Parents
appealed from judgment of the Family
Court, Ulster County, Elwyn, J., which
adjudged their children to be permanently
neglected. The New York
Supreme Court, Appellate Division,
affirmed,
75 A.D.2d 910, 427 N.Y.S.2d
319.
The New York Court of Appeals dismissed
the parents' appeal. Certiorari was
granted. The Supreme Court,
Justice Blackmun, held that before
a state may sever completely and irrevocably
the rights of parents in their natural
child, due process requires that the
state support its allegations by at
least clear and convincing evidence,
and, therefore, the "fair preponderance
of the evidence" standard prescribed
by the New York Family Court Act for
the termination of parental rights
denied the parents due process.
Judgment
vacated and remanded.
Justice
Rehnquist, filed a dissenting opinion
in which Chief Justice Burger, Justice
White and Justice O'Connor, joined
Headnotes
[1]
Child Custody
42
76Dk42
Most Cited Cases
(Formerly 285k2(3.3))
[1]
Child Custody
68
76Dk68
Most Cited Cases
(Formerly 285k2(3.7))
Fundamental
liberty interest of natural parents
in care, custody and management of
their child does not evaporate simply
because they have not been model parents
or have lost temporary custody of
their child to State.
U.S.C.A.Const.Amends. 5,
14.
[2]
Infants
191
211k191
Most Cited Cases
Even when
blood relationships are strained,
parents retain vital interest in preventing
irretrievable destruction of their
family life; if anything, persons
faced with forced dissolution of their
parental rights have more critical
need for procedural protections than
do those resisting state intervention
into ongoing family affairs.
U.S.C.A.Const.Amends. 5,
14.
[3]
Infants
194.1
211k194.1
Most Cited Cases
(Formerly 211k194)
When state
moves to destroy weakened familial
bonds, it must provide parents with
fundamentally fair procedures.
U.S.C.A.Const.Amends. 5,
14.
[4]
Constitutional Law
274(5)
92k274(5)
Most Cited Cases
Nature
of process due in parental rights
termination proceedings turns on balancing
of private interests affected by proceedings;
risk of error created by state's chosen
procedure; and countervailing
governmental interest supporting use
of challenged procedure.
U.S.C.A.Const.Amends. 5,
14.
[5]
Constitutional Law
311
92k311
Most Cited Cases
In any
given proceeding, minimum standard
of proof tolerated by due process
requirement reflects not only weight
of private and public interests affected,
but also societal judgment about how
risk of error should be distributed
between litigants.
U.S.C.A.Const.Amends. 5,
14.
[6]
Federal Courts
416
170Bk416
Most Cited Cases
Minimum
standard of proof mandated by due
process is question of federal law
which Supreme Court may resolve.
U.S.C.A.Const.Amends. 5,
14.
[7]
Constitutional Law
251.5
92k251.5
Most Cited Cases
Retrospective
case-by-case review cannot preserve
fundamental fairness when class of
proceedings is governed by constitutionally
defective evidentiary standard.
U.S.C.A.Const.Amends. 5,
14.
[8]
Constitutional Law
251.5
92k251.5
Most Cited Cases
Whether
loss threatened by particular type
of proceeding is sufficiently grave
to warrant more than average certainty
on part of fact finder turns on both
nature of private interest threatened
and permanency of threatened loss.
U.S.C.A.Const.Amends. 5,
14.
[9]
Infants
179
211k179
Most Cited Cases
In parental
rights termination proceeding, private
interest affected weighs heavily against
use of preponderance of the evidence
standard at state-initiated permanent
neglect proceeding. U.S.C.A.Const.Amends.
5,
14.
[10]
Constitutional Law
274(5)
92k274(5)
Most Cited Cases
Until state
proves parental unfitness under New
York law, child and his parents share
vital interest in preventing erroneous
termination of the natural relationship,
and, therefore, preponderance of the
evidence standard provided under New
York law does not satisfy due process
clause.
N.Y.McKinney's Social Service
Law § 384-b,
subds. 4(d), 7(a);
N.Y.McKinney's Family Court
Act § 622;
U.S.C.A.Const.Amends. 5,
14.
[11]
Constitutional Law
274(5)
92k274(5)
Most Cited Cases
Preponderance
of the evidence standard provided
for in New York statutes governing
termination of parental rights upon
finding that child is "permanently
neglected" does not properly
allocate risk of error between parent
and child, since, for child, likely
consequence of erroneous failure to
terminate is preservation of uneasy
status quo, but for natural parents,
consequence of erroneous termination
is unnecessary destruction of natural
family, and, therefore, due process
mandates standard of proof greater
than fair preponderance of the evidence.
N.Y.McKinney's Social Service
Law § 384-b,
subds. 4(d), 7(a);
N.Y.McKinney's Family Court
Act § 622;
U.S.C.A.Const.Amends. 5,
14.
[12]
Infants
178
211k178
Most Cited Cases
Standard
of proof more strict than fair preponderance
of the evidence is consistent with
two state interests at stake in parental
rights termination proceedings, parens
patriae interest in preserving and
promoting child's welfare and fiscal
and administrative interest in reducing
costs and burden of such proceedings.
N.Y.McKinney's Social Service
Law § 384-b,
subds. 1(a)(i, ii, iv), 3(g), 4(e);
N.Y.McKinney's Family Court
Act § 622;
U.S.C.A.Const.Amends. 5,
14.
[13]
Constitutional Law
274(5)
92k274(5)
Most Cited Cases
Before
state may sever completely and irrevocably
rights of parents in their natural
child, due process requires that state
support its allegations by at least
clear and convincing evidence.
N.Y.McKinney's Social Service
Law § 384-b,
subds. 4(d), 7(a);
N.Y.McKinney's Family Court
Act § 622;
U.S.C.A.Const.Amends. 5,
14.
[14]
Constitutional Law
274(5)
92k274(5)
Most Cited Cases
Clear and
convincing evidence standard adequately
conveys to fact finder level of subjective
certainty about his factual conclusions
necessary to satisfy due process in
proceedings in which state seeks to
completely and irrevocably sever rights
of parents in their natural child.
N.Y.McKinney's Social Service
Law § 384-b,
subds. 4(d), 7(a);
N.Y.McKinney's Family Court
Act § 622;
U.S.C.A.Const.Amends. 5,
14.
[15]
Federal Courts
416
170Bk416
Most Cited Cases
Determination
of precise burden of proof equal to
or greater than clear and convincing
evidence standard, for purpose of
proceedings in which parental rights
are terminated, is matter of state
law properly left to the state legislatures
and state courts.
N.Y.McKinney's Social Service
Law § 384-b,
subds. 4(d), 7(a);
N.Y.McKinney's Family Court
Act § 622;
U.S.C.A.Const.Amends. 5,
14.
**1390 Syllabus
[FN*]
FN*
The syllabus constitutes no part of
the opinion of the Court but has been
prepared by the Reporter of Decisions
for the convenience of the reader.
See
United States v. Detroit Lumber
Co., 200 U.S. 321, 337, 26
S.Ct. 282, 287, 50 L.Ed. 499.
*745
Under New York law, the State may
terminate, over parental objection,
the rights of parents in their natural
child upon a finding that the child
is "permanently neglected."
The
New York Family Court Act (§
622) requires
that only a "fair preponderance
of the evidence" support that
finding. Neglect proceedings were
brought in Family Court to terminate
petitioners' rights as natural parents
in their three children.
Rejecting petitioners' challenge to
the constitutionality of
§ 622's
"fair preponderance of the evidence"
standard, the Family Court weighed
the evidence under that standard and
found permanent neglect.
After a subsequent dispositional hearing,
the Family Court ruled that the best
interests of the children required
permanent termination of petitioners'
custody. The Appellate
Division of the New York Supreme Court
affirmed, and the New York Court of
Appeals dismissed petitioners' appeal
to that court.
Held:
1.
Process is constitutionally due a
natural parent at a state-initiated
parental rights termination proceeding.
Pp. 1393-1396.
(a)
The fundamental liberty interest of
natural parents in the care, custody,
and management of their child is protected
by the Fourteenth Amendment, and does
not evaporate simply because they
have not been model parents or have
lost temporary custody of their child
to the State. A parental
rights termination proceeding interferes
with that fundamental liberty interest.
When the State moves to destroy weakened
familial bonds, it must provide the
parents with fundamentally fair procedures.
Pp. 1393-1394.
(b)
The nature of the process due in parental
rights termination proceedings turns
on a balancing of three factors:
the private interests affected by
the proceedings; the risk of
error created by the State's chosen
procedure; and the countervailing
governmental interest supporting use
of the challenged procedure.
Mathews v. Eldridge, 424 U.S.
319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d
18.
In any given proceeding, the
minimum standard of proof tolerated
by the due process requirement reflects
not only the weight of the public
and *746 private **1391 interests
affected, but also a societal judgment
about how the risk of error should
be distributed between the litigants.
The minimum standard is a question
of federal law which this Court may
resolve. Retrospective case-by-case
review cannot preserve fundamental
fairness when a class of proceedings
is governed by a constitutionally
defective evidentiary standard.
Pp. 1394-1396.
2.
The "fair preponderance of the
evidence" standard prescribed
by
§ 622
violates the Due Process Clause of
the Fourteenth Amendment.
Pp. 1396-1402.
(a)
The balance of private interests affected
weighs heavily against use of such
a standard in parental rights termination
proceedings, since the private interest
affected is commanding and the threatened
loss is permanent. Once
affirmed on appeal, a New York decision
terminating parental rights is final
and irrevocable. Pp. 1397-1398.
(b)
A preponderance standard does not
fairly allocate the risk of an erroneous
factfinding between the State and
the natural parents. In
parental rights termination proceedings,
which bear many of the indicia of
a criminal trial, numerous factors
combine to magnify the risk of erroneous
factfinding. Coupled with the preponderance
standard, these factors create a significant
prospect of erroneous termination
of parental rights. A
standard of proof that allocates the
risk of error nearly equally between
an erroneous failure to terminate,
which leaves the child in an uneasy
status quo, and an erroneous termination,
which unnecessarily destroys the natural
family, does not reflect properly
the relative severity of these two
outcomes. Pp. 1398-1401.
(c)
A standard of proof more strict than
preponderance of the evidence is consistent
with the two state interests at stake
in parental rights termination proceedings--a
parens patriae interest in preserving
and promoting the child's welfare
and a fiscal and administrative interest
in reducing the cost and burden of
such proceedings. Pp.
1401-1402.
3.
Before a State may sever completely
and irrevocably the rights of parents
in their natural child, due process
requires that the State support its
allegations by at least clear and
convincing evidence. A
"clear and convincing evidence"
standard adequately conveys to the
factfinder the level of subjective
certainty about his factual conclusions
necessary to satisfy due process.
Determination of the precise burden
equal to or greater than that standard
is a matter of state law properly
left to state legislatures and state
courts. Pp. 1402-1403.
75
App.Div.2d 910, 427 N.Y.S.2d 319,
vacated and remanded.
*747
Martin Guggenheim, New York City,
for petitioners.
Stephen
Scavuzzo, Washington, D. C., for respondents,
pro hac vice, by special leave of
Court.
Justice BLACKMUN delivered the opinion
of the Court.
Under
New York law, the State may terminate,
over parental objection, the rights
of parents in their natural child
upon a finding that the child is "permanently
neglected."
N.Y.Soc.Serv.Law § §
384-b.4.(d),
384-b.7.
(a) (McKinney Supp.1981-1982) (Soc.Serv.Law).
The
New York Family Court Act §
622 (McKinney
1975 and Supp.1981-1982) (Fam.Ct.Act)
requires that only a "fair preponderance
of the evidence" support that
finding. Thus, in New
York, the factual certainty required
to extinguish the parent-child relationship
is no greater than that necessary
to award money damages in an ordinary
civil action.
Today
we hold that the Due Process Clause
of the Fourteenth Amendment demands
more than this. Before
a State may sever completely and irrevocably
the rights of parents in *748 their
natural child, due process requires
that the State support its **1392
allegations by at least clear and
convincing evidence.
I
A
New
York authorizes its officials to remove
a child temporarily from his or her
home if the child appears "neglected,"
within the meaning of Art. 10 of the
Family Court Act. See
§ § 1012(f), 1021-1029.
Once removed, a child under the age
of 18 customarily is placed "in
the care of an authorized agency,"
Soc.Serv.Law § 384-b.7.(a),
usually a state institution or a foster
home. At that point, "the
state's first obligation is to help
the family with services to ... reunite
it...." § 384-b.1.(a)(iii).
But if convinced that "positive,
nurturing parent-child relationships
no longer exist," § 384-b.1.(b),
the State may initiate "permanent
neglect" proceedings to free
the child for adoption.
The
State bifurcates its permanent neglect
proceeding into "fact-finding"
and "dispositional"
hearings.
Fam.Ct.Act § § 622,
623.
At the factfinding stage, the State
must prove that the child has been
"permanently neglected,"
as defined by Fam.Ct.Act § §
614.1.(a)-(d) and
Soc.Serv.Law § 384-b.7.
(a). See
Fam.Ct.Act § 622.
The Family Court judge then determines
at a subsequent dispositional hearing
what placement would serve the child's
best interests.
§ § 623,
631.
At
the factfinding hearing, the State
must establish, among other things,
that for more than a year after the
child entered state custody, the agency
"made diligent efforts to encourage
and strengthen the parental relationship."
Fam.Ct.Act § § 614.1.(c),
611.
The State must further prove that
during that same period, the child's
natural parents failed "substantially
and continuously or repeatedly to
maintain contact with or plan for
the future of the child although physically
and financially able to do so."
§ 614.1(d). Should the State
support its allegations by "a
fair preponderance of the evidence,"
§ 622,
the child may be declared permanently
neglected. *749
§ 611.
That declaration empowers the Family
Court judge to terminate permanently
the natural parents' rights in the
child.
§ § 631(c),
634.
Termination denies the natural parents
physical custody, as well as the rights
ever to visit, communicate with, or
regain custody of the child.
[FN1]
FN1.
At oral argument, counsel for petitioners
asserted that, in New York, natural
parents have no means of restoring
terminated parental rights.
Tr. of Oral Arg. 9. Counsel
for respondents, citing
Fam.Ct.Act § 1061,
answered that parents may petition
the Family Court to vacate or set
aside an earlier order on narrow grounds,
such as newly discovered evidence
or fraud. Tr. of Oral
Arg. 26. Counsel for respondents
conceded, however, that this statutory
provision has never been invoked to
set aside a permanent neglect finding.
Id., at 27.
New
York's permanent neglect statute provides
natural parents with certain procedural
protections.
[FN2]
But New York permits its officials
to establish "permanent neglect"
with less proof than most States require.
Thirty-five States, the District of
Columbia, and the Virgin Islands currently
specify a higher standard of proof,
in parental rights termination proceedings,
than a "fair preponderance of
the evidence."
[FN3]
**1393 The only analogous federal
statute of which we are aware *750
permits termination of parental rights
solely upon "evidence beyond
a reasonable doubt."
Indian Child Welfare Act of
1978, Pub.L. 95-608, §
102(f), 92
Stat. 3072,
25 U.S.C. § 1912(f)
(1976 ed., Supp.IV). The
question here is whether *751 New
York's "fair preponderance of
the evidence" standard is constitutionally
sufficient.
FN2.
Most notably, natural parents have
a statutory right to the assistance
of counsel and of court-appointed
counsel if they are indigent.
Fam.Ct.Act § 262(a)(iii).
FN3.
Fifteen States, by statute, have required
"clear and convincing evidence"
or its equivalent. See
Alaska Stat.Ann. § 47.10.080(c)(3)
(1980); Cal.Civ.Code Ann. §
232(a)(7) (West Supp.1982); Ga.Code
§ § 24A-2201(c), 24A-3201 (1979);
Iowa Code § 600A.8 (1981)
("clear and convincing proof");
Me.Rev.Stat.Ann., Tit. 22, §
4055.1.B.(2) (Supp.1981-1982);
Mich.Comp.Laws § 722.25
(Supp.1981- 1982);
Mo.Rev.Stat. § 211.447.2(2)
(Supp.1981) ("clear, cogent and
convincing evidence"), N.M.Stat.Ann.
§ 40-7-4.J. (Supp.1981);
N.C.Gen.Stat. § 7A-289.30(e)
(1981) ("clear,
cogent, and convincing evidence");
Ohio Rev.Code Ann. § §
2151.35,
2151.414(B)
(Page Supp.1982);
R.I.Gen.Laws § 15-7-7(d)
(Supp.1980);
Tenn.Code Ann. § 37-246(d) (Supp.1981);
Va.Code § 16.1-283.B (Supp.1981);
W.Va.Code § 49-6-2(c)
(1980) ("clear
and convincing proof");
Wis.Stat. § 48.31(1)
(Supp.1981-1982).
Fifteen States, the District
of Columbia, and the Virgin Islands,
by court decision, have required "clear
and convincing evidence" or its
equivalent. See
Dale County Dept. of Pensions
& Security v. Robles, 368 So.2d
39, 42 (Ala.Civ.App.1979);
Harper v. Caskin, 265 Ark.
558, 560-561, 580 S.W.2d 176, 178
(1979);
In re J. S. R., 374 A.2d 860,
864 (D.C.1977);
Torres v. Van Eepoel, 98 So.2d
735, 737 (Fla.1957);
In re Kerns, 225
Kan. 746, 753, 594 P.2d 187,
193 (1979);
In re Rosenbloom, 266 N.W.2d
888, 889 (Minn.1978)
("clear and convincing proof");
In re J. L. B., 182 Mont. 100,
116-117, 594 P.2d 1127, 1136 (1979);
In re Souza, 204 Neb. 503,
510, 283 N.W.2d 48, 52 (1979);
J. v. M., 157 N.J.Super. 478,
489, 385 A.2d 240, 246 (App.Div.1978);
In re J.A., 283 N.W.2d 83,
92 (N.D.1979);
In re Darren Todd H., 615 P.2d
287, 289 (Okl.1980);
In re William L., 477 Pa. 322,
332, 383 A.2d 1228, 1233,
cert. denied
sub nom. Lehman v. Lycoming
County Children's Services, 439 U.S.
880, 99 S.Ct. 216, 58 L.Ed.2d 192
(1978);
In re G. M., 596 S.W.2d 846,
847 (Tex.1980);
In re Pitts, 535 P.2d 1244,
1248 (Utah 1975);
In re Maria, 15 V.I. 368, 384 (1978);
In re Sego, 82 Wash.2d 736,
739, 513 P.2d 831, 833 (1973)
("clear, cogent, and convincing
evidence");
In re X., 607 P.2d 911, 919
(Wyo.1980)
("clear and unequivocal").
South Dakota's Supreme Court
has required a "clear preponderance"
of the evidence in a dependency proceeding.
See
In re B.E., 287 N.W.2d 91,
96 (1979).
Two States, New Hampshire and Louisiana,
have barred parental rights terminations
unless the key allegations have been
proved beyond a reasonable doubt.
See
State v. Robert H., 118 N.H.
713, 716, 393 A.2d 1387, 1389 (1978);
La.Rev.Stat.Ann. § 13:1603.A
(West Supp.1982). Two
States, Illinois and New York, have
required clear and convincing evidence,
but only in certain types of parental
rights termination proceedings. See
Ill.Rev.Stat. ch. 37, ¶ ¶ 705-9(2),
(3) (1979), amended by Act of Sept.
11, 1981, 1982 Ill.Laws, P.A. 82-437
(generally requiring a preponderance
of the evidence, but requiring clear
and convincing evidence to terminate
the rights of minor parents and mentally
ill or mentally deficient parents);
N.Y.Soc.Serv.Law § §
384-b.3(g),
384-b.4(c),
and
384-b.4(e)
(requiring "clear and convincing
proof" before parental rights
may be terminated for reasons of mental
illness and mental retardation or
severe and repeated child abuse).
So far as we are aware, only
two federal courts have addressed
the issue. Each has held that allegations
supporting parental rights termination
must be proved by clear and convincing
evidence.
Sims v. State Dept. of Public
Welfare, 438 F.Supp. 1179, 1194 (S.D.Tex.1977),
rev'd on other grounds
sub nom. Moore v. Sims, 442
U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d
994 (1979);
Alsager v. District Court of
Polk County, 406 F.Supp. 10, 25 (S.D.Iowa
1975), aff'd
on other grounds,
545 F.2d 1137 (CA8 1976).
B
Petitioners
John Santosky II and Annie Santosky
are the natural parents of Tina and
John III. In November
1973, after incidents reflecting parental
neglect, respondent Kramer, Commissioner
of the Ulster County Department of
Social Services, initiated a neglect
proceeding under
Fam.Ct.Act § 1022
and removed Tina from her natural
home. About 10 months
later, he removed John III and placed
him with foster parents.
On the day John was taken, Annie Santosky
gave birth to a third child, Jed.
When Jed was only three days old,
respondent transferred him to a foster
home on the ground that immediate
removal was necessary to avoid imminent
danger to his life or health.
In
October 1978, respondent petitioned
the Ulster County Family Court to
terminate petitioners' parental rights
in the three children.
[FN4] Petitioners
challenged the constitutionality of
the "fair preponderance of the
evidence" standard specified
in
Fam.Ct.Act § 622.
The Family Court Judge rejected this
constitutional challenge, App. 29-30,
and weighed the evidence under the
statutory standard. While
acknowledging that the Santoskys had
maintained contact with their children,
the judge found those visits "at
best superficial and devoid of any
**1394 real emotional content."
Id., at 21. After *752
deciding that the agency had made
" 'diligent efforts' to encourage
and strengthen the parental relationship,"
id., at 30, he concluded that the
Santoskys were incapable, even with
public assistance, of planning for
the future of their children.
Id., at 33-37. The judge
later held a dispositional hearing
and ruled that the best interests
of the three children required permanent
termination of the Santoskys' custody.
[FN5] Id.,
at 39.
FN4.
Respondent had made an earlier and
unsuccessful termination effort in
September 1976. After
a factfinding hearing, the Family
Court Judge dismissed respondent's
petition for failure to prove an essential
element of Fam.Ct.Act § 614.1.(d).
See
In re Santosky, 89 Misc.2d
730, 393 N.Y.S.2d 486 (1977).
The New York Supreme Court, Appellate
Division, affirmed, finding that "the
record as a whole" revealed that
petitioners had "substantially
planned for the future of the
children."
In re John W., 63 App.Div.2d
750, 751, 404 N.Y.S.2d 717, 719 (1978).
FN5.
Since respondent Kramer took custody
of Tina, John III, and Jed, the Santoskys
have had two other children, James
and Jeremy. The State
has taken no action to remove these
younger children. At oral
argument, counsel for respondents
replied affirmatively when asked whether
he was asserting that petitioners
were "unfit to handle the three
older ones but not unfit to handle
the two younger ones."
Tr. of Oral Arg. 24.
Petitioners
appealed, again contesting the constitutionality
of
§ 622's
standard of proof.
[FN6]
The New York Supreme Court, Appellate
Division, affirmed, holding application
of the preponderance-of-the-evidence
standard "proper and constitutional."
In re John AA, 75 App.Div.2d
910, 427 N.Y.S.2d
319, 320 (1980).
That standard, the court reasoned,
"recognizes and seeks to balance
rights possessed by the child ...
with those of the natural parents...."
Ibid.
FN6.
Petitioners initially had sought review
in the New York Court of Appeals.
That court sua sponte transferred
the appeal to the Appellate Division,
Third Department, stating that a direct
appeal did not lie because "questions
other than the constitutional validity
of a statutory provision are involved."
App. 50.
The
New York Court of Appeals then dismissed
petitioners' appeal to that court
"upon the ground that no substantial
constitutional question is directly
involved." App. 55.
We granted certiorari to consider
petitioners' constitutional claim.
450 U.S. 993, 101 S.Ct. 1694,
68 L.Ed.2d 192 (1981).
II
Last
Term in
Lassiter v. Department of Social
Services, 452 U.S. 18, 101 S.Ct. 2153,
68 L.Ed.2d 640 (1981),
this Court, by a 5-4 vote, held that
the *753 Fourteenth Amendment's Due
Process Clause does not require the
appointment of counsel for indigent
parents in every parental status termination
proceeding. The case casts
light, however, on the two central
questions here--whether process is
constitutionally due a natural parent
at a State's parental rights termination
proceeding, and, if so, what process
is due.
In
Lassiter, it was "not disputed
that state intervention to terminate
the relationship between [a parent]
and [the] child must be accomplished
by procedures meeting the requisites
of the Due Process Clause."
Id., at 37, 101 S.Ct., at 2165
(first dissenting opinion);
see
id., at 24-32, 101 S.Ct., at
2158-2162
(opinion of the Court);
id., at 59-60, 101 S.Ct., at
2176 (STEVENS,
J., dissenting). See also
Little v. Streater, 452 U.S.
1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d
627 (1981).
The absence of dispute reflected this
Court's historical recognition that
freedom of personal choice in matters
of family life is a fundamental liberty
interest protected by the Fourteenth
Amendment.
Quilloin v. Walcott, 434 U.S.
246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d
511 (1978);
Smith v. Organization of Foster
Families, 431 U.S. 816, 845, 97 S.Ct.
2094, 2110, 53 L.Ed.2d 14 (1977);
Moore v. East Cleveland, 431
U.S. 494, 499, 97 S.Ct. 1932, 1935,
52 L.Ed.2d 531 (1977)
(plurality opinion);
Cleveland Board of Education
v. LaFleur, 414 U.S. 632, 639-640,
94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974);
Stanley v. Illinois, 405 U.S.
645, 651-652, 92 S.Ct. 1208, 1212-1213,
31 L.Ed.2d 551 (1972);
Prince v. Massachusetts, 321
U.S. 158, 166, 64 S.Ct. 438, 442,
88 L.Ed. 645 (1944);
Pierce v. Society of Sisters,
268 U.S. 510, 534-535, 45 S.Ct. 571,
573-574, 69 L.Ed. 1070 (1925);
Meyer v. Nebraska, 262 U.S.
390,
399, 43 S.Ct. 625, 626, 67
L.Ed. 1042 (1923).
[1][2][3]
The fundamental liberty interest of
natural parents in the care, custody,
and **1395 management of their child
does not evaporate simply because
they have not been model parents or
have lost temporary custody of their
child to the State. Even
when blood relationships are strained,
parents retain a vital interest in
preventing the irretrievable destruction
of their family life.
If anything, persons faced with forced
dissolution of their parental rights
have a more critical need for procedural
protections than do those resisting
state intervention into ongoing family
affairs. When the State
moves to *754 destroy
weakened familial bonds, it must provide
the parents with fundamentally fair
procedures.
[FN7]
FN7.
We therefore reject respondent Kramer's
claim that a parental rights termination
proceeding does not interfere with
a fundamental liberty interest.
See Brief for Respondent Kramer 11-18;
Tr. of Oral Arg. 38. The fact that
important liberty interests of the
child and its foster parents may also
be affected by a permanent neglect
proceeding does not justify denying
the natural parents constitutionally
adequate procedures. Nor can the State
refuse to provide natural parents
adequate procedural safeguards on
the ground that the family unit already
has broken down; that is the very
issue the permanent neglect proceeding
is meant to decide.
[4]
In Lassiter, the Court and three dissenters
agreed that the nature of the process
due in parental rights termination
proceedings turns on a balancing of
the "three distinct factors"
specified in
Mathews v. Eldridge, 424 U.S.
319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d
18 (1976):
the private interests affected by
the proceeding; the risk of
error created by the State's chosen
procedure; and the countervailing
governmental interest supporting use
of the challenged procedure.
See
452 U.S., at 27-31, 101 S.Ct.,
at 2159- 2162;
id., at 37-48, 101 S.Ct., at
2164-2171
(first dissenting opinion). But see
id., at 59-60, 101 S.Ct., at
2176 (STEVENS,
J., dissenting). While
the respective Lassiter opinions disputed
whether those factors should be weighed
against a presumption disfavoring
appointed counsel for one not threatened
with loss of physical liberty, compare
452 U.S., at 31-32, 101 S.Ct.,
at 2161-2162,
with
id., at 41, and n. 8, 101 S.Ct.,
at 2167, and n. 8
(first dissenting opinion), that concern
is irrelevant here. Unlike
the Court's right-to-counsel rulings,
its decisions concerning constitutional
burdens of proof have not turned on
any presumption favoring any particular
standard. To the contrary,
the Court has engaged in a straight-forward
consideration of the factors identified
in Eldridge to determine whether a
particular standard of proof in a
particular proceeding satisfies due
process.
[5]
In
Addington v. Texas, 441 U.S.
418, 99 S.Ct. 1804, 60 L.Ed.2d 323
(1979),
the Court, by a unanimous vote of
the participating Justices, declared:
"The function of a standard of
proof, as that concept is embodied
in the Due Process Clause and in the
realm of factfinding, is to *755 'instruct
the factfinder concerning the degree
of confidence our society thinks he
should have in the correctness of
factual conclusions for a particular
type of adjudication.' "
Id., at 423, 99 S.Ct. at 1808,
quoting
In re Winship, 397 U.S. 358,
370, 90 S.Ct. 1068, 1075, 25 L.Ed.2d
368 (1970)
(Harlan, J., concurring). Addington
teaches that, in any given proceeding,
the minimum standard of proof tolerated
by the due process requirement reflects
not only the weight of the private
and public interests affected, but
also a societal judgment about how
the risk of error should be distributed
between the litigants.
Thus,
while private parties may be interested
intensely in a civil dispute over
money damages, application of a "fair
preponderance of the evidence"
standard indicates both society's
"minimal concern with the outcome,"
and a conclusion that the litigants
should "share the risk of error
in roughly equal fashion."
441 U.S., at 423, 99 S.Ct.,
at 1808.
When the State brings a criminal action
to deny a defendant liberty or life,
however, "the interests of the
defendant are of such magnitude that
historically and without any explicit
constitutional requirement they have
been protected by standards of proof
designed to exclude as **1396 nearly
as possible the likelihood of an erroneous
judgment." Ibid.
The stringency of the "beyond
a reasonable doubt" standard
bespeaks the "weight and gravity"
of the private interest affected,
id., at 427, 99 S.Ct., at 1810,
society's interest in avoiding erroneous
convictions, and a judgment that those
interests together require that "society
impos[e] almost the entire risk of
error upon itself."
Id., at 424, 99 S.Ct., at 1808.
See also
In re Winship, 397 U.S., at
372, 90 S.Ct., at 1076
(Harlan, J., concurring).
[6]
The "minimum requirements [of
procedural due process] being a matter
of federal law, they are not diminished
by the fact that the State may have
specified its own procedures that
it may deem adequate for determining
the preconditions to adverse official
action."
Vitek v. Jones, 445 U.S. 480,
491, 100 S.Ct. 1254, 1262, 63 L.Ed.2d
552 (1980).
See also
Logan v. Zimmerman Brush Co.,
455 U.S. 422, 432, 102 S.Ct. 1148,
1155-1156, 71 L.Ed.2d 265 (1982).
Moreover, the degree of proof required
in a particular type of proceeding
"is the kind of question which
has *756 traditionally been left to
the judiciary to resolve."
Woodby v. INS, 385 U.S. 276,
284, 87 S.Ct. 483, 487, 17 L.Ed.2d
362 (1966).
[FN8]
"In cases involving individual
rights, whether criminal or civil,
'[t]he standard of proof [at a minimum]
reflects the value society places
on individual liberty.' "
Addington v. Texas, 441 U.S.,
at 425, 99 S.Ct., at 1809,
quoting
Tippett v. Maryland, 436 F.2d
1153, 1166 (CA4 1971)
(opinion concurring in part and dissenting
in part), cert. dism'd
sub nom. Murel v. Baltimore
City Criminal Court, 407 U.S. 355,
92 S.Ct. 2091, 32 L.Ed.2d 791 (1972).
FN8.
The dissent charges, post, at 1404,
n. 2, that "this Court simply
has no role in establishing the standards
of proof that States must follow in
the various judicial proceedings they
afford to their citizens."
As the dissent properly concedes,
however, the Court must examine a
State's chosen standard to determine
whether it satisfies "the constitutional
minimum of 'fundamental fairness.'
" Ibid. See, e.g.,
Addington v. Texas, 441 U.S.
418, 427, 433, 99 S.Ct. 1804, 1810,
1813, 60 L.Ed.2d 323 (1979)
(unanimous decision of participating
Justices) (Fourteenth Amendment requires
at least clear and convincing evidence
in a civil proceeding brought under
state law to commit an individual
involuntarily for an indefinite period
to a state mental hospital);
In re Winship, 397 U.S. 358,
364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d
368 (1970)
(Due Process Clause of the Fourteenth
Amendment protects the accused in
state proceeding against conviction
except upon proof beyond a reasonable
doubt of every fact necessary to constitute
the crime with which he is charged).
This
Court has mandated an intermediate
standard of proof--"clear and
convincing evidence"--when the
individual interests at stake in a
state proceeding are both "particularly
important" and "more substantial
than mere loss of money."
Addington v. Texas, 441 U.S.,
at 424, 99 S.Ct., at 1808.
Notwithstanding "the state's
'civil labels and good intentions,'
"
id., at 427, 99 S.Ct. at 1810,
quoting
In re Winship, 397 U.S., at
365-366, 90 S.Ct., at 1073-1074,
the Court has deemed this level of
certainty necessary to preserve fundamental
fairness in a variety of government-initiated
proceedings that threaten the individual
involved with "a significant
deprivation of liberty" or "stigma."
441 U.S., at 425, 426, 99 S.Ct.,
at 1808, 1809.
See, e. g., Addington v. Texas, supra
(civil commitment);
Woodby v. INS, 385 U.S., at
285, 87 S.Ct., at 487
(deportation);
Chaunt v. United States, 364
U.S. 350, 353, 81 S.Ct. 147, 149,
5 L.Ed.2d 120 (1960)
(denaturalization); *757
Schneiderman v. United States,
320 U.S. 118, 125, 159, 63 S.Ct. 1333,
1336, 1353, 87 L.Ed. 1796 (1943)
(denaturalization).
[7]
In Lassiter, to be sure, the Court
held that fundamental fairness may
be maintained in parental rights termination
proceedings even when some procedures
are mandated only on a case-by-case
basis, rather than through rules of
general application.
452 U.S., at 31-32, 101 S.Ct.,
at 2161-2162
(natural parent's right to court-appointed
counsel should be determined by the
trial court, subject to appellate
review). But this Court
never has approved case-by-case determination
of the proper standard of proof for
a given proceeding. Standards
of proof, like other "procedural
due process **1397 rules[,] are shaped
by the risk of error inherent in the
truth-finding process as applied to
thegenerality of cases, not the rare
exceptions."
Mathews v. Eldridge,
424 U.S., at 344, 96 S.Ct., at 907
(emphasis added). Since the litigants
and the factfinder must know at the
outset of a given proceeding how the
risk of error will be allocated, the
standard of proof necessarily must
be calibrated in advance.
Retrospective case-by-case review
cannot preserve fundamental fairness
when a class of proceedings is governed
by a constitutionally defective evidentiary
standard.
[FN9]
FN9.
For this reason, we reject the suggestions
of respondents and the dissent that
the constitutionality of New York's
statutory procedures must be evaluated
as a "package."
See Tr. of Oral Arg. 25, 36, 38. Indeed,
we would rewrite our precedents were
we to excuse a constitutionally defective
standard of proof based on an amorphous
assessment of the "cumulative
effect" of state procedures.
In the criminal context, for example,
the Court has never assumed that "strict
substantive standards or special procedures
compensate for a lower burden of proof...."
Post, at 1404. See
In re Winship, 397 U.S., at
368, 90 S.Ct., at 1074.
Nor has the Court treated appellate
review as a curative for an inadequate
burden of proof. See
Woodby v. INS, 385 U.S. 276,
282, 87 S.Ct. 483, 486, 17 L.Ed.2d
362 (1966)
("judicial review is generally
limited to ascertaining whether the
evidence relied upon by the trier
of fact was of sufficient quality
and substantiality to support the
rationality of the judgment").
As the dissent points out,
"the standard of proof is a crucial
component of legal process, the primary
function of which is 'to minimize
the risk of erroneous decisions.'
" Post, at 1411,
quoting
Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 13, 99 S.Ct.
2100, 2106, 60 L.Ed.2d 668 (1979).
Notice, summons, right to counsel,
rules of evidence, and evidentiary
hearings are all procedures to place
information before the factfinder.
But only the standard of proof "instruct[s]
the factfinder concerning the degree
of confidence our society thinks he
should have in the correctness of
factual conclusions" he draws
from that information.
In re Winship, 397 U.S., at
370, 90 S.Ct., at 1076
(Harlan, J., concurring).
The statutory provision of right to
counsel and multiple hearings before
termination cannot suffice to protect
a natural parent's fundamental liberty
interests if the State is willing
to tolerate undue uncertainty in the
determination of the dispositive facts.
*758 III
In
parental rights termination proceedings,
the private interest affected is commanding;
the risk of error from using a preponderance
standard is substantial; and
the countervailing governmental interest
favoring that standard is comparatively
slight. Evaluation of
the three Eldridge factors compels
the conclusion that use of a "fair
preponderance of the evidence"
standard in such proceedings is inconsistent
with due process.
A
[8]
"The extent to which procedural
due process must be afforded the recipient
is influenced by the extent to which
he may be 'condemned to suffer grievous
loss.' "
Goldberg v. Kelly, 397 U.S.
254, 262-263, 90 S.Ct. 1011, 1017-18,
25 L.Ed.2d 287 (1970),
quoting
Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123,
168, 71 S.Ct. 624, 646, 95 L.Ed. 817
(1951) (Frankfurter,
J., concurring). Whether
the loss threatened by a particular
type of proceeding is sufficiently
grave to warrant more than average
certainty on the part of the factfinder
turns on both the nature of the private
interest threatened and the permanency
of the threatened loss.
[9]
Lassiter declared it "plain beyond
the need for multiple citation"
that a natural parent's "desire
for and right to 'the companionship,
care, custody, and management of his
or her children' " is an interest
far more precious than any property
*759 right.
452 U.S., at 27, 101 S.Ct.,
at 2160,
quoting
Stanley v. Illinois, 405 U.S.,
at 651, 92 S.Ct., at 1212.
When the State initiates a parental
rights termination proceeding, it
seeks not merely to infringe that
fundamental liberty interest, but
to end it. "If the State
prevails, it will have worked a unique
kind of deprivation.... A parent's
interest in the accuracy and justice
of the decision to terminate his or
her parental status is, therefore,
a commanding one."
452 U.S., at 27, 101 S.Ct.,
at 2160.
**1398
In government-initiated proceedings
to determine juvenile delinquency,
In re Winship, supra ; civil
commitment, Addington v. Texas, supra;
deportation,Woodby v. INS, supra ;
and denaturalization, Chaunt v. United
States, supra, and Schneiderman v.
United States, supra, this Court has
identified losses of individual liberty
sufficiently serious to warrant imposition
of an elevated burden of proof.
Yet juvenile delinquency adjudications,
civil commitment, deportation, and
denaturalization, at least to a degree,
are all reversible official actions.
Once affirmed on appeal, a New York
decision terminating parental rights
is final and irrevocable.
See n. 1, supra. Few forms
of state action are both so severe
and so irreversible.
Thus,
the first Eldridge factor--the private
interest affected--weighs heavily
against use of the preponderance standard
at a state-initiated permanent neglect
proceeding. We do not
deny that the child and his foster
parents are also deeply interested
in the outcome of that contest.
But at the factfinding stage of the
New York proceeding, the focus emphatically
is not on them.
[10]
The factfinding does not purport--and
is not intended--to balance the child's
interest in a normal family home against
the parents' interest in raising the
child. Nor does it purport
to determine whether the natural parents
or the foster parents would provide
the better home. Rather,
the factfinding hearing pits the State
directly against the parents.
The State alleges that the natural
parents are at fault. Fam.Ct.Act
§ 614.1.(d). The questions
disputed and decided are *760 what
the State did--"made diligent
efforts," § 614.1.(c)--and
what the natural parents did not do--"maintain
contact with or plan for the future
of the child." §
614.1.(d). The State marshals
an array of public resources to prove
its case and disprove the parents'
case. Victory by the State
not only makes termination of parental
rights possible; it entails
a judicial determination that the
parents are unfit to raise their own
children.
[FN10]
FN10.
The Family Court Judge in the present
case expressly refused to terminate
petitioners' parental rights on a
"non-statutory, no-fault basis."
App. 22-29. Nor is it
clear that the State constitutionally
could terminate a parent's rights
without showing parental unfitness.
See
Quilloin v. Walcott, 434 U.S.
246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d
511 (1978)
("We have little doubt that the
Due Process Clause would be offended
'[i]f a State were to attempt to force
the breakup of a natural family, over
the objections of the parents and
their children, without some showing
of unfitness and for the sole reason
that to do so was thought to be in
the children's best interest,' "
quoting
Smith v. Organization of Foster
Families, 431 U.S. 816, 862-863, 97
S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977)
(Stewart, J., concurring in judgment)).
At
the factfinding, the State cannot
presume that a child and his parents
are adversaries. After
the State has established parental
unfitness at that initial proceeding,
the court may assume at the dispositional
stage that the interests of the child
and the natural parents do diverge.
See
Fam.Ct.Act § 631
(judge shall make his order "solely
on the basis of the best interests
of the child," and thus has no
obligation to consider the natural
parents' rights in selecting dispositional
alternatives). But until
the State proves parental unfitness,
the child and his parents share a
vital interest in preventing erroneous
termination of their natural relationship.
[FN11]
Thus, *761 at the factfinding, the
interests of the child and his natural
parents coincide to favor use of error-reducing
procedures.
FN11.
For a child, the consequences of termination
of his natural parents' rights may
well be far-reaching.
In Colorado, for example, it has been
noted: "The child loses
the right of support and maintenance,
for which he may thereafter be dependent
upon society; the right to inherit;
and all other rights inherent in the
legal parent-child relationship, not
just for [a limited] period ..., but
forever."
In re K.S., 33 Colo.App. 72,
76, 515 P.2d 130, 133 (1973).
Some losses cannot be measured.
In this case, for example, Jed Santosky
was removed from his natural parents'
custody when he was only three days
old; the judge's finding of
permanent neglect effectively foreclosed
the possibility that Jed would ever
know his natural parents.
**1399
However substantial the foster parents'
interests may be, cf.
Smith v. Organization of Foster
Families, 431 U.S., at 845-847, 97
S.Ct., at 2110-2111,
they are not implicated directly in
the factfinding stage of a state-initiated
permanent neglect proceeding against
the natural parents. If
authorized, the foster parents may
pit their interests directly against
those of the natural parents by initiating
their own permanent neglect proceeding.
Fam.Ct.Act § 1055(d);
Soc.Serv.Law § § 384-6.3(b),
392.7.(c). Alternatively, the foster
parents can make their case for custody
at the dispositional stage of a state-initiated
proceeding, where the judge already
has decided the issue of permanent
neglect and is focusing on the placement
that would serve the child's best
interests.
Fam.Ct.Act § § 623,
631.
For the foster parents, the State's
failure to prove permanent neglect
may prolong the delay and uncertainty
until their foster child is freed
for adoption. But for
the natural parents, a finding of
permanent neglect can cut off forever
their rights in their child.
Given this disparity of consequence,
we have no difficulty finding that
the balance of private interests strongly
favors heightened procedural protections.
B
[11]
Under Mathews v. Eldridge, we next
must consider both the risk of erroneous
deprivation of private interests resulting
from use of a "fair preponderance"
standard and the likelihood that a
higher evidentiary standard would
reduce that risk. See
424 U.S., at 335, 96 S.Ct.,
at 903.
Since the factfinding phase of a permanent
neglect proceeding is an adversary
contest between the State and the
natural parents, the relevant question
is whether a preponderance standard
fairly allocates the risk of an erroneous
factfinding between these two parties.
*762 In New York, the factfinding
stage of a state-initiated permanent
neglect proceeding bears many of the
indicia of a criminal trial.
Cf.
Lassiter v. Department of Social
Services, 452 U.S., at 42-44, 101
S.Ct., at 2167-2169
(first dissenting opinion);
Meltzer v. C. Buck LeCraw &
Co., 402 U.S. 954, 959,
91 S.Ct. 1624, 1626, 29 L.Ed.2d
124 (1971)
(Black, J., dissenting from denial
of certiorari). See also
dissenting opinion, post, at 1406-1408
(describing procedures employed at
factfinding proceeding).
The Commissioner of Social Services
charges the parents with permanent
neglect. They are served by summons.
Fam.Ct.Act § § 614,
616,
617.
The factfinding hearing is conducted
pursuant to formal rules of evidence.
§ 624. The State,
the parents, and the child are all
represented by counsel.
§ § 249,
262.
The State seeks to establish a series
of historical facts about the intensity
of its agency's efforts to reunite
the family, the infrequency and insubstantiality
of the parents' contacts with their
child, and the parents' inability
or unwillingness to formulate a plan
for the child's future.
The attorneys submit documentary evidence,
and call witnesses who are subject
to cross-examination.
Based on all the evidence, the judge
then determines whether the State
has proved the statutory elements
of permanent neglect by a fair preponderance
of the evidence.
§ 622.
At
such a proceeding, numerous factors
combine to magnify the risk of erroneous
factfinding. Permanent
neglect proceedings employ imprecise
substantive standards that leave determinations
unusually open to the subjective values
of the judge. See
Smith v. Organization of Foster
Families, 431 U.S., at 835, n. 36,
97 S.Ct., at 2105, n. 36.
In appraising the nature and quality
of a complex series of encounters
among the agency, the parents, and
the child, the court possesses unusual
discretion to underweigh probative
facts that might favor the parent.
[FN12]
*763 Because parents **1400 subject
to termination proceedings are often
poor, uneducated, or members of minority
groups,
id., at 833-835,
such proceedings are often vulnerable
to judgments based on cultural or
class bias.
FN12.
For example, a New York court appraising
an agency's "diligent efforts"
to provide the parents with social
services can excuse efforts not made
on the grounds that they would have
been "detrimental to the best
interests of the child."
Fam.Ct.Act § 614.1.(c).
In determining whether the parent
"substantially and continuously
or repeatedly" failed to "maintain
contact with ... the child,"
§ 614.1.(d), the judge can discount
actual visits or communications on
the grounds that they were insubstantial
or "overtly demonstrat[ed] a
lack of affectionate and concerned
parenthood."
Soc.Serv.Law § 384-b.7.(b).
When determining whether the parent
planned for the child's future, the
judge can reject as unrealistic plans
based on overly optimistic estimates
of physical or financial ability.
§ 384-b.7.(c).
See also dissenting opinion, post
at 1407-1408, nn. 8 and 9.
The
State's ability to assemble its case
almost inevitably dwarfs the parents'
ability to mount a defense.
No predetermined limits restrict the
sums an agency may spend in prosecuting
a given termination proceeding.
The State's attorney usually will
be expert on the issues contested
and the procedures employed at the
factfinding hearing, and enjoys full
access to all public records concerning
the family. The State
may call on experts in family relations,
psychology, and medicine to bolster
its case. Furthermore,
the primary witnesses at the hearing
will be the agency's own professional
caseworkers whom the State has empowered
both to investigate the family situation
and to testify against the parents.
Indeed, because the child
is already in agency custody, the
State even has the power to shape
the historical events that form the
basis for termination.
[FN13]
FN13.
In this case, for example, the parents
claim that the State sought court
orders denying them the right to visit
their children, which would have prevented
them from maintaining the contact
required by Fam.Ct.Act. § 614.1.(d).
See Brief for Petitioners 9.
The parents further claim that the
State cited their rejection of social
services they found offensive or superfluous
as proof of the agency's "diligent
efforts" and their own "failure
to plan" for the children's future.
Id., at 10- 11.
We need not accept these statements
as true to recognize that the State's
unusual ability to structure the evidence
increases the risk of an erroneous
factfinding. Of course,
the disparity between the litigants'
resources will be vastly greater in
States where there is no statutory
right to court-appointed counsel.
See
Lassiter v. Department of Social
Services, 452 U.S. 18, 34, 101 S.Ct.
2153, 2163, 68 L.Ed.2d 640 (1981)
(only 33 States and the District of
Columbia provide that right by statute).
*764 The disparity between the adversaries'
litigation resources is matched by
a striking asymmetry in their litigation
options. Unlike criminal
defendants, natural parents have no
"double jeopardy" defense
against repeated state termination
efforts. If the State
initially fails to win termination,
as New York did here, see n. 4, supra,
it always can try once again to cut
off the parents' rights after gathering
more or better evidence.
Yet even when the parents have attained
the level of fitness required by the
State, they have no similar means
by which they can forestall future
termination efforts.
Coupled
with a "fair preponderance of
the evidence" standard, these
factors create a significant prospect
of erroneous termination.
A standard of proof that by its very
terms demands consideration of the
quantity, rather than the quality,
of the evidence may misdirect the
factfinder in the marginal case. See
In re Winship, 397 U.S., at
371, n. 3, 90 S.Ct., at 1076, n. 3
(Harlan, J., concurring).
Given the weight of the private interests
at stake, the social cost of even
occasional error is sizable.
Raising
the standard of proof would have both
practical and symbolic consequences.
Cf.
Addington v. Texas, 441 U.S.,
at 426, 99 S.Ct., at 1809.
The Court has long considered the
heightened standard of proof used
in criminal prosecutions to be "a
prime instrument for reducing the
risk of convictions resting on factual
error."
In re Winship, 397 U.S., at
363, 90 S.Ct., at 1072.
An elevated standard of proof in a
parental rights termination proceeding
would alleviate "the possible
risk that a factfinder might decide
to [deprive] an individual based solely
on a few isolated instances of unusual
conduct [or] ... idiosyncratic behavior."
Addington v. Texas, 441 U.S.,
at 427, 99 S.Ct., at 1810.
"Increasing the burden of proof
is one way to **1401 impress the factfinder
with the importance *765 of the decision
and thereby perhaps to reduce the
chances that inappropriate" terminations
will be ordered. Ibid.
The
Appellate Division approved New York's
preponderance standard on the ground
that it properly "balanced rights
possessed by the child ... with those
of the natural parents...."
75 App.Div.2d, at 910, 427
N.Y.S.2d, at 320.
By so saying, the court suggested
that a preponderance standard properly
allocates the risk of error between
the parents and the child.
[FN14]
That view is fundamentally mistaken.
FN14.
The dissent makes a similar claim.
See post, at 1411-1414.
The
court's theory assumes that termination
of the natural parents' rights invariably
will benefit the child.
[FN15]
Yet we have noted above that the parents
and the child share an interest in
avoiding erroneous termination. Even
accepting the court's assumption,
we cannot agree with its conclusion
that a preponderance standard fairly
distributes the risk of error between
parent and child. Use
of that standard reflects the judgment
that society is nearly neutral between
erroneous termination of parental
rights and erroneous failure to terminate
those rights. Cf.
In re Winship, 397 U.S., at
371, 90 S.Ct., at 1076
(Harlan, J., concurring).
For the child, the likely consequence
of an erroneous failure to terminate
is preservation of *766 an uneasy
status quo.
[FN16]
For the natural parents, however,
the consequence of an erroneous termination
is the unnecessary destruction of
their natural family. A standard
that allocates the risk of error nearly
equally between those two outcomes
does not reflect properly their relative
severity.
FN15.
This is a hazardous assumption at
best. Even when a child's
natural home is imperfect, permanent
removal from that home will not necessarily
improve his welfare. See,
e.g., Wald, State Intervention on
Behalf of "Neglected" Children:
A Search for Realistic Standards,
27 Stan.L.Rev. 985, 993 (1975)
("In fact, under current practice,
coercive intervention frequently results
in placing a child in a more detrimental
situation than he would be in without
intervention").
Nor does termination of parental
rights necessarily ensure adoption.
See Brief for Community Action for
Legal Services, Inc., et al. as Amici
Curiae 22-23. Even when
a child eventually finds an adoptive
family, he may spend years moving
between state institutions and "temporary"
foster placements after his ties to
his natural parents have been severed.
See
Smith v. Organization of Foster
Families, 431 U.S., at 833-838, 97
S.Ct., at 2103-06 (describing the
"limbo" of the New York
foster care system).
FN16.
When the termination proceeding occurs,
the child is not living at his natural
home. A child cannot be
adjudicated "permanently neglected"
until, "for a period of more
than one year," he has been in
"the care of an authorized agency."
Soc.Serv.Law § 384-b.7.(a);
Fam.Ct.Act § 614.1.(d).
See also dissenting opinion, post,
at 1413.
Under New York law, a judge
has ample discretion to ensure that,
once removed from his natural parents
on grounds of neglect, a child will
not return to a hostile environment.
In this case, when the State's initial
termination effort failed for lack
of proof, see n. 4, supra, the court
simply issued orders under
Fam.Ct. Act § 1055(b)
extending the period of the child's
foster home placement.
See App. 19-20. See also
Fam.Ct. Act § 632(b)
(when State's permanent neglect petition
is dismissed for insufficient evidence,
judge retains jurisdiction to reconsider
underlying orders of placement);
§ 633 (judge may suspend judgment
at dispositional hearing for an additional
year).
C
[12]
Two state interests are at stake in
parental rights termination proceedings--a
parens patriae interest in preserving
and promoting the welfare of the child
and a fiscal and administrative interest
in reducing the cost and burden of
such proceedings. A standard
of proof more strict than preponderance
of the evidence is consistent with
both interests.
"Since
the State has an urgent interest in
the welfare of the child, it shares
the parent's interest in an accurate
and just decision" at the factfinding
proceeding.
Lassiter v. Department of Social
Services, 452 U.S., at 27, 101 S.Ct.,
at 2160.
As parens patriae, the State's goal
is to provide the child with a permanent
home. See
Soc.Serv.Law § 384-b.1.(a)(i)
(statement of legislative findings
and intent). Yet while
**1402 there is still reason to believe
that positive, nurturing parent-child
relationships exist, the parens patriae
interest favors preservation, not
*767 severance, of natural familial
bonds.
[FN17]
§ 384-b.1.(a)(ii).
"[T]he State registers no gain
towards its declared goals when it
separates children from the custody
of fit parents."
Stanley v. Illinois, 405 U.S.,
at 652, 92 S.Ct., at 1213.
FN17.
Any parens patriae interest in terminating
the natural parents' rights arises
only at the dispositional phase, after
the parents have been found unfit.
The
State's interest in finding the child
an alternative permanent home arises
only "when it is clear that the
natural parent cannot or will not
provide a normal family home for the
child."
Soc.Serv.Law § 384-b.1.
(a)(iv) (emphasis added).
At the factfinding, that goal is served
by procedures that promote an accurate
determination of whether the natural
parents can and will provide a normal
home.
Unlike
a constitutional requirement of hearings,
see, e.g.,
Mathews v. Eldridge, 424 U.S.,
at 347, 96 S.Ct., at 908,
or court-appointed counsel, a stricter
standard of proof would reduce factual
error without imposing substantial
fiscal burdens upon the State.
As we have observed, 35 States already
have adopted a higher standard by
statute or court decision without
apparent effect on the speed, form,
or cost of their factfinding proceedings.
See n. 3, supra.
Nor
would an elevated standard of proof
create any real administrative burdens
for the State's factfinders.
New York Family Court judges already
are familiar with a higher evidentiary
standard in other parental rights
termination proceedings not involving
permanent neglect. See
Soc.Serv.Law § § 384-b.3.(g),
384-b.4.(c),
and
384-b.4.(e)
(requiring "clear and convincing
proof" before parental rights
may be terminated for reasons of mental
illness and mental retardation or
severe and repeated child abuse).
New York also demands at least clear
and convincing evidence in proceedings
of far less moment than parental rights
termination proceedings.
See, e.g., N.Y. Veh. & Traf. Law
§ 227.1 (McKinney Supp.1981)
(requiring the State to prove traffic
*768 infractions by "clear and
convincing evidence") and
In re Rosenthal v. Hartnett,
36 N.Y.2d 269, 367 N.Y.S.2d 247, 326
N.E.2d 811 (1975);
see also
Ross v. Food Specialties, Inc.,
6 N.Y.2d 336, 341, 189 N.Y.S.2d 857,
859, 160 N.E.2d 618, 620 (1959)
(requiring "clear, positive and
convincing evidence" for contract
reformation). We cannot
believe that it would burden the State
unduly to require that its factfinders
have the same factual certainty when
terminating the parent-child relationship
as they must have to suspend a driver's
license.
IV
[13]
The logical conclusion of this balancing
process is that the "fair preponderance
of the evidence" standard prescribed
by
Fam.Ct.Act § 622
violates the Due Process Clause of
the Fourteenth Amendment.
[FN18]
The Court noted in Addington :
"The individual should not be
asked to share equally with society
the risk of error when the possible
injury to the individual is significantly
greater than any possible harm to
the
state." 441 U.S., at 427,
99 S.Ct., at 1810.
Thus, at a parental rights termination
proceeding, a near-equal allocation
of risk between the parents and the
State is constitutionally intolerable.
The next question, then, is whether
a "beyond a reasonable doubt"
or a "clear and convincing"
standard is constitutionally mandated.
FN18.
The dissent's claim that today's decision
"will inevitably lead to the
federalization of family law,"
post, at 1404, is, of course, vastly
overstated. As the dissent
properly notes, the Court's duty to
"refrai[n] from interfering with
state answers to domestic relations
questions" has never required
"that the Court should blink
at clear constitutional violations
in state statutes."
Post, at 1403.
In
Addington, the Court concluded that
application of a reasonable-doubt
standard is inappropriate in civil
commitment proceedings for two reasons--
because of our hesitation to apply
that unique standard **1403 "too
broadly or casually in noncriminal
cases,"
id., at 428, 99 S.Ct., at 1810,
and because the psychiatric evidence
ordinarily adduced at commitment proceedings
is *769 rarely susceptible to proof
beyond a reasonable doubt.
Id., at 429-430, 432-433, 99
S.Ct., at 1811-1812, 1812-1813.
To be sure, as has been noted above,
in the Indian Child Welfare Act of
1978, Pub.L. 95-608, §
102(f), 92
Stat. 3072,
25 U.S.C. § 1912(f)
(1976 ed., Supp.IV), Congress requires
"evidence beyond a reasonable
doubt" for termination of Indian
parental rights, reasoning that "the
removal of a child from the parents
is a penalty as great [as], if not
greater, than a criminal penalty...."
H.R.Rep.No. 95-1386, p. 22
(1978), U.S.Code Cong. & Admin.News
1978, pp. 7530, 7545.
Congress did not consider, however,
the evidentiary problems that would
arise if proof beyond a reasonable
doubt were required in all state-initiated
parental rights termination hearings.
Like
civil commitment hearings, termination
proceedings often require the factfinder
to evaluate medical and psychiatric
testimony, and to decide issues difficult
to prove to a level of absolute certainty,
such as lack of parental motive, absence
of affection between parent and child,
and failure of parental foresight
and progress. Cf.
Lassiter v. Department of Social
Services, 452 U.S., at 30, 101 S.Ct.,
at 2161;
id., at 44-46, 101 S.Ct., at
2168-2169
(first dissenting opinion) (describing
issues raised in state termination
proceedings). The substantive
standards applied vary from State
to State. Although Congress found
a "beyond a reasonable doubt"
standard proper in one type of parental
rights termination case, another legislative
body might well conclude that a reasonable-doubt
standard would erect an unreasonable
barrier to state efforts to free permanently
neglected children for adoption.
[14][15]
A majority of the States have concluded
that a "clear and convincing
evidence" standard of proof strikes
a fair balance between the rights
of the natural parents and the State's
legitimate concerns. See
n. 3, supra. We hold that
such a standard adequately conveys
to the factfinder the level of subjective
certainty about his factual conclusions
necessary to satisfy due process.
We further hold that determination
of the precise burden equal to or
greater than that standard *770 is
a matter of state law properly left
to state legislatures and state courts.
Cf.
Addington v. Texas, 441 U.S.,
at 433, 99 S.Ct., at 1813.
We,
of course, express no view on the
merits of petitioners' claims.
[FN19]
At a hearing conducted under a constitutionally
proper standard, they may or may not
prevail. Without deciding
the outcome under any of the standards
we have approved, we vacate the judgment
of the Appellate Division and remand
the case for further proceedings not
inconsistent with this opinion.
FN19.
Unlike the dissent, we carefully refrain
from accepting as the "facts
of this case" findings that are
not part of the record and that have
been found only to be more likely
true than not.
It
is so ordered.
Justice
REHNQUIST, with whom THE CHIEF JUSTICE,
Justice WHITE, and Justice O'CONNOR
join, dissenting.
I
believe that few of us would care
to live in a society where every aspect
of life was regulated by a single
source of law, whether that source
be this Court or some other organ
of our complex body politic.
But today's decision certainly moves
us in that direction.
By parsing the New York scheme and
holding one narrow provision unconstitutional,
the majority invites further federal-court
intrusion into every facet of state
family law. If ever there
were an area in which federal courts
should heed the admonition of Justice
Holmes that "a page of history
is worth a volume of logic,"
[FN1]
it is in the area of domestic relations.
This area has been left to the States
from **1404 time immemorial, and not
without good reason.
FN1.
New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507,
65 L.Ed. 963 (1921).
Equally
as troubling is the majority's due
process analysis. The
Fourteenth Amendment guarantees that
a State will treat individuals with
"fundamental fairness" whenever
its actions infringe their protected
liberty or property interests.
By adoption of the procedures relevant
to this case, New *771 York has created
an exhaustive program to assist parents
in regaining the custody of their
children and to protect parents from
the unfair deprivation of their parental
rights. And yet the majority's
myopic scrutiny of the standard of
proof blinds it to the very considerations
and procedures which make the New
York scheme "fundamentally fair."
I
State
intervention in domestic relations
has always been an unhappy but necessary
feature of life in our organized society.
For all of our experience in this
area, we have found no fully satisfactory
solutions to the painful problem of
child abuse and neglect.
We have found, however, that leaving
the States free to experiment with
various remedies has produced novel
approaches and promising progress.
Throughout
this experience the Court has scrupulously
refrained from interfering with state
answers to domestic relations questions.
"Both theory and the precedents
of this Court teach us solicitude
for state interests, particularly
in the field of family and family-property
arrangements."
United States v. Yazell,
382 U.S. 341, 352, 86 S.Ct. 500, 507,
15 L.Ed.2d 404 (1966).
This is not to say that the Court
should blink at clear constitutional
violations in state statutes, but
rather that in this area, of all areas,
"substantial weight must be given
to the good-faith judgments of the
individuals [administering a program]
... that the procedures they have
provided assure fair consideration
of the ... claims of individuals."
Mathews v. Eldridge,
424 U.S. 319, 349, 96 S.Ct. 893, 909,
47 L.Ed.2d 18 (1976).
This
case presents a classic occasion for
such solicitude. As will
be seen more fully in the next part,
New York has enacted a comprehensive
plan to aid marginal parents in regaining
the custody of their child.
The central purpose of the New York
plan is to reunite divided families.
Adoption of the preponderance-of-the-evidence
standard represents New York's good-faith
effort to balance the interest of
parents *772 against the legitimate
interests of the child and the State.
These earnest efforts by state officials
should be given weight in the Court's
application of due process principles.
"Great constitutional provisions
must be administered with caution.
Some play must be allowed for the
joints of the machine, and it must
be remembered that legislatures are
ultimate guardians of the liberties
and welfare of the people in quite
as great a degree as the courts."
Missouri, K. & T.R. Co.
v. May, 194 U.S. 267, 270, 24 S.Ct.
638, 639, 48 L.Ed. 971 (1904).
[FN2]
FN2.
The majority asserts that "the
degree of proof required in a particular
type of proceeding 'is the kind of
question which has traditionally been
left to the judiciary to resolve.'
Woodby v. INS, 385 U.S. 276,
284, 87 S.Ct. 483, 487, 17 L.Ed.2d
362 (1966)."
Ante, at 1395. To the
extent that the majority seeks, by
this statement, to place upon the
federal judiciary the primary responsibility
for deciding the appropriate standard
of proof in state matters, it arrogates
to itself a responsibility wholly
at odds with the allocation of authority
in our federalist system and wholly
unsupported by the prior decisions
of this Court. In
Woodby v. INS, 385 U.S. 276,
87 S.Ct. 483, 17 L.Ed.2d 362 (1966),
the Court determined the proper standard
of proof to be applied under a federal
statute, and did so only after concluding
that "Congress ha [d] not addressed
itself to the question of what degree
of proof [was] required in deportation
proceedings."
Id., at 284, 87 S.Ct., at 487.
Beyond an examination for the constitutional
minimum of "fundamental fairness"--which
clearly is satisfied by the New York
procedures at issue in this case--this
Court simply has no role in establishing
the standards of proof that States
must follow in the various judicial
proceedings they afford to their citizens.
The
majority may believe that it is adopting
a relatively unobtrusive means of
ensuring that termination proceedings
provide "due process of law."
In fact, however, **1405 fixing the
standard of proof as a matter of federal
constitutional law will only lead
to further federal-court intervention
in state schemes. By holding
that due process requires proof by
clear and convincing evidence the
majority surely cannot mean that any
state scheme passes constitutional
muster so long as it applies that
standard of proof. A state
law permitting termination of parental
rights upon a showing of neglect by
clear and convincing evidence certainly
would not be acceptable *773 to the
majority if it provided no procedures
other than one 30-minute hearing.
Similarly, the majority probably would
balk at a state scheme that permitted
termination of parental rights on
a clear and convincing showing merely
that such action would be in the best
interests of the child.
See
Smith v. Organization of Foster
Families, 431 U.S. 816, 862-863, 97
S.Ct. 2094, 2119, 53 L.Ed.2d 14 (1977)
(Stewart, J., concurring in judgment).
After
fixing the standard of proof, therefore,
the majority will be forced to evaluate
other aspects of termination proceedings
with reference to that point.
Having in this case abandoned evaluation
of the overall effect of a scheme,
and with it the possibility of finding
that strict substantive standards
or special procedures compensate for
a lower burden of proof, the majority's
approach will inevitably lead to the
federalization of family law.
Such a trend will only thwart state
searches for better solutions in an
area where this Court should encourage
state experimentation. "It
is one of the happy incidents of the
federal system that a single courageous
State may, if its citizens choose,
serve as a laboratory; and try
novel social and economic experiments
without risk to the rest of the country.
This Court has the power to prevent
an experiment."
New State Ice Co. v. Liebmann,
285 U.S. 262, 311, 52 S.Ct. 371, 386,
76 L.Ed. 747 (1932)
(Brandeis, J., dissenting).
It should not do so in the absence
of a clear constitutional violation.
As will be seen in the next part,
no clear constitutional violation
has occurred in this case.
II
As
the majority opinion notes, petitioners
are the parents of five children,
three of whom were removed from petitioners'
care on or before August 22, 1974.
During the next four and one-half
years, those three children were in
the custody of the State and in the
care of foster homes or institutions,
and the State was diligently engaged
in efforts to prepare petitioners
for the children's return.
Those efforts were unsuccessful, *774
however, and on April 10, 1979, the
New York Family Court for Ulster County
terminated petitioners' parental rights
as to the three children removed in
1974 or earlier. This
termination was preceded by a judicial
finding that petitioners had failed
to plan for the return and future
of their children, a statutory category
of permanent neglect.
Petitioners now contend, and the Court
today holds, that they were denied
due process of law, not because of
a general inadequacy of procedural
protections, but simply because the
finding of permanent neglect was made
on the basis of a preponderance of
the evidence adduced at the termination
hearing.
It
is well settled that "[t]he requirements
of procedural due process apply only
to the deprivation of interests encompassed
by the Fourteenth Amendment's protection
of liberty and property."
Board of Regents v. Roth, 408
U.S. 564, 569, 92 S.Ct. 2701, 2705,
33 L.Ed.2d 548 (1972).
In determining whether such liberty
or property interests are implicated
by a particular government action,
"we must look not to the 'weight'
but to the nature of the interest
at stake."
Id., at 571, 92 S.Ct., at 2706
(emphasis in original).
I do not disagree with the majority's
conclusion that the interest of parents
in their relationship with their children
is sufficiently fundamental to come
within the finite class of liberty
interests protected by the Fourteenth
Amendment. See
Smith v. Organization of Foster
Families, supra, at 862-863, 97 S.Ct.,
at 2119 (Stewart,
J., concurring in judgment).
"Once it is determined that due
**1406 process applies, [however,]
the question remains what process
is due."
Morrissey v. Brewer, 408 U.S.
471, 481, 92 S.Ct. 2595, 2600,
33 L.Ed.2d 484 (1972).
It is the majority's answer to this
question with which I disagree.
A
Due
process of law is a flexible constitutional
principle. The requirements
which it imposes upon governmental
actions vary with the situations to
which it applies. As the
Court previously has recognized, "not
all situations calling for *775 procedural
safeguards call for the same kind
of procedure."
Morrissey v. Brewer, supra,
at 481, 92 S.Ct., at 2600.
See also
Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 12, 99 S.Ct.
2100, 2106, 60 L.Ed.2d 668 (1979);
Mathews v. Eldridge, 424 U.S.,
at 334, 96 S.Ct., at 902;
Cafeteria Workers v. McElroy,
367 U.S. 886, 895, 81 S.Ct. 1743,
1748, 6 L.Ed.2d 1230 (1961).
The adequacy of a scheme of procedural
protections cannot, therefore, be
determined merely by the application
of general principles unrelated to
the peculiarities of the case at hand.
Given
this flexibility, it is obvious that
a proper due process inquiry cannot
be made by focusing upon one narrow
provision of the challenged statutory
scheme. Such a focus threatens
to overlook factors which may introduce
constitutionally adequate protections
into a particular government action.
Courts must examine all procedural
protections offered by the State,
and must assess the cumulative effect
of such safeguards. As
we have stated before, courts must
consider "the fairness and reliability
of the existing ... procedures"
before holding that the Constitution
requires more.
Mathews v. Eldridge, supra,
424 U.S., at 343, 96 S.Ct., at 907.
Only through such a broad inquiry
may courts determine whether a challenged
governmental action satisfies the
due process requirement of "fundamental
fairness."
[FN3]
In some instances, the Court has even
looked to nonprocedural restraints
on official action in determining
whether the deprivation of a protected
interest was effected without due
process of law. E.g.,
*776Ingraham
v. Wright, 430
U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d
711 (1977).
In this case, it is just such a broad
look at the New York scheme which
reveals its fundamental fairness.
[FN4]
FN3.
Although, as the majority states,
we have held that the minimum requirements
of procedural due process are a question
of federal law, such a holding does
not mean that the procedural protections
afforded by a State will be inadequate
under the Fourteenth Amendment.
It means simply that the adequacy
of the state-provided process is to
be judged by constitutional standards--standards
which the majority itself equates
to "fundamental fairness."
Ante, at 1394. I differ,
therefore, not with the majority's
statement that the requirements of
due process present a federal question,
but with its apparent assumption that
the presence of "fundamental
fairness" can be ascertained
by an examination which completely
disregards the plethora of protective
procedures accorded parents by New
York law.
FN4.
The majority refuses to consider New
York's procedure as a whole, stating
that "[t]he statutory provision
of right to counsel and multiple hearings
before termination cannot suffice
to protect a natural parent's fundamental
liberty interests if the State is
willing to tolerate undue uncertainty
in the determination of the dispositive
facts." Ante, at 1396,
n. 9. Implicit in this
statement is the conclusion that the
risk of error may be reduced to constitutionally
tolerable levels only by raising the
standard of proof--that other procedures
can never eliminate "undue uncertainty"
so long as the standard of proof remains
too low. Aside from begging the question
of whether the risks of error tolerated
by the State in this case are "undue,"
see infra, at 1410-1414, this conclusion
denies the flexibility that we have
long recognized in the principle of
due process; understates the
error-reducing power of procedural
protections such as the right to counsel,
evidentiary hearings, rules of evidence,
and appellate review; and establishes
the standard of proof as the sine
qua non of procedural due process.
The
termination of parental rights on
the basis of permanent neglect can
occur under New York law only by order
of the Family Court. N.Y.Soc.Serv.Law
(SSL)
§ 384-b.3.(d)
(McKinney Supp.1981-1982).
Before a petition for permanent termination
can be filed in that court, however,
several other events must first occur.
**1407
The Family Court has jurisdiction
only over those children who are in
the care of an authorized agency.
N.Y.Family Court Act (FCA) §
614.1. (b) (McKinney 1975 and Supp.1981-1982).
Therefore, the children who are the
subject of a termination petition
must previously have been removed
from their parents' home on a temporary
basis. Temporary removal
of a child can occur in one of two
ways. The parents may
consent to the removal,
FCA § 1021,
or, as occurred in this case, the
Family Court can order the removal
pursuant to a finding that the child
is abused or neglected.
[FN5]
FCA § § 1051,
1052.
FN5.
An abused child is one who has been
subjected to intentional physical
injury "which causes or creates
a substantial risk of death, or serious
or protracted disfigurement, or protracted
impairment of physical or emotional
health or protracted loss or impairment
of the function of any bodily organ."
FCA § 1012(e)(i).
Sexual offenses against a child are
also covered by this category.
A neglected child is one "whose
physical, mental or emotional condition
has been impaired or is in imminent
danger of becoming impaired as a result
of the failure of his parent ... to
exercise a minimum degree of care
in supplying the child with adequate
food, clothing, shelter or education."
FCA § 1012(f)(i)(A).
*777 Court proceedings to order the
temporary removal of a child are initiated
by a petition alleging abuse or neglect,
filed by a state-authorized child
protection agency or by a person designated
by the court.
FCA § § 1031,
1032.
Unless the court finds that exigent
circumstances require removal of the
child before a petition may be filed
and a hearing held, see
FCA § 1022,
the order of temporary removal results
from a "dispositional hearing"
conducted to determine the appropriate
form of alternative care.
FCA § 1045.
See also
FCA § 1055.
This "dispositional hearing"
can be held only after the court,
at a separate "fact-finding hearing,"
has found the child to be abused or
neglected within the specific statutory
definition of those terms.
FCA § § 1012,
1044,
1051.
Parents
subjected to temporary removal proceedings
are provided extensive procedural
protections. A summons
and copy of the temporary removal
petition must be served upon the parents
within two days of issuance by the
court,
FCA § § 1035,
1036,
and the parents may, at their own
request, delay the commencement of
the factfinding hearing for three
days after service of the summons.
FCA § 1048.
[FN6]
The factfinding hearing may not commence
without a determination by the court
that the parents are present at the
hearing and have been served with
the petition.
FCA § 1041.
At the hearing itself, "only
competent, material and relevant evidence
may be admitted," with some enumerated
exceptions *778 for particularly
probative evidence.
FCA § 1046(b)(ii).
In addition, indigent parents are
provided with an attorney to represent
them at both the factfinding and dispositional
hearings, as well as at all other
proceedings related to temporary removal
of their child.
FCA § 262(a)(i).
FN6.
The relatively short time between
notice and commencement of hearing
provided by
§ 1048
undoubtedly reflects the State's desire
to protect the child.
These proceedings are designed to
permit prompt action by the court
when the child is threatened with
imminent and serious physical, mental,
or emotional harm.
An
order of temporary removal must be
reviewed every 18 months by the Family
Court. SSL § 392.2.
Such review is conducted by hearing
before the same judge who ordered
the temporary removal, and a notice
of the hearing, including a statement
of the dispositional alternatives,
must be given to the parents at least
20 days before the hearing is held.
SSL § 392.4. As
in the initial removal action, the
parents must be parties to the proceedings,
ibid., and are entitled to court-appointed
counsel if indigent.
FCA § 262(a).
One
or more years after a child has been
removed temporarily from the parents'
home, permanent termination proceedings
may be commenced by the filing of
a petition in the court which ordered
the temporary removal.
The petition must be filed by a state
agency or by a foster parent authorized
by the court,
SSL § 384-b.3.(b),
and must allege that the child has
been **1408 permanently neglected
by the parents.
SSL § § 384-b.3.(d).
[FN7]
Notice of the petition and the dispositional
proceedings must be served upon the
parents at least 20 days before the
commencement of the hearing,
SSL § 384-b.3.(e),
must inform them of the potential
consequences of the hearing, ibid.,
and must inform them "of their
right to the assistance of counsel,
including [their] right ... to have
counsel assigned by the court [if]
they are financially unable to obtain
counsel." Ibid. See also
FCA § 262.
FN7.
Permanent custody also may be awarded
by the Family Court if both parents
are deceased, the parents abandoned
the child at least six months prior
to the termination proceedings, or
the parents are unable to provide
proper and adequate care by reason
of mental illness or mental retardation.
SSL § 384-b.4.(c).
As
in the initial removal proceedings,
two hearings are held in consideration
of the permanent termination petition.
*779
SSL § 384-b.3.(f).
At the factfinding hearing, the court
must determine, by a fair preponderance
of the evidence, whether the child
has been permanently neglected.
SSL § 384-b.3.(g).
"Only competent, material and
relevant evidence may be admitted
in a fact-finding hearing."
FCA § 624.
The court may find permanent neglect
if the child is in the care of an
authorized agency or foster home and
the parents have "failed for
a period of more than one year ...
substantially and continuously or
repeatedly to maintain contact with
or plan for the future of the child,
although physically and financially
able to do so."
SSL 384-b.7.(a).
[FN8]
In addition, because the State considers
its "first obligation" to
be the reuniting of the child with
its natural parents,
SSL § 384-b.1.(iii),
the court must also find that the
supervising state agency has, without
success, made "diligent efforts
to encourage and strengthen the parental
relationship."
SSL § 384-b.7.(a)
(emphasis added).
[FN9]
FN8.
As to maintaining contact with the
child, New York law provides that
"evidence of insubstantial or
infrequent contacts by a parent with
his or her child shall not, of itself,
be sufficient as a matter of law to
preclude a determination that such
child is a permanently neglected child.
A visit or communication by a parent
with the child which is of such a
character as to overtly demonstrate
a lack of affectionate and concerned
parenthood shall not be deemed a substantial
contact."
SSL § 384-b.7.(b).
Failure to plan for the future
of the child means failure "to
take such steps as may be necessary
to provide an adequate, stable home
and parental care for the child within
a period of time which is reasonable
under the financial circumstances
available to the parent.
The plan must be realistic and feasible,
and good faith effort shall not, of
itself, be determinative.
In determining whether a parent has
planned for the future of the child,
the court may consider the failure
of the parent to utilize medical,
psychiatric, psychological and other
social and rehabilitative services
and material resources made available
to such parent."
SSL § 384-b.7.(c).
FN9.
"Diligent efforts" are defined
under New York law to "mean reasonable
attempts by an authorized agency to
assist, develop and encourage a meaningful
relationship between the parent and
child, including but not limited to:
"(1) consultation and
cooperation with the parents in developing
a plan for appropriate services to
the child and his family;
"(2) making suitable arrangements
for the parents to visit the child;
"(3) provision of services
and other assistance to the parents
so that problems preventing the discharge
of the child from care may be resolved
or ameliorated; and
"(4) informing the parents
at appropriate intervals of the child's
progress, development and health."
SSL § 384-b.7.(f).
*780 Following the factfinding hearing,
a separate, dispositional hearing
is held to determine what course of
action would be in "the best
interests of the child."
FCA § 631.
A finding of permanent neglect at
the fact-finding hearing, although
necessary to a termination of parental
rights, does not control the court's
order at the dispositional hearing.
The court may dismiss the petition,
suspend judgment on the petition and
retain jurisdiction for a period of
one year in order to provide further
opportunity for a reuniting of the
family, or terminate the parents'
right to the custody and care of the
child.
FCA § § 631-634.
The court must base its decision solely
upon the record of "material
and relevant evidence" introduced
at the dispositional **1409 hearing,
FCA § 624;
In re "Female" M.,
70 A.D.2d 812, 417 N.Y.S.2d 482 (1979),
and may not entertain any presumption
that the best interests of the child
"will be promoted by any particular
disposition."
FCA § 631.
As
petitioners did in this case, parents
may appeal any unfavorable decision
to the Appellate Division of the New
York Supreme Court. Thereafter,
review may be sought in the New York
Court of Appeals and, ultimately,
in this Court if a federal question
is properly presented.
As
this description of New York's termination
procedures demonstrates, the State
seeks not only to protect the interests
of parents in rearing their own children,
but also to assist and encourage parents
who have lost custody of their children
to reassume their rightful role.
Fully understood, the New York system
is a comprehensive program to aid
parents such as petitioners. Only
as a last resort, when "diligent
efforts" to reunite the family
have failed, does New *781 York authorize
the termination of parental rights.
The procedures for termination of
those relationships which cannot be
aided and which threaten permanent
injury to the child, administered
by a judge who has supervised the
case from the first temporary removal
through the final termination, cannot
be viewed as fundamentally unfair.
The facts of this case demonstrate
the fairness of the system.
The
three children to which this case
relates were removed from petitioners'
custody in 1973 and 1974, before petitioners'
other two children were born. The
removals were made pursuant to the
procedures detailed above and in response
to what can only be described as shockingly
abusive treatment.
[FN10]
At the temporary removal hearing held
before the Family Court on September
30, 1974, petitioners were represented
by counsel, and allowed the Ulster
County Department of Social Services
(Department) to take custody of the
three children.
FN10.
Tina Apel, the oldest of petitioners'
five children, was removed from their
custody by court order in November
1973 when she was two years old.
Removal proceedings were commenced
in response to complaints by neighbors
and reports from a local hospital
that Tina had suffered injuries in
petitioners' home including a fractured
left femur, treated with a home-made
splint; bruises on the upper
arms, forehead, flank, and spine;
and abrasions of the upper leg.
The following summer John Santosky
III, petitioners' second oldest child,
was also removed from petitioner's
custody. John, who was
less than one year old at the time,
was admitted to the hospital suffering
malnutrition, bruises on the eye and
forehead, cuts on the foot, blisters
on the hand, and multiple pin pricks
on the back. Exhibit to
Brief for Respondent Kramer 1-5.
Jed Santosky, the third oldest of
petitioners' children, was removed
from his parents' custody when only
three days old as a result of the
abusive treatment of the two older
children.
Temporary
removal of the children was continued
at an evidentiary hearing held before
the Family Court in December 1975,
after which the court issued a written
opinion concluding that petitioners
were unable to resume their parental
responsibilities due to personality
disorders. Unsatisfied
with the progress petitioners were
making, the court also directed *782
the Department to reduce to writing
the plan which it had designed to
solve the problems at petitioners'
home and reunite the family.
A
plan for providing petitioners with
extensive counseling and training
services was submitted to the court
and approved in February 1976.
Under the plan, petitioners received
training by a mother's aide, a nutritional
aide, and a public health nurse, and
counseling at a family planning clinic.
In addition, the plan provided psychiatric
treatment and vocational training
for the father, and counseling at
a family service center for the mother.
Brief for Respondent Kramer 1-7.
Between early 1976 and the final termination
decision in April 1979, the State
spent more than $15,000 in these efforts
to rehabilitate petitioners as parents.
App. 34.
Petitioners'
response to the State's effort was
marginal at best. They
wholly disregarded some of the available
services and participated only sporadically
in the others. **1410
As a result, and out of growing concern
over the length of the children's
stay in foster care, the Department
petitioned in September 1976 for permanent
termination of petitioners' parental
rights so that the children could
be adopted by other families.
Although the Family Court recognized
that petitioners' reaction to the
State's efforts was generally "non-responsive,
even hostile," the fact that
they were "at least superficially
cooperative" led it to conclude
that there was yet hope of further
improvement and an eventual reuniting
of the family. Exhibit
to Brief for Respondent Kramer 618.
Accordingly, the petition for permanent
termination was dismissed.
Whatever
progress petitioners were making prior
to the 1976 termination hearing, they
made little or no progress thereafter.
In October 1978, the Department again
filed a termination petition alleging
that petitioners had completely failed
to plan for the children's future
despite the considerable efforts rendered
in their behalf. This
time, the Family Court agreed.
The court found that petitioners had
"failed in any meaningful way
to take advantage of the many social
*783 and rehabilitative services that
have not only been made available
to them but have been diligently urged
upon them." App. 35.
In addition, the court found that
the "infrequent" visits
"between the parents and their
children were at best superficial
and devoid of any real emotional content."
Id., at 21. The court
thus found "nothing in the situation
which holds out any hope that [petitioners]
may ever become financially self sufficient
or emotionally mature enough to be
independent of the services of social
agencies. More than a
reasonable amount of time has passed
and still, in the words of the case
workers, there has been no discernible
forward movement. At some
point in time, it must be said, 'enough
is enough.' " Id., at 36.
In
accordance with the statutory requirements
set forth above, the court found that
petitioners' failure to plan for the
future of their children, who were
then seven, five, and four years old
and had been out of petitioners' custody
for at least four years, rose to the
level of permanent neglect.
At a subsequent dispositional hearing,
the court terminated petitioners'
parental rights, thereby freeing the
three children for adoption.
As
this account demonstrates, the State's
extraordinary 4-year effort to reunite
petitioners' family was not just unsuccessful,
it was altogether rebuffed by parents
unwilling to improve their circumstances
sufficiently to permit a return of
their children. At every
step of this protracted process petitioners
were accorded those procedures and
protections which traditionally have
been required by due process of law.
Moreover, from the beginning to the
end of this sad story all judicial
determinations were made by one Family
Court Judge. After four
and one-half years of involvement
with petitioners, more than seven
complete hearings, and additional
periodic supervision of the State's
rehabilitative efforts, the judge
no doubt was intimately familiar with
this case and the prospects for petitioners'
rehabilitation.
It
is inconceivable to me that these
procedures were "fundamentally
unfair" to petitioners.
Only by its obsessive *784 focus on
the standard of proof and its almost
complete disregard of the facts of
this case does the majority find otherwise.
[FN11]
As the discussion **1411 above indicates,
however, such a *785
focus does not comport with the flexible
standard of fundamental fairness embodied
in the Due Process Clause of the Fourteenth
Amendment.
FN11.
The majority finds, without any reference
to the facts of this case, that "numerous
factors [in New York termination proceedings]
combine to magnify the risk of erroneous
factfinding." Ante, at
1399. Among the factors
identified by the majority are the
"unusual discretion" of
the Family Court Judge "to underweigh
probative facts that might favor the
parent"; the often uneducated,
minority status of the parents and
their consequent "vulnerab[ility]
to judgments based on cultural or
class bias"; the "State's
ability to assemble its case,"
which "dwarfs the parents' ability
to mount a defense" by including
an unlimited budget, expert attorneys,
and "full access to all public
records concerning the family";
and the fact that "natural parents
have no 'double jeopardy' defense
against repeated state" efforts,
"with more or better evidence,"
to terminate parental rights "even
when the parents have attained the
level of fitness required by the State."
Ante, at 1399-1400. In
short, the majority characterizes
the State as a wealthy and powerful
bully bent on taking children away
from defenseless parents.
See ante, at 1398- 1400.
Such characterization finds no support
in the record.
The intent of New York has
been stated with eminent clarity:
"the [S]tate's first obligation
is to help the family with services
to prevent its break-up or to reunite
it if the child has already left home."
SSL
§ 384-b.1.(a)(iii)
(emphasis added). There
is simply no basis in fact for believing,
as the majority does, that the State
does not mean what it says;
indeed, the facts of this case demonstrate
that New York has gone the extra mile
in seeking to effectuate its declared
purpose. See supra, at
1397-1398. More importantly,
there should be no room in the jurisprudence
of this Court for decisions based
on unsupported, inaccurate assumptions.
A brief examination of the
"factors" relied upon by
the majority demonstrates its error.
The "unusual" discretion
of the Family Court Judge to consider
the " 'affectio[n] and concer[n]'
" displayed by parents during
visits with their children, ante,
at 1398, n. 12, is nothing more than
discretion to consider reality;
there is not one shred of evidence
in this case suggesting that the determination
of the Family Court was "based
on cultural or class bias";
if parents lack the "ability
to mount a defense," the State
provides them with the full services
of an attorney,
FCA § 262,
and they, like the State, have "full
access to all public records concerning
the family" (emphasis added);
and the absence of "double jeopardy"
protection simply recognizes the fact
that family problems are often ongoing
and may in the future warrant action
that currently is unnecessary.
In this case the Family Court dismissed
the first termination petition because
it desired to give petitioners "the
benefit of the doubt," Exhibit
to Brief for Respondent Kramer 620,
and a second opportunity to raise
themselves to "an acceptable
minimal level of competency as parents."
Id., at 624. It was their
complete failure to do so that prompted
the second, successful termination
petition. See supra, at
1408-1409 and this page.
B
In
addition to the basic fairness of
the process afforded petitioners,
the standard of proof chosen by New
York clearly reflects a constitutionally
permissible balance of the interests
at stake in this case.
The standard of proof "represents
an attempt to instruct the factfinder
concerning the degree of confidence
our society thinks he should have
in the correctness of factual conclusions
for a particular type of adjudication."
In re Winship, 397 U.S. 358,
370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d
368 (1970)
(Harlan, J. concurring);
Addington v. Texas, 441 U.S.
418, 423, 99 S.Ct. 1804, 1807, 60
L.Ed.2d 323 (1979).
In this respect, the standard of proof
is a crucial component of legal process,
the primary function of which is "to
minimize the risk of erroneous decisions."
[FN12]
*786Greenholtz
v. Nebraska Penal
Inmates, 442 U.S., at 13, 99 S.Ct.,
at 2106.
See also
Addington v. Texas,
supra, at 425, 99 S.Ct., at
1808-1809;
Mathews v. Eldridge, 424 U.S.,
at 344, 96 S.Ct., at 907.
FN12.
It is worth noting that the significance
of the standard of proof in New York
parental termination proceedings differs
from the significance of the standard
in other forms of litigation.
In the usual adjudicatory setting,
the factfinder has had little or no
prior exposure to the facts of the
case. His only knowledge
of those facts comes from the evidence
adduced at trial, and he renders his
findings solely upon the basis of
that evidence. Thus, normally,
the standard of proof is a crucial
factor in the final outcome of the
case, for it is the scale upon which
the factfinder weighs his knowledge
and makes his decision.
Although the standard serves
the same function in New York parental
termination proceedings, additional
assurances of accuracy are present
in its application. As
was adduced at oral argument, the
practice in New York is to assign
one judge to supervise a case from
the initial temporary removal of the
child to the final termination of
parental rights. Therefore, as discussed
above, the factfinder is intimately
familiar with the case before the
termination proceedings ever begin.
Indeed, as in this case, he often
will have been closely involved in
protracted efforts to rehabilitate
the parents. Even if a
change in judges occurs, the Family
Court retains jurisdiction of the
case and the newly assigned judge
may take judicial notice of all prior
proceedings. Given this
familiarity with the case, and the
necessarily lengthy efforts which
must precede a termination action
in New York, decisions in termination
cases are made by judges steeped in
the background of the case and peculiarly
able to judge the accuracy of evidence
placed before them. This
does not mean that the standard of
proof in these cases can escape due
process scrutiny, only that additional
assurances of accuracy attend the
application of the standard in New
York termination proceedings.
**1412
In determining the propriety of a
particular standard of proof in a
given case, however, it is not enough
simply to say that we are trying to
minimize the risk of error.
Because errors in factfinding affect
more than one interest, we try to
minimize error as to those interests
which we consider to be most important.
As Justice Harlan explained in his
well-known concurrence to In re Winship:
"In a lawsuit between
two parties, a factual error can make
a difference in one of two ways.
First, it can result in a judgment
in favor of the plaintiff when the
true facts warrant a judgment for
the defendant. The analogue
in a criminal case would be the conviction
of an innocent man. On
the other hand, an erroneous factual
determination can result in a judgment
for the defendant when the true facts
justify a judgment in plaintiff's
favor. The criminal analogue
would be the acquittal of a guilty
man.
The standard of proof influences
the relative frequency of these two
types of erroneous outcomes.
If, for example, the standard of proof
for a criminal trial were a preponderance
of the evidence rather than proof
*787 beyond a reasonable doubt, there
would be a smaller risk of factual
errors that result in freeing guilty
persons, but a far greater risk of
factual errors that result in convicting
the innocent. Because
the standard of proof affects the
comparative frequency of these two
types of erroneous outcomes, the choice
of the standard to be applied in a
particular kind of litigation should,
in a rational world, reflect an assessment
of the comparative social disutility
of each."
397 U.S., at 370-371, 90 S.Ct.,
at 1076.
When
the standard of proof is understood
as reflecting such an assessment,
an examination of the interests at
stake in a particular case becomes
essential to determining the propriety
of the specified standard of proof.
Because proof by a preponderance of
the evidence requires that "[t]he
litigants ... share the risk of error
in a roughly equal fashion,"
Addington v. Texas, supra,
at 423, 99 S.Ct., at 1808,
it rationally should be applied only
when the interests at stake are of
roughly equal societal importance.
The interests at stake in this case
demonstrate that New York has selected
a constitutionally permissible standard
of proof.
On
one side is the interest of parents
in a continuation of the family unit
and the raising of their own children.
The importance of this interest cannot
easily be overstated.
Few consequences of judicial action
are so grave as the severance of natural
family ties. Even the
convict committed to prison and thereby
deprived of his physical liberty often
retains the love and support of family
members. "This Court's
decisions have by now made plain beyond
the need for multiple citation that
a parent's desire for and right to
'the companionship, care, custody,
and management of his or her children'
is an important interest that 'undeniably
warrants deference and, absent a powerful
countervailing interest, protection.'
Stanley v. Illinois, 405 U.S.
645, 651 [92 S.Ct. 1208, 1212, 31
L.Ed.2d 551]."
Lassiter v. Department of Social
Services, 452 U.S. 18, 27, 101 S.Ct.
2153, 2161, 68 L.Ed.2d 640 (1981).
In creating the scheme at issue in
this case, the New York Legislature
*788 was expressly aware of this right
of parents "to bring up their
own children."
SSL § 384-b.1.(a)(ii).
On
the other side of the termination
proceeding are the often countervailing
interests of the child.
[FN13]
A stable, loving *789 homelife**1413
is essential to a child's physical,
emotional, and spiritual well-being.
It requires no citation of authority
to assert that children who are abused
in their youth generally face extraordinary
problems developing into responsible,
productive citizens. The
same can be said of children who,
though not physically or emotionally
abused, are passed from one foster
home to another with no constancy
of love, trust, or discipline.
If the Family Court makes an incorrect
factual determination resulting in
a failure to terminate a parent-child
relationship which rightfully should
be ended, the child involved must
return either to an abusive home
[FN14]
or to the often unstable world of
foster care.
[FN15]
The reality of these *790 risks is
magnified by the fact that the only
families faced with termination actions
are those which have voluntarily surrendered
custody of their child to the State,
or, as in this case, those from which
the child has been removed by judicial
action because of threatened irreparable
injury through **1414 abuse or neglect.
Permanent neglect findings also occur
only in families where the child has
been in foster care for at least one
year.
FN13.
The majority dismisses the child's
interest in the accuracy of determinations
made at the factfinding hearing because
"[t]he factfinding does not purport
... to balance the child's interest
in a normal family home against the
parents' interest in raising the child,"
but instead "pits the State directly
against the parents." Ante,
at 1397. Only "[a]fter
the State has established parental
unfitness," the majority reasons,
may the court "assume ... that
the interests of the child and the
natural parents do diverge."
Ante, at 1398.
This reasoning misses the mark.
The child has an interest in the outcome
of the factfinding hearing independent
of that of the parent.
To be sure, "the child and his
parents share a vital interest in
preventing erroneous termination of
their natural relationship."
Ibid. (emphasis added).
But the child's interest in a continuation
of the family unit exists only to
the extent that such a continuation
would not be harmful to him.
An error in the factfinding hearing
that results in a failure to terminate
a parent-child relationship which
rightfully should be terminated may
well detrimentally affect the child.
See nn. 14, 15, infra.
The preponderance-of-the-evidence
standard, which allocates the risk
of error more or less evenly, is employed
when the social disutility of error
in either direction is roughly equal--that
is, when an incorrect finding of fault
would produce consequences as undesirable
as the consequences that would be
produced by an incorrect finding of
no fault. Only when the
disutility of error in one direction
discernibly outweighs the disutility
of error in the other direction do
we choose, by means of the standard
of proof, to reduce the likelihood
of the more onerous outcome.
See
In re Winship, 397 U.S. 358,
370-372, 90 S.Ct. 1068, 1075-1077,
25 L.Ed.2d 368 (1970)
(Harlan, J., concurring).
New York's adoption of the
preponderance-of-the-evidence standard
reflects its conclusion that the undesirable
consequence of an erroneous finding
of parental unfitness--the unwarranted
termination of the family relationship--is
roughly equal to the undesirable consequence
of an erroneous finding of parental
fitness--the risk of permanent injury
to the child either by return of the
child to an abusive home or by the
child's continued lack of a permanent
home. See nn. 14, 15,
infra. Such a conclusion
is well within the province of state
legislatures. It cannot
be said that the New York procedures
are unconstitutional simply because
a majority of the Members of this
Court disagree with the New York Legislature's
weighing of the interests of the parents
and the child in an error-free factfinding
hearing.
FN14.
The record in this case illustrates
the problems that may arise when a
child is returned to an abusive home.
Eighteen months after Tina, petitioners'
oldest child, was first removed from
petitioners' home, she was returned
to the home on a trial basis.
Katherine Weiss, a supervisor in the
Child Protective Unit of the Ulster
County Child Welfare Department, later
testified in Family Court that "[t]he
attempt to return Tina to her home
just totally blew up."
Exhibit to Brief for Respondent Kramer
135. When asked to explain what happened,
Mrs. Weiss testified that "there
were instances on the record in this
court of Mr. Santosky's abuse of his
wife, alleged abuse of the children
and proven neglect of the children."
Ibid. Tina again was removed
from the home, this time along with
John and Jed.
FN15.
The New York Legislature recognized
the potential harm to children of
extended, non-permanent foster care.
It found "that many children
who have been placed in foster care
experience unnecessarily protracted
stays in such care without being adopted
or returned to their parents or other
custodians. Such unnecessary
stays may deprive these children of
positive, nurturing family relationships
and have deleterious effects on their
development into responsible, productive
citizens."
SSL § 384-b.1.
(b). Subsequent studies have
proved this finding correct.
One commentator recently wrote of
"the lamentable conditions of
many foster care placements"
under the New York system even today.
He noted: "Over fifty percent
of the children in foster care have
been in this 'temporary' status for
more than two years; over thirty
percent for more than five years.
During this time, many children are
placed in a sequence of ill-suited
foster homes, denying them the consistent
support and nurturing that they so
desperately need."
Besharov, State Intervention To Protect
Children: New York's Definition
of "Child Abuse" and "Child
Neglect," 26 N.Y.L. S. L.Rev.
723, 770-771 (1981) (footnotes
omitted). In this case,
petitioners' three children have been
in foster care for more than four
years, one child since he was only
three days old. Failure
to terminate petitioners' parental
rights will only mean a continuation
of this unsatisfactory situation.
In
addition to the child's interest in
a normal homelife, "the State
has an urgent interest in the welfare
of the child."
Lassiter v. Department of Social
Services, 452 U.S., at 27, 101 S.Ct.,
at 2160.
[FN16]
Few could doubt that the most valuable
resource of a self-governing society
is its population of children who
will one day become adults and themselves
assume the responsibility of self-governance.
"A democratic society rests,
for its continuance, upon the healthy,
well-rounded growth of young people
into full maturity as citizens, with
all that implies."
Prince v. Massachusetts, 321
U.S. 158, 168, 64 S.Ct. 438,
443, 88 L.Ed. 645 (1944).
Thus, "the whole community"
has an interest "that children
be both safeguarded from abuses and
given opportunities for growth into
free and independent well-developed
... citizens."
Id., at 165, 64 S.Ct., at 442.
See also
Ginsberg v. New York, 390 U.S.
629, 640-641, 88 S.Ct. 1274, 1281-82,
20 L.Ed.2d 195 (1968).
FN16.
The majority's conclusion that a state
interest in the child's well-being
arises only after a determination
of parental unfitness suffers from
the same error as its assertion that
the child has no interest, separate
from that of its parents, in the accuracy
of the factfinding hearing.
See n. 13, supra.
When,
in the context of a permanent neglect
termination proceeding, the interests
of the child and the State in a stable,
*791 nurturing homelife are balanced
against the interests of the parents
in the rearing of their child, it
cannot be said that either set of
interests is so clearly paramount
as to require that the risk of error
be allocated to one side or the other.
Accordingly, a State constitutionally
may conclude that the risk of error
should be borne in roughly equal fashion
by use of the preponderance-of-the-evidence
standard of proof. See
Addington v. Texas, 441 U.S.,
at 423, 99
S.Ct., at 1807-1808.
This is precisely the balance which
has been struck by the New York Legislature:
"It is the intent of the legislature
in enacting this section to provide
procedures not only assuring that
the rights of the natural parent are
protected, but also, where positive,
nurturing parent-child relationships
no longer exist, furthering the best
interests, needs, and rights of the
child by terminating the parental
rights and freeing the child for adoption."
SSL § 384-b.1.(b).
III
For
the reasons heretofore stated, I believe
that the Court today errs in concluding
that the New York standard of proof
in parental-rights termination proceedings
violates due process of law.
The decision disregards New York's
earnest efforts to aid parents in
regaining the custody of their children
and a host of procedural protections
placed around parental rights and
interests. The Court finds a constitutional
violation only by a tunnel-vision
application of due process principles
that altogether loses sight of the
unmistakable fairness of the New York
procedure.
Even
more worrisome, today's decision cavalierly
rejects the considered judgment of
the New York Legislature in an area
traditionally entrusted to state care.
The Court thereby begins, I fear,
a trend of federal intervention in
state family law matters which surely
will stifle creative responses to
vexing problems. Accordingly,
I dissent.
455
U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d
599
Briefs
and Other Related Documents
(Back to top)
•
1981 WL 389936
(Appellate Brief) Reply Brief for
Petitioners (Oct. 23, 1981)
•
1981 WL 389943
(Appellate Brief) Brief of the State
of Oregon, Amicus Curiae (Aug. 13,
1981)
•
1981 WL 389933
(Appellate Brief) Brief for Respondent
(Aug. 10, 1981)
•
1981 WL 389934
(Appellate Brief) Brief for Respondent-Intervenors,
Mr. and Mrs. John Balogh, Foster Parents
for the Child Jed Santosky (Aug. 10,
1981)
•
1981 WL 389939
(Appellate Brief) Brief Amicus Curiae
of the Attorney General of the State
of New York (Aug. 10, 1981)
•
1981 WL 389941
(Appellate Brief) Brief Amicus Curiae
of Community Action for Legal Services,
Inc., M.F.Y. Legal Services, Inc.,
and Brooklyn Legal Services Corporation,
A (Jun. 01, 1981)
•
1981 WL 389937
(Appellate Brief) Brief of the American
Civil Liberties Union Children's Rights
Project, New York Civil Liberties
Union, and Connecticut Civil Liberties
Union, Amici Curiae (May. 30, 1981)
•
1981 WL 389929
(Appellate Brief) Brief for Petitioners
(May. 28, 1981)
END OF DOCUMENT
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