Alsager v. District Court of Polk Cty., Iowa

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR ' JUDGMENT

In May of 1970, the Juvenile Division of the District Court of Polk County entered an order terminating the parental rights of Charles and Darlene Alsager “in and to” five of their six children. In March of 1973, this action was brought attacking the constitutionality of those termination proceedings. The Alsagers seek a declaratory judgment to the effect that Iowa’s parent-child termination statute is unconstitutional both on its face, and as it was applied to them. Plaintiffs also complain of alleged procedural defects in the state termination proceedings, and seek monetary damages from the defendants. Their complaint is based on 42 U.S.C. § 1983. This Court has jurisdiction under 28 U.S.C. § 1343(3).

Evidence was presented to this Court, sitting without a jury, in March of 1974. In November, 1974, the Court ruled that the factual situation faced by the plaintiffs was such that federal declaratory relief would be inappropriate. See 384 F.Supp. 643. This ruling was greatly influenced by the Court’s fervent belief that the interests of the five children involved in this case could be best served by further proceedings, formal or informal, on the state level. On June 17, 1975, the United States Court of Appeals for the Eighth Circuit ruled that this refusal to proceed to the merits of the plaintiffs’ constitutional claims was error. 518 F.2d 1160 (8th Cir. 1975). The case was then remanded to this Court for proceedings consistent with that opinion. Accordingly, the Court acts today, under a mandate.

The Court of Appeals has specifically directed this Court to examine the question of mootness before addressing the merits of plaintiffs’ constitutional *13 claims. 518 F.2d at 1167. On September 11, 1975, this Court held a brief hearing on the mootness issue. All parties agreed at that time that the issues presented by the plaintiffs remain ripe for adjudication, and this Court so finds. See transcript of September 11, 1975 hearing, at 26-29. The possibility of mootness was apparently triggered by statements before the appellate court to the effect that the five Alsager children might be returned to their parents. 518 F.2d at 1166. The Court has been informed, however, that any such return 1 would be probationary only. Thus, the legal issue raised by this constitutional challenge would remain alive absent a declaration from this Court, for the exact nature of the Alsagers’ legal relationship to their children would still be in doubt. Only a ruling as to the validity of the 1969-1970 termination proceedings will serve to “clear the air” and clarify the role the Alsagers are to have in the future upbringing of their children. See generally Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974).

Before discussing the merits of the Alsagers’ constitutional contentions, the Court, will reiterate the Findings of Fact made in its prior ruling.

Charles and Darlene Alsager were residing at 614 East 30th Street, Des Moines, Iowa, in the summer of 1969. At that time Mr. Alsager was 36 years old, and Mrs. Alsager was 26 years old. The couple had been married eleven years and were the parents of six children: George, who was 10 in June of 1969; Wanda, who was 8; John, age 7, Charles, Jr., age 6; Michael, age 4; and Albert, who was less than one year old.

The Alsagers began to have contact with the juvenile authorities of the Polk County District Court as early as 1965, when George was adjudicated to be a “neglected child.” This adjudication prompted a removal of George from his parents’ home, and he was placed in at least two foster homes before he was returned to his parents in 1968.

In the spring and early summer of 1969, the probation department of the Polk County District Court received a number of complaints about the Alsager children from the family’s neighbors. On June 13, 1969, Carl Parks, the Chief Probation Officer of the Polk County District Court, wrote a letter to the plaintiffs stating that his office had received a report about their children, and warning the parents that a petition might be filed by the neighbors seeking to remove the children from their custody.

On June 20, 1969, Jane Johnston, a probation officer with the Polk County Juvenile Court, visited the Alsager home. Miss Johnston spent approximately twenty minutes inside the Alsager residence, which at the time was occupied only by Mrs. Alsager and the baby, Albert. Based on her observations inside the house, and without seeing the other five children, Miss Johnston determined that all six children should immediately be removed to the Polk County Juvenile Home. This removal was to be temporary, pending a hearing to determine whether the children were “neglected” as defined by Section 232.2(15) of the Code of Iowa (1973). This hearing was held within one week from the initial removal, on June 26, 1969. As a result of the hearing, Polk County District Judge Don L. Tidrick found the children to be neglected, and ordered that they remain in the custody of the county court pending placement in a foster home or an institution.

Less than one month after the neglect ruling, Chief Probation Officer Parks filed a petition to institute proceedings to terminate the parent-child relationship in Polk County District Court.

This petition alleged that

the best interests of the children .

require that the parent-child relationships ... be terminated by the *14 Court because said parents have substantially and continuously and repeatedly refused to give their children necessary parental care and protection and because said parents are unfit parents by reason of conduct detrimental to the physical or mental health or morals of their children.

Upon a filing of the petition, a guardian ad litem was appointed in behalf of the children. A copy of the petition was served upon the parents, who then retained counsel. On September 9, 1969, a termination hearing was held before Judge Tidrick. The parents were present at this hearing, accompanied by their counsel. The children’s guardian ad litem was also present. On September 29,1969, Judge Tidrick issued an order pertaining to the termination hearing. The judge stated that “adequate and sufficient cause” existed to terminate the parent-child relationship, but he declined to do so at that time, stating that “final termination of parental rights should not take place so long as there is any substantial hope that the parents will be able to improve to the extent that they can provide even minimal care.” The order then continued the matter of termination of the parental rights. The two eldest children, George and Wanda, were released to the temporary custody of their parents. The four youngest children were ordered to remain in the custody of the court.

The court held a second hearing on the matter of termination on March 19, 1970. One week prior to this hearing the attorney who represented Charles and Darlene Alsager at the September proceedings was appointed to represent them at the March hearing. A final hearing on termination was held on May 22, 1970. On that day, Judge Tidrick issued his final termination order. He ruled that Wanda, who had been returned to her parents in September, would benefit by remaining in her parents’ home. The Alsagers’ parental rights “in and to” the other five children were terminated. This order of termination was affirmed by the Iowa Supreme Court on October 18, 1972, in a short opinion. See State v. Alsager, 201 N.W.2d 727 (Iowa 1972). No further proceedings were commenced on the state level subsequent to the decision of the Iowa Supreme Court. This lawsuit was instituted on March 28, 1973.

CONCLUSIONS OF LAW

Plaintiffs’ amended complaint asserts that their legal relationship to their children has been terminated pursuant to standards and procedures which violate the First, Ninth, and Fourteenth Amendments to the United States Constitution. The plaintiffs seek a declaratory judgment to the effect that the Iowa statute which permitted the termination of their parent-child relationships is unconstitutional both on its face and as applied. The parental termination statute of the Code of Iowa, § 232.41, provides:

The court may upon petition terminate the relationship between parent and child:

******

2. If the court finds that one or more of the following conditions exist:

a. That the parents have abandoned the child.

b. That the parents have substantially and continuously or repeatedly refused to give the child necessary parental care and protection.

c. That although financially able, the parents have substantially and continuously neglected to provide the child with necessary subsistence, education, or other care necessary for physical or mental health or morals of the child or have neglected to pay for subsistence, education, or other care of the child when legal custody is lodged with others.

d. That the parents are unfit by reason of debauchery, intoxication, habitual use of narcotic drugs, repeated lewd and lascivious behavior, or other conduct found by the court likely to be detrimental to the physical or mental health or morals of the child.

*15 e. That following an adjudication of neglect or dependency, reasonable efforts under the direction of the court have failed to correct the conditions leading to the termination.

Plaintiffs claim that certain standards of § 232.41 are impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, they challenge the standards embodied in the phrases “refused to give the child necessary parental care and protection,” § 232.41(2)(b), and “unfit [parents] by reason of conduct detrimental to the physical or mental health or morals of the child,” § 232.-41(2)(d). 2 Plaintiff’s post-trial brief at 26. Plaintiffs also assert that even if the statute were deemed to be sufficiently precise, it would violate their rights to Due Process of law by not requiring a sufficient threshold of harm as a prerequisite to permanent termination. Further, the Alsagers claim that procedural due process was denied them in that (1) adequate notice of the termination proceedings was not given them; (2) the standard of proof employed required a mere preponderance of the evidence rather than clear and convincing evidence; (3) hearsay evidence was admitted; and (4) ex parte communications between the judge and witnessing employees of the juvenile court may have occurred.

In order to properly determine the merits of plaintiff’s constitutional challenges, it is first essential to examine the nature of the constitutional rights at stake. A plethora of opinions by the United States Supreme Court, addressed to the nature of constitutional interests implicated where various aspects of family life are threatened, indicate that the Alsagers have a fundamental right to family integrity.

In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the Supreme Court upheld the right of parents to have their children taught the German language. The Court determined that the “liberty” guaranteed by the Fourteenth Amendment “without doubt, . denotes . . . the right of the individual ... to marry, establish a home and bring up children.” Id. at 399, 43 S.Ct. at 626. Similarly, in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the Court affirmed the enjoining of an Oregon statute which was deemed to interfere “with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Id. at 534-35, 45 S.Ct. at 573. In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Court noted that “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder. And it is the recognition of this that these decisions (Meyer and Pierce) have respected the private realm of family life which the state cannot enter.” Id. at 166, 64 S.Ct. at 442.

This “liberty” right was similarly recognized in Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), where the Court emphasized the fundamental nature of the constitutionally protected right to marry and to procreate while invalidating a statute allowing the sterilization of habitual criminals. In May v. Anderson, 345 U.S. 528, *16 78 S.Ct. 840, 97 L.Ed. 1221 (1953), the Court denied full faith and credit to an ex parte custody decree, noting that the Fourteenth Amendment’s liberty included a parent’s “immediate right to the care, custody, management and companionship of minor children.” Id. at 533, 73 S.Ct. at 843. More recently, in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), the Court invalidated mandatory leave provisions for pregnant school teachers because they unnecessarily interfered with the decision to raise a family. The Court observed that the “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Id., 94 S.Ct. at 796, 39 L.Ed.2d at 60.

Other decisions, while premised on a “privacy” rather than a “liberty” rationale, have shown a similar solicitude for the family enclave. See, e. g., Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court acknowledged the right to family integrity in declaring Illinois’ dependency statute unconstitutional for depriving unmarried fathers of the care and custody of their natural children on the death of their mother. In the words of the Court, “the integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.” (citations omitted) Id. at 651, 92 S.Ct. at 1213.

Finally, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the United States Supreme Court addressed the pertinence of many of its above-mentioned decisions to the abortion context. The Court noted that while privacy is not explicitly mentioned in the Constitution, a right to a “guarantee of certain areas or zones” of privacy has been constitutionally recognized by the Court. In the words of the Court, the guarantee of personal privacy includes only those rights that are “implicit in the concept of ordered liberty,” such as “activities relating to marriage . . . procreation . . . contraception family relationships . . . and child rearing and education.” Id. at 152, 93 S.Ct. at 726 (citations omitted). The Court further stated its belief that the privacy right is “founded in the Fourteenth Amendment’s concept of personal liberty.” Id. at 153, 93 S.Ct. at 727.

The inescapable conclusion arising from the foregoing authorities is that the Alsagers possess a fundamental “liberty” and “privacy” interest in maintaining the integrity of their family unit. See generally, Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv.L.Rev. 1001, 1014-19 (1975). It is this fundamental right to family integrity, protected by the Due Process Clause of the Fourteenth Amendment, which is menaced by Iowa’s parental termination statute. 3

The Alsagers’ constitutional arguments will now be considered with the foregoing premises regarding fundamental rights in mind. Plaintiffs challenge the statute as “void for vagueness” and *17 as violative of their rights to substantive and procedural Due Process. While the Court believes the vagueness challenge to be dispositive, it will address the substantive and procedural Due Process issues as well, in order to promote a plenary disposition of this long-running controversy.

VAGUENESS

Dating back at least to United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921), federal courts have been called upon to determine whether statutes embody such vague standards as to deny Due Process of Law. While vagueness attacks are made most often in a criminal context, the Supreme Court has held that “civil” statutes are susceptible to vagueness challenges as well. A. B. Small Co. v. American Sugar Ref. Co., 267 U.S. 233, 45 S.Ct. 295, 69 L.Ed. 589 (1925). A vagueness attack stems from “the exaction of obedience to a rule or standard which [is] so vague and indefinite as really to be no rule or standard at all.” Id. at 239, 45 S.Ct. at 297. In Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), the Supreme Court reiterated:

Both liberty and property are specifically protected by the Fourteenth Amendment against any state deprivation which does not meet the standards of due process, and this protection is not to be avoided by the simple label a state chooses to fasten upon its conduct or its statute. So here this state Act whether labeled “penal” or not must meet the challenge that it is unconstitutionally vague. Id. at 402, 86 S.Ct. at 520.

In Giaccio a jury acquitted the defendant on a misdemeanor indictment but assessed prosecution costs on him, as permitted by Pennsylvania statute, because he was found guilty of “some misconduct” other than that charged. Notwithstanding the state’s assertion that the statute merely provided for the collection of costs of a “civil character,” the Court found the statute unconstitutionally vague. Accordingly, the State of Iowa cannot avoid a vagueness challenge here by claiming the “civil character” of its parental termination statute. Indeed, the permanent destruction of the family unit — a severe infringement of a fundamental right — is a much more drastic consequence than the imposition of prosecutorial costs. 4

The United States Supreme Court has identified several dangers inherent in vague laws:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ *18 . than if the boundaries of the forbidden areas were clearly marked.” (Footnotes omitted) Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). 5

Vague statutes thus carry three dangers: the absence of fair warning, the impermissible delegation of discretion, and the undue inhibition of the legitimate exercise of a constitutional right. An analysis of these dangers in the context of the challenged standards of the Iowa parental termination statute leads the Court to conclude that the portions of the Iowa parental termination statute invoked against the Alsagers are unconstitutionally vague.

The initial danger present in a vague statute is the absence of fair warning. Citizens should be able to guide their conduct by the literal meaning of phrases expressed on the face of statutes. When the standard embodied in a statute is susceptible to multifarious meanings, a person may believe that his actions comply with the law, only to have the law used against him. The 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. An examination of these phrases will not inform an ordinary person as to what conduct is required or must be avoided in order to prevent parental termination. For instance, a parent might follow a rigid scheme of “discipline-instilling” corporal punishment believing himself in full compliance with the law, only to learn of his folly at a termination proceeding. 6 The standards challenged here simply fail to give “the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”

The second danger present in a vague statute is the impermissible delegation of discretion from the state legislature to the state law enforcement body. The Iowa parental termination 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), afford state officials with so much discretion in their interpretation and application that arbitrary and discriminatory parental terminations are inevitable. Cf. Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948). Indeed, the Supreme Court has recently noted that “perhaps the most meaningful aspect of the vagueness doctrine is . the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974). Under Iowa’s current scheme, state officials may subjectively determine, on an ad hoc basis, what parental conduct is “necessary” and what parental conduct is “detrimental.” The termination of the parent-child relationship in any given case may thus turn upon which state officials are involved in the case, rather than upon explicit standards reflecting legislative intent. This danger is especially grave in the highly subjective con *19 text of determining an approved mode of child-rearing. The Court finds these standards unconstitutionally vague in that they are permeated with the “dangers of arbitrary and discriminatory application.”

The third danger present in a vague statute is the risk that the exercise of constitutional rights will be inhibited. The Iowa parental termination standards of “necessary parental care and protection,” § 2S2.41(2Xb), and of “(parental] conduct . . . detrimental to the physical or mental health or morals of the child,” § 232.41(2)(d), serve to inhibit parents in the exercise of their fundamental right to family integrity. Wary of what conduct is required and what conduct must be avoided to prevent termination, parents might fail to exercise their rights freely and fully. The risk that parents will be forced to “steer far wider of the unlawful zone” than is constitutionally necessary is not justified when the state is capable of enacting less ambiguous termination standards. The Court finds the aforementioned standards ,y unconstitutionally vague in that they deter parents from conduct which is constitutionally protected.

Although the Court has found the Iowa parental termination 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), to be unconstitutionally vague, this determination in terms of the facial defects of the statute is not necessarily fatal; the Court must next determine whether this vagueness has been cured, either generally, by the Iowa Supreme Court’s decisions in other termination cases, or specifically, by the Iowa Supreme Court’s opinion in this case. As the United States Supreme Court indicated in Grayned, supra, the defect of an enactment’s vagueness can be ameliorated by a state court construction restricting the vague standards to constitutionally permissible bounds. 7 In fact, in Grayned, the Court concluded that an imprecise phrase in an anti-noise statute had been cured by the Illinois Supreme Court’s delimiting construction of a similar phrase in another ordinance. 408 U.S. at 111, 92 S.Ct. 2294. Grayned thus suggests that the Iowa standards may be saved from their unconstitutional vagueness if the needed specificity has been supplied by the Iowa Supreme Court., Regrettably, the Iowa Supreme Court has not perfected a general or specific cure of these standards. 8

The parental termination statute presently under attack was enacted in 1965 by the Sixty-first General Assembly of the State of Iowa. Since then a number of cases brought pursuant thereto have been reviewed de novo by the Iowa Supreme Court. In the great majority of decisions involving an application of the standards of “necessary parental care and protection,” and of “[parental] conduct . . . detrimental to the physical or mental health or morals of the child,” the Iowa court has simply made a' determination as to the “substantiality of the evidence” to support a finding based on those standards. 9 The Iowa court has never attempted a restrictive construction of the termination standards themselves. 10 Moreover, the Iowa *20 courts did not attempt to restrict the scope of the statute while terminating the Alsagers’ parent-child relationships. Indeed, the Alsagers were subjected to all the vagueness dangers inherent in the indefinite standards of § 232.41(2)(b) and (d)-

The Alsagers were not given fair warning of what was and was not prohibited by the Iowa law. The petition which instituted the termination proceeding against them merely alleged the conclusory language of the statute: “refused to give their children necessary parental care and protection” and “conduct detrimental to the physical or mental health or morals of their children.” A reading of the petition and the termination statute would not have given the Alsagers notice of what they were doing wrong. They were not given a factual basis from which to predict how they should modify their past conduct, their “parenting,” to avoid termination.

The May 22, 1970 Findings of Fact of the juvenile court, which did catalogue some of the familial deficiencies the state judge felt were most telling, merely incorporated that court’s prior legal conclusion that “the allegation that the parents have substantially and continuously and repeatedly refused to give their children necessary care and protection and that they are unfit parents by reason of conduct detrimental to the physical or mental health or morals of their children has been sustained by a preponderance of the evidence.” Thus, the Alsagers were once again faced with establishing that their conduct fell outside the potentially boundless scope of § 232.41(2)(b) and (d).

On appeal, the Iowa Supreme Court failed to narrow the statute by specific references to the defective conduct of the Alsagers. Instead, without identifying the statutory basis for affirmance, the Court held that the “material facts” were “identical” to those of In re McDonald, 201 N.W.2d 447 (Iowa 1972). 11 This reliance on McDonald, which itself contained no narrowing criteria, serves to emphasize the dangers inherent in the vague standards involved. McDonald was not only based upon an entirely separate statutory ground than those alleged here, its material facts differed substantially from those of Alsager.

McDonald involved a parental termination based upon § 232.41(2)(e): “That following an adjudication of neglect or dependency, reasonable efforts under the direction of the court have failed to correct the conditions leading to the termination.” However, § 232.41(2)(e) was not alleged as grounds for the Alsagers’ termination. 12 The Iowa Supreme Court has itself held it to be a denial of due process to terminate parental rights on a ground not alleged in the petition to ter *21 minate. In re Robbins, 230 N.W.2d 489 (Iowa 1975).

Moreover, McDonald involved a parent with a clinically tested I.Q. of 47. This fact was heavily relied on by the McDonald court in concluding that the parent was unable to care for her children. In contrast, the record here reveals no intelligence testing of the Alsagers. Nor is there any evidence which suggests the Alsagers lacked the mental capacity to perform parental functions. The Iowa court’s conclusion claiming an identity of material fact between these two divergent cases is not justified by the record.

The Iowa Supreme Court’s failure to cure the vagueness defects of § 232.41, either through a general narrowing construction in prior cases, or by a specific narrowing construction in the Alsagers’ own case, leads this Court to conclude that the Alsagers were denied Due Process. The pertinent statutory language is overly vague, both on its face and as applied to the Alsagers. The Iowa court’s decision indicates that the Alsagers were found only to have breached these vague standards. 13 In the absence of a showing that the plaintiffs violated a permissibly specific termination standard, their parental termination constitutes a denial of Due Process.

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. 14 This Court is not indifferent to the difficulties confronting the State of Iowa when attempting to regulate parental conduct vis-á-vis the child. Nevertheless, Due Process 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.

SUBSTANTIVE DUE PROCESS

As an alternative to their vagueness challenge, plaintiffs contend that § 232.-41(2)(b) and (d) violate Due Process in that neither subsection requires a showing of a “high and substantial degree of harm to the children” as a prerequisite to termination, nor do they require the state to pursue “less drastic” alternatives prior to resorting to termination.

The United States Supreme Court has provided the following constitutional framework for analyzing statutes which encroach upon protected rights: “Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ and that legislative enactments must be narrowly drawn to express only the legitimate state interest at stake.” (citations omitted). Roe v. Wade, 410 U.S. *22 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973). Accordingly, this Court must determine whether § 232.41(2)(b) and (d) further a “compelling” state interest as