by JJ Hensley on Aug. 12, 2011
State officials were already in the process of investigating an allegation of child abuse on a 6-year-old Phoenix boy when the child’s parents took him to the hospital earlier this week with injuries that Phoenix police allege the child received when one of his parents slammed the boy’s head into a bedroom wall.
Phoenix police arrested Jacob Gibson’s parents, Jennifer Paul, 37, and Benny Gibson, 49, at Phoenix Children’s Hospital earlier this week on suspicion of child abuse.
Jacob remains hospitalized with a swollen brain and is not expected to survive his injuries, according to police.
Child Protective Services officials have been a consistent presence in Jacob’s life, according to a preliminary report released Friday morning, investigating at least five allegations of child abuse during the past four years.
The most recent CPS investigation into allegations that Jacob had golf-ball sized knot on the side of his head and two black eyes was launched last month and is still ongoing, according to the brief CPS report on the state’s involvement with Jacob.
Another investigation -into allegations that Benny Gibson “put his hands around Jacob’s neck in a choking motion” after he picked the boy up from school in May- is also ongoing, according to the report.
CPS officials had also launched three prior investigations into allegations of abuse against Jacob in 2007, 2009 and 2010, but investigators determined each of those allegations were unsubstantiated and offered the family “community services.”
The unsubstantiated allegations listed in the report included:
- A 2007 claim that Jacob was seen with bruises on his legs.
- A report in 2009 that Benny Gibson was yelling at Jacob and hitting him on the head in addition to forcing the boy to sit outside the family’s apartment naked because Jacob wet his pants.
- A 2010 claim that the left side of Jacob’s face was swollen as a result of abuse and that “Benny Gibson rants and yells at Jacob and requires Jacob to stand on a box at attention for punishment.”
A Phoenix police spokesman said officers also went to the family’s apartment near 19th and Glendale avenues during the past two months to investigate a report that Jacob was abused, but no one was home at the time and officers left unable to follow up on the anonymous tip.
Source http://tucsoncitizen.com/arizona-news/2011/08/12/child-protective-services-had-investigated-hospitalized-6-year-olds-parents/
CPS corruption hurts and destroys families worldwide. Please use caution posting about CPS here or anyplace on the internet. For your protection, using your full, real name and precise location is not advised. CPS has eyes everywhere and CPS is notorious for taking what people say, twisting it, embellishing on it and then using it against them in CPS "investigations" and at court proceedings.
Friday, August 12, 2011
TV News, Other Reports On CPS Corruption and Other CPS Issues
This is a nationwide problem but you will not find many local news organizations that will do investigative reports like this. Why? Because CPS is corrupt enough in some areas to be able to control what the news is allowed to reveal and/or reporters are afraid that they could lose their own children due CPS' abuse of power.
Lafayette Man Sentenced In Infant Son's Death
BOULDER, Colo. (AP) - A Lafayette man accused of killing his infant son by shaking and throwing him has been sentenced to 20 years in prison.
Twenty-1-year-old Joaquin Campos had pleaded guilty in May to felony child abuse resulting in the death of 10-week-old Lyon Campos in October.
Boulder District Judge Gwyneth Whalen said at his sentencing hearing Thursday that it was a significant understatement to say Campos was ill-prepared to take care of an infant. The Daily Camera reports (http://bit.ly/pmsRRo) Campos was born to a mentally ill 17-year-old girl, was placed into foster care at age 2, and suffered physical and sexual abuse with foster families. The newspaper reports he dropped out of high school and qualified for Social Security disability due to his mental impairments before Lyon was born.
Source Article http://www.noco5.com/story/15254071/lafayette-man-sentenced-in-infant-sons-death
Twenty-1-year-old Joaquin Campos had pleaded guilty in May to felony child abuse resulting in the death of 10-week-old Lyon Campos in October.
Boulder District Judge Gwyneth Whalen said at his sentencing hearing Thursday that it was a significant understatement to say Campos was ill-prepared to take care of an infant. The Daily Camera reports (http://bit.ly/pmsRRo) Campos was born to a mentally ill 17-year-old girl, was placed into foster care at age 2, and suffered physical and sexual abuse with foster families. The newspaper reports he dropped out of high school and qualified for Social Security disability due to his mental impairments before Lyon was born.
Source Article http://www.noco5.com/story/15254071/lafayette-man-sentenced-in-infant-sons-death
State report finds Casey Anthony 'responsible' for daughter's death
By the CNN Wire Staff
August 12, 2011 5:45 a.m. EDT
(CNN) -- Casey Anthony is responsible for the 2008 death of her 2-year-old daughter Caylee, a report released Thursday by Florida's Department of Children and Families concludes.
A month after a jury acquitted Anthony on murder and child neglect charges, the state agency found that Anthony "is the caregiver responsible for the verified maltreatments of death, threatened harm and failure to protect" in her daughter's death.
Carrie Hoeppner, a spokeswoman for the Department of Children and Families, said the report was issued this week as a "professional courtesy" after the sheriff's office and prosecutors finished their work on the case.
She added that the state agency is mandated to conduct reviews when there are allegations that a child dies as a result of abuse, abandonment or neglect. The agency had no contact with the Anthonys prior to the girl's disappearance in the summer of 2008, Hoeppner added.
The Orange County Sheriff's Office will not take any further action as a result of the report, Capt. Angelo Nieves said Thursday.
"This closes out the DCF case, and it does not create additional follow-up on our part," he said.
The report said: "The Department of Children and Families concludes that the actions or the lack of actions by the alleged perpetrator ultimately resulted or contributed in the death of the child." The report was signed by officials in the department Wednesday.
Anthony is now free. While she was cleared on murder and aggravated child abuse charges, the 25-year-old Orlando woman was convicted on four counts related to misleading law enforcement authorities. She was sentenced to four years in jail on those convictions, but was given credit for the time she had already served between her arrest and the end of the seven-week trial and was released from jail in mid-July. Prosecutors cannot appeal the acquittals.
The report does not address, or substitute for, judgments regarding the guilt or innocence of the caregiver -- in this case, Casey Anthony -- DCF spokeswoman Hoeppner said.
The state report found that Anthony's "failure to act" in the 31 days between the time the girl was last seen and when police were alerted about the case "delayed and interfered with a law enforcement investigation and best efforts to safely recover the child."
The agency report noted there were "no indicators" that Caylee's death was caused by physical injury, and it was "not substantiated" that she died of asphyxiation -- both points of great contention during the trial.
An autopsy performed in December 2008 by the local medical examiner determined "that the exact cause of death cannot be determined with certainty." Prosecutors tried, unsuccessfully, to convince jurors that Anthony used chloroform to render her daughter unconscious and then duct-taped her mouth and nose to suffocate her.
In its recommendations section, the report said that "the maternal grandfather" -- in this case, George Anthony -- "should have been interviewed for the missing person report." Casey Anthony's defense lawyer had claimed, in the opening argument of the murder trial, that George Anthony knew Caylee had died accidentally and helped cover up her death.
Casey Anthony had been investigated by the agency, when state child welfare investigators determined on September 14, 2008, that there were "verified findings" indicating that Anthony was responsible for "inadequate supervision and threatened harm" of her child, although it found "no indicators of physical injury."
Exactly a month later, a grand jury indicted Anthony on murder and other charges, and the case was eventually reopened by the Department of Children and Families. No further detail was immediately offered as to why or exactly when the department chose to review the case, or why it came out this week.
The report released Thursday officially closes the department's investigation in the case.
Source Article http://www.cnn.com/2011/CRIME/08/11/florida.casey.anthony/index.html?iref=allsearch
August 12, 2011 5:45 a.m. EDT
(CNN) -- Casey Anthony is responsible for the 2008 death of her 2-year-old daughter Caylee, a report released Thursday by Florida's Department of Children and Families concludes.
A month after a jury acquitted Anthony on murder and child neglect charges, the state agency found that Anthony "is the caregiver responsible for the verified maltreatments of death, threatened harm and failure to protect" in her daughter's death.
Carrie Hoeppner, a spokeswoman for the Department of Children and Families, said the report was issued this week as a "professional courtesy" after the sheriff's office and prosecutors finished their work on the case.
She added that the state agency is mandated to conduct reviews when there are allegations that a child dies as a result of abuse, abandonment or neglect. The agency had no contact with the Anthonys prior to the girl's disappearance in the summer of 2008, Hoeppner added.
The Orange County Sheriff's Office will not take any further action as a result of the report, Capt. Angelo Nieves said Thursday.
"This closes out the DCF case, and it does not create additional follow-up on our part," he said.
The report said: "The Department of Children and Families concludes that the actions or the lack of actions by the alleged perpetrator ultimately resulted or contributed in the death of the child." The report was signed by officials in the department Wednesday.
Anthony is now free. While she was cleared on murder and aggravated child abuse charges, the 25-year-old Orlando woman was convicted on four counts related to misleading law enforcement authorities. She was sentenced to four years in jail on those convictions, but was given credit for the time she had already served between her arrest and the end of the seven-week trial and was released from jail in mid-July. Prosecutors cannot appeal the acquittals.
The report does not address, or substitute for, judgments regarding the guilt or innocence of the caregiver -- in this case, Casey Anthony -- DCF spokeswoman Hoeppner said.
The state report found that Anthony's "failure to act" in the 31 days between the time the girl was last seen and when police were alerted about the case "delayed and interfered with a law enforcement investigation and best efforts to safely recover the child."
The agency report noted there were "no indicators" that Caylee's death was caused by physical injury, and it was "not substantiated" that she died of asphyxiation -- both points of great contention during the trial.
An autopsy performed in December 2008 by the local medical examiner determined "that the exact cause of death cannot be determined with certainty." Prosecutors tried, unsuccessfully, to convince jurors that Anthony used chloroform to render her daughter unconscious and then duct-taped her mouth and nose to suffocate her.
In its recommendations section, the report said that "the maternal grandfather" -- in this case, George Anthony -- "should have been interviewed for the missing person report." Casey Anthony's defense lawyer had claimed, in the opening argument of the murder trial, that George Anthony knew Caylee had died accidentally and helped cover up her death.
Casey Anthony had been investigated by the agency, when state child welfare investigators determined on September 14, 2008, that there were "verified findings" indicating that Anthony was responsible for "inadequate supervision and threatened harm" of her child, although it found "no indicators of physical injury."
Exactly a month later, a grand jury indicted Anthony on murder and other charges, and the case was eventually reopened by the Department of Children and Families. No further detail was immediately offered as to why or exactly when the department chose to review the case, or why it came out this week.
The report released Thursday officially closes the department's investigation in the case.
Source Article http://www.cnn.com/2011/CRIME/08/11/florida.casey.anthony/index.html?iref=allsearch
Autopsy Finds Infant Died Of Child Abuse
An autopsy today attributed the death of a 3-month-old Far South Side girl to blunt head trauma due to child abuse.
Ianah Sherrod's father, Ivory Harmon, was charged with aggravated battery of a child. That charge remains and the case is still under investigation, said a spokesman for the Cook County state's attorney's office.
Ianah was brought to University of Illinois at Chicago Medical Center by her father last Thursday afternoon, police said. He told officers who were called there that he had found her unresponsive in her crib.
The child, who showed signs of having been beaten, was resuscitated and placed on a ventilator, police said. She died Tuesday afternoon, according to the Cook County medical examiner's office.
The Illinois Department of Children and Family Services said it has opened an investigation into the girl's death.
Harmon, of the 11300 block of South Forest Avenue, is being held at Cook County Jail without bail.
Source Article http://www.chicagotribune.com/news/local/breaking/chi-autopsy-finds-infant-died-of-child-abuse-20110811,0,1156217.story
Ianah Sherrod's father, Ivory Harmon, was charged with aggravated battery of a child. That charge remains and the case is still under investigation, said a spokesman for the Cook County state's attorney's office.
Ianah was brought to University of Illinois at Chicago Medical Center by her father last Thursday afternoon, police said. He told officers who were called there that he had found her unresponsive in her crib.
The child, who showed signs of having been beaten, was resuscitated and placed on a ventilator, police said. She died Tuesday afternoon, according to the Cook County medical examiner's office.
The Illinois Department of Children and Family Services said it has opened an investigation into the girl's death.
Harmon, of the 11300 block of South Forest Avenue, is being held at Cook County Jail without bail.
Source Article http://www.chicagotribune.com/news/local/breaking/chi-autopsy-finds-infant-died-of-child-abuse-20110811,0,1156217.story
Adoption, Thow Away Kids, Money and CPS
When adoption goes wrong
Giving up custody to get kids the mental health care they need
By Patrick Yeagle
Wally and Dawne Busch of Petersburg eagerly adopted their son Alan at the age of two in 2000, knowing that they would be in for some challenging times. They knew that Alan, now 13, had been abused by his biological mother, and they weren’t surprised when, around the time he hit puberty, he began to develop severe emotional and behavioral issues, which often manifest in violent outbursts, threatening Alan’s safety and that of everyone around him.
He threatened to kill other children at school, threatened to hurt the couple’s other children, mutilated his own body and talked often about killing himself. But the Buschs say their most troubling challenge hasn’t been Alan’s behavior. It has been trying to help their son in an environment that they say pushes families to give up custody of children to the state in return for mental health services.
The Buschs adopted Alan and his sister, Stephanie, with assurances from DCFS that the state would pay for the children’s medical needs, including mental health care. Despite counseling and therapy, Alan’s behavior became too dangerous for the family to keep him in their home, according to Wally Busch, so in October 2010 the family had Alan committed to a short-term psychiatric hospital with plans to send him to a long-term residential care facility at his psychiatrist’s recommendation. Lacking the hundreds of thousands of dollars needed to pay for Alan’s treatment, the Buschs approached DCFS about paying for long-term care, but the agency declined.
After Alan spent a week in the psychiatric hospital, the Buschs received a call saying he was ready to come home – that he was no longer a danger to himself or others. Fearing for the safety of their family and of Alan himself, the Buschs took their attorney’s advice and decided not to pick Alan up from the psychiatric hospital. DCFS charged them with neglect, classifying the Buschs’ choice as a “psychiatric lockout.”
The neglect charge against the Buschs was dismissed in court, but their choice to not bring Alan back home essentially meant they had given up custody of Alan to the state. He remains in state custody at a residential treatment facility, though the Buschs retain parental rights such as visitation.
Custody relinquishment
The Buschs’ story is typical of a situation called custody relinquishment. It involves an adoptive family becoming overwhelmed by the challenges of a mentally ill or emotionally disturbed child. Usually after trying several methods of counseling and therapy that don’t seem to work, the family decides that expensive long-term residential care is the only option left, but securing funding from the state proves difficult or impossible. The family then decides the only option to secure treatment for the child is leaving him or her in the hands of the state. The decision to “lock out” a child usually comes at the suggestion of a family’s attorney, psychiatrist, or even a state agency, but it often results in the family losing custody of the child.
It’s difficult to tell how many custody relinquishments happen each year, but statistics on psychiatric lockout seem to indicate a worsening problem. Screening, Assessment and Support Services (SASS), a division of the Illinois Department of Human Services, says in an internal report that the number of psychiatric lockouts statewide more than tripled from 30 in 2003 to 104 in 2010. The Community and Residential Services Authority (CRSA), a state agency which guides parents through the maze of child welfare services when they have trouble, indicates in its 2009 and 2010 annual reports that custody relinquishment happens frequently enough to be a significant concern.
“Parents who attempt to access services through lockout in many instances end up relinquishing guardianship to the state and are often treated systemically as abusive or neglectful parents,” CRSA notes in its 2009 report. “CRSA staff do not believe that lockout is an effective mechanism for service planning and the CRSA board has long believed that parents should not be forced to give up guardianship and parental rights to their children simply to get their service needs met.”
The reports note that “referral to CRSA often implies a breakdown or a gap somewhere in the state service system.” CRSA cases increased from 355 in 2009 to 374 in 2010, with about half of cases from both years coming from families seeking residential care for a child with severe emotional disturbances or behavioral disorders. Of CRSA’s 355 cases in 2009, 32 came from Sangamon County.
John Schornagel, executive director of CRSA, which is based in Springfield, says custody relinquishment cases are the ones that “fall through the cracks” between the services offered by the half-dozen child-serving state agencies, including those that provide post-adoption services.
“I wish lockouts didn’t happen,” Schornagel says. “As a group of agencies and as a state, we need to find a solution to custody relinquishment. Certainly, DCFS has a good clinical division, and they’re capable of handling adopted kids who are at risk for adoption disruption. But for parents to have to go through the living hell of abandoning their kids to the system simply to get their mental health needs met is just the wrong way to go. There must be a better way.”
Schornagel says that of the more than 10,000 cases CRSA has handled in its 26-year existence, only 44 have required the CRSA board to step in and issue non-binding recommendations to resolve a conflict between state agencies and adoptive parents seeking services. Most cases get resolved before they get to the psychiatric lockout stage, Schornagel says, adding that many conflicts can be resolved if parents contact his agency for help securing services before a psychiatric lockout ever becomes an option.
CRSA reports identify other issues that hinder families’ efforts to obtain state services for mentally ill or emotionally disturbed children, including a lack of services available in a geographic area, state agencies deflecting clients to other agencies, ever-changing diagnostic criteria that require constant changes to services and programs, and the inability of schools to pay for appropriate educational plans for children with special needs.
Schornagel says the custody relinquishment problem is largely the result of changes made to DCFS in the 1990s because of a federal court order that required DCFS to put foster children into permanent homes within two years of entering the foster care system. He says “disrupting adoptions” will continue as long as there is such a short time frame for getting kids into permanent homes, combined with parents who “aren’t fully prepared and trained for the clinical kinds of challenges they’re going to face” when adopting.
Kendall Marlowe, spokesman for the Illinois Department of Children and Family Services, says the majority of adoptions do not result in custody relinquishment. He notes that Illinois had nearly 52,000 children in its foster care system in 1997, but that number has been reduced to fewer than 17,000 currently, mainly due to increased efforts to place foster children into permanent adoptive homes. About 26,800 children in Illinois receive a monthly adoption subsidy from the state, which Marlowe says is probably the best available estimate of currently adopted kids in Illinois – excluding adoptions done through private agencies.
About 99 percent of adoptions remain stable after two years, with 95 percent remaining stable after five years, according to a DCFS report.
Speaking generally and not about any specific case, Marlowe says long-term residential treatment like that sought by the Buschs is usually reserved for only the most mentally ill children. DCFS received 75 requests for residential placements in 2009, he says, and only seven of those cases received approval from DCFS director Erwin McEwen.
Many of the problems exhibited by adopted kids are common to all kids, Marlowe notes.
“Adoptive families are not the only families that struggle when kids move into adolescence, and many of the behaviors we associate with mental health conditions are very common among adolescents, including issues of sexuality, identity and attachment,” Marlowe says. “It can be too easy at times to perceive an adolescent’s struggle with maturity to be indicative of mental health conditions. Often, even when elements of mental health conditions are present, the more effective solution is therapy and intervention which involves the entire family. … Families often don’t want to hear that the entire family needs to be a part of the solution.”
Addressing the charge of neglect that often follows a psychiatric lockout, Marlowe says DCFS procedures call for an automatic neglect charge after any lockout, but the charge is usually only upheld if “the family is not engaged in coming up with a solution” for the child to return.
Schornagel says the proactive solution to custody relinquishment would be better community-based support services like intensive therapy and counseling in a child’s own community. Community-based services keep children in a familiar environment – usually their own home – while costing the state less money than residential treatment and pre-empting many of the problems that lead to psychiatric lockouts.
While many state agencies are working to establish more community-based services, Schornagel says that process requires diverting money away from things like residential care, which deals with kids who are already in crisis.
“My perception, from where I sit, is that community-based services aren’t available in the quantity or the quality that are necessary to maintain a lot of these kids, and that’s why it all breaks down,” Schornagel says. “All of the agencies that I’ve worked with have been, over the years, trying to back away from residential placement and take some of the money they were spending on residential care and redirect that to community-based programs. It’s a slow process of moving the money from the back end to the front end, and I think we’re in the middle of that.”
Marlowe says more community-based services are a big part of the solution, but families must also be prepared for the challenges they will face when adopting.
“All of us in the field believe that if we build a stronger safety net, we will be seeing fewer family crises,” Marlowe says. “The system as a whole is trying to move from a mode of reacting to crisis to a more preventative approach. But not every family’s problems can be solved by Dr. Phil in 60 minutes like on Oprah. Growing into a mature, healthy adult is a process that requires support from family at every turn.”
Too little, too late
But for families already in crisis, it’s too late to build a stronger safety net. In 1998, James and Toni Hoy of Ingleside, Ill., adopted a two-year-old son named Daniel. He displayed developmental delays, had been abused by his biological parents, and had been born under the influence of drugs and alcohol. As Daniel grew older, he began to display violent and aggressive behavior, which became dangerous enough that Toni Hoy says she didn’t feel safe in her own home.
The Hoys tried several methods of therapy and counseling for Daniel, but nothing seemed to work. The final straw was when Daniel, then 13, pulled a knife on one of the Hoys’ other children and threw another child down some stairs.
In 2007, they approached the Department of Human Services (DHS) and the Department of Healthcare and Family Services (HFS) about paying for $180,000-per-year residential treatment the family could not afford. The state declined to pay.
Denied funding for treatment they felt Daniel truly needed, the Hoys chose not to pick him up from the psychiatric hospital. Like the Buschs, they faced a charge of neglect for their psychiatric lockout, and their son became a ward of the state, which eventually placed him in a residential treatment facility.
The Hoys eventually got the neglect charge dropped, but it remained in the State Central Registry of abuse and neglect findings. They sued DHS and HFS to obtain funding for Daniel’s residential care, settling their case in July 2011 with an agreement that the agencies would pay for Daniel’s treatment while not admitting any fault. The Hoys also regained custody of Daniel, who is now 16 and was recently transferred from residential care to a juvenile detention center for assaulting a teacher and damaging a car.
While the Hoy case doesn’t set a precedent for other cases because it was settled before a court ruling, Toni Hoy says she has advised several other families in similar situations, and their case may serve as a catalyst for an upcoming class-action lawsuit.
The Collins Law Firm in Naperville, which represented the Hoys in their case, is examining similar cases to construct a class-action suit that could force changes in how the state handles psychiatric lockouts, custody relinquishment and residential care. Attorney Aaron Rapier at Collins says that suit is still in the planning stages and will not be pursued until later, to avoid jeopardizing the Hoys’ settlement.
In the meantime, John Schornagel at CRSA says the state’s financial woes limit the speed at which agencies can move from reacting to crises toward preventing them.
“State agencies have all been cut back on a variety of services – administration and direct services – and a lot of the nonprofits that do the heavy lifting are in trouble because the state isn’t paying their bills in some instances and they’re cutting back on services they provide to the community,” he says. “It makes being proactive more and more difficult. … I don’t think there’s any bad guys here. The agencies are doing what they can to do a better job with a very, very challenging population. I think they’re beginning to win the war, but there’s always casualties.”
Source article http://www.illinoistimes.com/Springfield/article-8964-when-adoption-goes-wrong.html
Giving up custody to get kids the mental health care they need
By Patrick Yeagle
Wally and Dawne Busch of Petersburg eagerly adopted their son Alan at the age of two in 2000, knowing that they would be in for some challenging times. They knew that Alan, now 13, had been abused by his biological mother, and they weren’t surprised when, around the time he hit puberty, he began to develop severe emotional and behavioral issues, which often manifest in violent outbursts, threatening Alan’s safety and that of everyone around him.
He threatened to kill other children at school, threatened to hurt the couple’s other children, mutilated his own body and talked often about killing himself. But the Buschs say their most troubling challenge hasn’t been Alan’s behavior. It has been trying to help their son in an environment that they say pushes families to give up custody of children to the state in return for mental health services.
The Buschs adopted Alan and his sister, Stephanie, with assurances from DCFS that the state would pay for the children’s medical needs, including mental health care. Despite counseling and therapy, Alan’s behavior became too dangerous for the family to keep him in their home, according to Wally Busch, so in October 2010 the family had Alan committed to a short-term psychiatric hospital with plans to send him to a long-term residential care facility at his psychiatrist’s recommendation. Lacking the hundreds of thousands of dollars needed to pay for Alan’s treatment, the Buschs approached DCFS about paying for long-term care, but the agency declined.
After Alan spent a week in the psychiatric hospital, the Buschs received a call saying he was ready to come home – that he was no longer a danger to himself or others. Fearing for the safety of their family and of Alan himself, the Buschs took their attorney’s advice and decided not to pick Alan up from the psychiatric hospital. DCFS charged them with neglect, classifying the Buschs’ choice as a “psychiatric lockout.”
The neglect charge against the Buschs was dismissed in court, but their choice to not bring Alan back home essentially meant they had given up custody of Alan to the state. He remains in state custody at a residential treatment facility, though the Buschs retain parental rights such as visitation.
Custody relinquishment
The Buschs’ story is typical of a situation called custody relinquishment. It involves an adoptive family becoming overwhelmed by the challenges of a mentally ill or emotionally disturbed child. Usually after trying several methods of counseling and therapy that don’t seem to work, the family decides that expensive long-term residential care is the only option left, but securing funding from the state proves difficult or impossible. The family then decides the only option to secure treatment for the child is leaving him or her in the hands of the state. The decision to “lock out” a child usually comes at the suggestion of a family’s attorney, psychiatrist, or even a state agency, but it often results in the family losing custody of the child.
It’s difficult to tell how many custody relinquishments happen each year, but statistics on psychiatric lockout seem to indicate a worsening problem. Screening, Assessment and Support Services (SASS), a division of the Illinois Department of Human Services, says in an internal report that the number of psychiatric lockouts statewide more than tripled from 30 in 2003 to 104 in 2010. The Community and Residential Services Authority (CRSA), a state agency which guides parents through the maze of child welfare services when they have trouble, indicates in its 2009 and 2010 annual reports that custody relinquishment happens frequently enough to be a significant concern.
“Parents who attempt to access services through lockout in many instances end up relinquishing guardianship to the state and are often treated systemically as abusive or neglectful parents,” CRSA notes in its 2009 report. “CRSA staff do not believe that lockout is an effective mechanism for service planning and the CRSA board has long believed that parents should not be forced to give up guardianship and parental rights to their children simply to get their service needs met.”
The reports note that “referral to CRSA often implies a breakdown or a gap somewhere in the state service system.” CRSA cases increased from 355 in 2009 to 374 in 2010, with about half of cases from both years coming from families seeking residential care for a child with severe emotional disturbances or behavioral disorders. Of CRSA’s 355 cases in 2009, 32 came from Sangamon County.
John Schornagel, executive director of CRSA, which is based in Springfield, says custody relinquishment cases are the ones that “fall through the cracks” between the services offered by the half-dozen child-serving state agencies, including those that provide post-adoption services.
“I wish lockouts didn’t happen,” Schornagel says. “As a group of agencies and as a state, we need to find a solution to custody relinquishment. Certainly, DCFS has a good clinical division, and they’re capable of handling adopted kids who are at risk for adoption disruption. But for parents to have to go through the living hell of abandoning their kids to the system simply to get their mental health needs met is just the wrong way to go. There must be a better way.”
Schornagel says that of the more than 10,000 cases CRSA has handled in its 26-year existence, only 44 have required the CRSA board to step in and issue non-binding recommendations to resolve a conflict between state agencies and adoptive parents seeking services. Most cases get resolved before they get to the psychiatric lockout stage, Schornagel says, adding that many conflicts can be resolved if parents contact his agency for help securing services before a psychiatric lockout ever becomes an option.
CRSA reports identify other issues that hinder families’ efforts to obtain state services for mentally ill or emotionally disturbed children, including a lack of services available in a geographic area, state agencies deflecting clients to other agencies, ever-changing diagnostic criteria that require constant changes to services and programs, and the inability of schools to pay for appropriate educational plans for children with special needs.
Schornagel says the custody relinquishment problem is largely the result of changes made to DCFS in the 1990s because of a federal court order that required DCFS to put foster children into permanent homes within two years of entering the foster care system. He says “disrupting adoptions” will continue as long as there is such a short time frame for getting kids into permanent homes, combined with parents who “aren’t fully prepared and trained for the clinical kinds of challenges they’re going to face” when adopting.
Kendall Marlowe, spokesman for the Illinois Department of Children and Family Services, says the majority of adoptions do not result in custody relinquishment. He notes that Illinois had nearly 52,000 children in its foster care system in 1997, but that number has been reduced to fewer than 17,000 currently, mainly due to increased efforts to place foster children into permanent adoptive homes. About 26,800 children in Illinois receive a monthly adoption subsidy from the state, which Marlowe says is probably the best available estimate of currently adopted kids in Illinois – excluding adoptions done through private agencies.
About 99 percent of adoptions remain stable after two years, with 95 percent remaining stable after five years, according to a DCFS report.
Speaking generally and not about any specific case, Marlowe says long-term residential treatment like that sought by the Buschs is usually reserved for only the most mentally ill children. DCFS received 75 requests for residential placements in 2009, he says, and only seven of those cases received approval from DCFS director Erwin McEwen.
Many of the problems exhibited by adopted kids are common to all kids, Marlowe notes.
“Adoptive families are not the only families that struggle when kids move into adolescence, and many of the behaviors we associate with mental health conditions are very common among adolescents, including issues of sexuality, identity and attachment,” Marlowe says. “It can be too easy at times to perceive an adolescent’s struggle with maturity to be indicative of mental health conditions. Often, even when elements of mental health conditions are present, the more effective solution is therapy and intervention which involves the entire family. … Families often don’t want to hear that the entire family needs to be a part of the solution.”
Addressing the charge of neglect that often follows a psychiatric lockout, Marlowe says DCFS procedures call for an automatic neglect charge after any lockout, but the charge is usually only upheld if “the family is not engaged in coming up with a solution” for the child to return.
Schornagel says the proactive solution to custody relinquishment would be better community-based support services like intensive therapy and counseling in a child’s own community. Community-based services keep children in a familiar environment – usually their own home – while costing the state less money than residential treatment and pre-empting many of the problems that lead to psychiatric lockouts.
While many state agencies are working to establish more community-based services, Schornagel says that process requires diverting money away from things like residential care, which deals with kids who are already in crisis.
“My perception, from where I sit, is that community-based services aren’t available in the quantity or the quality that are necessary to maintain a lot of these kids, and that’s why it all breaks down,” Schornagel says. “All of the agencies that I’ve worked with have been, over the years, trying to back away from residential placement and take some of the money they were spending on residential care and redirect that to community-based programs. It’s a slow process of moving the money from the back end to the front end, and I think we’re in the middle of that.”
Marlowe says more community-based services are a big part of the solution, but families must also be prepared for the challenges they will face when adopting.
“All of us in the field believe that if we build a stronger safety net, we will be seeing fewer family crises,” Marlowe says. “The system as a whole is trying to move from a mode of reacting to crisis to a more preventative approach. But not every family’s problems can be solved by Dr. Phil in 60 minutes like on Oprah. Growing into a mature, healthy adult is a process that requires support from family at every turn.”
Too little, too late
But for families already in crisis, it’s too late to build a stronger safety net. In 1998, James and Toni Hoy of Ingleside, Ill., adopted a two-year-old son named Daniel. He displayed developmental delays, had been abused by his biological parents, and had been born under the influence of drugs and alcohol. As Daniel grew older, he began to display violent and aggressive behavior, which became dangerous enough that Toni Hoy says she didn’t feel safe in her own home.
The Hoys tried several methods of therapy and counseling for Daniel, but nothing seemed to work. The final straw was when Daniel, then 13, pulled a knife on one of the Hoys’ other children and threw another child down some stairs.
In 2007, they approached the Department of Human Services (DHS) and the Department of Healthcare and Family Services (HFS) about paying for $180,000-per-year residential treatment the family could not afford. The state declined to pay.
Denied funding for treatment they felt Daniel truly needed, the Hoys chose not to pick him up from the psychiatric hospital. Like the Buschs, they faced a charge of neglect for their psychiatric lockout, and their son became a ward of the state, which eventually placed him in a residential treatment facility.
The Hoys eventually got the neglect charge dropped, but it remained in the State Central Registry of abuse and neglect findings. They sued DHS and HFS to obtain funding for Daniel’s residential care, settling their case in July 2011 with an agreement that the agencies would pay for Daniel’s treatment while not admitting any fault. The Hoys also regained custody of Daniel, who is now 16 and was recently transferred from residential care to a juvenile detention center for assaulting a teacher and damaging a car.
While the Hoy case doesn’t set a precedent for other cases because it was settled before a court ruling, Toni Hoy says she has advised several other families in similar situations, and their case may serve as a catalyst for an upcoming class-action lawsuit.
The Collins Law Firm in Naperville, which represented the Hoys in their case, is examining similar cases to construct a class-action suit that could force changes in how the state handles psychiatric lockouts, custody relinquishment and residential care. Attorney Aaron Rapier at Collins says that suit is still in the planning stages and will not be pursued until later, to avoid jeopardizing the Hoys’ settlement.
In the meantime, John Schornagel at CRSA says the state’s financial woes limit the speed at which agencies can move from reacting to crises toward preventing them.
“State agencies have all been cut back on a variety of services – administration and direct services – and a lot of the nonprofits that do the heavy lifting are in trouble because the state isn’t paying their bills in some instances and they’re cutting back on services they provide to the community,” he says. “It makes being proactive more and more difficult. … I don’t think there’s any bad guys here. The agencies are doing what they can to do a better job with a very, very challenging population. I think they’re beginning to win the war, but there’s always casualties.”
Source article http://www.illinoistimes.com/Springfield/article-8964-when-adoption-goes-wrong.html
I-Team: Troubled Foster Kids Exposed to Powerful Drugs
Posted: Aug 10, 2011 3:16 PM CDT
Updated: Aug 11, 2011 9:24 AM CDT
By Colleen McCarty, Investigative Reporter
By Kyle Zuelke, Photojournalist
By Alex Brauer, Photojournalist
Click here to watch a video that goes with this article.
LAS VEGAS -- The use of powerful mood-altering drugs for mental health treatment is on the rise among kids in the care of Nevada's child welfare system. It's a trend the I-Team first examined back in 2009.
Despite assurances from both state and local officials progress has been painfully and perhaps dangerously slow. The data the I-Team received from both the state and the county is such a mess it's hard to say exactly how much the use of psychotropic medications among kids in care has increased.
Numbers from the state and the county -- regarding the same children -- doesn't match. In addition, figures provided to the I-Team in 2009 are somehow different today.
What is clear is that nearly 30 percent of kids in the system are taking at least one of these medications and the state confirms an increase last year. At the same time both agencies were supposed to be fixing the problem.
"These are the very first kids that were place were placed with us," said Jill Fox, a former foster mom who has taken in some 50 children. While most returned to their birth parents, five did not. Eleven-year-old Brooklyn, 9-year-old Sondra, 6–year-old Jenna, 3-year-old Jackson, and 2-year-old Cooper stayed with Fox.
"With children who've been through the trauma, whether it's neglect or abuse or the trauma of instability in their lives, or the drug and alcohol exposure in utero, things go well for a while and then it goes downhill for a while but we always seem to make it back up the hill," said Fox.
It's a climb that -- for some children in foster care -- involves the use of psychotropic medications. These are powerful mood-altering drugs that can come with severe side effects. The drugs are prescribed to kids as young as three-years old.
"Legitimately there are children whose behaviors are such that we need to medicate to get control of the behaviors, to get some stability, so that they can digest the counseling, they can digest the love and the support, but at what point is somebody going to start taking them off?" Fox said.
According to state Medicaid statistics, nearly 30 percent of kids in the child welfare and juvenile justice systems are on at least one psychotropic medication. That's up from two years ago. Despite both Clark County policy and state law drafted at the same time to reduce the numbers.
"Am I disappointed by the slow roll out on this policy? Yes," said Mike Willden who is the head of the Nevada Department of Health and Human Services which oversees the state's child welfare system.
"What is the real issue is that children are being overmedicated. Their health is at risk, those kinds of issues. That's the real issue, not whether or not we have the right form or we don't have the right form or something like that. You want to ensure that prescribers are accurately addressing a child's welfare needs," said Willden.
Willden tells the I-Team, despite the two-year delay, both Reno and the rurals have implemented state policy requiring a child's parent or legal guardian, or in their absence, a court consent, to the use of psychotropic medications.
Clark County however -- to Willden's frustration -- has yet to comply.
"I could make excuses for them, I'm not going to. It should've been straightened out a long time ago, even at the state level, we should've moved quicker," he said.
The county declined the I-Team's request for an interview yet earlier this year Tom Morton, the former Director of Clark County Family Services offered this explanation to lawmakers.
"We have been unable to implement our version of the policy because we don't have funds for a psychiatric consultant who can review the medication prescribed by the prescribing psychiatrist or physician."
In a written statement, the county insists it is now working to meet the requirements mandated by both the 2009 and 2011 legislatures to improve the management of psychotropic medications.
Read Clark County's Statement
Until then, moms like Fox, will worry about the little kids on big drugs who depend on the system to keep them safe.
"It needs to be a front burner issue," said Fox.
Clark County has submitted an implementation plan. Director Willden tells the I-Team he's given the county 90 days to come into compliance.
If there is a silver lining, psychotropic drug use among kids age 5 and under is on the decline due in part to additional oversight from Medicaid. Willden says that same oversight will apply to all age groups in the near future.
Source Article http://www.8newsnow.com/story/15245079/i-team
Updated: Aug 11, 2011 9:24 AM CDT
By Colleen McCarty, Investigative Reporter
By Kyle Zuelke, Photojournalist
By Alex Brauer, Photojournalist
Click here to watch a video that goes with this article.
LAS VEGAS -- The use of powerful mood-altering drugs for mental health treatment is on the rise among kids in the care of Nevada's child welfare system. It's a trend the I-Team first examined back in 2009.
Despite assurances from both state and local officials progress has been painfully and perhaps dangerously slow. The data the I-Team received from both the state and the county is such a mess it's hard to say exactly how much the use of psychotropic medications among kids in care has increased.
Numbers from the state and the county -- regarding the same children -- doesn't match. In addition, figures provided to the I-Team in 2009 are somehow different today.
What is clear is that nearly 30 percent of kids in the system are taking at least one of these medications and the state confirms an increase last year. At the same time both agencies were supposed to be fixing the problem.
"These are the very first kids that were place were placed with us," said Jill Fox, a former foster mom who has taken in some 50 children. While most returned to their birth parents, five did not. Eleven-year-old Brooklyn, 9-year-old Sondra, 6–year-old Jenna, 3-year-old Jackson, and 2-year-old Cooper stayed with Fox.
"With children who've been through the trauma, whether it's neglect or abuse or the trauma of instability in their lives, or the drug and alcohol exposure in utero, things go well for a while and then it goes downhill for a while but we always seem to make it back up the hill," said Fox.
It's a climb that -- for some children in foster care -- involves the use of psychotropic medications. These are powerful mood-altering drugs that can come with severe side effects. The drugs are prescribed to kids as young as three-years old.
"Legitimately there are children whose behaviors are such that we need to medicate to get control of the behaviors, to get some stability, so that they can digest the counseling, they can digest the love and the support, but at what point is somebody going to start taking them off?" Fox said.
According to state Medicaid statistics, nearly 30 percent of kids in the child welfare and juvenile justice systems are on at least one psychotropic medication. That's up from two years ago. Despite both Clark County policy and state law drafted at the same time to reduce the numbers.
"Am I disappointed by the slow roll out on this policy? Yes," said Mike Willden who is the head of the Nevada Department of Health and Human Services which oversees the state's child welfare system.
"What is the real issue is that children are being overmedicated. Their health is at risk, those kinds of issues. That's the real issue, not whether or not we have the right form or we don't have the right form or something like that. You want to ensure that prescribers are accurately addressing a child's welfare needs," said Willden.
Willden tells the I-Team, despite the two-year delay, both Reno and the rurals have implemented state policy requiring a child's parent or legal guardian, or in their absence, a court consent, to the use of psychotropic medications.
Clark County however -- to Willden's frustration -- has yet to comply.
"I could make excuses for them, I'm not going to. It should've been straightened out a long time ago, even at the state level, we should've moved quicker," he said.
The county declined the I-Team's request for an interview yet earlier this year Tom Morton, the former Director of Clark County Family Services offered this explanation to lawmakers.
"We have been unable to implement our version of the policy because we don't have funds for a psychiatric consultant who can review the medication prescribed by the prescribing psychiatrist or physician."
In a written statement, the county insists it is now working to meet the requirements mandated by both the 2009 and 2011 legislatures to improve the management of psychotropic medications.
Until then, moms like Fox, will worry about the little kids on big drugs who depend on the system to keep them safe.
"It needs to be a front burner issue," said Fox.
Clark County has submitted an implementation plan. Director Willden tells the I-Team he's given the county 90 days to come into compliance.
If there is a silver lining, psychotropic drug use among kids age 5 and under is on the decline due in part to additional oversight from Medicaid. Willden says that same oversight will apply to all age groups in the near future.
Source Article http://www.8newsnow.com/story/15245079/i-team
Wednesday, August 10, 2011
DHS Releases Info On Serenity Deal's Child Abuse Death
Tina McGarry Reporting
KFOR-TV
6:17 p.m. CDT, August 10, 2011
OKLAHOMA CITY -- A 5-year-old girl is dead and her father is in jail charged with the killing. Serenity Deal was in the state's custody, but living with her father on a trial basis when she was beaten to death.
Sean Brooks sits in jail charged with first-degree murder.
He has pleaded "not guilty."
Oklahoma House Speaker Kris Steele (R- Shawnee), says the Oklahoma Department of Human Services failed the little girl by leaving her in a risky environment.
DHS also admits procedures were not followed.
In a report released by DHS Wednesday, we learned DHS was called in to investigate on four different occasions, dating back to June 2009.
The first two investigations centered around Serenity's mom, Samantha Deal, who went to prison last month after being convicted of lewd or indecent acts with a child.
Investigations three and four charged Serenity's father, Sean Brooks, with child abuse.
After months of investigating, DHS found the charges unsubstantiated; a move now being questioned.
"But there's also a checks and balances to our system," DHS spokeswoman Sheree Powell said. "There's the court procedures, there's the child's attorney involved, a D.A. and a judge. Were they given complete and accurate information? Did they ask the appropriate questions that should've been asked in court? That's the checks and balanaces to our system."
Checks and balances that failed a little girl.
May 11, 2011, three weeks before her death, Serenity was placed with her father in a trial reunification.
"Our agency takes any threat of harm to children seriously," Powell said. "We have policies, training and procedures in place to keep children safe. Those were not followed and employees will be held accountable for not following policy."
Following Serenity's death in June, DHS suspended with pay four case workers.
Weeks later, one committed suicide.
After that another resigned.
Two remain on paid suspesion.
Sean Brooks is scheduled to go to court in October for a preliminary hearing.
Source: http://www.kfor.com/news/local/kfor-dhs-releases-report-child-abuse-death-20110810,0,1439465.story
KFOR-TV
6:17 p.m. CDT, August 10, 2011
OKLAHOMA CITY -- A 5-year-old girl is dead and her father is in jail charged with the killing. Serenity Deal was in the state's custody, but living with her father on a trial basis when she was beaten to death.
Sean Brooks sits in jail charged with first-degree murder.
He has pleaded "not guilty."
Oklahoma House Speaker Kris Steele (R- Shawnee), says the Oklahoma Department of Human Services failed the little girl by leaving her in a risky environment.
DHS also admits procedures were not followed.
In a report released by DHS Wednesday, we learned DHS was called in to investigate on four different occasions, dating back to June 2009.
The first two investigations centered around Serenity's mom, Samantha Deal, who went to prison last month after being convicted of lewd or indecent acts with a child.
Investigations three and four charged Serenity's father, Sean Brooks, with child abuse.
After months of investigating, DHS found the charges unsubstantiated; a move now being questioned.
"But there's also a checks and balances to our system," DHS spokeswoman Sheree Powell said. "There's the court procedures, there's the child's attorney involved, a D.A. and a judge. Were they given complete and accurate information? Did they ask the appropriate questions that should've been asked in court? That's the checks and balanaces to our system."
Checks and balances that failed a little girl.
May 11, 2011, three weeks before her death, Serenity was placed with her father in a trial reunification.
"Our agency takes any threat of harm to children seriously," Powell said. "We have policies, training and procedures in place to keep children safe. Those were not followed and employees will be held accountable for not following policy."
Following Serenity's death in June, DHS suspended with pay four case workers.
Weeks later, one committed suicide.
After that another resigned.
Two remain on paid suspesion.
Sean Brooks is scheduled to go to court in October for a preliminary hearing.
Source: http://www.kfor.com/news/local/kfor-dhs-releases-report-child-abuse-death-20110810,0,1439465.story
Tuesday, August 9, 2011
Little to No Trust for Guardian Ad Litems and Attorneys For the Children
We have come to the conclusion through our own experiences, case histories of other people going through the corrupt CPS circus and other reports that anyone who is going through a CPS A&N case should be cautious in regards to any guadian ad litem or child's attorney who has been appointed by the judge in your case.
On the surface, the idea of someone representing your child in a CPS case sounds good. You may even get a false sense of security that they will do the right thing by your child. Don't be fooled, in most every instance, they are in collusion with CPS.
They are a part of the scheme to take children. We have seen time and time again where the guardian ad litem or child's attorney is not only friends with the judge and some of the CPS workers but they also belong to the same "community" organizations and sometimes, they even donate money, services or their time to foster and adoption agencies. That should never be and it is a direct conflict of interest but that is how it often works.
These guardian ad litems or child's attorney spends very little time with the child to even know what would be in the child's best interest. They don't know the child at all. They know very little about anything except what they read in the reports they get from CPS. Can you say - biased reports?
The definition of a guardian ad litem - might be call the child's attorney because they are lawyers in some cases:
A person appointed only for the purposes of prosecuting or defending an action on behalf of another such as a child or mentally-challenged person. Also called ad litem. This right is usually granted to the child’s attorney.
A few things about immunity for guradian ad litems and attorneys for children (borrowed from https://protectingourchildrenfrombeingsold.wordpress.com/tag/guardian-ad-litems-can-be-sued/) :
Guardian ad litems and Appointed Counsel are not protected by immunity. In Wiederholt v Fisher, 485 N.W. 2d 442, 169 Wis. 2d 524 (1992) “In child custody matter, guardian ad litem does not represent child per se; rather, guardian ad litem’s statutory duty is to represent concept of child’s best interest.” When those guardian ad litems don’t bother to meet the minium standards – they become subject to liabilty. (Collins v Tabet, 111 N.M. 391,806 P 2nd 40 (N.M. 1990)
In other words when a Guardian ad litem just goes through the motions and does not really work the case they can and should be held liable. Most Guardians don’t work for the child, they work for Child Protection Services.
According to Bonds, 64, N.M. at 345,328 P. 2nd at 599 the appointment as guardian ad litem of a minor child is in the postion for the highest trust and no attorney should ever blindly enter in an appearance as guardian ad litem and allow a matter to proceed without a full and complete investigation into the facts and law so that his clinets will be fairly and competently represented and their rights fully and adequately protected and preserved….
Bonds proposed that a guardian ad litem holds a position of the highest trust and suggest that he or she is a fiduciary. Judge Donnelly compares the position of Guardian ad litem to that of a general guardian or conservator and is subject to liability to their wards for the harm resulting from ordinary negligence in the discharge of their duties. They are actually charged with a higher standard of care than are other people involved.
In Downs v Sawtelle, 574,F 2d 1 ( 1st Cir.1978) a federal judge in the Court of Appeals ruled that immunity was inappropriate for guardians because they are considered private parties and they are not confronted with the pressures of office, the decision making of the threat of liability facing governors or high level public officials.
According to J.W.F. v Schoolcraft, 763 P.2nd 1217 (Utah, 1987) A guardian ad litems job is to put themselves in the shoes of the child and look at the factors as the child would if he or she were old enough and their judgment was mature enough to make a decision.
On the surface, the idea of someone representing your child in a CPS case sounds good. You may even get a false sense of security that they will do the right thing by your child. Don't be fooled, in most every instance, they are in collusion with CPS.
They are a part of the scheme to take children. We have seen time and time again where the guardian ad litem or child's attorney is not only friends with the judge and some of the CPS workers but they also belong to the same "community" organizations and sometimes, they even donate money, services or their time to foster and adoption agencies. That should never be and it is a direct conflict of interest but that is how it often works.
These guardian ad litems or child's attorney spends very little time with the child to even know what would be in the child's best interest. They don't know the child at all. They know very little about anything except what they read in the reports they get from CPS. Can you say - biased reports?
The definition of a guardian ad litem - might be call the child's attorney because they are lawyers in some cases:
A person appointed only for the purposes of prosecuting or defending an action on behalf of another such as a child or mentally-challenged person. Also called ad litem. This right is usually granted to the child’s attorney.
A few things about immunity for guradian ad litems and attorneys for children (borrowed from https://protectingourchildrenfrombeingsold.wordpress.com/tag/guardian-ad-litems-can-be-sued/) :
Guardian ad litems and Appointed Counsel are not protected by immunity. In Wiederholt v Fisher, 485 N.W. 2d 442, 169 Wis. 2d 524 (1992) “In child custody matter, guardian ad litem does not represent child per se; rather, guardian ad litem’s statutory duty is to represent concept of child’s best interest.” When those guardian ad litems don’t bother to meet the minium standards – they become subject to liabilty. (Collins v Tabet, 111 N.M. 391,806 P 2nd 40 (N.M. 1990)
In other words when a Guardian ad litem just goes through the motions and does not really work the case they can and should be held liable. Most Guardians don’t work for the child, they work for Child Protection Services.
According to Bonds, 64, N.M. at 345,328 P. 2nd at 599 the appointment as guardian ad litem of a minor child is in the postion for the highest trust and no attorney should ever blindly enter in an appearance as guardian ad litem and allow a matter to proceed without a full and complete investigation into the facts and law so that his clinets will be fairly and competently represented and their rights fully and adequately protected and preserved….
Bonds proposed that a guardian ad litem holds a position of the highest trust and suggest that he or she is a fiduciary. Judge Donnelly compares the position of Guardian ad litem to that of a general guardian or conservator and is subject to liability to their wards for the harm resulting from ordinary negligence in the discharge of their duties. They are actually charged with a higher standard of care than are other people involved.
In Downs v Sawtelle, 574,F 2d 1 ( 1st Cir.1978) a federal judge in the Court of Appeals ruled that immunity was inappropriate for guardians because they are considered private parties and they are not confronted with the pressures of office, the decision making of the threat of liability facing governors or high level public officials.
According to J.W.F. v Schoolcraft, 763 P.2nd 1217 (Utah, 1987) A guardian ad litems job is to put themselves in the shoes of the child and look at the factors as the child would if he or she were old enough and their judgment was mature enough to make a decision.
Maine Couple Seeks Answers from DHHS After Losing Custody of Son
From MPN 08/08/2011 Reported By: Jay Field
Two Bangor lawyers are calling for more openness in the child protective proceedings run by the Maine Department of Health and Human Services. The push for more transparency stems from a case in which a client of theirs---a woman struggling with severe mental illness---lost custody of her son.
In 2002, Eleanor Handler's life took a dark turn. She became severely depressed and entered a clinic in Boston to get treatment. Two years later, her illness flared again and she went back into the hospital. After one more hospitalization, in 2005, the Maine Department of Health and Human Services moved to take away her son on grounds that Handler was unwell and incompetent.
She got notice of what's called a jeporady hearing, where the state gathers information about whether a child is at risk in their parents custody. Handler, who was still in throes of mental illness, was told by state officials that she could waive her right to the hearing.
"By agreeing to a jeopardy order, you're agreeing that your child is in jeopardy if the child is with you or your husband," says Joseph Baldacci, one of Handler's lawyers. "She consented to it, despite the fact that it's our opinion that she lacked the mental capacity to provide a knowing, intelligent and voluntary waiver."
Waiving the right to this kind of hearing has serious consequences. The information that's gathered can be used against you down the line when a final decision is made. Handler eventually lost custody of her son David.
Then, the family's ordeal got even worse, prompting the Handlers to post a video on the internet.
"David, I'm your mom Ellie. David, I'm your dad Russ. David is, David is, David is, David is the very best. Yes, yes, yes. We love you, we miss you, we're looking for you every day," Eleanor and Russ Handler say in the video, sitting on a piano bench holding photos of their now 11-year-old son. finddavidstuarthandler.com
State and federal rules require that kids first be placed with relatives, if reunification with a parent isn't possible. David Handler's grandmother and some first cousins all tried, unsuccessfully, to get custody of the boy. Instead, David Handler was placed in foster care.
"We sought an ombudsmen's report that the Handler's themselves had requested in 2009, about whether the Department had violated federal and state policies concerning placing their child with kin," Baldacci says.
Baldacci says Eleanor Handler is doing better now. She and her husband want to find their son. But recently, the Handler's got some disturbing news: The U.S. Social Security Administration was trying to locate David Handler to pay out some money the boy was owed by the federal government. But the state of Maine told federal officials it had no record of the boy being in the foster care system.
"There are studies, empirical studies, that show, that the mental and emotional well being of a child is improved, when he is preserved some family connections, has some ties to the family that raised him," Baldacci says.
The state has refused to provide a copy of the ombudsmen's report to Baldacci. But the Handler's lawyer has submitted a Freedom of Access request to try to get a copy of the records.
A spokesperson for the Department of Health and Human Services would not agree to an interview about the Handler case, citing client confidentiality rules.
Source: http://www.mpbn.net/Home/tabid/36/ctl/ViewItem/mid/3478/ItemId/17532/Default.aspx
Two Bangor lawyers are calling for more openness in the child protective proceedings run by the Maine Department of Health and Human Services. The push for more transparency stems from a case in which a client of theirs---a woman struggling with severe mental illness---lost custody of her son.
In 2002, Eleanor Handler's life took a dark turn. She became severely depressed and entered a clinic in Boston to get treatment. Two years later, her illness flared again and she went back into the hospital. After one more hospitalization, in 2005, the Maine Department of Health and Human Services moved to take away her son on grounds that Handler was unwell and incompetent.
She got notice of what's called a jeporady hearing, where the state gathers information about whether a child is at risk in their parents custody. Handler, who was still in throes of mental illness, was told by state officials that she could waive her right to the hearing.
"By agreeing to a jeopardy order, you're agreeing that your child is in jeopardy if the child is with you or your husband," says Joseph Baldacci, one of Handler's lawyers. "She consented to it, despite the fact that it's our opinion that she lacked the mental capacity to provide a knowing, intelligent and voluntary waiver."
Waiving the right to this kind of hearing has serious consequences. The information that's gathered can be used against you down the line when a final decision is made. Handler eventually lost custody of her son David.
Then, the family's ordeal got even worse, prompting the Handlers to post a video on the internet.
"David, I'm your mom Ellie. David, I'm your dad Russ. David is, David is, David is, David is the very best. Yes, yes, yes. We love you, we miss you, we're looking for you every day," Eleanor and Russ Handler say in the video, sitting on a piano bench holding photos of their now 11-year-old son. finddavidstuarthandler.com
State and federal rules require that kids first be placed with relatives, if reunification with a parent isn't possible. David Handler's grandmother and some first cousins all tried, unsuccessfully, to get custody of the boy. Instead, David Handler was placed in foster care.
"We sought an ombudsmen's report that the Handler's themselves had requested in 2009, about whether the Department had violated federal and state policies concerning placing their child with kin," Baldacci says.
Baldacci says Eleanor Handler is doing better now. She and her husband want to find their son. But recently, the Handler's got some disturbing news: The U.S. Social Security Administration was trying to locate David Handler to pay out some money the boy was owed by the federal government. But the state of Maine told federal officials it had no record of the boy being in the foster care system.
"There are studies, empirical studies, that show, that the mental and emotional well being of a child is improved, when he is preserved some family connections, has some ties to the family that raised him," Baldacci says.
The state has refused to provide a copy of the ombudsmen's report to Baldacci. But the Handler's lawyer has submitted a Freedom of Access request to try to get a copy of the records.
A spokesperson for the Department of Health and Human Services would not agree to an interview about the Handler case, citing client confidentiality rules.
Source: http://www.mpbn.net/Home/tabid/36/ctl/ViewItem/mid/3478/ItemId/17532/Default.aspx
Beware the Child Protectors by William Norman Grigg
When Salt Lake City police and caseworkers from the state Division of Child and Family Services (DCFS) surrounded the home of Janet Adolf on June 4th, they were not responding to an accusation of child abuse or neglect. The armed raid had been staged to seize Mrs. Adolf’s eight-year-old daughter, who wasn’t at home — although her three terrified siblings were. According to Mrs. Adolf’s attorney Michael Humiston, the order had been issued because he had advised caseworkers of his intention to monitor their visits to Mrs. Adolf’s home in order "to protect Janet’s rights."
As the case is described by Humiston, Mrs. Adolf’s problems began when her eight-year-old daughter was "intimidated" into making allegations of sexual abuse. Although the family’s original caseworker, Kirk Soderquist, "tried to tell the court that there was no basis to the allegations," the youngster was removed from her home and temporarily placed in foster care; Soderquist was removed from the case and replaced with another caseworker.
"What Rights?"
After a month in a foster home, the child was returned to Mrs. Adolf and a second caseworker was assigned to make regular home visits. Humiston left a message with DCFS announcing his intention to "coordinate" the visits, so that he could be present to protect "the family’s Fourth and Fifth Amendment rights." According to Humiston, when this was explained to Judge Sharon McCully of Utah’s Third District Juvenile Court — who issued the order that led to the June 4th raid — she exclaimed, "What rights?"
Humiston, an attorney from Heber City, Utah, contends that the State of Utah has conducted "a systematic reign of terror." "By law, parents can be anonymously accused, and never get to face their accusers," observes Humiston. "There’s no right to a jury, no right to remain silent, and no that the parents are unfit."
In early March, Humiston filed a $500 million class-action suit against Utah Attorney General Janet Graham and several other state officials on behalf of five families whose children had been seized by the DCFS.
According to Humiston, the amount of damages sought in the lawsuit is equivalent to the amount of child welfare subsidies received by the state of Utah since 1994.
The situation described by Humiston is by no means unique to Utah. Across the United States, thousands of families have been ripped apart by citizen, teacher, or acquaintance — they enjoy none of the rights and immunities associated with due process. Acting in the "best interests of the child," social workers can terminate parental rights on a whim, and order police agencies to enforce those whimsical decisions at gunpoint. create a compulsory "home visitation" system, through which agents of the state will be able to subject parents to regular scrutiny — and determine for nearly a quarter of a century to create a national home visitation network. Should they succeed, armed raids similar to the one mounted against the home of Janet Adolf may become quite common.
"Village" Takeover
The "early childhood intervention program" — the Pre-natal and Early Infancy Project (PEIP). Christopher Caldwell of the neo-conservative Weekly Standard, who covered the First Lady’s Senate campaign swing, explained that PEIP is a child abuse program that "involves sending social workers on regularly scheduled pre-emptive visits into the homes of children whose parents are deemed to put them ‘at risk’ of wrong parenting."
In her ghostwritten manifesto It Takes a Village, Mrs. Clinton gushes, "I cannot say enough in support of home visits" by government social workers. After all, she declares, "Keeping children healthy in body and mind is the family’s and the village’s first obligation," and in those "terrible times when authority we vest in government...." allowed abuse to occur," Mrs. Clinton contends that "social workers and courts should make decisions about terminating parental rights of abusive parents more quickly, rather than removing and returning abused children time and again." Government-authorized "home visitors" of the type extolled by the First Lady are authorized to pass judgment on the "adequacy" of parents, and to summon child protection workers should it be decided that the "village" must now "act in place" of inadequate parents.
Like most advocates of home visitation programs, Mrs. Clinton invokes the tragedy of child abuse to justify state intervention within the home. However, as the Physicians Resource Council (PRC), an affiliate of the Alabama Family Alliance, documents in a new study entitled The Parent Trainers, "most advocates of home visitation … clearly state that their goal is to institutionalize home visitation services for all new parents."
Deborah Daro, a former research director for Prevent Child Abuse America (PCAA), candidly explained that the objective "is to bring home visitation services to all new parents." The U.S. Advisory Board on Child Abuse and Neglect, which was empanelled by George Bush in 1991, reached the same conclusion, calling for "the sequential implementation of a universal voluntary neo-natal home visitation system" (which by strict definition could not be at once "universal" and "voluntary").
Home visitors — who are also called Family Support Workers (FSW) — serve three missions, according to the PCAA. First, "being a teacher is central" to the FSW’s mission. Second, "the home visitor is also a friend, adviser, and advocate for parents," and is responsible for helping forge links between the family and local "community service" gencies. "Finally," states the PCAA, "the home visitor is a monitor" who is expected to consultation sessions with CPS to review ‘high risk’ cases" and to take "appropriate actions … when abuse or neglect or imminent harm are suspected." One FSW explains that "because so many of our families are at risk of child abuse and neglect, our watchful eye can see the potential for danger before it becomes a real problem and do something about it."
In other words, home visitors/FSWs are the designated "watchful eyes" of the state within the home, empowered to "teach" parents, shepherd them into the suffocating embrace of the welfare state, and arrange for the seizure of children from parents deemed unsuitable. Furthermore, since enrollment in most home visitation programs begins with the birth of the child (and in some, enrollment begins before birth), the clear purpose is to make the state, by way of the home visitor, the custodian of first resort for the children involved. "We must remove the children from the crude influence of families," Soviet Communist Party educators were instructed at a conference in 1918.
"We must take them over and, to speak frankly, nationalize them." Dr. C. Henry Kempe, the most influential American advocate of home visitation programs, subscribed wholeheartedly to that concept.
Dr. Kempe was co-author of the ground-breaking 1968 book The Battered Child, which inaugurated the contemporary "war on child abuse."
Kempe’s work was cited as authoritative by the U.S. Advisory Board on Child Abuse and Neglect, and by the American Academy of Pediatrics when it recommended in 1998 that pediatricians should "advocate at the local, state, and national levels for the funding … of quality home-visitation programs." Not surprisingly, Kempe also earned favorable mention in Hillary Clinton’s It Takes a Village. What makes Kempe’s influence troubling is the fact that he was an unabashed proponent of the totalitarian view that children are "state property," and that home visitation should be "a compulsory, universal service" imposed on American families. In a June 9, 1975 lecture to the Ambulatory Pediatric Association in Toronto, Dr. Hillary Clinton in her law journal writings and in It Takes a Village.
The the common-law maxim, "A man’s home is his castle," Kempe insisted that "all too often the child is a prisoner in its dungeon. It is a dungeon of constant anger, dislike, aggression, or even hatred."
While most people would acknowledge that such dismal, tragic circumstances do characterize the plight of a relatively small number of children in our country, Kempe insisted that the conditions he described were normative rather than exceptional, and thus justified a "limited intrusion into family privacy by society" in the form of "health visitors." Such visitors would be regarded as "fully capable of determining which children are at risk, whether they are thriving adequately or not doing well," and help to "form a bridge between these families and the health care system."
Regular the teacher, the school nurse, or the school nurse practitioner.
Kempe emphasized that the regime he described would not be limited to troubled families; rather, participation in the home "health visitor" program would be compulsory for all, "similar to the concept of compulsory, universal schooling": "It seems incomprehensible that we have compulsory education, with truancy laws to enforce attendance and, I might add, imprisonment of parents who deny their child an education, and yet we do not establish similar safeguards for the child’s very survival between birth and age 6."
Lethal Guardians acting as officers of the state, which is, after all, the most powerful instrument of organized coercion and lethal violence. Once again, Kempe’s priorities are in harmony with instructions given in 1918 to Soviet educators, who were told: "From the first days of their lives [Soviet children] will be under the healthy influence of Communist children’s nurseries and schools. There they will grow up to be real Communists."
Kempe also emphasized that a stealthy, incremental approach would be necessary in order to construct a nationwide home visitation system. The program could begin in "any state, or any of our 3,362 counties," he told his audience in Toronto. Furthermore, he admonished advocates to be flexible enough to adjust their proposals to meet local conditions. "If it should turn out that local or state health departments are not very interested or are unwilling to undertake the health visitor program, there may be other approaches for its implementation," he observed. Pointing out that the state of Michigan had "placed the charge on the [state] Department of Education to assure that everyone is ‘educable,’" Kempe explained that this mandate "gives the Department the right to provide screening procedures and comprehensive health care to make every child school-ready."
The Clinton Administration’s Goals 2000 — which was an outgrowth of a national education agenda created by the Bush Administration in 1989 — provides millions of dollars in federal subsidies for state early-intervention programs, all of which are justified by the supposed need to ensure that children arrive at the doorstep of government schools "ready to learn."
State Property
According to Kempe, "those of us who are qualified to assess and correct the problems that produce child abuse and ‘failure to thrive’ should have explicitly described the child as the property of the state.
During the 1992 presidential campaign, Hillary Clinton provoked widespread criticism for her suggestion that children should have the right to "divorce" their parents — but, once again, she was merely building upon Dr. Kempe’s work. "When marriages fail, we have an institution called divorce, but between parent and child, divorce is not yet socially sanctioned," Kempe commented during his 1975 lecture. For parents deemed these families," Kempe declared. "When that fails, legal termination of parental rights should be attempted."
From Kempe’s perspective, parents exercise authority over their children only by the grace of the state, and the state has the right to revoke parental authority at any time: "Where the state is supreme, the particular problem is easily managed; in a dictatorship each child belongs to the whether one of our cherished democratic freedoms is the right to maim our own children."
Kempe offered this paean to totalitarianism, the world had not yet beheld the horrifying spectacle of the state-run orphanages in Communist Romania, in which thousands of children lived and died in unimaginable filth and squalor. Nicolae Ceausescu, the Transylvanian despot who ruled that the individual Romanian child "is the socialist property of the whole society."
Communist China’s child care policies are also in harmony with Kempe’s vision of the child as "state property." A Chinese population control womb, murdered through infanticide, or confined in state-run orphanages.
Steven W. Mosher, one of the world’s leading experts on Red China’s "one-child" policy, describes that nation’s government-run orphanages as "killing fields." Human Rights Watch-Asia reported in 1989 that Chinese orphanages have a mortality rate of at least 72 percent, with medical neglect and malnutrition the leading causes of death. Most of the children consigned to this hell are girls; an account recently smuggled out of China described a case in which a starving girl child, desperately seeking surcease from starvation, attempted to eat the flesh from her own arm. child care regime.
Foot in the Door
Dr. Kempe was the founding director of the Kempe National Center for the Prevention and Treatment of Child Abuse and Neglect at the University of Colorado. Kempe’s successor, Dr. Richard Krugman, served as chairman of President Bush’s U.S. Advisory Board on Child Abuse and Neglect, which recommended "the sequential implementation of a universal voluntary" home visitation system.
In 1985, the state of Hawaii enacted the "Healthy Start" program, a home visitation program that identifies "at risk" families through screening at birth. Healthy Start literature acknowledges that the program "evolved from the work of the Kempe program in Denver."
maltreatment … or maternal life skills, mental health, social support, or substance abuse."
Healthy Start officials, according to the PRC report The Parent Trainers, are now "screening over 52 percent of all new births in the state and provid[ing] services to roughly 20 percent of all newborns and their families."
In 1992, Hawaii’s Kempe-inspired Healthy Start program was used as the template for the Healthy Families America (HFA) initiative, which was created by Prevent Child Abuse America (PCAA) in conjunction with the Freddie Mac Corporation and Ronald McDonald Charities. PCAA, it will be task force" promoting home visitation services under various program names. "In California," notes the PRC, "programs are called ‘Welcome Home Baby,’ Georgia’s program is known as ‘First Steps,’ Colorado’s ‘Bright Beginnings,’ Illinois’ ‘Good Beginnings,’ Massachusetts’ ‘Good Start,’ and Arkansas’ ‘New Beginnings’...."
To those state-level examples, a recent report published by the David and Lucille Packard Foundation (a major corporate supporter of home visitation programs) adds Missouri’s "Parents as Teachers" program; the "Nurse Home Visitation Program" — based on Elmira, New York’s PEIP program — which has been put in place in Memphis, Tennessee and Denver, Colorado, "and [is] now being replicated nationally"; Arkansas’ Home Instruction Program for Preschool Youngsters (HIPPY), "which seeks to prepare 3-year to 5-year-olds for kindergarten and first grade"; and the Comprehensive Child Development Program, "a five-year federal demonstration program that worked with poor families in 24 sites to promote malignant design of using home visitation programs as an incremental means of nationalizing children as "state property."
The PCAA reports that "Healthy Family" sites, under various names, are operating in 42 states and the District of Columbia. A recent survey by the organization found that one in five parents with children under the age of one received some type of home visitation service in 1997.
Furthermore, the organization’s effort to make home visitation universal received a tremendous boost in the federal budget for fiscal year 1999: The PCAA received $33 million through the Child Abuse Prevention and Treatment Act, and an additional $14 million for "research and data collection." The organization’s 42 state chapters also have access to Children’s Trust Funds, which are financed through surcharges on marriage licenses and birth certificates, fees for vanity license plates, and check-offs on individual state income tax returns.
In addition, the PCAA "was instrumental in the reauthorization of the Family Preservation and Support Services Program (renamed the Safe and Stable Families Program)," points out The Parent Trainers. Federal funding for that program, which totaled $275 million in fiscal year 1999, is projected to increase to $305 million by 2001 — and a large portion of that amount will be devoted to cultivating and expanding government home visitation efforts.
Testing for Child Abuse
In order to determine which newborn children are "at-risk" and thus qualify for home visitations, observes The Parent Trainers, state-based "Healthy Family" groups must "gain access to medical records of women who are pregnant or have just given birth. To complete this phase, HFA programs employ ‘Family Assessment Workers’ (FAWs) who will screen and assess mothers to determine their risk status." In some cases, an FAW "is designated as a temporary, volunteer employee of the hospital (when she is on hospital grounds) to allow her access to medical records. In other cases, a member of the hospital staff may agree to do the initial record screen and then make referrals to the FAW. Or, the FAW may not have access to medical records, but may be allowed to enter hospital rooms and administer ‘verbal screens’ by asking postpartum mothers directly to answer the questions on the 15-point initial screen."
The questions in the initial screening deal with the mother’s marital status and history, education, socio-economic status, family background, and Family Stress Checklist" (FSC) — ten open-ended, invasive questions presented to both parents. The FSC is supposedly designed to determine a parent’s propensity toward child abuse. On each question the parent receives a score from 0 (no risk) to 10 (highest risk). According to Hawaii’s high risk category, eligible for Healthy Start home visitor services." However, as The Parent Trainers points out, "A score of 25 … is fairly standard risk and in need of home visitation services."
Among typical FSC questions can be found inquiries regarding "harsh punishment"; PCAA literature emphasizes that spanking is considered a form of abuse. Having been "suspected of abuse" is another risk factor for a parent, as is being "in the midst of multiple crises or stresses," having "unrealistic expectations of the child’s behavior," or perceiving a child’s behavior as "difficult or provocative." Clearly the FSC is designed to define most — if not all — parents as placing their children "at risk." This is to be expected, given that the objective of "Healthy Start" and its offspring is a universal system — based on voluntary enrollment if possible, but employing coercion if necessary.
The FAWs charged with conducting "screenings" and arranging for home visitations are generally volunteers who may have had only a few days of training. No specialized academic background is required to become a FAW; a high school diploma or its equivalent is sufficient. (One PCAA survey found that one-quarter of all FAWs had no college training.) FAWs are encouraged to lure parents into visitation programs by offering bottles, breast pumps, or other helpful gifts to parents as a pretext for a post-hospital visit. "Comments made at a recent HFA national conference indicate ‘creative outreach’ may also include sending flowers to the reluctant mother on Mother’s Day, or even sending flowers to the mother of the mother, if it appears she is the source of resistance," observes The Parent Trainers. "It may also include taking the reluctant mother out to the beauty parlor if this may gain her confidence and make her feel obligated to participate in the program."
To illustrate the success of such tactics, an Arizona program reported that "90 percent of mothers offered the program accept HFA services." Furthermore, PCAA urges FAWs to make "persistent outreach efforts" for several months, if necessary, until reluctant families "have explicitly of the service." Should Kempe’s vision of compulsory home visitation to protect children be consummated, it stands to reason that rebellious parents would be the first to have their children taken from them — as the case of Janet Adolf’s family in Salt Lake City would seem to illustrate.
Levels of Involvement
As is almost always the case with any grand, malevolent scheme, the Kempe-inspired home visitation campaign makes malicious use of the worthy motives of otherwise decent people. Diana Lightfoot, director of the Physician’s Research Council and co-author of The Parent Trainers, explained to The New American: "There are three levels at which the home visitation scheme is working. At the first, most immediate level, we have the social workers or FAWs themselves, who usually have no agenda beyond doing what they consider to be the right thing — fighting child abuse, helping children get a good start, helping parents who may be overwhelmed. And of course, these are all very commendable motives."
At the second, intermediate level, continued Lightfoot, "we have the state departments of social services and other government officials who know means they employ. For a lot of state officials, the chief motivation is money; there is a lot of taxpayer money being thrown at the states by the federal government for these programs. At the top level we have the ideologues — the Hillary Clinton, Janet Reno, and Donna Shalala types — who family."
Dr. Sam Watson, Lightfoot’s co-author, remarked to The New American that "Kempe, despite his reputation as a great humanitarian, praised country are the product of that same mindset as well. In some states, money from the state lottery is underwriting home visitation programs; in others it is money from the tobacco settlement. These sources of revenue have been a real windfall for advocates of home visitation."
"The seed of Kempe’s vision has been planted, it has been watered with taxpayer money," Lightfoot stated. "Whether it will grow to fruition depends upon the American public. It is vitally important that we educate families and parents about the dangers of home visitation programs, and the totalitarian nature of the vision behind those programs."
© Copyright 1999 American Opinion Publishing Incorporated
Source: http://jimcooper.biz/ptfw/resources/BewareTheChildProtectors.pdf
As the case is described by Humiston, Mrs. Adolf’s problems began when her eight-year-old daughter was "intimidated" into making allegations of sexual abuse. Although the family’s original caseworker, Kirk Soderquist, "tried to tell the court that there was no basis to the allegations," the youngster was removed from her home and temporarily placed in foster care; Soderquist was removed from the case and replaced with another caseworker.
"What Rights?"
After a month in a foster home, the child was returned to Mrs. Adolf and a second caseworker was assigned to make regular home visits. Humiston left a message with DCFS announcing his intention to "coordinate" the visits, so that he could be present to protect "the family’s Fourth and Fifth Amendment rights." According to Humiston, when this was explained to Judge Sharon McCully of Utah’s Third District Juvenile Court — who issued the order that led to the June 4th raid — she exclaimed, "What rights?"
Humiston, an attorney from Heber City, Utah, contends that the State of Utah has conducted "a systematic reign of terror." "By law, parents can be anonymously accused, and never get to face their accusers," observes Humiston. "There’s no right to a jury, no right to remain silent, and no that the parents are unfit."
In early March, Humiston filed a $500 million class-action suit against Utah Attorney General Janet Graham and several other state officials on behalf of five families whose children had been seized by the DCFS.
According to Humiston, the amount of damages sought in the lawsuit is equivalent to the amount of child welfare subsidies received by the state of Utah since 1994.
The situation described by Humiston is by no means unique to Utah. Across the United States, thousands of families have been ripped apart by citizen, teacher, or acquaintance — they enjoy none of the rights and immunities associated with due process. Acting in the "best interests of the child," social workers can terminate parental rights on a whim, and order police agencies to enforce those whimsical decisions at gunpoint. create a compulsory "home visitation" system, through which agents of the state will be able to subject parents to regular scrutiny — and determine for nearly a quarter of a century to create a national home visitation network. Should they succeed, armed raids similar to the one mounted against the home of Janet Adolf may become quite common.
"Village" Takeover
The "early childhood intervention program" — the Pre-natal and Early Infancy Project (PEIP). Christopher Caldwell of the neo-conservative Weekly Standard, who covered the First Lady’s Senate campaign swing, explained that PEIP is a child abuse program that "involves sending social workers on regularly scheduled pre-emptive visits into the homes of children whose parents are deemed to put them ‘at risk’ of wrong parenting."
In her ghostwritten manifesto It Takes a Village, Mrs. Clinton gushes, "I cannot say enough in support of home visits" by government social workers. After all, she declares, "Keeping children healthy in body and mind is the family’s and the village’s first obligation," and in those "terrible times when authority we vest in government...." allowed abuse to occur," Mrs. Clinton contends that "social workers and courts should make decisions about terminating parental rights of abusive parents more quickly, rather than removing and returning abused children time and again." Government-authorized "home visitors" of the type extolled by the First Lady are authorized to pass judgment on the "adequacy" of parents, and to summon child protection workers should it be decided that the "village" must now "act in place" of inadequate parents.
Like most advocates of home visitation programs, Mrs. Clinton invokes the tragedy of child abuse to justify state intervention within the home. However, as the Physicians Resource Council (PRC), an affiliate of the Alabama Family Alliance, documents in a new study entitled The Parent Trainers, "most advocates of home visitation … clearly state that their goal is to institutionalize home visitation services for all new parents."
Deborah Daro, a former research director for Prevent Child Abuse America (PCAA), candidly explained that the objective "is to bring home visitation services to all new parents." The U.S. Advisory Board on Child Abuse and Neglect, which was empanelled by George Bush in 1991, reached the same conclusion, calling for "the sequential implementation of a universal voluntary neo-natal home visitation system" (which by strict definition could not be at once "universal" and "voluntary").
Home visitors — who are also called Family Support Workers (FSW) — serve three missions, according to the PCAA. First, "being a teacher is central" to the FSW’s mission. Second, "the home visitor is also a friend, adviser, and advocate for parents," and is responsible for helping forge links between the family and local "community service" gencies. "Finally," states the PCAA, "the home visitor is a monitor" who is expected to consultation sessions with CPS to review ‘high risk’ cases" and to take "appropriate actions … when abuse or neglect or imminent harm are suspected." One FSW explains that "because so many of our families are at risk of child abuse and neglect, our watchful eye can see the potential for danger before it becomes a real problem and do something about it."
In other words, home visitors/FSWs are the designated "watchful eyes" of the state within the home, empowered to "teach" parents, shepherd them into the suffocating embrace of the welfare state, and arrange for the seizure of children from parents deemed unsuitable. Furthermore, since enrollment in most home visitation programs begins with the birth of the child (and in some, enrollment begins before birth), the clear purpose is to make the state, by way of the home visitor, the custodian of first resort for the children involved. "We must remove the children from the crude influence of families," Soviet Communist Party educators were instructed at a conference in 1918.
"We must take them over and, to speak frankly, nationalize them." Dr. C. Henry Kempe, the most influential American advocate of home visitation programs, subscribed wholeheartedly to that concept.
Dr. Kempe was co-author of the ground-breaking 1968 book The Battered Child, which inaugurated the contemporary "war on child abuse."
Kempe’s work was cited as authoritative by the U.S. Advisory Board on Child Abuse and Neglect, and by the American Academy of Pediatrics when it recommended in 1998 that pediatricians should "advocate at the local, state, and national levels for the funding … of quality home-visitation programs." Not surprisingly, Kempe also earned favorable mention in Hillary Clinton’s It Takes a Village. What makes Kempe’s influence troubling is the fact that he was an unabashed proponent of the totalitarian view that children are "state property," and that home visitation should be "a compulsory, universal service" imposed on American families. In a June 9, 1975 lecture to the Ambulatory Pediatric Association in Toronto, Dr. Hillary Clinton in her law journal writings and in It Takes a Village.
The the common-law maxim, "A man’s home is his castle," Kempe insisted that "all too often the child is a prisoner in its dungeon. It is a dungeon of constant anger, dislike, aggression, or even hatred."
While most people would acknowledge that such dismal, tragic circumstances do characterize the plight of a relatively small number of children in our country, Kempe insisted that the conditions he described were normative rather than exceptional, and thus justified a "limited intrusion into family privacy by society" in the form of "health visitors." Such visitors would be regarded as "fully capable of determining which children are at risk, whether they are thriving adequately or not doing well," and help to "form a bridge between these families and the health care system."
Regular the teacher, the school nurse, or the school nurse practitioner.
Kempe emphasized that the regime he described would not be limited to troubled families; rather, participation in the home "health visitor" program would be compulsory for all, "similar to the concept of compulsory, universal schooling": "It seems incomprehensible that we have compulsory education, with truancy laws to enforce attendance and, I might add, imprisonment of parents who deny their child an education, and yet we do not establish similar safeguards for the child’s very survival between birth and age 6."
Lethal Guardians acting as officers of the state, which is, after all, the most powerful instrument of organized coercion and lethal violence. Once again, Kempe’s priorities are in harmony with instructions given in 1918 to Soviet educators, who were told: "From the first days of their lives [Soviet children] will be under the healthy influence of Communist children’s nurseries and schools. There they will grow up to be real Communists."
Kempe also emphasized that a stealthy, incremental approach would be necessary in order to construct a nationwide home visitation system. The program could begin in "any state, or any of our 3,362 counties," he told his audience in Toronto. Furthermore, he admonished advocates to be flexible enough to adjust their proposals to meet local conditions. "If it should turn out that local or state health departments are not very interested or are unwilling to undertake the health visitor program, there may be other approaches for its implementation," he observed. Pointing out that the state of Michigan had "placed the charge on the [state] Department of Education to assure that everyone is ‘educable,’" Kempe explained that this mandate "gives the Department the right to provide screening procedures and comprehensive health care to make every child school-ready."
The Clinton Administration’s Goals 2000 — which was an outgrowth of a national education agenda created by the Bush Administration in 1989 — provides millions of dollars in federal subsidies for state early-intervention programs, all of which are justified by the supposed need to ensure that children arrive at the doorstep of government schools "ready to learn."
State Property
According to Kempe, "those of us who are qualified to assess and correct the problems that produce child abuse and ‘failure to thrive’ should have explicitly described the child as the property of the state.
During the 1992 presidential campaign, Hillary Clinton provoked widespread criticism for her suggestion that children should have the right to "divorce" their parents — but, once again, she was merely building upon Dr. Kempe’s work. "When marriages fail, we have an institution called divorce, but between parent and child, divorce is not yet socially sanctioned," Kempe commented during his 1975 lecture. For parents deemed these families," Kempe declared. "When that fails, legal termination of parental rights should be attempted."
From Kempe’s perspective, parents exercise authority over their children only by the grace of the state, and the state has the right to revoke parental authority at any time: "Where the state is supreme, the particular problem is easily managed; in a dictatorship each child belongs to the whether one of our cherished democratic freedoms is the right to maim our own children."
Kempe offered this paean to totalitarianism, the world had not yet beheld the horrifying spectacle of the state-run orphanages in Communist Romania, in which thousands of children lived and died in unimaginable filth and squalor. Nicolae Ceausescu, the Transylvanian despot who ruled that the individual Romanian child "is the socialist property of the whole society."
Communist China’s child care policies are also in harmony with Kempe’s vision of the child as "state property." A Chinese population control womb, murdered through infanticide, or confined in state-run orphanages.
Steven W. Mosher, one of the world’s leading experts on Red China’s "one-child" policy, describes that nation’s government-run orphanages as "killing fields." Human Rights Watch-Asia reported in 1989 that Chinese orphanages have a mortality rate of at least 72 percent, with medical neglect and malnutrition the leading causes of death. Most of the children consigned to this hell are girls; an account recently smuggled out of China described a case in which a starving girl child, desperately seeking surcease from starvation, attempted to eat the flesh from her own arm. child care regime.
Foot in the Door
Dr. Kempe was the founding director of the Kempe National Center for the Prevention and Treatment of Child Abuse and Neglect at the University of Colorado. Kempe’s successor, Dr. Richard Krugman, served as chairman of President Bush’s U.S. Advisory Board on Child Abuse and Neglect, which recommended "the sequential implementation of a universal voluntary" home visitation system.
In 1985, the state of Hawaii enacted the "Healthy Start" program, a home visitation program that identifies "at risk" families through screening at birth. Healthy Start literature acknowledges that the program "evolved from the work of the Kempe program in Denver."
maltreatment … or maternal life skills, mental health, social support, or substance abuse."
Healthy Start officials, according to the PRC report The Parent Trainers, are now "screening over 52 percent of all new births in the state and provid[ing] services to roughly 20 percent of all newborns and their families."
In 1992, Hawaii’s Kempe-inspired Healthy Start program was used as the template for the Healthy Families America (HFA) initiative, which was created by Prevent Child Abuse America (PCAA) in conjunction with the Freddie Mac Corporation and Ronald McDonald Charities. PCAA, it will be task force" promoting home visitation services under various program names. "In California," notes the PRC, "programs are called ‘Welcome Home Baby,’ Georgia’s program is known as ‘First Steps,’ Colorado’s ‘Bright Beginnings,’ Illinois’ ‘Good Beginnings,’ Massachusetts’ ‘Good Start,’ and Arkansas’ ‘New Beginnings’...."
To those state-level examples, a recent report published by the David and Lucille Packard Foundation (a major corporate supporter of home visitation programs) adds Missouri’s "Parents as Teachers" program; the "Nurse Home Visitation Program" — based on Elmira, New York’s PEIP program — which has been put in place in Memphis, Tennessee and Denver, Colorado, "and [is] now being replicated nationally"; Arkansas’ Home Instruction Program for Preschool Youngsters (HIPPY), "which seeks to prepare 3-year to 5-year-olds for kindergarten and first grade"; and the Comprehensive Child Development Program, "a five-year federal demonstration program that worked with poor families in 24 sites to promote malignant design of using home visitation programs as an incremental means of nationalizing children as "state property."
The PCAA reports that "Healthy Family" sites, under various names, are operating in 42 states and the District of Columbia. A recent survey by the organization found that one in five parents with children under the age of one received some type of home visitation service in 1997.
Furthermore, the organization’s effort to make home visitation universal received a tremendous boost in the federal budget for fiscal year 1999: The PCAA received $33 million through the Child Abuse Prevention and Treatment Act, and an additional $14 million for "research and data collection." The organization’s 42 state chapters also have access to Children’s Trust Funds, which are financed through surcharges on marriage licenses and birth certificates, fees for vanity license plates, and check-offs on individual state income tax returns.
In addition, the PCAA "was instrumental in the reauthorization of the Family Preservation and Support Services Program (renamed the Safe and Stable Families Program)," points out The Parent Trainers. Federal funding for that program, which totaled $275 million in fiscal year 1999, is projected to increase to $305 million by 2001 — and a large portion of that amount will be devoted to cultivating and expanding government home visitation efforts.
Testing for Child Abuse
In order to determine which newborn children are "at-risk" and thus qualify for home visitations, observes The Parent Trainers, state-based "Healthy Family" groups must "gain access to medical records of women who are pregnant or have just given birth. To complete this phase, HFA programs employ ‘Family Assessment Workers’ (FAWs) who will screen and assess mothers to determine their risk status." In some cases, an FAW "is designated as a temporary, volunteer employee of the hospital (when she is on hospital grounds) to allow her access to medical records. In other cases, a member of the hospital staff may agree to do the initial record screen and then make referrals to the FAW. Or, the FAW may not have access to medical records, but may be allowed to enter hospital rooms and administer ‘verbal screens’ by asking postpartum mothers directly to answer the questions on the 15-point initial screen."
The questions in the initial screening deal with the mother’s marital status and history, education, socio-economic status, family background, and Family Stress Checklist" (FSC) — ten open-ended, invasive questions presented to both parents. The FSC is supposedly designed to determine a parent’s propensity toward child abuse. On each question the parent receives a score from 0 (no risk) to 10 (highest risk). According to Hawaii’s high risk category, eligible for Healthy Start home visitor services." However, as The Parent Trainers points out, "A score of 25 … is fairly standard risk and in need of home visitation services."
Among typical FSC questions can be found inquiries regarding "harsh punishment"; PCAA literature emphasizes that spanking is considered a form of abuse. Having been "suspected of abuse" is another risk factor for a parent, as is being "in the midst of multiple crises or stresses," having "unrealistic expectations of the child’s behavior," or perceiving a child’s behavior as "difficult or provocative." Clearly the FSC is designed to define most — if not all — parents as placing their children "at risk." This is to be expected, given that the objective of "Healthy Start" and its offspring is a universal system — based on voluntary enrollment if possible, but employing coercion if necessary.
The FAWs charged with conducting "screenings" and arranging for home visitations are generally volunteers who may have had only a few days of training. No specialized academic background is required to become a FAW; a high school diploma or its equivalent is sufficient. (One PCAA survey found that one-quarter of all FAWs had no college training.) FAWs are encouraged to lure parents into visitation programs by offering bottles, breast pumps, or other helpful gifts to parents as a pretext for a post-hospital visit. "Comments made at a recent HFA national conference indicate ‘creative outreach’ may also include sending flowers to the reluctant mother on Mother’s Day, or even sending flowers to the mother of the mother, if it appears she is the source of resistance," observes The Parent Trainers. "It may also include taking the reluctant mother out to the beauty parlor if this may gain her confidence and make her feel obligated to participate in the program."
To illustrate the success of such tactics, an Arizona program reported that "90 percent of mothers offered the program accept HFA services." Furthermore, PCAA urges FAWs to make "persistent outreach efforts" for several months, if necessary, until reluctant families "have explicitly of the service." Should Kempe’s vision of compulsory home visitation to protect children be consummated, it stands to reason that rebellious parents would be the first to have their children taken from them — as the case of Janet Adolf’s family in Salt Lake City would seem to illustrate.
Levels of Involvement
As is almost always the case with any grand, malevolent scheme, the Kempe-inspired home visitation campaign makes malicious use of the worthy motives of otherwise decent people. Diana Lightfoot, director of the Physician’s Research Council and co-author of The Parent Trainers, explained to The New American: "There are three levels at which the home visitation scheme is working. At the first, most immediate level, we have the social workers or FAWs themselves, who usually have no agenda beyond doing what they consider to be the right thing — fighting child abuse, helping children get a good start, helping parents who may be overwhelmed. And of course, these are all very commendable motives."
At the second, intermediate level, continued Lightfoot, "we have the state departments of social services and other government officials who know means they employ. For a lot of state officials, the chief motivation is money; there is a lot of taxpayer money being thrown at the states by the federal government for these programs. At the top level we have the ideologues — the Hillary Clinton, Janet Reno, and Donna Shalala types — who family."
Dr. Sam Watson, Lightfoot’s co-author, remarked to The New American that "Kempe, despite his reputation as a great humanitarian, praised country are the product of that same mindset as well. In some states, money from the state lottery is underwriting home visitation programs; in others it is money from the tobacco settlement. These sources of revenue have been a real windfall for advocates of home visitation."
"The seed of Kempe’s vision has been planted, it has been watered with taxpayer money," Lightfoot stated. "Whether it will grow to fruition depends upon the American public. It is vitally important that we educate families and parents about the dangers of home visitation programs, and the totalitarian nature of the vision behind those programs."
© Copyright 1999 American Opinion Publishing Incorporated
Source: http://jimcooper.biz/ptfw/resources/BewareTheChildProtectors.pdf
'Grammy' Tried To Save Child Who Died At Eight Weeks Old - Kaiden James Light
Deborah Conklin was a member of Kaiden's extended family and saw him nearly every day of his life. She called herself his "grammy" and is described as a family member in a state file of Kaiden's case.
Despite her concerns, as well as caseworkers' questions about a psychologist's report and a parent's troubled past, Kaiden was returned to the home where authorities say he was deliberately killed.
"Grammy loves you," she used to coo affectionately.
Now she visits a cold grave and promises that someone will be held accountable.
"Someone dropped the ball," she said.
When Kaiden was alive, Deborah would put him to sleep at night, calling him her little prince.
Now she says "night, night" to a Facebook account she set up for the infant. He has 184 followers who view photos of him, leave encouraging notes to Deborah and inquire about updates in the murder case against the woman who gave Kaiden life and then, police say, took it away.
Kaiden's heart stopped Oct. 5.
"They should've listened to me more," Deborah said of Children's Division caseworkers.
Deborah said -- and state documents support -- that she repeatedly asked caseworkers to step in.
Shocking in hindsight, her concerns are documented in caseworkers' reports filed a few weeks before the baby's death.
Social worker Isabella Escudero was investigating a report of abuse to Kaiden when Deborah spoke with her.
"Mrs. Conklin stopped me as I began to walk away and asked, 'Promise me you will not let this baby die.' "
Escudero responded: "(I) told her that it is the job of Children's Division to keep children safe to the best of our ability and to work with the parents to help provide for their children," a report of the encounter said.
Kaiden stayed with Deborah that night, Sept. 22, so caseworkers could continue to investigate the allegations. He remained in Deborah's care for 12 days while his mother, Tatianna Light, underwent a drug test and psychological evaluation.
There was no physical evidence of abuse. The drug test came back negative and the psychologist gave the verbal OK for Kaiden to be returned home.
He left Deborah's house that night, never to return. It was the last time Deborah saw him alive.
"I hear all the time that I have to let go of my anger. I can't, I tried very hard to protect him. I just wasn't loud enough," Deborah writes on Kaiden's Facebook page.
A spokeswoman with the Children's Division said the agency did all it could under the rules it is governed by.
"We must follow the law. The law requires that there must be evidence of abuse or neglect, or the child must be in imminent danger. Other than that, when we have concerns, all we can do is offer voluntary services," said Arleasha Mays, assistant communications director for the Department of Social Services.
She said Children's Division staff never found any evidence that would be enough to get Kaiden taken.
After a few weeks of investigation and despite documented concerns, Kaiden was returned to Tatianna Light the night of Oct. 4.
He would be dead before the next sunset.
There was no physical evidence of abuse. The drug test came back negative and the psychologist gave the verbal OK for Kaiden to be returned home.
He left Deborah's house that night, never to return. It was the last time Deborah saw him alive.
"I hear all the time that I have to let go of my anger. I can't, I tried very hard to protect him. I just wasn't loud enough," Deborah writes on Kaiden's Facebook page.
A spokeswoman with the Children's Division said the agency did all it could under the rules it is governed by.
"We must follow the law. The law requires that there must be evidence of abuse or neglect, or the child must be in imminent danger. Other than that, when we have concerns, all we can do is offer voluntary services," said Arleasha Mays, assistant communications director for the Department of Social Services.
She said Children's Division staff never found any evidence that would be enough to get Kaiden taken.
After a few weeks of investigation and despite documented concerns, Kaiden was returned to Tatianna Light the night of Oct. 4.
He would be dead before the next sunset.
Monday, August 8, 2011
SANTOSKY V. KRAMER, 455 U. S. 745 (1982)
In case of Santosky v. Kramer, 455 US 745, Supreme Court reviewed a case when Department of Social Services removed two younger children from their natural parents only because the parents had been previously found negligent toward their oldest daughter. When the third child was only three days old, DSS transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health. The Supreme Court vacated previous judgment and stated: "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. But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship".
Also District of Columbia Court of Appeals conclude that the lower trial court erred in rejecting the relative custodial arrangement selected by the natural mother who tried to preserve her relationship with the child. The previous judgment granting the foster mother's adoption petition was reversed, and the case remanded to the trial court to vacate the orders granting adoption and denying custody, and to enter an order granting custody to the child's relative.
U.S. Supreme Court
Santosky v. Kramer, 455 U.S. 745 (1982)
Santosky v. Kramer
No. 80-5889
Argued November 10, 1981
Decided March 24, 1982
455 U.S. 745
CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF
NEW YORK, THIRD JUDICIAL DEPARTMENT
Syllabus
Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." The New York Family Court Act (§ 622) requires that only a "fair preponderance of the evidence" support that finding. Neglect proceedings were brought in Family Court to terminate petitioners' rights as natural parents in their three children. Rejecting petitioners' challenge to the constitutionality of § 622's "fair preponderance of the evidence" standard, the Family Court weighed the evidence under that standard and found permanent neglect. After a subsequent dispositional hearing, the Family Court ruled that the best interests of the children required permanent termination of petitioners' custody. The Appellate Division of the New York Supreme Court affirmed, and the New York Court of Appeals dismissed petitioners' appeal to that court.
Held:
1. Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. Pp. 455 U. S. 752-757.
(a) The fundamental liberty interest of natural parents in the care custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Pp. 455 U. S. 752-754.
(b) The nature of the process due in parental rights termination proceedings turns on a balancing of three factors: the private interests affected by the proceedings; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335. In any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the public and
Page 455 U. S. 746
private interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. The minimum standard is a question of federal law which this Court may resolve. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard. Pp. 455 U. S. 754-757.
2. The "fair preponderance of the evidence" standard prescribed by § 622 violates the Due Process Clause of the Fourteenth Amendment. Pp. 455 U. S. 758-768.
(a) The balance of private interests affected weighs heavily against use of such a standard in parental rights termination proceedings, since the private interest affected is commanding, and the threatened loss is permanent. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. Pp. 455 U. S. 758-761.
(b) A preponderance standard does not fairly allocate the risk of an erroneous factfinding between the State and the natural parents. In parental rights termination proceedings, which bear many of the indicia of a criminal trial, numerous factors combine to magnify the risk of erroneous factfinding. Coupled with the preponderance standard, these factors create a significant prospect of erroneous termination of parental rights. A standard of proof that allocates the risk of error nearly equally between an erroneous failure to terminate, which leaves the child in an uneasy status quo, and an erroneous termination, which unnecessarily destroys the natural family, does not reflect properly the relative severity of these two outcomes. Pp. 455 U. S. 761-766.
(c) A standard of proof more strict than preponderance of the evidence is consistent with the two state interests at stake in parental rights termination proceedings -- a parens patriae interest in preserving and promoting the child's welfare and a fiscal and administrative interest in reducing the cost and burden of such proceedings. Pp. 455 U. S. 766-768.
3. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. A "clear and convincing evidence" standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. Determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Pp. 455 U. S. 768-770.
75 App.Div.2d 910, 427 N.Y.S.2d 319, vacated and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a
Page 455 U. S. 747
dissenting opinion, in which BURGER, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 455 U. S. 770.
JUSTICE BLACKMUN delivered the opinion of the Court.
Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." N.Y.Soc.Serv.Law §§ 384-b.4.(d), 384-b.7.(a) (McKinney Supp.1981-1982) (Soc.Serv.Law). The New York Family Court Act § 622 (McKinney 1975 and Supp.1981-1982) (Fam.Ct.Act) requires that only a "fair preponderance of the evidence" support that finding. Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action.
Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in
Page 455 U. S. 748
their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.
I
A
New York authorizes its officials to remove a child temporarily from his or her home if the child appears "neglected," within the meaning of Art. 10 of the Family Court Act. See §§ 1012(f), 1021-1029. Once removed, a child under the age of 18 customarily is placed "in the care of an authorized agency," Soc.Serv.Law § 384-b.7.(a), usually a state institution or a foster home. At that point, "the state's first obligation is to help the family with services to . . . reunite it. . . ." § 384-b.1.(a)(iii). But if convinced that "positive, nurturing parent-child relationships no longer exist," § 384-b.1.(b), the State may initiate "permanent neglect" proceedings to free the child for adoption.
The State bifurcates its permanent neglect proceeding into "factfinding" and "dispositional" hearings. Fam.Ct.Act §§ 622, 623. At the factfinding stage, the State must prove that the child has been "permanently neglected," as defined by Fam.Ct.Act §§ 614.1.(a)-(d) and Soc.Serv.Law § 384-b.7.(a). See Fam.Ct.Act § 622. The Family Court judge then determines at a subsequent dispositional hearing what placement would serve the child's best interests. §§ 623, 631.
At the factfinding hearing, the State must establish, among other things, that, for more than a year after the child entered state custody, the agency "made diligent efforts to encourage and strengthen the parental relationship." Fam.Ct.Act §§ 614.1.(c), 611. The State must further prove that, during that same period, the child's natural parents failed
"substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so."
§ 614.1.(d). Should the State support its allegations by "a fair preponderance of the evidence," § 622, the child may be declared permanently neglected.
Page 455 U. S. 749
§ 611. That declaration empowers the Family Court judge to terminate permanently the natural parents' rights in the child. §§ 631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of, the child. [Footnote 1]
New York's permanent neglect statute provides natural parents with certain procedural protections. [Footnote 2] But New York permits its officials to establish "permanent neglect" with less proof than most States require. Thirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a "fair preponderance of the evidence." [Footnote 3] The only analogous federal statute of which we are aware
Page 455 U. S. 750
permits termination of parental rights solely upon "evidence beyond a reasonable doubt." Indian Child Welfare Act of 1978, Pub.L. 95-608, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp. IV). The question here is whether
Page 455 U. S. 751
New York's "fair preponderance of the evidence" standard is constitutionally sufficient.
B
Petitioners John Santosky II and Annie Santosky are the natural parents of Tina and John III. In November, 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under Fam.Ct.Act § 1022 and removed Tina from her natural home. About 10 months later, he removed John III and placed him with foster parents. On the day John was taken, Annie Santosky gave birth to a third child, Jed. When Jed was only three days old, respondent transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health.
In October, 1978, respondent petitioned the Ulster County Family Court to terminate petitioners' parental rights in the three children. [Footnote 4] Petitioners challenged the constitutionality of the "fair preponderance of the evidence" standard specified in Fam.Ct.Act § 622. The Family Court Judge rejected this constitutional challenge, App. 29 30, and weighed the evidence under the statutory standard. While acknowledging that the Santoskys had maintained contact with their children, the judge found those visits, "at best, superficial and devoid of any real emotional content." Id. at 21. After
Page 455 U. S. 752
deciding that the agency had made "diligent efforts' to encourage and strengthen the parental relationship," id. at 30, he concluded that the Santoskys were incapable, even with public assistance, of planning for the future of their children. Id. at 33-37. The judge later held a dispositional hearing and ruled that the best interests of the three children required permanent termination of the Santoskys' custody. [Footnote 5] Id. at 39.
Petitioners appealed, again contesting the constitutionality of § 622's standard of proof. [Footnote 6] The New York Supreme Court, Appellate Division, affirmed, holding application of the preponderance of the evidence standard "proper and constitutional." In re John AA, 75 App.Div.2d 910, 427 N.Y.S.2d 319, 320 (1980). That standard, the court reasoned, "recognizes and seeks to balance rights possessed by the child . . . with those of the natural parents. . . ." Ibid.
The New York Court of Appeals then dismissed petitioners' appeal to that court "upon the ground that no substantial constitutional question is directly involved." App. 55. We granted certiorari to consider petitioners' constitutional claim. 450 U.S. 993 (1981).
II
Last Term, in Lassiter v. Department of Social Services, 452 U. S. 18 (1981), this Court, by a 5-4 vote, held that the
Page 455 U. S. 753
Fourteenth Amendment's Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The case casts light, however, on the two central questions her -- whether process is constitutionally due a natural parent at a State's parental rights termination proceeding, and, if so, what process is due.
In Lassiter, it was
"not disputed that state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause."
Id. at 452 U. S. 37 (first dissenting opinion); see id. at 452 U. S. 24-32 (opinion of the Court); id. at 452 U. S. 59-60 (STEVENS, J., dissenting). See also Little v. Streater, 452 U. S. 1, 452 U. S. 13 (1981). The absence of dispute reflected this Court's historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, 434 U. S. 246, 434 U. S. 255 (1978); Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 845 (1977); Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 499 (1977) (plurality opinion); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 414 U. S. 639-640 (1974); Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651-652 (1972); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399 (1923).
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to
Page 455 U. S. 754
destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. [Footnote 7]
In Lassiter, the Court and three dissenters agreed that the nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335 (1976): the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. See 452 U.S. at 452 U. S. 27-31; id. at 452 U. S. 37-48 (first dissenting opinion). But see id. at 452 U. S. 59-60 (STEVENS, J., dissenting). While the respective Lassiter opinions disputed whether those factors should be weighed against a presumption disfavoring appointed counsel for one not threatened with loss of physical liberty, compare 452 U.S. at 452 U. S. 31-32, with id. at 452 U. S. 41, and n. 8 (first dissenting opinion), that concern is irrelevant here. Unlike the Court's right-to-counsel rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the Court has engaged in a straightforward consideration of the factors identified in Eldridge to determine whether a particular standard of proof in a particular proceeding satisfies due process.
In Addington v. Texas, 441 U. S. 418 (1979), the Court, by a unanimous vote of the participating Justices, declared:
"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to
Page 455 U. S. 755
'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'"
Id. at 441 U. S. 423, quoting In re Winship, 397 U. S. 358, 397 U. S. 370 (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.
Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a "fair preponderance of the evidence" standard indicates both society's "minimal concern with the outcome," and a conclusion that the litigants should "share the risk of error in roughly equal fashion." 441 U.S. at 441 U. S. 423. When the State brings a criminal action to deny a defendant liberty or life, however,
"the interests of the defendant are of such magnitude that historically, and without any explicit constitutional requirement, they have been protected by standards of proof designed to exclude, as nearly as possible, the likelihood of an erroneous judgment."
Ibid. The stringency of the "beyond a reasonable doubt" standard bespeaks the "weight and gravity" of the private interest affected, id. at 441 U. S. 427, society's interest in avoiding erroneous convictions, and a judgment that those interests together require that "society impos[e] almost the entire risk of error upon itself." Id. at 441 U. S. 424. See also In re Winship, 397 U.S. at 397 U. S. 372 (Harlan, J., concurring).
The "minimum requirements [of procedural due process] being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action."
Vitek v. Jones, 445 U. S. 480, 445 U. S. 491 (1980). See also Logan v. Zimmerman Brush Co., ante at 455 U. S. 432. Moreover, the degree of proof required in a particular type of proceeding "is the kind of question which has
Page 455 U. S. 756
traditionally been left to the judiciary to resolve."
Woodby v. INS, 385 U. S. 276, 385 U. S. 284 (1966). [Footnote 8]
"In cases involving individual rights, whether criminal or civil, '[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.'"
Addington v. Texas, 441 U.S. at 441 U. S. 425, quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (opinion concurring in part and dissenting in part), cert. dism'd sub nom. Murel v. Baltimore City Criminal Court, 407 U. S. 355 (1972).
This Court has mandated an intermediate standard of proof -- "clear and convincing evidence" -- when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." Addington v. Texas, 441 U.S. at 441 U. S. 424. Notwithstanding "the state's civil labels and good intentions,'" id. at 441 U. S. 427, quoting In re Winship, 397 U.S. at 397 U. S. 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma." 441 U.S. at 441 U. S. 425, 426. See, e.g., Addington v. Texas, supra, (civil commitment); Woodby v. INS, 385 U.S. at 385 U. S. 285 (deportation); Chaunt v. United States, 364 U. S. 350, 364 U. S. 353 (1960) (denaturalization);
Page 455 U. S. 757
Schneiderman v. United States, 320 U. S. 118, 320 U. S. 125, 320 U. S. 159 (1943) (denaturalization).
In Lassiter, to be sure, the Court held that fundamental fairness may be maintained in parental rights termination proceedings even when some procedures are mandated only on a case-by-case basis, rather than through rules of general application. 452 U.S. at 452 U. S. 31-32 (natural parent's right to court-appointed counsel should be determined by the trial court, subject to appellate review). But this Court never has approved case-by-case determination of the proper standard of proof for a given proceeding. Standards of proof, like other
"procedural due process rules[,] are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions."
Mathews v. Eldridge, 424 U.S. at 424 U. S. 344 (emphasis added). Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard. [Footnote 9]
Page 455 U. S. 758
III
In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a "fair preponderance of the evidence" standard in such proceedings is inconsistent with due process.
A
"The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.'"
Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 262-263 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 341 U. S. 168 (1951) (Frankfurter, J., concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
Lassiter declared it "plain beyond the need for multiple citation" that a natural parent's "desire for, and right to, the companionship, care, custody, and management of his or her children'" is an interest far more precious than any property
Page 455 U. S. 759
right. 452 U.S. at 452 U. S. 27, quoting Stanley v. Illinois, 405 U.S. at 405 U. S. 651. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.
"If the State prevails, it will have worked a unique kind of deprivation. . . . A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one."
452 U.S. at 452 U. S. 27.
In government-initiated proceedings to determine juvenile delinquency, In re Winship, supra; civil commitment, Addington v. Texas, supra; deportation, Woodby v. INS, supra; and denaturalization, Chaunt v. United States, supra, and Schneiderman v. United States, supra, this Court has identified losses of individual liberty sufficiently serious to warrant imposition of an elevated burden of proof. Yet juvenile delinquency adjudications, civil commitment, deportation, and denaturalization, at least to a degree, are all reversible official actions. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. See n 1, supra. Few forms of state action are both so severe and so irreversible.
Thus, the first Eldridge factor -- the private interest affected -- weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding. We do not deny that the child and his foster parents are also deeply interested in the outcome of that contest. But at the factfinding stage of the New York proceeding, the focus emphatically is not on them.
The factfinding does not purport -- and is not intended -- to balance the child's interest in a normal family home against the parents' interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault. Fam.Ct.Act § 614.1.(d). The questions disputed and decided are
Page 455 U. S. 760
what the State did -- "made diligent efforts," § 614.1.(c) -- and what the natural parents did not do -- "maintain contact with or plan for the future of the child." § 614.1.(d). The State marshals an array of public resources to prove its case and disprove the parents' case. Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children. [Footnote 10]
At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam.Ct.Act § 631 (judge shall make his order "solely on the basis of the best interests of the child," and thus has no obligation to consider the natural parents' rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. [Footnote 11] Thus,
Page 455 U. S. 761
at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.
However substantial the foster parents' interests may be, cf. Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 845-847, they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents. If authorized, the foster parents may pit their interests directly against those of the natural parents by initiating their own permanent neglect proceeding. Fam.Ct.Act § 1055(d); Soc.Serv.Law §§ 3846.3(b), 392.7.(c). Alternatively, the foster parents can make their case for custody at the dispositional stage of a state-initiated proceeding, where the judge already has decided the issue of permanent neglect and is focusing on the placement that would serve the child's best interests. Fam.Ct.Act §§ 623, 631. For the foster parents, the State's failure to prove permanent neglect may prolong the delay and uncertainty until their foster child is freed for adoption. But for the natural parents, a finding of permanent neglect can cut off forever their rights in their child. Given this disparity of consequence, we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections.
B
Under Mathews v. Eldridge, we next must consider both the risk of erroneous deprivation of private interests resulting from use of a "fair preponderance" standard and the likelihood that a higher evidentiary standard would reduce that risk. See 424 U.S. at 424 U. S. 335. Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties.
Page 455 U. S. 762
In New York, the factfinding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial. Cf. Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 42-44 (first dissenting opinion); Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954, 959 (1971) (Black, J., dissenting from denial of certiorari). See also dissenting opinion, post at 455 U. S. 777-779 (describing procedures employed at factfinding proceeding). The Commissioner of Social Services charges the parents with permanent neglect. They are served by summons. Fam.Ct.Act §§ 614, 616, 617. The factfinding hearing is conducted pursuant to formal rules of evidence. § 624. The State, the parents, and the child are all represented by counsel. §§ 249, 262. The State seeks to establish a series of historical facts about the intensity of its agency's efforts to reunite the family, the infrequency and insubstantiality of the parents' contacts with their child, and the parents' inability or unwillingness to formulate a plan for the child's future. The attorneys submit documentary evidence, and call witnesses who are subject to cross-examination. Based on all the evidence, the judge then determines whether the State has proved the statutory elements of permanent neglect by a fair preponderance of the evidence. § 622.
At such a proceeding, numerous factors combine to magnify the risk of erroneous factfinding. Permanent neglect proceedings employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge. See Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 835, n. 36. In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent. [Footnote 12]
Page 455 U. S. 763
Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, id. at 431 U. S. 833-835, such proceedings are often vulnerable to judgments based on cultural or class bias.
The State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State's attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency's own professional caseworkers, whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination. [Footnote 13]
Page 455 U. S. 764
The disparity between the adversaries' litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no "double jeopardy" defense against repeated state termination efforts. If the State initially fails to win termination, as New York did here, see n 4, supra, it always can try once again to cut off the parents' rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.
Coupled with a "fair preponderance of the evidence" standard, these factors create a significant prospect of erroneous termination. A standard of proof that, by its very terms, demands consideration of the quantity, rather than the quality, of the evidence may misdirect the factfinder in the marginal case. See In re Winship, 397 U.S. at 397 U. S. 371, n. 3 (Harlan, J., concurring). Given the weight of the private interests at stake, the social cost of even occasional error is sizable.
Raising the standard of proof would have both practical and symbolic consequences. Cf. Addington v. Texas, 441 U.S. at 441 U. S. 426. The Court has long considered the heightened standard of proof used in criminal prosecutions to be "a prime instrument for reducing the risk of convictions resting on factual error." In re Winship, 397 U.S. at 397 U. S. 363. An elevated standard of proof in a parental rights termination proceeding would alleviate
"the possible risk that a factfinder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or] . . . idiosyncratic behavior."
Addington v. Texas, 441 U.S. at 441 U. S. 427.
"Increasing the burden of proof is one way to impress the factfinder with the importance
Page 455 U. S. 765
of the decision, and thereby perhaps to reduce the chances that inappropriate"
terminations will be ordered. Ibid.
The Appellate Division approved New York's preponderance standard on the ground that it properly "balanced rights possessed by the child . . . with those of the natural parents. . . ." 75 App.Div.2d at 910, 427 N.Y.S.2d at 320. By so saying, the court suggested that a preponderance standard properly allocates the risk of error between the parents and the child. [Footnote 14] That view is fundamentally mistaken.
The court's theory assumes that termination of the natural parents' rights invariably will benefit the child. [Footnote 15] Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court's assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Cf. In re Winship, 397 U.S. at 397 U. S. 371 (Harlan, J., concurring). For the child, the likely consequence of an erroneous failure to terminate is preservation of
Page 455 U. S. 766
an uneasy status quo. [Footnote 16] For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity.
C
Two state interests are at stake in parental rights termination proceedings -- a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings. A standard of proof more strict than preponderance of the evidence is consistent with both interests.
"Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision" at the factfinding proceeding. Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 27. As parens patriae, the State's goal is to provide the child with a permanent home. See Soc.Serv.Law § 384-b.1.(a)(i) (statement of legislative findings and intent). Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not
Page 455 U. S. 767
severance, of natural familial bonds. [Footnote 17] § 384-b.1.(a)(ii). "[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents." Stanley v. Illinois, 405 U.S. at 405 U. S. 652.
The State's interest in finding the child an alternative permanent home arises only "when it is clear that the natural parent cannot or will not provide a normal family home for the child." Soc.Serv.Law § 384-b.1.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.
Unlike a constitutional requirement of hearings, see, e.g., Mathews v. Eldridge, 424 U.S. at 424 U. S. 347, or court-appointed counsel, a stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State. As we have observed, 35 States already have adopted a higher standard by statute or court decision without apparent effect on the speed, form, or cost of their factfinding proceedings. See n 3, supra.
Nor would an elevated standard of proof create any real administrative burdens for the State's factfinders. New York Family Court judges already are familiar with a higher evidentiary standard in other parental rights termination proceedings not involving permanent neglect. See Soc.Serv.Law §§ 384-b.3.(g), 384-b.4.(c), and 384-b.4.(e) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse). New York also demands at least clear and convincing evidence in proceedings of far less moment than parental rights termination proceedings. See, e.g., N.Y.Veh. & Traf.Law § 227.1 (McKinney Supp.1981) (requiring the State to prove traffic
Page 455 U. S. 768
infractions by "clear and convincing evidence") and In re Rosenthal v. Hartnett, 36 N.Y.2d 269 326 N.E.2d 811 (1975); see also Ross v. Food Specialties, Inc., 6 N.Y.2d 336, 341, 160 N.E.2d 618, 620 (1959) (requiring "clear, positive and convincing evidence" for contract reformation). We cannot believe that it would burden the State unduly to require that its factfinders have the same factual certainty when terminating the parent-child relationship as they must have to suspend a driver's license.
IV
The logical conclusion of this balancing process is that the "fair preponderance of the evidence" standard prescribed by Fam.Ct.Act § 622 violates the Due Process Clause of the Fourteenth Amendment. [Footnote 18] The Court noted in Addington:
"The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state."
441 U.S. at 441 U. S. 427. Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable. The next question, then, is whether a "beyond a reasonable doubt" or a "clear and convincing" standard is constitutionally mandated.
In Addington, the Court concluded that application of a reasonable doubt standard is inappropriate in civil commitment proceedings for two reasons -- because of our hesitation to apply that unique standard "too broadly or casually in noncriminal cases," id. at 441 U. S. 428, and because the psychiatric evidence ordinarily adduced at commitment proceedings is
Page 455 U. S. 769
rarely susceptible to proof beyond a reasonable doubt. Id. at 441 U. S. 429-430, 449 U. S. 432-433. To be sure, as has been noted above, in the Indian Child Welfare Act of 1978, Pub.L. 9508, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp. IV), Congress requires "evidence beyond a reasonable doubt" for termination of Indian parental rights, reasoning that "the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty. . . ." H.R.Rep. No. 95-1386, p. 22 (1978). Congress did not consider, however, the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all state-initiated parental rights termination hearings.
Like civil commitment hearings, termination proceedings often require the factfinder to evaluate medical and psychiatric testimony, and to decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress. Cf. Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 30; id. at 452 U. S. 44-46 (first dissenting opinion) (describing issues raised in state termination proceedings). The substantive standards applied vary from State to State. Although Congress found a "beyond a reasonable doubt" standard proper in one type of parental rights termination case, another legislative body might well conclude that a reasonable doubt standard would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.
A majority of the States have concluded that a "clear and convincing evidence" standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns. See n 3, supra. We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard
Page 455 U. S. 770
is a matter of state law properly left to state legislatures and state courts. Cf. Addington v. Texas, 441 U.S. at 441 U. S. 433.
We, of course, express no view on the merits of petitioners' claims. [Footnote 19] At a hearing conducted under a constitutionally proper standard, they may or may not prevail. Without deciding the outcome under any of the standards we have approved, we vacate the judgment of the Appellate Division and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
[Footnote 1]
At oral argument, counsel for petitioners asserted that, in New York, natural parents have no means of restoring terminated parental rights. Tr. of Oral Arg. 9. Counsel for respondents, citing Fam.Ct.Act § 1061, answered that parents may petition the Family Court to vacate or set aside an earlier order on narrow grounds, such as newly discovered evidence or fraud. Tr. of Oral Arg. 26. Counsel for respondents conceded, however that this statutory provision has never been invoked to set aside a permanent neglect finding. Id. at 27.
[Footnote 2]
Most notably, natural parents have a statutory right to the assistance of counsel and of court-appointed counsel if they are indigent. Fam.Ct.Act § 262.(a)(iii).
[Footnote 3]
Fifteen States, by statute, have required "clear and convincing evidence" or its equivalent. See Alaska Stat.Ann. § 47.10.080(c)(3) (1980); Cal.Civ.Code Ann. § 232(a)(7) (West Supp.1982); Ga.Code §§ 24A-2201(c), 24A-3201 (1979); Iowa Code § 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 § 492(c) (1980) ("clear and convincing proof"); Wis.Stat. § 48.31(1) (Supp. 1981-1982).
Fifteen States, the District of Columbia, and the Virgin Islands, by court decision, have required "clear and convincing evidence" or its equivalent. See Dale County Dept. of Pensions & Security v. Robles, 368 So.2d 39, 42 (Ala.Civ.App.1979); Harper v. Caskin, 265 Ark. 558, 560-561, 580 S.W.2d 176, 178 (1979); In re J.S.R., 374 A.2d 860, 864 (D.C.1977); Torres v. Van Eepoel, 98 So.2d 735, 737 (Fla.1957); In re Kerns, 225 Kan. 746, 753, 594 P.2d 187, 193 (1979); In re Rosenbloom, 266 N.W.2d 888, 889 (Minn.1978) ("clear and convincing proof "); In re J.L.B., 182 Mont. 100, 116-117, 594 P.2d 1127, 1136 (1979); In re Souza, 204 Neb. 503, 510, 283 N.W.2d 48, 52 (1979); J. v. M., 157 N.J.Super. 478, 489, 385 A.2d 240, 246 (App.Div.1978); In re J. A., 283 N.W.2d 83, 92 (N.D.1979); In re Darren Todd H., 615 P.2d 287, 289 (Okla.1980); In re William. L., 477 Pa. 322, 332, 383 A.2d 1228, 1233, cert. denied sub nom. Lehman v. Lycoming County Children's Services, 439 U.S. 880 (1978); In re G.M., 596 S.W.2d 846, 847 (Tex.1980); In re Pitts, 535 P.2d 1244, 1248 (Utah 1975); In re Maria, 15 V.I. 368, 384 (1978); In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831, 833 (1973) ("clear, cogent, and convincing evidence"); In re X., 607 P.2d 911, 919 (Wyo.1980) ("clear and unequivocal").
South Dakota's Supreme Court has required a "clear preponderance" of the evidence in a dependency proceeding. See In re B.E., 287 N.W.2d 91, 96 (1979). Two States, New Hampshire and Louisiana, have barred parental rights terminations unless the key allegations have been proved beyond a reasonable doubt. See State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978); La.Rev.Stat.Ann. § 13:1603.A (West Supp.1982). Two States, Illinois and New York, have required clear and convincing evidence, but only in certain types of parental rights termination proceedings. See Ill.Rev.Stat., ch. 37, �� 705-9(2), (3) (1979), amended by Act of Sept. 11, 1981, 1982 Ill. Laws, P.A. 82-437 (generally requiring a preponderance of the evidence, but requiring clear and convincing evidence to terminate the rights of minor parents and mentally ill or mentally deficient parents); N.Y.Soc.Serv.Law §§ 384-b.3(g), 384-b.4(c), and 384-b.4(e) (Supp.1981-1982) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse).
So far as we are aware, only two federal courts have addressed the issue. Each has held that allegations supporting parental rights termination must be proved by clear and convincing evidence. Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1194 (SD Tex.1977), rev'd on other grounds sub nom. Moore v. Sims, 442 U. S. 415 (1979); Alsager v. District Court of Polk County, 406 F.Supp. 10, 25 (SD Iowa 1975), aff'd on other grounds, 545 F.2d 1137 (CA8 1976).
[Footnote 4]
Respondent had made an earlier and unsuccessful termination effort in September, 1976. After a factfinding hearing, the Family Court Judge dismissed respondent's petition for failure to prove an essential element of Fam.Ct.Act § 614.1.(d). See In re Santosky, 89 Misc.2d 730, 393 N.Y.S.2d 486 (1977). The New York Supreme Court, Appellate Division, affirmed, finding that "the record as a whole" revealed that petitioners had "substantially planned for the future of the children." In re John W., 63 App.Div.2d 750, 751, 404 N.Y.S.2d 717, 719 (1978).
[Footnote 5]
Since respondent Kramer took custody of Tina, John III, and Jed, the Santoskys have had two other children, James and Jeremy. The State has taken no action to remove these younger children. At oral argument, counsel for respondents replied affirmatively when asked whether he was asserting that petitioners were "unfit to handle the three older ones, but not unfit to handle the two younger ones." Tr. of Oral Arg. 24.
[Footnote 6]
Petitioners initially had sought review in the New York Court of Appeals. That court sua sponte transferred the appeal to the Appellate Division, Third Department, stating that a direct appeal did not lie because "questions other than the constitutional validity of a statutory provision are involved." App. 50.
[Footnote 7]
We therefore reject respondent Kramer's claim that a parental rights termination proceeding does not interfere with a fundamental liberty interest. See Brief for Respondent Kramer 11-18; Tr. of Oral Arg. 38. The fact that important liberty interests of the child and its foster parents may also be affected by a permanent neglect proceeding does not justify denying the natural parents constitutionally adequate procedures. Nor can the State refuse to provide natural parents adequate procedural safeguards on the ground that the family unit already has broken down; that is the very issue the permanent neglect proceeding is meant to decide.
[Footnote 8]
The dissent charges, post at 455 U. S. 772, n. 2, that
"this Court simply has no role in establishing the standards of proof that States must follow in the various judicial proceedings they afford to their citizens."
As the dissent properly concedes, however, the Court must examine a State's chosen standard to determine whether it satisfies "the constitutional minimum of fundamental fairness.'" Ibid. See, e.g., Addington v. Texas, 441 U. S. 418, 441 U. S. 427, 441 U. S. 433 (1979) (unanimous decision of participating Justices) (Fourteenth Amendment requires at least clear and convincing evidence in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital); In re Winship, 397 U. S. 358, 397 U. S. 364 (1970) (Due Process Clause of the Fourteenth Amendment protects the accused in state proceeding against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged).
[Footnote 9]
For this reason, we reject the suggestions of respondents and the dissent that the constitutionality of New York's statutory procedures must be evaluated as a "package." See Tr. of Oral Arg. 25, 36, 38. Indeed, we would rewrite our precedents were we to excuse a constitutionally defective standard of proof based on an amorphous assessment of the "cumulative effect" of state procedures. In the criminal context, for example, the Court has never assumed that "strict substantive standards or special procedures compensate for a lower burden of proof. . . ." Post at 455 U. S. 773. See In re Winship, 397 U.S. at 397 U. S. 368. Nor has the Court treated appellate review as a curative for an inadequate burden of proof. See Woodby v. INS, 385 U. S. 276, 385 U. S. 282 (1966) ("judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment") .
As the dissent points out, "the standard of proof is a crucial component of legal process, the primary function of which is to minimize the risk of erroneous decisions.'" Post at 455 U. S. 785, quoting Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 442 U. S. 13 (1979). Notice, summons, right to counsel, rules of evidence, and evidentiary hearings are all procedures to place information before the factfinder. But only the standard of proof "instruct[s] the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions" he draws from that information. In re Winship, 397 U.S. at 397 U. S. 370 (Harlan, J., concurring). The statutory provision of right to counsel and multiple hearings before termination cannot suffice to protect a natural parent's fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts.
[Footnote 10]
The Family Court Judge in the present case expressly refused to terminate petitioners' parental rights on a "non-statutory, no-fault basis." App. 22-29. Nor is it clear that the State constitutionally could terminate a parent's rights without showing parental unfitness. See Quilloin v. Walcott, 434 U. S. 246, 434 U. S. 255 (1978) ("We have little doubt that the Due Process Clause would be offended [i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest,'" quoting Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 862-863 (1977) (Stewart, J., concurring in judgment)).
[Footnote 11]
For a child, the consequences of termination of his natural parents' rights may well be far-reaching. In Colorado, for example, it has been noted:
"The child loses the right of support and maintenance, for which he may thereafter be dependent upon society; the right to inherit; and all other rights inherent in the legal parent-child relationship, not just for [a limited] period . . . , but forever."
In re K.S., 33 Colo. App. 72, 76, 515 P.2d 130, 133 (1973).
Some losses cannot be measured. In this case, for example, Jed Santosky was removed from his natural parents' custody when he was only three days old; the judge's finding of permanent neglect effectively foreclosed the possibility that Jed would ever know his natural parents.
[Footnote 12]
For example, a New York court appraising an agency's "diligent efforts" to provide the parents with social services can excuse efforts not made on the grounds that they would have been "detrimental to the best interests of the child." Fam.Ct.Act § 614.l.(c). In determining whether the parent "substantially and continuously or repeatedly" failed to "maintain contact with . . . the child," § 614.1.(d), the judge can discount actual visits or communications on the grounds that they were insubstantial or "overtly demonstrat[ed] a lack of affectionate and concerned parenthood." Soc.Serv.Law § 384-b.7.(b). When determining whether the parent planned for the child's future, the judge can reject as unrealistic plans based on overly optimistic estimates of physical or financial ability. § 384-b.7.(c). See also dissenting opinion, post at 455 U. S. 779-780, nn. 8 and 9.
[Footnote 13]
In this case, for example, the parents claim that the State sought court orders denying them the right to visit their children, which would have prevented them from maintaining the contact required by Fam.Ct.Act. § 614.1.(d). See Brief for Petitioners 9. The parents further claim that the State cited their rejection of social services they found offensive or superfluous as proof of the agency's "diligent efforts" and their own "failure to plan" for the children's future. Id. at 10-11.
We need not accept these statements as true to recognize that the State's unusual ability to structure the evidence increases the risk of an erroneous factfinding. Of course, the disparity between the litigants' resources will be vastly greater in States where there is no statutory right to court-appointed counsel. See Lassiter v. Department of Social Services, 452 U. S. 18, 452 U. S. 34 (1981) (only 33 States and the District of Columbia provide that right by statute).
[Footnote 14]
The dissent makes a similar claim. See post at 455 U. S. 786-791.
[Footnote 15]
This is a hazardous assumption, at best. Even when a child's natural home is imperfect, permanent removal from that home will not necessarily improve his welfare. See, e.g., Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985, 993 (1975) ("In fact, under current practice, coercive intervention frequently results in placing a child in a more detrimental situation than he would be in without intervention").
Nor does termination of parental rights necessarily ensure adoption. See Brief for Community Action for Legal Services, Inc., et al. as Amici Curiae 22-23. Even when a child eventually finds an adoptive family, he may spend years moving between state institutions and "temporary" foster placements after his ties to his natural parents have been severed. See Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 833-838 (describing the "limbo" of the New York foster care system).
[Footnote 16]
When the termination proceeding occurs, the child is not living at his natural home. A child cannot be adjudicated "permanently neglected" until, "for a period of more than one year," he has been in "the care of an authorized agency." Soc.Serv.Law § 384-b.7.(a); Fam.Ct.Act § 614. l.(d). See also dissenting opinion, post at 455 U. S. 789-790.
Under New York law, a judge has ample discretion to ensure that, once removed from his natural parents on grounds of neglect, a child will not return to a hostile environment. In this case, when the State's initial termination effort failed for lack of proof, see n 4, supra, the court simply issued orders under Fam.Ct.Act § 1055(b) extending the period of the child's foster home placement. See App.19-20. See also Fam.Ct.Act § 632(b) (when State's permanent neglect petition is dismissed for insufficient evidence, judge retains jurisdiction to reconsider underlying orders of placement); § 633 (judge may suspend judgment at dispositional hearing for an additional year).
[Footnote 17]
Any parens patriae interest in terminating the natural parents' rights arises only at the dispositional phase, after the parents have been found unfit.
[Footnote 18]
The dissent's claim that today's decision "will inevitably lead to the federalization of family law," post at 455 U. S. 773, is, of course, vastly overstated. As the dissent properly notes, the Court's duty to "refrai[n] from interfering with state answers to domestic relations questions" has never required "that the Court should blink at clear constitutional violations in state statutes." Post at 455 U. S. 771.
[Footnote 19]
Unlike the dissent, we carefully refrain from accepting as the "facts of this case" findings that are not part of the record, and that have been found only to be more likely true than not.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join, dissenting.
I believe that few of us would care to live in a society where every aspect of life was regulated by a single source of law, whether that source be this Court or some other organ of our complex body politic. But today's decision certainly moves us in that direction. By parsing the New York scheme and holding one narrow provision unconstitutional, the majority invites further federal court intrusion into every facet of state family law. If ever there were an area in which federal courts should heed the admonition of Justice Holmes that "a page of history is worth a volume of logic," [Footnote 2/1] it is in the area of domestic relations. This area has been left to the States from time immemorial, and not without good reason.
Equally as troubling is the majority's due process analysis. The Fourteenth Amendment guarantees that a State will treat individuals with "fundamental fairness" whenever its actions infringe their protected liberty or property interests. By adoption of the procedures relevant to this case, New
Page 455 U. S. 771
York has created an exhaustive program to assist parents in regaining the custody of their children and to protect parents from the unfair deprivation of their parental rights. And yet the majority's myopic scrutiny of the standard of proof blinds it to the very considerations and procedures which make the New York scheme "fundamentally fair."
I
State intervention in domestic relations has always been an unhappy but necessary feature of life in our organized society. For all of our experience in this area, we have found no fully satisfactory solutions to the painful problem of child abuse and neglect. We have found, however, that leaving the States free to experiment with various remedies has produced novel approaches and promising progress.
Throughout this experience, the Court has scrupulously refrained from interfering with state answers to domestic relations questions.
"Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family property arrangements."
United States v. Yazell, 382 U. S. 341, 382 U. S. 352 (1966). This is not to say that the Court should blink at clear constitutional violations in state statutes, but rather that, in this area, of all areas,
"substantial weight must be given to the good faith judgments of the individuals [administering a program] . . . that the procedures they have provided assure fair consideration of the . . . claims of individuals."
Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 349 (1976).
This case presents a classic occasion for such solicitude. As will be seen more fully in the next part, New York has enacted a comprehensive plan to aid marginal parents in regaining the custody of their child. The central purpose of the New York plan is to reunite divided families. Adoption of the preponderance of the evidence standard represents New York's good faith effort to balance the interest of parents
Page 455 U. S. 772
against the legitimate interests of the child and the State. These earnest efforts by state officials should be given weight in the Court's application of due process principles.
"Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."
Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 194 U. S. 270 (1904). [Footnote 2/2]
The majority may believe that it is adopting a relatively unobtrusive means of ensuring that termination proceedings provide "due process of law." In fact, however, fixing the standard of proof as a matter of federal constitutional law will only lead to further federal court intervention in state schemes. By holding that due process requires proof by clear and convincing evidence, the majority surely cannot mean that any state scheme passes constitutional muster so long as it applies that standard of proof. A state law permitting termination of parental rights upon a showing of neglect by clear and convincing evidence certainly would not be acceptable
Page 455 U. S. 773
to the majority if it provided no procedures other than one 30-minute hearing. Similarly, the majority probably would balk at a state scheme that permitted termination of parental rights on a clear and convincing showing merely that such action would be in the best interests of the child. See Smith v . Organization of Foster Families, 431 U. S. 816, 431 U. S. 862-863 (1977) (Stewart, J., concurring in judgment).
After fixing the standard of proof, therefore, the majority will be forced to evaluate other aspects of termination proceedings with reference to that point. Having in this case abandoned evaluation of the overall effect of a scheme, and with it the possibility of finding that strict substantive standards or special procedures compensate for a lower burden of proof, the majority's approach will inevitably lead to the federalization of family law. Such a trend will only thwart state searches for better solutions in an area where this Court should encourage state experimentation.
"It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment."
New State Ice Co. v. Liebmann, 285 U. S. 262, 285 U. S. 311 (1932) (Brandeis, J., dissenting). It should not do so in the absence of a clear constitutional violation. As will be seen in the next part, no clear constitutional violation has occurred in this case.
II
As the majority opinion notes, petitioners are the parents of five children, three of whom were removed from petitioners' care on or before August 22, 1974. During the next four and one-half years, those three children were in the custody of the State and in the care of foster homes or institutions, and the State was diligently engaged in efforts to prepare petitioners for the children's return. Those efforts were unsuccessful,
Page 455 U. S. 774
however, and, on April 10, 1979, the New York Family Court for Ulster County terminated petitioners' parental rights as to the three children removed in 1974 or earlier. This termination was preceded by a judicial finding that petitioners had failed to plan for the return and future of their children, a statutory category of permanent neglect. Petitioners now contend, and the Court today holds, that they were denied due process of law not because of a general inadequacy of procedural protections, but simply because the finding of permanent neglect was made on the basis of a preponderance of the evidence adduced at the termination hearing.
It is well settled that
"[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property."
Board of Regents v. Roth, 408 U. S. 564, 408 U. S. 569 (1972). In determining whether such liberty or property interests are implicated by a particular government action, "we must look not to the weight,' but to the nature, of the interest at stake." Id. at 408 U. S. 571 (emphasis in original). I do not disagree with the majority's conclusion that the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. See Smith v. Organization of Foster Families, supra, at 431 U. S. 862-863 (Stewart, J., concurring in judgment). "Once it is determined that due process applies, [however,] the question remains what process is due." Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481 (1972). It is the majority's answer to this question with which I disagree.
A
Due process of law is a flexible constitutional principle. The requirements which it imposes upon governmental actions vary with the situations to which it applies. As the Court previously has recognized, "not all situations calling for
Page 455 U. S. 775
procedural safeguards call for the same kind of procedure." Morrissey v. Brewer, supra, at 408 U. S. 481. See also Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 442 U. S. 12 (1979); Mathews v. Eldridge, 424 U.S. at 424 U. S. 334; Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961). The adequacy of a scheme of procedural protections cannot, therefore, be determined merely by the application of general principles unrelated to the peculiarities of the case at hand.
Given this flexibility, it is obvious that a proper due process inquiry cannot be made by focusing upon one narrow provision of the challenged statutory scheme. Such a focus threatens to overlook factors which may introduce constitutionally adequate protections into a particular government action. Courts must examine all procedural protections offered by the State, and must assess the cumulative effect of such safeguards. As we have stated before, courts must consider "the fairness and reliability of the existing . . . procedures" before holding that the Constitution requires more. Mathews v. Eldridge, supra, at 424 U. S. 343. Only through such a broad inquiry may courts determine whether a challenged governmental action satisfies the due process requirement of "fundamental fairness." [Footnote 2/3] In some instances, the Court has even looked to nonprocedural restraints on official action in determining whether the deprivation of a protected interest was effected without due process of law. E.g., 430 U. S.
Page 455 U. S. 776
Wright, 430 U. S. 651 (1977). In this case, it is just such a broad look at the New York scheme which reveals its fundamental fairness. [Footnote 2/4]
The termination of parental rights on the basis of permanent neglect can occur under New York law only by order of the Family Court. N.Y.Soc.Serv.Law (SSL) § 384-b.3.(d) (McKinney Supp.1981-1982). Before a petition for permanent termination can be filed in that court, however, several other events must first occur.
The Family Court has jurisdiction only over those children who are in the care of an authorized agency. N.Y. Family Court Act (FCA) § 614.1.(b) (McKinney 1975 and Supp.1981-1982). Therefore, the children who are the subject of a termination petition must previously have been removed from their parents' home on a temporary basis. Temporary removal of a child can occur in one of two ways. The parents may consent to the removal, FCA § 1021, or, as occurred in this case, the Family Court can order the removal pursuant to a finding that the child is abused or neglected. [Footnote 2/5] FCA §§ 1051, 1052.
Page 455 U. S. 777
Court proceedings to order the temporary removal of a child are initiated by a petition alleging abuse or neglect, filed by a state-authorized child protection agency or by a person designated by the court. FCA §§ 1031, 1032. Unless the court finds that exigent circumstances require removal of the child before a petition may be filed and a hearing held, see FCA § 1022, the order of temporary removal results from a "dispositional hearing" conducted to determine the appropriate form of alternative care. FCA § 1045. See also FCA § 1055. This "dispositional hearing" can be held only after the court, at a separate "factfinding hearing," has found the child to be abused or neglected within the specific statutory definition of those terms. FCA §§ 1012, 1044, 1051.
Parents subjected to temporary removal proceedings are provided extensive procedural protections. A summons and copy of the temporary removal petition must be served upon the parents within two days of issuance by the court, FCA §§ 1035, 1036, and the parents may, at their own request, delay the commencement of the factfinding hearing for three days after service of the summons. FCA § 1048. [Footnote 2/6] The factfinding hearing may not commence without a determination by the court that the parents are present at the hearing and have been served with the petition. FCA § 1041. At the hearing itself, "only competent, material and relevant evidence may be admitted," with some enumerated exceptions
Page 455 U. S. 778
for particularly probative evidence. FCA § 1046(b)(ii). In addition, indigent parents are provided with an attorney to represent them at both the factfinding and dispositional hearings, as well as at all other proceedings related to temporary removal of their child. FCA § 262(a)(i).
An order of temporary removal must be reviewed every 18 months by the Family Court. SSL § 392.2. Such review is conducted by hearing before the same judge who ordered the temporary removal, and a notice of the hearing, including a statement of the dispositional alternatives, must be given to the parents at least 20 days before the hearing is held. SSL § 392.4. As in the initial removal action, the parents must be parties to the proceedings, ibid., and are entitled to court-appointed counsel if indigent. FCA § 262(a).
One or more years after a child has been removed temporarily from the parents' home, permanent termination proceedings may be commenced by the filing of a petition in the court which ordered the temporary removal. The petition must be filed by a state agency or by a foster parent authorized by the court, SSL § 384-b.3.(b), and must allege that the child has been permanently neglected by the parents. SSL § 384-b.3.(d). [Footnote 2/7] Notice of the petition and the dispositional proceedings must be served upon the parents at least 20 days before the commencement of the hearing, SSL § 384-b.3.(e), must inform them of the potential consequences of the hearing, ibid., and must inform them
"of their right to the assistance of counsel, including [their] right . . . to have counsel assigned by the court [if] they are financially unable to obtain counsel."
Ibid. See also FCA § 262.
As in the initial removal proceedings, two hearings are held in consideration of the permanent termination petition.
Page 455 U. S. 779
SSL § 384-b.3.(f). At the factfinding hearing, the court must determine, by a fair preponderance of the evidence, whether the child has been permanently neglected. SSL § 384-b.3.(g). "Only competent, material and relevant evidence may be admitted in a factfinding hearing." FCA § 624. The court may find permanent neglect if the child is in the care of an authorized agency or foster home and the parents have
"failed for a period of more than one year . . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so."
SSL § 384-b.7.(a). [Footnote 2/8] In addition, because the State considers its "first obligation" to be the reuniting of the child with its natural parents, SSL § 384-b.1.(iii), the court must also find that the supervising state agency has, without success, made "diligent efforts to encourage and strengthen the parental relationship." SSL § 384-b.7.(a) (emphasis added). [Footnote 2/9]
Page 455 U. S. 780
Following the factfinding hearing, a separate, dispositional hearing is held to determine what course of action would be in "the best interests of the child." FCA § 631. A finding of permanent neglect at the factfinding hearing, although necessary to a termination of parental rights, does not control the court's order at the dispositional hearing. The court may dismiss the petition, suspend judgment on the petition and retain jurisdiction for a period of one year in order to provide further opportunity for a reuniting of the family, or terminate the parents' right to the custody and care of the child. FCA §§ 631-634. The court must base its decision solely upon the record of "material and relevant evidence" introduced at the dispositional hearing, FCA § 624; In re "Female" M., 70 App.Div.2d 812, 417 N.Y.S.2d 482 (1979), and may not entertain any presumption that the best interests of the child "will be promoted by any particular disposition." FCA § 631.
As petitioners did in this case, parents may appeal any unfavorable decision to the Appellate Division of the New York Supreme Court. Thereafter, review may be sought in the New York Court of Appeals and, ultimately, in this Court if a federal question is properly presented.
As this description of New York's termination procedures demonstrates, the State seeks not only to protect the interests of parents in rearing their own children, but also to assist and encourage parents who have lost custody of their children to reassume their rightful role. Fully understood, the New York system is a comprehensive program to aid parents such as petitioners. Only as a last resort, when "diligent efforts" to reunite the family have failed, does New
Page 455 U. S. 781
York authorize the termination of parental rights. The procedures for termination of those relationships which cannot be aided and which threaten permanent injury to the child, administered by a judge who has supervised the case from the first temporary removal through the final termination, cannot be viewed as fundamentally unfair. The facts of this case demonstrate the fairness of the system.
The three children to which this case relates were removed from petitioners' custody in 1973 and 1974, before petitioners' other two children were born. The removals were made pursuant to the procedures detailed above, and in response to what can only be described as shockingly abusive treatment. [Footnote 2/10] At the temporary removal hearing held before the Family Court on September 30, 1974, petitioners were represented by counsel, and allowed the Ulster County Department of Social Services (Department) to take custody of the three children.
Temporary removal of the children was continued at an evidentiary hearing held before the Family Court in December, 1975, after which the court issued a written opinion concluding that petitioners were unable to resume their parental responsibilities due to personality disorders. Unsatisfied with the progress petitioners were making, the court also directed
Page 455 U. S. 782
the Department to reduce to writing the plan which it had designed to solve the problems at petitioners' home and reunite the family.
A plan for providing petitioners with extensive counseling and training services was submitted to the court and approved in February, 1976. Under the plan, petitioners received training by a mother's aide, a nutritional aide, and a public health nurse, and counseling at a family planning clinic. In addition, the plan provided psychiatric treatment and vocational training for the father, and counseling at a family service center for the mother. Brief for Respondent Kramer 1-7. Between early 1976 and the final termination decision in April, 1979, the State spent more than $15,000 in these efforts to rehabilitate petitioners as parents. App. 34.
Petitioners' response to the State's effort was marginal, at best. They wholly disregarded some of the available services, and participated only sporadically in the others. As a result, and out of growing concern over the length of the children's stay in foster care, the Department petitioned, in September, 1976, for permanent termination of petitioners' parental rights so that the children could be adopted by other families. Although the Family Court recognized that petitioners' reaction to the State's efforts was generally "nonresponsive, even hostile," the fact that they were "at least superficially cooperative" led it to conclude that there was yet hope of further improvement and an eventual reuniting of the family. Exhibit to Brief for Respondent Kramer 618. Accordingly, the petition for permanent termination was dismissed.
Whatever progress petitioners were making prior to the 1976 termination hearing, they made little or no progress thereafter. In October, 1978, the Department again filed a termination petition alleging that petitioners had completely failed to plan for the children's future despite the considerable efforts rendered in their behalf. This time, the Family Court agreed. The court found that petitioners had
"failed in any meaningful way to take advantage of the many social
Page 455 U. S. 783
and rehabilitative services that have not only been made available to them but have been diligently urged upon them."
App. 35. In addition, the court found that the "infrequent" visits "between the parents and their children were, at best, superficial, and devoid of any real emotional content." Id. at 21. The court thus found
"nothing in the situation which holds out any hope that [petitioners] may ever become financially self sufficient or emotionally mature enough to be independent of the services of social agencies. More than a reasonable amount of time has passed, and still, in the words of the case workers, there has been no discernible forward movement. At some point in time, it must be said, 'enough is enough.'"
Id. at 36.
In accordance with the statutory requirements set forth above, the court found that petitioners' failure to plan for the future of their children, who were then seven, five, and four years old and had been out of petitioners' custody for at least four years, rose to the level of permanent neglect. At a subsequent dispositional hearing, the court terminated petitioners' parental rights, thereby freeing the three children for adoption.
As this account demonstrates, the State's extraordinary 4-year effort to reunite petitioners' family was not just unsuccessful, it was altogether rebuffed by parents unwilling to improve their circumstances sufficiently to permit a return of their children. At every step of this protracted process, petitioners were accorded those procedures and protections which traditionally have been required by due process of law. Moreover, from the beginning to the end of this sad story, all judicial determinations were made by one Family Court Judge. After four and one-half years of involvement with petitioners, more than seven complete hearings, and additional periodic supervision of the State's rehabilitative efforts, the judge no doubt was intimately familiar with this case and the prospects for petitioners' rehabilitation.
It is inconceivable to me that these procedures were "fundamentally unfair" to petitioners. Only by its obsessive
Page 455 U. S. 784
focus on the standard of proof and its almost complete disregard of the facts of this case does the majority find otherwise. [Footnote 2/11] As the discussion above indicates, however, such a
Page 455 U. S. 785
focus does not comport with the flexible standard of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment.
B
In addition to the basic fairness of the process afforded petitioners, the standard of proof chosen by New York clearly reflects a constitutionally permissible balance of the interests at stake in this case. The standard of proof
"represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication."
In re Winship, 397 U. S. 358, 397 U. S. 370 (1970) (Harlan, J. concurring); Addington v. Texas, 441 U. S. 418, 441 U. S. 423 (1979). In this respect, the standard of proof is a crucial component of legal process, the primary function of which is "to minimize the risk of erroneous decisions." [Footnote 2/12] Greenholtz v. Nebraska
Page 455 U. S. 786
Penal Inmates, 442 U.S. at 442 U. S. 13. See also Addington v. Texas, supra, at 441 U. S. 425; Mathews v. Eldridge, 424 U.S. at 424 U. S. 344.
In determining the propriety of a particular standard of proof in a given case, however, it is not enough simply to say that we are trying to minimize the risk of error. Because errors in factfinding affect more than one interest, we try to minimize error as to those interests which we consider to be most important. As Justice Harlan explained in his well known concurrence to In re Winship:
"In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff's favor. The criminal analogue would be the acquittal of a guilty man."
The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence, rather than proof
Page 455 U. S. 787
beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.
397 U.S. at 397 U. S. 370-371.
When the standard of proof is understood as reflecting such an assessment, an examination of the interests at stake in a particular case becomes essential to determining the propriety of the specified standard of proof. Because proof by a preponderance of the evidence requires that "[t]he litigants . . . share the risk of error in a roughly equal fashion," Addington v. Texas, supra, at 441 U. S. 423, it rationally should be applied only when the interests at stake are of roughly equal societal importance. The interests at stake in this case demonstrate that New York has selected a constitutionally permissible standard of proof.
On one side is the interest of parents in a continuation of the family unit and the raising of their own children. The importance of this interest cannot easily be overstated. Few consequences of judicial action are so grave as the severance of natural family ties. Even the convict committed to prison and thereby deprived of his physical liberty often retains the love and support of family members.
"This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.' Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651."
Lassiter v. Department of Social Services, 452 U. S. 18, 452 U. S. 27 (1981). In creating the scheme at issue in this case, the New York Legislature
Page 455 U. S. 788
was expressly aware of this right of parents "to bring up their own children." SSL § 384-b.1.(a)(ii).
On the other side of the termination proceeding are the often countervailing interests of the child. [Footnote 2/13] A stable, loving
Page 455 U. S. 789
home life is essential to a child's physical, emotional, and spiritual wellbeing. It requires no citation of authority to assert that children who are abused in their youth generally face extraordinary problems developing into responsible, productive citizens. The same can be said of children who, though not physically or emotionally abused, are passed from one foster home to another with no constancy of love, trust, or discipline. If the Family Court makes an incorrect factual determination resulting in a failure to terminate a parent-child relationship which rightfully should be ended, the child involved must return either to an abusive home [Footnote 2/14] or to the often unstable world of foster care. [Footnote 2/15] The reality of these
Page 455 U. S. 790
risks is magnified by the fact that the only families faced with termination actions are those which have voluntarily surrendered custody of their child to the State, or, as in this case, those from which the child has been removed by judicial action because of threatened irreparable injury through abuse or neglect. Permanent neglect findings also occur only in families where the child has been in foster care for at least one year.
In addition to the child's interest in a normal home life, "the State has an urgent interest in the welfare of the child." Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 27. [Footnote 2/16] Few could doubt that the most valuable resource of a self-governing society is its population of children, who will one day become adults and themselves assume the responsibility of self-governance.
"A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies."
Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 168 (1944). Thus, "the whole community" has an interest "that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed . . . citizens." Id. at 321 U. S. 165. See also Ginsberg v. New York, 390 U. S. 629, 390 U. S. 640-641 (1968).
When, in the context of a permanent neglect termination proceeding, the interests of the child and the State in a stable,
Page 455 U. S. 791
nurturing home life are balanced against the interests of the parents in the rearing of their child, it cannot be said that either set of interests is so clearly paramount as to require that the risk of error be allocated to one side or the other. Accordingly, a State constitutionally may conclude that the risk of error should be borne in roughly equal fashion by use of the preponderance of the evidence standard of proof. See Addington v. Texas, 441 U.S. at 441 U. S. 423. This is precisely the balance which has been struck by the New York Legislature:
"It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the natural parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating the parental rights and freeing the child for adoption."
SSL § 384-b.1.(b).
III
For the reasons heretofore stated, I believe that the Court today errs in concluding that the New York standard of proof in parental rights termination proceedings violates due process of law. The decision disregards New York's earnest efforts to aid parents in regaining the custody of their children and a host of procedural protections placed around parental rights and interests. The Court finds a constitutional violation only by a tunnel vision application of due process principles that altogether loses sight of the unmistakable fairness of the New York procedure.
Even more worrisome, today's decision cavalierly rejects the considered judgment of the New York Legislature in an area traditionally entrusted to state care. The Court thereby begins, I fear, a trend of federal intervention in state family law matters which surely will stifle creative responses to vexing problems. Accordingly, I dissent.
[Footnote 2/1]
New York Trust Co. v. Eisner, 256 U. S. 345, 256 U. S. 349 (1921).
[Footnote 2/2]
The majority asserts that
"the degree of proof required in a particular type of proceeding 'is the kind of question which has traditionally been left to the judiciary to resolve.' Woodby v. INS, 385 U. S. 276, 385 U. S. 284 (1966)."
Ante at 455 U. S. 755-756. To the extent that the majority seeks, by this statement, to place upon the federal judiciary the primary responsibility for deciding the appropriate standard of proof in state matters, it arrogates to itself a responsibility wholly at odds with the allocation of authority in our federalist system, and wholly unsupported by the prior decisions of this Court. In Woodby v. INS, 385 U. S. 276 (1966), the Court determined the proper standard of proof to be applied under a federal statute, and did so only after concluding that "Congress ha[d] not addressed itself to the question of what degree of proof [was] required in deportation proceedings." Id. at 385 U. S. 284. Beyond an examination for the constitutional minimum of "fundamental fairness" -- which clearly is satisfied by the New York procedures at issue in this case -- this Court simply has no role in establishing the standards of proof that States must follow in the various judicial proceedings they afford to their citizens.
[Footnote 2/3]
Although, as the majority states, we have held that the minimum requirements of procedural due process are a question of federal law, such a holding does not mean that the procedural protections afforded by a State will be inadequate under the Fourteenth Amendment. It means simply that the adequacy of the state-provided process is to be judged by constitutional standards -- standards which the majority itself equates to "fundamental fairness." Ante at 455 U. S. 754. I differ, therefore, not with the majority's statement that the requirements of due process present a federal question, but with its apparent assumption that the presence of "fundamental fairness" can be ascertained by an examination which completely disregards the plethora of protective procedures accorded parents by New York law.
[Footnote 2/4]
The majority refuses to consider New York's procedure as a whole, stating that
"[t]he statutory provision of right to counsel and multiple hearings before termination cannot suffice to protect a natural parent's fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts."
Ante at 455 U. S. 758, n. 9. Implicit in this statement is the conclusion that the risk of error may be reduced to constitutionally tolerable levels only by raising the standard of proof -- that other procedures can never eliminate "undue uncertainty" so long as the standard of proof remains too low. Aside from begging the question of whether the risks of error tolerated by the State in this case are "undue," see infra at 455 U. S. 785-791, this conclusion denies the flexibility that we have long recognized in the principle of due process; understates the error-reducing power of procedural protections such as the right to counsel, evidentiary hearings, rules of evidence, and appellate review; and establishes the standard of proof as the sine qua non of procedural due process.
[Footnote 2/5]
An abused child is one who has been subjected to intentional physical injury
"which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ."
FCA § 1012(e)(i). Sexual offenses against a child are also covered by this category. A neglected child is one
"whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter or education."
FCA § 1012(f)(i)(A).
[Footnote 2/6]
The relatively short time between notice and commencement of hearing provided by § 1048 undoubtedly reflects the State's desire to protect the child. These proceedings are designed to permit prompt action by the court when the child is threatened with imminent and serious physical, mental, or emotional harm.
[Footnote 2/7]
Permanent custody also may be awarded by the Family Court if both parents are deceased, the parents abandoned the child at least six months prior to the termination proceedings, or the parents are unable to provide proper and adequate care by reason of mental illness or mental retardation. SSL § 384-b.4.(c).
[Footnote 2/8]
As to maintaining contact with the child, New York law provides that
"evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such a character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact."
SSL § 384-b.7.(b).
Failure to plan for the future of the child means failure
"to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent."
SSL § 384-b.7.(c).
[Footnote 2/9]
"Diligent efforts" are defined under New York law to
"mean reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to:"
"(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;"
"(2) making suitable arrangements for the parents to visit the child;"
"(3) provision of services and other assistance to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated; and"
"(4) informing the parents at appropriate intervals of the child's progress, development and health."
SSL § 384-b.7.(f).
[Footnote 2/10]
Tina Apel, the oldest of petitioners' five children, was removed from their custody by court order in November, 1973, when she was two years old. Removal proceedings were commenced in response to complaints by neighbors and reports from a local hospital that Tina had suffered injuries in petitioners' home, including a fractured left femur, treated with a homemade splint; bruises on the upper arms, forehead, flank, and spine; and abrasions of the upper leg. The following summer, John Santosky III, petitioners' second oldest child, was also removed from petitioners' custody. John, who was less than one year old at the time, was admitted to the hospital suffering malnutrition, bruises on the eye and forehead, cuts on the foot, blisters on the hand, and multiple pin pricks on the back. Exhibit to Brief for Respondent Kramer 1. Jed Santosky, the third oldest of petitioners' children, was removed from his parents' custody when only three days old as a result of the abusive treatment of the two older children.
[Footnote 2/11]
The majority finds, without any reference to the facts of this case, that "numerous factors [in New York termination proceedings] combine to magnify the risk of erroneous factfinding." Ante at 455 U. S. 762. Among the factors identified by the majority are the "unusual discretion" of the Family Court judge "to underweigh probative facts that might favor the parent"; the often uneducated, minority status of the parents and their consequent "vulnerab[ility] to judgments based on cultural or class bias"; the "State's ability to assemble its case," which "dwarfs the parents' ability to mount a defense" by including an unlimited budget, expert attorneys, and "full access to all public records concerning the family"; and the fact that "natural parents have no double jeopardy' defense against repeated state" efforts, "with more or better evidence," to terminate parental rights "even when the parents have attained the level of fitness required by the State." Ante at 455 U. S. 762, 455 U. S. 763, 455 U. S. 764. In short, the majority characterizes the State as a wealthy and powerful bully bent on taking children away from defenseless parents. See ante at 455 U. S. 761-764. Such characterization finds no support in the record.
The intent of New York has been stated with eminent clarity: "the [S]tate's first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home." SSL § 384-b.1.(a)(iii) (emphasis added). There is simply no basis in fact for believing, as the majority does, that the State does not mean what it says; indeed, the facts of this case demonstrate that New York has gone the extra mile in seeking to effectuate its declared purpose. See supra at 455 U. S. 781-785. More importantly, there should be no room in the jurisprudence of this Court for decisions based on unsupported, inaccurate assumptions.
A brief examination of the "factors" relied upon by the majority demonstrates its error. The "unusual" discretion of the Family Court judge to consider the "affectio[n] and concer[n]'" displayed by parents during visits with their children, ante at 455 U. S. 763, n. 12, is nothing more than discretion to consider reality; there is not one shred of evidence in this case suggesting that the determination of the Family Court was "based on cultural or class bias"; if parents lack the "ability to mount a defense," the State provides them with the full services of an attorney, FCA § 262, and they, like the State, have "full access to all public records concerning the family" (emphasis added); and the absence of "double jeopardy" protection simply recognizes the fact that family problems are often ongoing, and may in the future warrant action that currently is unnecessary. In this case, the Family Court dismissed the first termination petition because it desired to give petitioners "the benefit of the doubt," Exhibit to Brief for Respondent Kramer 620, and a second opportunity to raise themselves to "an acceptable minimal level of competency as parents." Id. at 455 U. S. 624. It was their complete failure to do so that prompted the second, successful termination petition. See supra at 455 U. S. 781-784 and this page.
[Footnote 2/12]
It is worth noting that the significance of the standard of proof in New York parental termination proceedings differs from the significance of the standard in other forms of litigation. In the usual adjudicatory setting, the factfinder has had little or no prior exposure to the facts of the case. His only knowledge of those facts comes from the evidence adduced at trial, and he renders his findings solely upon the basis of that evidence. Thus, normally, the standard of proof is a crucial factor in the final outcome of the case, for it is the scale upon which the factfinder weighs his knowledge and makes his decision.
Although the standard serves the same function in New York parental termination proceedings, additional assurances of accuracy are present in its application. As was adduced at oral argument, the practice in New York is to assign one judge to supervise a case from the initial temporary removal of the child to the final termination of parental rights. Therefore, as discussed above, the factfinder is intimately familiar with the case before the termination proceedings ever begin. Indeed, as in this case, he often will have been closely involved in protracted efforts to rehabilitate the parents. Even if a change in judges occurs, the Family Court retains jurisdiction of the case, and the newly assigned judge may take judicial notice of all prior proceedings. Given this familiarity with the case, and the necessarily lengthy efforts which must precede a termination action in New York, decisions in termination cases are made by judges steeped in the background of the case and peculiarly able to judge the accuracy of evidence placed before them. This does not mean that the standard of proof in these cases can escape due process scrutiny, only that additional assurances of accuracy attend the application of the standard in New York termination proceedings.
[Footnote 2/13]
The majority dismisses the child's interest in the accuracy of determinations made at the factfinding hearing because "[t]he factfinding does not purport . . . to balance the child's interest in a normal family home against the parents' interest in raising the child," but instead "pits the State directly against the parents." Ante at 455 U. S. 759. Only "[a]fter the State has established parental unfitness," the majority reasons, may the court "assume . . . that the interests of the child and the natural parents do diverge." Ante at 455 U. S. 760.
This reasoning misses the mark. The child has an interest in the outcome of the factfinding hearing independent of that of the parent. To be sure, "the child and his parents share a vital interest in preventing erroneous termination of their natural relationship." Ibid. (emphasis added). But the child's interest in a continuation of the family unit exists only to the extent that such a continuation would not be harmful to him. An error in the factfinding hearing that results in a failure to terminate a parent-child relationship which rightfully should be terminated may well detrimentally affect the child. See nn. 14, 15, infra.
The preponderance of the evidence standard, which allocates the risk of error more or less evenly, is employed when the social disutility of error in either direction is roughly equal -- that is, when an incorrect finding of fault would produce consequences as undesirable as the consequences that would be produced by an incorrect finding of no fault. Only when the disutility of error in one direction discernibly outweighs the disutility of error in the other direction do we choose, by means of the standard of proof, to reduce the likelihood of the more onerous outcome. See In re Winship, 397 U. S. 358, 397 U. S. 370-372 (1970) (Harlan, J., concurring).
New York's adoption of the preponderance of the evidence standard reflects its conclusion that the undesirable consequence of an erroneous finding of parental unfitness -- the unwarranted termination of the family relationship -- is roughly equal to the undesirable consequence of an erroneous finding of parental fitness -- the risk of permanent injury to the child either by return of the child to an abusive home or by the child's continued lack of a permanent home. See nn. 14, 15, infra. Such a conclusion is well within the province of state legislatures. It cannot be said that the New York procedures are unconstitutional simply because a majority of the Members of this Court disagree with the New York Legislature's weighing of the interests of the parents and the child in an error-free factfinding hearing.
[Footnote 2/14]
The record in this case illustrates the problems that may arise when a child is returned to an abusive home. Eighteen months after Tina, petitioners' oldest child, was first removed from petitioners' home, she was returned to the home on a trial basis. Katherine Weiss, a supervisor in the Child Protective Unit of the Ulster County Child Welfare Department, later testified in Family Court that "[t]he attempt to return Tina to her home just totally blew up." Exhibit to Brief for Respondent Kramer 135. When asked to explain what happened, Mrs. Weiss testified that
"there were instances on the record in this court of Mr. Santosky's abuse of his wife, alleged abuse of the children, and proven neglect of the children."
Ibid. Tina again was removed from the home, this time along with John and Jed.
[Footnote 2/15]
The New York Legislature recognized the potential harm to children of extended, nonpermanent foster care. It found
"that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens."
SSL § 384-b.1.(b). Subsequent studies have proved this finding correct. One commentator recently wrote of "the lamentable conditions of many foster care placements" under the New York system even today. He noted:
"Over fifty percent of the children in foster care have been in this "
"temporary" status for more than two years; over thirty percent for more than five years. During this time, many children are placed in a sequence of ill-suited foster homes, denying them the consistent support and nurturing that they so desperately need.
Besharov, State Intervention To Protect Children: New York's Definition of "Child Abuse" and "Child Neglect," 26 N.Y.L.S.L.Rev. 723, 770-771 (1981) (footnotes omitted). In this case, petitioners' three children have been in foster care for more than four years, one child since he was only three days old. Failure to terminate petitioners' parental rights will only mean a continuation of this unsatisfactory situation.
[Footnote 2/16]
The majority's conclusion that a state interest in the child's wellbeing arises only after a determination of parental unfitness suffers from the same error as its assertion that the child has no interest, separate from that of its parents, in the accuracy of the factfinding hearing. See n. 13, supra.
Also District of Columbia Court of Appeals conclude that the lower trial court erred in rejecting the relative custodial arrangement selected by the natural mother who tried to preserve her relationship with the child. The previous judgment granting the foster mother's adoption petition was reversed, and the case remanded to the trial court to vacate the orders granting adoption and denying custody, and to enter an order granting custody to the child's relative.
U.S. Supreme Court
Santosky v. Kramer, 455 U.S. 745 (1982)
Santosky v. Kramer
No. 80-5889
Argued November 10, 1981
Decided March 24, 1982
455 U.S. 745
CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF
NEW YORK, THIRD JUDICIAL DEPARTMENT
Syllabus
Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." The New York Family Court Act (§ 622) requires that only a "fair preponderance of the evidence" support that finding. Neglect proceedings were brought in Family Court to terminate petitioners' rights as natural parents in their three children. Rejecting petitioners' challenge to the constitutionality of § 622's "fair preponderance of the evidence" standard, the Family Court weighed the evidence under that standard and found permanent neglect. After a subsequent dispositional hearing, the Family Court ruled that the best interests of the children required permanent termination of petitioners' custody. The Appellate Division of the New York Supreme Court affirmed, and the New York Court of Appeals dismissed petitioners' appeal to that court.
Held:
1. Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. Pp. 455 U. S. 752-757.
(a) The fundamental liberty interest of natural parents in the care custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. A parental rights termination proceeding interferes with that fundamental liberty interest. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Pp. 455 U. S. 752-754.
(b) The nature of the process due in parental rights termination proceedings turns on a balancing of three factors: the private interests affected by the proceedings; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335. In any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the public and
Page 455 U. S. 746
private interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. The minimum standard is a question of federal law which this Court may resolve. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard. Pp. 455 U. S. 754-757.
2. The "fair preponderance of the evidence" standard prescribed by § 622 violates the Due Process Clause of the Fourteenth Amendment. Pp. 455 U. S. 758-768.
(a) The balance of private interests affected weighs heavily against use of such a standard in parental rights termination proceedings, since the private interest affected is commanding, and the threatened loss is permanent. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. Pp. 455 U. S. 758-761.
(b) A preponderance standard does not fairly allocate the risk of an erroneous factfinding between the State and the natural parents. In parental rights termination proceedings, which bear many of the indicia of a criminal trial, numerous factors combine to magnify the risk of erroneous factfinding. Coupled with the preponderance standard, these factors create a significant prospect of erroneous termination of parental rights. A standard of proof that allocates the risk of error nearly equally between an erroneous failure to terminate, which leaves the child in an uneasy status quo, and an erroneous termination, which unnecessarily destroys the natural family, does not reflect properly the relative severity of these two outcomes. Pp. 455 U. S. 761-766.
(c) A standard of proof more strict than preponderance of the evidence is consistent with the two state interests at stake in parental rights termination proceedings -- a parens patriae interest in preserving and promoting the child's welfare and a fiscal and administrative interest in reducing the cost and burden of such proceedings. Pp. 455 U. S. 766-768.
3. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. A "clear and convincing evidence" standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. Determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Pp. 455 U. S. 768-770.
75 App.Div.2d 910, 427 N.Y.S.2d 319, vacated and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a
Page 455 U. S. 747
dissenting opinion, in which BURGER, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 455 U. S. 770.
JUSTICE BLACKMUN delivered the opinion of the Court.
Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected." N.Y.Soc.Serv.Law §§ 384-b.4.(d), 384-b.7.(a) (McKinney Supp.1981-1982) (Soc.Serv.Law). The New York Family Court Act § 622 (McKinney 1975 and Supp.1981-1982) (Fam.Ct.Act) requires that only a "fair preponderance of the evidence" support that finding. Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action.
Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in
Page 455 U. S. 748
their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.
I
A
New York authorizes its officials to remove a child temporarily from his or her home if the child appears "neglected," within the meaning of Art. 10 of the Family Court Act. See §§ 1012(f), 1021-1029. Once removed, a child under the age of 18 customarily is placed "in the care of an authorized agency," Soc.Serv.Law § 384-b.7.(a), usually a state institution or a foster home. At that point, "the state's first obligation is to help the family with services to . . . reunite it. . . ." § 384-b.1.(a)(iii). But if convinced that "positive, nurturing parent-child relationships no longer exist," § 384-b.1.(b), the State may initiate "permanent neglect" proceedings to free the child for adoption.
The State bifurcates its permanent neglect proceeding into "factfinding" and "dispositional" hearings. Fam.Ct.Act §§ 622, 623. At the factfinding stage, the State must prove that the child has been "permanently neglected," as defined by Fam.Ct.Act §§ 614.1.(a)-(d) and Soc.Serv.Law § 384-b.7.(a). See Fam.Ct.Act § 622. The Family Court judge then determines at a subsequent dispositional hearing what placement would serve the child's best interests. §§ 623, 631.
At the factfinding hearing, the State must establish, among other things, that, for more than a year after the child entered state custody, the agency "made diligent efforts to encourage and strengthen the parental relationship." Fam.Ct.Act §§ 614.1.(c), 611. The State must further prove that, during that same period, the child's natural parents failed
"substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so."
§ 614.1.(d). Should the State support its allegations by "a fair preponderance of the evidence," § 622, the child may be declared permanently neglected.
Page 455 U. S. 749
§ 611. That declaration empowers the Family Court judge to terminate permanently the natural parents' rights in the child. §§ 631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of, the child. [Footnote 1]
New York's permanent neglect statute provides natural parents with certain procedural protections. [Footnote 2] But New York permits its officials to establish "permanent neglect" with less proof than most States require. Thirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a "fair preponderance of the evidence." [Footnote 3] The only analogous federal statute of which we are aware
Page 455 U. S. 750
permits termination of parental rights solely upon "evidence beyond a reasonable doubt." Indian Child Welfare Act of 1978, Pub.L. 95-608, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp. IV). The question here is whether
Page 455 U. S. 751
New York's "fair preponderance of the evidence" standard is constitutionally sufficient.
B
Petitioners John Santosky II and Annie Santosky are the natural parents of Tina and John III. In November, 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under Fam.Ct.Act § 1022 and removed Tina from her natural home. About 10 months later, he removed John III and placed him with foster parents. On the day John was taken, Annie Santosky gave birth to a third child, Jed. When Jed was only three days old, respondent transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health.
In October, 1978, respondent petitioned the Ulster County Family Court to terminate petitioners' parental rights in the three children. [Footnote 4] Petitioners challenged the constitutionality of the "fair preponderance of the evidence" standard specified in Fam.Ct.Act § 622. The Family Court Judge rejected this constitutional challenge, App. 29 30, and weighed the evidence under the statutory standard. While acknowledging that the Santoskys had maintained contact with their children, the judge found those visits, "at best, superficial and devoid of any real emotional content." Id. at 21. After
Page 455 U. S. 752
deciding that the agency had made "diligent efforts' to encourage and strengthen the parental relationship," id. at 30, he concluded that the Santoskys were incapable, even with public assistance, of planning for the future of their children. Id. at 33-37. The judge later held a dispositional hearing and ruled that the best interests of the three children required permanent termination of the Santoskys' custody. [Footnote 5] Id. at 39.
Petitioners appealed, again contesting the constitutionality of § 622's standard of proof. [Footnote 6] The New York Supreme Court, Appellate Division, affirmed, holding application of the preponderance of the evidence standard "proper and constitutional." In re John AA, 75 App.Div.2d 910, 427 N.Y.S.2d 319, 320 (1980). That standard, the court reasoned, "recognizes and seeks to balance rights possessed by the child . . . with those of the natural parents. . . ." Ibid.
The New York Court of Appeals then dismissed petitioners' appeal to that court "upon the ground that no substantial constitutional question is directly involved." App. 55. We granted certiorari to consider petitioners' constitutional claim. 450 U.S. 993 (1981).
II
Last Term, in Lassiter v. Department of Social Services, 452 U. S. 18 (1981), this Court, by a 5-4 vote, held that the
Page 455 U. S. 753
Fourteenth Amendment's Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The case casts light, however, on the two central questions her -- whether process is constitutionally due a natural parent at a State's parental rights termination proceeding, and, if so, what process is due.
In Lassiter, it was
"not disputed that state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause."
Id. at 452 U. S. 37 (first dissenting opinion); see id. at 452 U. S. 24-32 (opinion of the Court); id. at 452 U. S. 59-60 (STEVENS, J., dissenting). See also Little v. Streater, 452 U. S. 1, 452 U. S. 13 (1981). The absence of dispute reflected this Court's historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, 434 U. S. 246, 434 U. S. 255 (1978); Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 845 (1977); Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 499 (1977) (plurality opinion); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 414 U. S. 639-640 (1974); Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651-652 (1972); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399 (1923).
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to
Page 455 U. S. 754
destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. [Footnote 7]
In Lassiter, the Court and three dissenters agreed that the nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335 (1976): the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. See 452 U.S. at 452 U. S. 27-31; id. at 452 U. S. 37-48 (first dissenting opinion). But see id. at 452 U. S. 59-60 (STEVENS, J., dissenting). While the respective Lassiter opinions disputed whether those factors should be weighed against a presumption disfavoring appointed counsel for one not threatened with loss of physical liberty, compare 452 U.S. at 452 U. S. 31-32, with id. at 452 U. S. 41, and n. 8 (first dissenting opinion), that concern is irrelevant here. Unlike the Court's right-to-counsel rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the Court has engaged in a straightforward consideration of the factors identified in Eldridge to determine whether a particular standard of proof in a particular proceeding satisfies due process.
In Addington v. Texas, 441 U. S. 418 (1979), the Court, by a unanimous vote of the participating Justices, declared:
"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to
Page 455 U. S. 755
'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'"
Id. at 441 U. S. 423, quoting In re Winship, 397 U. S. 358, 397 U. S. 370 (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.
Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a "fair preponderance of the evidence" standard indicates both society's "minimal concern with the outcome," and a conclusion that the litigants should "share the risk of error in roughly equal fashion." 441 U.S. at 441 U. S. 423. When the State brings a criminal action to deny a defendant liberty or life, however,
"the interests of the defendant are of such magnitude that historically, and without any explicit constitutional requirement, they have been protected by standards of proof designed to exclude, as nearly as possible, the likelihood of an erroneous judgment."
Ibid. The stringency of the "beyond a reasonable doubt" standard bespeaks the "weight and gravity" of the private interest affected, id. at 441 U. S. 427, society's interest in avoiding erroneous convictions, and a judgment that those interests together require that "society impos[e] almost the entire risk of error upon itself." Id. at 441 U. S. 424. See also In re Winship, 397 U.S. at 397 U. S. 372 (Harlan, J., concurring).
The "minimum requirements [of procedural due process] being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action."
Vitek v. Jones, 445 U. S. 480, 445 U. S. 491 (1980). See also Logan v. Zimmerman Brush Co., ante at 455 U. S. 432. Moreover, the degree of proof required in a particular type of proceeding "is the kind of question which has
Page 455 U. S. 756
traditionally been left to the judiciary to resolve."
Woodby v. INS, 385 U. S. 276, 385 U. S. 284 (1966). [Footnote 8]
"In cases involving individual rights, whether criminal or civil, '[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.'"
Addington v. Texas, 441 U.S. at 441 U. S. 425, quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (opinion concurring in part and dissenting in part), cert. dism'd sub nom. Murel v. Baltimore City Criminal Court, 407 U. S. 355 (1972).
This Court has mandated an intermediate standard of proof -- "clear and convincing evidence" -- when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." Addington v. Texas, 441 U.S. at 441 U. S. 424. Notwithstanding "the state's civil labels and good intentions,'" id. at 441 U. S. 427, quoting In re Winship, 397 U.S. at 397 U. S. 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma." 441 U.S. at 441 U. S. 425, 426. See, e.g., Addington v. Texas, supra, (civil commitment); Woodby v. INS, 385 U.S. at 385 U. S. 285 (deportation); Chaunt v. United States, 364 U. S. 350, 364 U. S. 353 (1960) (denaturalization);
Page 455 U. S. 757
Schneiderman v. United States, 320 U. S. 118, 320 U. S. 125, 320 U. S. 159 (1943) (denaturalization).
In Lassiter, to be sure, the Court held that fundamental fairness may be maintained in parental rights termination proceedings even when some procedures are mandated only on a case-by-case basis, rather than through rules of general application. 452 U.S. at 452 U. S. 31-32 (natural parent's right to court-appointed counsel should be determined by the trial court, subject to appellate review). But this Court never has approved case-by-case determination of the proper standard of proof for a given proceeding. Standards of proof, like other
"procedural due process rules[,] are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions."
Mathews v. Eldridge, 424 U.S. at 424 U. S. 344 (emphasis added). Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard. [Footnote 9]
Page 455 U. S. 758
III
In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a "fair preponderance of the evidence" standard in such proceedings is inconsistent with due process.
A
"The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.'"
Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 262-263 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 341 U. S. 168 (1951) (Frankfurter, J., concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
Lassiter declared it "plain beyond the need for multiple citation" that a natural parent's "desire for, and right to, the companionship, care, custody, and management of his or her children'" is an interest far more precious than any property
Page 455 U. S. 759
right. 452 U.S. at 452 U. S. 27, quoting Stanley v. Illinois, 405 U.S. at 405 U. S. 651. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.
"If the State prevails, it will have worked a unique kind of deprivation. . . . A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one."
452 U.S. at 452 U. S. 27.
In government-initiated proceedings to determine juvenile delinquency, In re Winship, supra; civil commitment, Addington v. Texas, supra; deportation, Woodby v. INS, supra; and denaturalization, Chaunt v. United States, supra, and Schneiderman v. United States, supra, this Court has identified losses of individual liberty sufficiently serious to warrant imposition of an elevated burden of proof. Yet juvenile delinquency adjudications, civil commitment, deportation, and denaturalization, at least to a degree, are all reversible official actions. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. See n 1, supra. Few forms of state action are both so severe and so irreversible.
Thus, the first Eldridge factor -- the private interest affected -- weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding. We do not deny that the child and his foster parents are also deeply interested in the outcome of that contest. But at the factfinding stage of the New York proceeding, the focus emphatically is not on them.
The factfinding does not purport -- and is not intended -- to balance the child's interest in a normal family home against the parents' interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the factfinding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault. Fam.Ct.Act § 614.1.(d). The questions disputed and decided are
Page 455 U. S. 760
what the State did -- "made diligent efforts," § 614.1.(c) -- and what the natural parents did not do -- "maintain contact with or plan for the future of the child." § 614.1.(d). The State marshals an array of public resources to prove its case and disprove the parents' case. Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children. [Footnote 10]
At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam.Ct.Act § 631 (judge shall make his order "solely on the basis of the best interests of the child," and thus has no obligation to consider the natural parents' rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. [Footnote 11] Thus,
Page 455 U. S. 761
at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.
However substantial the foster parents' interests may be, cf. Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 845-847, they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents. If authorized, the foster parents may pit their interests directly against those of the natural parents by initiating their own permanent neglect proceeding. Fam.Ct.Act § 1055(d); Soc.Serv.Law §§ 3846.3(b), 392.7.(c). Alternatively, the foster parents can make their case for custody at the dispositional stage of a state-initiated proceeding, where the judge already has decided the issue of permanent neglect and is focusing on the placement that would serve the child's best interests. Fam.Ct.Act §§ 623, 631. For the foster parents, the State's failure to prove permanent neglect may prolong the delay and uncertainty until their foster child is freed for adoption. But for the natural parents, a finding of permanent neglect can cut off forever their rights in their child. Given this disparity of consequence, we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections.
B
Under Mathews v. Eldridge, we next must consider both the risk of erroneous deprivation of private interests resulting from use of a "fair preponderance" standard and the likelihood that a higher evidentiary standard would reduce that risk. See 424 U.S. at 424 U. S. 335. Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties.
Page 455 U. S. 762
In New York, the factfinding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial. Cf. Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 42-44 (first dissenting opinion); Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954, 959 (1971) (Black, J., dissenting from denial of certiorari). See also dissenting opinion, post at 455 U. S. 777-779 (describing procedures employed at factfinding proceeding). The Commissioner of Social Services charges the parents with permanent neglect. They are served by summons. Fam.Ct.Act §§ 614, 616, 617. The factfinding hearing is conducted pursuant to formal rules of evidence. § 624. The State, the parents, and the child are all represented by counsel. §§ 249, 262. The State seeks to establish a series of historical facts about the intensity of its agency's efforts to reunite the family, the infrequency and insubstantiality of the parents' contacts with their child, and the parents' inability or unwillingness to formulate a plan for the child's future. The attorneys submit documentary evidence, and call witnesses who are subject to cross-examination. Based on all the evidence, the judge then determines whether the State has proved the statutory elements of permanent neglect by a fair preponderance of the evidence. § 622.
At such a proceeding, numerous factors combine to magnify the risk of erroneous factfinding. Permanent neglect proceedings employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge. See Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 835, n. 36. In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent. [Footnote 12]
Page 455 U. S. 763
Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, id. at 431 U. S. 833-835, such proceedings are often vulnerable to judgments based on cultural or class bias.
The State's ability to assemble its case almost inevitably dwarfs the parents' ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State's attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency's own professional caseworkers, whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination. [Footnote 13]
Page 455 U. S. 764
The disparity between the adversaries' litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no "double jeopardy" defense against repeated state termination efforts. If the State initially fails to win termination, as New York did here, see n 4, supra, it always can try once again to cut off the parents' rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.
Coupled with a "fair preponderance of the evidence" standard, these factors create a significant prospect of erroneous termination. A standard of proof that, by its very terms, demands consideration of the quantity, rather than the quality, of the evidence may misdirect the factfinder in the marginal case. See In re Winship, 397 U.S. at 397 U. S. 371, n. 3 (Harlan, J., concurring). Given the weight of the private interests at stake, the social cost of even occasional error is sizable.
Raising the standard of proof would have both practical and symbolic consequences. Cf. Addington v. Texas, 441 U.S. at 441 U. S. 426. The Court has long considered the heightened standard of proof used in criminal prosecutions to be "a prime instrument for reducing the risk of convictions resting on factual error." In re Winship, 397 U.S. at 397 U. S. 363. An elevated standard of proof in a parental rights termination proceeding would alleviate
"the possible risk that a factfinder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or] . . . idiosyncratic behavior."
Addington v. Texas, 441 U.S. at 441 U. S. 427.
"Increasing the burden of proof is one way to impress the factfinder with the importance
Page 455 U. S. 765
of the decision, and thereby perhaps to reduce the chances that inappropriate"
terminations will be ordered. Ibid.
The Appellate Division approved New York's preponderance standard on the ground that it properly "balanced rights possessed by the child . . . with those of the natural parents. . . ." 75 App.Div.2d at 910, 427 N.Y.S.2d at 320. By so saying, the court suggested that a preponderance standard properly allocates the risk of error between the parents and the child. [Footnote 14] That view is fundamentally mistaken.
The court's theory assumes that termination of the natural parents' rights invariably will benefit the child. [Footnote 15] Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court's assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Cf. In re Winship, 397 U.S. at 397 U. S. 371 (Harlan, J., concurring). For the child, the likely consequence of an erroneous failure to terminate is preservation of
Page 455 U. S. 766
an uneasy status quo. [Footnote 16] For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity.
C
Two state interests are at stake in parental rights termination proceedings -- a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings. A standard of proof more strict than preponderance of the evidence is consistent with both interests.
"Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision" at the factfinding proceeding. Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 27. As parens patriae, the State's goal is to provide the child with a permanent home. See Soc.Serv.Law § 384-b.1.(a)(i) (statement of legislative findings and intent). Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not
Page 455 U. S. 767
severance, of natural familial bonds. [Footnote 17] § 384-b.1.(a)(ii). "[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents." Stanley v. Illinois, 405 U.S. at 405 U. S. 652.
The State's interest in finding the child an alternative permanent home arises only "when it is clear that the natural parent cannot or will not provide a normal family home for the child." Soc.Serv.Law § 384-b.1.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.
Unlike a constitutional requirement of hearings, see, e.g., Mathews v. Eldridge, 424 U.S. at 424 U. S. 347, or court-appointed counsel, a stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State. As we have observed, 35 States already have adopted a higher standard by statute or court decision without apparent effect on the speed, form, or cost of their factfinding proceedings. See n 3, supra.
Nor would an elevated standard of proof create any real administrative burdens for the State's factfinders. New York Family Court judges already are familiar with a higher evidentiary standard in other parental rights termination proceedings not involving permanent neglect. See Soc.Serv.Law §§ 384-b.3.(g), 384-b.4.(c), and 384-b.4.(e) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse). New York also demands at least clear and convincing evidence in proceedings of far less moment than parental rights termination proceedings. See, e.g., N.Y.Veh. & Traf.Law § 227.1 (McKinney Supp.1981) (requiring the State to prove traffic
Page 455 U. S. 768
infractions by "clear and convincing evidence") and In re Rosenthal v. Hartnett, 36 N.Y.2d 269 326 N.E.2d 811 (1975); see also Ross v. Food Specialties, Inc., 6 N.Y.2d 336, 341, 160 N.E.2d 618, 620 (1959) (requiring "clear, positive and convincing evidence" for contract reformation). We cannot believe that it would burden the State unduly to require that its factfinders have the same factual certainty when terminating the parent-child relationship as they must have to suspend a driver's license.
IV
The logical conclusion of this balancing process is that the "fair preponderance of the evidence" standard prescribed by Fam.Ct.Act § 622 violates the Due Process Clause of the Fourteenth Amendment. [Footnote 18] The Court noted in Addington:
"The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state."
441 U.S. at 441 U. S. 427. Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable. The next question, then, is whether a "beyond a reasonable doubt" or a "clear and convincing" standard is constitutionally mandated.
In Addington, the Court concluded that application of a reasonable doubt standard is inappropriate in civil commitment proceedings for two reasons -- because of our hesitation to apply that unique standard "too broadly or casually in noncriminal cases," id. at 441 U. S. 428, and because the psychiatric evidence ordinarily adduced at commitment proceedings is
Page 455 U. S. 769
rarely susceptible to proof beyond a reasonable doubt. Id. at 441 U. S. 429-430, 449 U. S. 432-433. To be sure, as has been noted above, in the Indian Child Welfare Act of 1978, Pub.L. 9508, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp. IV), Congress requires "evidence beyond a reasonable doubt" for termination of Indian parental rights, reasoning that "the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty. . . ." H.R.Rep. No. 95-1386, p. 22 (1978). Congress did not consider, however, the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all state-initiated parental rights termination hearings.
Like civil commitment hearings, termination proceedings often require the factfinder to evaluate medical and psychiatric testimony, and to decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress. Cf. Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 30; id. at 452 U. S. 44-46 (first dissenting opinion) (describing issues raised in state termination proceedings). The substantive standards applied vary from State to State. Although Congress found a "beyond a reasonable doubt" standard proper in one type of parental rights termination case, another legislative body might well conclude that a reasonable doubt standard would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.
A majority of the States have concluded that a "clear and convincing evidence" standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns. See n 3, supra. We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard
Page 455 U. S. 770
is a matter of state law properly left to state legislatures and state courts. Cf. Addington v. Texas, 441 U.S. at 441 U. S. 433.
We, of course, express no view on the merits of petitioners' claims. [Footnote 19] At a hearing conducted under a constitutionally proper standard, they may or may not prevail. Without deciding the outcome under any of the standards we have approved, we vacate the judgment of the Appellate Division and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
[Footnote 1]
At oral argument, counsel for petitioners asserted that, in New York, natural parents have no means of restoring terminated parental rights. Tr. of Oral Arg. 9. Counsel for respondents, citing Fam.Ct.Act § 1061, answered that parents may petition the Family Court to vacate or set aside an earlier order on narrow grounds, such as newly discovered evidence or fraud. Tr. of Oral Arg. 26. Counsel for respondents conceded, however that this statutory provision has never been invoked to set aside a permanent neglect finding. Id. at 27.
[Footnote 2]
Most notably, natural parents have a statutory right to the assistance of counsel and of court-appointed counsel if they are indigent. Fam.Ct.Act § 262.(a)(iii).
[Footnote 3]
Fifteen States, by statute, have required "clear and convincing evidence" or its equivalent. See Alaska Stat.Ann. § 47.10.080(c)(3) (1980); Cal.Civ.Code Ann. § 232(a)(7) (West Supp.1982); Ga.Code §§ 24A-2201(c), 24A-3201 (1979); Iowa Code § 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 § 492(c) (1980) ("clear and convincing proof"); Wis.Stat. § 48.31(1) (Supp. 1981-1982).
Fifteen States, the District of Columbia, and the Virgin Islands, by court decision, have required "clear and convincing evidence" or its equivalent. See Dale County Dept. of Pensions & Security v. Robles, 368 So.2d 39, 42 (Ala.Civ.App.1979); Harper v. Caskin, 265 Ark. 558, 560-561, 580 S.W.2d 176, 178 (1979); In re J.S.R., 374 A.2d 860, 864 (D.C.1977); Torres v. Van Eepoel, 98 So.2d 735, 737 (Fla.1957); In re Kerns, 225 Kan. 746, 753, 594 P.2d 187, 193 (1979); In re Rosenbloom, 266 N.W.2d 888, 889 (Minn.1978) ("clear and convincing proof "); In re J.L.B., 182 Mont. 100, 116-117, 594 P.2d 1127, 1136 (1979); In re Souza, 204 Neb. 503, 510, 283 N.W.2d 48, 52 (1979); J. v. M., 157 N.J.Super. 478, 489, 385 A.2d 240, 246 (App.Div.1978); In re J. A., 283 N.W.2d 83, 92 (N.D.1979); In re Darren Todd H., 615 P.2d 287, 289 (Okla.1980); In re William. L., 477 Pa. 322, 332, 383 A.2d 1228, 1233, cert. denied sub nom. Lehman v. Lycoming County Children's Services, 439 U.S. 880 (1978); In re G.M., 596 S.W.2d 846, 847 (Tex.1980); In re Pitts, 535 P.2d 1244, 1248 (Utah 1975); In re Maria, 15 V.I. 368, 384 (1978); In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831, 833 (1973) ("clear, cogent, and convincing evidence"); In re X., 607 P.2d 911, 919 (Wyo.1980) ("clear and unequivocal").
South Dakota's Supreme Court has required a "clear preponderance" of the evidence in a dependency proceeding. See In re B.E., 287 N.W.2d 91, 96 (1979). Two States, New Hampshire and Louisiana, have barred parental rights terminations unless the key allegations have been proved beyond a reasonable doubt. See State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978); La.Rev.Stat.Ann. § 13:1603.A (West Supp.1982). Two States, Illinois and New York, have required clear and convincing evidence, but only in certain types of parental rights termination proceedings. See Ill.Rev.Stat., ch. 37, �� 705-9(2), (3) (1979), amended by Act of Sept. 11, 1981, 1982 Ill. Laws, P.A. 82-437 (generally requiring a preponderance of the evidence, but requiring clear and convincing evidence to terminate the rights of minor parents and mentally ill or mentally deficient parents); N.Y.Soc.Serv.Law §§ 384-b.3(g), 384-b.4(c), and 384-b.4(e) (Supp.1981-1982) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse).
So far as we are aware, only two federal courts have addressed the issue. Each has held that allegations supporting parental rights termination must be proved by clear and convincing evidence. Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1194 (SD Tex.1977), rev'd on other grounds sub nom. Moore v. Sims, 442 U. S. 415 (1979); Alsager v. District Court of Polk County, 406 F.Supp. 10, 25 (SD Iowa 1975), aff'd on other grounds, 545 F.2d 1137 (CA8 1976).
[Footnote 4]
Respondent had made an earlier and unsuccessful termination effort in September, 1976. After a factfinding hearing, the Family Court Judge dismissed respondent's petition for failure to prove an essential element of Fam.Ct.Act § 614.1.(d). See In re Santosky, 89 Misc.2d 730, 393 N.Y.S.2d 486 (1977). The New York Supreme Court, Appellate Division, affirmed, finding that "the record as a whole" revealed that petitioners had "substantially planned for the future of the children." In re John W., 63 App.Div.2d 750, 751, 404 N.Y.S.2d 717, 719 (1978).
[Footnote 5]
Since respondent Kramer took custody of Tina, John III, and Jed, the Santoskys have had two other children, James and Jeremy. The State has taken no action to remove these younger children. At oral argument, counsel for respondents replied affirmatively when asked whether he was asserting that petitioners were "unfit to handle the three older ones, but not unfit to handle the two younger ones." Tr. of Oral Arg. 24.
[Footnote 6]
Petitioners initially had sought review in the New York Court of Appeals. That court sua sponte transferred the appeal to the Appellate Division, Third Department, stating that a direct appeal did not lie because "questions other than the constitutional validity of a statutory provision are involved." App. 50.
[Footnote 7]
We therefore reject respondent Kramer's claim that a parental rights termination proceeding does not interfere with a fundamental liberty interest. See Brief for Respondent Kramer 11-18; Tr. of Oral Arg. 38. The fact that important liberty interests of the child and its foster parents may also be affected by a permanent neglect proceeding does not justify denying the natural parents constitutionally adequate procedures. Nor can the State refuse to provide natural parents adequate procedural safeguards on the ground that the family unit already has broken down; that is the very issue the permanent neglect proceeding is meant to decide.
[Footnote 8]
The dissent charges, post at 455 U. S. 772, n. 2, that
"this Court simply has no role in establishing the standards of proof that States must follow in the various judicial proceedings they afford to their citizens."
As the dissent properly concedes, however, the Court must examine a State's chosen standard to determine whether it satisfies "the constitutional minimum of fundamental fairness.'" Ibid. See, e.g., Addington v. Texas, 441 U. S. 418, 441 U. S. 427, 441 U. S. 433 (1979) (unanimous decision of participating Justices) (Fourteenth Amendment requires at least clear and convincing evidence in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital); In re Winship, 397 U. S. 358, 397 U. S. 364 (1970) (Due Process Clause of the Fourteenth Amendment protects the accused in state proceeding against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged).
[Footnote 9]
For this reason, we reject the suggestions of respondents and the dissent that the constitutionality of New York's statutory procedures must be evaluated as a "package." See Tr. of Oral Arg. 25, 36, 38. Indeed, we would rewrite our precedents were we to excuse a constitutionally defective standard of proof based on an amorphous assessment of the "cumulative effect" of state procedures. In the criminal context, for example, the Court has never assumed that "strict substantive standards or special procedures compensate for a lower burden of proof. . . ." Post at 455 U. S. 773. See In re Winship, 397 U.S. at 397 U. S. 368. Nor has the Court treated appellate review as a curative for an inadequate burden of proof. See Woodby v. INS, 385 U. S. 276, 385 U. S. 282 (1966) ("judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment") .
As the dissent points out, "the standard of proof is a crucial component of legal process, the primary function of which is to minimize the risk of erroneous decisions.'" Post at 455 U. S. 785, quoting Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 442 U. S. 13 (1979). Notice, summons, right to counsel, rules of evidence, and evidentiary hearings are all procedures to place information before the factfinder. But only the standard of proof "instruct[s] the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions" he draws from that information. In re Winship, 397 U.S. at 397 U. S. 370 (Harlan, J., concurring). The statutory provision of right to counsel and multiple hearings before termination cannot suffice to protect a natural parent's fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts.
[Footnote 10]
The Family Court Judge in the present case expressly refused to terminate petitioners' parental rights on a "non-statutory, no-fault basis." App. 22-29. Nor is it clear that the State constitutionally could terminate a parent's rights without showing parental unfitness. See Quilloin v. Walcott, 434 U. S. 246, 434 U. S. 255 (1978) ("We have little doubt that the Due Process Clause would be offended [i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest,'" quoting Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 862-863 (1977) (Stewart, J., concurring in judgment)).
[Footnote 11]
For a child, the consequences of termination of his natural parents' rights may well be far-reaching. In Colorado, for example, it has been noted:
"The child loses the right of support and maintenance, for which he may thereafter be dependent upon society; the right to inherit; and all other rights inherent in the legal parent-child relationship, not just for [a limited] period . . . , but forever."
In re K.S., 33 Colo. App. 72, 76, 515 P.2d 130, 133 (1973).
Some losses cannot be measured. In this case, for example, Jed Santosky was removed from his natural parents' custody when he was only three days old; the judge's finding of permanent neglect effectively foreclosed the possibility that Jed would ever know his natural parents.
[Footnote 12]
For example, a New York court appraising an agency's "diligent efforts" to provide the parents with social services can excuse efforts not made on the grounds that they would have been "detrimental to the best interests of the child." Fam.Ct.Act § 614.l.(c). In determining whether the parent "substantially and continuously or repeatedly" failed to "maintain contact with . . . the child," § 614.1.(d), the judge can discount actual visits or communications on the grounds that they were insubstantial or "overtly demonstrat[ed] a lack of affectionate and concerned parenthood." Soc.Serv.Law § 384-b.7.(b). When determining whether the parent planned for the child's future, the judge can reject as unrealistic plans based on overly optimistic estimates of physical or financial ability. § 384-b.7.(c). See also dissenting opinion, post at 455 U. S. 779-780, nn. 8 and 9.
[Footnote 13]
In this case, for example, the parents claim that the State sought court orders denying them the right to visit their children, which would have prevented them from maintaining the contact required by Fam.Ct.Act. § 614.1.(d). See Brief for Petitioners 9. The parents further claim that the State cited their rejection of social services they found offensive or superfluous as proof of the agency's "diligent efforts" and their own "failure to plan" for the children's future. Id. at 10-11.
We need not accept these statements as true to recognize that the State's unusual ability to structure the evidence increases the risk of an erroneous factfinding. Of course, the disparity between the litigants' resources will be vastly greater in States where there is no statutory right to court-appointed counsel. See Lassiter v. Department of Social Services, 452 U. S. 18, 452 U. S. 34 (1981) (only 33 States and the District of Columbia provide that right by statute).
[Footnote 14]
The dissent makes a similar claim. See post at 455 U. S. 786-791.
[Footnote 15]
This is a hazardous assumption, at best. Even when a child's natural home is imperfect, permanent removal from that home will not necessarily improve his welfare. See, e.g., Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985, 993 (1975) ("In fact, under current practice, coercive intervention frequently results in placing a child in a more detrimental situation than he would be in without intervention").
Nor does termination of parental rights necessarily ensure adoption. See Brief for Community Action for Legal Services, Inc., et al. as Amici Curiae 22-23. Even when a child eventually finds an adoptive family, he may spend years moving between state institutions and "temporary" foster placements after his ties to his natural parents have been severed. See Smith v. Organization of Foster Families, 431 U.S. at 431 U. S. 833-838 (describing the "limbo" of the New York foster care system).
[Footnote 16]
When the termination proceeding occurs, the child is not living at his natural home. A child cannot be adjudicated "permanently neglected" until, "for a period of more than one year," he has been in "the care of an authorized agency." Soc.Serv.Law § 384-b.7.(a); Fam.Ct.Act § 614. l.(d). See also dissenting opinion, post at 455 U. S. 789-790.
Under New York law, a judge has ample discretion to ensure that, once removed from his natural parents on grounds of neglect, a child will not return to a hostile environment. In this case, when the State's initial termination effort failed for lack of proof, see n 4, supra, the court simply issued orders under Fam.Ct.Act § 1055(b) extending the period of the child's foster home placement. See App.19-20. See also Fam.Ct.Act § 632(b) (when State's permanent neglect petition is dismissed for insufficient evidence, judge retains jurisdiction to reconsider underlying orders of placement); § 633 (judge may suspend judgment at dispositional hearing for an additional year).
[Footnote 17]
Any parens patriae interest in terminating the natural parents' rights arises only at the dispositional phase, after the parents have been found unfit.
[Footnote 18]
The dissent's claim that today's decision "will inevitably lead to the federalization of family law," post at 455 U. S. 773, is, of course, vastly overstated. As the dissent properly notes, the Court's duty to "refrai[n] from interfering with state answers to domestic relations questions" has never required "that the Court should blink at clear constitutional violations in state statutes." Post at 455 U. S. 771.
[Footnote 19]
Unlike the dissent, we carefully refrain from accepting as the "facts of this case" findings that are not part of the record, and that have been found only to be more likely true than not.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join, dissenting.
I believe that few of us would care to live in a society where every aspect of life was regulated by a single source of law, whether that source be this Court or some other organ of our complex body politic. But today's decision certainly moves us in that direction. By parsing the New York scheme and holding one narrow provision unconstitutional, the majority invites further federal court intrusion into every facet of state family law. If ever there were an area in which federal courts should heed the admonition of Justice Holmes that "a page of history is worth a volume of logic," [Footnote 2/1] it is in the area of domestic relations. This area has been left to the States from time immemorial, and not without good reason.
Equally as troubling is the majority's due process analysis. The Fourteenth Amendment guarantees that a State will treat individuals with "fundamental fairness" whenever its actions infringe their protected liberty or property interests. By adoption of the procedures relevant to this case, New
Page 455 U. S. 771
York has created an exhaustive program to assist parents in regaining the custody of their children and to protect parents from the unfair deprivation of their parental rights. And yet the majority's myopic scrutiny of the standard of proof blinds it to the very considerations and procedures which make the New York scheme "fundamentally fair."
I
State intervention in domestic relations has always been an unhappy but necessary feature of life in our organized society. For all of our experience in this area, we have found no fully satisfactory solutions to the painful problem of child abuse and neglect. We have found, however, that leaving the States free to experiment with various remedies has produced novel approaches and promising progress.
Throughout this experience, the Court has scrupulously refrained from interfering with state answers to domestic relations questions.
"Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family property arrangements."
United States v. Yazell, 382 U. S. 341, 382 U. S. 352 (1966). This is not to say that the Court should blink at clear constitutional violations in state statutes, but rather that, in this area, of all areas,
"substantial weight must be given to the good faith judgments of the individuals [administering a program] . . . that the procedures they have provided assure fair consideration of the . . . claims of individuals."
Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 349 (1976).
This case presents a classic occasion for such solicitude. As will be seen more fully in the next part, New York has enacted a comprehensive plan to aid marginal parents in regaining the custody of their child. The central purpose of the New York plan is to reunite divided families. Adoption of the preponderance of the evidence standard represents New York's good faith effort to balance the interest of parents
Page 455 U. S. 772
against the legitimate interests of the child and the State. These earnest efforts by state officials should be given weight in the Court's application of due process principles.
"Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."
Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 194 U. S. 270 (1904). [Footnote 2/2]
The majority may believe that it is adopting a relatively unobtrusive means of ensuring that termination proceedings provide "due process of law." In fact, however, fixing the standard of proof as a matter of federal constitutional law will only lead to further federal court intervention in state schemes. By holding that due process requires proof by clear and convincing evidence, the majority surely cannot mean that any state scheme passes constitutional muster so long as it applies that standard of proof. A state law permitting termination of parental rights upon a showing of neglect by clear and convincing evidence certainly would not be acceptable
Page 455 U. S. 773
to the majority if it provided no procedures other than one 30-minute hearing. Similarly, the majority probably would balk at a state scheme that permitted termination of parental rights on a clear and convincing showing merely that such action would be in the best interests of the child. See Smith v . Organization of Foster Families, 431 U. S. 816, 431 U. S. 862-863 (1977) (Stewart, J., concurring in judgment).
After fixing the standard of proof, therefore, the majority will be forced to evaluate other aspects of termination proceedings with reference to that point. Having in this case abandoned evaluation of the overall effect of a scheme, and with it the possibility of finding that strict substantive standards or special procedures compensate for a lower burden of proof, the majority's approach will inevitably lead to the federalization of family law. Such a trend will only thwart state searches for better solutions in an area where this Court should encourage state experimentation.
"It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment."
New State Ice Co. v. Liebmann, 285 U. S. 262, 285 U. S. 311 (1932) (Brandeis, J., dissenting). It should not do so in the absence of a clear constitutional violation. As will be seen in the next part, no clear constitutional violation has occurred in this case.
II
As the majority opinion notes, petitioners are the parents of five children, three of whom were removed from petitioners' care on or before August 22, 1974. During the next four and one-half years, those three children were in the custody of the State and in the care of foster homes or institutions, and the State was diligently engaged in efforts to prepare petitioners for the children's return. Those efforts were unsuccessful,
Page 455 U. S. 774
however, and, on April 10, 1979, the New York Family Court for Ulster County terminated petitioners' parental rights as to the three children removed in 1974 or earlier. This termination was preceded by a judicial finding that petitioners had failed to plan for the return and future of their children, a statutory category of permanent neglect. Petitioners now contend, and the Court today holds, that they were denied due process of law not because of a general inadequacy of procedural protections, but simply because the finding of permanent neglect was made on the basis of a preponderance of the evidence adduced at the termination hearing.
It is well settled that
"[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property."
Board of Regents v. Roth, 408 U. S. 564, 408 U. S. 569 (1972). In determining whether such liberty or property interests are implicated by a particular government action, "we must look not to the weight,' but to the nature, of the interest at stake." Id. at 408 U. S. 571 (emphasis in original). I do not disagree with the majority's conclusion that the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. See Smith v. Organization of Foster Families, supra, at 431 U. S. 862-863 (Stewart, J., concurring in judgment). "Once it is determined that due process applies, [however,] the question remains what process is due." Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481 (1972). It is the majority's answer to this question with which I disagree.
A
Due process of law is a flexible constitutional principle. The requirements which it imposes upon governmental actions vary with the situations to which it applies. As the Court previously has recognized, "not all situations calling for
Page 455 U. S. 775
procedural safeguards call for the same kind of procedure." Morrissey v. Brewer, supra, at 408 U. S. 481. See also Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 442 U. S. 12 (1979); Mathews v. Eldridge, 424 U.S. at 424 U. S. 334; Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961). The adequacy of a scheme of procedural protections cannot, therefore, be determined merely by the application of general principles unrelated to the peculiarities of the case at hand.
Given this flexibility, it is obvious that a proper due process inquiry cannot be made by focusing upon one narrow provision of the challenged statutory scheme. Such a focus threatens to overlook factors which may introduce constitutionally adequate protections into a particular government action. Courts must examine all procedural protections offered by the State, and must assess the cumulative effect of such safeguards. As we have stated before, courts must consider "the fairness and reliability of the existing . . . procedures" before holding that the Constitution requires more. Mathews v. Eldridge, supra, at 424 U. S. 343. Only through such a broad inquiry may courts determine whether a challenged governmental action satisfies the due process requirement of "fundamental fairness." [Footnote 2/3] In some instances, the Court has even looked to nonprocedural restraints on official action in determining whether the deprivation of a protected interest was effected without due process of law. E.g., 430 U. S.
Page 455 U. S. 776
Wright, 430 U. S. 651 (1977). In this case, it is just such a broad look at the New York scheme which reveals its fundamental fairness. [Footnote 2/4]
The termination of parental rights on the basis of permanent neglect can occur under New York law only by order of the Family Court. N.Y.Soc.Serv.Law (SSL) § 384-b.3.(d) (McKinney Supp.1981-1982). Before a petition for permanent termination can be filed in that court, however, several other events must first occur.
The Family Court has jurisdiction only over those children who are in the care of an authorized agency. N.Y. Family Court Act (FCA) § 614.1.(b) (McKinney 1975 and Supp.1981-1982). Therefore, the children who are the subject of a termination petition must previously have been removed from their parents' home on a temporary basis. Temporary removal of a child can occur in one of two ways. The parents may consent to the removal, FCA § 1021, or, as occurred in this case, the Family Court can order the removal pursuant to a finding that the child is abused or neglected. [Footnote 2/5] FCA §§ 1051, 1052.
Page 455 U. S. 777
Court proceedings to order the temporary removal of a child are initiated by a petition alleging abuse or neglect, filed by a state-authorized child protection agency or by a person designated by the court. FCA §§ 1031, 1032. Unless the court finds that exigent circumstances require removal of the child before a petition may be filed and a hearing held, see FCA § 1022, the order of temporary removal results from a "dispositional hearing" conducted to determine the appropriate form of alternative care. FCA § 1045. See also FCA § 1055. This "dispositional hearing" can be held only after the court, at a separate "factfinding hearing," has found the child to be abused or neglected within the specific statutory definition of those terms. FCA §§ 1012, 1044, 1051.
Parents subjected to temporary removal proceedings are provided extensive procedural protections. A summons and copy of the temporary removal petition must be served upon the parents within two days of issuance by the court, FCA §§ 1035, 1036, and the parents may, at their own request, delay the commencement of the factfinding hearing for three days after service of the summons. FCA § 1048. [Footnote 2/6] The factfinding hearing may not commence without a determination by the court that the parents are present at the hearing and have been served with the petition. FCA § 1041. At the hearing itself, "only competent, material and relevant evidence may be admitted," with some enumerated exceptions
Page 455 U. S. 778
for particularly probative evidence. FCA § 1046(b)(ii). In addition, indigent parents are provided with an attorney to represent them at both the factfinding and dispositional hearings, as well as at all other proceedings related to temporary removal of their child. FCA § 262(a)(i).
An order of temporary removal must be reviewed every 18 months by the Family Court. SSL § 392.2. Such review is conducted by hearing before the same judge who ordered the temporary removal, and a notice of the hearing, including a statement of the dispositional alternatives, must be given to the parents at least 20 days before the hearing is held. SSL § 392.4. As in the initial removal action, the parents must be parties to the proceedings, ibid., and are entitled to court-appointed counsel if indigent. FCA § 262(a).
One or more years after a child has been removed temporarily from the parents' home, permanent termination proceedings may be commenced by the filing of a petition in the court which ordered the temporary removal. The petition must be filed by a state agency or by a foster parent authorized by the court, SSL § 384-b.3.(b), and must allege that the child has been permanently neglected by the parents. SSL § 384-b.3.(d). [Footnote 2/7] Notice of the petition and the dispositional proceedings must be served upon the parents at least 20 days before the commencement of the hearing, SSL § 384-b.3.(e), must inform them of the potential consequences of the hearing, ibid., and must inform them
"of their right to the assistance of counsel, including [their] right . . . to have counsel assigned by the court [if] they are financially unable to obtain counsel."
Ibid. See also FCA § 262.
As in the initial removal proceedings, two hearings are held in consideration of the permanent termination petition.
Page 455 U. S. 779
SSL § 384-b.3.(f). At the factfinding hearing, the court must determine, by a fair preponderance of the evidence, whether the child has been permanently neglected. SSL § 384-b.3.(g). "Only competent, material and relevant evidence may be admitted in a factfinding hearing." FCA § 624. The court may find permanent neglect if the child is in the care of an authorized agency or foster home and the parents have
"failed for a period of more than one year . . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so."
SSL § 384-b.7.(a). [Footnote 2/8] In addition, because the State considers its "first obligation" to be the reuniting of the child with its natural parents, SSL § 384-b.1.(iii), the court must also find that the supervising state agency has, without success, made "diligent efforts to encourage and strengthen the parental relationship." SSL § 384-b.7.(a) (emphasis added). [Footnote 2/9]
Page 455 U. S. 780
Following the factfinding hearing, a separate, dispositional hearing is held to determine what course of action would be in "the best interests of the child." FCA § 631. A finding of permanent neglect at the factfinding hearing, although necessary to a termination of parental rights, does not control the court's order at the dispositional hearing. The court may dismiss the petition, suspend judgment on the petition and retain jurisdiction for a period of one year in order to provide further opportunity for a reuniting of the family, or terminate the parents' right to the custody and care of the child. FCA §§ 631-634. The court must base its decision solely upon the record of "material and relevant evidence" introduced at the dispositional hearing, FCA § 624; In re "Female" M., 70 App.Div.2d 812, 417 N.Y.S.2d 482 (1979), and may not entertain any presumption that the best interests of the child "will be promoted by any particular disposition." FCA § 631.
As petitioners did in this case, parents may appeal any unfavorable decision to the Appellate Division of the New York Supreme Court. Thereafter, review may be sought in the New York Court of Appeals and, ultimately, in this Court if a federal question is properly presented.
As this description of New York's termination procedures demonstrates, the State seeks not only to protect the interests of parents in rearing their own children, but also to assist and encourage parents who have lost custody of their children to reassume their rightful role. Fully understood, the New York system is a comprehensive program to aid parents such as petitioners. Only as a last resort, when "diligent efforts" to reunite the family have failed, does New
Page 455 U. S. 781
York authorize the termination of parental rights. The procedures for termination of those relationships which cannot be aided and which threaten permanent injury to the child, administered by a judge who has supervised the case from the first temporary removal through the final termination, cannot be viewed as fundamentally unfair. The facts of this case demonstrate the fairness of the system.
The three children to which this case relates were removed from petitioners' custody in 1973 and 1974, before petitioners' other two children were born. The removals were made pursuant to the procedures detailed above, and in response to what can only be described as shockingly abusive treatment. [Footnote 2/10] At the temporary removal hearing held before the Family Court on September 30, 1974, petitioners were represented by counsel, and allowed the Ulster County Department of Social Services (Department) to take custody of the three children.
Temporary removal of the children was continued at an evidentiary hearing held before the Family Court in December, 1975, after which the court issued a written opinion concluding that petitioners were unable to resume their parental responsibilities due to personality disorders. Unsatisfied with the progress petitioners were making, the court also directed
Page 455 U. S. 782
the Department to reduce to writing the plan which it had designed to solve the problems at petitioners' home and reunite the family.
A plan for providing petitioners with extensive counseling and training services was submitted to the court and approved in February, 1976. Under the plan, petitioners received training by a mother's aide, a nutritional aide, and a public health nurse, and counseling at a family planning clinic. In addition, the plan provided psychiatric treatment and vocational training for the father, and counseling at a family service center for the mother. Brief for Respondent Kramer 1-7. Between early 1976 and the final termination decision in April, 1979, the State spent more than $15,000 in these efforts to rehabilitate petitioners as parents. App. 34.
Petitioners' response to the State's effort was marginal, at best. They wholly disregarded some of the available services, and participated only sporadically in the others. As a result, and out of growing concern over the length of the children's stay in foster care, the Department petitioned, in September, 1976, for permanent termination of petitioners' parental rights so that the children could be adopted by other families. Although the Family Court recognized that petitioners' reaction to the State's efforts was generally "nonresponsive, even hostile," the fact that they were "at least superficially cooperative" led it to conclude that there was yet hope of further improvement and an eventual reuniting of the family. Exhibit to Brief for Respondent Kramer 618. Accordingly, the petition for permanent termination was dismissed.
Whatever progress petitioners were making prior to the 1976 termination hearing, they made little or no progress thereafter. In October, 1978, the Department again filed a termination petition alleging that petitioners had completely failed to plan for the children's future despite the considerable efforts rendered in their behalf. This time, the Family Court agreed. The court found that petitioners had
"failed in any meaningful way to take advantage of the many social
Page 455 U. S. 783
and rehabilitative services that have not only been made available to them but have been diligently urged upon them."
App. 35. In addition, the court found that the "infrequent" visits "between the parents and their children were, at best, superficial, and devoid of any real emotional content." Id. at 21. The court thus found
"nothing in the situation which holds out any hope that [petitioners] may ever become financially self sufficient or emotionally mature enough to be independent of the services of social agencies. More than a reasonable amount of time has passed, and still, in the words of the case workers, there has been no discernible forward movement. At some point in time, it must be said, 'enough is enough.'"
Id. at 36.
In accordance with the statutory requirements set forth above, the court found that petitioners' failure to plan for the future of their children, who were then seven, five, and four years old and had been out of petitioners' custody for at least four years, rose to the level of permanent neglect. At a subsequent dispositional hearing, the court terminated petitioners' parental rights, thereby freeing the three children for adoption.
As this account demonstrates, the State's extraordinary 4-year effort to reunite petitioners' family was not just unsuccessful, it was altogether rebuffed by parents unwilling to improve their circumstances sufficiently to permit a return of their children. At every step of this protracted process, petitioners were accorded those procedures and protections which traditionally have been required by due process of law. Moreover, from the beginning to the end of this sad story, all judicial determinations were made by one Family Court Judge. After four and one-half years of involvement with petitioners, more than seven complete hearings, and additional periodic supervision of the State's rehabilitative efforts, the judge no doubt was intimately familiar with this case and the prospects for petitioners' rehabilitation.
It is inconceivable to me that these procedures were "fundamentally unfair" to petitioners. Only by its obsessive
Page 455 U. S. 784
focus on the standard of proof and its almost complete disregard of the facts of this case does the majority find otherwise. [Footnote 2/11] As the discussion above indicates, however, such a
Page 455 U. S. 785
focus does not comport with the flexible standard of fundamental fairness embodied in the Due Process Clause of the Fourteenth Amendment.
B
In addition to the basic fairness of the process afforded petitioners, the standard of proof chosen by New York clearly reflects a constitutionally permissible balance of the interests at stake in this case. The standard of proof
"represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication."
In re Winship, 397 U. S. 358, 397 U. S. 370 (1970) (Harlan, J. concurring); Addington v. Texas, 441 U. S. 418, 441 U. S. 423 (1979). In this respect, the standard of proof is a crucial component of legal process, the primary function of which is "to minimize the risk of erroneous decisions." [Footnote 2/12] Greenholtz v. Nebraska
Page 455 U. S. 786
Penal Inmates, 442 U.S. at 442 U. S. 13. See also Addington v. Texas, supra, at 441 U. S. 425; Mathews v. Eldridge, 424 U.S. at 424 U. S. 344.
In determining the propriety of a particular standard of proof in a given case, however, it is not enough simply to say that we are trying to minimize the risk of error. Because errors in factfinding affect more than one interest, we try to minimize error as to those interests which we consider to be most important. As Justice Harlan explained in his well known concurrence to In re Winship:
"In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff's favor. The criminal analogue would be the acquittal of a guilty man."
The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence, rather than proof
Page 455 U. S. 787
beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.
397 U.S. at 397 U. S. 370-371.
When the standard of proof is understood as reflecting such an assessment, an examination of the interests at stake in a particular case becomes essential to determining the propriety of the specified standard of proof. Because proof by a preponderance of the evidence requires that "[t]he litigants . . . share the risk of error in a roughly equal fashion," Addington v. Texas, supra, at 441 U. S. 423, it rationally should be applied only when the interests at stake are of roughly equal societal importance. The interests at stake in this case demonstrate that New York has selected a constitutionally permissible standard of proof.
On one side is the interest of parents in a continuation of the family unit and the raising of their own children. The importance of this interest cannot easily be overstated. Few consequences of judicial action are so grave as the severance of natural family ties. Even the convict committed to prison and thereby deprived of his physical liberty often retains the love and support of family members.
"This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection.' Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651."
Lassiter v. Department of Social Services, 452 U. S. 18, 452 U. S. 27 (1981). In creating the scheme at issue in this case, the New York Legislature
Page 455 U. S. 788
was expressly aware of this right of parents "to bring up their own children." SSL § 384-b.1.(a)(ii).
On the other side of the termination proceeding are the often countervailing interests of the child. [Footnote 2/13] A stable, loving
Page 455 U. S. 789
home life is essential to a child's physical, emotional, and spiritual wellbeing. It requires no citation of authority to assert that children who are abused in their youth generally face extraordinary problems developing into responsible, productive citizens. The same can be said of children who, though not physically or emotionally abused, are passed from one foster home to another with no constancy of love, trust, or discipline. If the Family Court makes an incorrect factual determination resulting in a failure to terminate a parent-child relationship which rightfully should be ended, the child involved must return either to an abusive home [Footnote 2/14] or to the often unstable world of foster care. [Footnote 2/15] The reality of these
Page 455 U. S. 790
risks is magnified by the fact that the only families faced with termination actions are those which have voluntarily surrendered custody of their child to the State, or, as in this case, those from which the child has been removed by judicial action because of threatened irreparable injury through abuse or neglect. Permanent neglect findings also occur only in families where the child has been in foster care for at least one year.
In addition to the child's interest in a normal home life, "the State has an urgent interest in the welfare of the child." Lassiter v. Department of Social Services, 452 U.S. at 452 U. S. 27. [Footnote 2/16] Few could doubt that the most valuable resource of a self-governing society is its population of children, who will one day become adults and themselves assume the responsibility of self-governance.
"A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies."
Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 168 (1944). Thus, "the whole community" has an interest "that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed . . . citizens." Id. at 321 U. S. 165. See also Ginsberg v. New York, 390 U. S. 629, 390 U. S. 640-641 (1968).
When, in the context of a permanent neglect termination proceeding, the interests of the child and the State in a stable,
Page 455 U. S. 791
nurturing home life are balanced against the interests of the parents in the rearing of their child, it cannot be said that either set of interests is so clearly paramount as to require that the risk of error be allocated to one side or the other. Accordingly, a State constitutionally may conclude that the risk of error should be borne in roughly equal fashion by use of the preponderance of the evidence standard of proof. See Addington v. Texas, 441 U.S. at 441 U. S. 423. This is precisely the balance which has been struck by the New York Legislature:
"It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the natural parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating the parental rights and freeing the child for adoption."
SSL § 384-b.1.(b).
III
For the reasons heretofore stated, I believe that the Court today errs in concluding that the New York standard of proof in parental rights termination proceedings violates due process of law. The decision disregards New York's earnest efforts to aid parents in regaining the custody of their children and a host of procedural protections placed around parental rights and interests. The Court finds a constitutional violation only by a tunnel vision application of due process principles that altogether loses sight of the unmistakable fairness of the New York procedure.
Even more worrisome, today's decision cavalierly rejects the considered judgment of the New York Legislature in an area traditionally entrusted to state care. The Court thereby begins, I fear, a trend of federal intervention in state family law matters which surely will stifle creative responses to vexing problems. Accordingly, I dissent.
[Footnote 2/1]
New York Trust Co. v. Eisner, 256 U. S. 345, 256 U. S. 349 (1921).
[Footnote 2/2]
The majority asserts that
"the degree of proof required in a particular type of proceeding 'is the kind of question which has traditionally been left to the judiciary to resolve.' Woodby v. INS, 385 U. S. 276, 385 U. S. 284 (1966)."
Ante at 455 U. S. 755-756. To the extent that the majority seeks, by this statement, to place upon the federal judiciary the primary responsibility for deciding the appropriate standard of proof in state matters, it arrogates to itself a responsibility wholly at odds with the allocation of authority in our federalist system, and wholly unsupported by the prior decisions of this Court. In Woodby v. INS, 385 U. S. 276 (1966), the Court determined the proper standard of proof to be applied under a federal statute, and did so only after concluding that "Congress ha[d] not addressed itself to the question of what degree of proof [was] required in deportation proceedings." Id. at 385 U. S. 284. Beyond an examination for the constitutional minimum of "fundamental fairness" -- which clearly is satisfied by the New York procedures at issue in this case -- this Court simply has no role in establishing the standards of proof that States must follow in the various judicial proceedings they afford to their citizens.
[Footnote 2/3]
Although, as the majority states, we have held that the minimum requirements of procedural due process are a question of federal law, such a holding does not mean that the procedural protections afforded by a State will be inadequate under the Fourteenth Amendment. It means simply that the adequacy of the state-provided process is to be judged by constitutional standards -- standards which the majority itself equates to "fundamental fairness." Ante at 455 U. S. 754. I differ, therefore, not with the majority's statement that the requirements of due process present a federal question, but with its apparent assumption that the presence of "fundamental fairness" can be ascertained by an examination which completely disregards the plethora of protective procedures accorded parents by New York law.
[Footnote 2/4]
The majority refuses to consider New York's procedure as a whole, stating that
"[t]he statutory provision of right to counsel and multiple hearings before termination cannot suffice to protect a natural parent's fundamental liberty interests if the State is willing to tolerate undue uncertainty in the determination of the dispositive facts."
Ante at 455 U. S. 758, n. 9. Implicit in this statement is the conclusion that the risk of error may be reduced to constitutionally tolerable levels only by raising the standard of proof -- that other procedures can never eliminate "undue uncertainty" so long as the standard of proof remains too low. Aside from begging the question of whether the risks of error tolerated by the State in this case are "undue," see infra at 455 U. S. 785-791, this conclusion denies the flexibility that we have long recognized in the principle of due process; understates the error-reducing power of procedural protections such as the right to counsel, evidentiary hearings, rules of evidence, and appellate review; and establishes the standard of proof as the sine qua non of procedural due process.
[Footnote 2/5]
An abused child is one who has been subjected to intentional physical injury
"which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ."
FCA § 1012(e)(i). Sexual offenses against a child are also covered by this category. A neglected child is one
"whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter or education."
FCA § 1012(f)(i)(A).
[Footnote 2/6]
The relatively short time between notice and commencement of hearing provided by § 1048 undoubtedly reflects the State's desire to protect the child. These proceedings are designed to permit prompt action by the court when the child is threatened with imminent and serious physical, mental, or emotional harm.
[Footnote 2/7]
Permanent custody also may be awarded by the Family Court if both parents are deceased, the parents abandoned the child at least six months prior to the termination proceedings, or the parents are unable to provide proper and adequate care by reason of mental illness or mental retardation. SSL § 384-b.4.(c).
[Footnote 2/8]
As to maintaining contact with the child, New York law provides that
"evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such a character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact."
SSL § 384-b.7.(b).
Failure to plan for the future of the child means failure
"to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent."
SSL § 384-b.7.(c).
[Footnote 2/9]
"Diligent efforts" are defined under New York law to
"mean reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to:"
"(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;"
"(2) making suitable arrangements for the parents to visit the child;"
"(3) provision of services and other assistance to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated; and"
"(4) informing the parents at appropriate intervals of the child's progress, development and health."
SSL § 384-b.7.(f).
[Footnote 2/10]
Tina Apel, the oldest of petitioners' five children, was removed from their custody by court order in November, 1973, when she was two years old. Removal proceedings were commenced in response to complaints by neighbors and reports from a local hospital that Tina had suffered injuries in petitioners' home, including a fractured left femur, treated with a homemade splint; bruises on the upper arms, forehead, flank, and spine; and abrasions of the upper leg. The following summer, John Santosky III, petitioners' second oldest child, was also removed from petitioners' custody. John, who was less than one year old at the time, was admitted to the hospital suffering malnutrition, bruises on the eye and forehead, cuts on the foot, blisters on the hand, and multiple pin pricks on the back. Exhibit to Brief for Respondent Kramer 1. Jed Santosky, the third oldest of petitioners' children, was removed from his parents' custody when only three days old as a result of the abusive treatment of the two older children.
[Footnote 2/11]
The majority finds, without any reference to the facts of this case, that "numerous factors [in New York termination proceedings] combine to magnify the risk of erroneous factfinding." Ante at 455 U. S. 762. Among the factors identified by the majority are the "unusual discretion" of the Family Court judge "to underweigh probative facts that might favor the parent"; the often uneducated, minority status of the parents and their consequent "vulnerab[ility] to judgments based on cultural or class bias"; the "State's ability to assemble its case," which "dwarfs the parents' ability to mount a defense" by including an unlimited budget, expert attorneys, and "full access to all public records concerning the family"; and the fact that "natural parents have no double jeopardy' defense against repeated state" efforts, "with more or better evidence," to terminate parental rights "even when the parents have attained the level of fitness required by the State." Ante at 455 U. S. 762, 455 U. S. 763, 455 U. S. 764. In short, the majority characterizes the State as a wealthy and powerful bully bent on taking children away from defenseless parents. See ante at 455 U. S. 761-764. Such characterization finds no support in the record.
The intent of New York has been stated with eminent clarity: "the [S]tate's first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home." SSL § 384-b.1.(a)(iii) (emphasis added). There is simply no basis in fact for believing, as the majority does, that the State does not mean what it says; indeed, the facts of this case demonstrate that New York has gone the extra mile in seeking to effectuate its declared purpose. See supra at 455 U. S. 781-785. More importantly, there should be no room in the jurisprudence of this Court for decisions based on unsupported, inaccurate assumptions.
A brief examination of the "factors" relied upon by the majority demonstrates its error. The "unusual" discretion of the Family Court judge to consider the "affectio[n] and concer[n]'" displayed by parents during visits with their children, ante at 455 U. S. 763, n. 12, is nothing more than discretion to consider reality; there is not one shred of evidence in this case suggesting that the determination of the Family Court was "based on cultural or class bias"; if parents lack the "ability to mount a defense," the State provides them with the full services of an attorney, FCA § 262, and they, like the State, have "full access to all public records concerning the family" (emphasis added); and the absence of "double jeopardy" protection simply recognizes the fact that family problems are often ongoing, and may in the future warrant action that currently is unnecessary. In this case, the Family Court dismissed the first termination petition because it desired to give petitioners "the benefit of the doubt," Exhibit to Brief for Respondent Kramer 620, and a second opportunity to raise themselves to "an acceptable minimal level of competency as parents." Id. at 455 U. S. 624. It was their complete failure to do so that prompted the second, successful termination petition. See supra at 455 U. S. 781-784 and this page.
[Footnote 2/12]
It is worth noting that the significance of the standard of proof in New York parental termination proceedings differs from the significance of the standard in other forms of litigation. In the usual adjudicatory setting, the factfinder has had little or no prior exposure to the facts of the case. His only knowledge of those facts comes from the evidence adduced at trial, and he renders his findings solely upon the basis of that evidence. Thus, normally, the standard of proof is a crucial factor in the final outcome of the case, for it is the scale upon which the factfinder weighs his knowledge and makes his decision.
Although the standard serves the same function in New York parental termination proceedings, additional assurances of accuracy are present in its application. As was adduced at oral argument, the practice in New York is to assign one judge to supervise a case from the initial temporary removal of the child to the final termination of parental rights. Therefore, as discussed above, the factfinder is intimately familiar with the case before the termination proceedings ever begin. Indeed, as in this case, he often will have been closely involved in protracted efforts to rehabilitate the parents. Even if a change in judges occurs, the Family Court retains jurisdiction of the case, and the newly assigned judge may take judicial notice of all prior proceedings. Given this familiarity with the case, and the necessarily lengthy efforts which must precede a termination action in New York, decisions in termination cases are made by judges steeped in the background of the case and peculiarly able to judge the accuracy of evidence placed before them. This does not mean that the standard of proof in these cases can escape due process scrutiny, only that additional assurances of accuracy attend the application of the standard in New York termination proceedings.
[Footnote 2/13]
The majority dismisses the child's interest in the accuracy of determinations made at the factfinding hearing because "[t]he factfinding does not purport . . . to balance the child's interest in a normal family home against the parents' interest in raising the child," but instead "pits the State directly against the parents." Ante at 455 U. S. 759. Only "[a]fter the State has established parental unfitness," the majority reasons, may the court "assume . . . that the interests of the child and the natural parents do diverge." Ante at 455 U. S. 760.
This reasoning misses the mark. The child has an interest in the outcome of the factfinding hearing independent of that of the parent. To be sure, "the child and his parents share a vital interest in preventing erroneous termination of their natural relationship." Ibid. (emphasis added). But the child's interest in a continuation of the family unit exists only to the extent that such a continuation would not be harmful to him. An error in the factfinding hearing that results in a failure to terminate a parent-child relationship which rightfully should be terminated may well detrimentally affect the child. See nn. 14, 15, infra.
The preponderance of the evidence standard, which allocates the risk of error more or less evenly, is employed when the social disutility of error in either direction is roughly equal -- that is, when an incorrect finding of fault would produce consequences as undesirable as the consequences that would be produced by an incorrect finding of no fault. Only when the disutility of error in one direction discernibly outweighs the disutility of error in the other direction do we choose, by means of the standard of proof, to reduce the likelihood of the more onerous outcome. See In re Winship, 397 U. S. 358, 397 U. S. 370-372 (1970) (Harlan, J., concurring).
New York's adoption of the preponderance of the evidence standard reflects its conclusion that the undesirable consequence of an erroneous finding of parental unfitness -- the unwarranted termination of the family relationship -- is roughly equal to the undesirable consequence of an erroneous finding of parental fitness -- the risk of permanent injury to the child either by return of the child to an abusive home or by the child's continued lack of a permanent home. See nn. 14, 15, infra. Such a conclusion is well within the province of state legislatures. It cannot be said that the New York procedures are unconstitutional simply because a majority of the Members of this Court disagree with the New York Legislature's weighing of the interests of the parents and the child in an error-free factfinding hearing.
[Footnote 2/14]
The record in this case illustrates the problems that may arise when a child is returned to an abusive home. Eighteen months after Tina, petitioners' oldest child, was first removed from petitioners' home, she was returned to the home on a trial basis. Katherine Weiss, a supervisor in the Child Protective Unit of the Ulster County Child Welfare Department, later testified in Family Court that "[t]he attempt to return Tina to her home just totally blew up." Exhibit to Brief for Respondent Kramer 135. When asked to explain what happened, Mrs. Weiss testified that
"there were instances on the record in this court of Mr. Santosky's abuse of his wife, alleged abuse of the children, and proven neglect of the children."
Ibid. Tina again was removed from the home, this time along with John and Jed.
[Footnote 2/15]
The New York Legislature recognized the potential harm to children of extended, nonpermanent foster care. It found
"that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens."
SSL § 384-b.1.(b). Subsequent studies have proved this finding correct. One commentator recently wrote of "the lamentable conditions of many foster care placements" under the New York system even today. He noted:
"Over fifty percent of the children in foster care have been in this "
"temporary" status for more than two years; over thirty percent for more than five years. During this time, many children are placed in a sequence of ill-suited foster homes, denying them the consistent support and nurturing that they so desperately need.
Besharov, State Intervention To Protect Children: New York's Definition of "Child Abuse" and "Child Neglect," 26 N.Y.L.S.L.Rev. 723, 770-771 (1981) (footnotes omitted). In this case, petitioners' three children have been in foster care for more than four years, one child since he was only three days old. Failure to terminate petitioners' parental rights will only mean a continuation of this unsatisfactory situation.
[Footnote 2/16]
The majority's conclusion that a state interest in the child's wellbeing arises only after a determination of parental unfitness suffers from the same error as its assertion that the child has no interest, separate from that of its parents, in the accuracy of the factfinding hearing. See n. 13, supra.
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