This implies that termination would be proper even if some legally inadmissible evidence was also considered by the court, as long as some legally admissible evidence was considered. It is possible that Snyder concluded only that termination is improper as a matter of law whenever it is based exclusively on legally inadmissible evidence. Under this reading of Snyder , impropriety might or might not be found in cases where both legally admissible and inadmissible evidence formed the basis for a decision that the statute was satisfied. In those cases, a harmless error analysis could be employed to determine the impact the legally inadmissible evidence had on that decision. My interpretation of the rules derives in part from the need for procedural protections against the drastic sanction that termination of parental rights represents.
Parents have a fundamental liberty interest in the care, custody, and management of their children.
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. Interpreting the rules to require that a statutory basis for termination must be shown by evidence that is legally admissible is particularly warranted in consideration of the fact that, once this hurdle is overcome, termination is mandated absent a finding that it is not in the best interests of a child. It seems inconsistent for the statute to require that petitioner show by clear and convincing evidence that termination is justified, while the rules allow the use of legally inadmissible and, thus, potentially unreliable evidence to satisfy this standard. The evidentiary rules should not undermine the procedural protections afforded by the statute. In any event, parental rights are important and the rules regarding the type of evidence that must be used before a court is authorized to terminate those rights should be clear.