# Respondents Brief — Santosky v. Kramer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2393%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1982 - **Citation:** 455 U.S. 745 ## Text —— Oftice-Supreme Court, US RBILLEDbD 7 5 ANG 10 198! sect A! fim 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