Doe v. Delaware 450 U.S. 382, 67 L. Ed. 2d 312, 101 S. Ct. 1495, 1981 U.S. LEXIS 84, SCDB 1980-056

Per Curiam.

The appeal is dismissed for want of a properly presented federal question.

Justice Brennan,

with whom Justice White joins,

dissenting.

Appellants, a half brother and sister, are the natural parents of five children who were in the custody of the Division of Social Services of the Delaware Department of Health and Social Services at the beginning of this litigation.1 After de*383termining that the children should be put up for adoption,2 the Division filed suit pursuant to Delaware law to obtain termination of appellants’ parental rights over their children. The Superior Court of Delaware ordered termination, and the Supreme Court of Delaware affirmed.3 Appellants appealed to this Court, arguing that the termination order and the Delaware statute authorizing it were unconstitutional. We noted probable jurisdiction. 445 U. S. 942 (1980).

The Court today dismisses this appeal for want of a properly presented federal question, thereby permitting the termination order to remain in effect despite the existence of a substantial federal constitutional challenge to the Delaware statutory scheme under which the order was entered.4 Because I believe that the federal question was properly presented within the definition of that requirement in our cases, I dissent from this dismissal. Instead, I would vacate the judgment below, and remand for reconsideration in light of *384supervening changes in the factual circumstances and the applicable state law.

I

Appellants challenge the constitutionality of certain portions of the former Del. Code Ann., Tit. 13, §§ 1101-1112 (1975), in effect while this litigation was pending in the state courts. These provisions established a “procedure for termination of parental rights for the purpose of adoption or, if a suitable adoption plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption.” § 1103. Petitions for termination of parental rights could be filed by certain specified categories of persons, including the Division. § 1104 (8). Upon a finding by the Superior Court that the parents were “not fitted to continue to exercise parental rights,” § 1103 (4), and that termination of existing parental rights would be “in the best interests of the child,” the court was required to issue an order of termination, and to transfer parental rights to another person, organization, or agency. § 1108 (a). The effect of the termination order was “that all of the rights, duties, privileges and obligations recognized by law between the [parents] and the child shall forever thereafter cease to exist as fully and to all intents and purposes as if the child and the [parents] were and always had been strangers.” § 1112. Either an order of termination or the consent of the natural parents was required before children in the custody of the State could be placed for adoption. §§ 907-908.

Appellants argue here, as they did at each stage of the litigation in the state courts, that this statutory scheme for termination of parental rights was invalid under the United States Constitution. Specifically, they contend: (1) that Del. Code Ann., Tit. 13, § 1103 (4) (1975), which provides for such termination where the parent is “not fitted,” is unconstitutionally vague and indefinite; (2) that a higher *385standard than the mere “preponderance of the evidence” is required to terminate parental rights; and (3) that substantive due process forbids termination of parental rights in the absence of a demonstration of a compelling state interest, in the form of specific findings of existing or threatened injury to the child.5 There is no doubt that appellants raised their federal constitutional claim in a timely manner in both the Superior Court6 and the Supreme Court7 of Delaware, nor that the Delaware Supreme Court explicitly considered and rejected the federal constitutional challenge.8

Dismissal of this appeal for want of a properly presented federal question is, therefore, unwarranted. The practice in this Court has been to dismiss an appeal taken under 28 U. S. C. § 1257 (2) for want of a properly presented federal question only when the federal question was not raised at the proper juncture in the state-court proceedings or in accordance with reasonable state rules. Jones v. Florida, 419 U. S. 1081, 1083 (1974) (Brennan, J., dissenting); Godchaux Co. v. Estopinal, 251 U. S. 179, 181 (1919); R. Stern & E. Gressman, Supreme Court Practice 380-381 (5th ed. 1978).9 See, *386 e. g., Street v. New York, 394 U. S. 576, 581-585 (1969); Safeway Stores, Inc. v. Oklahoma Retail Grocers Assn., 360 U. S. 334, 342, n. 7 (1959); Raley v. Ohio, 360 U. S. 423, 434-435 (1959); Bailey v. Anderson, 326 U. S. 203, 206-207 (1945); Asbury Hospital v. Cass County, 326 U. S. 207, 213-214 (1945); Charleston Federal Savings & Loan Assn. v. Alderson, 324 U. S. 182, 185-187 (1945); Hunter Co. v. McHugh, 320 U. S. 222, 226-227 (1943); Pennsylvania R. Co. v. Illinois Brick Co., 297 U. S. 447, 462-463 (1936); Whitney v. California, 274 U. S. 357, 360-361 (1927); Live Oak Water Users’ Assn. v. Railroad Comm’n, 269 U. S. 354, 357-359 (1926); Rooker v. Fidelity Trust Co., 261 U. S. 114, 116-117 (1923); Zadig v. Baldwin, 166 U. S. 485, 488 (1897); Crowell v. Randell, 10 Pet. 368, 391-392, 398 (1836); cf. Cardinale v. Louisiana, 394 U. S. 437, 438-439 (1969) (dismissal of writ of certiorari); Beck v. Washington, 369 U. S. 541, 549-554 (1962) (same).10 If the record shows that a federal constitutional challenge to a state statute was brought to the attention of the state court “with fair precision and in due time,” then “the claim is . . . regarded as having been adequately presented.” New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67 (1928). Indeed, if the highest state court *387reaches the federal constitutional question and decides it on the merits, this Court will consider the case despite any possible failure of the litigants to raise the federal question in compliance with state procedural requirements. Charleston Federal Savings & Loan Assn. v. Alderson, supra, at 185-186; Louisville & Nashville R. Co. v. Higdon, 234 U. S. 592, 598 (1914); see Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476 (1975).

Since appellants challenged the constitutionality of the Delaware statutory scheme at each stage of the state-court litigation, and the Delaware Supreme Court expressly addressed the issue, ruling that the termination-of-parental-rights procedure was constitutional, this Court’s dismissal of the appeal for want of a properly presented federal question is unprecedented and inexplicable.11

*388II

The living situation of appellants and their children has changed dramatically since the trial court proceedings in this case. Doe and Roe have ceased to live together, thus ending the incestuous relationship that formed the predicate for the Superior Court's original judgment of unfitness. See App. to Juris. Statement 5b. According to their attorney, Doe now resides in another State, while Roe has married and now lives with her husband and his child in Delaware. Tr. of Oral Arg. 4. Doe and Roe have not seen their five children since 1975.12 The children, who ranged in age from 11 months to 4 years old when the Superior Court issued its first order of termination in 1975, are now about 6 to 9 years old. The children have never lived together as a family, and are now in four separate placements. Appellants’ attorney stated at oral argument that “the eventual goal of the mother” is to obtain custody of her children, and that she would permit the father to visit them. Id., at 3. There is no evidence on any of these matters in the record because it has been closed since December 1976. Id., at 39.

Moreover, Del. Code Ann., Tit. 13, § 1103 (1975), was amended, effective July 11, 1980, to alter the standard for termination of parental rights. Instead of requiring a finding of “unfitness” as a predicate for termination, the new statute provides for termination if the parents “are not able, or have failed, to plan adequately for the child’s physical needs or his mental and emotional health and development” and:

“a. In the case of a child in the care of an authorized agency:

“1. The child has been in the care of an authorized *389agency for 1 year, or there is a history of previous placement or placements of this child, or a history of neglect, abuse, or lack of care of other children by this parent; and

“2. The conditions which led to the child’s placement still persist, and there appears to be little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, “b. In the case of a child in the home of the stepparent or blood relative:

“1. The child has resided in the home of the. stepparent or blood relative for a period of at least 1 year; and

“2. The Court finds the noncustodial parent or parents incapable of exercising parental responsibilities, and that there appears to be little likelihood such parent or parents will be able to exercise such parental responsibilities in the foreseeable future.” Del. Code Ann., Tit. 13, § 1103 (5) (Supp. 1980).13

As stated in Bell v. Maryland, 378 U. S. 226, 237 (1964), this Court has “long followed a uniform practice where a supervening event raises a question of state law pertaining to a case pending on review here. That practice is to vacate and reverse the judgment and remand the case to the state court, so that it may reconsider it in the light of the supervening change in state law.” In the exercise of our jurisdiction under 28 U. S. C. § 1257, this Court has the power “not only to correct error in the judgment under review but to make such disposition of the case as justice requires.” Patterson v. Alabama, 294 U. S. 600, 607 (1935). And, as Chief Justice Hughes further observed in Patterson: “[I]n determining what justice does require, the Court is bound to con*390sider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act.” Ibid. See Giles v. Maryland, 386 U. S. 66, 80 (1967) (plurality opinion); Thorpe v. Housing Authority, 386 U. S. 670, 673-674 (1967); Trunkline Gas Co. v. Hardin County, 375 U. S. 8 (1963); Wolfe v. North Carolina, 364 U. S. 177, 195, n. 13 (1960); Williams v. Georgia, 349 U. S. 375, 389-391 (1955); State Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S. 154, 161 (1945); Ashcraft v. Tennessee, 322 U. S. 143, 155-156 (1944); Walling v. James V. Reuter, Inc., 321 U. S. 671, 676-677 (1944); New York ex rel. Whitman v. Wilson, 318 U. S. 688, 690-691 (1943); Vanderbark v. Owens-Illinois Glass Co., 311 U. S. 538, 542 (1941); State Tax Comm’n v. Van Cott, 306 U. S. 511, 515-516 (1939); Honeyman v. Hanan, 300 U. S. 14, 25-26 (1937); Villa v. Van Schaick, 299 U. S. 152, 155 (1936); Pagel v. MacLean, 283 U. S. 266, 268-269 (1931); Missouri ex rel. Wabash R. Co. v. Public Service Comm’n, 273 U. S. 126, 130-131 (1927); Dorchy v. Kansas, 264 U. S. 286, 289, 291 (1924); Gulf, C. & S. F. R. Co. v. Dennis, 224 U. S. 503, 505-507, 509 (1912); see also Piccirillo v. New York, 400 U. S. 548, 556, n. 2 (1971) (Brennan, J., dissenting from dismissal of writ of certiorari).14

*391The instant case falls squarely within the principle of Bell and Patterson. The change in the factual circumstances and in the applicable state statute might well produce a different result under Delaware law. This Court should not decide what effect these changes might have under state law,15 or how the Supreme Court of Delaware might decide this case under the new circumstances and amended statute.16 See Bell v. Maryland, 378 U. S., at 237. Nor, however, should we “ignore the supervening change in state law and proceed to decide the federal constitutional questions presented by this case. To do so would be to decide questions which, because of the possibility that the state court would now reverse the [order of termination], are not necessarily presented for decision.” Ibid.; see id., at 241; Missouri ex rel. Wabash R. Co. v. Public Service Comm’n, supra, at 131; Gulf, C. & S. F. R. Co. v. Dennis, supra, at 507.

Ill

To argue that the proper disposition of this case is to vacate and remand rather than to dismiss for want of a properly presented federal question is not merely to quibble over words. Appellants in this case are parents who have been irrevocably separated from their children by process of *392a state law they contend is unconstitutional. To vacate and remand is to recognize that supervening events have made further state-court proceedings necessary before this Court can reach the constitutional questions; to dismiss is to end the litigation, leaving Doe and Roe without any means to vindicate their parental rights.17 See Pagel v. MacLean, supra, at 269; Gulf, C. & S. F. R. Co. v. Dennis, supra, at 509.

The appellate jurisdiction of this Court is not discretionary. Hicks v. Miranda, 422 U. S. 332, 344 (1975). Having raised a federal constitutional challenge to the former Del. Code Ann., Tit. 13, § 1103 (4) (1975), under which their parental rights were terminated, and having received a final judgment from the highest court of the State upholding the statute and affirming the termination order, appellants have a right to appellate review. I can discern no basis for dismissing this appeal for want of a properly presented federal question, and therefore respectfully dissent.

Justice Stevens,

dissenting.

The wisdom of the Court’s policy of avoiding the premature or unnecessary adjudication of constitutional questions is well established. See Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 568-575. That policy provides *393some support for the Court’s otherwise inexplicable conclusion that the three federal questions raised by this appeal are somehow not "properly presented.” 1 That policy also would provide some support for Justice Brennan’s view that this case should be remanded to the Delaware courts for further proceedings before this Court addresses any of the federal issues. In my opinion, however, both the Court’s disposition and Justice Brennan’s proposed disposition are inadequately supported by that policy because adjudication of one of the federal questions presented in this case would be neither premature nor unnecessary.

To explain my position, I shall focus on the question whether the Due Process Clause of the Fourteenth Amendment requires that the termination of parental rights be supported by a higher standard of proof than a mere preponderance of the evidence.2 For the reasons stated by the Court *394in Addington v. Texas, 441 U. S. 418, that question is undeniably substantial. For the reasons stated by Justice Brennan, ante, at 384-387, there is no procedural defect in the record that provides a legitimate basis for the Court’s conclusion that the question is not “properly presented” in this case. In my opinion, the Court has the duty to decide that question now because there is no reason to believe that delay will affect either the character of the question or the necessity of deciding it in this case- Unlike Justice Brennan, I believe that neither the change in the status of the appellants nor the change in the Delaware statute justifies a remand for further state-court proceedings without first deciding whether the Federal Constitution requires that an order terminating parental rights be supported by clear and convincing evidence.

Neither in the Supreme Court of Delaware nor in this Court have appellants argued that the change in their living situation subsequent to the entry of the termination order is a sufficient basis for setting aside that order.3 Of course, if there is an independent basis for vacating the order — or if the state court decided to rely on postjudgment events to set aside its own decision — a new proceeding to determine the welfare of appellants’ children undoubtedly should consider *395recent, as well as ancient, history. I do not believe, however, that such recent events — which are unrelated to the federal questions that support our appellate jurisdiction— provide an appropriate basis for this Court to exercise its power to vacate the judgment of the Delaware Supreme Court.

Nor, in my opinion, does the enactment of the new Delaware statute make it appropriate for us to vacate the judgment of the Delaware Supreme Court. This is not a case like Bell v. Maryland, 378 U. S. 226, in which the State has made lawful the conduct that formed the basis of a criminal conviction pending on appeal,4 or otherwise has taken action that significantly changed the federal question presented by an appeal to this Court. None of the parties and none of the many amici curiae suggest that the new Delaware statute has changed the standard of proof required by Delaware law.5 *396If it was unconstitutional to apply the preponderance-of-the-evidence standard at the 1972 termination proceeding, it would be equally unconstitutional to apply that standard at a new proceeding held under the revised statute. Because the constitutionality of applying that standard in a case of this kind is now squarely at issue, I believe we have the power and the obligation to resolve this federal question before any further proceedings are conducted.

As the Court stated in Patterson v. Alabama, 294 U. S. 600, 607, we have the power “not only to correct error in the judgment under review but to make such disposition of the case as justice requires.” See Brennan, J., dissenting, ante, at 389. In my judgment, justice requires that we promptly resolve the critical federal question properly presented in this case, because this litigation involves the family status of growing children 6 and because this federal question is certain to reappear before us in the same form at a later date. Accordingly, I would decide the standard-of-proof question and thereafter either remand to the Delaware Su*397preme Court for consideration of the two remaining questions in light of the new statute or remand for a new trial under the correct standard of proof, depending upon how that question is resolved by a majority of the Members of this Court.

I respectfully dissent.