More on Visitation Rights in Divorce Proceedings

<SANTOSKY> ET AL. v. <KRAMER,> COMMISSIONER, ULSTER COUNTY
DEPARTMENT OF SOCIAL SERVICES, ET AL.

No. 80-5889.

SUPREME COURT OF THE UNITED STATES

<455> U.S. 745; 71 L. Ed. 2d 599; 50 U.S.L.W. 4333; 102 S.

Argued November 10, 1981

March 24, 1982

SYLLABUS:
Under New York law, the State may terminate, over parental objection, the
rights of parents in their natural child upon a finding that the child is
"permanently neglected." The New York Family Court Act ( @ 622) requires that
only a "fair preponderance of the evidence" support that finding.  Neglect
proceedings were brought in Family Court to terminate petitioners' rights as
natural parents in their three children.  Rejecting petitioners' challenge to
the constitutionality of @ 622's "fair preponderance of the evidence" standard, the
Family Court weighed the evidence under that standard and found permanent
neglect.  After a subsequent dispositional hearing, the Family Court ruled that the
best interests of the children required permanent termination of
petitioners' custody.  The Appellate Division of the New York Supreme Court
affirmed, and the New York Court of Appeals dismissed petitioners' appeal to
that court.

Held:

1.  Process is constitutionally due a natural parent at a state-initiated
parental rights termination proceeding.  Pp. 752-757.

(a) The fundamental liberty interest of natural parents in the care, custody,and
management of their child is protected by the Fourteenth Amendment, and does not
evaporate simply because they have not been model parents or have lost
temporary custody of their child to the State.  A parental rights termination
proceeding interferes with that fundamental liberty interest.  When the State
moves to destroy weakened familial bonds, it must provide the parents with
fundamentally fair procedures.  Pp. 752-754.
(b) The nature of the process due in parental rights termination proceedings turns
on a balancing of three factors: the private interests affected by the
proceedings; the risk of error created by the State's chosen procedure; and the
countervailing governmental interest supporting use of the challenged
procedure.
minimum
standard of proof tolerated by the due process requirement reflects not only
the weight of the public and private interests affected, but also a societal
judgment about how the risk of error should be distributed between the
litigants.  The minimum standard is a question of federal law which this Court
may resolve.  Retrospective case-by-case review cannot preserve fundamental
fairness when a class of proceedings is governed by a constitutionally
defective evidentiary standard.  Pp. 754-757.

2.  The "fair preponderance of the evidence" standard prescribed by @ 622
violates the Due Process Clause of the Fourteenth Amendment.  Pp. 758-768.

(a) The balance of private interests affected weighs heavily against use of
such a standard in parental rights termination proceedings, since the private
interest affected is commanding and the threatened loss is permanent.  Once
affirmed on appeal, a New York decision terminating parental rights is final and irrevocable.  Pp. 7
(b) A preponderance standard does not fairly allocate the risk of an
erroneous factfinding between the State and the natural parents.  In parental
rights termination proceedings, which bear many of the indicia of a criminal
trial, numerous factors combine to magnify the risk of erroneous factfinding.

prospect of erroneous termination of parental rights.  A standard of proof that
allocates the risk of error nearly equally between an erroneous failure to
terminate, which leaves the child in an uneasy status quo, and an erroneous
termination, which unnecessarily destroys the natural family, does not reflect
properly the relative severity of these two outcomes.  Pp. 761-766.

© A standard of proof more strict than preponderance of the evidence is
consistent with the two state interests at stake in parental rights
termination proceedings -- a parens patriae interest in preserving and promoting the
child's welfare and a fiscal and administrative interest in reducing the cost and
burden of such proceedings.  Pp. 766-768.

3.  Before a State may sever completely and irrevocably the rights of parents in
their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.  A "clear and convincing
evidence" standard adequately conveys to the factfinder the level of
subjective certainty about his factual conclusions necessary to satisfy due
process.  Determination of the precise burden equal to or greater than that
standard is a matter of state law properly left to state legislatures and state
courts.  Pp. 768-770.
75 App. Div. 2d 910, 427 N.Y.S. 2d 319, vacated and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL,POWELL, and STEVENS, JJ., joined.  REHNQUIST, J., filed a dissenting
opinion, in which BURGER, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 770.

APPEAL-STATEMENT:
CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, THIRD
JUDICIAL DEPARTMENT

JUDGES:
Burger, Brennan, White, Marshall, Blackmun, Powell, Rehnquist, Stevens,
O'Connor

COUNSEL:
Martin Guggenheim argued the cause for petitioners.  With him on the briefs
was Alan N. Sussman.

Steven Domenic Scavuzzo argued the cause pro hac vice for respondents.  With him
on the brief was H. Randall Bixler.  Wilfrid E. Marrin and Frederick J.
Magovern filed a brief for respondents Balogh et al.  *

* Briefs of amici curiae urging reversal were filed by Marcia Robinson
Lowry,
Children's Rights Project et al.; and by Louise Gruner Gans, Catherine P.
Mitchell, Norman Siegel, Gary Connor, and Daniel Greenberg for Community Action for
Legal Services, Inc., et al.

Briefs of amici curiae urging affirmance were filed by Robert Abrams,
Attorney General, Shirley Adelson Siegel, Solicitor General, and Lawrence J.
Logan and Robert J. Schack, Assistant Attorneys General, for the State of New
York; and by Dave Frohnmayer, Attorney General, William F. Gary, Solicitor
General, and Jan Peter Londahl, Assistant Attorney General, for the State of
Oregon.

OPINIONBY: BLACKMUN

OPINION:
JUSTICE BLACKMUN delivered the opinion of the Court.

Under New York law, the State may terminate, over parental objection, the
rights of parents in their natural child upon a finding that the child is
"permanently neglected." N.Y. Soc. Serv. Law @@ 384-b.4.(d), 384-b.7.(a)
(McKinney Supp. 1981-1982) (Soc. Serv. Law).  The New York Family Court Act @

"fair preponderance of the evidence" support that finding.  Thus, in New York,
the factual certainty required to extinguish the parent-child relationship is
no greater than that necessary to award money damages in an ordinary civil action. 
Today we hold that the Due Process Clause of the Fourteenth Amendment demands more
than this.  Before a State may sever completely and irrevocably the rights of parents
in  their natural child, due process requires that the State support its allegations
by at least clear and convincing evidence.

I

A

New York authorizes its officials to remove a child temporarily from his or
her home if the child appears "neglected," within the meaning of Art. 10 of
Family Court Act.  See @@ 1012(f), 1021-1029.  Once removed, a child under the
age of 18 customarily is placed "in the care of an authorized agency," Soc.
Serv. Law @ 384-b.7.(a), usually a state institution or a foster home.  At that
point, "the state's first obligation is to help the family with services to...
reunite it...." @ 384-b.1.(a)(iii).  But if convinced that "positive, nurturing
parent-child relationships no longer exist," @ 384-b.1.(b), the State may
initiate "permanent neglect" proceedings to free the child for adoption.

The State bifurcates its permanent neglect proceeding into "fact-finding"
and"dispositional" hearings.  Fam. Ct. Act @@ 622, 623.  At the factfinding stage,
the State must prove that the child has been "permanently neglected," as defined by
Fam. Ct. Act @@ 614.1.(a)-(d) and Soc. Serv. Law @ 384-b.7.(a).  See Fam. Ct.Act @
622.  The Family Court judge then determines at a subsequent dispositional hearing
what placement would serve the child's best interests.  @@ 623, 631.

At the factfinding hearing, the State must establish, among other things,
that for more than a year after the child entered state custody, the agency
"made diligent efforts to encourage and strengthen the parental relationship."
Fam. Ct. Act @@ 614.1.©, 611.  The State must further prove that during that
same period, the child's natural parents failed "substantially and continuously or
repeatedly to maintain contact with or plan for the future of the child
although physically and financially able to do so." @ 614.1.(d).  Should the
State support its allegations by "a fair preponderance of the evidence," @ 622, the
child may be declared permanently  neglected.  @ 611.  That declaration
empowers the Family Court judge to terminate permanently the natural parents'
rights in the child.  @@ 631©, 634.  Termination denies the natural parents

regain custody of the child.  n1

n1 At oral argument, counsel for petitioners asserted that, in New York,
natural parents have no means of restoring terminated parental rights.  Tr. of
Oral Arg. 9.  Counsel for respondent, citing Fam. Ct. Act @ 1061, answered that
parents may petition the Family Court to vacate or set aside an earlier order
on narrow grounds, such as newly discovered evidence or fraud.  Tr. of Oral Arg.
26.  Counsel for respondent conceded, however, that this statutory provision has never
been invoked to set aside a permanent neglect finding.  Id., at 27.

New York's permanent neglect statute provides natural parents with certain
procedural protections.  n2 But New York permits its officials to establish
"permanent neglect" with less proof than most States require.  Thirty-five
States, the District of Columbia, and the Virgin Islands currently specify a
higher standard of proof, in parental rights termination proceedings, than a
"fair preponderance of the evidence." n3 The only analogous federal statute of
which we are aware  permits termination of parental rights solely upon
"evidence beyond a reasonable doubt." Indian Child Welfare Act of 1978, Pub. L. 95
-608, @ 102(f), 92 Stat. 3072, 25 U.S.C.  @ 1912(f) (1976 ed., Supp. IV).  The
question here is whether  New York's "fair preponderance of the evidence" standard is

n2 Most notably, natural parents have a statutory right to the assistance of
counsel and of court-appointed counsel if they are indigent.  Fam. Ct. Act.  @
262.(a)(iii).

n3 Fifteen States, by statute, have required "clear and convincing evidence" or
its equivalent.  See Alaska Stat. Ann.  @ 47.10.080©(3) (1980); Cal. Civ.
Code Ann.  @ 232(a)(7) (West Supp. 1982); Ga. Code @@ 24A-2201©, 24A-3201
(1979); Iowa Code @ 600A.8 (1981) ("clear and convincing proof"); Me. Rev. Stat.Ann.,
Tit. 22, @ 4055.1.B.(2) (Supp. 1981-1982); Mich. Comp. Laws @ 722.25
(Supp. 1981-1982); Mo. Rev. Stat.  @ 211.447.2(2) (Supp. 1981) ("clear, cogent
and convincing evidence"); N.M. Stat. Ann.  @ 40-7-4.J. (Supp. 1981); N.C. Gen. Stat. 
@ 7A-289.30(e) (1981) ("clear, cogent, and convincing evidence"); Ohio
Rev. Code Ann.  @@ 2151.35, 2151.414(B) (Page Supp. 1982); R.I. Gen. Laws @
15-7-7(d) (Supp. 1980); Tenn. Code Ann.  @ 37-246(d) (Supp. 1981); Va. Code @
16.1-283.B (Supp. 1981); W. Va. Code @ 49-6-2© (1980) ("clear and convincing
proof"); Wis. Stat.  @ 48.31(1) (Supp. 1981-1982).

Fifteen States, the District of Columbia, and the Virgin Islands, by court
decision, have required "clear and convincing evidence" or its equivalent.  See Dale
County Dept. of Pensions & Security v. Robles, 368 So. 2d 39, 42 (Ala. Civ.
1979); Harper v. Caskin, 265 Ark. 558, 560-561, 580 S.W. 2d 176, 178
(1979); In re J.S.R., 374 A. 2d 860, 864 (D.C. 1977); Torres v. Van Eepoel, 98
So. 2d 735, 737 (Fla. 1957); In re Kerns, 225 Kan. 746, 753, 594 P. 2d 187, 193 (1979); In re Rosenb6 N.W. 2d 888, 889 (Minn. 1978) ("clear and
convincing proof"); In re J.L.B.,     Mont.    ,    , 594 P. 2d 1127, 1136
(1979); In re Souza, 204 Neb. 503, 510, 283 N.W. 2d 48, 52 (1979); J.  v. M.,
157 N.J. Super. 478, 489, 385 A. 2d 240, 246 (App. Div. 1978); In re J.A., 283
N.W. 2d 83, 92 (N.D. 1979); In re Darren Todd H., 615 P. 2d 287, 289 (Okla.
1980); In re William L., 477 Pa. 322, 332, 383 A. 2d 1228, 1233, cert. denied
sub nom. Lehman v. Lycoming County Children's Services, 439 U.S. 880 (1978); In re
G.M., 596 S.W. 2d 846, 847 (Tex. 1980); In re Pitts, 535 P. 2d 1244, 1248
(Utah 1975); In re Maria, 15 V.I. 368, 384 (1978); In re Sego, 82 Wash. 2d 736, 739,
513 P. 2d 831, 833 (1973) ("clear, cogent, and convincing evidence"); In reX., 607 P.
2d 911, 919 (Wyo. 1980) ("clear and unequivocal").

South Dakota's Supreme Court has required a "clear preponderance" of the
evidence in a dependency proceeding.  See In re B.E., 287 N.W. 2d 91, 96 (1979).Two
States, New Hampshire and Louisiana, have barred parental rights
terminations unless the key allegations have been proved beyond a reasonable

La. Rev. Stat. Ann.  @ 13:1603.A (West Supp. 1982).  Two States, Illinois and
New York, have required clear and convincing evidence, but only in certain types of parental rights ion
proceedings.  See Ill. Rev. Stat., ch. 37,
PP705-9(2), (3) (1979), amended by Act of Sept. 11, 1981, 1982 Ill. Laws, P.A.
82-437 (generally requiring a preponderance of the evidence, but requiring clear and
convincing evidence to terminate the rights of minor parents and mentally
ill or mentally deficient parents); N.Y. Soc. Serv. Law @@ 383-b.3.(g),
384-b-4©, and 384-b.4.(e) (requiring "clear and convincing proof" before
parental rights may be terminated for reasons of mental illness and mental
retardation or severe and repeated child abuse).

So far as we are aware, only two federal courts have addressed the issue.
Each has held that allegations supporting parental rights termination must be
proved by clear and convincing evidence.  Sins v. State Dept. of Public Welfare,438
F. Supp. 1179, 1194 (SD Tex. 1977), rev'd on other grounds sub nom. Moore v.Sims, 442
U.S. 415 (1979); Alsager v. District Court of Polk County, 406 F.
Supp. 10, 25 (SD Iowa 1975), aff'd on other grounds, 545 F. 2d 1137 (CA8 1976). 
B

Petitioners John <Santosky> II and Annie <Santosky> are the natural parents
of Tina and John III.  In November 1973, after incidents reflecting parental
neglect, respondent <Kramer,> Commissioner of the Ulster County Department of

removed Tina from her natural home.  About 10 months later, he removed John III and
placed him with foster parents.  On the day John was taken, Annie <Santosky>gave birth to a third cd.When Jed was only three days old, respondent
transferred him to a foster home on the ground that immediate removal was
necessary to avoid imminent danger to his life or health.

In October 1978, respondent petitioned the Ulster County Family Court to
terminate petitioners' parental rights in the three children.  n4 Petitioners
challenged the constitutionality of the "fair preponderance of the evidence"
standard specified in Fam. Ct. Act @ 622.  The Family Court Judge rejected this
constitutional challenge, App. 29-30, and weighed the evidence under the
statutory standard.  While acknowledging that the <Santoskys> had maintained
contact with their children, the judge found those visits "at best superficial
and devoid of any real emotional content." Id., at 21.  After  deciding that
the agency had made "'diligent efforts' to encourage and strengthen the parental
relationship," id., at 30, he concluded that the <Santoskys> were incapable,
even with public assistance, of planning for the future of their children.  Id.,
33-37.  The judge later held a dispositional hearing and ruled that the best
interests of the three children required permanent termination of the
<Santoskys'> custody.  n5 Id., at 39.

n4 Respondent had made an earlier and unsuccessful termination effort in
September 1976.  After a factfinding hearing, the Family Court Judge dismissed
respondent's petition for failure to prove an essential element of Fam. Ct. Act @
614.1.(d).See In re <Santosky,> 89 Misc. 2d 730, 393 N.Y.S. 2d 486 (1977).
The New York Supreme Court, Appellate Division, affirmed, finding that "the
record as a whole" revealed that petitioners had "substantially planned for the
future of the children." In re John W., 63 App. Div. 2d 750, 751, 404 N.Y.S. 2d 717,
719 (1978).

n5 Since respondent took custody of Tina, John III, and Jed, the <Santoskys> have
had two other children, James and Jeremy.  The State has taken no action to remove
these younger children.  At oral argument, counsel for respondent
replied affirmatively when asked whether he was asserting that petitioners were "unfit
to handle the three older ones but not unfit to handle the two younger ones."
Tr. of Oral Arg. 24.

Petitioners appealed, again contesting the constitutionality of @ 622's
standard of proof.  n6 The New York Supreme Court, Appellate Division,
affirmed,holding application of the preponderance-of-the-evidence standard "proper
and
constitutional." In re John AA, 75 App. Div. 2d 910, 427 N.Y.S. 2d 319, 320
(1980).  That standard, the court reasoned, "recognizes and seeks to balance
rights possessed by the child... with those of the natural parents...." Ibid.

n6 Petitioners initially had sought review in the New York Court of Appeals. That
court sua sponte transferred the appeal to the Appellate Division, Third Department,
stating that a direct appeal did not lie because "questions other
than the constitutional validity of a statutory provision are involved." App.
50.

The New York Court of Appeals then dismissed petitioners' appeal to that
court "upon the ground that no substantial constitutional question is directly
involved." App. 55.  We granted certiorari to consider petitioners'
constitutional claim.  450 U.S. 993 (1981).

II

Last Term, in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), this
Court, by a 5-4 vote, held that the  Fourteenth Amendment's Due Process
Clause does not require the appointment of counsel for indigent parents in
every parental status termination proceeding.  The case casts light, however, on the

parent at a State's parental rights termination proceeding, and, if so, what
process is due.

In Lassiter, it was "not disputed that state intervention to terminate the
relationship between [a parent] and [the] child must be accomplished by
procedures meeting the requisites of the Due Process Clause." Id., at 37 (first
dissenting opinion); see id., at 24-32 (opinion of the Court); id., at 59-60
(STEVENS, J., dissenting).  See also Little v. Streater, 452 U.S. 1, 13 (1981). The
absence of dispute reflected this Court's historical recognition that
freedom of personal choice in matters of family life is a fundamental liberty
interest protected by the Fourteenth Amendment.  Quilloin v. Walcott, 434 U.S.
246, 255 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 845
(1977); Moore v. East Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion);
Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Stanley
v. Illinois, 405 U.S. 645, 651-652 (1972); Prince v. Massachusetts, 321 U.S.
158, 166 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925);
Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

The fundamental liberty interest of natural parents in the care, custody,
and
model parents or have lost temporary custody of their child to the State.  Even when
blood relationships are strained, parents retain a vital interest in
preventing the irretrievable destruction of their family life.  If anything,
persons faced with forced dissolution of their parental rights have a more
critical need for procedural protections than do those resisting state
intervention into ongoing family affairs.  When the State moves to  destroy
weakened familial bonds, it must provide the parents with fundamentally fair
procedures.  n7

n7 We therefore reject respondent's claim that a parental rights termination
proceeding does not interfere with a fundamental liberty interest.  See Brief
for Respondent <Kramer> 11-18; Tr. of Oral Arg. 38.  The fact that important
liberty interests of the child and its foster parents may also be affected by a
permanent neglect proceeding does not justify denying the natural parents
constitutionally adequate procedures.  Nor can the State refuse to provide
natural parents adequate procedural safeguards on the ground that the family
unit already has broken down; that is the very issue the permanent neglect
proceeding is meant to decide.

In Lassiter, the Court and three dissenters agreed that the nature of the
process due in parental rights termination proceedings turns on a balancing of
the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 319,
335(1976): the private interests affected by the proceeding; the risk of error
created by the State's chosen procedure; and the countervailing governmental
interest supporting use of the challenged procedure.  See 452 U.S., at 27-31;
id., at 37-48 (first dissenting opinion).  But see id., at 59-60 (STEVENS, J.,
dissenting).  While the respective Lassiter opinions disputed whether those
factors should be weighed against a presumption disfavoring appointed counsel
for one not threatened with loss of physical liberty, compare 452 U.S., at
31-32, with id., at 41, and n. 8 (first dissenting opinion), that concern is
irrelevant here.  Unlike the Court's right-to-counsel rulings, its decisions
concerning constitutional burdens of proof have not turned on any presumption
favoring any particular standard.  To the contrary, the Court has engaged in a
straightforward consideration of the factors identified in Eldridge to
determine whether a particular standard of proof in a particular proceeding satisfies
due process.

In Addington v. Texas, 441 U.S. 418 (1979), the Court, by a unanimous vote of the
participating Justices, declared: "The function of a standard of proof, as
that concept is embodied in the Due Process Clause and in the realm of
factfinding, is to  'instruct the factfinder concerning the degree of
confidence
conclusions for a particular type of adjudication.'" Id., at 423, quoting In re
Winship, 397
U.S. 358, 370 (1970) (Harlan, J., concurring).  Addington teaches that, in any
given proceeding, the minimum standard of proof tolerated by the due process
requirement reflects not only the weight of the private and public interests
affected, but also a societal judgment about how the risk of error should be
distributed between the litigants.

Thus, while private parties may be interested intensely in a civil dispute
over money damages, application of a "fair preponderance of the evidence"
standard indicates both society's "minimal concern with the outcome," and a
conclusion that the litigants should "share the risk of error in roughly equal
fashion." 441 U.S., at 423.  When the State brings a criminal action to deny a
defendant liberty or life, however, "the interests of the defendant are of such
magnitude that historically and without any explicit constitutional requirement they
have been protected by standards of proof designed to exclude as nearly as possible
the likelihood of an erroneous judgment." Ibid. The stringency of the
"beyond a reasonable doubt" standard bespeaks the "weight and gravity" of the
private interest affected, id., at 427, society's interest in avoiding
erroneous convictions, and a judgment that those interests together require that
"society impos[e] almost the entire risk of error upon itself." Id., at 424.  See
also In

The "minimum requirements [of procedural due process] being a matter of
federal law, they are not diminished by the fact that the State may have
specified its own procedures that it may deem adequate for determining the
preconditions to adverse official action." Vitek v. Jones, 445 U.S. 480, 491
(1980).  See also Logan v. Zimmerman Brush Co., ante, at 432.  Moreover, the
degree of proof required in a particular type of proceeding "is the kind of
question which has  traditionally been left to the judiciary to resolve." Woodby v.
INS, 385 U.S. 276, 284 (1966).  n8 "In cases involving individual rights,
whether criminal or civil, '[t]he standard of proof [at a minimum] reflects the value
society places on individual liberty.'" Addington v. Texas, 441 U.S., at
425, quoting Tippett v. Maryland, 436 F. 2d 1153, 1166 (CA4 1971) (opinion
concurring in part and dissenting in part), cert. dism'd sub nom. Murel v.
Baltimore City Criminal Court, 407 U.S. 355 (1972).

n8 The dissent charges, post, at 772, n. 2, that "this Court simply has no
role in establishing the standards of proof that States must follow in the
various judicial proceedings they afford to their citizens." As the dissent
properly concedes, however, the Court must examine a State's chosen standard to
determine whether it satisfies "the constitutional minimum of 'fundamental
fairness.'" Ibid. See, e.g., Addington v. Texas, 441 U.S. 418, 427, 433 (1979)
(unanimous decision of participating Justices) (Fourteenth Amendment requires at least
clear and convincing evidence in a civil proceeding brought under state
law to commit an individual involuntarily for an indefinite period to a state
mental hospital); In re Winship, 397 U.S. 358, 364 (1970) (Due Process Clause of the
Fourteenth Amendment protects the accused in state proceeding against
conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged).

This Court has mandated an intermediate standard of proof -- "clear and
convincing evidence" -- when the individual interests at stake in a state
proceeding are both "particularly important" and "more substantial than mere
loss of money." Addington v. Texas, 441 U.S., at 424.  Notwithstanding "the
state's 'civil labels and good intentions,'" id., at 427, quoting In re Winship,397
U.S., at 365-366, the Court has deemed this level of certainty necessary to preserve
fundamental fairness in a variety of government-initiated proceedings
that threaten the individual involved with "a significant deprivation of
liberty" or "stigma." 441 U.S., at 425, 426.  See, e.g., Addington v. Texas,
supra (civil commitment); Woodby v. INS, 385 U.S., at 285 (deportation); Chaunt v.
United States, 364 U.S. 350, 353 (1960) (denaturalization);  Schneiderman v.
United States, 320 U.S. 118, 125, 159 (1943) (denaturalization).

In Lassiter, to be sure, the Court held that fundamental fairness may be
maintained in parental rights termination proceedings even when some procedures are
mandated only on a case-by-case basis, rather than through rules of general
application.  452 U.S., at 31-32 (natural parent's right to court-appointed
counsel should be determined by the trial court, subject to appellate review).
But this Court never has approved case-by-case determination of the proper
standard of proof for a given proceeding.  Standards of proof, like other
"procedural due process rules[,] are shaped by the risk of error inherent in
the truth-finding process as applied to the generality of cases, not the rare
exceptions." Mathews v. Eldridge, 424 U.S., at 344 (emphasis added).  Since the
litigants and the factfinder must know at the outset of a given proceeding how
the risk of error will be allocated, the standard of proof necessarily must be
calibrated in advance.  Retrospective case-by-case review cannot preserve
fundamental fairness when a class of proceedings is governed by a
constitutionally defective evidentiary standard.  n9

n9 For this reason, we reject the suggestions of respondent and the dissent
that the constitutionality of New York's statutory procedures must be evaluated as a
"package." See Tr. of Oral Arg. 25, 36, 38.  Indeed, we would rewrite our
precedents were we to excuse a constitutionally defective standard of proof

the criminal context, for example, the Court has never assumed that "strict
substantive standards or special procedures compensate for a lower burden of
proof...." Post, at 773.  See In re Winship, 397 U.S., at 368.  Nor has the
Court treated appellate review as a curative for an inadequate burden of proof. See
Woodby v. INS, 385 U.S. 276, 282 (1966) ("judicial review is generally
limited to ascertaining whether the evidence relied upon by the trier of fact
was of sufficient quality and substantiality to support the rationality of the
judgment").

As the dissent points out, "the standard of proof is a crucial component of
legal process, the primary function of which is "to minimize the risk of
erroneous decisions.'" Post, at 785, quoting Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 13 (1979).  Notice, summons, right to counsel, rules of
evidence, and evidentiary hearings are all procedures to place information
before the factfinder.  But only the standard of proof "instruct[s] the
factfinder concerning the degree of confidence our society thinks he should
have in the correctness of factual conclusions" he draws from that information. In re
Winship, 397 U.S., at 370 (Harlan, J., concurring).  The statutory
provision of right to counsel and multiple hearings before termination cannot
suffice to protect a natural parent's fundamental liberty interests if the State
willing to tolerate undue uncertainty in the determination of the dispositive facts.

III

In parental rights termination proceedings, the private interest affected is
commanding; the risk of error from using a preponderance standard is
substantial; and the countervailing governmental interest favoring that standard is
comparatively slight.  Evaluation of the three Eldridge factors compels the
conclusion that use of a "fair preponderance of the evidence" standard in such
proceedings is inconsistent with due process.

A

"The extent to which procedural due process must be afforded the recipient
is influenced by the extent to which he may be 'condemned to suffer grievous
loss.'" Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970), quoting Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951)
(Frankfurter, J., concurring).  Whether the loss threatened by a particular
type of proceeding is sufficiently grave to warrant more than average certainty on
the part of the factfinder turns on both the nature of the private interest

Lassiter declared it "plain beyond the need for multiple citation" that a
natural parent's "desire for and right to 'the companionship, care, custody,
and management of his or her children'" is an interest far more precious than any
property  right.  452 U.S., at 27, quoting Stanley v. Illinois, 405 U.S., at
651.  When the State initiates a parental rights termination proceeding, it
seeks not merely to infringe that fundamental liberty interest, but to end it.
"If the State prevails, it will have worked a unique kind of deprivation....  A
parent's interest in the accuracy and justice of the decision to terminate his
or her parental status is, therefore, a commanding one." 452 U.S., at 27.

In government-initiated proceedings to determine juvenile delinquency, In re
Winship, supra; civil commitment, Addington v. Texas, supra; deportation, Woodby v. INS, supra; andalization, Chaunt v. United States, supra, and
Schneiderman v. United States, supra, this Court has identified losses of
individual liberty sufficiently serious to warrant imposition of an elevated
burden of proof.  Yet juvenile delinquency adjudications, civil commitment,
deportation, and denaturalization, at least to a degree, are all reversible
official actions.  Once affirmed on appeal, a New York decision terminating
parental rights is final and irrevocable.  See n. 1, supra. Few forms of state

Thus, the first Eldridge factor -- the private interest affected -- weights
heavily against use of the preponderance standard at a state-initiated
permanent neglect proceeding.  We do not deny that the child and his foster parents
are
also deeply interested in the outcome of that contest.  But at the factfinding
stage of the New York proceeding, the focus emphatically is not on them.

The factfinding does not purport -- and is not intended -- to balance the
child's interest in a normal family home against the parents' interest in
raising the child.  Nor does it purport to determine whether the natural parents or
the foster parents would provide the better home.  Rather, the factfinding
hearing pits the State directly against the parents.  The State alleges that
the natural parents are at fault.  Fam. Ct. Act @ 614.1.(d).  The questions
disputed and decided are  what the State did -- "made diligent efforts," @ 614.1.© 
and what the natural parents did not do -- "maintain contact with or plan for
the future of the child." @ 614.1.(d).The State marshals an array of public
resources to prove its case and disprove the parents' case.  Victory by the
State not only makes termination of parental rights possible; it entails a
judicial determination that the parents are unfit to raise their own children.
n10

n10 The Family Court Judge in the present case expressly refused to
terminate
22-29.

Nor is it clear that the State constitutionally could terminate a parent's
rights without showing parental unfitness.  See Quilloin v. Walcott, 434 U.S.
246, 255 (1978) ("We have little doubt that the Due Process Clause would be
offended '[i]f a State were to attempt to force the breakup of a natural family,over
the objections of the parents and their children, without some showing of
unfitness and for the sole reason that to do so was thought to be in the
children's best interest,'" quoting Smith v. Organization of Foster Families,
431 U.S. 816, 862-863 (1977) (Stewart, J., concurring in judgment)).

At the factfinding, the State cannot presume that a child and his parents
are adversaries.  After the State has established parental unfitness at that
initial proceeding, the court may assume at the dispositional stage that the interests
of the child and the natural parents do diverge.  See Fam. Ct. Act @ 631 (judge shall
make his order "solely on the basis of the best interests of the child,"
and thus has no obligation to consider the natural parents' rights in selecting
dispositional alternatives).  But until the State proves parental unfitness, the child
and his parents share a vital interest in preventing erroneous termination of their
natural relationship.  n11 Thus,  at the factfinding, the interests of 
and his natural parents coincide to favor use of error-reducing
procedures.

n11 For a child, the consequences of termination of his natural parents'
rights may well be far-reaching.  In Colorado, for example, it has been noted:
"The child loses the right of support and maintenance, for which he may
thereafter be dependent upon society; the right to inherit; and all other
rights inherent in the legal parent-child relationship; not just for [a limited]
period..., but forever." In re K.S., 33 Colo. App. 72, 76, 515 P. 2d 130, 133
(1973).

Some losses cannot be measured.  In this case, for example, Jed <Santosky>
was removed from his natural parents' custody when he was only three days old;
the judge's finding of permanent neglect effectively foreclosed the possibility that
Jed would ever know his natural parents.
However substantial the foster parents' interests may be, cf.  Smith v.
Organization of Foster Families, 431 U.S., at 845-847, they are not implicated
directly in the factfinding stage of a state-initiated permanent neglect
proceeding against the natural parents.  If authorized, the foster parents may

their own permanent neglect proceeding.  Fam. Ct. Act @ 1055(d); Soc. Serv. Law @
384-6.3(b), 392.7.©.  Alternatively, the foster parents can make their case for
custody at the dispositional stage of a state-initiated proceeding, where
the judge already has decided the issue of permanent neglect and is focusing on the
placement that would serve the child's best interests.  Fam. Ct. Act @@ 623,631.  For
the foster parents, the State's failure to prove permanent neglect may prolong the
delay and uncertainty until their foster child is freed for
adoption.  But for the natural parents, a finding of permanent neglect can cut
off forever their rights in their child.  Given this disparity of consequence,
we have no difficulty finding that the balance of private interests strongly
favors heightened procedural protections.

B

Under Mathews v. Eldridge, we next must consider both the risk of erroneous
deprivation of private interests resulting from use of a "fair preponderance"
standard and the likelihood that a higher evidentiary standard would reduce that risk. 
See 424 U.S., at 335.  Since the factfinding phase of a permanent neglect proceeding
is an adversary contest between the State and the natural parents,
the relevant question is whether a preponderance standard fairly allocates the

In New York, the factfinding stage of a state-initiated permanent neglect
proceeding bears many of the indicia of a criminal trial.  Cf.  Lassiter v.
Department of Social Services, 452 U.S., at 42-44 (first dissenting opinion);
Meltzer v. C. Buck LeCraw & Co., 402 U.S. 954, 959 (1971) (Black, J., dissenting from
denial of certiorari).  See also dissenting opinion, post, at 777-779
(describing procedures employed at factfinding proceeding).  The Commissioner
of social Services charges the parents with permanent neglect.  They are served by
summons.  Fam. Ct. Act @@ 614, 616, 617.  The factfinding hearing is conducted
pursuant to formal rules of evidence.  @ 624.  The State, the parents, and the
child are all represented by counsel.  @@ 249, 262.  The State seeks to
establish a series of historical facts about the intensity of its agency's
efforts to reunite the family, the infrequency and insubstantiality of the
parents' contacts with their child, and the parents' inability or unwillingness to
formulate a plan for the child's future.  The attorneys submit documentary
evidence, and call witnesses who are subject to cross-examination.  Based on
all the evidence, the judge then determines whether the State has proved the
statutory elements of permanent neglect by a fair preponderance of the evidence.@
622.

At such a proceeding, numerous factors combine to magnify the risk of
erroneous factfinding.  Permanent neglect proceedings employ imprecise
substantive standards that leave determinations unusually open to the
subjective values of the judge.  See Smith v. Organization of Foster Families, 431
U.S., at835, n. 36.  In appraising the nature and quality of a complex series of
encounters among the agency, the parents, and the child, the court possesses
unusual discretion to underweigh probative facts that might favor the parent.
n12  Because parents subject to termination proceedings are often poor,
uneducated, or members of minority groups, id., at 833-835, such proceedings are often
vulnerable to judgments based on cultural or class bias.

n12 For example, a New York court appraising an agency's "diligent efforts"
to provide the parents with social services can excuse efforts not made on the
grounds that they would have been "detrimental to the best interests of the
child." Fam. Ct. Act @ 614.1.©.  In determining whether the parent
"substantially and continuously or repeatedly" failed to "maintain contact
with... the child," @ 614.1.(d), the judge can discount actual visits or
communications on the grounds that they were insubstantial or "overtly
demonstrat[ed] a lack of affectionate and concerned parenthood." Soc. Serv. Law @
384-b.7.(b).  When determining whether the parent planned for the child's
future, the judge can reject as unrealistic plans based on overly optimistic
estimates of physical or financial ability.  @ 384-b.7.©.  See also
dissenting opinion, post, at 779-780, nn. 8 and 9.

The State's ability to assemble its case almost inevitably dwarfs the
parents' ability to mount a defense.  No predetermined limits restrict the sums an
agency may spend in prosecuting a given termination proceeding.  The State's attorney
usually will be expert on the issues contested and the procedures
employed at the factfinding hearing, and enjoys full access to all public
records concerning the family.  The State may call on experts in family
relations, psychology, and medicine to bolster its case.  Furthermore, the
primary witnesses at the hearing will be the agency's own professional
caseworkers whom the State has empowered both to investigate the family
situation and to testify against the parents.  Indeed, because the child is
already in agency custody, the State even has the power to shape the historical
events that form the basis for termination.  n13

n13 In this case, for example, the parents claim that the State sought court
orders denying them the right to visit their children, which would have
prevented them from maintaining the contact required by Fam. Ct. Act.  @
614.1.(d).  See Brief for Petitioners 9.  The parents further claim that the

superfluous as proof of the agency's "diligent efforts" and their own "failure
to plan" for the children's future.  Id., at 10-11.

We need not accept these statements as true to recognize that the State's
unusual ability to structure the evidence increases the risk of an erroneous
factfinding.  Of course, the disparity between the litigants' resources will be
vastly greater in States where there is no statutory right to court-appointed
counsel.  See Lassiter v. Department of Social Services, 452 U.S. 18, 34 (1981) (only
33 States and the District of Columbia provide that right by statute).

The disparity between the adversaries' litigation resources is matched by a
striking asymmetry in their litigation options.  Unlike criminal defendants,
natural parents have no "double jeopardy" defense against repeated state
termination efforts.  If the State initially fails to win termination, as New
York did here, see n. 4, supra, it always can try once again to cut off the
parents' rights after gathering more or better evidence.  Yet even when the
parents have attained the level of fitness required by the State, they have no
similar means by which they can forestall future termination efforts.

Coupled with a "fair preponderance of the evidence" standard, these factors
create a significant prospect of erroneous termination.  A standard of proof

quality, of the evidence may misdirect the factfinder in the marginal case.  See in re
Winship, 397 U.S., at 371, n. 3 (Harlan, J., concurring).  Given the
weight of the private interests at stake, the social cost of even occasional
error is sizable.

Raising the standard of proof would have both practical and symbolic
consequences.  Cf.  Addington v. Texas, 441 U.S., at 426.  The Court has long
considered the heightened standard of proof used in criminal prosecutions to be "a
prime instrument for reducing the risk of convictions resting on factual
error." In re Winship, 397 U.S., at 363.  An elevated standard of proof in a
parental rights termination proceeding would alleviate "the possible risk that
a fact finder might decide to [deprive] an individual based solely on a few
isolated instances of unusual conduct [or]... idiosyncratic behavior." Addington v.
Texas, 441 U.S., at 427.  "Increasing the burden of proof is one way to
impress the factfinder with the  importance of the decision and thereby
perhaps to reduce the chances that inappropriate" terminations will be ordered. Ibid.

The Appellate Division approved New York's preponderance standard on the
ground that it properly "balanced rights possessed by the child... with those of the
natural parents...." 75 App. Div. 2d, at 910, 427 N.Y.S. 2d, at 320.  By so
saying, the court suggested that a preponderance standard properly allocates the risk
of error b

ld.  n15 Yet we have noted above that the parents and the child share an interest in
avoiding erroneous termination.  Even
accepting the court's assumption, we cannot agree with its conclusion that a
preponderance standard fairly distributes the risk of error between parent and
child.  Use of that standard reflects the judgment that society is nearly
neutral between erroneous termination of parental rights and erroneous failure
to terminate those rights.  Cf.  In re Winship, 397 U.S., at 371 (Harlan, J.,
concurring).  For the child, the likely consequence of an erroneous failure to
terminate is preservation of  an uneasy status quo.  n16 For the natural
parents, however, the consequence of an erroneous termination is the
unnecessary destruction of their natural family.  A standard that allocates the risk
of
error nearly equally between those two outcomes does not reflect properly their
relative severity.

n15 This is a hazardous assumption at best.  Even when a child's natural home is
imperfect, permanent removal from that home will not necessarily improve his
welfare.  See, e.g., Wald, State Intervention on Behalf of "Neglected" Children:A
Search for Realistic Standards, 27 Stan. L. Rev. 985, 993 (1975) ("In fact,
under current practice, coercive intervention frequently results in placing a
child in a more detrimental situation than he would be in without
intervention").

Nor does termination of parental rights necessarily ensure adoption.  See
Brief for Community Action for Legal Services, Inc., et al. as Amici Curiae
22-23.  Even when a child eventually finds an adoptive family, he may spend
years moving between state institutions and "temporary" foster placements after his
ties to his natural parents have been severed.  See Smith v. Organization of foster Families, 431 U.33-838 (describing the "limbo" of the New York
foster care system).

n16 When the termination proceeding occurs, the child is not living at his
natural home.  A child cannot be adjudicated "permanently neglected" until, "fora
period of more than one year," he has been in "the care of an authorized
agency." Soc. Serv. Law @ 384-b.7.(a); Fam. Ct. Act @ 614.1.(d).  See also

Under New York law, a judge has ample discretion to ensure that, once removed from
his natural parents on grounds of neglect, a child will not return to a
hostile environment.  In this case, when the State's initial termination effort
failed for lack of proof, see n. 4, supra, the court simply issued orders under Fam.
Ct. Act @ 1055(b) extending the period of the child's foster home
placement.  See App. 19-20.  See also Fam. Ct. Act @ 632(b) (when State's
permanent neglect petition is dismissed for insufficient evidence, judge
retains jurisdiction to reconsider underlying orders of placement); @ 633 (judge may
suspend judgment at dispositional hearing for an additional year).

C

Two state interests are at stake in parental rights termination proceedings
-- a parens patriae interest in preserving and promoting the welfare of the
child and a fiscal and administrative interest in reducing the cost and burden
of such proceedings.  A standard of proof more strict than preponderance of the
evidence is consistent with both interests.

"Since the State has an urgent interest in the welfare of the child, it
shares the parent's interest in an accurate and just decision" at the
factfinding proceeding.  Lassiter v. Department of Social Services, 452 U.S.,
at
permanent home.  See Soc. Serv. Law @ 384-b.1.(a)(i) (statement of legislative
findings and intent).  Yet while there is still reason to believe that
positive,nurturing parent-child relationships exist, the parens patriae interest
favors
preservation, not  severance, of natural familial bonds.  n17 @ 384
b.1.(a)(ii)."[T]he State registers no gain towards its declared goals when it
separates
children from the custody of fit parents." Stanley v. Illinois, 405 U.S., at
652.

n17 Any parens patriae interest in terminating the natural parents' rights
arises only at the dispositional phase, after the parents have been found unfit.

The State's interest in finding the child an alternative permanent home
arises only "when it is clear that the natural parent cannot or will not provide a
normal family home for the child." Soc. Serv. Law @ 384-b.1.(a)(iv)
(emphasis added).  At the factfinding, that goal is served by procedures that
promote an accurate determination of whether the natural parents can and will
provide a normal home.

Unlike a constitutional requirement of hearings, see, e.g., Mathews v.
Eldridge, 424 U.S.,a t 347, or court-appointed counsel, a stricter standard of

upon the State.  As we have observed, 35 States already have adopted a higher
standard by statute or court decision without apparent effect on the speed,
form, or cost of their factfinding proceedings.  See n. 3, supra.

Nor would an elevated standard of proof create any real administrative
burdens for the State's factfinders.  New York Family Court judges already are
familiar with a higher evidentiary standard in other parental rights
termination proceedings not involving permanent neglect.  See Soc. Serv. Law @ 384
b.3.(g), 384-b.4.©, and 384-b.4.(e) (requiring "clear and convincing proof" before
parental rights may be terminated for reasons of mental illness and mental
retardation or severe and repeated child abuse).  New York also demands at least clear
and convincing evidence in proceedings of far less moment than parental
rights termination proceedings.  See, e.g., N.Y. Veh. & Traf. Law @ 227.1
(McKinney Supp. 1981) (requiring the State to prove traffic  infractions by
"clear and convincing evidence") and In re Rosenthal v. Hartnett, 36 N.Y. 2d
269, 326 N.E. 2d 811 (1975); see also Ross v. Food Specialties, Inc., 6 N.Y. 2d 336,
341, 160 N.E. 2d 618, 620 (1959) (requiring "clear, positive and convincing evidence"
for contract reformation).  We cannot believe that it would burden the
to require that its factfinders have the same factual certainty
when terminating the parent-child relationship as they must have to suspend a
driver's license.

IV

The logical conclusion of this balancing process is that the "fair
preponderance of the evidence" standard prescribed by Fam. Ct. Act @ 622
violates the Due Process Clause of the Fourteenth Amendment.  n18 The Court
noted in Addington: 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." 441 U.S., at 427.
Thus, at a parental rights termination proceeding, a near-equal allocation of
risk between the parents and the State is constitutionally intolerable.  The
next question, then, is whether a "beyond a reasonable doubt" or a "clear and
convincing" standard is constitutionally mandated.

n18 The dissent's claim that today's decision "will inevitably lead to the
federalization of family law," post, at 773, is, of course, vastly overstated.
As the dissent properly notes, the Court's duty to "refrai[n] from interfering
with state answers to domestic relations questions" has never required "that
the
at 771.

In Addington, the Court concluded that application of a reasonable-doubt
standard is inappropriate in civil commitment proceedings for two reasons --
because of our hesitation to apply that unique standard "too broadly or casually in
non-criminal cases," id., at 428, and because the psychiatric evidence
ordinarily adduced at commitment proceedings is  rarely susceptible to proof
beyond a reasonable doubt.  Id., at 429-430, 432-433.  To be sure, as has been
noted above, in the Indian Child Welfare Act of 1978, Pub. L. 95-608, @ 102(f), 92
Stat. 3072, 25 U.S.C.  @ 1912(f) (1976 ed., Supp. IV), Congress requires
"evidence beyond a reasonable doubt" for termination of Indian parental rights,
reasoning that "the removal of a child from the parents is a penalty as great
[as], if not greater, than a criminal penalty...." H.R. Rep. No. 9-1386, p. 22
(1978).  Congress did not consider, however, the evidentiary problems that would arise
if proof beyond a reasonable doubt were required in all state initiated
parental rights termination hearings.

Like civil commitment hearings, termination proceedings often require the
factfinder to evaluate medical and psychiatric testimony, and to decide issues
difficult to prove to a level of absolute certainty, such as lack of parental
motive, absence of affection between parent and child, and failure of parental

30; id., at 44-46 (first dissenting opinion) (describing issues raised in
state termination proceedings).  The substantive standards applied vary from
State to State.  Although Congress found a "beyond a reasonable doubt" standard
proper in one type of parental rights termination case, another legislative body might
well conclude that a reasonable-doubt standard would erect an unreasonable barrier to
state efforts to free permanently neglected children for adoption.

A majority of the States have concluded that a "clear and convincing
evidence" standard of proof strikes a fair balance between the rights of the
natural parents and the State's legitimate concerns.  See n. 3, supra. We hold
that such a standard adequately conveys to the factfinder the level of
subjective certainty about his factual conclusions necessary to satisfy due
process.  We further hold that determination of the precise burden equal to or
greater than that standard  is a matter of state law properly left to state
legislatures and state courts.  Cf.  Addington v. Texas, 441 U.S., at 433.

We, of course, express no view on the merits of petitioners' claims.  n19 At a
hearing conducted under a constitutionally proper standard, they may or may
not prevail.  Without deciding the outcome under any of the standards we have
approved, we vacate the judgment of the Appellate Division and remand the case

n19 Unlike the dissent, we carefully refrain from accepting as the "facts of this
case" findings that are not part of the record and that have been found
only to be more likely true than not.

It is so ordered.

DISSENTBY: REHNQUIST

DISSENT:
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE
O'CONNOR join, dissenting.

I believe that few of us would care to live in a society where every aspect
of life was regulated by a single source of law, whether that source be this
Court or some other organ of our complex body politic.  But today's decision
certainly moves us in that direction.  By parsing the New York scheme and
holding one narrow provision unconstitutional, the majority invites further
federal-court intrusion into every facet of state family law.  If ever there
were an area in which federal courts should heed the admonition of Justice

domestic relations.  This area has been left to the States from time
immemorial, and not without good reason.

n1 New York Trust Co.  v. Eisner, 256 U.S. 345, 349 (1921).

Equally as troubling is the majority's due process analysis.  The Fourteenth
Amendment guarantees that a State will treat individuals with "fundamental
fairness" whenever its actions infringe their protected liberty or property
interests.  By adoption of the procedures relevant to this case, New  York has
created an exhaustive program to assist parents in regaining the custody of
their children and to protect parents from the unfair deprivation of their
parental rights.  And yet the majority's myopic scrutiny of the standard of
proof blinds it to the very considerations and procedures which make the New
York scheme "fundamentally fair."

I

State intervention in domestic relations has always been an unhappy but
necessary feature of life in our organized society.  For all of our experience
in this area, we have found no fully satisfactory solutions to the painful
problem of child abuse and neglect.  We have found, however, that leaving the

and promising progress.

Throughout this experience the Court has scrupulously refrained from
interfering with state answers to domestic relations questions.  "Both theory
and the precedents of this Court teach us solicitude for state interests,
particularly in the field of family and family-property arrangements." United
States v. Yazell, 382 U.S. 341, 352 (1966).  This is not to say that the Court
should blink at clear constitutional violations in state statutes, but rather
that in this area, of all areas, "substantial weight must be given to the
good-faith judgments of the individuals [administering a program]... that the
procedures they have provided assure fair consideration of the... claims of
individuals." Mathews v. Eldridge, 424 U.S. 319, 349 (1976).

This case presents a classic occasion for such solicitude.  As will be seen
more fully in the next part, New York has enacted a comprehensive plan to aid
marginal parents in regaining the custody of their child.  The central purpose
of the New York plan is to reunite divided families.  Adoption of the

to balance the interest of  parents against the legitimate interests of the
child and the State.  These earnest efforts by state officials should be given
weight in the Court's application of due process principles.  "Great
constitutional provisions must be administered with caution.  Some play must be
allowed for the joints of the machine, and it must be remembered that
legislatures are ultimate guardians of the liberties and welfare of the people
in quite as great a degree as the courts." Missouri, Kan. & Tex. R. Co.  v. May,194
U.S. 267, 270 (1904).  n2

n2 The majority asserts that "the degree of proof required in a particular
type of proceeding 'is the kind of question which has traditionally been left to the
judiciary to resolve.' Woodby v. INS, 385 U.S. 276, 284 (1966)." Ante, at
755-756.  To the extent that the majority seeks, by this statement, to place
upon the federal judiciary the primary responsibility for deciding the
appropriate standard of proof in state matters, it arrogates to itself a
responsibility wholly at odds with the allocation of authority in our
federalist system and wholly unsupported by the prior decisions of this Court.
In Woodby v. INS, 385 U.S. 276 (1966), the Court determined the proper standard of
proof to be applied under a federal statute, and did so only after concluding that
"Congress ha[d] not addressed itself to the question of what degree of

examination for the constitutional minimum of "fundamental fairness" -- which
clearly is satisfied by the New York procedures at issue in this case -- this
Court simply has no role in establishing the standards of proof that States
must follow in the various judicial proceedings they afford to their citizens.

The majority may believe that it is adopting a relatively unobtrusive means
of ensuring that termination proceedings provide "due process of law." In fact, however, fixing the  of proof as a matter of federal constitutional law will
only lead to further federal-court intervention in state schemes.  By
holding that due process requires proof by clear and convincing evidence the
majority surely cannot mean that any state scheme passes constitutional muster
so long as it applies that standard of proof.  A state law permitting
termination of parental rights upon a showing of neglect by clear and convincing evidence certainly t be  acceptable to the majority if it provided
no
procedures other than one 30-minute hearing.  Similarly, the majority probably
would balk at a state scheme that permitted termination of parental rights on
a clear and convincing showing merely that such action would be in the best
interests of the child.  See Smith v. Organization of Foster Families, 431 U.S. 816,
862-863 (1977) (Stewart, J., concurring in judgment).

After fixing the standard of proof, therefore, the majority will be forced
to
Having in this case abandoned evaluation of the overall effect of a scheme, and with
it the possibility of finding that strict substantive standards or special procedures
compensate for a lower burden of proof, the majority's approach will inevitably lead
to the federalization of family law.  Such a trend will only
thwart state searches for better solutions in an area where this Court should
encourage state experimentation.  "It is one of the happy incidents of the
federal system that a single courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without risk to
the rest of the country.  This Court has the power to prevent an experiment."
New State Ice Co.  v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting).  It should not do so in the absence of a clear constitutional
violation.  As will be seen in the next part, no clear constitutional violation has
occurred in this case.

II

As the majority opinion notes, petitioners are the parents of five children, three
of whom were removed from petitioners' care on or before August 22, 1974. During the
next four and one-half years, those three children were in the
custody of the State and in the care of foster homes or institutions, and the

children's return.  Those efforts were  unsuccessful, however, and on April 10, 1979,
the New York Family Court for Ulster County terminated petitioners'
parental rights as to the three children removed in 1974 or earlier.  This
termination was preceded by a judicial finding that petitioners had failed to
plan for the return and future of their children, a statutory category of
permanent neglect.  Petitioners now contend, and the Court today holds, that
they were denied due process of law, not because of a general inadequacy of
procedural protections, but simply because the finding of permanent neglect was made
on the basis of a preponderance of the evidence adduced at the termination hearing.

It is well settled that "[t]he requirements of procedural due process apply
only to the deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564,
569 (1972).  In determining whether such liberty or property interests are
implicated by a particular government action, "we must look not to the 'weight' but
to the nature of the interest at stake." Id., at 571 (emphasis in original).I do not
disagree with the majority's conclusion that the interest of parents in
relationship with their children is sufficiently fundamental to come
within the finite class of liberty interests protected by the Fourteenth
Amendment.  See Smith v. Organization of Foster Families, supra, at 862-863
(Stewart, J., concurring in judgment).  "Once it is determined that due process
applies, [however,] the question remains what process is due." Morrissey v.
Brewer, 408 U.S. 471, 481 (1972).  It is the majority's answer to this question with
which I disagree.

A

Due process of law is a flexible constitutional principle.  The requirements which
it imposes upon governmental actions vary with the situations to which it applies. 
As the Court previously has recognized, "not all situations calling
for  procedural safeguards call for the same kind of procedure." Morrissey v.
Brewer, supra, at 481.  See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12
(1979); Mathews v. Eldridge, 424 U.S., at 334; Cafeteria Workers v.
McElroy, 367 U.S. 886, 895 (1961).  The adequacy of a scheme of procedural
protections cannot, therefore, be determined merely by the application of
general principles unrelated to the peculiarities of the case at hand.

Given this flexibility, it is obvious that a proper due process inquiry
cannot be made by focusing upon one narrow provision of the challenged
statutory
constitutionally adequate protections into a particular government action.
Courts must examine all procedural protections offered by the State, and must
assess the cumulative effect of such safeguards.  As we have stated before,
courts must consider "the fairness and reliability of the existing...
procedures" before holding that the Constitution requires more.  Mathews v.
Eldridge, supra, at 343.  Only through such a broad inquiry may courts
determine whether a challenged governmental action satisfies the due process
requirement
of "fundamental fairness." n3 In some instances, the Court has even looked to
nonprocedural restraints on official action in determining whether the
deprivation of a protected interest was effected without due process of law.
E.g., Ingraham v.  Wright, 430 U.S. 651 (1977).  In this case, it is just such abroad
look at the New York scheme which reveals its fundamental fairness.  n4

n3 Although, as the majority states, we have held that the minimum
requirements of procedural due process are a question of federal law, such a
holding does not mean that the procedural protections afforded by a State will
be inadequate under the Fourteenth Amendment.  It means simply that the adequacy of
the state-provided process is to be judged by constitutional standards --
standards which the majority itself equates to "fundamental fairness." Ante, at
754.  I differ, therefore, not with the majority's statement that the
requirements of due process present a federal question, but with its apparent
assumption that the presence of "fundamental fairness" can be ascertained by an
examination which completely disregards the plethora of protective procedures
accorded parents by New York law.

n4 The majority refuses to consider New York's procedure as a whole, stating that
"[t]he statutory provision of right to counsel and multiple hearings
before termination cannot suffice to protect a natural parent's fundamental liberty
interests if the State is willing to tolerate undue uncertainty in the
determination of the dispositive facts." Ante, at 758, n. 9.  Implicit in this
statement is the conclusion that the risk of error may be reduced to
constitutionally tolerable levels only by raising the standard of proof -- that other
procedures can never eliminate "undue uncertainty" so long as the standard of proof
remains too low.  Aside from begging the question of whether the risks of error
tolerated by the State in this case are "undue," see infra, at 785-791,this 
conclusion denies the flexibility that we have long recognized in the
principle of due process; understates the error reducing power of procedural
protections such as the right to counsel, evidentiary hearings, rules of
evidence, and appellate review; and establishes the standard of proof as the
since qua non of procedural due process.

The termination of parental rights on the basis of permanent neglect can

Law(SSL) @ 384-b.3.(d) (McKinney Supp. 1981-1982).  Before a petition for
permanent termination can be filed in that court, however, several other events must
first occur.

The Family Court has jurisdiction only over those children who are in the
care of an authorized agency.  N.Y. Family Court Act (FCA) @ 614.1.(b) (McKinney1975
and Supp. 1981-1982).  Therefore, the children who are the subject of a
termination petition must previously have been removed from their parents' home on a
temporary basis.  Temporary removal of a child can occur in one of two
ways.  The parents may consent to the removal, FCA @ 1021, or, as occurred in
this case, the Family Court can order the removal pursuant to a finding that the child
is abused or neglected.  n5 FCA @@ 1051, 1952.

n5 An abused child is one who has been subjected to intentional physical
injury "which causes or creates a substantial risk of death, or serious or
protracted disfigurement, or protracted impairment of physical or emotional
health or protracted loss or impairment of the function of any bodily organ."

category.  A neglected child is one "whose physical, mental or emotional
condition has been impaired or is in imminent danger of becoming impaired as a
result of the failure of his parent... to exercise a minimum degree of care in
supplying the child with adequate food, clothing, shelter or education." FCA @
1012(f)(i)(A).

Court proceedings to order the temporary removal of a child are initiated by a
petition alleging abuse or neglect, filed by a state-authorized child
protection agency or by a person designated by the court.  FCA @@ 1031, 1032.
Unless the court finds that exigent circumstances require removal of the child
before a petition may be filed and a hearing held, see FCA @ 1022, the order of
temporary removal results from a "dispositional hearing" conducted to determine the
appropriate form of alternative care.  FCA @ 1045.See also FCA @ 1055. 
This"dispositional hearing" can be held only after the court, at a separate
"fact-finding hearing," has found the child to be abused or neglected within
the specific statutory definition of those terms.  FCA @@ 1012, 1044, 1051.
Parents subjected to temporary removal proceedings are provided extensive
procedural protections.  A summons and copy of the temporary removal petition
must be served upon the parents within two days of issuance by the court, FCA @@1035,
1036, and the parents may, at their own request, delay the commencement of
factfinding hearing for three days after service of the summons.  FCA @
1048.  n6 The fact-finding hearing may not commence without a determination by
the court that the parents are present at the hearing and have been served with the
petition.  FCA @ 1041.  At the hearing itself, "only competent, material and relevant
evidence may be admitted," with some enumerated exceptions  for
particularly probative evidence.  FCA @ 1046(b)(ii).  In addition, indigent
parents are provided with an attorney to represent them at both the factfinding and
dispositional hearings, as well as at all other proceedings related to
temporary removal of their child.  FCA @ 262(a)(i).

n6 The relatively short time between notice and commencement of hearing
provided by @ 1048 undoubtedly reflects the State's desire to protect the child.These
proceedings are designed to permit prompt action by the court when the
child is threatened with imminent and serious physical, mental, or emotional
harm.

An order of temporary removal must be reviewed every 18 months by the Family
Court.  SSL @ 392.2.  Such review is conducted by hearing before the same judge who
ordered the temporary removal, and a notice of the hearing, including a
statement of the dispositional alternatives, must be given to the parents at

removal action, the parents must be parties to the proceedings, ibid., and are
entitled to court-appointed counsel if indigent.  FCA @ 262(a).

One or more years after a child has been removed temporarily from the
parents' home, permanent termination proceedings may be commenced by the filing of a
petition in the court which ordered the temporary removal.  The petition
must be filed by a state agency or by a foster parent authorized by the court,
SSL @ 384-b.3.(b), and must allege that the child has been permanently neglected by
the parents.  SSL @ 384-b.3.(d).  n7 Notice of the petition and the
dispositional proceedings must be served upon the parents at least 20 days
before the commencement of the hearing, SSL @ 384-b.3.(e), must inform them of
the potential consequences of the hearing, ibid., and must inform them "of their right
to the assistance of counsel, including [their] right... to have counsel
assigned by the court [if] they are financially unable to obtain counsel." Ibid.See
also FCA @ 262.

n7 Permanent custody also may be awarded by the Family Court if both parents are
deceased, the parents abandoned the child at least six months prior to the
termination proceedings, or the parents are unable to provide proper and
adequate care by reason of mental illness or mental retardation.  SSL @

As in the initial removal proceedings, two hearings are held in consideration of
the permanent termination petition.   SSL @ 384-b.3.(f).  At the factfinding hearing,
the court must determine, by a fair preponderance of the evidence,
whether the child has been permanently neglected.  SSL @ 384-b.3.(g).  "Only
competent, material and relevant evidence may be admitted in a fact-finding
hearing." FCA @ 624.  The court may find permanent neglect if the child is in
the care of an authorized agency or foster home and the parents have "failed fora
period of more than one year... substantially and continuously or repeatedly
to maintain contact with or plan for the future of the child, although
physically and financially able to do so." SSL @ 384-b.7.(a).  n8 In addition,
because the State considers its "first obligation" to be the reuniting of the
child with its natural parents, SSL @ 384-b.1.(iii), the court must also find
that the supervising state agency has, without success, made "diligent efforts
to encourage and strengthen the parental relationship." SSL @ 384-b.7.(a)
(emphasis added).  n9

n8 As to maintaining contact with the child, New York law provides that
"evidence of insubstantial or infrequent contacts by a parent with his or her
child shall not, of itself, be sufficient as a matter of law to preclude a
determination that such child is a permanently neglected child.  A visit or

overtly demonstrate a lack of affectionate and concerned parenthood shall not
be deemed a substantial contact." SSL @ 384-b.7.(b).

Failure to plan for the future of the child means failure "to take such steps as may be necessaryide an adequate, stable home and parental care for
the child within a period of time which is reasonable under the financial
circumstances available to the parent.  The plan must be realistic and feasible,and
good faith effort shall not, of itself, be determinative.  In determining
whether a parent has planned for the future of the child, the court may consider the
failure of the parent to utilize medical, psychiatric, psychological and
other social and rehabilitative services and material resources made available
to such parent." SSL @ 384-b.7.©.

n9 "Diligent efforts" are defined under New York law to "mean reasonable
attempts by an authorized agency to assist, develop and encourage a meaningful
relationship between the parent and child, including but not limited to:

"(1) consultation and cooperation with the parents in developing a plan for
appropriate services to the child and his family;

"(2) making suitable arrangements for the parents to visit the child;

"(3) provision of services and other assistance to the parents so that

ameliorated; and

"(4) informing the parents at appropriate intervals of the child's progress,
development and health." SSL @ 384-b.7.(f).

Following the factfinding hearing, a separate, dispositional hearing is held to
determine what course of action would be in "the best interests of the
child." FCA @ 631.A finding of permanent neglect at the factfinding hearing,
although necessary to a termination of parental rights, does not control the
court's order at the dispositional hearing.  The court may dismiss the
petition,suspend judgment on the petition and retain jurisdiction for a period of one
year in order to provide further opportunity for a reuniting of the family, or
terminate the parents' right to the custody and care of the child.  FCA @@
631-634.  The court must base its decision solely upon the record of "material
and relevant evidence" introduced at the dispositional hearing, FCA @ 624; In
re"Female" M., 70 App. Div. 2d 812, 417 N.Y.S. 2d 482 (1979), and may not
entertain any presumption that the best interests of the child "will be promoted by
any particular disposition." FCA @ 631.

As petitioners did in this case, parents may appeal any unfavorable decision to
the Appellate Division of the New York Supreme Court.  Thereafter, review maybe
sought in the New York Court of Appeals and, ultimately, in this Court if a
federal question is properly presented.

As this description of New York's termination procedures demonstrates, the
State seeks not only to protect the interests of parents in rearing their own
children, but also to assist and encourage parents who have lost custody of
their children to reassume their rightful role.  Fully understood, the New York
system is a comprehensive program to aid parents such as petitioners.  Only as a last
resort, when "diligent efforts" to reunite the family have failed, does New york authorize the termif parental rights.  The procedures for
termination of those relationships which cannot be aided and which threaten
permanent injury to the child, administered by a judge who has supervised the
case from the first temporary removal through the final termination, cannot be
viewed as fundamentally unfair.  The facts of this case demonstrate the
fairness of the system.

The three children to which this case relates were removed from petitioners' custody in 1973 and fore petitioners' other two children were born. 
The removals were made pursuant to the procedures detailed above and in response to
what can only be described as shockingly abusive treatment.  n10 At the

petitioners were represented by counsel, and allowed the Ulster County
Department of Social Services (Department) to take custody of the three
children.

n10 Tina Apel, the oldest of petitioners' five children, was removed from
their custody by court order in November 1973 when she was two years old.
Removal proceedings were commenced in response to complaints by neighbors and
reports from a local hospital that Tina had suffered injuries in petitioners'
home including a fractured left femur, treated with a homemade splint; bruises
on the upper arms, forehead, flank, and spine; and abrasions of the upper leg.
The following summer John <Santosky> III, petitioners' second oldest child, was also
removed from petitioners' custody.  John, who was less than one year old at the time,
was admitted to the hospital suffering malnutrition, bruises on the
eye and forehead, cuts on the foot, blisters on the hand, and multiple pin
pricks on the back.  Exhibit to Brief for Respondent <Kramer> 1-5.  Jed
<Santosky,> the third oldest of petitioners' children, was removed from his
parents' custody when only three days old as a result of the abusive treatment
of the two older children.

Temporary removal of the children was continued at an evidentiary hearing

written opinion concluding that petitioners were unable to resume their
parental responsibilities due to personality disorders.  Unsatisfied with the progress
petitioners were making, the court also  directed the Department to reduce to
writing the plan which it had designed to solve the problems at petitioners'
home and reunite the family.

A plan for providing petitioners with extensive counseling and training
services was submitted to the court and approved in February 1976.  Under the
plan, petitioners received training by a mother's aide, a nutritional aide, and a
public health nurse, and counseling at a family planning clinic.  In addition,the
plan provided psychiatric treatment and vocational training for the father, and
counseling at a family service center for the mother.  Brief for Respondent <Kramer>
1-7.  Between early 1976 and the final termination decision in April
1979, the State spent more than $15,000 in these efforts to rehabilitate
petitioners as parents.  App. 34.

Petitioners' response to the State's effort was marginal at best.  They
wholly disregarded some of the available services and participated only
sporadically in the others.  As a result, and out of growing concern over the
length of the children's stay in foster care, the Department petitioned in

that the children could be adopted by other families.  Although the Family Court
recognized that petitioners' reaction to the State's efforts was generally
"nonresponsive, even hostile," the fact that they were "at least superficially
cooperative" led it to conclude that there was yet hope of further improvement
and an eventual reuniting of the family.  Exhibit to Brief for Respondent
<Kramer> 618.  Accordingly, the petition for permanent termination was
dismissed.

Whatever progress petitioners were making prior to the 1976 termination
hearing, they made little or no progress thereafter.  In October 1978, the
Department again filed a termination petition alleging that petitioners had
completely failed to plan for the children's future despite the considerable
efforts rendered in their behalf.  This time, the Family Court agreed.  The
court found that petitioners had "failed in any meaningful way to take
advantage of the many social  and rehabilitative services that have not only
been made available to them but have been diligently urged upon them." App. 35. In
addition, the court found that the "infrequent" visits "between the parents
and their children were at best superficial and devoid of any real emotional

holds out any hope that [petitioners] may ever become financially self
sufficient or emotionally mature enough to be independent of the services of
social agencies.  More than a reasonable amount of time has passed and still, in the
words of the case workers, there has been no discernible forward movement.
At some point in time, it must be said, 'enough is enough.'" Id., at 36.

In accordance with the statutory requirements set forth above, the court
found that petitioners' failure to plan for the future of their children, who
were then seven, five, and four years old and had been out of petitioners'
custody for at least four years, rose to the level of permanent neglect.  At a
subsequent dispositional hearing, the court terminated petitioners' parental
rights, thereby freeing the three children for adoption.

As this account demonstrates, the State's extraordinary 4-year effort to
reunite petitioners' family was not just unsuccessful, it was altogether
rebuffed by parents unwilling to improve their circumstances sufficiently to
permit a return of their children.  At every step of this protracted process
petitioners were accorded those procedures and protections which traditionally
have been required by due process of law.  Moreover, from the beginning to the
end of this sad story all judicial determinations were made by one Family Court 
seven complete hearings, and additional periodic supervision of the State's
rehabilitative efforts, the judge no doubt was intimately familiar with this
case and the prospects for petitioners' rehabilitation.

It is inconceivable to me that these procedures were "fundamentally unfair"
to petitioners.  Only by its obsessive  focus on the standard of proof and its
almost complete disregard of the facts of this case does the majority find
otherwise.  n11 As the discussion above indicates, however, such a  focus does
not comport with the flexible standard of fundamental fairness embodied in the
Due Process Clause of the Fourteenth Amendment.

n11 The majority finds, without any reference to the facts of this case,
that"numerous factors [in New York termination proceedings] combine to magnify the
risk of erroneous factfinding." Ante, at 762.  Among the factors identified by
the majority are the "unusual discretion" of the Family Court judge "to
underweigh probative facts that might favor the parent"; the often uneducated,
minority status of the parents and their consequent "vulnerab[ility] to
judgments based on cultural or class bias"; the "State's ability to assemble
its case," which "dwarfs the parents' ability to mount a defense" by including an
unlimited budget, expert attorneys, and "full access to all public records

jeopardy' defense against repeated state" efforts, "with more or better
evidence," to terminate parental rights "even when the parents have attained the level
of fitness required by the State." Ante, at 762, 763, 764.  In short, the majority
characterizes the State as a wealthy and powerful bully bent on taking children away
from defenseless parents.  See ante, at 761-764.  Such
characterization finds no support in the record.

The intent of New York has been stated with eminent clarity: "the [S]tate's
first obligation is to help the family with services to prevent its break-up or to
reunite it if the child has already left home." SSL @ 384-b.1.(a)(iii)
(emphasis added).  There is simply no basis in fact for believing, as the
majority does, that the State does not mean what it says; indeed, the facts of
this case demonstrate that New York has gone the extra mile in seeking to
effectuate its declared purpose.  See supra, at 781-785.  More importantly,
there should be no room in the jurisprudence of this Court for decisions based
on unsupported, inaccurate assumptions.

A brief examination of the "factors" relied upon by the majority demonstrates its
error.  The "unusual" discretion of the Family Court judge to consider the
"'affectio[n] and concer[n]'" displayed by parents during visits with their
children, ante, at 763, n. 12, is nothing more than discretion to consider

determination of the Family Court was "based on cultural or class bias"; if
parents lack the "ability to mount a defense," the State provides them with the full
services of an attorney, FCA @ 262, and they, like the State, have "full
access to all public records concerning the family" (emphasis added); and the
absence of "double jeopardy" protection simply recognizes the fact that family
problems are often ongoing and may in the future warrant action that currently
is unnecessary.  In this case the Family Court dismissed the first termination
petition because it desired to give petitioners "the benefit of the doubt,"
Exhibit to Brief for Respondent <Kramer> 620, and a second opportunity to raise
themselves to "an acceptable minimal level of competency as parents." Id., at
624.  It was their complete failure to do so that prompted the second,
successful termination petition.  See supra, at 781-784 and this page.

B

In addition to the basic fairness of the process afforded petitioners, the
standard of proof chosen by New York clearly reflects a constitutionally
permissible balance of the interests at stake in this case.  The standard of
proof "represents an attempt to instruct the factfinder concerning the degree
of
conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358,370
(1970) (Harlan, J. concurring); Addington v. Texas, 441 U.S. 418, 423
(1979).  In this respect, the standard of proof is a crucial component of legal
process, the primary function of which is "to minimize the risk of erroneous
decisions." n12 Greenholtz v. Nebraska  Penal Inmates, 442 U.S., at 13.  See
also Addington v. Texas, supra, at 425; Mathews v. Eldridge, 424 U.S., at 344.

n12 It is worth noting that the significance of the standard of proof in New York
parental termination proceedings differs from the significance of the
standard in other forms of litigation.  In the usual adjudicatory setting, the
factfinder has had little or no prior exposure to the facts of the case.  His
only knowledge of those facts comes from the evidence adduced at trial, and he
renders his findings solely upon the basis of that evidence.  Thus, normally,
the standard of proof is a crucial factor in the final outcome of the case, for it is
the scale upon which the factfinder weighs his knowledge and makes his
decision.

Although the standard serves the same function in New York parental
termination proceedings, additional assurances of accuracy are present in its
application.  As was adduced at oral argument, the practice in New York is to
assign one judge to supervise a case from the initial temporary removal of the

above, the factfinder is intimately familiar with the case before the
termination proceedings ever begin.  Indeed, as in this case, he often will have been
closely involved in protracted efforts to rehabilitate the parents.  Even
if a change in judges occurs, the Family Court retains jurisdiction of the case and
the newly assigned judge may take judicial notice of all prior proceedings. Given
this familiarity with the case,.úmust precede a termination action in New York,
decisions in termination cases
are made by judges steeped in the background of the case and peculiarly able to judge
the accuracy of evidence placed before them.  This does not mean that the standard of
proof in these cases can escape due process scrutiny, only that
additional assurances of accuracy attend the application of the standard in New York
termination proceedings.

In determining the propriety of a particular standard of proof in a given
case, however, it is not enough simply to say that we are trying to minimize the risk
of error.  Because errors in factfinding affect more than one interest,
we try to minimize error as to those interests which we consider to be most
important.  As Justice Harlan explained in his well-known concurrence to In re
Winship:

"In a lawsuit between two parties, a factual error can make a difference in
one of two ways.  First, in can result in a judgment in favor of the plaintiff

criminal case would be the conviction of an innocent man.  On the other hand,
an erroneous factual determination can result in a judgment for the defendant when the
true facts justify a judgment in plaintiff's favor.  The criminal analogue
would be the acquittal of a guilty man.

The standard of proof influences the relative frequency of these two types
of erroneous outcomes.  If, for example, the standard of proof for a criminal
trial were a preponderance of the evidence rather than proof  beyond a reasonable
doubt, there would be a smaller risk of factual errors that result in freeing
guilty persons, but a far greater risk of factual errors that result in
convicting the innocent.  Because the standard of proof affects the comparative
frequency of these two types of erroneous outcomes, the choice of the standard
to be applied in a particular kind of litigation should, in a rational world,
reflect an assessment of the comparative social disutility of each." 397 U.S.,
at 370-371.

When the standard of proof is understood as reflecting such an assessment,
an examination of the interests at stake in a particular case becomes essential to
determining the propriety of the specified standard of proof.  Because proof by a
preponderance of the evidence requires that "[t]he litigants... share the risk
error in a roughly equal fashion," Addington v. Texas, supra, at 423, it
rationally should be applied only when the interests at stake are of roughly
equal societal importance.  The interests at stake in this case demonstrate that New
York has selected a constitutionally permissible standard of proof.

On one side is the interest of parents in a continuation of the family unit
and the raising of their own children.  The importance of this interest cannot
easily be overstated.  Few consequences of judicial action are so grave as the
severance of natural family ties.  Even the convict committed to prison and
thereby deprived of his physical liberty often retains the love and support of
family members.  "This Court's decisions have by now made plain beyond the need for
multiple citation that a parent's desire for and right to 'the
companionship, care, custody, and management of his or her children' is an
important interest that 'undeniably warrants deference and, absent a powerful
countervailing interest, protection.' Stanley v. Illinois, 405 U.S. 645, 651."
Lassiter v. Department of Social Services, 452 U.S. 18, 27 (1981).  In creating the
scheme at issue in this case, the New York Legislature  was expressly aware of this
right of parents "to bring up their own children." SSL @
384-b.1.(a)(ii).

On the other side of the termination proceeding are the often countervailing

child's physical, emotional, and spiritual well-being.  It requires no citation of
authority to assert that children who are abused in their youth generally
face extraordinary problems developing into responsible, productive citizens.
The same can be said of children who, though not physically or emotionally
abused, are passed from one foster home to another with no constancy of love,
trust, or discipline.  If the Family Court makes an incorrect factual
determination resulting in a failure to terminate a parent-child relationship
which rightfully should be ended, the child involved must return either to an
abusive home n14 or to the often unstable world of foster care.  n15 The reality of
these  risks is magnified by the fact that the only families faced with
termination actions are those which have voluntarily surrendered custody of
their child to the State, or, as in this case, those from which the child has
been removed by judicial action because of threatened irreparable injury through abuse
or neglect.  Permanent neglect findings also occur only in families
where the child has been in foster care for at least one year.

n13 The majority dismisses the child's interest in the accuracy of
determinations made at the factfinding hearing because "[t]he factfinding does
not purport... to balance the child's interest in a normal family home against

directly against the parents." Ante, at 759.  Only "[a]fter the State has
established parental unfitness," the majority reasons, may the court "assume... that
the interests of the child and the natural parents do diverge." Ante, at
760.

This reasoning misses the mark.  The child has an interest in the outcome of the
factfinding hearing independent of that of the parent.  To be sure, "the
child and his parents share a vital interest in preventing erroneous termination of
their natural relationship." Ibid. (emphasis added).  But the child's
interest in a continuation of the family unit exists only to the extent that
such a continuation would not be harmful to him.  An error in the factfinding
hearing that results in a failure to terminate a parent-child relationship
which rightfully should be terminated may well detrimentally affect the child.  See nn.
14, 15, infra.

The preponderance-of-the-evidence standard, which allocates the risk of error more
or less evenly, is employed when the social disutility of error in either
direction is roughly equal -- that is, when an incorrect finding of fault would
produce consequences as undesirable as the consequences that would be produced

direction discernibly outweighs the disutility of error in the other direction
do we choose, by means of the standard of proof, to reduce the likelihood of the more
onerous outcome.  See In re Winship, 397 U.S. 358, 370-372 (1970) (Harlan, J.,
concurring).

New York's adoption of the preponderance-of-the-evidence standard reflects
its conclusion that the undesirable consequence of an erroneous finding of
parental unfitness -- the unwarranted termination of the family relationship -- is
roughly equal to the undesirable consequence of an erroneous finding of
parental fitness -- the risk of permanent injury to the child either by return
of the child to an abusive home or by the child's continued lack of a permanent home. 
See nn. 14, 15, infra. Such a conclusion is well within the province of
state legislatures.  It cannot be said that the New York procedures are
unconstitutional simply because a majority of the Members of this Court disagree with
the New York Legislature's weighing of the interests of the parents and the child in
an error-free factfinding hearing.

n14 The record in this case illustrates the problems that may arise when a
child is returned to an abusive home.  Eighteen months after Tina, petitioners'
oldest child, was first removed from petitioners' home, she was returned to the home
on a trial basis.  Katherine Weiss, a supervisor in the Child Protective

Court that "[t]he attempt to return Tina to her home just totally blew up."
Exhibit to Brief for Respondent <Kramer> 135.  When asked to explain what
happened, Mrs. Weiss testified that "there were instances on the record in this court
of Mr. <Santosky's> abuse of his wife, alleged abuse of the children and
proven neglect of the children." Ibid. Tina again was removed from the home,
this time along with John and Jed.

n15 The New York Legislature recognized the potential harm to children of
extended, nonpermanent foster care.  It found "that many children who have been
placed in foster care experience unnecessarily protracted stays in such care
without being adopted or returned to their parents or other custodians.  Such
unnecessary stays may deprive these children of positive, nurturing family
relationships and have deleterious effects on their development into
responsible, productive citizens." SSL @ 384-b.1.(b).  Subsequent studies have
proved this finding correct.  One commentator recently wrote of "the lamentable
conditions of many foster care placements" under the New York system even
today.  He noted: "Over fifty percent of the children in foster care have been
in this 'temporary' status for more than two years; over thirty percent for more than
five years.  During this time, many children are placed in a sequence of
ill-suited foster homes, denying them the consistent support and nurturing that
they so desperately need." Besharov, State Intervention To Protect Children:
New york's Definition of "Child Abuse" and "Child Neglect," 26 N.Y.L.S.L. Rev. 723,
770-771 (1981) (footnotes omitted).  In this case, petitioners' three children
have been in foster care for more than four years, one child since he was only
three days old.  Failure to terminate petitioners' parental rights will only
mean a continuation of this unsatisfactory situation.

In addition to the child's interest in a normal home life, "the State has an
urgent interest in the welfare of the child." Lassiter v. Department of Social
Services, 452 U.S., at 27.  n16 Few could doubt that the most valuable resource of a
self-governing society is its population of children who will one day
become adults and themselves assume the responsibility of self-governance.  "A
democratic society rests, for its continuance, upon the healthy, well-rounded
growth of young people into full maturity as citizens, with all that implies."
Prince v. Massachusetts, 321 U.S. 158, 168 (1944).  Thus, "the whole community" has
an interest "that children be both safeguarded from abuses and given
opportunities for growth into free and independent well-developed...
citizens." Id., at 165.  See also Ginsberg v. New York, 390 U.S. 629, 640-641
(1968).

n16 The majority's conclusion that a state interest in the child's well
-being arises only after a determination of parental unfitness suffers from the same
error as its assertion that the child has no interest, separate from that of
its

When, in the context of a permanent neglect termination proceeding, the
interests of the child and the State in a  stable, nurturing home life are
balanced against the interests of the parents in the rearing of their child, it
cannot be said that either set of interests is so clearly paramount as to
require that the risk of error be allocated to one side or the other.
Accordingly, a State constitutionally may conclude that the risk of error should be
borne in roughly equal fashion by use of the preponderance-of-the-evidence
standard of proof.  See Addington v. Texas, 441 U.S., at 423.  This is precisely the
balance which has been struck by the New York Legislature: "It is the intent of the
legislature in enacting this section to provide procedures not only
assuring that the rights of the natural parent are protected, but also, where
positive, nurturing parent-child relationships no longer exist, furthering the
best interests, needs, and rights of the child by terminating the parental
rights and freeing the child for adoption." SSL @ 384-b.1.(b).

III

For the reasons heretofore stated, I believe that the Court today errs in
concluding that the New York standard of proof in parental-rights termination
proceedings violates due process of law.  The decision disregards New York's
earnest efforts to aid parents in regaining the custody of their children and a
host of procedural protections placed around parental rights and interests.  The court
finds a constitutional violation only by a tunnel-vision application of
due process principles that altogether loses sight of the unmistakable fairness of
the New York procedure.

Even more worrisome, today's decision cavalierly rejects the considered
judgment of the New York Legislature in an area traditionally entrusted to state care. 
The Court thereby begins, I fear, a trend of federal intervention in
state family law matters which surely will stifle creative responses to vexing
problems.  Accordingly, I dissent.