# Respondents Brief — Santosky v. Kramer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2393%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1982 - **Citation:** 455 U.S. 745 ## Text 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- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2393%3A09. Public record. Not legal advice.