From: richard.donovan@factory.com (Richard Donovan) 
Newsgroups: alt.dads-rights
Subject: BREAKING UP IS HARD 2 DO
Date: 28 Jul 92 00:49:00 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
               455 US 745 102 SCt 1388, 1982

Parents appealed from the judgement of the Family Court, Ulster
County, J. Elwyn, which adjudged their children to be permanently
neglected. The New York Supreme Court, Appellate Division,
affirmed, 75 AD2d 910 NYS2d 319. The New York Court of Appeals
dismissed the parent's appeal. Certiorari was granted. The Supreme
Court, Justice Blackmun, held that before a state may sever
completely and irrevocably the rights of parents i their natural
child, due process requires that the state support its allegations
by at least clear and convincing evidence, and , therefore, the "
fair preponderance of the evidence" standard prescribed by the New
York Family COurt Act for the termination of parental rights denied
the parents due process.
               Judgement vacated and remanded.

Justice Rhenquist filed a dissenting opinion in which Chief Justice
Burger, Justice White and Justice O'Connor joined.

1. Fundamental liberty interest of natural parents in care, custody
and management of their child does not evaporate because they have
not been model parents or have lost temporary custody of their
child to State. US Constitution, Amends. 5 & 14.

2. EVen when blood relationships are strained, parents retain a
vital interest preventing irretrievable destruction of their family
life, if anything, persons faced with forced dissolution of their
parental rights have more critical need for procedural protections
than do those resisting state intervention in ongoing family
affairs.

3.When state moves to destroy weakened family bonds, it must
provide parents with fundamentally fair procedure.

4.Nature of process due in parental rights termination proceedings
turns on balancing of private interests affected by proceedings;
risk of error created by State's chosen procedure; and
countervailing governmental interest supporting use of challenged
procedure.

5.In any given proceeding, minimum standard of proof tolerated by
due process requirement reflects not only weight of private and
public interests affected, but also societal judgement about how
risk of error should be distributed between litigants.

6. Minimum standard of proof mandated by due process is question of
federal law which Supreme COurt may resolve.

7. Retrospective case-by-case review cannot preserve fundamental
fairness when class of proceedings is governed by constitutionally
defective evidentiary standard.

8. Whether loss threatened by particular type of proceeding is
sufficiently grave to warrant more than average certainty on part
of fact finder turns on both nature of private interest and
permanently threatened loss.

9 In Parental termination proceeding, private interest affected
weighs heavily against use of preponderance of the evidence
standard at state initiated permanent neglect proceeding.

10. Until states proves parental unfitness under New York law,
child and his parents share a vital interest in preventing
erroneous termination of the natural relationship, and, therefore,
preponderance of the evidence standard provided under New York law,
does not satisfy due process clause.

11. Preponderance of the evidence standard provided for in NEw York
statutes governing termination of parental rights upon finding that
child is " permanently neglected " does not adequately allocate
risk of error between parent and child, since, for child, likely
consequence or erroneous failure to terminate is preservation of
uneasy status quo, but for natural parents, consequence of
erroneous termination is un-necessary destruction of natural
family, and, therefore, due process mandates standard of proof
greater than fair preponderance of the evidence.

12. Standard of proof more strict than fair preponderance of the
evidence is consistent with 2 state interests at stake in parental
rights termination proceedings, parens patriae interest in
preserving and promoting child's welfare and fiscal and
administrative interest in reducing costs and burdens of such
proceedings.

13. Before state may sever completely and irrevocably rights of
parents in their natural child, due process requires that state
support its allegations by at least clear and convincing evidence.

14. Clear and convincing evidence standard conveys to fact finder
level of subjective certainty about his actual conclusions
necessary to satisfy due process in proceedings in which state
seeks to completely and irrevocably sever rights of parents in
their natural child.

15. Determination of precise burden of proof equal to or greater
than clear and convincing evidence standard, for purpose of
proceedings in which parental rights are terminated, is a matter of
            
Xref: sparky alt.dads-rights:1616 misc.kids:19875 soc.men:13801 soc.women:14215