455 U.S. 745
SANTOSKY ET AL. v. KRAMER,
COMMISSIONER, ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES, ET AL.
CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, THIRD JUDICIAL
DEPARTMENT.
No. 80-5889.
Argued November 10, 1981
Decided March 24, 1982
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. 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.
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, 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 [455 U.S. 745, 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. 754-757.
2. The "fair preponderance of
the evidence" standard prescribed by 622 violates the Due Process Clause
of the Fourteenth Amendment. Pp. 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.
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. 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. 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. 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 [455 U.S. 745, 747] dissenting
opinion, in which BURGER, C. J., and WHITE and O'CONNOR, JJ., joined, post, p.
770.
Martin Guggenheim argued the cause for petitioners. With him on the briefs
was Alan N. Sussman.
Steven Domenic Scavuzzo argued the cause pro hac vice for respondents. With
him on the brief was H. Randall Bixler. Wilfrid E. Marrin and Frederick J.
Magovern filed a brief for respondents Balogh et al. *
[ Footnote
* ] Briefs of amici curiae urging reversal were filed by Marcia Robinson
Lowry, Steven R. Shapiro, and Margaret Hayman for the American Civil Liberties
Union Children's Rights Project et al.; and by Louise Gruner Gans, Catherine P.
Mitchell, Norman Siegel, Gary Connor, and Daniel Greenberg for Community Action
for Legal Services, Inc., et al. Briefs of amici curiae urging affirmance were
filed by Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor
General, and Lawrence J. Logan and Robert J. Schack, Assistant Attorneys
General, for the State of New York; and by Dave Frohnmayer, Attorney General,
William F. Gary, Solicitor General, and Jan Peter Londahl, Assistant Attorney
General, for the State of Oregon.
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 [455 U.S.
745, 748] their natural child, due process requires that the
State support its allegations by at least clear and convincing evidence.
New York authorizes its officials to remove a child temporarily from his or
her home if the child appears "neglected," within the meaning of Art.
10 of the Family Court Act. See 1012(f), 1021-1029. Once removed, a child under
the age of 18 customarily is placed "in the care of an authorized agency,"
Soc. Serv. Law 384-b.7.(a), usually a state institution or a foster home. At
that point, "the state's first obligation is to help the family with
services to . . . reunite it . . . ." 384-b.1.(a)(iii). But if convinced
that "positive, nurturing parent-child relationships no longer
exist," 384-b.1.(b), the State may initiate "permanent neglect"
proceedings to free the child for adoption.
The State bifurcates its permanent neglect proceeding into
"fact-finding" and "dispositional" hearings. Fam. Ct. Act
622, 623. At the factfinding stage, the State must prove that the child has
been "permanently neglected," as defined by Fam. Ct. Act
614.1.(a)-(d) and Soc. Serv. Law 384-b.7.(a). See Fam. Ct. Act 622. The Family
Court judge then determines at a subsequent dispositional hearing what
placement would serve the child's best interests. 623, 631.
At the factfinding hearing, the State must establish, among other things,
that for more than a year after the child entered state custody, the agency "made
diligent efforts to encourage and strengthen the parental relationship."
Fam. Ct. Act 614.1.(c), 611. The State must further prove that during that same
period, the child's natural parents failed "substantially and continuously
or repeatedly to maintain contact with or plan for the future of the child
although physically and financially able to do so." 614.1.(d). Should the
State support its allegations by "a fair preponderance of the
evidence," 622, the child may be declared permanently neglected. [455 U.S. 745, 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. 1
New York's permanent neglect statute provides natural parents with certain
procedural protections. 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." 3
The only analogous federal statute of which we are aware [455 U.S. 745, 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 [455 U.S. 745, 751] New
York's "fair preponderance of the evidence" standard is
constitutionally sufficient.
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. 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 [455
U.S. 745, 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. 5
Id., at 39.
Petitioners appealed, again contesting the constitutionality of 622's
standard of proof. 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).
Last Term, in Lassiter v. Department of Social Services, 452
U.S. 18 (1981), this Court, by a 5-4 vote, held that the [455 U.S. 745, 753] Fourteenth
Amendment's Due Process Clause does not require the appointment of counsel for
indigent parents in every parental status termination proceeding. The case
casts light, however, on the two central questions here - whether process is
constitutionally due a natural parent at a State's parental rights termination
proceeding, and, if so, what process is due.
In Lassiter, it was "not disputed that state intervention to terminate
the relationship between [a parent] and [the] child must be accomplished by
procedures meeting the requisites of the Due Process Clause." Id., at 37
(first dissenting opinion); see id., at 24-32 (opinion of the Court); id., at
59-60 (STEVENS, J., dissenting). See also Little v. Streater, 452
U.S. 1, 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, 255 (1978); Smith v. Organization of Foster Families, 431
U.S. 816, 845 (1977); Moore v. East Cleveland, 431
U.S. 494, 499 (1977) (plurality opinion); Cleveland Board of Education v.
LaFleur, 414
U.S. 632, 639 -640 (1974); Stanley v. Illinois, 405
U.S. 645, 651 -652 (1972); Prince v. Massachusetts, 321
U.S. 158, 166 (1944); Pierce v. Society of Sisters, 268
U.S. 510, 534 -535 (1925); Meyer v. Nebraska, 262
U.S. 390, 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 [455 U.S. 745, 754] destroy weakened familial bonds,
it must provide the parents with fundamentally fair procedures. 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, 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 27 -31; id., at 37-48 (first dissenting opinion). But see id., at
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 31 -32, with id., at 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 [455 U.S. 745, 755] `instruct
the factfinder concerning the degree of confidence our society thinks he should
have in the correctness of factual conclusions for a particular type of
adjudication.'" Id., at 423, quoting In re Winship, 397
U.S. 358, 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 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 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 424. See also In re Winship, 397
U.S., at 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, 491 (1980). See also Logan v. Zimmerman Brush Co., ante, at 432.
Moreover, the degree of proof required in a particular type of proceeding
"is the kind of question which has [455 U.S. 745, 756] traditionally been left to the
judiciary to resolve." Woodby v. INS, 385
U.S. 276, 284 (1966). 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 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 424 . Notwithstanding "the state's `civil labels and good
intentions,'" id., at 427, quoting In re Winship, 397
U.S., at 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 425 , 426. See, e. g., Addington v. Texas, supra (civil
commitment); Woodby v. INS, 385
U.S., at 285 (deportation); Chaunt v. United States, 364
U.S. 350, 353 (1960) (denaturalization); [455 U.S. 745, 757] Schneiderman v. United States,
320
U.S. 118, 125 , 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 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 truth-finding
process as applied to the generality of cases, not the rare exceptions."
Mathews v. Eldridge, 424
U.S., at 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. 9
[455 U.S. 745, 758]
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.
"The extent to which
procedural due process must be afforded the recipient is influenced by the
extent to which he may be `condemned to suffer grievous loss.'" Goldberg
v. Kelly, 397
U.S. 254 . 262-263 (1970), quoting Joint Anti-Fascist Refugee Committee v.
McGrath, 341
U.S. 123, 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 [455 U.S. 745, 759] right. 452
U.S., at 27 , quoting Stanley v. Illinois, 405
U.S., at 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 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 [455 U.S. 745,
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. 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. 11
Thus, [455 U.S. 745, 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 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 384-6.3(b), 392.7.(c).
Alternatively, the foster parents can make their case for custody at the
dispositional stage of a state-initiated proceeding, where the judge already
has decided the issue of permanent neglect and is focusing on the placement
that would serve the child's best interests. Fam. Ct. Act 623, 631. For the foster
parents, the State's failure to prove permanent neglect may prolong the delay
and uncertainty until their foster child is freed for adoption. But for the
natural parents, a finding of permanent neglect can cut off forever their
rights in their child. Given this disparity of consequence, we have no
difficulty finding that the balance of private interests strongly favors
heightened procedural protections.
Under Mathews v. Eldridge, we next must consider both the risk of erroneous deprivation
of private interests resulting from use of a "fair preponderance"
standard and the likelihood that a higher evidentiary standard would reduce
that risk. See 424
U.S., at 335 . 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. [455 U.S. 745, 762]
In New York, the factfinding stage of a state-initiated permanent neglect
proceeding bears many of the indicia of a criminal trial. Cf. Lassiter v.
Department of Social Services, 452
U.S., at 42 -44 (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 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 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. 12
[455 U.S. 745, 763]
Because parents subject to termination proceedings are often
poor, uneducated, or members of minority groups, id., at 833-835, such
proceedings are often vulnerable to judgments based on cultural or class bias.
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. 13
[455 U.S. 745, 764]
The disparity between the adversaries' litigation resources is matched by a
striking asymmetry in their litigation options. Unlike criminal defendants,
natural parents have no "double jeopardy" defense against repeated
state termination efforts. If the State initially fails to win termination, as
New York did here, see n. 4, supra, it always can try once again to cut off the
parents' rights after gathering more or better evidence. Yet even when the
parents have attained the level of fitness required by the State, they have no
similar means by which they can forestall future termination efforts.
Coupled with a "fair preponderance of the evidence" standard,
these factors create a significant prospect of erroneous termination. A
standard of proof that by its very terms demands consideration of the quantity,
rather than the quality, of the evidence may misdirect the factfinder in the
marginal case. See In re Winship, 397
U.S., at 371 , n. 3 (Harlan, J., concurring). Given the weight of the
private interests at stake, the social cost of even occasional error is
sizable.
Raising the standard of proof would have both practical and symbolic
consequences. Cf. Addington v. Texas, 441
U.S., at 426 . The Court has long considered the heightened standard of proof
used in criminal prosecutions to be "a prime instrument for reducing the
risk of convictions resting on factual error." In re Winship, 397
U.S., at 363 . An elevated standard of proof in a parental rights
termination proceeding would alleviate "the possible risk that a
factfinder might decide to [deprive] an individual based solely on a few
isolated instances of unusual conduct [or] . . . idiosyncratic behavior."
Addington v. Texas, 441
U.S., at 427 . "Increasing the burden of proof is one way to impress
the factfinder with the importance [455
U.S. 745, 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. 14
That view is fundamentally mistaken.
The court's theory assumes that termination of the natural parents' rights
invariably will benefit the child. 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 371 (Harlan, J., concurring). For the child, the likely
consequence of an erroneous failure to terminate is preservation of [455 U.S. 745, 766] an
uneasy status quo. 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.
Two state interests are at stake in parental rights termination proceedings
- a parens patriae interest in preserving and promoting the welfare of the
child and a fiscal and administrative interest in reducing the cost and burden
of such proceedings. A standard of proof more strict than preponderance of the
evidence is consistent with both interests.
"Since the State has an urgent
interest in the welfare of the child, it shares the parent's interest in an
accurate and just decision" at the factfinding proceeding. Lassiter v.
Department of Social Services, 452
U.S., at 27 . 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 [455
U.S. 745, 767] severance, of natural familial bonds. 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 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 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 [455 U.S. 745, 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.
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. 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 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 non-criminal cases," id., at 428, and because the psychiatric
evidence ordinarily adduced at commitment proceedings is [455 U.S. 745, 769] rarely
susceptible to proof beyond a reasonable doubt. Id., at 429-430, 432-433. To be
sure, as has been noted above, in the Indian Child Welfare Act of 1978, Pub. L.
95-608, 102(f), 92 Stat. 3072, 25 U.S.C. 1912(f) (1976 ed., Supp. IV), Congress
requires "evidence beyond a reasonable doubt" for termination of
Indian parental rights, reasoning that "the removal of a child from the
parents is a penalty as great [as], if not greater, than a criminal penalty . .
. ." H. R. Rep. No. 95-1386, p. 22 (1978). Congress did not consider,
however, the evidentiary problems that would arise if proof beyond a reasonable
doubt were required in all state-initiated parental rights termination
hearings.
Like civil commitment hearings, termination proceedings often require the
factfinder to evaluate medical and psychiatric testimony, and to decide issues
difficult to prove to a level of absolute certainty, such as lack of parental
motive, absence of affection between parent and child, and failure of parental
foresight and progress. Cf. Lassiter v. Department of Social Services, 452
U.S., at 30 ; id., at 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 [455 U.S. 745,
770] is a matter of state law properly left to state legislatures
and state courts. Cf. Addington v. Texas, 441
U.S., at 433 .
We, of course, express no view on the merits of petitioners' claims. 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 600A.8 (1981) ("clear and convincing proof"); Me.
Rev. Stat. Ann., Tit. 22, 4055.1.B.(2) (Supp. 1981-1982); Mich. Comp. Laws
722.25 (Supp. 1981-1982); Mo. Rev. Stat. 211.447.2(2) (Supp. 1981)
("clear, cogent and convincing evidence"); N. M. Stat. Ann. 40-7-4.J.
(Supp. 1981); N.C. Gen. Stat. 7A-289.30(e) (1981) ("clear, cogent, and
convincing evidence"); Ohio Rev. Code Ann. 2151.35, 2151.414(B) (Page
Supp. 1982); R. I. Gen. Laws 15-7-7(d) (Supp. 1980); Tenn. Code Ann. 37-246(d)
(Supp. 1981); Va. Code 16.1-283.B (Supp. 1981); W. Va. Code 49-6-2(c) (1980)
("clear and convincing proof"); Wis. Stat. 48.31(1) (Supp.
1981-1982). Fifteen States, the District of Columbia, and the Virgin Islands,
by court decision, have required "clear and convincing evidence" or
its equivalent. See Dale County Dept. of Pensions & Security v. Robles, 368
So.2d 39, 42 [455 U.S. 745, 750]
(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 [455 U.S. 745, 751] 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 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, 427 , 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, 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 773.
See In re Winship, 397
U.S., at 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, 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 [455 U.S.
745, 758] erroneous decisions.'" Post, at 785, quoting
Greenholtz v. Nebraska Penal Inmates, 442
U.S. 1, 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 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, 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, 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 [455 U.S. 745, 761] 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 614.1.(c). In determining whether [455 U.S. 745, 763] 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 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' [455 U.S. 745, 764] resources
will be vastly greater in States where there is no statutory right to
court-appointed counsel. See Lassiter v. Department of Social Services, 452
U.S. 18, 34 (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 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 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
614.1.(d). See also dissenting opinion, post, at 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 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 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," 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 [455 U.S. 745, 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."
State intervention in domestic relations has always been an unhappy but
necessary feature of life in our organized society. For all of our experience
in this area, we have found no fully satisfactory solutions to the painful
problem of child abuse and neglect. We have found, however, that leaving the States
free to experiment with various remedies has produced novel approaches and
promising progress.
Throughout this experience the Court has scrupulously refrained from
interfering with state answers to domestic relations questions. "Both
theory and the precedents of this Court teach us solicitude for state
interests, particularly in the field of family and family-property
arrangements." United States v. Yazell, 382
U.S. 341, 352 (1966). This is not to say that the Court should blink at
clear constitutional violations in state statutes, but rather that in this
area, of all areas, "substantial weight must be given to the good-faith
judgments of the individuals [administering a program] . . . that the
procedures they have provided assure fair consideration of the . . . claims of
individuals." Mathews v. Eldridge, 424
U.S. 319, 349 (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 [455
U.S. 745, 772] against the legitimate interests of the child and
the State. These earnest efforts by state officials should be given weight in
the Court's application of due process principles. "Great constitutional
provisions must be administered with caution. Some play must be allowed for the
joints of the machine, and it must be remembered that legislatures are ultimate
guardians of the liberties and welfare of the people in quite as great a degree
as the courts." Missouri, K. & T. R. Co. v. May, 194
U.S. 267, 270 (1904). 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 [455 U.S. 745, 773] to the
majority if it provided no procedures other than one 30-minute hearing.
Similarly, the majority probably would balk at a state scheme that permitted
termination of parental rights on a clear and convincing showing merely that
such action would be in the best interests of the child. See Smith v.
Organization of Foster Families, 431
U.S. 816, 862 -863 (1977) (Stewart, J., concurring in judgment).
After fixing the standard of proof, therefore, the majority will be forced
to evaluate other aspects of termination proceedings with reference to that
point. Having in this case abandoned evaluation of the overall effect of a
scheme, and with it the possibility of finding that strict substantive
standards or special procedures compensate for a lower burden of proof, the
majority's approach will inevitably lead to the federalization of family law.
Such a trend will only thwart state searches for better solutions in an area
where this Court should encourage state experimentation. "It is one of the
happy incidents of the federal system that a single courageous State may, if
its citizens choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country. This Court has the power
to prevent an experiment." New State Ice Co. v. Liebmann, 285
U.S. 262, 311 (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.
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, [455 U.S. 745, 774] however, and on April
10, 1979, the New York Family Court for Ulster County terminated petitioners'
parental rights as to the three children removed in 1974 or earlier. This
termination was preceded by a judicial finding that petitioners had failed to
plan for the return and future of their children, a statutory category of
permanent neglect. Petitioners now contend, and the Court today holds, that
they were denied due process of law, not because of a general inadequacy of
procedural protections, but simply because the finding of permanent neglect was
made on the basis of a preponderance of the evidence adduced at the termination
hearing.
It is well settled that "[t]he requirements of procedural due process
apply only to the deprivation of interests encompassed by the Fourteenth
Amendment's protection of liberty and property." Board of Regents v. Roth,
408
U.S. 564, 569 (1972). In determining whether such liberty or property
interests are implicated by a particular government action, "we must look
not to the `weight' but to the nature of the interest at stake." Id., at
571 (emphasis in original). I do not disagree with the majority's conclusion
that the interest of parents in their relationship with their children is
sufficiently fundamental to come within the finite class of liberty interests
protected by the Fourteenth Amendment. See Smith v. Organization of Foster
Families, supra, at 862-863 (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, 481 (1972). It is the majority's answer to this question with
which I disagree.
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 [455 U.S. 745, 775]
procedural safeguards call for the same kind of procedure."
Morrissey v. Brewer, supra, at 481. See also Greenholtz v. Nebraska Penal
Inmates, 442
U.S. 1, 12 (1979); Mathews v. Eldridge, 424
U.S., at 334 ; Cafeteria Workers v. McElroy, 367
U.S. 886, 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 343. Only through such a broad inquiry may
courts determine whether a challenged governmental action satisfies the due
process requirement of "fundamental fairness." 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., Ingraham v. [455 U.S. 745, 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. 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. 5
FCA 1051, 1052. [455 U.S. 745,
777]
Court proceedings to order the temporary removal of a child are initiated by
a petition alleging abuse or neglect, filed by a state-authorized child
protection agency or by a person designated by the court. FCA 1031, 1032.
Unless the court finds that exigent circumstances require removal of the child
before a petition may be filed and a hearing held, see FCA 1022, the order of
temporary removal results from a "dispositional hearing" conducted to
determine the appropriate form of alternative care. FCA 1045. See also FCA
1055. This "dispositional hearing" can be held only after the court,
at a separate "fact-finding hearing," has found the child to be
abused or neglected within the specific statutory definition of those terms.
FCA 1012, 1044, 1051.
Parents subjected to temporary removal proceedings are provided extensive
procedural protections. A summons and copy of the temporary removal petition
must be served upon the parents within two days of issuance by the court, FCA
1035, 1036, and the parents may, at their own request, delay the commencement
of the factfinding hearing for three days after service of the summons. FCA
1048. 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 [455 U.S. 745, 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). 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. [455 U.S. 745, 779] SSL 384-b.3.(f). At the
factfinding hearing, the court must determine, by a fair preponderance of the
evidence, whether the child has been permanently neglected. SSL 384-b.3.(g).
"Only competent, material and relevant evidence may be admitted in a
fact-finding hearing." FCA 624. The court may find permanent neglect if
the child is in the care of an authorized agency or foster home and the parents
have "failed for a period of more than one year . . . substantially and
continuously or repeatedly to maintain contact with or plan for the future of
the child, although physically and financially able to do so." SSL
384-b.7.(a). 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). 9
[455 U.S. 745, 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 [455 U.S. 745,
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. 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 [455 U.S. 745, 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
"non-responsive, even hostile," the fact that they were "at least
superficially cooperative" led it to conclude that there was yet hope of
further improvement and an eventual reuniting of the family. Exhibit to Brief
for Respondent Kramer 618. Accordingly, the petition for permanent termination
was dismissed.
Whatever progress petitioners were making prior to the 1976 termination
hearing, they made little or no progress thereafter. In October 1978, the
Department again filed a termination petition alleging that petitioners had
completely failed to plan for the children's future despite the considerable
efforts rendered in their behalf. This time, the Family Court agreed. The court
found that petitioners had "failed in any meaningful way to take advantage
of the many social [455 U.S. 745,
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 [455 U.S. 745, 784] focus on the standard of proof
and its almost complete disregard of the facts of this case does the majority
find otherwise. 11
As the discussion above indicates, however, such a [455 U.S. 745, 785] focus does not comport
with the flexible standard of fundamental fairness embodied in the Due Process
Clause of the Fourteenth Amendment.
In addition to the basic fairness of the process afforded petitioners, the
standard of proof chosen by New York clearly reflects a constitutionally
permissible balance of the interests at stake in this case. The standard of
proof "represents an attempt to instruct the factfinder concerning the
degree of confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication." In re Winship,
397
U.S. 358, 370 (1970) (Harlan, J. concurring); Addington v. Texas, 441
U.S. 418, 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." 12
Greenholtz v. Nebraska [455
U.S. 745, 786] Penal Inmates, 442
U.S., at 13 . See also Addington v. Texas, supra, at 425; Mathews v. Eldridge,
424
U.S., at 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 [455
U.S. 745, 787] beyond a reasonable doubt, there would be a
smaller risk of factual errors that result in freeing guilty persons, but a far
greater risk of factual errors that result in convicting the innocent. Because
the standard of proof affects the comparative frequency of these two types of
erroneous outcomes, the choice of the standard to be applied in a particular
kind of litigation should, in a rational world, reflect an assessment of the
comparative social disutility of each." 397
U.S., at 370 -371.
When the standard of proof is understood as reflecting such
an assessment, an examination of the interests at stake in a particular case
becomes essential to determining the propriety of the specified standard of
proof. Because proof by a preponderance of the evidence requires that
"[t]he litigants . . . share the risk of error in a roughly equal
fashion," Addington v. Texas, supra, at 423, it rationally should be
applied only when the interests at stake are of roughly equal societal
importance. The interests at stake in this case demonstrate that New York has
selected a constitutionally permissible standard of proof.
On one side is the interest of parents in a continuation of the family unit
and the raising of their own children. The importance of this interest cannot
easily be overstated. Few consequences of judicial action are so grave as the
severance of natural family ties. Even the convict committed to prison and
thereby deprived of his physical liberty often retains the love and support of
family members. "This Court's decisions have by now made plain beyond the
need for multiple citation that a parent's desire for and right to `the
companionship, care, custody, and management of his or her children' is an
important interest that `undeniably warrants deference and, absent a powerful
countervailing interest, protection.' Stanley v. Illinois, 405
U.S. 645, 651 ." Lassiter v. Department of Social Services, 452
U.S. 18, 27 (1981). In creating the scheme at issue in this case, the New
York Legislature [455 U.S. 745,
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. 13
A stable, loving [455 U.S.
745, 789] homelife is essential to a child's physical, emotional,
and spiritual well-being. It requires no citation of authority to assert that
children who are abused in their youth generally face extraordinary problems
developing into responsible, productive citizens. The same can be said of
children who, though not physically or emotionally abused, are passed from one
foster home to another with no constancy of love, trust, or discipline. If the
Family Court makes an incorrect factual determination resulting in a failure to
terminate a parent-child relationship which rightfully should be ended, the
child involved must return either to an abusive home 14
or to the often unstable world of foster care. 15
The reality of these [455 U.S.
745, 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 homelife, "the State
has an urgent interest in the welfare of the child." Lassiter v.
Department of Social Services, 452
U.S., at 27 . 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, 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
165. See also Ginsberg v. New York, 390
U.S. 629, 640 -641 (1968).
When, in the context of a permanent neglect termination proceeding, the
interests of the child and the State in a stable, [455 U.S. 745, 791] nurturing homelife are
balanced against the interests of the parents in the rearing of their child, it
cannot be said that either set of interests is so clearly paramount as to
require that the risk of error be allocated to one side or the other.
Accordingly, a State constitutionally may conclude that the risk of error
should be borne in roughly equal fashion by use of the
preponderance-of-the-evidence standard of proof. See Addington v. Texas, 441
U.S., at 423 . 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).
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
1 ] New York Trust Co. v. Eisner, 256
U.S. 345, 349 (1921).
[ Footnote
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, 284 (1966)." Ante, at 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 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
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 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
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 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 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
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 [455 U.S. 745, 777] 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
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
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
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
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; [455 U.S. 745, 780] "(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
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 home-made splint; bruises
on the upper arms, forehead, flank, and spine; and abrasions of the upper leg.
The following summer John Santosky III, petitioners' second oldest child, was
also removed from 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 1-5. Jed Santosky,
the third oldest of petitioners' children, was removed from his parents'
custody when only three days old as a result of the abusive treatment of the
two older children.
[ Footnote 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 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 762, 763, 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 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