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.
455 U. S.
752-757.
(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.
455 U. S.
752-754.
(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,
424 U. S. 335.
In any given proceeding, the minimum standard of proof tolerated by
the due process requirement reflects not only the weight of the
public and
Page 455 U. S. 746
private 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.
455 U. S.
754-757.
2. The "fair preponderance of the evidence" standard prescribed
by § 622 violates the Due Process Clause of the Fourteenth
Amendment. Pp.
455 U. S.
758-768.
(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.
455 U. S.
758-761.
(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.
455 U. S.
761-766.
(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.
455 U. S.
766-768.
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.
455 U. S.
768-770.
75 App.Div.2d 910, 427 N.Y.S.2d 319, vacated and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. REHNQUIST, J.,
filed a
Page 455 U. S. 747
dissenting opinion, in which BURGER, C.J., and WHITE and
O'CONNOR, JJ., joined,
post, p.
455 U. S.
770.
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
Page 455 U. S. 748
their natural child, due process requires that the State support
its 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
"factfinding" 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.
Page 455 U. S. 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. [
Footnote 1]
New York's permanent neglect statute provides natural parents
with certain procedural protections. [
Footnote 2] 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." [
Footnote 3]
The only analogous federal statute of which we are aware
Page 455 U. S. 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
Page 455 U. S. 751
New York's "fair preponderance of the evidence" standard is
constitutionally sufficient.
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. [
Footnote 4]
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 real emotional content."
Id. at 21.
After
Page 455 U. S. 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. [Footnote 5] Id. at 39.
Petitioners appealed, again contesting the constitutionality of
§ 622's standard of proof. [
Footnote 6] 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.
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
(1981).
II
Last Term, in
Lassiter v. Department of Social
Services, 452 U. S. 18
(1981), this Court, by a 5-4 vote, held that the
Page 455 U. S. 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 her -- 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
452 U. S. 37
(first dissenting opinion);
see id. at
452 U. S. 24-32
(opinion of the Court);
id. at
452 U. S. 59-60
(STEVENS, J., dissenting).
See also Little v. Streater,
452 U. S. 1,
452 U. S. 13
(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,
434 U. S. 255
(1978);
Smith v. Organization of Foster Families,
431 U. S. 816,
431 U. S. 845
(1977);
Moore v. East Cleveland, 431 U.
S. 494,
431 U. S. 499
(1977) (plurality opinion);
Cleveland Board of Education v.
LaFleur, 414 U. S. 632,
414 U. S.
639-640 (1974);
Stanley v. Illinois,
405 U. S. 645,
405 U. S.
651-652 (1972);
Prince v. Massachusetts,
321 U. S. 158,
321 U. S. 166
(1944);
Pierce v. Society of Sisters, 268 U.
S. 510,
268 U. S.
534-535 (1925);
Meyer v. Nebraska, 262 U.
S. 390,
262 U. S. 399
(1923).
The fundamental liberty interest of natural parents in the 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 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
Page 455 U. S. 754
destroy weakened familial bonds, it must provide the parents
with fundamentally fair procedures. [
Footnote 7]
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,
424 U. S. 335
(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
452 U. S. 27-31;
id. at
452 U. S. 37-48
(first dissenting opinion).
But see id. at
452 U. S. 59-60
(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
452 U. S. 31-32,
with id. at
452 U. S. 41,
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 straightforward consideration of the factors
identified in
Eldridge to determine whether a particular
standard of proof in a particular proceeding satisfies due
process.
In
Addington v. Texas, 441 U.
S. 418 (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
Page 455 U. S. 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
441 U. S. 423,
quoting
In re Winship, 397 U. S. 358,
397 U. S. 370
(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
441 U. S. 423.
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 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
441 U. S. 427,
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
441 U. S. 424.
See also In re Winship, 397 U.S. at
397 U. S. 372
(Harlan, J., concurring).
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,
445 U. S. 491
(1980).
See also Logan v. Zimmerman Brush Co., ante at
455 U. S. 432.
Moreover, the degree of proof required in a particular type of
proceeding "is the kind of question which has
Page 455 U. S. 756
traditionally been left to the judiciary to resolve."
Woodby v. INS, 385 U. S. 276,
385 U. S. 284
(1966). [
Footnote 8]
"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
441 U. S. 425,
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
(1972).
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
441 U. S. 424.
Notwithstanding "the state's
civil labels and good
intentions,'" id. at 441 U. S. 427,
quoting In re Winship, 397 U.S. at 397 U. S.
365-366, 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 441 U. S. 425,
426. See, e.g., Addington v. Texas, supra, (civil
commitment); Woodby v. INS, 385 U.S. at 385 U. S. 285
(deportation); Chaunt v. United States, 364 U.
S. 350, 364 U. S. 353
(1960) (denaturalization);
Page 455 U. S. 757
Schneiderman v. United States, 320 U.
S. 118,
320 U. S. 125,
320 U. S. 159
(1943) (denaturalization).
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
452 U. S. 31-32
(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 rules[,] are shaped by the risk of error
inherent in the truthfinding process as applied to the
generality of cases, not the rare exceptions."
Mathews v. Eldridge, 424 U.S. at
424 U. S. 344
(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. [
Footnote 9]
Page 455 U. S. 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
"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,
397 U. S.
262-263 (1970), quoting
Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U. S. 123,
341 U. S. 168
(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.
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
Page 455 U. S.
759
right. 452 U.S. at 452 U. S. 27,
quoting Stanley v. Illinois, 405 U.S. at 405 U. S. 651.
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
452 U. S.
27.
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.
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
Page 455 U. S. 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. [
Footnote 10]
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. [
Footnote 11] Thus,
Page 455 U. S. 761
at the factfinding, the interests of the child and his natural
parents coincide to favor use of error-reducing procedures.
However substantial the foster parents' interests may be,
cf. Smith v. Organization of Foster Families, 431 U.S. at
431 U. S.
845-847, 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 §§ 3846.3(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
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
424 U. S. 335.
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.
Page 455 U. S. 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
452 U. S. 42-44 (first dissenting opinion);
Meltzer
v. C. Buck LeCraw & Co., 402 U.S. 954, 959 (1971) (Black,
J., dissenting from denial of certiorari).
See also
dissenting opinion,
post at
455 U. S.
777-779 (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
431 U. S. 835,
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. [
Footnote 12]
Page 455 U. S. 763
Because parents subject to termination proceedings are often
poor, uneducated, or members of minority groups,
id. at
431 U. S.
833-835, such proceedings are often vulnerable to
judgments based on cultural or class bias.
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. [
Footnote 13]
Page 455 U. S. 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
397 U. S. 371,
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
441 U. S. 426.
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
397 U. S. 363.
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
441 U. S.
427.
"Increasing the burden of proof is one way to impress the
factfinder with the importance
Page 455 U. S. 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. [
Footnote 14] That view is fundamentally
mistaken.
The court's theory assumes that termination of the natural
parents' rights invariably will benefit the child. [
Footnote 15] 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
397 U. S. 371
(Harlan, J., concurring). For the child, the likely consequence of
an erroneous failure to terminate is preservation of
Page 455 U. S. 766
an uneasy
status quo. [
Footnote 16] 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.
C
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
452 U. S. 27. 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 there is
still reason to believe that positive, nurturing parent-child
relationships exist, the
parens patriae interest favors
preservation, not
Page 455 U. S. 767
severance, of natural familial bonds. [
Footnote 17] § 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
405 U. S.
652.
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
424 U. S. 347,
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
Page 455 U. S. 768
infractions by "clear and convincing evidence") and
In re
Rosenthal v. Hartnett, 36 N.Y.2d 269 326 N.E.2d 811 (1975);
see also Ross v. Food Specialties, Inc., 6 N.Y.2d 336,
341, 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
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. [
Footnote 18] 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
441 U. S. 427.
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.
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 "too broadly or casually in noncriminal
cases,"
id. at
441 U. S. 428,
and because the psychiatric evidence ordinarily adduced at
commitment proceedings is
Page 455 U. S. 769
rarely susceptible to proof beyond a reasonable doubt.
Id. at
441 U. S.
429-430,
449 U. S.
432-433. To be sure, as has been noted above, in the
Indian Child Welfare Act of 1978, Pub.L. 9508, § 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). 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
452 U. S. 30;
id. at
452 U. S. 44-46
(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.
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
Page 455 U. S. 770
is a matter of state law properly left to state legislatures and
state courts.
Cf. Addington v. Texas, 441 U.S. at
441 U. S.
433.
We, of course, express no view on the merits of petitioners'
claims. [
Footnote 19] 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.
It is so ordered.
[
Footnote 1]
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.
[
Footnote 2]
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).
[
Footnote 3]
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 §
600 A. 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 § 492(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 (Okla.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 (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)
(Supp.1981-1982) (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 (SD Tex.1977),
rev'd on other grounds sub
nom. Moore v. Sims, 442 U. S. 415
(1979);
Alsager v. District Court of Polk
County, 406 F. Supp.
10, 25 (SD Iowa 1975),
aff'd on other grounds, 545
F.2d 1137 (CA8 1976).
[
Footnote 4]
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).
[
Footnote 5]
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.
[
Footnote 6]
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.
[
Footnote 7]
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.
[
Footnote 8]
The dissent charges,
post at
455 U. S. 772,
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, 441 U. S. 427,
441 U. S. 433
(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,
397 U. S. 364
(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).
[
Footnote 9]
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
455 U. S. 773.
See In re Winship, 397 U.S. at
397 U. S. 368.
Nor has the Court treated appellate review as a curative for an
inadequate burden of proof.
See Woodby v. INS,
385 U. S. 276,
385 U. S. 282
(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
455 U. S. 785,
quoting Greenholtz v. Nebraska Penal Inmates, 442 U. S.
1, 442 U. S. 13
(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
397 U. S. 370
(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.
[
Footnote 10]
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,
434 U. S. 255
(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,
431 U. S.
862-863 (1977) (Stewart, J., concurring in
judgment)).
[
Footnote 11]
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.
[
Footnote 12]
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.l.(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
455 U. S.
779-780, nn. 8 and 9.
[
Footnote 13]
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,
452 U. S. 34
(1981) (only 33 States and the District of Columbia provide that
right by statute).
[
Footnote 14]
The dissent makes a similar claim.
See post at
455 U. S.
786-791.
[
Footnote 15]
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
431 U. S.
833-838 (describing the "limbo" of the New York foster
care system).
[
Footnote 16]
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. l.(d).
See also dissenting opinion,
post at
455 U. S.
789-790.
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).
[
Footnote 17]
Any
parens patriae interest in terminating the natural
parents' rights arises only at the dispositional phase,
after the parents have been found unfit.
[
Footnote 18]
The dissent's claim that today's decision "will inevitably lead
to the federalization of family law,"
post at
455 U. S. 773,
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
455 U. S.
771.
[
Footnote 19]
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.
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," [
Footnote 2/1] it
is in the area of domestic relations. This area has been left to
the States from time immemorial, and not without good reason.
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
Page 455 U. S. 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,
382 U. S. 352
(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,
424 U. S. 349
(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
Page 455 U. S. 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,
194 U. S. 270
(1904). [
Footnote 2/2]
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, 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
Page 455 U. S. 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,
431 U. S.
862-863 (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,
285 U. S. 311
(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,
Page 455 U. S. 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,
408 U. S. 569
(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 408 U. S. 571
(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 431 U. S.
862-863 (Stewart, J., concurring in judgment). "Once it
is determined that due process applies, [however,] the question
remains what process is due." Morrissey v. Brewer,
408 U. S. 471,
408 U. S. 481
(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
Page 455 U. S. 775
procedural safeguards call for the same kind of procedure."
Morrissey v. Brewer, supra, at
408 U. S. 481.
See also Greenholtz v. Nebraska Penal Inmates,
442 U. S. 1,
442 U. S. 12
(1979);
Mathews v. Eldridge, 424 U.S. at
424 U. S. 334;
Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S. 895
(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, at
424 U. S. 343.
Only through such a broad inquiry may courts determine whether a
challenged governmental action satisfies the due process
requirement of "fundamental fairness." [
Footnote 2/3] 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., 430 U.
S.
Page 455 U. S. 776
Wright, 430 U. S. 651
(1977). In this case, it is just such a broad look at the New York
scheme which reveals its fundamental fairness. [
Footnote 2/4]
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.
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.
[
Footnote 2/5] FCA §§ 1051,
1052.
Page 455 U. S. 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
"factfinding 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. [
Footnote 2/6] 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
Page 455 U. S. 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).
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 permanently neglected by
the parents. SSL § 384-b.3.(d). [
Footnote 2/7] 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.
As in the initial removal proceedings, two hearings are held in
consideration of the permanent termination petition.
Page 455 U. S. 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
factfinding 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). [
Footnote
2/8] 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). [
Footnote 2/9]
Page 455 U. S. 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 factfinding 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 hearing, FCA § 624;
In re "Female" M., 70 App.Div.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
Page 455 U. S. 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. [
Footnote 2/10] 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.
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
Page 455 U. S. 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. 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 "nonresponsive, 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
Page 455 U. S. 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
Page 455 U. S. 784
focus on the standard of proof and its almost complete disregard
of the facts of this case does the majority find otherwise.
[
Footnote 2/11] As the discussion
above indicates, however, such a
Page 455 U. S. 785
focus does not comport with the flexible standard of fundamental
fairness embodied in the Due Process Clause of the Fourteenth
Amendment.
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,
397 U. S. 370
(1970) (Harlan, J. concurring);
Addington v. Texas,
441 U. S. 418,
441 U. S. 423
(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." [
Footnote 2/12]
Greenholtz v. Nebraska
Page 455 U. S. 786
Penal Inmates, 442 U.S. at
442 U. S. 13.
See also Addington v. Texas, supra, at
441 U. S. 425;
Mathews v. Eldridge, 424 U.S. at
424 U. S.
344.
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
Page 455 U. S. 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
397 U. S.
370-371.
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
441 U. S. 423,
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,
405 U. S. 651."
Lassiter v. Department of Social Services, 452 U. S.
18,
452 U. S. 27
(1981). In creating the scheme at issue in this case, the New York
Legislature
Page 455 U. S. 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. [
Footnote 2/13] A stable, loving
Page 455 U. S. 789
home life is essential to a child's physical, emotional, and
spiritual wellbeing. 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 [
Footnote 2/14] or
to the often unstable world of foster care. [
Footnote 2/15] The reality of these
Page 455 U. S. 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 abuse or neglect. Permanent
neglect findings also occur only in families where the child has
been in foster care for at least one year.
In addition to the child's interest in a normal home life, "the
State has an urgent interest in the welfare of the child."
Lassiter v. Department of Social Services, 452 U.S. at
452 U. S. 27.
[
Footnote 2/16] 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,
321 U. S. 168
(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
321 U. S. 165.
See also Ginsberg v. New York, 390 U.
S. 629,
390 U. S.
640-641 (1968).
When, in the context of a permanent neglect termination
proceeding, the interests of the child and the State in a
stable,
Page 455 U. S. 791
nurturing home life 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
441 U. S. 423. 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.
[
Footnote 2/1]
New York Trust Co. v. Eisner, 256 U.
S. 345,
256 U. S. 349
(1921).
[
Footnote 2/2]
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,
385 U. S. 284 (1966)."
Ante at
455 U. S.
755-756. 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
(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
385 U. S. 284.
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.
[
Footnote 2/3]
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
455 U. S. 754.
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.
[
Footnote 2/4]
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
455 U. S. 758,
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
455 U. S.
785-791, 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.
[
Footnote 2/5]
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).
[
Footnote 2/6]
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.
[
Footnote 2/7]
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).
[
Footnote 2/8]
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).
[
Footnote 2/9]
"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).
[
Footnote 2/10]
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 homemade 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 petitioners' 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. 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.
[
Footnote 2/11]
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
455 U. S. 762.
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
455 U. S. 762,
455 U. S. 763,
455 U. S. 764.
In short, the majority characterizes the State as a wealthy and
powerful bully bent on taking children away from defenseless
parents. See ante at 455 U. S.
761-764. 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
455 U. S.
781-785. 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 455 U. S. 763,
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 455 U. S. 624. It
was their complete failure to do so that prompted the second,
successful termination petition. See supra at 455 U. S.
781-784 and this page.
[
Footnote 2/12]
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.
[
Footnote 2/13]
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
455 U. S. 759. 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
455 U. S. 760.
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.
455
U.S. 745fn2/14|>14,
455
U.S. 745fn2/15|>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,
397 U. S.
370-372 (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.
455
U.S. 745fn2/14|>14,
455
U.S. 745fn2/15|>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.
[
Footnote 2/14]
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.
[
Footnote 2/15]
The New York Legislature recognized the potential harm to
children of extended, nonpermanent 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.
[
Footnote 2/16]
The majority's conclusion that a state interest in the child's
wellbeing 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 455
U.S. 745fn2/13|>n. 13,
supra.