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.
Appellants raise three constitutional objections to the termination order entered against them. See Brennan, J., dissenting, ante, at 384-385. In their brief on the merits, appellants argue the following questions:
"1. Is the Delaware statute, which provides for the permanent termination of the parent-child relationship where the parent is ‘not fitted/ unconstitutionally vague and indefinite in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution?
“2. In light of the protected nature of the family relationship under decisions of this Court, does the Due Process Clause and this Court’s decision in Addington v. Texas, 441 U. S. 418 (1979), preclude the termination of the parent-child relationship based upon a mere ‘preponderance of the evidence’?
“3. Under the Due Process Clause, must the state demonstrate a compelling state interest, by making specific findings of existing or threatened harm to the child, before terminating the parent-child relationship?” Brief for Appellants 3.
See also Juris. Statement 2-3.
If the standard-of-proof issue were not presented, I would agree with Justice Brennan’s proposed disposition. Because the substance of the unfitness standard has been revised in the new statute, see ante, at 388-389, the other two questions raised by appellants should be remanded to the Delaware Supreme Court for consideration in light of the new statute, after *394a decision by this Court on the merits of the standard-of-proof question. The new statutory language would clearly be relevant to these questions if, as a matter of state law, the new statute is applicable in this termination proceeding.
Appellants did not seek a remand in the Delaware Supreme Court based upon the change in their status. See Brennan, J., dissenting, ante, at 391, n. 16. That court was informed of the changed circumstances, see App. to Juris. Statement 5a; Tr. of Oral Arg. 11-14, 29-30, but it apparently concluded that the new circumstances did not warrant a remand to the trial court in the absence of a request by one of the parties. In their opening brief in this Court, appellants do not even mention that the factual circumstances have changed, and in their reply brief they allude to their present status only in the vaguest of terms. It was only at oral argument that appellants’ counsel squarely addressed the details of their present living situation.
As the Court noted in Bell:
“Petitioners’ convictions were affirmed by the Maryland Court of Appeals on January 9, 1962. Since that date, Maryland has enacted laws that abolish the crime of which petitioners were convicted.” 378 U. S., at 228.
In addition, it is not at all clear that the Delaware courts would regard the enactment of the new statute as a reason to modify or vacate the termination order entered against appellants. In Bell, the Court emphasized the fact that under Maryland law the supervening change in the governing criminal statute probably would result in reversal of the petitioners’ convictions by the state courts. See id., at 230-237. In this case, we do not know what effect, if any, the new statute is likely to have on termination proceedings initiated and substantially completed prior to its enactment. The State of Delaware, in its brief in this Court, has not suggested that the new statute has any bearing, as a matter of state law, on this litigation.
Both the original and the revised statutes are silent with respect to the standard of proof applicable in termination proceedings. The Delaware Supreme Court, in its consideration of the standard-of-proof issue in this case, did not rely upon any specific language of the termination statute, but rather based its conclusion primarily upon the civil, nonpenal *396nature of termination proceedings in Delaware. See App. to Juris. Statement 9a-lla; In re Five Minor Children, 407 A. 2d 198, 200 (1979). Nothing on the face of the new statute suggests that it will be interpreted to change the civil nature of Delaware termination proceedings. Thus, even if the new statute would be applicable in this case as a matter of state law, the federal constitutional question would remain the same.
The initial termination order was entered in 1975. Appellants have not seen their five children, now ranging in age from 6 to 9 years old, since that time. The children are presently in four separate foster homes, and apparently have never lived together as a family. Because of the pendency of this proceeding, the children have been separated from each other and from their natural parents, and also have been ineligible for adoption because of the statutory requirement that the rights of the natural parents be finally terminated before adoption can take place without their consent. See Del. Code Ann., Tit. 13, §§907, 908 (1975). Further delay in a proceeding of this nature may well frustrate whatever hope remains that these children will ever be able to enjoy the benefits of a secure and permanent family environment.