Respondents Brief — Santosky v. Kramer
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IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1980
JOHN SANTOSKY II and ANNIE SANTOSKY
Petitioners,
Y.
BERNHARDT S. KRAMER, Commissioner
ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES
Respondent.
On Writ of Cestiorari to the Sepreme Court of the State of New York,
Appellate Division, Third Department
Of Counsel
H. RANDALL BIXLER
ieee an eet STEPHEN DOMENIC SCAVUZZO
Tacke & Hudson, Creyke, Koehler,
Worn vs ©. 20009 1740 R Seve, N.W.
(202) $83-2500 Ww D.C. 20009
ede (202) 483-2500
A
rate € a7 Aaa T A. DeBERARDINIS, JR.
1744 R Street, N.W.
Washi D.C. 20009
(202) ar
EDWARD E. STROHSAHL
110 Market Street
New York 12477
(914) 246-4951
i
QUESTION PRESENTED
Whether Section 622 of the New York Family Court Act
is unconstitutional because it permits a finding that a child
has been permanently neglected based upon a “fair pre-
ponderance of the evidence.”
ii
TABLE OF CONTENTS
QUESTION PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT
I, The Fourteenth Amendment does not mandate a
burden of proof beyond a preponderance of the
evidence in TPR proceedings
A.
A TPR proceeding does not interfere with a
fundamental liberty interest
Due process considerations may impose a par-
ticular burden of proof on the states only
when a fundamental liberty interest is at
stake | )
The Court’s decisions regarding family law
matters do not compel the conclusion that
New York’s burden of proof choice is in dis-
harmony with a fundamental value deter-
mination of society
At the very least, the New York Legislature’s
burden of proof determination must be al-
lowed to stand in the absence of overwhelm-
ing evidence of fundamental fairness viola-
tions
Page
10
10
11
13
18
20
iii
TABLE OF CONTENTS—CONTINUED
II. The Fourteenth Amendment does not mandate a
burden of proof beyond a preponderance of the
evidence under the New York statutory scheme
A. The due process rights of the parents are zeal-
ously protected by statute and by the courts
1,
The child must have previously been in the
care of an authorized agency
. The parent must fail to maintain contact
with the child or fail to plan for the future
of the child, although physically and fi-
nancially able to do so
. The social service agency must undertake
diligent efforts to strengthen the parental
relationship
A parent must fail in his or her responsi-
bilities for at least one year following re-
moval of the child from the home
. The permanent termination of parental
rights must be in the best interests of the
child
The record developed during the fact-
finding and dispositional hearings must
enable the court to render a fundamen-
tally fair adjudication
B. The interests of the child require that the pre-
ponderance of the evidence standard be ap-
plied in TPR proceedings under the New
York statutory scheme
Page
21
22
23
24
27
29
29
30
31
iv
TABLE OF CONTENTS—CONTINUED
Page
1. Raising the burden of proof would inter-
fere with a child’s right to proper custody. 32
2. The interests of the parents are mitigated
at a TPR proceeding since they possess
only a biological relationship with the
child 35
C. There is little risk of an erroneous termina-
tion of parental rights under existing New
York law . 36
III. There was no error in the proceeding below for
the termination of the Santoskys’ parental rights 42
A. The instant case demonstrates the appropri-
ateness of the present standard under New
York law 44
B. In the alternative, the instant case need not be
remanded since it is correct under any stand-
ard of proof | 47
Vv
TABLE OF AUTHORITIES
Page
Addington v. Texas, 441 U.S. 418 (1979) 14, 18
Anonymous V. Norton, 168 Conn. 421, 362 A.2d
532 (1974) . 41
Caban v. Mohammed, 441 U.S. 380 (1979) . 35
Cleveland Board of Education v. La Fleur, 414 US.
632 (1974) 18, 19
Corey, L. v. Martin, L., 45 N.Y. 2d 383, 408 N.Y.S.
2d 439, 380 N.E. 2d 266 (1978) 22, 44
Cupp v. Naughten, 414 U.S. 141 (1973)... 17
Duncan v. Louisiana, 391 U.S. 145 (1968) 13
Fedorenko v. United States, 101 S.Ct. 737 (1981) 10
Ginsberg v. New York, 390 U.S. 629 (1968) 33, 34
Goldberg v. Kelley, 397 U.S. 254 (1970) 14
Griswold v. Connecticut, 381 U.S. 479 (1965) 14, 20
Guardianship of Denlow, 87 Misc. 2d 410, 384 N.Y.S.
2d 621 (Fam. Ct. Kings County 1976) 27
In re “Female” M., 70 A.D. 2d 182, 417 N.Y.S. 2d
482 (1st Dept. 1979) 30
In re Gault, 387 U.S. 1 (1967) 35
vi
TABLE OF AUTHORITIES—CONTINUED
Page
In re Roy Anthony, A., 59 A.D. 2d 662, 398 N.Y.S.
2d 277 (1st Dept. 1977) : 29
In re Winship, 397 U.S. 358 (1970) 12, 13, 18
Lassiter v. Department of Social Services, 49 U.S.L.W.
4586 (1981) eh 11, 18
Lavine v. Milne, 424 U.S. 577 (1976) 16
Lockport v. Citizens for Community Action, 430 U.S.
259 (1977) | 20
Mathews v. Eldridge, 424 U.S. 319 (1976) 11
Matter of Anita P.P., 65 A.D. 2d 18, 410 N.Y.S. 2d
916 (3rd Dept. 1978) 22, 25, 28, 31, 40
Matter of Barbara P., 71 Misc. 2d 965, 337 N.Y.S.
2d 203 (Fam. Ct. N.Y. County 1972) ice
Matter of Carl and Annette N., 91 Misc. 2d 738, 398
N.Y.S. 2d 613 (Fam. Ct. Schenectady 1977) 22
Matter of Female W., 47 N.Y. 2d 861, 419 N.Y.S. 2d
65, 392 N.E. 2d 1247 (1979) 23
Matter of Florence X., 75 A.D. 2d 942, 428 N.Y.S.
2d 80 (3rd Dept. 1980) 28, 31, 40
Matter of James S., 98 Misc. 2d 650, 414 N.Y.S. 2d
477 (Fam. Ct. Monroe County 1979) 25, 26
Matter of John W., 63 A.D. 2d 750, 404 N.Y.S. 2d
717 (3rd Dept. 1978) 6, 46
vii
TABLE OF AUTHORITIES—CONTINUED
Page
Matter of Leon R.R., 48 N.Y. 2d 117, 421 N.Y.S, 2d
863, 397 N.E. 2d 374 (1979) 23, 25, 28, 30, 31
Matter of Lisa Ann U., 75 A.D. 2d 944, 427 N.Y.S.
2d 994 (3rd Dept. 1980) 31
Matter of Mark G.G., 69 A.D. 2d 311, 419 N.Y.S, 2d
275 (3rd Dept. 1979) 28, 40
Matter of Melanie Ruth J.J., 76 A.D. 1008, 429
N.Y.S. 2d 773 (3rd Dept. 1980) 25
Matter of Michael B., 60 A.D. 2d 628, 400 N.Y.S. 2d
169 (2d Dept. 1977) 23
Matter of Orlando F., 40 N.Y. 2d 103, 386 N.Y.S.
2d 64, 351 N.E. 2d 711 (1976) 25, 30, 31
Matter of Sanjivini K., 47 N.Y. 2d 374, 418 N.Y.S.
2d 339, 391 N.E. 2d 1317 (1979) 22
Matter of Santosky, 89 Misc. 2d 730, 393 N.Y.S. 2d
486 (Fam. Ct. Ulster County 1977) 25
Matter of Shantal M.K., 68 A.D. 2d 482, 417 N.Y.S.
2d 696 (Ist Dept. 1979) 28
Matter of Suzanne N.Y., 102 Misc. 2d 215, 423 N.Y.S.
2d 394 (Fam. Ct. N.Y. County 1979) 27, 28
Matter of Terry D., 53 A.D, 957, 385 N.Y.S. 2d 844
(3d Dept. 1976) 28
Matter of Tina X.X., 73 A.D. 2d 1013, 424 N.Y.S. 2d
53 (3rd Dept. 1980) 25
viii
TABLE OF AUTHORITIES—CONTINUED
Page
Matter of Thomas T.T., 67 A.D. 2d 788, 412 N.Y.S.
2d 482 (3rd Dept. 1979) 27, 28, 31
Matter of Wayne T.D., 70 A.D. 2d 617, 416 N.Y.S.
2d 318 (2nd Dept. 1979) 25, 40
Moore v. City of East Clevejand, 431 U.S, 494
(1977) 35
Parham v. J.R., 442 U.S. 584 (1979) 32, 34, 35
Patterson Vv. New York, 432 U.S. 197 (1977): 16, 17, 47
Prince Vv. Massachusetts, 321 U.S. 158 (1944) 18, 34
Quilloin v. Walcott, 434 U.S, 247 (1978) ; 19
Schneiderman v. United States, 320 U.S. 118 (1943) 15
Smith v. Organization of Foster Families for Equality
and Reform, 431 U.S. 816 (1977) 21, 35, 47
Speiser Vv. Randall, 357 U.S. 513 (1957) 16
Vance V. Terrazas, 444 U.S, 252 (1980) 15, 17, 44
Washington v. Davis, 426 U.S. 224 (1976) 21
Wisconsin Vy. Yoder, 406 U.S. 205 (1972) 18, 19
Woodby v. INS, 385 U.S, 276 (1966) 15
ix
TABLE OF AUTHORITIES—CONTINUED
Page
Constitutional Provisions:
Constitution of the United States,
Fourteenth Amendment 9, 10
Statutes: Federal
25 U.S.C, § 1912 36
Statutes: State
Ariz. Rev. Stat. § 8-533 24, 37
13 Del. Code § 1103(4) 37
Idaho Code § 16-2005 37
Iowa Code § 232.116 29
Mass. Gen. Laws Ann. Ch. 119 §§ 24, 26 37
Md. Ann. Code Art. 16 § 75 37
N.Y. Fam. Ct. Aci.
§ 262 30
§ 392 37
§ 614 23, 45
§ 623 30
§ 624 30
§ 631 30, 31
§ 1011 23
TABLE OF AUTHORITIES—CONTINUED
Page
§ 1012 23
§ 1111 24
§ 1062 37
§ 1064 37
New York Social Services Law
§ 372 30
§ 384-b(1) 24
§ 384-b(4) (a) 24, 44
§ 384-b(4) (b) 24
§ 384-b(4) (c) 24, 44
§ 384-b(4) (d) 24, 41, 45
§ 384-b(7) 27, 28, 29
§ 384-b(7) (a) 24, 25, 27, 29
§ 387-b(7) (f) 27
Okla. Stat. Tit. 10 § 1130 26
Regulations:
Rules and Regulations of the State of New York
18 N.Y.C.R.R. 431.9(b) (2) 28
18 N.Y.C.R.R. 428 30
TABLE OF AUTHORITIES—CONTINUED
Page
Other Authorities:
Children Without Homes, Children’s Defense Fund
(1978) 37, 41
Giovanni & Becerra, Defining Child Abuse (1979) 12, 38
Gordon, Terminal Placement of Children and Per-
manent Termination of Parental Rights: The New
York Permanent Neglect Statute, 46 St. Johns L.
Rev. 215 (1971) 22, 30
Shears, Legal Problems Peculiar to Children’s Courts,
48 ABAJ 719 (1962) 33
Teitelbaum, Foreword: The Meanings of Rights of
Children, 10 N.M.L. Rev. 235 (1980) } 35
Underwood, The Thumb on the Scales of Justice: Bur-
den of Persuasion in Criminal Cases, 86 Yale L.J.
1299 (1977) 13
Weinstein, The Self-Image of the Foster Child,
(1966) 33
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
No. 80-5889
JOHN SANTOSKY II and ANNIE SANTOSKY
Petitioners,
v.
BERNHARDT S. KRAMER, Commissioner
ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES
Respondent.
On Writ of Certiorari to the Supreme Court of the State of New York,
Appellate Division, Third Department
BRIEF FOR RESPONDENT
STATEMENT OF THE CASE
This case centers around three children who have been in
foster care most of their lives. Annie Santosky is the natural
mother of all the children, Tina, John III and Jed. John
Santosky is the natural father of John III and Jed. At Tina’s
birth, Mr. and Mrs. Santosky were 16 years old.
The circumstances which led to the foster care placement
of these children would offend any reasonable person. Prob-
lems in the Santosky home first surfaced in the fall of 1973
with Tina. Although the agency technically filed a neglect
petition, the underlying facts constituted child abuse. On
September 10, 1973, Tina was taken to Ellenville Com-
munity Hospital where the attending physician recom-
ies Sone
mended hospitalization for a broken leg. However, the par-
ents took Tina home without treatment and applied a
home-made splint (E 1-2).' On September 23, 1973, re-
sponding to a neighbor’s complaint, the police returned Tina
to the hospital. The child had severe bruises on her upper
arms, forehead, flank and spine as well as cuts on her upper
leg (E 2). Tina was removed from her parents in November
of 1973.
The Ulster County Department of Social Services began
to work with the family towards the statutory goal of re-
habilitation and return of the child to the parents. Although
she was still technically in the custody of the agency, Tina
was actually returned home on a trial basis in June of 1974
(E 134). However, any solution the agency’s efforts had
achieved was shortlived (E 135).
John III was removed on August 19, 1974. In addition to
evidencing malnutrition to the point where he required im-
mediate hospitalization (E 3), he had been subjected to
multiple pin pricks as discipline for not sitting up in his high
chair (E 5). The Department of Social Services took tempo-
rary custody of Jed three days later on the grounds that his
immediate removal was necessary to avoid imminent danger.
Tina, still in the agency’s custody, was also removed. The
underlying facts resulting in the removal of these children
were never contested by Mr. and Mrs. Santosky. (E 219-
221). Furthermore, at a hearing held on September 30,
1974, in which they were represented by counsel, the San-
toskys allowed the agency to take custody of all their chil-
dren (E18 & 21).
The children’s temporary removal mandated that the
1 The designation (E 1-2), refers to Respondent's Exhibit, pages
1-2. Ten copics of Respondent’s Exhibits to its brief have been filed
with the clerk of the Court.
os
agency obtain several extensions of foster care placement as
time went on. For a substantial period of time, only one
placement extension was contested. Moreover, the children
remained in foster care without objection after July 15,
1975 although the appropriate orders had expired (E 666).
At the foster care extension hearing * in which the par-
ents and the children were represented by counsel, a social
worker traced the background of the case and testified that
after Tina was removed, the agency offered an intensive
service program from the Child Protection Unit to the San-
toskys (E 34). As a result, Tina was returned home upon a
private plan between the agency and the parents (E 49). As
previously mentioned, John III had been born, and Annie
Santosky was pregnant with Jed. Unfortunately, abuse prob-
lems resurfaced, and all the children were removed. The
agency then requested that the parents attend a Mental
Health Clinic, which the Santoskys agreed to do (E 37).
The Director of the Southern Ulster Mental Health Clinic
testified that Mr. Santosky had serious emotional problems
which rendered him incapable of raising children (E 67, 69
& 100). He also stated that his opinion had been formulated
months ago and as he had not counseled Mr. Santosky since
June of 1975 (E69) the problems still remained (E 70).
He also noted that when Mr. Santosky was in counseling, he
attended less than half the sessions (E 78), and denied a
problem existed (E 86).
In a written decision dated December 31, 1975, the court
found that the Santoskys were unable to assume their paren-
tal responsibilities due to personality disorders and granted
the placement extension (E 628-634). The court also di-
rected the agency submit to the court for approval a written
2 The hearing was held on December 2 & 5, 1975. Counsel has
been unable to locate cither the transcript or the recorder’s notes for
the proceeding held on December 5, 1975.
——_ vo
plan to solve the problems at home and reunite the family
(E 635-636). The agency complied with the order within
thirty days (E 639-641) and the plan was approved by the
court in February 1976 (E 642).
Dissatisfied with the progress of the Santoskys and con-
cerned over the lengthy foster care status of the children,
the agency moved to terminate parental rights on Septem-
ber 8, 1976. Since the Santoskys had never formulated a
plan of their own, the case centered around what had been
accomplished under the agency's plan to improve the situa-
tion which resulted in the initial child abuse.’
Part one of the plan proposed to develop the Santoskys’
parental skills by providing a mother’s aide, a nutritional
aide, and a public health nurse. The Santoskys terminated
the use of the mother’s aide shortly after it had begun
(E 305-306), and failed to attend scheduled appointments
at the baby clinic (E 309). They did, however, cooperate
with the nutritional aide.
Part two of the plan dealt with family planning services.
Although strenuously urged, family planning had only been
grudgingly considered after the February 1976 approval
(E 163-164). Even after the court order, Mr. and Mrs. San-
tosky failed to utilize the services of Planned Parenthood of
New Paltz, and consistently rejected family planning services
(E 303, 392).
Parts three and four of the plan dealt with the important
area of counseling. Here, the agency offered psychiatric
treatment for Mr. Santosky and counseling from the Family
Service Center for Mrs. Santosky. These were eventually
* Although the plan was not specifically reduced to writing until
January 1976, it had been in effect since the problems arose in
1973 (E 128-129, 303, 306-311) and was personally explained to
the Santoskys (E 359).
_
combined to provide counseling from the Family Center for
both. Once again, the service was considered by the San-
toskys only after the court approval (E 140). Prior to the
approval, Mr. Santosky had completely rejected the services
of the Family Center (E 302).
It was also established that the Santoskys did not even
begin to attend the Center until March 1976 (E 193), some
three years after the agency had become involved with the
family. Furthermore, in the period between the initial ap-
pointment and the trial, Mr. and Mrs, Santosky missed
almost half of the sessions (E 194). However, the director
of the center, Mrs. Elizabeth Smith, testified that they were
making movement forward in a positive direction (E 212-
213,241).
The final area of the plan dealt with employment. Mr.
Santosky was offered the services of a vocational rehabilita-
tion program which he quit prior to completion (E 507)
but rejoined after the February 1976 court order. Despite a
poor to fair attendance record, vocational counselors testi-
fied that he was demonstrating progress (E 339) and move-
ment (E 481).
Both parents took the stand at the hearing. Mr. Santosky
testified that he understood why the children were initially
removed (E 516). He also stated that he was providing
more room at home for the children (E 488) and that he
would like to see them come home one at a time (E 519).
Mrs. Santosky testified that she understood why the children
were temporarily removed (E 559, 562).
At the close of the testimony, the government argued that
the Santoskys’ progress was so minimal that no return was
possible in the foreseeable future. Since the agency demon-
strated that the children needed a permanent home quickly
(E 648, 654, 660), it argued that the parental rights should
be terminated. This approach was rejected. The court noted
eo
that under New York law, the parents must be judged by
standards which are reasonable under the circumstances
(E 613-616). Thus, even though their efforts were minimal,
they did utilize some of the services offered (E 620). With
this effort,‘ they were taking steps to eliminate the initial
problems, thereby planning for the future of their children
under New York law. Accordingly, the petition was dis-
missed.
On appeal, the court found that the Santoskys’ efforts
constituted planning and were sufficient to thwart the
agency’s termination action. See Matter of John W., 63 A.D.
2d 750, 751, 404 N.Y.S. 2d 717, 719 (3rd Dept. 1978).
In addition to losing its case, the agency was instructed
to redouble its efforts so that the parents could achieve a
minimal competency level (E 624). This was far easier said
than done. Parental exposure resulted in psychological
trauma to the children and the agency attempted to cut off
visitation rights (E 678-681). In a decision dated June 14,
1977, the trial judge ruled that although he could not, con-
sidering the initial problems in the home, in good conscience
return the children to Mr. and Mrs. Santosky (E 672), the
agency must allow visitation and attempt to reunite the fam-
ily, notwithstanding any problems conferred upon the
children.
On October 16, 1978, Respondent filed a petition alleg-
ing that the children were permanently neglected. A trial of
the issues raised in the petition was held on January 23, 26,
31 and February 1, 1979. At the hearing, all parties were
represented by counsel as they must be under New York
law. The court took judicial notice of its own records relat-
ing to the proceeding (J.A. 20). In so doing, the trial judge
was evaluating what progress, if any, the Santoskys had
* The court went so far as to call their efforts superficial (E 618).
a
made towards the reunification of their family. He could
also evaluate agency efforts, over the course of the years, to
solve the problem.
The court’s opinion recites the eleven various services
which the agency offered, arranged for, and encouraged the
Santoskys to accept during the two years prior to trial. These
services were refused (Tr. 14, 16, 18).° No evidence was
ever submitted at trial that the parents had an alternate plan
of their own. Furthermore, during the course of many con-
tacts with social workers, the Santoskys never asked when
their children would be returned home permanently (Tr.
20). The Santoskys were fully aware of the agency’s services
(Tr. 72), and still refused to cooperate.
The record shows, and the judge found, that all the essen-
tial services were either refused (Tr. 152) or ineffective in
accomplishing the goal. The major areas of the plan were
psychological counseling, aid in dealing with children and
Mr. Santosky’s employment difficulties. Case workers in-
volved with the Santoskys testified that there was no forward
movement (Tr. 83) in these areas.
Concerning employment, Mr. Santosky was no longer
utilizing the vocational services (Tr. 40, 82) or attending
classes at the adult learning center (Tr. 131); and he was
still unemployed.
Due to the circumstances under which the children had to
be removed, psychological counseling was an important
aspect of the plan. Respondent takes strong exception to any
assertions that the Santoskys participated in therapy. Rather,
these services were repeatedly rejected (Tr. 29, 94). In
point of fact, the last time the Santoskys engaged in psy-
chological counseling was June of 1975 (E 69). The San-
* Tr. refers to the transcript of the hearing held on January 23, 26,
31 and February 1, 1979.
toskys refused to make any efforts here, despite the fact that
as of December 1977, problems still existed. A psycholo-
gical evaluation of Mr. Santosky revealed frequent grossly
disordered thought processes. His responses indicated an
underlying psychosis against which he had few effective
defenses. There was evidence of particular difficulty con-
trolling aggressive impulses and a fear of being the victim of
destructive forces which were beyond his control (E 679-
681). An evaluation of Mrs. Santosky indicated a dependent
personality who viewed the male figure as dominant, cruel
and harmful (E 684).
The Santoskys were attending the Family Service Center.
However, their attendance had fallen off (Tr. 95), to the
point where they were only attending one-third of the ses-
sions (Tr. 345). Furthermore, Mrs. Elizabeth Smith, the
director of the center, is a social worker, not a psychologist
(Tr. 349), and could not provide psychiatric counseling
(Tr. 184).
Rather, Mrs. Smith directed her attention to helping the
Santoskys deal with the eventual return of their children,
perhaps the most important aspect of the plan. Therefore,
she, along with the agency (Tr. 104-105), encouraged
Mrs. Santosky to participate in the Child Enrichment Pro-
gram; but this important service was also refused. Thus,
Mrs. Smith concluded that the children could not be re-
turned home in the foreseeable future (J.A. 16-18). Her
opinion was corroborated by Dr. Sportsman, a child psy-
chiatrist (Tr. 237-239).
In contrast to the first termination proceeding, neither of
the Santoskys took the stand to testify about their plans or
dreams for the return of the children.
After evaluating the evidence, the court concluded that
the Santoskys had refused to plan for the future of their
children although able to do so. The court noted that their
—
failure to utilize any of the services offered was almost total
and complete (J.A. 35). It stated that their minimal efforts
had tapered off to the point where they were no longer
measurable (J.A. 37). Thus, the children were permanently
neglected.
However, the Santoskys’ parental rights were not and
could not have been terminated at the fact finding hearing.
Under New York law, the parents are entitled to a disposi-
tional hearing first. At this proceeding, held on April 5,
1979,° Mr. and Mrs. Santosky presented no evidence that
the children’s best interest required a return to their home
(E 694), but merely requested visitation rights (E 698).
The court promptly ordered termination.
SUMMARY OF ARGUMENT
Unless a proceeding involves a “fundamental liberty
interest” the issue of burden of proof is not of constitutional
moment. The concept of what constitutes a fundamental
liberty interest is not expansive, but rather applies to limited,
well-defined circumstances such as restraints to physical
liberty. Because a proceeding to terminate parental rights
does not involve a fundamental liberty interest, the New
York burden of proof standard cannot be said to violate
Petitioners’ due process rights. Simply stated, the Court's
decisions regarding family matters demonstrates that New
York’s choice of burden of proof standard is not in dis-
harmony with a fundamental value determination of society.
The Fourteenth Amendment does not mandate a burden
of proof greater than a preponderance of the evidence under
the New York statutory scheme. The due process rights of
parents are zealously protected by statute and by the N.Y.
courts. The statute provides specific and readily ascertain-
* This proceeding, enclosed as Respondent's Exhibit 11, was tran-
scribed at counsel’s request in July 1981.
a
able conditions which must be met before a court can term-
inate parental rights. Hence there is little risk of an errone-
ous termination of parental rights under existing New York
law. Furthermore, the interests of the child require that the
preponderance of the evidence standard be applied under
the New York statutory scheme.
A review of the record in the instant case demonstrates
the appropriateness of the present burden of proof standard.
In the alternative, the instant case need not be remanded
since it is correct under any standard of proof.
ARGUMENT
1. The Fourteenth Amendment Does Not Mandate A Burden cf Proof
Beyond A Preponderance of the Evidence in TPR Proceedings.
The question of what burden of proof should be applied
in a particular litigation involves a consideration of the sub-
stantive due process requirements of the Fourteenth Amend-
ment. The requirement of proof beyond a preponderance is
applicable only when a fundamental liberty interest is at
stake. To hold otherwise would be contrary to the spirit of
the decisions on the issue and create a precedent for unwar-
ranted intrusion into legislative discretion. This result would
logically follow with drastic consequences since there is no
significant difference, in a burden of proof context, between
the instant case and other civil litigation.
Accordingly, there is no need for an emotional distinction
between this case and a condemnation action or a licensing
procedure. Such a relative comparison of the interests in-
volved is very much beside the point. The only relevant
analysis in burden of proof decisions is whether the liberty
interest involved is fundamental. If so, the Fourteenth
Amendment addresses the issue. If not, the choice of a par-
ticular burden of proof lies within the sound discretion of a
state legislature.
ee
The Constitution does not specifically enunciate the right
to raise one’s children as being fundamental. However, the
Fourteenth Amendment does proscribe the taking of prop-
erty or liberty interests without due process of law. Since
the Constitution has expressly equated these rights, it is
neither necessary nor proper for the Fourteenth Amend-
ment to be rewritten and the right to raise one’s children
elevated above the other property and liberty interests pos-
sessed by American citizens and safeguarded by the appli-
cation of procedural due process.
There should be no doubt but that Matthews v. Eldridge,
424 U.S. 319 (1976), heavily relied upon by Petitioners, is
a procedural due process case. The issue in Matthews was
whether a hearing was required before disability benefits
were terminated. This question, of course, was answered in
the affirmative.
Under Matthews, any time the government swings the
club of state action against a citizen, the shield of the
Fourteenth Amendment rises to provide a certain bundle of
rights. Included in this legal package, among other rights,
are notice, opportunity to be heard, and the right to cross-
examine witnesses. A particular burden of proof is not in-
cluded in these rights but, rather, is applicable only when a
fundamental liberty interest is at stake.
Fundamental
A. A TPR Proceeding Does Not Interfere With A
It should be clear from Lassiter v. Department of Social
Services, 49 U.S.L.W. 4586 (1981), that, since a TPR pro-
ceeding does not concern physical freedom, a fundamental
liberty interest is not at issue. Lassiter implicitly recognized
that the right to the custody of one’s children is a relatively
modern legal concept resulting from an evolution of Anglo-
Saxon law. Thus, considered in light of the proper historical
>
— 12—
background,’ the parent-child relationship is a far cry from
the universal, ancient, and fundamental concept of the right
to physical liberty.
In Colonial America, for pragmatic reasons, the interests
of the community transcended individuals’ rights in many
areas. This had an interesting application to the parent-child
relationship. In many respects, the community was the prin-
cipal and the parent was the agent. As agents of the com-
munity, parents were given the job of raising desirable and
productive citizens. This job was considered so important
that it outweighed the value of family ties. If the parent fell
short of the task, the child was removed from the home.’ It
was as simple as that.
Local laws were passed to ensure that the parents per-
formed their obligations, but they varied widely depending
upon the nature of the community. When the colonists
formed the government and drafted the Constitution, no
mention was made of the parent-child relationship. The
diversity of values on the issue could not be translated into
one simple due process formula to be policed by the federal
government. This led to a substantial variation of state laws
dealing with termination of parental rights.
The diversity of values which exists in American culture
concerning the parent-child relationship is particularly rele-
vant there. The burden of proof decisions, beginning with
In Re Winship, 397 U.S. 358 (1970), are grounded in the
universally high regard for the protection of physical liberty.
Thus, no state is allowed to diverge from proving criminal
guilt beyond a reasonable doubt. The entire thrust of this .
line of cases is to ensure uniformity, not diversity, in decid-
™ See Giovanni & Becerra, Defining Child Abuse (1979), pp. 31-
75, where the evolution of the legal relationship between parents,
their children, and the state is extensively discussed.
* Defining Child Abuse, supra, 38-40.
ee
ing burden of proof questions when physical freedom is
threatened. The reasoning is diametrically opposed to the
Founding Fathers’ attempts to allow for diversity in this
area of family law.
B. Due Process Considerations May A Particular Burden of
—— ee Liberty Interest
t Issue.
As articulated by Justice Harlan, the choice of the stand-
ard of proof to be applied in a particular kind of litigation
reflects an assessment of the comparative social disutility of
the potential erroneous outcomes inherent in a proceeding.
In Re Winship, 397 U.S. 358, 371 (1970) (J. Harlan con-
curring); see generally, Underwood, The Thumb on the
Scales of Justice: Burdens of Persuasion in Criminal Cases,
86 Yale L.J. 1299 (1977). In Winship, a case dealing with
the burden of proof in a juvenile delinquency proceeding,
two erroneous outcomes were possible: an innocent juvenile
could be found guilty of the commission of a crime and
incarcerated; or a guilty juvenile could be adjudged not
guilty and set free. In its analysis the Court noted that the
requirement for a higher degree of persuasion in criminal
cases dated back to ancient times and that adherence to a
reasonable double standard reflected a “profound judgment
about the way in which law should be enforced and justice
administrated,” 397 U.S. at 361-362, quoting Duncan v.
Louisiana, 391 U.S. 145, 155 (1968). Thus, the Court held
that in a society where it is a fundamental value that it is far
worse to convict an innocent man than to let a guilty man
go free, due process of law requires proof beyond a reason-
able doubt.®
* Indeed, in our society it is — self-evident that due process
requires a more stringent standard than a preponderance of evidence
in criminal proceedings. It was not until 1970 that the Court dealt
with this issue “because of the nearly complete and longstanding ac-
ceptance of the reasonable doubt standard by the states,” In Re
Winship, 397 U.S. 358, 372 (1970) (J. Harlan concurring).
am. 34 am
Sim‘larly, in Addington v. Texas, 441 U.S. 418 (1979),
the Court held that the Due Process Clause of the Four-
teenth Amendment requires proof greater than a preponder-
ance of the evidence standard in a civil commitment
proceeding. In Addington, the Court assessed “the extent of
the individual's interest in not being involuntarily confined
indefinitely and the state's interest in committing the emo-
tionally disturbed under a particular standard of proof,”
441 US. at 455. In effect, such an assessment is nothing
more than Justice Harlan’s assessment of the comparative
social disutility of potential erroneous outcomes, The Court
weighed the disutility of erroneously committing an indi-
vidual to a mental institution for an indefinite period against
the social disutility of not committing those who require
treatment. Although there is an extensive social disutility in
not committing and treating those mentally ill individuals
who should be so committed, the Court found that this pos-
sible outcome is greatly outweighed by the individual's fund-
amental interest in his own liberty. 441 U.S. at 425-427.
Hence, the preponderance of evidence standard in a civil
commitment proceeding does not satisfy the requirements
of due process.
At this juncture, it is important to note that the liberty
interest at stake in Winship and Addington was the funda-
mental right to remain free in society. When the individual
faces wrongful loss of liberty through an erroneous criminal
conviction or civil commitment, the Court has ruled that the
burden of proof becomes an issue of constitutional moment.
Admittedly, other liberty interests have been recognized by
the Court as having procedural due process implications.
E.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare
benefits); Griswold v. Connecticut, 381 U.S. 479 (1965)
(privacy). Nevertheless, although confronted with the issue
in several different settings, the Court has never ruled that
any liberty interest other than the physical liberty of remain-
—- 1565—
ing free in society requires a burden of proof greater than a
preponderance of the evidence as a matter of the Due
Process Clause.
The immigration decisions are not to the contrary.
Woodby v. Immigration and Naturalization Service, 385
U.S. 276 (1966), cited by Petitioners, was not a constitu-
tional ruling but rather was a case where the Court was
required to “read” a burden of proof standard into a de-
portation statute in light of Congressional silence.'® The
Court did not proceed to rule on the merits of the case until
it analyzed the relevant statute and determined that Con-
gress had “not addressed itself to the question of what
degree of proof is required in deportation proceedings.” 385
U.S. at 276.
Furthermore, the immigration decisions are in accord
with the principle that the burden of proof is not a constitu-
tional issue unless physical liberty is at stake. In Woodby
(deportation) and Schneiderman v. United States, 320 U.S.
118 (1943) (denaturalization), the potential deprivation
was the right to physically remain in the United States,
obviously constituting a fundamental liberty. Thus, the
Court preferred a burden of proof higher than a preponder-
ance of the evidence. These cases are in contradistinction to
Vance V. Terrazas, 444 U.S. 252 (1980) (expatriation)
where the individual could, if the government was success-
ful, still remain physically free in society, notwithstanding
the loss of citizenship.
1 Similarly, in Fedorenko v, United States, 101 §.Ct. 737 (1981),
a case cited by Amicus Curiae, the Court did not render a ruling of
constitutional dimension nor even a decision involving burden of
proof. Rather, the Court resolved, as a matter of statutory interpreta-
tion, the issue of whether an immigrant’s failure to disclose in his
application for a visa that he had served as an armed guard for the
azis in Poland, rendered his citizenship revocable as “illegally pro-
cured” pursuant to statute, The issue of burden of p was not
before the Court.
Thus, where the Court agreed that the frequency of in-
correct denial of welfare benefits could be high and the
state’s interest in screening out fraudulent welfare claims
was relatively low, the Court nonetheless held that the
Fourteenth Amendment did not compel altering of the state
created burden of persuasion which fell upon the welfare
claimants, Lavine v. Milne, 424 U.S. 577 (1976). The
Court noted that “outside the criminal law area, where spe-
cial concerns attend, the focus of the burden of persuasion is
normally not an issue of federal constitutional moment.”
424 U.S. at 585. As a result, the Court deferred to New
York’s legislative determination concerning the burden of
persuasion.
Similarly, the Court has refused to adopt, as a matter of
constitutional law, that a state must disprove beyond a rea-
sonable doubt every fact constituting any and all affirmative
defenses related to the guilt of an accused, Patterson v. New
York, 432 U.S. 197, 210 (1977). In so ruling the Court
recognized that it is normally:
within the power of the State to regulate procedures
under which its laws are carried out, including the
burden of producing evidence and the burden of per-
suasion, and its decision in this regard is not subject to
proscription under the Due Process Clause unless it
offends some principle of justice so rooted in the tradi-
tions and conscience of our people as to be ranked as
fundamental.
432 U.S. at 201-202, quoting in part Speiser v. Randall,
357 U.S. 513, 523 (1958).
In Patterson, the New York Legislature had weighed the
social disutility of two erroneous outcomes: persons deserv-
ing treatment as murderers might escape punishment; con-
versely, individuals who should justly escape punishment,
as a result of an affirmative defense, might be wrongly con-
-_ 17 —
victed, The Legislature, in making the determination that
the former erroneous outcome outweighed the ,atter out-
come, was required to subtly balance society's interests
against those of the accused. The Court was unwilling to
overturn such legislative decision-making. 432 U.S. 207-
210."
Nor did the Court strike down a preponderance of the
evidence standard where the right affected by a possible
erroneous determination was one of the most cherished
rights possessed by a citizen, namely citizenship itself. In
Vance V. Terrazas, 444 U.S. 252 (1980), the Court held
that Congress did not exceed its constitutional authority by
requiring proof of an intentional expatriating act by only a
preponderance of the evidence. Although the Court, in
analyzing relevant precedent, recognized its preference for
requiring clear and convincing evidence to prove expatria-
tion, it ruled that expatriation proceedings do not threaten
a loss of liberty as in the criminal and involuntary commit-
ment cases. 444 U.S. at 266. Accordingly, the Court de-
ferred to the Congressional judgment that the preponderance
standard of proof sufficiently protects the interest of the in-
dividual in retaining his citizenship.
In the instant case, one not involving the potential loss
of physical liberty, the two potential erroneous outcomes can
be stated as follows: the state may erroneously fail to
terminate the relationship between a parent and a perman-
ently neglected child, or the state may incorrectly terminate
"! Additionally, the Court did not accept the argument that the
New York statute was somehow unconstitutional because the majority
of states have now assumed the burden of disproving affirmative
defenses, Patterson v. New York, 432 U.S. 197, 211 (1977). In the
instant case, Petitioners point out that only twelve states utilize the
preponderance of evidence standard in f poctag 9 to name eee
terminate parental rights. This “polling” of states is totally irrelevant
toa consideration of whether Petitioners’ due process rights have been
violated, See Cupp v. Naughten, 414 U.S. 141, 146 (1973).
=<"
a parent-child relationship. As discussed below, an assess-
ment of the comparative social disutility of these outcomes
does not result in a fundamental value determination, one
rooted in the tradition and conscience of our society; as a
matter of due process of law the burden of proof in a pro-
ceeding to terminate parental rights must be greater than a
preponderance of the evidence. Therefore, the Court should
defer to the standard of proof choice made by the New York
Legislature.
C. The Court’s Decisions Regarding Family Matters Do Not Compel
The Conclusion That New York's Choice of Burden of Proof
Standard Is In Disharmony With A Fundamental Value Deter-
mination of Society.
The fundamental value at stake in Winship and Adding-
ton was readily discernible. The Court in these two cases
could state with certainty that the individual’s interest in
his liberty is so precious in our society that he cannot be
incarcerated or committed to a mental institution without
proof greater than a preponderance of the evidence of his
guilt or mental iillness. In contrast, as is apparent from the
Court’s decisions in the area of family law, it cannot be con-
cluded that fundamental values of society dictate that, as a
matter of due process of law, parental rights cannot be
terminated without proof greater than a preponderance of
the evidence of permanent neglect. Cf., Lassiter v. Depart-
ment of Social Services, 49 U.S.L.W. 4586 (1981) (The
Constitution does not require the appointment of counsel for
indigent parents in every parental status termination pro-
ceeding).
The Court has long held that the state has a wide range
of power for limiting parental freedom and authority in
matters affecting a child’s welfare. E.g., Prince v. Massachu-
setts, 321 U.S. 158 (1944). Certain cases, such as Wiscon-
sin v. Yoder, 406 U.S. 205 (1972), and Cleveland Board
of Education v. La Fleur, 414 U.S. 632 (1974) may be
<a a
readily cited for the proposition that freedom to raise one’s
children without unnecessary state intrusion is protected by
the Due Process Clause of the Fourteenth Amendment. But
these cases are clearly distinguishable from the case now
before the Court because they are not cases involving a con-
sideration of potential harm to the child. See Wisconsin v.
Yoder, 406 U.S. at 230."* As stated by the Court:
To be sure, the power of the parent, . . . may be
subject to limitation under Prince if it appears that
parental decisions will jeopardize the health or safety
of the child, or have a potential for significant social
burdens.
406 USS. at 233-234.
But, as discussed below, the instant case involves com-
plicated, controversial, and subtle balancing of the interests
of the child as well as those of the parent and state. Where
the interests and well being of the children are at stake, so-
called fundamental values frequently become blurred. Com-
pare Cleveland Board of Education v. La Fleur, 414 U.S.
632 (1974) (individual has right to be free from unwar-
ranted government intrusion as to decision whether to bear
or beget children) with Quilloin v. Walcott, 434 U.S. 247
(1978) (state may deny unwed father’s authority to prevent
adoption of his illegitimate child where father’s interests are
balanced by the interests of all parties concerned including
the interests of the child).
In summary, the general rule emerging from the relevant
cases is that the question of the proper burden of proof is
a matter of state law unless physical freedom is at stake.
12 In Yoder, the Court limited its holding that Amish parents may
not be criminally prosecuted for failing to send their children to
school beyond the eighth grade, by its assertion that the case was not
one in which any harm to the child was demonstrated or properly
inferred. 406 U.S. at 230.
—_
The Court’s decisions in the family law area do not create
an exception to the rule.”
Therefore, the writ of certiorari was improvidently
granted.
D. At The Very Least, The New York ’s Burden of Proof
Determination Must Be Allowed To In The Absence of
Overwhelming Evidence Of Fundamental Fairness Violations.
This Court has enunciated the principle that it does not
sit as a super-legislature to determine the wisdom of laws
pertaining to economic and social problems. Griswold v.
Connecticut, 381 U.S, 479, 482 (1965). Since the Legisla-
ture has considered the burden of proof question, a presump-
tion must arise that the decision is sound. Lockport v.
Citizens For Community Action, 430 U.S. 259, 272-273
(1977).
Another presumption arises from Lassiter. At the time of
the decision, a preponderance of the evidence was the
standard for the termination of parental rights in North
Carolina and, of course, counsel was not provided. Under
New York law, both the parent and the child are entitled
to a lawyer at a TPR proceeding. If litigating without coun-
sel under a preponderance standard does not offend funda-
mental fairness, then certainly a hearing conducted under
the same standard with counsel provided for all parties must
also pass constitutional muster in the absence of blatant due
process violations. There should be no question but that no
such unfairness, or any unfairness, exists under the New
York statutory scheme.
8 Furthermore, no decision of this Court has used the burden of
proof as a cure-all for a statute which Petitioners and particularly
Amicus Curiae half-heartedly argue is void for vagueness.
Oh an
fl. The Fourteenth Amendment Does Not Mandate A Burden of
Proof Beyond A Preponderance of The Evidence Under The
New York Statutory Scheme.
It is important to state at the outset what the New York
statute does not do. It does not sacrifice or mitigate the
rights of parents for what it perceives to be the “greater
good” of children’s rights. The Family Court Act is a care-
fully considered attempt to deal with child abuse and neglect
problems in the jurisdiction.**
The law is based on the principle that the natural fam-
ily must remain intact at all possible costs. Therefore, the
most important presumption of the statute is that every
home situation, no matter how neglectful or even dangerous,
can be rectified. All people must do is try. If a parent in
New York merely progresses toward the eventual solution
of the family’s problem, no rights can be lost.
However, the law also comes to grips with the realities of
an imperfect world. The drafter knew, economic and social
conditions being what they are, and human nature being
what it is, that situations would be encountered wherein no
resolution was possible. In these cases, where the parents
cannot be helped, procedures were developed so that govern-
ment could take steps to provide a stable home for the
children involved.
The purpose of the permanent neglect statute is not puni-
tive, even though a neglectful parent may suffer. The statute
14 Since the statute serves a legitimate state function in curing a
social problem, we reject Petitioners’ suggestion that it evidences a
cultural or racial bias, A law is not unconstitutional solely because it
has a racially disproportionate impact. Washington v. Davis, 426 U.S.
229, 238 (1976). Here any imbalance arises not from an intent to
discriminate, but rather from the problems which diye creates for
families. See Smith v. Organization of Foster Families, 431 U.S. 816,
833 (1977). As Petitioners have failed to show any intent to dis-
criminate in a law which is neutral on its face, their constitutional
challenge must also fail.
7
is remedial in nature, first and foremost to the family, and
then to the child. It is designed to rescue children from the
uncertainty of being legally chained to individuals who give
little hope of ever acting as parents. Matter of Barbara P.,
71 Misc. 2d 965, 337 N.Y.S. 2d 203 (Fam.Ct.N.Y. County
1972).
Thus, the instant case cannot be decided in the vacuum of
an academic discussion of the burden of proof at a perman-
ent neglect fact finding hearing. Rather, the risk of an
erroneous termination must be evaluated under all the
available statutory safeguards.
A. The Due Process of The Parents Are Zealously Protected
By Statute And By Courts.
The substastive and procedural law of New York con-
cerning the permanent termination of parental rights must
be deemed fundamentally fair. See Gordon, Terminal
Placement of Children and Permanent Termination of
Parental Rights: The New York Permanent Neglect Statute,
46 St. Johns L. Rev. 215 (1971) (hereinafter Termination
of Parental Rights). The law provides specific and stringent
conditions which must be met before a court may per-
manently terminate the rights of the parent. Furthermore,
an objective reading of the relevant case law reveals that
the statute is narrowly construed by the courts. E.g., Matter
of Anita P.P., 65 A.D. 2d 18, 410 N.Y.S. 2d 916 (3rd Dept.
1978); Matter of Carl and Annette N., 91 Misc. 2d 738,
398 N.Y.S. 2d 613 (Fam. Ct. Schenectady 1977). Indeed,
in seeking to terminate parental rights, the State bears a
heavy burden; only extraordinary circumstances will permit
termination. Corey L. v. Martin L., 45 N.Y. 2d 383, 408
N.Y.S. 2d 439, 380 N.E. 2d 266 (1978).
Contrary to the assertions of Petitioners and Amicus
Curiae, the court may not apply its own subjective standards
in its adjudication of parental rights. Matter of Sanjivini K.,
~— re
47 N.Y. 2d 374, 418 N.Y.S. 2d 339, 391 N.E. 2d 1317
(1979). The court’s prime inquiry in a termination pro-
ceeding does not involve a subjective “best interest” test.
Matter of Female W., 47 N.Y. 2d 861, 419 N.Y.S. 2d 65,
392 N.E. 2d 1247 (1979). The court is simply not free to
compare the relative benefits offered a child as a result of
termination. Matter of Leon R.R., 48 N.Y. 2d 117, 421
N.Y.S. 2d 863, 397 N.E. 2d 374 (1979). Rather, the court
must determine whether the many conditions required by
the State Legislature have been fulfilled, before it may
permanently sever the parent-child relationship. These many
conditions assure a fundamentally fair adjudication.
1, The Child Must Have Been Previously In The Care of An
Authorized Agency.
The court has jurisdiction only over those children who
have previously been removed from the home on a tempo-
rary basis. Fam. Ct. Act. § 614, 1(c). A child may be
voluntarily surrendered to the temporary custody of the
State. In other circumstances, the child is not placed in the
care of the State until there has been a judicial adjudication
that the child has been abused or neglected.’* Fam. Ct. Act.
§ 1011, et seq. The parent in such a proceeding is entitled
to counsel, a full hearing and a determination based upon
the record and a preponderance of the evidence. Matter of
Michael B., 60 A.D. 2d 628, 400 N.Y.S. 2d 169 (2nd Dept.
1977). Additionally, the parent has a right of appeal follow-
18 An “abused child” is defined as a child whose parent has phys-
ically injured the child and the injury creates a substantial risk of
death, disfigurement, impairment of physical health, or loss of organ
functions. Fam. Ct. Act. § 1012c¢, Sexual offenses against the child
are also covered by this category. /d. A “neglected child” is one whose
physical, mental or emotional condition has been impaired or is in
imminent danger of being impaired as a result of the parents’ failure
to exercise a minimum degree of care. Fam. Ct. Act. § 1012f. Failure
to provide food, clothing, shelter or abandonment of the child among
other causes, could constitute neglect. /d.
an 6 ee
ing a court finding of abuse or neglect. Fam. Ct. Act.
§ 1111,
But no matter how egregious the harm to the child by
the parent, the State may not permanently terminate paren-
tal rights on the basis of abuse or neglect.’* Despite such
findings, New York continues to presume that the child’s
need for a normal family life will best be met in the home of
the natural parent. Social Services Law § 384-b, 1 (a) (ii).
Thus, the court in a termination proceeding is not primarily
concerned with the parental conduct which resulted in the
child’s removal from the home. Instead, the court must
assess the efforts of the parents as well as the State to reunite
the family.
It is only this assessment that may trigger a finding of
permanent neglect which in turn may lead to permanent
termination of parental rights.’’ Social Services Law § 384-
b, 7(a).
2. The Parent Must Fail To Maintain Contact With The Child Or
Fail To Plan For The Future of The Child, Although Physically
And Financially Able To Do So.
The statute places an affirmative duty upon a parent to
maintain “substantial,” “continuous” or “repeated” contact
with a child in the care of an authorized agency. Social
Services Law § 384-b, 7(a). This provision has generally
been applied by the courts to terminate rights in extreme
circurnstances. Thus, where a mother fled to Virginia in
order to avoid arrest and contacted her children twice by
16 In contrast many states permit termination solely upon a finding
of abuse or neglect. E.g., Ariz. Rev. Stat. § 8-533.
17 Four grounds actually exist for the permanent termination of
parental rights: (1) both parents are deceased (2) the child has been
abandoned (3) the parents by reason of mental illness or retardation
are unable to provide a ate care for the child (4) the child has
been permanently neglected. Social Services Law § 384-b, 4(a), (0),
(c) and (d).
—= ~~
telephone during a seventeen month period while a fugitive,
the court held that she had failec: to maintain substantial
contact. Matter of Melanie Ruth J.J., 76 A.D. 1008, 429
N.Y.S. 2d 773 (3rd Dept. 1980). In contrast, where a
mother’s failure to reach her children was explained by the
great distance and expense involved in a trip from her
residence in California to New York and where the mother
had maintained frequent contact with her children by mail
and telephone, the court held that the requirement of contact
had been satisfied. Matter of Tina X.X., 73 A.D. 2d 1013,
414N.Y.S, 2d 53 (3rd Dept. 1980). Furthermore, a parent
who is physically or financially unable to contact her child
is excused from this provision. Matter of Wayne T.D., 70
A.D. 2d 617, 416 N.Y.S. 2d 318 (2d Dept. 1979); Matter
of James S., 98 Misc. 2d 650, 414 N.Y.S. 2d 477, (Fam.
Ct. Monroe County 1979).
Moreover, § 384-b, 7(a) requires the parent to plan for
the future of the child. This mandate presupposes that par-
ents take steps to correct the conditions that led to the
removal of the child from their home. Matter of Leon R.R.,
supra, Once again, the court is not permitted to apply its
own subjective values in evaluating the efforts of parents to
formulate a plan for the future of their children, Standards
to evaluate the adequacy of a plan must not be set unreal-
istically high, but must take into consideration the financial
and social circumstances of the parent. Matter of Orlando
F., 40 N.Y. 2d 103, 386 N.Y.S. 2d 64, 351 N.E. 2d 711
(1976).** As a result the failure to plan provision is applied
narrowly; doubts concerning the failure to plan are resolved
in favor of the parent. See Matter of Santosky, 89 Misc. 2d
730, 393 N.Y.S. 2d 486 (Fam. Ct. Ulster County 1977).
‘® The brief of Community Action for Legal Services, Inc. declares
that Family Courts in New York have “refused” to follow Orlando F.
(Amicus Curiae Brief at 11). The cases cited for this proposition
were all decided before Orlando F.
—~—
In Matter of Anita P.P., supra, for example, the court fully
recognized that if a parent found alternate employment with
fewer working hours, utilized a day care program, and en-
gaged a housekeeper, many of the problems which caused
the removal of the child from the home would be cured.
Nonetheless, the court found that it would not be realistic to
hold the parent to such a plan because he was a baker by
trade who was required to work long night hours and was
also heavily in debt.
It is important to note that parents are not required to
fulfill their plans or achieve any goal. The statute speaks
strictly in terms of planning; it imposes no requirements of
accomplishment.'* As previously stated, the parent merely
must seek to take measures that will correct the condition
that caused the removal of the child from the home. This
requirement has been inaccurately characterized by Peti-
tioners as being vague and subjective. Actually, a parent’s
obligations under the Act are readily identified and evalu-
ated. A typical case illustrates this point.
In Matter of James S., supra, a father’s chronic alcohol-
ism prevented unification of his family. Nonetheless, he
steadfastly refused to take any steps to alleviate his problem
with alcohol. A realistic attempt by the parent to plan for
the future of his children could be identified by the court
without resort to vague or subjective standards. Succinctly
stated, the court identified the underlying problem con-
fronting the family, in that case the father’s alcoholism, and
then ascertained whether the father was making any effort to
address the problem. Since the parent reused to undertake
19 Not all jurisdictions are as generous, In Oklahoma, for example,
following an adjudication that a child is “deprived,” a parent, wishing
to avoid permanent loss of parental rights, must correct within three
months the conditions which led to the finding of deprivation. Okla.
Stat. Title 10 § 1130.
en
any treatment, thereby refusing to plan for the future of his
children, the court was compelled to order that his parental
rights be terminated.
Nor can the planning requirement be considered unduly
burdensome upon needy and destitute parents. No parent
is required to undertake any planning unless he or she is
physically and financially able to do so. Social Services Law
§ 384-b, 7. Thus, an individual living on sixty dollars a
month income, housed in an abandoned school bus and re-
cently released from jail was totally excused from planning
for the future of his children because he was financially un-
able to do so. Matter of Thomas T. T., 67 A.D.2d 788,
412 N.Y.S.2d 482 (3rd Dept. 1979).
3. The Social Service Agency Must Undertake Diligent Efforts To
Strengthen The Parental Relationship.
Parents who face the permanent loss of their children are
not expected to solve their problems without assistance.
Embodied in § 384-b is the legislative judgment that society
should not permanently terminate parental rights unless it
has first tried to reestablish the parent-child relationship.
As a result, the statute requires that a social agency, in
whose care a child is placed, must make “diligent efforts to
encourage and strengthen the parental relationship.” Social
Service Law § 384-b, 7. The duty of the agency pursuant to
the statute is clear; the agency must help the parent alleviate
the predicament that caused the removal of the child from
the home. E.g., Guardianship of Denlow, 87 Misc.2d 410,
384 N.Y.S.2d 621 (Fam. Ct. Kings County 1976). The
efforts expected of the agency include the investigation of
financial problems of the parent, the formulation of viable
proposals, suggestions as to the development of a plan for
service, informing the parent as to the child’s progress, as
well as arrangements for visitation. Social Services Law
§ 387-b, 7(f); Matter of Suzanne N.Y., 102 Misc.2d 215,
—
423 N.Y.S.2d 394 (Fam. Ct. N.Y. County 1979); See
Matter of Anita P.P., supra.
Accordingly, where a father's problems were a lack of a
job and stable home as well as a periodic drinking problem,
it behooved the agency to aid the parent in his search for a
job and housing and to recommend a suitable alcohol treat-
ment program. Matter of Florence X., 75 A.D.2d 942, 428
N.Y.S.2d 80 (3rd Dept. 1980); Accord, Matter of Thomas
T. T., supra, Normally, if the agency fails in its duty to assist
the parents, parental rights may not be permanently termin-
ated, E.g., Matter of Leon R. R., supra; See also, Matter of
Mark G. G., 69 A.D.2d 311, 419 N.Y.S.2d 275 (3rd Dept.
1979).
Admittedly, the agency is excused from exercising diligent
efforts to encourage and strengthen the family relationship
when such efforts would be detrimental to the child. Social
Services Law § 384-b(7). But this provision has not been
expansively applied. Generally, agencies are not permitted
to invoke this provision unless there is great potential for
physical or emotional harm to the child. See 18 N.Y.C. R.R.
431.9(b)(2); Matter of Florence X., supra, Thus, an
agency could discontinue its efforts to reunite a mother with
her children, where the mother was a drug addict and was
involved in a bizarre sexual crime when she and another
woman “rolled” an elderly man in the mother’s apartment,
Matter of Terry D., 53 A.D, 957, 385 N.Y.S.2d 844 (3rd
Dept. 1976). However, an agency decidedly cannot fail to
fulfill its statutory duty merely because it would be difficult
or burdensome for the agency to undertake efforts to assist
the family due to the parent's predicament. E.g., Matter of
Anita P.P., supra; Compare Matter of Shantal M. K., 68
A.D.2d 482, 417 N.Y.S.2d 696 (1st Dept. 1979) (diligent
efforts not necessary where record reveals great potential for
physical abuse) with Matter of Suzanne N. Y., supra
—
(agency must assist mother, no matter how dire her financial
circumstances),
4. A Parent Must Fail In His Or Her R For At
Least One Year Following Removal of Child From The
Parental rights cannot be terminated in New York with-
out ample demonstration of parental unfitness. A parent
must fail to contact or plan for a child's future for a period
of more than one year,” Social Services Law § 384-b(7).
This requirement provides a parent with a fair opportunity
to take steps to reunite the family, once a child has been
removed from the home and placed in the custody of a
social agency,”' The requirement also has the salutary effect
of providing a lengthy record for the court to consider,
thereby reducing the chance of an erroneous determination.
5. The Permanent Termination of Parental Rights Must Be In The
Best Interests of The Child.
As previously discussed, the New York statutory scheme
for terminating parental rights gives every benefit of doubt
to the parent. If at all possible, the State would prefer, indeed
considers it socially desirable, for the family unit to remain
intact. Consequently, not even a finding of permanent
neglect will automatically trigger the permanent termination
of parental rights. See In Re Roy Anthony A., 59 A.D.2d
662, 398 N.Y.S.2d 277 (1st Dept. 1977). Following an
adjudication in a “fact-finding” hearing of permanent ne-
glect, the court must hold a separate “dispositional hearing”
*° In such states as lowa, this period is as little as six months, Iowa
Code § 232.116,
** Amicus Curiae correctly points out that the one year period need
not be the year immediately snrepom| the filing of a petition for
termination, However, any potential for harshness or unfairness result-
ing from this interpretation of the one year period is cay reduced
by the requirement of a “dispositional hearing” following a finding of
permanent neglect, See discussion “5,” infra,
ee
to determine whether permanent termination of parental
rights is in the best interests of the child, Fam.Ct. Act
§§ 623, 631. An adjudication of the child’s best interests
must be based solely upon the separate record of the dis-
positional hearing and a preponderance of the evidence,”
See In Re “Female” M., 70 A.D.2d 812, 417 N.Y.S.2d 482
(Ist Dept. 1979).
The dispositional hearing helps assure that parental rights
will not be terminated if it is at all possible to reunite the
family. The hearing works to preserve the rights of those
parents whose conduct has improved subsequent to the
failure to maintain contact or plan for the future of the
child.”* See Termination of Parental Rights, supra, at 248,
6. ee ee Finding And Disposi-
tional Hearings Must Enable Court To Reader A Feada-
mentally Fair Adjudication.
By statutory mandate, courts are only permitted to admit
material and relevant evidence at the fact finding and dis-
positional hearings. Fam.Ct.Act § 624, Furthermore, social
service case worker reports, which are often a significant
part of the record, must be comprehensive, factual, and
objective. Social Service Law § 372; 18 N.Y.C, R.R. 428,
et seq. Entries in these reports must be based upon the first-
hand knowledge of the case worker and recorded shortly
after the occurrence upon which they are based, Matter of
Leon R.R., supra.
*? Parents are entitled to counsel at this and every stage of the
termination proceedings, Fam.Ct.Act § 262, The children are also on-
titled to an attorney at the termination proceeding. See Matter of
Orlando F., supra.
* Thus, it is not unfair or harsh that the one year period of fai'ure
to plan and contact may not immediately precede the filing of a peti-
tion for termination, In such cases the parent may demonstrate rt the
dispositional hearing that his or her conduct has improved subsequent
to the one year period,
ee
It is improper for a case worker to base his allegation of
parental misconduct entirely upon hearsay.** E.g., Matter of
Thomas T. T., supra. Mere suspicion or rumor of parental
misconduct must be excised from the case worker's file.
Matter of Leon R. R., supra; Matter of Lisa Ann U., 75
A.D.2d 944, 427 N.Y.S.2d 994 (3rd Dept. 1980) (anony-
mous and vindictive letters must be removed from file). The
evidence presented against the parents cannot be conclusory
but rather must be specific and detailed. See Matter of Anita
P.P., supra at 919. Such evidence greatly diminishes the
chance of an erroneous outcome and permits the court to
render a fundamentally fair determination.
B. The Interests of The Children R That The Preponderance
of The Evidence Standard Be A In TPR Proceedings Under
New York Law.
At stake in a TPR proceeding are several interests which
distinguish it from other litigation requiring an upgraded
burden of proof. In a criminal or involuntary commitment
proceeding, the state is acting solely in a punitive fashion.
Here the state action is protective of the child’s interest.
However, the law itself makes no presumption that the
state is acting on the child’s behalf. In all TPR cases, the
child is entitled to be represented by an attorney. See Mat-
ter of Orlando F., supra. The child’s law guardian submits
a report and recommendations to the Family Court and is
free to argue against termination. Also, the law makes no
presumption that the state is acting in the child’s interest by
seeking termination since a dispositional hearing is required
after the permanent neglect finding. There is no presumption
at this hearing that the child should be permanently removed
from his natural parents. Family Ct. Act. § 631(c).
** The case file in its entirety cannot even be introduced at the hear-
ing unless counsel for the parents has been given adequate oppor-
tunity to examine its contents in order to prepare for cross-examina-
tion and rebuttal. E.¢., Matter of Florence X., supra.
i SN cian
No one, of course, can be sure how judges will apply any
new standard of proof. It is conceivable that a higher stand-
ard would reduce the number of terminations, resulting in
increased foster care costs. However, any monetary costs are
miniscule compared to the real harm. That is, since parental
rights are already so well protected, it would be a denial of
due process to the children involved in the litigation, if a
termination was any more difficult to obtain under New
York law.”
1, ee ee eee ee ee Cee
Right To Proper Custody.
The parental prerogative and family autonomy are prem-
ised upon the parents’ assumed superior capacity to care for
the child and act in the child’s best interests. Parents’ control
over their children, however, is not absolute. “In our society,
parental rights are limited by the legitimate rights and inter-
ests of their children.” Parham v. J.R., 442 U.S. 584, 630
(1979).
Children themselves possess certain rights and interests
that may be in conflict with those of their parents. In addi-
tion, the state has an interest in the well-being of the child
that may also be in conflict with the p arents’ interests. This
state interest is evidenced in the variety of statutes that
authorize state intervention on behalf of neglected or abused
children.
In addition, it has been decided that a child has a sub-
stantial liberty interest in not being confined unnecessarily
for medical treatment. Parham v. J.R., 442 U.S. 584
26 The child’s interest in a TPR proceeding was not discussed in the
Lassiter decision. However, the issue in Lassiter was whether the tack
of counsel at a TPR proceeding would render the relative strength of
the parties so un ad as to violate fundamental fairness. Since under
New York law, a TPR proceeding is already a contest of equal inter-
ests, the consideration here is what standard should that equal
contest be judged. Thus, the child’s interest must be considered.
_ 33 —
(1979). Thus, it is evident that minors, as well as adults,
are protected by the Constitution and possess constitutional
rights.
It has been argued that among the fundamental rights of
children is the right to custody.
Juveniles have particular and peculiar rights and they
require particular and peculiar treatment. The basic
right of a juvenile is not to liberty but to custody. He
has the right to have someone take care of him, and if
his parents do not afford him this custodial privilege,
the law must do so.
Shears, Legal Problems Peculiar to Children’s Courts, 48
ABAJ 719, 720 (1962).
The right of a child to proper custody implies the right
of a child to a permanent home and a stable environment.
If the child cannot be afforded proper custody with his
natural parents, then he should and must be established with
a legal guardian or family that can provide him with
permanence.
Experts in the child welfare field have repeatedly docu-
mented the need of every child for the unbroken continuity
of a loving and enriching relationship with an adult. A child
needs stability in order to develop his own identity as well
as interpersonal relationships with others. See Weinstein,
The Self-Image of the Foster Child (1960).
It is also this permanence or proper custody that enables
a child to develop into a responsible citizen of society. “The
well-being of its children is of course a subject within the
state’s constitutional power to regulate. . . .” Ginsberg v.
New York, 390 U.S. 629, 639 (1968). Consequently, the
State “is not without constitutional control over parental
discretion in dealing with children when their physical or
sein BI cies
mental health is jeopardized. Parham v. J.R., 442 U.S. at
603.
In Ginsberg v. New York, 390 U.S. 629 (1968), the
Court also granted the State conirol over and above parental
discretion. The main issue in Ginsberg involved the consti-
tutionality of a New York criminal statute. The statute pro-
hibited the sale of material defined to be obscene to minors.
Obscene material was defined on the basis of its appeal to
the minors, not by whether or not it would be obscene to
adults. The Supreme Court, in a decision upholding the
statute as valid, stated:
While the supervision of children’s reading may best be
left to their parents, the k_ »wledge that parental con-
trol or guidance cannot always be provided and so-
ciety’s transcendent interest in protecting the welfare
of children justify reasonable regulation of the sale of
material to them.
Id. at 640.
Constitutional law cases have not only revealed the
State’s right to supercede the parental prerogative in certain
instances, but have also established the State’s interest in
protecting the welfare of children, oftentimes at the expense
of the natural parents.
. . {BJasic in a democracy, stand the interests of society
to protect the welfare of children, and the state’s asser-
tion of authority to that end. . . . It is the interest of
youth itself, and of the whole community, that children
be both safeguarded from abuses and given opportuni-
ties for srowth into free and independent well-
developed men and citizens.
Prince v. Massachusetts, 321 U.S. 158, 165 (1944).
It is this concept that the phrase “right to proper custody”
—
encompasses. The State's interest in the well-being of chil-
dren establishes its interest in assuring that the child is
afforded his “right to proper custody.” The juvenile court
was designed to provide children with rights to proper up-
bringing and to intervene when parents could or would not
discharge that function. Teitelbaum, Foreword: The Mean-
ings of Rights of Children, 10 N.M.L. Rev. 235, 246
(1980). If a child’s parents default in effectively performing
their custodial function, the State, as parens patriae, may
intervene. See In Re Gault, 387 U.S. 1 (1967).
A child’s well-being inherently bespeaks of a right to
proper custody, i.e., an opportunity to grow into a free and
independent person as a result of permanence in home and
environment. The State, as parens patriae, has an interest
and a duty, in promoting the development of minors into
responsible members of society, to assure each child is
afforded his right to proper custody. Raising the burden of
proof would make it unnecessarily difficult for the State to
accomplish its duty.
2. The Interests of The Parent Are Mitigated At The TPR Pro-
ceeding Since They Possess Only A Biological Relationship
With The Child.
In Parham v. J.R., 442 U.S. 584 (1979) the Court noted
that since a family is a cohesive unit the parents are pre-
sumed to be acting in the best interests of their children.
“As with so many other legal presumptions, experience and
reality may rebut what the law accepts as a starting point;
the incidence of child neglect and abuse cases attest to this.”
442 U.S. 584, 602.
Parental rights do not arise merely from the biological
6 It has even been suggested that a biological relationship alone is
not sufficient to create a constitutionally protected family. Moore v.
East Cleveland, 431 U.S. 494, 534-535 (1977) (J. Stewart dissent-
ing), 549, (J. White dissenting).
a
connection between parent and child.** Caban v. Moham-
med, 441 U.S. 380, 397 (1979) (J. Stewart dissenting).
Rather, the importance of the familial relationship stems
from the emotional attachments that derive from the inti-
macy of daily association. Smith v. Organization of Foster
Families, 431 U.S. 816, 844 (1977).
At the final termination proceeding under New York law,
the parent has been deprived of the custody of his child for
at least, and in most cases longer than, one year. The dep-
rivation of custody arose from the initial circumstances of
abuse and neglect. Since the parent, through his actions,
has forfeited a significant portion of his liberty interest, the
rights of the child must be taken into consideration.
In New York State the Legislature has taken these rights
into consideration, balanced the competing interests and
decided upon the preponderance of the evidence standard.
Other legislative bodies are free to balance the interests and
come to different conclusions. Congress did exactly that
concerning the termination of the rights of Indian parents.
25 USC § 1912.”
Therefore, a higher standard is permissible but not con-
stitutionally mandated.
C. There Is Little Risk of An Erroneous Termination of Parental
Rights Under Existing New York Law.
The New York statute is fundamentally fair due to the
procedural and substantive elements which it contains. Per-
haps the most important aspects is that parental rights can-
not be terminated at the initial proceeding.”* Thus, if a
*T The purpose of the Act is to promote the stability and security of
Indian tribes and families to preserve the unique values of Indian cul-
ture. See Indian Child Welfare Act 1978, U.S. Code Cong. and Ad
News 7530.
28 The bifurcation of proceedings distinguishes New York from
other preponderance jurisdictions which allow a termination at the
a ee
sions prior to the filing of a permanent neglect petition.
Generally, more than one extension of placement is sought
before a permanent neglect petition is filed. Such a pro-
ceaure guarantees fundamental fairness.
The substantive elements of the statute are also sound.”
It is possible to prove that a parent is dead or has abandoned
his children based upon readily ascertainable facts. When
the state seeks to prove that an individual cannot care for his
children due to a mental illness, the parent is given the pro-
tection of the clear and convincing evidentiary standard. If
the agency seeks to terminate rights based upon failure to
plan or maintain contact, the parent can defeat the govern-
ment’s action by showing some progress in one year.
Furthermore, the concept of planning gives the trial
judge flexibility to evaluate each case on an individual basis.
Authorities agree that statutes in this area need to be flexible.
See, Defining Child Abuse, supra at 9. At the same time the
law eliminates subjectivity by giving the judge a yardstick
of one year. The trial judge can evaluate the testimony and
determine if any progress has been made in one year. If
there is no progress the judge need not make a subjective
value judgment concerning whether the family can be re-
united in the foreseeable future. He need only apply the law
and presume that the child is permanently neglected.
Since the law is procedurally and substantively sound we
*® It is important to note that the approach taken by New York on
terminating parental rights compares favorably with proposed model
acts. Contact and planning requirements on the part of the parent are
included in several model acts. See Institute of Judicial Administra-
tion/American Bar Association, Standards Relating te Abuse and
Neglect, Part VIII (Tentative Draft 1977); Health and Human Serv-
ices State Adoption Act (1980); Model Dissolution of Parent-Child
Relationship Act (1976). These model acts also require efforts Sy the
State to reunify the family. In contrast to the New York statute, the
ABA tentative draft permits in certain cases termination at the initial
dispositional hearing.
—
parent works to eliminate problems at home, his parental
rights cannot be lost. Another important safeguard is the
periodic: review of foster care placement. Fam. Ct. Act
§ 392. At this proceeding a parent has the right to challenge
an extension of foster care placement. Studies indicate that
such a review system accelerates the placement of children
into permanent and stable homes. See Children Without
Homes, Children’s Defense Fund (1978), 161.
Also, a parent who feels aggrieved by agency action need
not wait until the expiration of the original placement order.
Under Fam. Ct. Act § 1062 a parent can petition the court
at any time for an order terminating placement. Under
§ 1064, the issues at such a hearing is whether continual
foster care will serve its intended objective.
Moreover, even if the child was found to be permanently
neglected, the parent is entitled to a dispositional hearing.
Here, he can show that notwithstanding past actions, the
home situation has progressed to the point where the child
can be returned home. Both the parents and children are
represented by counsel at all stages of the termination
proceeding.
To summarize, the government must be able to prove a
failure to plan or maintain contact for a continuous period
of one year after the child has been placed. Since initial
placements are limited to a maximum of 18 months after a
finding of neglect or abuse, the agency generally will have to
petition the court (on notice to the parent) to have place-
ment extended. Therefore, the parents more than likely will
have appeared in court, with attorneys, on at least two occa-
initial hearing. See Ariz. Rev. Stat. Ann. § 8-533, 13 Del. Code
§ 1103(4), Idaho Code § 16-2005, Md. Ann. Code Art. 16 § 75,
Mass. Gen. Laws Ann. Ch. 119 §§ 24, 26, On the other hand, not all
jurisdictions have the funding for a social service agency to perform
effective efforts to reunite the family.
—_
feel constrained to respond to Petitioners’ comments per-
taining to the New York State Department of Social Serv-
ices. Although Petitioners’ comments are more properly
directed to the New York legislature, a significant part of
the brief of Amicus Curiae Community Action for Legal
Services, Inc. digresses from a discussion of the issues prop-
erly before the Court to an attack of the practices of State
social service agencies generally and New York City social
agencies in particular. However, the issue, in the words of
Amicus Curiae, whether “child care agencies are far more
stingy in the provision of help and services to these parents
than the statute requires,” (Brief at 41) has never been
raised by Petitioners in the instant case in any of the pro-
ceedings kelow. Thus, Amicus Curiae in the guise of dis-
cussing the burden of proof question is now asking the
Court to address the issue of whether social service agencies
fulfill their mandated duties. It is submitted that state court
is the proper forum for this question to be initially raised.
The inappropriateness of the Court to now air grievances
concerning social service agency practices is underscored by
Amicus Curiae’s lack of authoritative citation. In criticizing
agency practices, their brief repeatedly cites tou “their own
experience.” (Brief 36-49). It would be unfair at this junc-
ture of the proceedings to consider such conclusory and un-
documented attacks on social service agencies as somehow
relevant to a determination of what burden of proof is con-
stitutionally mandated in a proceeding to terminate parental
rights.
Furthermore, it is apparent that New York Courts have
never acted as a “rubber stamp” in response to petitions for
termination filed by social services agencies. Rather, the
courts serve as a neutral and detached arbiter of the issue of
termination. When an agency fails in its statutory responsi-
bias SAMI fais
bilities, the courts act as a counterbalance to protect the
rights of the parent. See, e.g., Matter of Florence X., supra;
Matter of Wayne T.D., 70 A.D. 2d 617, 416 N.Y.S. 2d 318
(2d Dept. 1979); Matter of Mark G.G., 69 A.D. 2d 311,
419 N.Y.S. 2d 279 (3d Dept. 1979); Matter of Anita P.P.,
supra; In Re Guardianship of Denlow, supra.
However, the thrust of Petitioners’ case is the risk of
error under a permanent neglect litigation. To completely
evaluate the issue, several layers of protection which sub-
stantially mitigate the risk of error under New Yor: law
should be considered.
First, the agency does not frequently seek judicial relief.
Exhibit 12 sets forth the number of reports and cases of sus-
pected child abuse and neglect in New York State. Upon a
report of a problem, the agency investigates the situation and
opens a case file if necessary. Although state intervention
exists, neglect or abuse petitions are filed in only a small
percentage of cases. For example, in 1978, of approximately
72,000 children involved in abuse or neglect, the agency
went to court only 10% of the time.*® (Compare E702 with
728; E710 with 729; E719 with 730.) These statistics
document the position, upon which authorities agree, that
the state acts in circumstances in which reasonable people
would have little difficulty agreeing that the intenvention is
justified. See Defining Child Abuse, supra at 9. Also, over
half of the initial custody proceedings are settled by consent
of the parties. (See E731-733). Obviously, if there is no liti-
gation, there is no risk of error. Moreover, some cases are
8° Even though the number of petitions filed do not necessarily
arise from the abuse and neglect cases filed in the same year, the
minor variation in the numbers would not materially affect the relative
proportions.
oni tee
settled without litigation wherein the parents agree to accept
the services of the agency. (See Exhibit 14 which sets forth
statistical data from various New York State counties. This
data was compiled at counsel’s request in July 1981 solely
for this litigation. )
Second, parental lack of interest after a child has been
placed in foster care must be considered. Many extensions
of foster care are either uncontested or granted by default
(See Exh. 14). This, of course, is completely inconsistent
with the position of a parent who believes that his child was
wrongfully taken by the state.
Third, not all terminations are sought under § 384-b
(4)(d) (permanent neglect) where the theoretical risk of
error is the highest. (See Exh. 14 for upstate statistics and
E925-926, 947-948 for New York City statistics).
Fourth, the largest layer of protection is found at the trial
court level. The strength of the trial judge’s decision in the
instant case leaves little room for doubt, irrespective of the
standard use. By deduction, the fact that the statute
worked in this instant case, where the theoretical risk of
error is the highest, means that it will work in less “subjec-
tive” situations.
Certainly, the Santoskys would have received the same
protection before other judges in the state (See ACLU Brief
p. 36-37). See also Anonymous V. Norton, 168 Conn. 421,
430, 362 A.2d 532, 537 (1974) (“We recognize the gravity
of our decision and emphasize that the termination of paren-
tal rights is a most serious and sensitive action”); see
also E924. There should be no doubt that trial judges do not
need a message, in the form of an increased burden of proof,
that parental rights are important.
a
Finally, the New York permanent neglect statute is nar-
rowly construed by the appellate courts. See Section II. A.,
supra.
Ill. There Was No Error In The Proceeding Below For The Termina-
tion of The Santoskys’ Parental Rights.
The progression oi this litigation demonstrates that, be-
yond a reasonable doubt, the correct result was reached. The
entire object of New York law is to protect families who,
notwithstanding problems, are progressing toward the even-
tual reunification of the family. This is amply illustrated
by what the Santoskys demonstrated at the first proceeding
and what they did n= show at the second.
Mr. and Mrs. Santosky made no progress in dealing
with their child rearing problems. At the first termination
hearing, Elizabeth Smith, Director of the Family Service
Center, indicated that there was improvement in this area.
However. even Mrs. Smith testified that if further delay
would be detrimental to the children, the petition should be
granted (See E254-256). The trial judge would not adopt
this view and he was upheld on appeal.”
Since the judge could factually determine that progress
was being made, he could legally conclude that the San- ©
toskys were planning for their children’s return. Had their
miniscule efforts not diminished after the filing of the first
petition, the second petition would, in all probability, also
have been dismissed. The Santoskys’ rights were not termi-
nated because they failed to utilize all the services such as
family planning or because Mr. Santosky was unemployed.
31 The judge’s position and New York law is clear. There is no
termination merely because the best interest of the child might require
it. (E409-414).
—
The law is clear, parental cooperation with a plan need only
be reasonable.
Simply stated, the Santoskys lost their children because
they failed to produce a single witness, including themselves,
to testify that progress was being made. Their utilization
of available counseling services illustrates why this was
the case. First, they agreed to attend the Southern Ulster
Mental Health Clinic (E37). They refused to attend the
Family Services Center on the ground that they were at-
tending Mental Health (E44). Ironically, after the Decem-
ber 1977 evaluations (E679-684), they refused to attend
the Mental Health Clinic on the assertion that they were
going to the Family Service Center (Petitioners’ Brief p.
10). In any event, they attended the Center approximately
one-third of the time. Even the Center’s Director, their
strongest advocate at the first hearing, lost hope when they
refused to participate in the Child Enrichment Program.
She concluded that it would be impossible to return the
children home in the foreseeable future (J.A. 16-18).
The presence of other children complicated the situation.
Elizabeth Smith testified at the first permanent neglect hear-
ing that, with another child in the home, it would be a bad
idea to immediately return the others (E202-206). Even
Mr. Santosky testified that it would be a lot easier if the chil-
dren came home one at a time and to have the others visit
overnight (E519).
At the second termination proceeding, the excessive
length of time the children had spent in foster care had
created a problem. These children now regarded their natu-
ral parents as strangers (J.A. 10, 12, 14, 21). The San-
toskys’ actions, which precipitated state intervention, now
reduced their parental status to a mere biological relation-
ship.
Finally, the law guardian for the children vigorously
oom
argued, as he had in the first proceeding (E590-598), that
the parental rights should be terminated (Tr. 421-432).
A. The Instant Case Demonstrates The Appropriateness of The
Present Standard Under New York Law.
This case deals with the parental failure to plan for the
future of the child but there are other situations in which
parental rights can be lost. Under Social Service Law
§ 384-b(4) (a), if both parents are dead and no legal guar-
dian has been appointed, then a termination can occur.
Parental rights can also be lost under § 384-b(4)(c) if
both parents are unable to care for their children by reason
of a mental illness. However, to be successful under this
section the government must prove its case by clear and
convincing evidence. Social Service Law § 384-b(3) (g).
Another ground for termination is where the child has been
abandoned within the purview of § 384-b(4)(b). The
state already bears a heavy burden under this section since
it must show that a parent has forfeited his parental rights.
Therefore, a child will not be deemed abandoned unless
the evidence establishes a “purposeful ridding of parental
rights—a withholding of interest, presence, affection, care
and support,” Corey L. v. Martin L., supra, at 443. Since
the government’s burden here is already difficult, a prepon-
derance standard does not offend fundamental fairness
under § 384-b(4)(b). See Vance v. Terrazas, 444 US.
252, 267 (1980).
Petitioners have failed to even assert a plausible argument
of why the preponderance standard is inappropriate for the
above mentioned termination methods.
The termination of parental rights, based upon failure to
plan, is the litigation in which the risk of error is at its peak.
Therefore, if the standard worked properly in the instant
ST
case, it will no doubt work in other situations where the risk
of error is less. This case is, therefore, the perfect medium
through which the standard can be evaluated.
New York law requires that parents plan for the future
of their children by working towards the eventual reunifica-
tion of the family. Actual accomplishment of the goal is
not required. Therefore, Petitioners have overlooked an
important concept. This is, the primary focus of § 384-b
(4)(d) is prospective. Under the law, judges are given an
objective guideline to evaluate future human behavior based
upon past performance (See E244, 247, 413).
The government’s burden under this section is very heavy
as the state must prove a negative state of mind. The agency
must demonstrate that a parent does not intend to change,
since if a parent intends to, but cannot, progress or plan for
the future of his children, he is excused from doing so.
Fam. Ct. Act § 614(d).
Proving a negative is one of the most difficult undertak-
ings in trial practice. When combined with the showing that
the parent will not progress in the foreseeable future, the
successful prosecution of the agency’s case becomes very
difficult. No matter how much documentation or testimony
the state provides, there is always the hope, however remote,
that the parents will solve the problem and the children
can be returned. As previously established, children have
rights, also.
A motion is presently before the Court in the case of
Maffey v. Oregon, No. 80-5227 [Or. App., filed Aug. 8,
1980]. A bench ruling in the case demonstrates the state’s
difficulty here. The lower court found, beyond a reason-
able doubt, that the best interests of the child required
termination. However, the judge could only find it was
more likely than not that Mrs. Maffey would be unable
to adjust or change her life. (See Exhibit 16.)
—
The New York statute goes a long way towards eliminat-
ing the soul-searching a trial judge must do when weighing
the competing interests. The law stipulates that if no prog-
ress is made by the parents within one year, then it is pre-
sumed that parental rights should be terminated. However,
this is only a presumption which can be rebutted at the dis-
positional hearing. Such a procedure is fundamentally fair
to the parents since mere progress by way of minimal coop-
eration with the social service agency is enough.
The underlying facts which determine whether the par-
ents cooperated with the agency are readily ascertainable
and therefore no higher burden of proof is required.
However, the real safeguard lies im how easily a parent
can defeat the state’s prima facie case. Although the burden
of proof always lies with the government, the burden of
going forward will shift as the litigation develops. A typical
TPR case will proceed as follows. The state will produce
witnesses to testify that no progress or planning took place
in a certain one year period. Assuming that the witnesses
were not completely impeached by cross examination, the
burden of going forward will shift to the parents who will
attempt to show what was done in the same year. It is here
that the state’s case can easily be defeated. The parents need
only produce a witness, including themselves, to tell the
court what progress and planning transpired.
This is clearly illustrated by the instant case. At the first
termination proceeding, in addition to the testimony of
Elizabeth Smith (See E212-213, 241), Mr. Santosky took
the stand and testified that he was planning for the future of
his children by increasing the available living space in his
home (E488). Both the trial (E619) and appellate courts
(See Matter of John W., supra) found this action to be
planning even though the agency never considered housing
a problem (E499-500). Mr. Santosky’s actions stand in
it I
stark contrast to the second termination proceeding where
neither he nor his wife testified.
Moreover, there is a rational relationship between the
burden of proof and the nature of the case. The law assumes
that if a parent fails to make any progress in one year it is
more likely than not that he will be unable to change in
time to successfully reunite the family. This is a sound
legislative judgment based upon the established fact that
problems arise for the child, and for eventual reunification
of the family, if placement in foster care exceeds one year
(See E49, 134 and Smith v. Organization of Foster Fam-
ilies, 431 U.S. 816, 836 (1977). It is also sound legislative
judgment based upon the nature of the therapeutic and
rehabilitative process, which cannot be overturned in the
absence of blatant fundamental fairness violations.
The state’s burden is already heavy. It must show what a
person, based upon past actions, will not do in the future.
As it takes so little testimony by way of readily ascertainable
facts to dismiss the petition, there is no need to make the
process more difficult (See E924).
Finally, the result of the agency’s action is to place the
child in a permanent home. Indeed, the state succeeds in
obtaining permanency over half the time when termination
occurs. (See Exhibit 17.)
B. In The Alternative, The Instant Case Need Not Be Remanded
Since It Is Correct Under Any Standard of Proof.
In the exercise of its appellate jurisdiction, this Court not
only has the power to correct error in the judgment under
review, but also to make such disposition of the case as
justice requires. Patterson v. Alabama, 294 U.S. 600, 607
(1939). In New York Times Co. v. Sullivan, 376 U.S. 254
(1964), a statute was found unconstitutional and the Court
—
reviewed the record to determine whether the evidence was
sufficient to meet the new standard.
If the Court finds that another burden is constitutionally
mandated, it is respectfully maintained that there exists
a moral imperative to review the record and determine
whether the evidence meets the new standard. The children
should be left in limbo no longer.*?
There should be no doubt but that the children were per-
manently neglected beyond a reasonable doubt and that the
trial judge had absolutely no reservations about his factual
findings. Although the judge used the preponderance stand-
ard, he expressed his real feelings on parental terminations
at the first hearing (E246):
When you permanently terminate parental rights you
cut them off and terminate them for all time. It’s a very
serious thing for any court to be asked to do. I frankly
shy away unless it’s absolutely necessary in order to
discharge my responsibility that I must do so out of the
long term best interests of the children and substitute
the interests of the parents and put that down at the
bottom of the list of priorities.
At the first termination proceeding, the judge found that
although the Santoskys were not model parents, they were
progressing. At the second proceeding, since their efforts
were no longer measurable, he was convinced that the family
could not be reunited in the foreseeable future and granied
the petition.
82 Furthermore, the agency must make diligent efforts for at least
one year before a permanent neglect action could even be entertained.
Since the parental rights were terminated, no efforts, much less dili-
gent ones, have or could have been undertaken by Ulster County to
reunite the family. Thus, a remand to the state court could frustrate
any chances these children have of obtaining a permanent home.
pene” See
Accordingly, the factual determinations of the trial court
are more than adequate to permit disposition of the case
without a remand under a higher standard of proof.
CONCLUSION
In light of the foregoing, Respondent requests that the
judgment of the Supreme Court of the State of New York,
Appellate Division, Third Department, be affirmed.
Respectfully submitted, this 10th day of August, 1981:
H. RANDALL BIXLER
Hudson, Creyke, Koehler, Tacke & Bixler
1744 R Street, N.W.
Washington, D.C. 20009
Attorney for Respondent
STEPHEN DOMENIC SCAVUZZO
Hudson, Creyke, Koehler, Tacke & Bixler
1744 R Street, N.W.
Washington, D.C. 20009
ROBERT A. DEBERARDINIS, JR.
1744 R Street, N.W.
Washington, D.C. 20009
EDWARD E. STROHSAHL
110 Market Street
Saugerties, New York 12477
Of Counsel
Counsel wish to express their deep appreciation to Gail J. Cum-
mings, a third year student at the George Washington University,
National Law Center. Ms. Cummings provided invaluable assistance
towards the preparation of this brief.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.