Matter of Johnson

263 S.E.2d 805 (1980)

In the Matter of Tempie J. JOHNSON.

No. 793SC541.

Court of Appeals of North Carolina.

March 18, 1980.

*807 Beaman, Kellum, Mills & Kafer by Charles William Kafer, New Bern, for respondent-appellant.

*808 Ward & Smith by Michael P. Flanagan, New Bern, for petitioner-appellee.

CLARK, Judge.

We consider first the respondent's argument that the trial court erred in denying her motion for directed verdict at the close of all the evidence. In doing so we think it appropriate to make some analysis of the statutory scheme (North Carolina General Statutes, Ch. 35, Art. 7, effective 1 January 1975), for involuntary sterilization of persons who are mentally ill or mentally retarded.

Procreation, together with marriage and marital privacy, are recognized as fundamental civil rights protected by the due process and equal protection clauses of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942). Where fundamental personal liberties are at issue the state may prevail only by demonstrating a compelling governmental interest, as for example, in the public health and welfare. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969).

The North Carolina Supreme Court found that the hearing procedures provided for in the sterilization statutes (N.C.Gen.Stat. §§ 35-36 to 35-50) protected the due process rights of the respondent and that the statutory scheme was constitutionally valid. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976). The statutory scheme also survived a constitutionality attack in a Federal Court, except for subsection (4) of N.C.Gen. Stat. § 35-39, which provided that a petitioner should initiate proceedings, "[w]hen requested to do so in writing by the next of kin or legal guardian of such patient, resident of an institution, or noninstitutional individual." This subsection was held to be an arbitrary and capricious delegation of unbridled power. N. C. Association for Retarded Children v. State, 420 F. Supp. 451 (M.D.N.C.1976).

Though the sterilization statutes have been determined to meet the tests of constitutionality, the absence of standards and statutory definitions requires that the courts construe and apply the statutory provisions to the evidence in each case so as to adequately protect the respondent's fundamental rights.

The statutory scheme provides in substance two bases for sterilization: (1) the respondent because of mental deficiency would probably be unfit to care for a child or children, and (2) the respondent would be likely to procreate a child or children who would probably have serious mental deficiencies. N.C.Gen.Stat. § 35-43. The second basis was involved in Moore, supra. The first basis is involved in the case sub judice. The legislative dual purposes, and compelling state interest, are, first, to prevent the birth of a child that cannot be cared for by its parent, and, second, to prevent the birth of a defective child.

Under the second basis, if requested, a hearing is required to determine the respondent's ability to care for a child or children. Id. The burden is on the petitioner (the State officer) to prove by "clear, strong, and convincing" evidence that the respondent:

1. is a mentally ill or retarded person subject to the sterilization statutes (Art. 7, supra); 2. has a physical, mental or nervous disease or deficiency; 3. the disease or mental deficiency is not likely to materially improve, and 4. would probably be unable to care for a child or children.

The absence of statutory guidance for determining what constitutes proper care of a child and a person's inability to provide that care places on the courts the burden of requiring that the evidence establishes conclusively a compelling state interest before the fundamental right of procreation can be infringed. The statute does not limit unfitness to mental retardation. The term "physical, mental or nervous disease or deficiency" includes qualities other *809 than diminished intelligence. The range of retardation can vary from mild to severe. We hold that a presumption of unfitness founded solely on retardation is unwarranted. See, e. g., Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974) (presumption of teacher's unfitness due to pregnancy is unconstitutional). The burden on the petitioner to show personality defects or traits of unfitness apart from retardation increases as the retardation ranges from severe to mild.

The statutory phrase "care for the child" is not defined, but the courts in construing the phrase must find whether the evidence establishes a minimum standard of care consistent with both state interest and fundamental parental rights. The petitioner has the burden of proving at least probable inability to provide a reasonable domestic environment for the child.

In the case sub judice the petitioner's evidence consists of the testimony of a case worker who had the respondent as a foster child under her supervision for several years, the testimony of the foster parent who has taken care of respondent in her home for ten years, and the testimony of a duly qualified psychiatrist who personally observed and examined the respondent and had the benefit of the psychological or psychiatric tests as required by N.C.Gen.Stat. § 35-40. We find the evidence sufficient to meet the burden imposed upon the petitioner by the statutory scheme for involuntary sterilization.

The petitioner offered proof, by clear, strong and convincing evidence, that in addition to her mild mental retardation, the respondent over a period of years had exhibited emotional immaturity, the absence of a sense of responsibility, a lack of patience with children, and continuous nightly adventures with boyfriends followed by daily sleep and bedrest. Such conduct and personality traits in addition to mental retardation clearly tend to show that respondent failed to meet any acceptable standard of fitness to care for a child by providing a reasonable domestic environment.

Respondent argues that evidence relative to her morals, sexual activity, her attitude about birth control, and statements she made to Dr. Ainslie that in her youth she would get impatient and angry with children left in her care by her parents, was irrelevant and remote. Since the questions of fitness and care before the court were broad ones and since her conduct and traits over a period of time would tend to show that her condition was not likely to materially improve, we find that the evidence was relevant. The standard of admissibility based on relevancy and materiality is of necessity elastic, and the evidence need not bear directly on the issue as long as there is a reasonable, open and visible connection with the subject of the lawsuit. 1 Stansbury's N.C.Evidence § 78 (Brandis rev. 1973).

We have carefully examined respondent's other assignments of error and considered her arguments. We find the statement of the contentions of the parties by the trial court expressed fairly the court's view of the legal principles applicable to the factual situation, without any expression of opinion prejudicial to the respondent.

The jury verdict was supported by the evidence and the respondent had a fair trial in which her rights were fully protected.

No error.

VAUGHN and HEDRICK, JJ., concur.