(dissenting).
I respectfully dissent from the majority opinion which holds § 40-7-4(B)(4), N.M.S. A.1978, as enacted by Laws 1979, ch. 387, § 1 (now found in 1982 Cum.Supp.), unconstitutional.
The majority agrees with appellant that the section under attack is so vague and indefinite that persons of common intelligence must guess at its meaning. That is, indeed, the test to be applied when such a claim of unconstitutionality is made. State v. Libero, 91 N.M. 780, 581 P.2d 873 (Ct.App.1978). But in testing the statute, it is also an indispensable rule that the whole statute be brought under consideration. Id. Section 40-7-4(B)(4) is only a part of a subsection of the statute entitled “Termination of parental rights,” which section, in turn, is only a part of the Act entitled “Adoption Act.” (Section 40-7-1 to 40-7-11 and 40-7-13 to 40-7-17, N.M.S.A.1978 (1982 Cum.Supp.)). Subsection (A) of the statute requiring that “[i]n proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child,” answers the majority’s complaint that subsection (B)(4) contains “nothing . .. which seeks to protect the fundamental rights or the best interests of the child.” That portion of the statute need not repeat what appears just before it; we need only to “consider the statute as a whole.” State v. Turley, 96 N.M. 592, 633 P.2d 700 (Ct.App.1980).
The majority acknowledges that “parent” may mean “parents”; the opinion then suggests that “parent/child relationship” may not mean both “mother/child” and “father/child” relationships. As Justice Stephenson noted in Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973), when the Supreme Court overruled this same majority’s decision that the predecessor of the current termination statute was unconstitutional, there is “difficulty in following this construction of the majority.” (85 N.M. at 598, 514 P.2d 1093.) If common intelligence cannot supply the meaning of “parent,” certainly the definition of “parent” at § 40-7-2 H of the Act is sufficiently broad and understandable to dispel any notion that a question exists whether “parent” may include either the female or male parent or both of them, or both parents of an illegitimate child.
The majority claims ignorance of the meaning of “disintegrated,” and points out that the dictionary definition “does not apply the word to a human relationship.” The dictionary example, “(the disintegrating features of an aging woman — Philip Wylie),” Webster’s Third New International Dictionary, may not relate the word to a human relationship; it exemplifies, however, the validity of using the root word as a modifier of personal nouns. “Terminate” is not dictionary-defined in connection with a human relationship either, but no one would contend that termination of a marital relationship, or even of human existence, is incapable of being understood because the dictionary “does not apply the word to a human relationship” or to a human condition. “Disintegrated” has a well-defined, well-understood meaning. The statute is not vague because of that word.
I find it inconsistent to say at one point in the opinion that the use of “parent” in the phrase “parent/child relationship” states a vague and indefinite relationship; yet to point out in a later paragraph that such a vague and indefinite “relationship between parent and child is constitutionally protected,” and then to proceed to discuss that relationship in terms of the parent’s duties of “ ‘custody, care and nurture of the child * * * [and] preparation for obligations the state can neither supply nor hinder,’ ” as well as “the child’s need for a normal family life * * * in the natural home.”
It is equally as superficial to erase from one’s mind the common meanings for “family” or “foster family.” In its brief, the State quoted at length from the Supreme Court case of Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). That case is replete with the terms “foster family,” “foster home,” “foster parents,” “foster children,” “child,” “natural parents,” “foster care,” “natural mother,” “family,” and other similar nouns. The ease abounds with definitions and definitional discussions of those terms, and with footnotes which explain and expand upon the concepts of parental functions; the legal and emotional relationships between the child and the parents, the foster parents, and the state agency; and the psychological ties that are broken and formed between a child and its natural and foster parents. Smith, supra, devotes several pages to the discussion of “what is a family” in the context of biological and foster relationships, and the case teems with citations to cases and authorities on the subject of the development and disintegration of those relationships.
I cannot agree that from the great wealth of information and precedent available, and from a lifetime of familiarity with the English language, one must guess at the meaning of any of the words used in § 40-7-4(B)(4).
The termination statute in Linn v. Linn, 205 Neb. 218, 286 N.W.2d 765 (1980), cited by the majority, specified no standards whatever for determining whether termination was in “the best interests and welfare of the children.” The statute struck down in Roe v. Conn, 417 F.Supp. 769 (M.D.Ala. 1976), did not provide for notice and hearing, absent immediate danger of harm, before removal of a child from its home, and it did not define (to the court’s satisfaction) what constituted an “unfit” or “improper” home.
In Alsager v. District Court of Polk Cty., Iowa, 406 F.Supp. 10 (S.D.Iowa 1975), another case cited in the majority opinion, the trial court found the phrases in one subsection of Iowa’s statute, “necessary parental care and protection,” and “conduct ... detrimental to the physical or mental health or morals of the child,” to be “susceptible to multifarious interpretations which prevent the ordinary person from knowing what is and what is not prohibited.” (406 F.Supp. at 18.) That court did not consider other stated conditions permitting termination, but found that the quoted language rendered the statute unconstitutional. It also concluded that the Alsagers were denied due process because a compelling state interest justifying termination had not been shown, and because notice to the Alsagers was defective. On appeal to the Eighth Circuit, however, the trial court decision was upheld on the notice issue and because of failure of proof. The constitutionality of the statute was expressly reserved for decision by the Iowa Supreme Court. Alsager v. District Court, 545 F.2d 1137 (8th Cir.1976).
Thus none of the cases the majority cites regarding vagueness of termination statutes are similar or authoritative on the constitutionality of New Mexico’s statute.
Our review of this matter is not to determine whether the trial court’s decision was correct on the merits, whether the evidence was sufficient to justify its decision, or whether the statute was followed in reaching the result below. The decision of our Supreme Court (No. 14196, 21 N.M.S.B.B. 1295, filed September 7,1982) directed us to confine our consideration to the arguments presented by counsel on appeal. The sole issue raised by appellant was that “SECTION 40-7-4[(B)](4), N.M.S.A.1978, AS AMENDED 1979, IS UNCONSTITUTIONAL. CONSEQUENTLY, THE COURT HAD NO GROUND TO TERMINATE THE PARENTAL RIGHTS BETWEEN MOTHER AND INFANT SON.”
In my opinion the section challenged is not vague or indefinite but is constitutional; the challenged section provided a statutorily constitutional ground for terminating appellant’s parental rights, and the judgment should be affirmed.