Respondents Brief — Santosky v. Kramer

No. 80-5889 Fi

Ct

IN THE MAY

Supreme Court of the United tates v1

30 1981

ERK

OCTOBER TERM, 1980

<>

JOHN SANTOSKY II and ANNIE SANTOSKY,

Petitioners,

—V—

BERNARDT S. KRAMER, Commissioner,

Ulster County Department of Social Services,

Respondent.

ON APPEAL FROM THE COURT OF APPEALS OF NEW YORK

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION CHILDREN’S RIGHTS PROJECT,

NEW YORK CIVIL LIBERTIES UNION, AND

CONNECTICUT CIVIL LIBERTIES UNION,

AMICI CURIAE

MARGARET HAYMAN

Children’s Rights

Project

Connecticut Civil

Liberties Union

57 Pratt Street

Hartford, Connecticut

06103

ABIGAIL A. JONES

1 Chase Manhattan Plaza

New York, New York 10005

Co-operating Attorney,

American Civil Liberties Union

MARCIA ROBINSON LOWRY

(Counsel of Record)

GEORGE KANNAR

The Children’s Rights Project

American Civil Liberties Union

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

STEVEN R. SHAPIRO

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

(212) 924-7800

Attorneys for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........

og ene

STATEMENT OF THE CASE. ........

SUMMARY OF ARGUMENT. .........

ag See cad 6 cee wwe

I. THE JUDICIAL PROCESS MUST

TAKE SPECIAL COGNIZANCE OF

THE FUNDAMENTAL NATURE OF

THE INTERESTS AT STAKE AND

THE ELUSIVENESS OF THE SUB-

STANTIVE STANDARD IN PARENTAL

TERMINATION CASES . .....s46 >

A. Parents and Children Share

Separate but Coinciding

Interests in Careful Fact-

Finding in Proceedings to

Terminate Parental Rights. .

B. Decisions to Terminate

Parental Rights Are Usually

Made on the Basis of In-

trinsically Vague and Elusive

Substantive Standards ....

II. DUE PROCESS REQUIRES THAT

DECISIONS TO TERMINATE THE

FAMILY RELATIONSHIP BE BASED

UPON CLEAR AND CONVINCING

BVIDENCE. « «© © © © oe we wo ow

15

21

III. CERTIORARI SHOULD BE DIS-

MISSED AS IMPROVIDANTLY

GRANTED BECAUSE OF UNCER-

TAINTY IN UNDERLYING STATE

Te ee ee ee ee ee ee

CONC LUS ION . . . . . . . . . .

TABLE OF AUTHORITIES

CASES

Addington v. Texas, 441 U.S.

Alsager v. District Court

of Polk County, lowa, 406 F.

Supp. 10 (S.D. Towa 1975),

aff'd, 545 F.2d 1137 (8th

Cir. ly | FP rrrrrrrrrreerrrier

Armstrong v. Manzo, 380 U.S.

5 *enerineeneteeneeeeeeeeeeneeeeeee

Arnett v. Kennedy, 416 U.S.

Ashwander v. Tennessee Valle

Authority, 297 U.S. 268 (1536) ..

Barr Rubber Products Co. v.

Sun Ru © Co.,

Giteoles cert. denied,

_ fe ee’ tl. | ge

Cleveland Board of Education v.

LaFleur, 414 U.S. 632 (1974)....

Doe v. Delaware, appeal dis-

missed for want x a properly

resented federal question,

S U.S.L.W. 4250 (U.S. March

9, ita a he bn Odes ee: 6.6 006068 be

Duchesne v. Sugarman, 566 F.2d

Cc Le *eeeeeeeeeeee#ee

eiii-

35

37

CASES PAGE

Griswold v. Connecticut, 381

U.S. 479 PE tcc ibe es aaa pene 8, 10

In the Matter of Marilyn H.,

Docket No. B-276/80, Family

Court, City of New York,

In re Fisher, 179 F.2d 361

(7th Cir.), cert. denied sub

nom. Kerner v. Fisher,

Vee *eeeeeeeeeeeeeeee 31

In re Gault, 387 U.8. 1 (1966)..e- dd

In re Winship, 397 U.S. 358

*enereeeneeeeeneeeeeeeeeeeeeeeee al, 29

Hopes v. Sanchez, 34 N.Y.2d

*enreeneneeeeeeeeeeeeeee#ee 32

Loving v. Virginia, 388 U.S.

*enereeneeeneeneeeeneteeeeeeee#ee#e 8

Matter of Corey L. v.

Martin L., i N.Y.2da 383

7 wee euwe €ev@gseegergce cece & eb Hees 25

Matter of Dorn "HH" vy,

Lawrence "II", 31 N.Y.2da 154

(1972), appeal dismissed for

want of a substantial federal

uestion sub nom. Fuchs v.

Stivestes 409 U.s. i121

VECUCPCPEOVCECe ee eee 88 00.0806 860 6686 32

Matter of seu K., 47

N. . *enereweeeneeeneeeege 24, 25

27

-ive-

CASES

Matthews v. Eldridge, 424 U.S.

May v. Anderson, 345 U.S. 528

262 U.S.

Meyer v. Nebraska,

Moore v. city of East Cleveland,

Gels lwitth< beh es eu 6

Newton v. Burgin, 363 F. Supp.

782 WBNS 1973), aff'd

mem. , 414 U.S. 1139 >) of ae

Parham v. J.R., 442 U.S. 584

Pierce v. Soevety of Sisters,

Massachusetts, 321

Quilloin v. Walcott, 434 U.S.

PEF Oo Ee ee ee ee

Roe v. Conn, 417 F. Supp. 769

(M.D. Ala. Ph ) ae

Roe v. Wade, 410 U.S. 113

Prince v.

U.S.

Schneiderman v.

U.S.

United States,

-VvV~=

PAGE

28

22

CASES

Shelton v.

Skinner v. Oklahoma,

Organization of Foster

Wewe *ee

Smith v.

Families,

Steadman v.

364 U.S.

316 U.S.

v. Illinois,

Shaped

Securities and

Exchange Commission,

L.W. SAL. ( b

U.S. February

25, BOGL) scccececevcceseeeescoes

Vance

Wisconsin v.

- |

U.S.

Zablocki v.

444 U.S.

Terrazas,

406 U.S.

Woodby v. Immigration and

Naturalization Service, 385

276 ) Sa

Redhail, 434 U.S.

PAGE

18

8, 10

9, 10,

12, 16

8, 9,

10, 15,

18, 22,

24

35

33

8, 10

31

18

CASES PAGE

STATUTES

New York

Family Court Act § 622......eee00- 27

Social Services Law § 384-b....... 24

MISCELLANEOUS

Children's Defense Fund,

Children Without Homes

ERPUOR é6et hee Cb eS MORO OCC OO CO EEE 12

Kentucky Youth Advocates, The

State to the Rescue; Securing

Permanency for Foster Children

(April L9BO) .cccccccccccsccccccse LG

Legal Distinction between

Custody and Termination

Orders in Child Neglect

Cases, 7 J. Family L. 66

PSCC Lees caheae das beeesseceuse” OF

New Mexico Health and Social

Services Department, In Limbo:

A Study of New Mexico's Foster

Care Children (January 1978).... 14

9 Wigmore, Evidence, § 2498

(3d ed. SUNICUE S20 cad kc cede Coes 31

-vii-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-5889

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION CHILDRENS RIGHTS PROJECT,

NEW YORK CIVIL LIBERTIES UNION, AND

CONNECTICUT CIVIL LIBERTIES UNION,

AMICI CURIAE

INTEREST OF AMICI*

The American Civil Liberties Union

("ACLU") is a nationwide non-partisan

organization of more than 200,000 members

dedicated to defending the principles em-

bodied in the Bill of Rights. The Chil-

dren's Rights Project of the ACLU Founda-

tion is a special project of the ACLU

dedicated to asserting and defending the

* Letters of consent from the parties

to the filing of this brief amici curiae

have been filed with the Clerk of the

Court.

rights of children. Central among those

rights are the child's right to a stable

home and to a parent-child relationship

free from unwarranted state intrusion.

The Children's Rights Project has partici-

pated in numerous cases throughout the

United States involving the respective

rights of parents and children in termina-

tion proceedings, as well as cases directed

at improving conditions for children who

have been removed from their homes and

placed in the custody of the state.

The New York Civil Liberties Union

and the Connecticut Civil Liberties Union

are state affiliates of the ACLU.

STATEMENT OF THE CASE

The facts of the case are fully and

adequately set forth in the Petition for

Certiorari.

SUMMARY OF ARGUMENT

A long, uninterrupted line of deci-

sions by this Court has held that the re-

lationship between parent and child is of

fundamental constitutional importance to

parent and child alike. However, although

the constitutional interests of children

in proceedings to terminate parental

rights are separate and distinct from those

of parents, parent and child share an

identical interest in assuring that fact-

finding in termination cases be conducted

in a fair and careful manner. (Point I.A.)

Because the substantive standards applied

in termination cases are necessarily vague,

subjective, and elusive, raising the stan-

dard of proof is an especially important

way of assuring careful, fair, and ob-

jective fact-finding. (Point I.B.)

o4o

No harm or risk of harm to legit-

imate state interests is implicated by re-

quiring a “clear and convincing" standard

in termination cases, No imminent harm to

children already in the state's foster

care system is occasioned by application

of the standard, and New York, like most

other states, has in fact declared that

family reunification, not termination, is

its own primary goal. Applying the “clear

and convincing" standard imposes no new

fiscal or administrative burden on the

state, and the standard has in any event

already been applied to proceedings with

far less serious constitutional implica-

tions than these. (Point ITI)

Finally, certiorari may have been im-

providently granted in this case due to the

unsettled state of New York law. Cases

other than the one here on appeal have

held that a “clear and convincing" stan-

dard is required by New York law, despite

the contrary ruling here. (Point IIT)

ARGUMENT

I.. THE JUDICIAL PROCESS MUST

TAKE SPECIAL COGNIZANCE

OF THE FUNDAMENTAL NATURE

OF THE INTERESTS AT STAKE

AND THE ELUSIVENESS OF THE

SUBSTANTIVE STANDARD IN

PARENTAL TERMINATION CASES

Parents and Children Share

Separate But Coinciding

Interests in Careful Fact-

Finding in Proceedings to

Terminate Parental Rights

This Court has long recognized that

a compelling state interest is necessary

to justify intrusion into a natural family

and interference with the right of parents

and children to maintain their relation-

ship.

Indeed, the Court has sometimes

implied that even a compelling justifi-

cation will not suffice, for

"A host of cases, tracing their

lineage to Meyer v. Nebraska,

262 U.S. 390, 399-401 (1923),

and Pierce v. Society of Sisters,

268 U.S. 510, 534-535 (1925), have

consistently acknowledged a 'pri-

vate realm of family life which

~ >

the state cannot enter.' Prince

v. Massachusetts, 321 U.S. 158, 166

.944). (Citations omitted.)"

Moore v. City of East Cleveland,

431 U.S. 494, 499 (1977).

(Emphasis added. )

On numerous occasions, the Court has held

the family relationship to be the corner-

stone of a set of inviolable “liberty in-

terests" and the center of a constitution-

ally protected "zone of privacy." See,

e.g., Loving v. Virginia, 388 U.S. l

(1967): Skinner v. Oklahoma, 316 U.S. 535

(1942); Griswold v. Connecticut, 381 U.S.

479 (1965); Roe v. Wade, 410 U.S. 113

(1973); Cleveland Board of Education v.

LaFleur, 414 U.S. 632, 639-640 (1974).

A long line of the Court's decisions

has particularly emphasized the fundamen-

tal constitutional significance of the re-

lationship between parent and child.

Quilloin v. Walcott, 434 U.S. 246, 255

(1978), citing, Wisconsin v. Yoder, 406

U.S. 205, 231-233 (1972); Stanley v.

Illinois, 405 U.S. 645, 651 (1972); Meyer

v. Nebraska, 262 U.S. 390, 399-401 (1923).

See also Parham v. J.R., 442 U.S. 584, 602-

3 (1979). The Court has specifically recog-

nized that a parent has a "primary freedom"

to be with his or her child, Prince v.

Massachusetts, 321 U.S. 158 (1944), and that

such freedom is a "basic human right" antedating

the Constitution. Smith v. Organization of

Foster Families For Equality and Reform, 431

U.S. 816, 846 (1977). The Court has also

made clear that the state may not limit the

parent-child relationship "absent a power-

ful countervailing interest," even when that

relationship has not previously been

legitimated through the judicial process.

Stanley v. Illinois, 405 U.S. 645, 651

(1972).

Although the constitutional right of

family integrity has most often been used

to insulate parental decisions from state

review, see, e.g., Meyer v. Nebraska,

supra; Skinner v. Oklahoma, supra; Cleveland

Board of Education v. LaFleur, supra;

Griswold v. Connecticut, supra; Roe v. Wade,

supra; Stanley v. Illinois, supra; Wiscon-

sin v. Yoder, 406 U.S. 205 (1972); Pierce v.

Society of Sisters, 268 U.S. 510, it is

clear that children as well as parents have

a fundamental stake in the preservation and

autonomy of the family unit. As this

Court stated in Stanley v. Illinois, 405

U.S. 645, 657 (1972), the right to family

integrity is an “important interest of

both parent and child". Accordingly, in

Smith v. Organization of Foster Families

For Equality and Reform, supra, at 844,

-10-

this Court stressed that the constitution-

al protection granted the family was based

on the “emotional attachments that derive

from the intimacy of daily association."

Such intimate “emotional attachments" are

necessarily reciprocal ones, in which each

of the participants has a linked, but

plainly separate, interest.*

It follows from these holdings, and

the well-established rule that "neither

the Fourteenth Amendment nor the Bill of

Rights is for adults alone," In re Gault,

387 U.S. 1, 13 (1967), that children have

an interest which is separate and apart

from the interest of their parents in

termination proceedings.

* See Duchesne v. Sugarman, 566 F.2d

817, 825 (2nd Cir. 1977); Roe v. Conn, 417

F., Supp. 769 (M.D. Ala 1976).

elle

In this case, however, those separate

interests neatly--and completely=--converge.

The child's best interests as well as the

parent's are better served by a careful,

fair decision-making process when the con-

tinuation of the child's relationship with

the parent is at stake. For the child,

the consequences of any decision to ter-

minate parental rights are severe and

well-documented. When the decision is

erroneous, those serious consequences are

needless.

Studies have indicated that placing a

child in state custody, regardless of the

good intentions motivating the placement,

frequently results in substantial psycholo-

gical damage to the child.* It not only

* See, e.g., Children Without Homes,

(1978), survey of foster care, conducted

by the Children's Defense Fund; Smith v.

Organization of Foster Families, supra

at 844,

means losing the constitutionally pro-

tected interest in the “emotional at-

tachments that derive from the intimacy

of daily association", but it also means

being swept into the custody of a child

welfare bureaucracy which acquires plenary

power to make unreviewable decisions af-

fecting all of the child's basic rights

and needs. In theory, this enhanced

state power has a benevolent purpose; in

practice, it often has disastrous results.

Moreover, theory and practice also diverge

in another critical way. The placement

of children in the custody of the state

is intended to be only a temporary prelude

to permanent adoption. In fact, studies

have demonstrated that many -- perhaps

most == children whose parental rela-

tionships have been severed linger for

years in foster care where they have no

-13-

parent at all.* Thus, even a benevolently

motivated decision to terminate parental

rights can end one trauma only to initiate

others.

The significance of this Court's prior

holdings to the issue now presented is

therefore clear: given the truly funda-

mental nature of the individual liberty

interests at stake in a determination to

curtail parent-child liberties, and the im-

portance of proper fact-finding concerning

the ability and willingness of a partic-

ular parent to maintain a relationship

with a particular child, courts must

exercise extraordinary care in the fact-

* See e.g. New Mexico Health and

Social Services Department, In Limbo:

A Study of New Mexico's Foster Care

Children (January 19786); Kentucky Youth

Advocates, The State To The Rescue

Securing Permanency for Foster C dren

pr ).

-14-

finding process whenever the curtailment

of such liberties may result. Stanley v.

Illinois, supra. Where the potential

curtailment of the liberties is absolute

and “terminal,” as it is here, the con-

stitutional interests at stake are at

their greatest, and the most careful

judicial protection of them is con-

stitutionally required, Stanley v.

Illinois, supra. The separate interests

of parent and child completely coincide

with respect to the importance of judicial

caution and careful fact-finding in such

proceedings.

B. Decisions To Terminate Parental

Rights Are Usually Made On The

Basis of Intrinsically Vague

and Elusive Substantive Standards

The need for a rigorous standard of

proof is heightened in parental termination

cases by the inherently subjective nature

-15-

of the legal standards which are ordinar-

ily applied. Cf. Alsager v. District

Court of Polk County, Iowa, 406 F. Supp.

10 (S.D. Iowa 1975), aff'd 545 F.2d 1137

(8th Cir. 1976); Roe v. Conn, 417 F. Supp.

769 (M.D. Ala. 1976) (3 judge court).

"Success" and “failure” in child-rearing

are simply incapable of objective defi-

inition. Whether or not the "fitness"

standard is unconstitutionally vague be-

cause of this fact, see Doe v. Delaware,

appeal dismissed for want of a properly

presented federal question, 49 U.S.L.W.

4250 (U.S. March 9, 1981); Alsager v.

District Court of Polk County, Iowa,

Supra, its substantive "looseness" is

undeniable. Accordingly, this Court

has specifically recognized in this area

how difficult it is "to avoid decisions

resting on subjective values", Smith v.

-16=

Organization of Foster Families, supra

at 835, n.36. The unavoidable discre-

tion and potential injustice which ines-

capably flow from such subjective evalu-

ations can only be mitigated by taking

exceptional procedural care.*

* The “failure to plan" - despite -

"diligent efforts" standard applied in

this case further complicates the problems

inherent in assessing parental fitness.

Because the agency filing a termination

petition in New York needs to demonstrate

its own lack of responsibility for the

parents’ "failure to plan," it acquires

of necessity a conflict of interest in its

attempts to "speak for" the child. Be-

cause a finding of insufficient agency

efforts can derail an agency's plan for a

child, the agency acquires a separate

interest of its own in the presentation

of evidence at a termination proceeding.

In New York, therefore, the substantive

standard is not only broad, it is also

subject to undiscernible manipulation.

It is for reasons such as these that

amici have previously urged the Court

to require the appointment of separate

counsel for children in all proceedings to

terminate parental rights. See brief of

Amicus Curiae ACLU Children's Rights Pro-

ject in Doe v. Delaware, supra.

-17-

The elusiveness of these substan-

tive standards assumes, moreover, an en-

larged significance in view of the fact

that when fundamental rights are abso-

lutely threatened (as opposed to when

lesser rights are merely limited), the

Constitution requires that the proposed

state intrusion be tailored precisely to

fit the legitimate end the state seeks to

achieve. Zablocki v. Redhail, 434 U.S.

374, 388 (1978). See also Shelton v.

Tucker, 364 U.S. 479 (1960). The require-

ment that the state demonstrate that "a

powerful countervailing interest" out-

weighs the rights and liberties affected

by a proposed termination, Stanley v.

Illinois, supra at 65l, becomes difficult

to enforce when the standards for as-

sessing those interests are vague and

intrinsically subjective. Although other,

-18-

less drastic, state interferences with

family life may be based upon lesser show-

ings, see e.g., Prince v. Massachusetts,

supra, or be buttressed by fewer proce-

dural safeguards, Parham v. J.R., supra,

when the proposed state intrusion is per-

manent termination of the rights of parent

and child to have any relationship at all,

and when the declared aim of the state

intervention is to promote the child's

"best interests" as opposed to those of

the parent, the state must meet a partic-

ularly heavy substantive and procedural

burden, especially when the law presumes

that parents do act in their children's

best interest. Parham v. J.R., supra.

When the substantive standard is uni-

quely difficult to purge of subjec-

tivity and bias, requiring heightened

-19-

procedural safeguards is the only ef-

fective way to protect the serious and

fundamental interests at stake.

-20-

II. DUE PROCESS REQUIRES THAT DECISIONS

TO TERMINATE THE FAMILY RELATIONSHIP

BE BASED UPON CLEAR AND CONVINCING

EVIDENCE

In Addington v. Texas, 441 U.S. 418

(1979), which required a "clear and con-

vincing" standard of proof in involuntary

commitment proceedings, this Court reit-

erated its belief that a heightened stan-

dard of proof represents an important

means of affording due process when fun-

damental liberties are implicated by a

proposed state action.

"The function of a standard of

proof, as that concept is em-

bodied in the Due Process Clause

and in the realm of factfinding,

is to ‘instruct the factfinder

concerning the degree of confi-

dence our society thinks he

shoul: have in the correctness

of factual conclusions for a

particular type of adjudication.'

In re Winship, 397 U.S. 358,

370 (1970) (Harlan, J., concur-

ring). The standard serves to

allocate the risk of error

@2l-

between the litigants and to

indicate the relative impor-

tance attached to the ultimate

decision." Addington v. Texas,

Supra at 423.

This Court has long recognized that

the involuntary termination of a parent-

child relationship is one of the most

drastic of all state intrusions into in-

dividual privacy and liberty and of very

high “relative importance". Consequently,

involuntary termination decisions are,

and long have been, surrounded by espe-

cially rigorous due process safeguards,

both substantive and procedural. May v.

Anderson, 345 U.S. 528 (1953); Armstrong

v. Manzo, 380 U.S. 545 (1965); Stanley v.

Illinois, supra.

In addition, all relevant considera-

tions concerning allocation of the risk of

error in the termination setting entirely

support placing the risk of error on

~22-

the state. No significant state inter-

est is jeopardized by application of the

clear and convincing standard, while the

interests of parents and children are

grievously affected by erroneous deci-

sions made under the mere preponderance

standard.

New York plainly does have a parens

patriae interest in protecting children

from harm. But where, as here, there is

no imminent danger to the children (who

are already in foster care), no state in-

terest arising from that aspect of its

parens patriae power is furthered by a

decision that is based upon a mere pre-

ponderance of the evidence To the con-

trary, this Court has explicitly rejected

the claim that the state's parens patriae

interest in such proceedings is more im-

portant than the right of family integrity.

=@230

In Stanley v. Illinois, supra, at 652-53,

the Court made clear,

"that the State registers no

gain towards its declared goals

when it separates children from

the custody of fit parents.

Indeed, if Stanley is a fit

father, the State spites its

own articulated goals when it

needlessly separates him from

his family."

Significantly, New York has declared

that its primary interest is to preserve,

not sever, natural family ties.* Although

* For example, Section 384-b 1. (a)

(ii) of the New York Social Services Law

states:

"[I]t is generally desirable

for the child to remain with or

be returned to the natural parent

because the child's need for a

normal family life will usually

best be met in the natural home

Similarly, in Matter of Sanjivini K, 47

N.Y¥.2d 374 (1979), the New York Court of

Appeals held that a mother's custody of

her child could not be terminated on the

sole ground that it was in the best in-

terest of the child. The Court stated,

at 382,

-24-

an erroneous decision to terminate paren-

tal rights destroys a family and deeply

infringes fundamental rights, an erroneous

decision not to terminate parental rights

where the children are not in imminent

danger merely errs in a direction which

Footnote cont'd:

"A child, of course, is not a

parent's property, but neither

is the child the property of

the State ... . In many cases

the State may, and under some

legal systems undoubtedly does,

find 'better' parents for a child

even though the natural parents

may be willing and able to pro-

vide proper care. But it is

fundamental to our legal and

social system, that it is in the

best interest of the child to

be raised by his parents, unless

the parents are unfit."

See also Matter of Corey L. v. Martin L.,

45 N.Y¥.2d 383 (1978).

=25-

supports the state's own most fundamental

goal. Moreover, as far as the family is

concerned, a final decision to terminate

the parent-child relationship cannot later

be reopened, even if clearly erroneous.

The state, however, can always gather fur-

ther evidence for a second petition to

terminate the family relationship, if

such evidence exists, and eventually

achieve its goal. Indeed, that is pre-

cisely what happened here. As the Court

held in Addington, supra, at 427, under

such circumstances

"The individual should not be

asked to share equally with

society the risk of error when

the possible injury to the

individual is significantly

greater than any possible harm

to the state."

This disparity of risk does not in

any way diminish if an asserted state

interest in the adoption of the children

-26-

is considered. New York's Court of

Appeals has repeatedly held that despite

the state's interest in facilitating

adoption for children, the termination

standards must be strictly applied with

rigorous procedural and substantive pro-

tections accorded to all parties. See,

e.g., Matter of Sanjivini K, supra.

In fact, a New York Family Court judge

has recently ruled that the standard of

proof at issue in this case is too low to

satisfy due process and has read Family

Court Act § 622 to require a "clear and

convincing" standard. (See Point III,

infra.) No state interest in seeking per-

manent adoptive homes for children in

its care is disturbed by requiring that

=27-

termination decisions be based upon clear

and convincing evidence.

Moreover, the use of the clear and

convincing standard as an element of due

process, unlike other procedural safe-

guards such as right to counsel or right

to a hearing, does not impose any addi-

tional fiscal or administrative burdens

on the state. Matthews v. Eldridge, 424

U.S. 319, 335 (1976). Nor does a

higher standard of proof interfere with

the speed and flexibility of individual

Family Court procedures, or otherwise

deeply affect the structure of the pro-

ceedings. Rather, it provides a nondis-

ruptive, yet quite direct, means of "im-

pressing the factfinder with the impor-

tance of the decision" to terminate a

-28-

parent-child relationship. Addington v.

Texas, Supra at 427.

Finally, the nature of a termination

proceeding, as well as the interests which

it infringes, further demonstrates the

necessity of more than the evidentiary

minimum. A termination proceeding, like

the civil commitment proceeding at issue

in Addington v. Texas, supra, though nomi-

nally civil, involves a state-initiated

effort to deprive a private person of a

fundamental liberty. In such situations,

a standard greater than mere preponder-

ance has regularly been held to apply.

See, e.g., In re Winship, supra. More-

over, although termination does not in-

volve a restriction on liberty precisely

analogous to incarceration or confine-

ment in a mental institution, it is a

@29-

permanent, rather than temporary, step,*

and it also necessarily involves a find-

ing of fault and the stigmatization such

a finding ensures. In any event, neither

the absence of such confinement, nor the

fact that the proceeding is nominally

civil, determines the standard of proof,

and the Court has previously recognized

the need for a higher standard of proof

in several other instances where the

* Lower courts have found the fact

that termination of the family relation-

ship, unlike temporary removal of a

child, is permanent and irreversible, to

be critical to determining what process

is due. See Legal Distinction between

Custody and Termination Orders in Child

Ne lect Cases, 7? J. Fam. L. 66 (1967).

one such case, Newton v. Burgin, 363

r. Supp. 782, 785- W.D. N. Cc. ), the

court distinguished between the procedural

safeguards necessary before the state can

remove a child in an emergency for a tem-

porary time, in that case five days, and

the greater procedural safeguards neces-

sary in proceedings to terminate the fam-

ily relationship permanently.

-30-

result of a nominally "civil" proceeding

brought by the government may be parti-

cularly severe, Woodby v. Immigration

and Naturalization Service, 385 U.S. 276

(1966) (deportation); Schneiderman v.

United States, 320 U.S. 118 (1943) (de-

naturalization), or the ultimate decision

is likely to be less than wholly reliable

due to either the nature of the evidence

presented or the vagueness of the substan-

tive standard to be applied. Many such

situations involve rights far less funda-

mental than those at stake in this case.*

* Clear and convincing evidence has

traditionally been required for proof of

fraud, 9 Wigmore, Evidence § 2498 (3rd Ed.

1940); Accord Woodby v. Immigration and

Naturalization Service, 385 U S. 276, 285

n.18 (1966); Barr Rubber Products Co. v.

Sun Rubber Co., 425 F.2d 1114 (2d Cir.

1970), cert. denied, 400 U.S. 878 (1970)

(district court erred in applying prepon-

derance standard to proof of patent fraud),

and in proceedings to disbar attorneys,

In re Fisher, 179 F.2d 361, 369-70 (7th

Cir.), cert. denied, 340 U.S. 825 (1950).

=3l<

Interestingly, New York itself re-

quires the paternity of an illegitimate

child to be proved by clear and convincing

evidence. Lopez v. Sanchez, 34 :J.Y.2d 662

(1974); Matter of Dorn "HH" v. Lawrence

"II", 31 N.Y.2d 154 (1972), appeal dismissed

for want of a substantial federal question,

sub nom. Fuchs v. Silvester, 409 U.S. 1121

(1973). If attributing parenthood involun-

tarily to an individual is considered a

sufficiently serious infringement of per-

sonal liberty to require clear and convinc-

ing evidence, under the Equal Protection

Clause involuntary severance of the

parent-child tie, deserves -- at least --

the same treatment. Erroneous determina-

tions of paternity can always be reversed

if new evidence comes to light. "Termi-

nation," by definition, ca’ not.

@32@

Although the State makes much of

Vance v. Terrazas, 444 U.S. 252 (1980),

that decision does not support the result

below. In Vance, this Court held:

", . . expatriation requires the

ultimate finding that the citizen

has committed the expatriating

act with the intent to renounce

his citizenship. This in itself

is a heavy burden, and we cannot

hold that Congress has exceeded

its powers by requiring proof of

an intentional expatriating act

by a preponderance of evidence."

Id. at 267 (100 S. Ct. at 548).

No similarly rigorous substantive showing

is required here. Under New York law,

the family relationship is terminated on

a showing that it is "more probable than

not" that parents have failed to plan for

the future of their child during the time

the child is in foster care and that the

state has "more probably than not" tried

diligently to help them make plans. That

substantive standard for termination of

-33-

parental rights is flexible and open-

ended, perhaps intentionally, and allows

the state great latitide in presenting

evidence. It does not in any way go to,

nor require any proof concerning, the

parent's state of mind. By contrast, a

substantive standard comparable to the

one involved in Vance would in these cir-

cumstances require a showing that the

family members had intentionally renounced

the family relationship, as is in fact

required in emancipation or divorce pro-

ceedings. Because the substantive stan-

dard are so vastly different, Vance is

not controlling. Certainly nothing in

Vance demands automatic judicial deference

to any standard of proof the legislature

might impose.

To the contrary, courts will accept

the legislature's choice of the standard

=34-

of proof only if there are no "counter-

vailing constitutional constraints."

Steadman v. SEC, 49 U.S.L.W. 4174,

4175 (U.S. February 25, 198]). When such

considerations are present the question of

how much process is due under the Consti-

tution is one for the courts, not for the

legislature. Arnett v. Kennedy, 416 U.S.

134, 167 (Powell, J., concurring) (1974).

This is such a case because of the impor-

tant interests at stake and the inescap-

ably subjective standards by which those

interests are weighed. Accordingly, this

Court should hold that the tie between a

parent and child may not be permanently

severed unless the state establishes its

case by "clear and convincing evidence."

Any lesser standard would seriously sub-

vert the notion of family integrity which

this Court has so consistently and stead-

fastly guarded.

=35-

III. CERTIORARI SHOULD BE

DISMISSED AS

IMPROVIDENTLY GRANTED

BECAUSE OF UNCERTAINTY

IN UNDERLYING STATE LAW

Although amici strongly believe that

application of the “clear and convincing"

standard to termination proceedings is

required by the federal due process

Clause, there is a strong possibility

that the same result is also, and sepa-

rately, required by the law of New York.

Since the Appellate Division, Third

Department, rendered the decision on

appeal here, a distinguished Family Court

located in another Department has con-

cluded that the New York statute in

question requires that courts apply the

"clear and convincing” standard to paren-

tal termination cases. See In The Matter

of Marilyn H., Docket No. B-276/80, Family

Court, City of New York, Feb. 24, 1981

(Dembitz, J.). Thus, with an incipient

split and contradiction among New York's

jurisdictionally separate Departments, a

resolution of this issue by the New York

Court of Appeals may be anticipated.

Were the New York Court of Appeals to rule

that the New York Statute requires clear

and convincing evidence, it would not be

necessary for this Court to decide whether

the contention requires that result.

See Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 346-348 (1936)

(Brandeis, J., Concurring in part and

dissenting in part).

@34=

CONCLUSION

For the reasons set forth above,

the judgment appealed from should be re-

versed, and the case remanded for recon-

sideration by the trial court under the

"clear and convincing" standard. In the

alternative, the writ of certiorari should

be dismissed as improvidently granted.

Respectfully submitted,

Steven R. Shapiro

New York Civil Liberties

Union

84 Fifth Avenue

New York, N.Y. 10011

Margaret Hayman

Children's Rights Project

Connecticut Civil

Liberties Union

57 Pratt Street

Hartford, Connecticut 06103

a38-

Abigail A. Jones

1 Chase Manhattan Plaza

New York, N.Y. 10005

Co-operating attorney,

American Civil Liberties

Union

Marcia Robinson Lowry

(Counsel of Record)

George Kannar

The Children's Rights

Project

American Civil Liberties

Union

132 W. 43rd Street

New York, N.Y. 10036

-39-