SUPREME COURT OF ARIZONA 

En Banc 

 

KENT K. and SHERRY K., ) Arizona Supreme Court 

 ) No. CV-04-0209-PR 

 Appellants, ) 

 ) 

 ) Court of Appeals 

 v. ) Division Two 

 ) No. 2 CA-JV 03-0059 

BOBBY M. and LEEH M., ) 

 ) Pima County 

 Appellees. ) Superior Court 

 ) No. S-16021999 

 ) 

__________________________________) O P I N I O N 

Appeal from the Superior Court of Pima County 

No. S-16021999 

The Honorable Michael O. Miller 

AFFIRMED IN PART; REVERSED IN PART; REMANDED 

________________________________________________________________ 

Memorandum Decision of the Court of Appeals, Division Two 

No. 2 CA-JV 03-0059 

VACATED IN PART

________________________________________________________________ 

LAW OFFICE OF PATRICIA A. TAYLOR Tucson 

 By Patricia A. Taylor 

Attorney for Kent K. and Sherry K. 

RANDI E. ALEXANDER, Attorney at Law Tucson 

 By Randi E. Alexander 

Attorney for Bobby M. 

________________________________________________________________ 

M c G R E G O R, Vice Chief Justice 

¶1 Arizona statutes governing the termination of the 

parent-child relationship require the trial court to make two 

findings before ordering severance of parental rights. The 

court first must find the existence of one of several enumerated 

statutory grounds for termination, Ariz. Rev. Stat. (A.R.S.) 
2

section 8-533.B (Supp. 2004), and that clear and convincing 

evidence establishes the grounds for termination. A.R.S. § 8-

537.B (Supp. 2004). Next, the court must determine that 

termination of the parent-child relationship is in the best 

interests of the child. A.R.S. § 8-533.B. We granted review to 

determine whether the clear and convincing evidence standard 

also applies to measure the evidence presented to establish the 

best interests of the child.

I. 

¶2 Kent K. and Sherry K. (appellants) are the maternal 

grandparents and legal guardians of Leeh M., the child of their 

sixteen-year-old daughter, Barbara, and eighteen-year-old Bobby 

M. Barbara and Bobby M. married in March 1996, but divorced 

thirteen months later. Throughout their marriage, Barbara and 

Bobby M. engaged in a pattern of fighting and separation,1

 and 

both exhibited immaturity and an inability to cope with the 

responsibilities of parenting. Ultimately, appellants obtained 

full-time physical custody of Leeh and, in July 2000, became 

Leeh’s legal guardians. Bobby M. initially contested the 

guardianship but discontinued his efforts after the first 

hearing because he could not afford an attorney.

¶3 Following the guardianship hearing, Bobby M. was 

 

1

 These actions led to several allegations of domestic 

violence against Bobby M. and to his conviction in January 1997. 

 
3

incarcerated for violating probation and remained incarcerated 

from October 2000 to October 2002. During that time and 

afterward, Bobby M. failed to maintain a relationship with Leeh. 

While in prison, however, Bobby M. took several steps to better 

himself by completing a parenting class and obtaining substance 

abuse treatment, and he wrote several letters to both Barbara 

and Leeh expressing his desire to reunite their family. These 

letters could not be delivered to Leeh because appellants had 

obtained a restraining order against Bobby M. prohibiting him 

from contacting Leeh.

¶4 In April 2002, after nearly two years of caring for 

Leeh as her legal guardians, appellants instituted this action 

to terminate Bobby M.’s parental rights to Leeh.2

 See A.R.S. § 

8-533.A (“Any person or agency that has a legitimate interest in 

the welfare of a child, including, but not limited to, a 

relative, . . . may file a petition for the termination of the 

parent-child relationship . . . .”). Following a severance 

hearing, the trial court found that appellants proved 

abandonment,3

 a statutory ground for termination of parental 

 

2

 According to the record before this court, Barbara had 

consented to severance of her parental rights upon the condition 

that Bobby M.’s parental rights also be terminated. 

3

 “Abandonment” means the failure of a parent to provide 

reasonable support and to maintain regular contact 

with the child, including providing normal 

supervision. Abandonment includes a judicial finding 

that a parent has made only minimal efforts to support 
4

rights, by clear and convincing evidence. The court also found, 

however, that appellants had not presented clear and convincing 

evidence that termination of Bobby M.’s parental rights would be 

in Leeh’s best interests and, for that reason, refused to order 

severance.

¶5 On appeal, appellants claimed that the trial court 

erred by applying the clear and convincing standard of proof to 

its inquiry into the best interests of the child.4

 The court of 

appeals affirmed the juvenile court’s ruling, holding that “the 

moving party in any action to terminate parental rights must 

prove all elements required for severance, including the best 

interests of the child, by clear and convincing evidence.” Kent 

K. v. Bobby M., 2 CA-JV 2003-0059, slip op. at ¶ 9 (Ariz. App. 

2004) (mem. decision). 

¶6 We granted review to clarify the standard of proof 

required for determining the best interests of the child in a 

__________________ 

and communicate with the child. Failure to maintain a 

normal parental relationship with the child without 

just cause for a period of six months constitutes 

prima facie evidence of abandonment. 

A.R.S. § 8-531.1 (Supp. 2004). 

4

 Appellants raised three other issues at the court of 

appeals: (1) the juvenile court abused its discretion by 

“disregarding the great weight of the evidence”; (2) the 

juvenile court abused its discretion by disregarding the 

opinions of an expert witness; and (3) the length of time for 

trying the case was unreasonable. They did not ask this court 

to review any of these issues. 
5

parental severance proceeding. We exercise jurisdiction 

pursuant to Article 6, Section 5.3 of the Arizona Constitution 

and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

II. 

¶7 Arizona statutes address both the grounds and the 

standard of proof required to sever parental rights. A.R.S. §§ 

8-533.B, -537.B. Section 8-533.B defines the grounds that can 

be used to justify termination and requires that a court, “in 

considering any of the following grounds [for termination], . . 

. shall also consider the best interests of the child.” A 

separate statute establishes the procedures for hearing 

termination cases and directs that “[t]he court’s or jury’s 

findings with respect to grounds for termination shall be based 

upon clear and convincing evidence under the rules applicable 

and adhering to the trial of civil causes.” A.R.S. § 8-537.B.5

 

The statute thus clearly requires that the party seeking 

termination establish the grounds for termination by clear and 

convincing evidence. 

¶8 The issue presented by this case is whether the court, 

in determining whether termination is in the best interests of 

 

5

 The version of A.R.S. § 8-537.B in effect at the time of 

the severance proceeding in this case provided only for a judge 

to make findings with respect to the grounds for termination. 

A.R.S. § 8-537.B (1999). The statute was amended in 2003 to 

allow either a judge or a jury to make these findings. See 2003 

Ariz. Sess. Laws, 2nd Spec. Sess., ch. 6, § 9. The current 

version will sunset on January 1, 2007. 
6

the child, should again apply a clear and convincing standard or 

should apply a preponderance of the evidence standard. The 

court of appeals interpreted section 8-537.B as requiring that 

both the statutory grounds for termination and the finding that 

termination is in the best interests of the child must be 

established by clear and convincing evidence. We disagree.6

¶9 Our prior decisions have never directly considered 

this issue. In Michael J. v. Ariz. Department of Economic 

Security, 196 Ariz. 246, 995 P.2d 682 (2000), we stated that 

“[t]o justify termination of the parent-child relationship, the 

trial court must find, by clear and convincing evidence, at 

least one of the statutory grounds set out in section 8-533, and 

also that termination is in the best interest of the child.” 

Id. at 249 ¶ 12, 995 P.2d at 685. Appellants argue that this 

language clearly supports the conclusion that “Arizona breaks 

the inquiry into two parts,” requiring separate standards of 

proof. See Kent K., 2 CA-JV 2003-0059, slip op. at ¶ 6. In 

contrast, the court of appeals concluded that the passage 

supports the conclusion that best interests must be proved by 

clear and convincing evidence, because we did not state that a 

separate standard of proof applies. Id. at ¶ 7. 

__________________ 

6

 We review questions of statutory interpretation de novo. 

City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. ___, 

___ ¶ 8, 105 P.3d 1163, 1166 (2005).
7

¶10 Both approaches read too much into our Michael J.

opinion. The contested language merely restated the language of 

the statute. Indeed, we explicitly stated that we were not 

addressing the finding of best interests of the child, as the 

appellant had not challenged that finding. Michael J., 196 

Ariz. at 249 ¶ 13, 995 P.2d at 685. Thus, we had no occasion to 

consider the proper evidentiary standard to be applied to the 

best interests inquiry.

¶11 Nor have we ever directly considered the question of 

the constitutionally required minimum standard of proof in a 

best interests inquiry. In Maricopa County Juvenile Action No. 

JS-500274, we held that the “best interests of the child are a 

necessary, but not exclusively sufficient, condition for an 

order of termination.” 167 Ariz. 1, 5, 804 P.2d 730, 734 

(1990). Because severance cases involve fundamental rights, we 

stated, these “constitutional rights can be overridden only by 

the combined elements of statutorily defined improper behavior 

by the parent and the child’s best interests.” Id.

¶12 The court of appeals has on occasion cited JS-500274

for the proposition that the best interests of the child must be 

proved by clear and convincing evidence. See, e.g., Maricopa 

County Juvenile Action No. JS-9104, 183 Ariz. 455, 461, 904 P.2d 

1279, 1285 (App. 1995) (“The severing court must find by clear 

and convincing evidence both the statutory elements plus the 
8

best interests of the child.”); Maricopa County Juvenile Action 

No. JS-8441, 175 Ariz. 463, 465, 857 P.2d 1317, 1319 (App. 1993) 

(“A termination order must be supported by clear and convincing 

evidence establishing a statutory ground and the best interest 

of the child.”). We understand how this misapprehension arose. 

Our classification of the statutory grounds and best interests 

as “combined elements” for severance cases could lead one to 

conclude, as counsel for appellee argued at oral argument, that 

these are two sides of the same coin. But holding that a 

particular finding is necessary to satisfy considerations of due 

process does not involve the same analysis as determining the 

degree of proof required to justify that finding. 

¶13 We therefore now expressly consider, first, the 

standard of proof required by Arizona’s statutes to be applied 

in a best interests inquiry and, second, whether the standard of 

proof required by statute satisfies constitutional due process 

requirements. 

A. 

¶14 We interpret statutes to give effect to the 

legislature’s intent. When a statute is clear and unambiguous, 

we apply its plain language and need not engage in any other 

means of statutory interpretation. Aros v. Beneficial Ariz., 

Inc., 194 Ariz. 62, 66, 977 P.2d 784, 788 (1999). If ambiguity 

exists, however, we determine legislative intent by looking 
9

first to the text and context of the statute and then 

considering its historical background, effects and consequences, 

and its spirit and purpose. See People’s Choice TV Corp., Inc. 

v. City of Tucson, 202 Ariz. 401, 403 ¶ 7, 46 P.3d 412, 414 

(2002).

¶15 We note at the outset that section 8-537.B is 

ambiguous. The statute explicitly establishes the standard of 

proof to be applied to the “findings with respect to grounds for 

termination.” A.R.S. § 8-537.B. The statute, however, neither 

expressly defines the term “grounds for termination” nor 

specifically provides a standard of proof to be applied to the 

best interests inquiry. Thus, we must interpret this statute to 

determine what standard of proof the legislature intended to 

apply to the best interests inquiry.

¶16 Although sections 8-533.B and 8-537.B do not 

unambiguously establish the standard of proof required to 

satisfy the best interests inquiry, the statutory language does 

shed some light on the subject. Section 8-533.B distinguishes 

between the statutory grounds sufficient to justify the 

termination of the parent-child relationship on the one hand, 

and the mandatory consideration of the best interests of the 

child on the other. The distinction is set up by separate 

clauses requiring that the trial court first consider “any of 

the following grounds [for termination]” and then requiring that 
10

the court “also consider the best interests of the child.” 

A.R.S. § 8-533.B. This distinction between grounds for 

termination and best interests gains importance when read in 

conjunction with section 8-537, which requires clear and 

convincing evidence only “with respect to grounds for 

termination.” Thus, the specific reference only to grounds for 

termination in section 8-537, read together with the distinction 

in section 8-533 between statutory grounds for termination and 

the best interests inquiry, evinces an intent on the part of the 

legislature to apply the standard of proof expressed in section 

8-537 only to the grounds for termination and not to the 

consideration of best interests. 

¶17 The historical development of these statutes 

buttresses this conclusion. See Carrow Co. v. Lusby, 167 Ariz. 

18, 20, 804 P.2d 747, 749 (1990) (“Legislative intent often can 

be discovered by examining the development of a particular 

statute.”). As originally enacted, Arizona’s parental-rights 

termination statute did not mention the best interests of the 

child. 1970 Ariz. Sess. Laws, ch. 153, § 2 (“Any person or 

agency that has a legitimate interest in the welfare of a child 

may file a petition for the termination of the parent-child 

relationship if one or more of the following grounds exist.”). 

To sever parental rights under this statute, the court needed 

only to find by a preponderance of the evidence one of the 
11

enumerated grounds for severance. See id. (“The court’s 

findings with respect to grounds for termination shall be based 

upon a preponderance of the evidence under the rules applicable 

and adhering to the trial of civil causes.”). 

¶18 In 1979, the legislature amended the termination 

statute to provide as follows: 

Evidence sufficient to justify the termination of the 

parent-child relationship shall include any one of the 

following, and in considering any of the following 

grounds, the court may also consider the needs of the 

child. 

1979 Ariz. Sess. Laws, ch. 86, § 1 (emphasis added). The 1979 

amendment clearly established the demarcation between grounds 

for termination under the statute and best interests of the 

child by including the needs of the child as a permissive, 

rather than a mandatory, consideration for the court. Section 

8-537.B, including its preponderance standard, remained 

unchanged until 1983. 

¶19 Responding to the United States Supreme Court’s 

holding in Santosky v. Kramer, 455 U.S. 745 (1982), that “due 

process requires that the State support its allegations [in 

parental termination proceedings] by at least clear and 

convincing evidence,” id. at 748, and this court’s 

acknowledgement of that rule in Pima County Juvenile Action No. 

S-919, 132 Ariz. 377, 646 P.2d 262 (1982), the legislature 

amended A.R.S. § 8-537.B in 1983 to replace the preponderance of 
12

the evidence standard with a clear and convincing evidence 

standard. 1983 Ariz. Sess. Laws, ch. 176, § 3. The legislature 

made no other changes at that time to the relevant sections of 

the termination statutes. Thus, as the statute stood following 

the 1983 amendment, an Arizona court could terminate parental 

rights simply by finding at least one statutory ground listed in 

section 8-533.B by clear and convincing evidence. After finding 

that statutory ground, the court was permitted, but not 

required, to consider the needs of the child in making the final 

termination decision. We think it unlikely that the legislature 

intended to require clear and convincing evidence of a finding 

that it left to the discretion of the trial court to consider in 

the first instance. 

¶20 The statute reached its current form in 1994, when the 

legislature amended section 8-533.B to make the best interests 

inquiry mandatory. 1994 Ariz. Sess. Laws, ch. 116, § 4 (“[I]n 

considering any of the following grounds, the court shall also 

consider the best interests of the child.”) (emphasis added). 

¶21 Although Bobby M. asserts that this transition from 

permissive to mandatory consideration of the best interests of 

the child indicates that the legislature intended to make best 

interests one of the “grounds” for termination of parental 

rights, the legislature did not make any other textual changes 

that would support such a conclusion. In making the best 
13

interests consideration mandatory, the legislature left intact 

the remaining language of section 8-533.B, thereby continuing to 

distinguish statutory grounds for termination from the best 

interests inquiry. Nor did the legislature alter section 8-

537.B to apply a heightened evidentiary standard to anything 

beyond proof of the statutory grounds for termination. Had the 

legislature desired to apply the clear and convincing evidence 

standard to the finding of best interests of the child, it 

easily could have done so. 

¶22 For the foregoing reasons, we conclude that Arizona’s 

statutes require that the party seeking termination of parental 

rights establish only the statutory grounds of section 8-533 by 

clear and convincing evidence and establish the best interests 

of the child by a preponderance of the evidence. 

¶23 This conclusion does not end our analysis, however, as 

we must also consider whether the Due Process Clause of the 

Fourteenth Amendment requires that the best interests 

determination be supported by clear and convincing evidence. 

B. 

¶24 Parents possess a fundamental liberty interest in the 

care, custody, and management of their children. Santosky, 455 

U.S. at 753; Michael J., 196 Ariz. at 248 ¶ 11, 995 P.2d at 684. 

As with other fundamental rights, however, parental rights are 

not absolute. Id. at ¶ 12. A court may order severance of 
14

parental rights under certain circumstances, so long as the 

parents whose rights are to be severed are provided with 

“fundamentally fair procedures” that satisfy due process 

requirements. Santosky, 455 U.S. at 754. Application of the 

proper standard of proof in a termination hearing is a critical 

component of the “fundamentally fair procedures” necessary to 

satisfy due process. 

¶25 As the Supreme Court has noted, “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.” Id. at 755 (citing 

Addington v. Texas, 441 U.S. 418 (1979)). The preponderance of 

the evidence standard requires that the fact-finder determine 

whether a fact sought to be proved is more probable than not. 

See Black’s Law Dictionary 1201 (7th ed. 1999). This standard 

essentially allocates the risk of error equally between the 

parties involved. Clear and convincing evidence, in contrast, 

reflects a heightened standard of proof that indicates that “the 

thing to be proved is highly probable or reasonably certain.” 

Id. at 577. This standard places a heavier burden upon one 

party to prove its case to a reasonable certainty. 

¶26 These two standards of proof allocate the risk of 

error in the determination of a given fact quite differently and 
15

can lead to quite different results. Bobby M. contends that, 

because of the importance of a parent’s interest in a severance 

proceeding, the Supreme Court’s decision in Santosky mandates 

that the party seeking termination of parental rights establish 

by clear and convincing evidence that severance serves the 

child’s best interests. 

¶27 In Santosky, the Supreme Court considered a New York 

statute that created a bifurcated proceeding in which a juvenile 

court first conducted a fact-finding hearing to determine 

whether the government had proved statutory grounds of parental 

unfitness.7 455 U.S. at 748. If the court determined that the 

State had met its burden for proving the parent’s unfitness, the 

court moved to a subsequent dispositional hearing at which it 

determined what placement would be in the best interests of the 

child. Id.

¶28 On a challenge by the Santoskys to an order 

terminating their parental rights under the New York statute, 

the Supreme Court held that the government could sever parental 

rights only by establishing the grounds for parental unfitness 

by at least clear and convincing evidence. Id. at 769. The 

Court stated that “such a standard adequately conveys to the 

factfinder the level of subjective certainty about his factual 

 

7

 In Santosky, the State sought termination of parental 

rights on the statutory ground of “permanent neglect.” 455 U.S. 

at 747.
16

conclusions necessary to satisfy due process.” Id.

¶29 In determining how the risk of error should be 

distributed in parental rights termination proceedings, the 

Court balanced the three factors established in Mathews v. 

Eldridge, 424 U.S. 319, 335 (1976): “the private interests 

affected by the proceeding; the risk of error created by the 

State’s chosen procedure; and the countervailing governmental 

interest supporting use of the challenged procedure.” Santosky, 

455 U.S. at 754. The Court held that in proceedings to sever 

parental rights, “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.” Id. at 758. 

Thus, because the preponderance of the evidence standard 

essentially allocates the risk of error equally between the 

parents and the state, due process requires a higher standard of 

proof than preponderance of the evidence. 

¶30 Despite its sometimes sweeping language, throughout 

the Santosky opinion the Court made it abundantly clear that its 

analysis of constitutional due process requirements addressed 

only the first stage of the New York termination proceedings, 

the fact-finding hearing. For example, in describing the 

private interests affected by the proceeding, the Court 

acknowledged that both the child and the foster parents shared 
17

an interest in the outcome; however, “at the factfinding stage . 

. . the focus emphatically is not on them.” Santosky, 455 U.S. 

at 759 (emphasis added). Moreover, at the fact-finding stage, 

the state may not presume that the child and her parents possess 

adverse interests. Rather, at the outset of a termination 

proceeding, parent and child “share a vital interest in 

preventing erroneous termination of their natural relationship.” 

Id. at 760. 

¶31 The Court recognized, however, that at the 

dispositional stage, the government may assume that the 

interests of the parents and the child diverge. Id. Once a 

court determines that a parent is unfit, the focus shifts to the 

interests of the child as distinct from those of the parent. 

The weight of the presumption that the child shares the parent’s 

interest in preserving the family relationship is greatly 

reduced by the potential harm to the child from maintaining a 

relationship with an unfit parent. Moreover, the court must 

consider the state’s interest at the dispositional phase: “Any

parens patriae interest in terminating the natural parents’ 

rights arises only at the dispositional phase, after the parents 

have been found unfit.” Id. at 767 n.17. 

¶32 Arizona’s statutory scheme differs slightly from the 

New York statutes discussed in Santosky. Arizona does not 

explicitly bifurcate its termination proceedings into fact-
18

finding and dispositional stages. Nonetheless, as we have 

already discussed, A.R.S. § 8-533.B does distinguish between the 

finding of statutory grounds for termination on the one hand and 

the consideration of the best interests of the child on the 

other. Although the court considers the separate inquiries 

required under section 8-533.B in a single hearing, the two 

inquiries are comparable to the separate fact-finding and 

dispositional hearings conducted under the New York statute. 

Thus, within the context of Arizona’s legislative scheme, 

Santosky mandates only that the findings of the statutory 

grounds for termination be supported by clear and convincing 

evidence. The opinion does not define the minimum standard of 

proof required for determining the best interests of the child. 

C. 

¶33 We apply the Mathews test to determine the standard of 

proof required for a finding that severance of parental rights 

is in the best interests of the child. Under Mathews, 

determining the minimum standard of proof required to afford due 

process involves consideration of three factors: “First, the 

private interest that will be affected by the official action; 

second, the risk of an erroneous deprivation of such interest 

through the procedures used, and the probable value, if any, of 

additional or substitute procedural safeguards; and finally, the 

Government’s interest, including the function involved and the 
19

fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail.” 424 U.S. at 

335. 

¶34 With respect to the private interests at stake, we 

previously have held that “[s]everance of parental rights 

necessarily involves the consideration of fundamental, often 

competing, interests of parent and child.” Michael J., 196 

Ariz. at 248 ¶ 11, 995 P.2d at 684. Proceedings to sever 

parental rights involve two private interests. On the one hand, 

the parent possesses a fundamental liberty interest in the 

control and care of his or her child. The child, on the other 

hand, has an interest in a “normal family home.” Santosky, 455 

U.S. at 759; see also Pima County Juvenile Severance Action No. 

S-114487, 179 Ariz. 86, 101, 876 P.2d 1121, 1136 (1994) (finding 

that in parental severance matters, judges must protect a 

child’s interest in stability and security). 

¶35 As the Supreme Court made clear in Santosky, until a 

court finds grounds for termination, parent and child “share a 

vital interest in preventing erroneous termination of their 

natural relationship.” 455 U.S. at 760. Thus, these interests 

must be assumed to “coincide to favor use of error-reducing 

procedures.” Id. at 761. In a best interests inquiry, however, 

we can presume that the interests of the parent and child 

diverge because the court has already found the existence of one 
20

of the statutory grounds for termination by clear and convincing 

evidence. See A.R.S. §§ 8-533.B, -537.B.8 Thus, while a parent 

already found unfit maintains some interest in the care and 

custody of his or her child, the court’s determination that 

statutory grounds for severance of parental rights exist 

substantially reduces the importance of this interest. In 

considering the best interests of the child, the court must 

balance this diluted parental interest against the independent 

and often adverse interests of the child in a safe and stable 

home life. 

¶36 In light of the shifting of the personal interests at 

stake, we must also consider the second Mathews factor: “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.” 

Santosky, 455 U.S. at 761. In Santosky, the Court found a 

magnified risk of error in applying the preponderance of the 

evidence standard during the fact-finding portion of New York’s 

proceedings because the fact-finding focused solely on the 

parent’s conduct, pitting the immense resources of the state 

against the parent in an attempt to show parental unfitness. 

 

8

 In Arizona, the statutory grounds for termination of 

parental rights are serious in nature, involving grave 

misconduct, see § 8-533.B.1-2 (abandonment, neglect or willful 

abuse), or complete abdication of parental responsibilities, § 
21

Id. at 762-65. Because the focus is solely upon the parent at 

the fact-finding stage, without a heightened standard, the risk 

that a fit parent might be found unfit increases. Use of a 

heightened standard of proof at the fact-finding stage 

recognizes the severe consequence of an erroneous determination 

of unfitness: Error at this stage could lead to permanently 

extinguishing the relationship between a fit parent and his or 

her child. 

¶37 During a best interests inquiry, however, the risk of 

error and the potential for reducing that risk by raising the 

standard of proof change dramatically. Unlike the fact-finding 

proceeding, the best interests inquiry focuses primarily upon 

the interests of the child, as distinct from those of the 

parent. In determining the child’s best interests, the court 

must essentially balance the rights of an unfit parent against 

those of the child. At this stage, the child’s interest in 

obtaining a loving, stable home, or at the very least avoiding a 

potentially harmful relationship with a parent, deserves at 

least as much weight as that accorded the interest of the unfit 

parent in maintaining parental rights. In such cases, in which 

two interests of relatively equal weight clash, allocating a 

greater share of the risk of error to one party serves no 

societal interest. Moreover, requiring proof by clear and 

__________________ 

8-533.B.3-10 (mental deficiency, lengthy imprisonment, prolonged 
22

convincing evidence that termination of parental rights is in 

the best interests of the child actually places the risk of an 

erroneous conclusion as to the child’s best interests squarely 

upon the child. 

¶38 An example underscores the problem that arises from 

imposing a clear and convincing evidence standard of proof on 

the best interests inquiry. Under a heightened standard of 

proof, a judge, after finding statutory grounds for termination 

of parental rights by clear and convincing evidence, might also 

find upon a preponderance of the evidence that severance of 

parental rights is in a child’s best interests, perhaps because 

the child would be jeopardized by the continuation of the 

relationship. See JS-500274, 167 Ariz. at 5, 804 P.2d at 734 

(recognizing potential jeopardy as evidence of the best 

interests of the child). Under the test proposed by Bobby M., 

unless the evidence of the child’s best interests meets the 

heightened clear and convincing evidence standard, that judge 

would be required to leave the child in status quo, despite 

finding by a preponderance of the evidence that doing so exposes 

the child to jeopardy. This result would give too much weight 

to a parent’s interests at a stage at which the court should 

focus upon what is best for the child. 

¶39 Finally, applying the third prong of the Mathews test 

__________________ 

failure to exercise parental rights or responsibilities). 
23

requires consideration of two state interests at stake in 

parental rights termination proceedings. The state possesses 

both “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.” Santosky, 

455 U.S. at 766. Santosky concluded that neither of these state 

interests was unduly burdened by applying the clear and 

convincing standard of proof during the fact-finding proceeding. 

Id. at 766-67. First, according to Santosky, a heightened 

standard of proof should not place any substantial fiscal or 

administrative burden on the state. Id. at 767. Second, 

because the state’s parens patriae interest in termination does 

not arise until the statutory grounds for termination have been 

established, requiring a heightened standard of proof to 

establish those statutory grounds should not burden the state’s 

parens patriae interest. Id. at 766-67. 

¶40 During the best interests inquiry, however, the court 

must consider the state’s compelling parens patriae interest in 

protecting the child through terminating the natural parent’s 

rights. See id. at 767 n.17; cf. Cochise County Juvenile Action 

No. 5666-J, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). While 

shifting to the best interests inquiry presumably does not alter 

the impact of a heightened standard of proof on the state’s 

fiscal or administrative interests, use of the clear and 
24

convincing standard during the best interests inquiry clearly 

could frustrate the state’s “urgent interest in the welfare of 

the child.” Santosky, 455 U.S. at 766 (quoting Lassiter v. 

Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981)). 

¶41 After balancing these three Mathews factors, we 

conclude that due process does not require imposing the clear 

and convincing evidence standard for an inquiry into the best 

interests of the child pursuant to A.R.S. § 8-533.B. Rather, 

because the best interests inquiry requires a delicate balancing 

of the child’s interests, along with the parens patriae interest 

of the state, against the interests of an unfit parent, we hold 

that the preponderance of the evidence standard adequately 

allocates the risk of error between these competing interests. 

III. 

¶42 In the case before us, the trial court determined that 

appellants proved the statutory ground for termination of 

parental rights, abandonment, by clear and convincing evidence, 

but held that they had not proved by clear and convincing 

evidence that severing Bobby M.’s parental rights was in the 

best interests of the child. The court of appeals affirmed both 

of these holdings. Because we hold today that preponderance of 

the evidence, rather than clear and convincing evidence, is the 

proper standard of proof to be applied to the best interests 

inquiry, we vacate the portion of the court of appeals’ 
25

memorandum decision relating to this issue. We affirm that 

portion of the trial court’s judgment concerning the statutory 

grounds for termination, reverse its finding as to best 

interests, and remand to the trial court to reconsider its best 

interests finding, applying the proper standard of proof.9

 __________________________________ 

 Ruth V. McGregor 

 Vice Chief Justice 

CONCURRING: 

_________________________________ 

Charles E. Jones, Chief Justice 

_________________________________ 

Rebecca White Berch, Justice 

_________________________________ 

Michael D. Ryan, Justice 

_________________________________ 

Andrew D. Hurwitz, Justice 

 

9

 In a document recently filed with this court, Bobby M. 

suggests that a material change in circumstance has occurred 

that may affect the trial court’s best interests inquiry. On 

remand, the court may consider evidence of events that have 

occurred since its initial decision.