From: richard.donovan@factory.com (Richard Donovan) 
Newsgroups: alt.dads-rights
Subject: BRREAKING UP STILL
Date: 28 Jul 92 00:51:00 GMT
Distribution: world
Organization: Invention Factory's BBS - New York City, NY - 212-274-1243v.32bis
Reply-To: richard.donovan@factory.com (Richard Donovan) 


               Santosky -v- Kramer  102 SCT 1388 ( year: 1982 )

Under New York law, the State may terminate, over parental
objection, the rights of parents in their natural child upon a
finding that the child is " permanently neglected." The New York
Family Court Act ( ^22 ) requires that only a " fair preponderance
of the evidence" support that finding. NEglect proceedings were
brought in Family Court to terminate petitioner's rights as natural
parents in their 3 children. Rejecting petitioner;s challenge to
the constitutionality of Section 622's " fair preponderance of the
evidence" 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 termination of petitioner's custody. The
Appellate Division of the New York Supreme Court affirmed, and the
New York Court of Appeals dismissed petitioner's appeal to that
court.

Held:

1. Process is constitutionally  due a natural parent at a state-
initiated parental rights termination proceeding.
(a) The fundamental liberty interest of the 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 to the
parents fundamentally fair procedures.
(b) The nature of the process due in parental rights termination
proceedings turns on the balancing of 3 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 procedures. Mathews -v-
Eldrige 424 US 319, 96 SCt 893.  In any given proceeding, the
minimum standard of proof tolerated by due process requirement
reflects not only the weight of the public and private interests
affected, but also a societal judgement about how the risk of error
should be distributed between 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.

2. The " fair preponderance of the evidence " standard prescribed
by NY FCA 622 violates Due Process Clause of the 14th Amendment.
(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 is *final* and irrevocable.
(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 2
outcomes.
(c) A standard of proof more strict than preponderance of the
evidence is consistent with the 2 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 of such
proceeding.

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 a clear and convincing
evidence. A " clear and convincing evidence" standard adequately
conveys to the factfinder the level of subjective certainty about
                                                                         
Newsgroups: alt.dads-rights,soc.men,soc.women,misc.kids,misc.legal