present law. * * *

"* * *

"These provisions [relating to abandonment] are perhaps more exacting than present law. In the committee's judgment, however, present law represents altogether too great an emphasis on the rights of the parent and too little emphasis on the duties of the parent and the interests of the child. A child may still be treated as a chattel for some purposes, but this should not be one of them."

Based upon this report, a new Juvenile Code was adopted in 1959. By ORS 419.474 it is expressly recognized that the welfare of the child is the primary purpose of that statute and by ORS 419.474 it is provided that the statute shall be liberally construed. Also included in the statute is ORS 419.523, which now provides as follows:

"Termination of parental rights; grounds.

"(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." (Emphasis added)

Upon reading this section it will be noted that although the provisions of subsection (2)(b), relating to abandonment, have been made more specific than previous statutory provisions, the provisions of subsection (2)(a) were made less specific than previous statutory provisions. Thus, this subsection of the statute is hardly in accord with the stated purpose of the Juvenile Code Revision to remedy "uncertain" definitions and to eliminate "vagueness" in "important procedural matters."

Seven years later, in State v. Winters, 243 Or. 313, 413 P.2d 425 (1966), this court affirmed an order terminating the parental rights of a child under ORS 419.523, but did so based upon a finding that the child's mother was not only guilty of gross immorality, but "for more than one year wilfully failed, refused and neglected her children without sufficient cause." (See p 316) No issue was raised relating to the constitutional validity of ORS 419.523.

However, in State v. Jamison, 251 Or. 114, 444 P.2d 15, 444 P.2d 1005 (1968), it was contended in a proceeding under ORS 419.523 to terminate parental rights, that the mother of the children involved had a constitutional right to the assistance of counsel. In sustaining that contention, this court (without deciding whether due process requires appointment of counsel in other types of juvenile proceedings), restated its previous position in holding (at p 117):

"The permanent termination of parental rights is one of the most drastic actions the state can take against its inhabitants. It would be unconscionable for the state forever to terminate the parental rights of the poor without allowing such parents to be assisted by counsel."

and (at p 118):

"While the case at bar is not a criminal matter, the consequences of the denial of counsel are as serious as they are in most criminal prosecutions."

Again, no contention was made that ORS 419.523 was constitutionally invalid for vagueness or indefiniteness.

That question was, however, recently presented to this court for consideration, although under another statute, in State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969). In that case defendant appealed from a conviction of violating ORS 167.210 (contributing to the delinquency of a minor). That statute provided for the fine or imprisonment of:

"* * * any person who does any act which manifestly tends to cause any child to become a delinquent child."

Under ORS 419.216 (c), a "delinquent child" was defined as including a child "whose behavior, condition or circumstances are such as to endanger his own welfare or the welfare of others; * * *."

In determining the constitutional validity of ORS 167.210 this court adopted and approved the following test, as stated by the Supreme Court of the United States in Giaccio v. Pennsylvania, 382 U.S. 399, 402, 86 S Ct 518, 15 L ed 2d 447 (1966):

"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case."

The reason for such a rule (as stated on p 27), is that:

"In addition to its due-process function of putting persons on notice of the law's demands, reasonable certainty serves a second purpose: adjudication. A law that permits the judge and jury to punish or withhold punishment in their uncontrolled discretion is defective as much for its uncertainty of adjudication as for its failure to notify potential defendants of its scope and reach."

Applying these rules to ORS 167.210, this court held that it was unconstitutional because of its vagueness, saying (at p 28):

"Such a statute not only creates a serious danger of inequality in the administration of the criminal law, but it runs squarely contrary to the purpose of Oregon Constitution, Art I, § 21, which prohibits the delegation of legislative power.

"The very looseness of the language of ORS 167.210 encourages the prosecution to utilize the statute selectively to rid the community of individuals deemed subjectively less desirable than other offenders. It is the looseness of the language which offends due process and makes the catch-all clause of the statute an instrument of potential abuse."

On application of this same test to the provisions of ORS 419.523 (2)(a), I am of the opinion that the same result must follow. I agree with the Court of Appeals that it is our duty to attempt, if possible, to construe the statute in such a manner that its constitutionality can be sustained. In my opinion, however, it is not reasonably possible to so construe this statute.

The sole standard provided by ORS 419.523 (2)(a) for application in determining whether the rights of parents in their own children may be permanently terminated is that of determining whether such parents are "unfit by reason of conduct or condition seriously detrimental to the child." Such a purported "standard" fails to meet the requirements of due process both because it "leaves the public uncertain as to the conduct it prohibits" and also because it "leaves judges * * * free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case."

I do not agree with the majority statement that the statute "gives adequate notice (to parents) of the kind of conduct involved" and that "the ordinary parent should `get the message' from the statute as it is now worded." The language of ORS 419.523 (2)(a) is so vague as to fail completely to notify parents of the conduct it prohibits. Also, I do not agree with the contention of the state that "the concept of warning implicit in appellant's demand for definite statutory language is inappropriate." While I agree that the constitution does not require "impossible standards," the language of a statute must "convey(s) sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices," as held in United States v. Petrillo, 332 U.S. 1, 7-8, 67 S Ct 1538, 91 L ed 1877 (1947), and as quoted with approval by the state in its brief in this case.

I also do not agree with the holding by the majority that the statute provides a sufficient standard so as to restrain juvenile courts from exercising an "unbridled discretion" in such cases. The answer by the majority to this most serious question is to state, without support by any authority, that juvenile courts do not have "unbridled discretion" under this statute because it is "only when the parent's conduct is seriously detrimental to the child can parental rights be taken away." To me, this is not a responsible answer to a serious question, but begs the entire question.

The majority cites State v. Grady, 231 Or. 65, 371 P.2d 68 (1962); State v. Easley, 228 Or. 472, 365 P.2d 293 (1961), and State v. Blum, 1 Or. App. 409, 463 P.2d 367 (1970), for the proposition that parental misconduct must be "seriously detrimental" to the welfare of the child to support a termination of parental rights. None of these cases are in point, however, since in none of them was the constitutional validity of this statute in issue, including the question whether the term "seriously detrimental to the child" provides a sufficiently definite standard or one that is so "loose" and "vague" as to be constitutionally invalid.

Indeed, to me it cannot be reasonably contended that a statute under which a judge is to decide for himself what conduct by a parent is "seriously detrimental" to a child provides a "standard" for application in making that decision and prevents a judge from acting upon recommendations by welfare representatives and from exercising an "uncontrolled discretion, however benevolently motivated."

In Hodges the "looseness" of the language of the statute involved in that case (ORS 167.210) was held to encourage the prosecution to rid the community of individuals "deemed subjectively less desirable than other offenders," resulting in a "catch-all clause" as an "instrument of potential abuse." So also the "looseness" of the language of ORS 419.523 (2)(a) could encourage welfare representatives to institute proceedings to terminate the rights of parents deemed subjectively less "fit" than other parents and thus also result in a similar "catch-all," as an "instrument of potential abuse."

The majority would distinguish Hodges on the ground that a criminal statute was involved in that case, while ORS 419.523 is not a criminal statute, and also is not a regulatory statute under which the state is "pitted" against an individual. Thus, the majority contends that this statute is to be administered by the courts solely in the "best interests" of children and with a "flexibility" similar to that involved in the conduct of an administrative agency, rather than the enforcement of a criminal statute.

In my opinion, however, even though this is not a criminal proceeding, the rights of parents are nevertheless entitled to constitutional protection. If parents are entitled to such protection before they can be deprived of their property, surely parents are entitled to such protection before their rights as parents can be terminated and their children put up for adoption over the objection of their parents.

In State v. Jamison, supra, this court recognized that a proceeding under ORS 419.523, although "not a criminal matter," is subject to constitutional requirements of due process for the reason that "the permanent termination of parental rights is one of the most drastic actions the state can take * * *."

And even in Morrison v. State Board of Education, supra (relied upon by the state in this case), the California Supreme Court said (at p 387):

"Civil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts and administrative agencies."

It must be remembered, however, that neither the validity of the current trend away from deciding proceedings for termination of parental rights by emphasis upon the rights of the parents and toward a greater emphasis upon "the best interests of the child," nor the proposition that this question of policy is one to be decided by the legislature, rather than the courts, are issues to be decided in this case. The issue in this case is not whether the rights of the parents are more important than those of the child, but whether the statute involved in this case is sufficiently definite to satisfy the constitutional requirements of due process.

It is also contended by the majority that it would be difficult to accomplish the primary purpose of the statute, to protect the welfare of children, and be "more specific" than the provisions of this statute. On the contrary, the trend is for legislatures to make the rules regarding parental "unfitness" more strict and definite. And it is conceded by the state in this case that "the legislature had the option of setting forth a list of conditions and conduct which could guide the courts specifically and render the procedure conveniently mechanical," but that it chose instead to adopt "general, inclusive terms," in an effort "to protect the child and to protect parents."

For all of these reasons, it is my view that ORS 419.523 (2)(a) is constitutionally invalid for vagueness and indefiniteness, with the result that the trial court erred in overruling the demurrer to the petition on that ground.

I do not disagree with the further holding by the majority to the effect that the evidence of misconduct by the parents in this case was not sufficiently serious so as to provide a proper basis for termination of their parental rights by permitting adoption of the child over their objection. To me, however, the fact that the majority of this court consider themselves to be in a better position to decide that question than an able trial judge, after years of experience in such matters and after observing both the parents and all of the other witnesses — and to reject his findings purely as a matter of judgment, without application of any legal criteria or standards — serves only to further demonstrate and emphasize the unconstitutional vagueness of ORS 419.523 (2)(a) and the absence of any proper standards for application by the courts in making such a decision.

The trial judge found that "it would be a tragedy for Anna to return her" to the McMasters' home, where she had never lived, and to move her from a home of foster parents, who had given her excellent care and desired to adopt her. Accordingly, he held that it was in her best interests that the rights of her natural parents should be terminated.

I cannot understand how the majority of this court can reverse that decision without making a purely subjective judgment, without control or guidance by any statutory standards. In my view, the decision whether or not to destroy the rights of parents cannot be constitutionally decided in such a manner.

For all of these reasons I disagree with the basis for the majority opinion, but concur in the result.

McALLISTER, J., concurs in this opinion.