Stories & Grievances
SANTOSKY v. KRAMER (1982) Defines "Presponderance of Evidence" in New York Family Court
An analysis of the standard of proof in New York parental termination proceedings.
U.S. Supreme Court
SANTOSKY v. KRAMER, 455 U.S. 745 (1982)
455 U.S. 745
SANTOSKY ET AL. v. KRAMER, COMMISSIONER, ULSTER COUNTY DEPARTMENT OF
SOCIAL SERVICES, ET AL.
CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, THIRD JUDICIAL DEPARTMENT.
Argued November 10, 1981
Decided March 24, 1982
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.
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. Mathews v. Eldridge, 424 U.S. 319, 335 . In any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the public and [455 U.S. 745, 746] 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. 758-761.
(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. Coupled with the preponderance standard, these factors create a significant 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.
(c) 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 (455 U.S. 745, 747) dissenting opinion, in which BURGER, C. J., and WHITE and O'CONNOR, JJ., joined, post, p. 770.
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. *
(Footnote *) Briefs of amici curiae urging reversal were filed by Marcia Robinson Lowry, Steven R. Shapiro, and Margaret Hayman for the American Civil Liberties Union 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.
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 622 (McKinney 1975 and Supp. 1981-1982) (Fam. Ct. Act) requires that only a "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 [455 U.S. 745, 748] their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.
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 the 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.(c), 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. (455 U.S. 745, 749) 611. That declaration empowers the Family Court judge to terminate permanently the natural parents' rights in the child. 631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child. 1
New York's permanent neglect statute provides natural parents with certain procedural protections. 2 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." 3 The only analogous federal statute of which we are aware (455 U.S. 745, 750) 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 (455 U.S. 745, 751) New York's "fair preponderance of the evidence" standard is constitutionally sufficient.
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 Social Services, initiated a neglect proceeding under Fam. Ct. Act 1022 and 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 child, Jed. 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. 4 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 (455 U.S. 745, 752) 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., at 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. 5 Id., at 39.
Petitioners appealed, again contesting the constitutionality of 622's standard of proof. 6 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.
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).
Last Term, in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), this Court, by a 5-4 vote, held that the (455 U.S. 745, 753) 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 two central questions here - whether process is constitutionally due a natural 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 management of their child does not evaporate simply because they have not been 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 (455 U.S. 745, 754) destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. 7
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 (455 U.S. 745, 755) `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual 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 re Winship, 397 U.S., at 372 (Harlan, J., concurring).
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 [455 U.S. 745, 756] traditionally been left to the judiciary to resolve." Woodby v. INS, 385 U.S. 276, 284 (1966). 8 "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).
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); (455 U.S. 745, 757) 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. 9 (455 U.S. 745, 758)
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.
"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 threatened and the permanency of the threatened loss.
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 (455 U.S. 745, 759) 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; and denaturalization, 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 action are both so severe and so irreversible.
Thus, the first Eldridge factor - the private interest affected - weighs 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 (455 U.S. 745, 760) what the State did - "made diligent efforts," 614.1.(c) - 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. 10
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. 11 Thus, (455 U.S. 745, 761) at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.
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 pit their interests directly against those of the natural parents by initiating their own permanent neglect proceeding. Fam. Ct. Act 1055(d); Soc. Serv. Law 384-6.3(b), 392.7.(c). 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.
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 risk of an erroneous factfinding between these two parties. (455 U.S. 745, 762)
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., at 835 , 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. 12 (455 U.S. 745, 763) 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.
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. 13 (455 U.S. 745, 764)
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 that by its very terms demands consideration of the quantity, rather than the 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 stan