There is growing public awareness of the victimization of children at the hands
of their parents. Political pressure, [FN1] media coverage, [FN2] and a
litigious populace [FN3] have increased the demand for accountability from those
charged with the investigation and prosecution of sex offenses against children.
[FN4] Public outcry over the proliferation of child abuse has sparked a flurry
of federal and state legislation. [FN5] This attention is justified and
necessary *154 for the protection of children's rights. [FN6] The rights of the
parents, however, are often trivialized by inadequate procedures that fail to
safeguard them from the potentially catastrophic effects of sexual abuse
States are facing a frightening surge in reported cases of child abuse. [FN8]
Specifically, there has been a dramatic increase in cases involving parents
accused of sexually abusing their children. [FN9] In its role as parens patriae,
[FN10] the state is empowered to *155 immediately take custody of the child
involved and to conduct an investigation to protect the "best interests" of that
child. [FN11] In protecting the child's best interests, however, the accused
parent's due process rights are severely jeopardized. Accusations of sexual
abuse, frequently arising in the context of bitter matrimonial actions, require
an accused parent to defend potentially unfounded allegations in family court
with the likely loss of custodial rights. While due process rights to notice and a
hearing are guaranteed in these civil proceedings, in most states a judge
makes a preliminary determination of the parent's culpability by utilizing the
lowest standard of proof [FN12]--a preponderance of the *156 evidence. [FN13] If
the state meets this low threshold, the parent may face deprivation of custodial
rights for up to a year or more. [FN14] Furthermore, the stigma of "child
molester" immediately attaches a devastating effect on a parent's reputation.
[FN15] This loss *157 implicates a personal liberty interest that demands due
process protection as well. [FN16]
The difference between the temporary loss of custodial rights and permanent
termination of parental rights is constitutionally significant. "The United
States Supreme Court has maintained that both parents have a constitutional
right to custody of their children." [FN17] Custody of a child is "[t]he care,
control and maintenance of a child which may be awarded by a court to one of the
parents as in a divorce or separation proceeding." [FN18] When a parent is not
granted custody, there is a temporary relinquishment of that care, control, and
maintenance by the non-custodial parent. Conversely, the termination of one's
parental rights results in the "sever[ing] completely and irrevocably [of] the
rights of parents in their natural child." [FN19] Unlike a child custody
decision that is temporary, a parental rights termination proceeding permanently
interferes with the parent's fundamental constitutional right to raise his or
her child. [FN20]
This Note examines the due process concerns of a parent accused of sexual abuse
in a family court's custodial fact-finding hearing. In these "temporary"
dispositions, the majority of states require that proof of child abuse or
neglect be proven by a *158 preponderance of the evidence. [FN21] Relying on
dicta from Santosky v. Kramer, [FN22] courts repeatedly find that this same
evidentiary standard is adequate if parents face only a temporary loss of
custody. [FN23] Continued reliance on the distinction between permanent and
temporary loss of custody as a means of justifying the lowest of evidentiary
standards, however, is wrong.
This Note asserts that while children must be protected from the dangers of
child abusers, due process requires a closer look at the risks to parents
answering sexual abuse allegations in family court. Due to the nature of the
accusations, parents and families may be permanently scarred--by loss of
employment, social status, and potential loss of physical liberty for the
accused as well as by irreparable damage to the family unit--all interests which
are substantially different than those of parents charged with non-sexual abuse
or neglect. [FN24] Accordingly, these parents should be afforded greater due
It is well established that even carefully drafted procedures cannot substitute for
a deficient standard of proof. [FN25] Courts, *159 however, are reluctant to
afford greater rights to parents accused of sexual abuse. [FN26] In a criminal
prosecution, erroneous outcomes are limited because the state must prove each
element beyond a reasonable doubt, the highest evidentiary standard. [FN27] As a
procedural safeguard, therefore, the standard of proof reduces the likelihood of
finding an innocent person guilty. [FN28] Conversely, civil fact-finding
hearings [FN29] use a far lower standard to expose essentially the same
"behavior" and determine parental culpability, while severely jeopardizing
parents' due process rights. [FN30]
This Note examines the preponderance standard as it is applied in child custody
and protection proceedings that originate with charges of sexual abuse. It
considers the conflict inherent in policies that purport to maintain family
integrity while balancing the competing interests of parent and child. Part One
discusses the historical development of child welfare policy and the resulting
impact on family integrity. This part focuses on the courts' harmful application
of a balancing test in a manner that trivializes the fate of the accused parent.
Part Two discusses *160 how judicial challenges to the standard of proof in two
other types of civil actions, civil commitment and juvenile delinquency
proceedings, resulted in use of an intermediate level of proof, clear and
convincing evidence. It is asserted that parents facing loss of custody based on
sexual abuse accusations face similar risks, particularly with respect to the
stigma which immediately attaches. Part Three examines the fundamental fairness
of equal risk-sharing in child protective proceedings of this type. This part
focuses on issues influencing judicial decisions, recent legislation pertaining
to child abuse registries, media access to family court proceedings, and the
emotionally-charged social and political climate which further prejudice the rights of
those who may well stand wrongfully accused. This Note concludes that
although custody proceedings are civil rather than criminal, the risks inherent
in such proceedings, including the potential for eventual termination of
parental rights, loss of reputation, and risk of criminal prosecution warrant
that the state prove its allegations by clear and convincing evidence.
I. The Evolution of the Policy and Politics of Child Welfare Legislation
A. The Federal View
Matters of family integrity, while not specifically within the scope of
congressional power, [FN31] are subject to the protection of the Fourteenth
Amendment because they have been recognized as fundamental to individual
liberty. [FN32] Parents have a fundamental *161 right to raise their children
free from government interference. [FN33] This right, however, must be balanced
with the government's compelling interest in insuring that its minor citizens
are free from abuse and neglect. [FN34]
In response to escalating incidences of child abuse and neglect, [FN35] Congress
enacted the Child Abuse Prevention and Treatment *162 Act, [FN36] which mandated
that each state report and respond to evidence of child abuse in order to
receive certain grants. [FN37] The Adoption Assistance and Child Welfare Act
("The Child Welfare Act") [FN38] was enacted to address concern regarding
long-term foster placements and the need for permanency planning. [FN39] The
*163 Child Welfare Act states that, absent serious harm, children should remain
with their parents. [FN40] The states, however, were directed to provide "child
welfare services" for the purpose of "preventing, or remedying, or assisting in
the solution of problems, which may result in the neglect, abuse, exploitation,
or delinquency of children." [FN41] The Child Welfare Act allows for emergency
removal of a child from his or her home, but mandates that a dispositional
hearing be held within twelve months of the removal. [FN42] States, however, must
employ all "reasonable efforts" to prevent such removal, and facilitate the
child's return home when removal is unnecessary. [FN43]
*164 B. The Common Law View
Temporary loss of custody is primarily determined by proof by a preponderance of
the evidence, regardless of whether the parent is accused of neglect, physical
abuse, or sexual abuse. [FN44] This standard, which reflects minimal societal
interest in the outcome and carries a substantial risk of error, [FN45] does not
protect the due process rights of parents in temporary custody proceedings,
[FN46] nor does it support federal policy goals of protecting families from
unwarranted governmental intervention. [FN47] Consequently, while preservation
of family integrity continues to be a societal goal, courts continue to hold
that the temporary and reversible nature of custodial dispositions justifies the
preponderance standard. [FN48]
*165 In Stanley v. Illinois, [FN49] decided in 1972, the Supreme Court determined
that the right to raise a family is "essential" and worthy of
constitutional protection. [FN50] The Court reviewed the due process rights of
an unwed father and held that the state must provide unwed fathers with
procedural protections affording them the opportunity to prove their parental
fitness. [FN51] In doing so, the Court demonstrated its willingness to delve
into matters concerning family integrity in order to protect parents' due
process rights. [FN52]
The Stanley court protected unwed fathers' due process rights by overturning a
statute that presumed them to be unfit parents. [FN53] Like the father in
Stanley, family litigants in a child *166 custody proceeding must be protected
from due process violations which "needlessly risk running roughshod over the
important interests of both parent and child." [FN54]
Nine years later, the Court again had cause to consider parental due process
rights. In Santosky v. Kramer, [FN55] the Supreme Court reviewed a New York
statute providing for the termination of parental rights due to the parent's
neglect or abuse. [FN56] The Court examined what process was due to assure that
the parents' rights were constitutionally protected. [FN57] In a 5-4 decision,
[FN58] the Court held that, given the grievous nature of the loss--permanent
dissolution of the family--due process required no less than clear and
convincing evidence to support the allegations brought against the parents by
the State. [FN59] The Court applied the three-part test that was first fashioned
in Mathews v. Eldridge, [FN60] which weighed the rights of the parent and child,
the risk of erroneous determinations on the parties, and the government's
interest in retaining the existing procedures. [FN61]
*167 The first of the test's three factors is the private interest affected by
the challenged proceeding. [FN62] The Court recognized the "grievous loss"
[FN63] facing the parent and the permanency of the outcome in a termination
proceeding. [FN64] Noting the permanent, irreversible nature of the parents'
loss, the interests of the parents were found to be so substantial that
heightened procedural protections were favored. [FN65]
The second factor under the test considers the risks to the parties created by
the procedure. [FN66] The Court found that the preponderance standard's pitting
of the individual against the state, [FN67] the disparity of resources, [FN68]
and the roughly equal sharing of risks [FN69] carried the risk of quantitative
judgments to the parent's detriment. [FN70] The Court reasoned that should the
state *168 erroneously terminate parental rights, the child, who is already in
the custody of the state, would remain in foster care or would be deemed
available for adoption. [FN71] It recognized that, from the parent's
perspective, the risk of error would result in the permanent destruction of the
family. [FN72] Thus, the Court determined that a preponderance standard did not
properly allocate the risks to parent and child. [FN73]
The third factor evaluated by the Santosky court was the government interest
supporting the use of the state's procedure. [FN74] The Court stated that the
preponderance standard was consistent with the state's two interests: providing
for the welfare of the child and reducing the fiscal burdens of protective
proceedings. [FN75] The Court then considered, however, that New York already
applied a clear and convincing standard in termination proceedings based on a
parent's diminished mental capacity and in cases of severe and repeated child
abuse. [FN76] Thus, the Court concluded that the state would not be unduly
burdened by applying the elevated standard in parental termination proceedings
based on neglect. [FN77]
The Santosky dissent shared the majority's desire to reduce the risk of error in
termination proceedings, but asserted that procedural protections adequately
served this purpose. [FN78] However, *169 the "minimum requirements [of
procedural due process] being a matter of federal law . . . 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."
[FN79] Procedures such as separate fact-finding and dispositional hearings that
afford the parent notice and a hearing cannot substitute for a constitutionally
deficient standard of proof. [FN80] A preponderance standard, found to be
constitutionally deficient in Santosky, is even more egregious when applied in
custody matters that concern sexual abuse. These proceedings, like the parental
termination proceedings reviewed in Santosky, require greater scrutiny given the
individual interests at stake.
In dicta, the Court distinguished the permanent, irreversible nature of a
termination proceeding from a custody proceeding. [FN81] Thereafter, courts have
relied on Santosky [FN82] and have applied its analysis to justify the use of a
preponderance of the evidence standard for fact-finding hearings involving
temporary neglect and abuse dispositions. [FN83]
Reliance on Santosky's dicta as support for the use of the preponderance
standard of proof is unfair. Specifically, in determining that parental
termination proceedings required a higher standard of proof than a preponderance
of the evidence, the Santosky court observed that "the factual certainty
required to extinguish the parent-child relationship [utilizing a preponderance
standard] is no greater than that necessary to award money damages in an
ordinary civil action." [FN84] Similarly, a parent faced with the prospect of
losing custody of a child should be afforded more certainty and less error than
he or she would expect *170 in an action for money damages. When the loss of
custody is compounded by the stigma that accompanies allegations of sexual
abuse, the nature of the parent's loss becomes far more grievous.
Furthermore, reliance on Santosky and the Mathews three-part test has produced
considerable controversy. [FN85] Even within a single jurisdiction, there has
been strong disagreement as to the proper standard of proof. [FN86] The
explanation is simple. Courts have failed to distinguish the Santosky court's
careful analysis of risk factors peculiar to a parental termination proceeding
based on permanent neglect, and those risk factors peculiar to temporary custody
proceedings which may involve allegations of neglect, [FN87] physical abuse,
[FN88] sexual abuse, [FN89] or any combination of the three. [FN90]
*171 1. The Parent's Private Interests
In In re Christine H., [FN91] a New York trial court noted that the distinct
parental interests affected in custody proceedings involving allegations of
sexual abuse are "the stigma of child abuse, possible criminal prosecutions, and
possible termination of parental rights." [FN92] The court reviewed evidence
supporting the mother's allegations that the father had touched and rubbed their
three-year old daughter's genitals, grabbed her, and punched her. [FN93] In
consideration of the substantial interests of the parent facing sexual abuse
allegations, [FN94] the grave risk of error, [FN95] and the slight
countervailing government interest in utilizing the preponderance standard,
[FN96] the court applied the clear and convincing standard and dismissed the
abuse petition. [FN97]
Three years later, in In re Tammie Z., [FN98] the New York Court of Appeals
considered the appropriate standard of proof regarding a petition alleging
neglect. [FN99] Three children who had been in the care of their father had been
removed from his custody for eighteen months. [FN100] The Court, in a per curiam
decision, held *172 that the preponderance standard utilized at the fact-finding
hearing was sufficient as a matter of law. [FN101] It rejected the father's
argument that the clear and convincing standard should apply to fact-finding
hearings; the court relied on the three- part test utilized in Santosky. [FN102]
The court concluded that "[t]he balance of interests . . . differs materially
from [parental termination proceedings]." [FN103] The court distinguished
custody and termination proceedings and determined that the preponderance
standard was sufficient given the temporary nature of a custody disposition.
In In re Katrina W., [FN105] a parent challenged the burden of proof to be used
in a sexual abuse case. Based on testimony and medical evidence offered at a
fact-finding hearing, the court determined that Katrina had been sexually abused
by her fifteen year old brother, thus subjecting her to removal from her
mother's custody. [FN106] The mother appealed, challenging the sufficiency *173
of the evidence [FN107] and the court's application of the preponderance standard
in the context of a proceeding involving sexual abuse. [FN108]
Distinguishing In re Tammie Z., the court noted that the Court of Appeals
decision "did not explicitly refer to findings of abuse." [FN109] The court then
considered the issue of what standard should apply in sexual abuse cases.
[FN110] Applying the Mathews three-part due process test, the court found that
the governmental interest in protecting children from sexual abuse was "even
more compelling" than in neglect matters. [FN111] Yet, the court still rejected
the contention that more weight be accorded parents' interests in sexual abuse
proceedings than in matters concerning neglect. [FN112]
2. The Risk of Erroneous Custodial Deprivation
The second Mathews factor is the risk of error and its impact on the parties.
[FN113] In In re Christine H., the court emphasized the accused parent's
substantial private interests in a matter alleging sexual abuse. [FN114] The court
noted that there was no physical evidence of abuse, [FN115] that the
child's testimony contradicted her *174 mother's, [FN116] and that there was
reason to question the timing and motivation behind the claims of abuse. [FN117]
The court dismissed the petition, stating that the risks associated with the
"more serious finding of child abuse" [FN118] and the preponderance standard's
"susceptib[ility] to misinterpretation" justified the use of clear and
convincing evidence. [FN119]
The Court of Appeals, however, in In re Tammie Z., [FN120] noted that the "risk
of error" [FN121] associated with the court's protection of the child was only
temporary--it "remain[ed] in effect only pending a final order of disposition."
[FN122] Thus, if the clear and convincing evidence standard could not be met,
the petition for protection would be dismissed, subjecting the child to
undesirable risk--the child would be returned to the potentially abusive parents if the
abuse or neglect was not proved. [FN123] The court, cognizant of the
"disastrous consequences" [FN124] an erroneous dismissal *175 might have on a
victimized child, affirmed the lower court's findings. [FN125] In In re Katrina
W., [FN126] the court rejected the mother's argument that threats of criminal
prosecution, parental termination and the stigma associated with sexual abuse
allegations warranted application of the clear and convincing evidence standard.
[FN127] The court asserted that parental concern with termination of parental
rights was misplaced because clear and convincing evidence would be applied in
termination proceedings. [FN128] Ultimately, the court rejected the contention
that the stigma resulting from a finding of abuse was "sufficiently greater"
than that for neglect. [FN129] Relying on In re Tammie Z, [FN130] the holding in
In re Katrina W. was consistent with other New York decisions which have held
that a preponderance of the evidence standard in sexual abuse cases does not
offend due process. [FN131]
Other jurisdictions have reached the same conclusion. The Massachusetts
statutory scheme does not specify the standard of proof to be utilized in a
hearing that temporarily transfers custody from the parent to the state pending
further investigation into whether the child is suffering or is in danger of
serious abuse or neglect. [FN132] Utilizing the Mathew three-part test and in
*176 consideration of the temporary nature of the loss, a Massachusetts court,
in In re Robert, [FN133] rejected the clear and convincing standard in favor of
the preponderance standard. [FN134] The higher standard, the court determined,
would put children at too much risk of being "erroneously returned to abusive or
neglectful parents." [FN135]
Similar reasoning, on the state level, has resulted in the predominant use of
the preponderance standard in abuse and neglect proceedings in Maine, [FN136]
Colorado, [FN137] and Virginia. [FN138] California, however, applies the
preponderance standard in dependency hearings in matters concerning abuse, but
only in those that do not result in removal of the child from parental custody.
[FN139] The more stringent clear and convincing standard has been confined to
matters that "sever the parent-child relationship, either temporarily or
permanently." [FN140] Finally, in contrast, *177 under a federal law addressing
custody proceedings involving Native American children, proof by clear and
convincing evidence is required in order to remove children from the care and
custody of a parent or custodian for any reason. [FN141]
3. The Countervailing Government Interest
The important governmental interest in protecting children can still be realized
by utilizing the clear and convincing evidence standard in abuse proceedings.
Some courts, however, have reasoned that raising the burden of proof might
jeopardize the child's safety and result in increased fiscal and administrative
burdens. [FN142] Use of the higher standard would not necessarily cost more,
however, and it would more accurately reflect stated policy goals. [FN143]
Pursuant to family preservation ideology, [FN144] states should resist wresting
custody from a parent unless the child's safety or welfare is clearly
endangered. [FN145] Significantly, California*178 utilizes bifurcated
proceedings but courts impose the higher standard of clear and convincing
evidence before removing a child from a parent's custody. [FN146] The state is
not compelled to dismiss petitions that do not meet the higher standard; rather,
it may intervene in productive, less intrusive ways by authorizing family
counseling and monitoring services. [FN147]
New York courts have used similar reasoning to justify applying the clear and
convincing standard in proceedings to suspend parental visitation to children
placed in foster care: "maintenance of the family unit is the preferred solution . . . .
[I]t is not apparent that there is any countervailing interest on the
part of the . . . state which would be furthered by use of the 'preponderance'
standard . . . ." [FN148] In In re Pablo, [FN149] a court considered the issue
and determined that proof by clear and convincing evidence was required. [FN150]
Like a custody determination, the decision *179 to suspend visitation is
temporary and reversible; [FN151] however, the court made a distinction, stating
that suspension was more serious, as it was "a step beyond removal." [FN152] The
court reasoned that a higher standard was warranted to serve "the state's policy
of returning children to their families whenever possible  based on the
legislative determination that a normal family life offers a child the best
opportunity for development and that his need for a normal family life will
usually best be met in the natural home." [FN153] The court noted that the
higher "'evidentiary requirement operate[s] as a weighty caution upon the
minds of all judges, and it forbids relief whenever the evidence is loose, equivocal
or contradictory." ' [FN154]
Both suspension of custody and suspension of visitation "set the stage" for a
permanent termination of parental rights. [FN155] The same degree of caution
should be exercised in custodial determinations involving sexual abuse
allegations where proof is often entirely circumstantial and contradictory.
[FN156] In order to effectuate *180 stated policy goals, greater certainty is
required before family relationships are irreparably destroyed.
The type of evidence in sexual abuse cases varies and is often contradictory.
The state may present evidence of physical abuse which includes, for example,
evidence indicating that a young girl's hymen has been broken or that there is
vaginal scarring. [FN157] Fact-finding determinations may also be based,
however, on circumstantial evidence such as a psychologist's interpretation of a
child's behavior. In the former case, there is likely enough evidence of sexual
abuse that the clear and convincing standard would be met anyway.
Moreover, due process must be flexible. Dissenting in Santosky, Justice
Rehnquist wrote that the adequacy of statutory schemes "cannot be . . .
determined merely by the application of general principles unrelated to the
peculiarities of the case at hand." [FN158] Custody proceedings that involve
sexual abuse allegations are peculiar because they subject accused parents to
incomparable risks. Raising the standard would not necessarily preclude less
intrusive alternatives and would more effectively serve public policy.
II. Analogies to Other Civil Proceedings
The preponderance standard requires that the risk of an erroneous determination
be borne in roughly equal fashion by the parties. Equitable risk sharing,
however, is not always appropriate despite the civil nature of a proceeding. In
Santosky, the Court compared parental termination proceedings to civil
commitment, [FN159] deportation, [FN160] and denaturalization, [FN161] which are
all *181 civil proceedings that require a higher standard of proof than
preponderance of the evidence. [FN162]
A. Civil Commitment
Determining what process is due under the Constitution involves balancing the
private interests of the parties and the permanence of the threatened loss.
[FN163] Like the due process challenge to the civil commitment proceedings in
Addington v. Texas, [FN164] child custody hearings are civil proceedings in
which the government is a party. [FN165] These proceedings involve fundamental
liberty interests, and "are all reversible official actions." [FN166] The
similarity of these issues warrants comparison.
The Addington Court recognized the important function of the standard of proof
in civil commitment proceedings. [FN167] The Court rejected the standard of
beyond a reasonable doubt, determining that "the state [should not] be required
to employ a standard of proof that may completely undercut its efforts to
further the legitimate interests of both the state and the patient that are
served by civil commitments." [FN168] The Court, however, found that the
preponderance of the evidence standard, even though typically used in civil
cases, would be inappropriate in civil commitment proceedings. [FN169] The Court
noted that the lower standard is appropriate in most civil cases because they
involve monetary disputes with which "society has a minimal concern with the
outcome." [FN170] In contrast, the Court found that "the individual's *182
interest in the outcome of a civil commitment proceeding is of such weight and
gravity that due process requires the state to justify confinement by proof more
substantial than a mere preponderance of the evidence." [FN171]
Whereas in Addington, the state sought to exercise "authority under its police
power to protect the community from the dangerous tendencies of some who are
mentally ill," [FN172] in a child custody hearing, the state, as parens patriae,
has a legitimate interest in providing temporary removal of a child from a
parent's dangerous tendencies. [FN173] However, reliance on the civil nature of
a custody proceeding to justify the preponderance standard belies the gravity of
its outcome. [FN174] In contrast to civil disputes concerning monetary
compensation, society has a substantial interest in protecting parents from
false allegations that threaten family integrity. Use of a higher evidentiary
standard in sexual abuse custody proceedings would comport with Addington's
logic that the state must use particular caution when exercising power that
serves one of society's interests but infringes upon another. [FN175]
The state must give greater deference to the rights of parents who may be
falsely accused before taking custody of their children. [FN176] An individual in a
civil commitment proceeding faces a significant loss of liberty by
involuntary commitment to a mental *183 hospital. [FN177] Although a parent
deprived of custody does not face physical confinement, if the parent is
identified as a child molester, severe familial, [FN178] social, [FN179] and
economic constraints [FN180] will be imposed.
The Addington Court noted that involuntary confinement is not punitive. [FN181]
Theoretically, temporary dispositions in child protective proceedings are not
punitive either. [FN182] The loss of custody and the stigma associated with
sexual abuse allegations, however, have the effect of punishing parents for
their alleged acts. [FN183] Moreover, civil commitment and custody proceedings
may both result in "temporary" liberty deprivations [FN184] and can "engender
adverse social consequences to the individual." [FN185] The Addington Court
concluded that the preponderance standard "falls short of meeting the demands
of due process" for civil commitments. [FN186] Applying Addington's rationale to
child custody proceedings, the state should be compelled to prove allegations of
*184 a parent's sexual abuse by clear and convincing evidence.
B. Juvenile Delinquency
In In re Winship, [FN187] the Supreme Court determined that a finding of
juvenile delinquency required proof by clear and convincing evidence. The Court
acknowledged that although criminal sanctions do not apply, the factfinder is
nonetheless charged with determining if the accused has committed a criminal
act. [FN188] The Court also addressed the stigma associated with a juvenile
delinquency determination. [FN189] In spite of their civil nature, the Supreme
Court recognized the quasi-criminal nature of the proceedings and the social
costs inherent in a finding of juvenile delinquency, and noted the following
year that "[w]here a person's good name, reputation, honor, or integrity is at
stake because of what the government is doing to him," a liberty interest might
be implicated. [FN190] Five years later, the Court expressly required that, in
order to rise to constitutional magnitude, the stigma must also result in a
"tangible" loss. [FN191] Thereafter, litigants who could meet a two-part "stigma
plus" test were allowed to bring claims regarding reputational damage in federal
*185 Like a minor charged with an act of juvenile delinquency, a parent accused
of sexual abuse in a child custody proceeding does not face criminal sanctions;
however, the court makes a factual determination as to whether a criminal act
has been committed. [FN193] While presumptions of innocence do not apply in
civil sexual abuse fact-finding hearings, [FN194] the proceedings do take on
quasi-criminal characteristics. [FN195] An examination of the New York statutes
regarding child protective proceedings demonstrates the unique risks confronting
Under New York State law, in order to sustain a petition alleging the sexual
abuse of a child, the court must identify the specific section of penal law
violated. [FN196] The family and criminal courts have concurrent jurisdiction.
[FN197] There are unique search and seizure laws under the New York's Family
Court Act which, for example, allow forcible entries. [FN198] The respondent's
initial *186 appearance is much like an arraignment. [FN199] Special evidentiary
rules afford the accused far less protection than they would receive in criminal
trials. [FN200] Parents who choose to testify on their own behalf in family
court do so at their peril-- there is no statutory protection against
self-incrimination. [FN201] Furthermore, a hearsay exception permits a child's
out-of-court statements to be used at the hearing, provided there is other
admissible evidence to corroborate the child's statements. [FN202] In practice,
a single anonymous call to a child abuse hot-line or a paid "expert's" testimony
may satisfy the corroboration requirement. [FN203]
Moreover, regardless of whether a charge is made in a civil or criminal
proceeding, an allegation of sexual abuse necessarily places the parent and the
state in adversarial positions. The Santosky court recognized the gross
disparity of the resources available to each side.
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
*187 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 the
It is readily apparent that, regardless of whether a proceeding results in a
finding of juvenile delinquency, a permanent termination of parental rights, or
a temporary loss of custody, the state retains an overwhelming advantage.
[FN205]Utilizing a minimal standard in child abuse and neglect proceedings
"places a great deal of importance on an adequate, well prepared and vigorously
litigated defense." [FN206] In spite of statutory rights to counsel afforded in
some states, the parent of limited means is placed at greater risk. [FN207] As a
result, the poor and minorities are most vulnerable to erroneous custodial
deprivation decisions. [FN208]
The intermediate standard of proof--clear and convincing evidence--is warranted
when more certainty is required "to preserve fundamental fairness in a variety
of government-initiated proceedings that threaten the individual involved with
'a significant deprivation of liberty' or 'stigma." ' [FN209] Family courts have
*188 not fairly considered parents' contentions that the stigma which results
from a finding of sexual abuse of a child adversely impacts their rights,
particularly considering the prominence of child abuse registries.
In Lee TT. v. Dowling, [FN210] the New York Court of Appeals affirmed a decision
that determined that procedures associated with the state's child abuse registry
violated the rights of accused individuals. [FN211] Although this case did not
involve child protective proceedings, it implicates the stigmatizing effect of
sexual abuse allegations.
Lee TT. consolidated two cases involving parties who were the subjects of
reports which resulted in the listing of their names with the New York State
Central Register of Child Abuse and Maltreatment. [FN212] One petitioner, a
child psychologist, was reported to have sexually abused his 16-year old
stepdaughter. [FN213] The other petitioners were foster parents. [FN214] A
school psychologist filed a report suspecting abuse in response to their foster
daughter's "acting out" sexually. [FN215] In both cases, the reports were
investigated, hearings held, and although the reports were unsubstantiated, the
registry refused their requests to expunge the records because there was "some
credible evidence" of the allegations. [FN216]
*189 On appeal, the Lee TT. court considered whether the state, through its
registry procedures, had deprived the parties of any constitutionally protected
right, and if so, what process was due. [FN217] The court applied the
"stigma-plus" test. [FN218] The first prong, damage to reputation, must be
supplemented by a showing that the reputational injury caused by state action
affected some "tangible" interest. [FN219] Because the listing was found to
"severely jeopardize" the psychologist's future employment opportunities, the
court found there was a constitutionally protected interest. [FN220] The foster
parents, now precluded from realizing the tangible benefits of foster care
contracts, were found to be similarly damaged. [FN221]
Once the court determined that a liberty interest was implicated, it applied the
Mathews three-part balancing test, considering the rights and interests of the
parties. [FN222] The court found that the "State and private interests [were
both] weighty and compelling." [FN223] Based on what the court characterized as
a "'bare minimum' of evidence," [FN224] the court concluded that, in order to
disseminate records to employers or state licensing agencies, allegations would
have to be proved by a preponderance of the evidence at a fact-finding hearing.
[FN225] Significantly, the court *190 acknowledged that "the stigma of being
branded a child abuser may extend well beyond employment in the child care field
to prevent employment in any field." [FN226]
III. Unfair Risk Sharing in Child Custody Proceedings
It has been argued that utilizing a higher standard of proof might seriously
jeopardize the child's welfare by placing her at risk to remain or return to a
home where she has suffered from actual, though unproved abuse. [FN227] This
position properly considers the welfare of the child, but fails to recognize the
harm that children suffer from the unsettling effects of custodial intervention.
[FN228] In light of the deviant nature of sex abuse allegations and subjective
determinations, well-intentioned judges and social workers may unwittingly
inflate the risk of erroneous removals.
A. The Political Correctness of Judicial Intervention
Four factors have been identified as influencing judicial decision-making in
child welfare proceedings:
[T]he perceived status quo at the time of custodial choice; a heightened
emphasis upon risks associated with . . . fewer litigation resources; the fact
that the litigation is understandably and inevitably focused upon the
possibility that the respondent has caused harm to the child; and the judge's
special vulnerability to negative feedback in the event of adverse consequences
from a failure to intervene. [FN229]
These factors cumulatively result in a "sequentiality effect" *191 that is
described as the probability that "custodial decisions made at one stage of . .
. [the] proceeding[s] . . . [will] influence decisions at the next stage."
[FN230] Compounding this effect is a bias which causes increasing resistance to
custodial change over time. [FN231] Thus, once the child is removed from
parental custody, there is a strong tendency to maintain the status quo. [FN232]
Risks of non-intervention are exaggerated in cases that involve poorer parents
pitted against the vast resources of the state. [FN233] As public figures,
judges must consider their accountability for erroneous determinations.
"[D]ecisionmakers have great reason to fear that they will be made to regret a
wrongful decision not to intervene and little reason to fear that they will be
made to regret a wrongful decision to intervene." [FN234] Consequently,
political and community pressure may inadvertently result in judges skewing
decisions in favor of custodial intervention. [FN235]
By utilizing the preponderance standard, the risk of error is exacerbated,
[FN236] particularly when facts are uniquely difficult to prove--or disprove.
[FN237] Like the civil commitment proceedings at *192 issue in Addington,
determinations in custody proceedings involving allegations of sexual abuse are
largely dependent on factual interpretation by psychiatrists and psychologists.
Having these professionals testify to the child's experience in the absence of
physical evidence is potentially dangerous. [FN238] The Addington Court rejected
the standard of proof beyond a reasonable doubt, surmising that the state could
not meet its burden of proof given the "lack of certainty and the fallibility of
psychiatric diagnosis." [FN239] Consequently, the Court "turn[ed] to a middle
level . . . of proof that strikes a fair balance between the rights of the
individual and the legitimate concerns of the state . . . . 'clear and
convincing' evidence." [FN240]
The risks of error in child abuse proceedings are magnified by the subjective
nature of the determinations. [FN241] The Court in Santosky acknowledged the
danger of such subjectivity in the judges' "unusual discretion to underweigh
probative facts that might favor the parent." [FN242] This is particularly risky
to the parent accused of sexual abuse. [FN243] Symptoms such as a sudden
interest in sexual acts, loss of appetite, or reversion to bedwetting may be valid
indicators that a child is being sexually abused. [FN244] *193 Under
different circumstances, however, these same symptoms might be attributed to
childhood stress, divorce, or exposure to age- inappropriate television
Judges face particular difficulty in assessing the validity of evidence
presented in child sexual abuse matters. [FN246] In In re Jaclyn P., [FN247] a
family court found that a father had sexually abused his two daughters, who were
ages two and three at the time of the alleged incidents. [FN248] At trial, the
children's mother testified that her older daughter had described repeated acts
of sexual abuse by their father. [FN249] The father denied the allegations and
there was no physical evidence to support the claims. [FN250] Witnesses for the
father, including several medical doctors and mental health professionals, also
testified that there was no evidence substantiating the allegations. [FN251] The
child's out of court statements were corroborated by a certified social worker
who had interviewed the child and obtained detailed descriptions of abuse using
anatomically correct dolls. [FN252] The Family Court dismissed the petition. The
appellate court, citing In re Tammie Z., reversed, stating that "the evidence
preponderated in favor of the presentment agency." [FN253] The New York Court of
Appeals affirmed, stating that there was adequate support for a finding of
sexual abuse. [FN254]
*194 The sole dissenting judge strongly objected to the reliability of the
evidence. [FN255] The dissent questioned whether the expertise of the social
worker had been properly established. [FN256] The dissent noted that there had
been no evidence introduced to demonstrate that the social worker had prior
experience with sexually abused children of similar age or specialized training
in dealing with situations where no physical evidence substantiated the alleged
sexual abuse. [FN257] The dissenting judge questioned the social worker's
techniques, noting the absence of testimony regarding whether they were accepted
by the professional therapeutic community, [FN258] particularly the
controversial use of "anatomically correct" dolls. [FN259] The dissent
questioned the reliability of using dolls with "pronounced genitalia"--their use
might influence a child's responses. [FN260]
A higher standard of proof will not jeopardize the welfare of children when
allegations of sexual abuse are supported by physical evidence. [FN261] When
physical evidence is lacking, however, *195 courts are too willing to err on the
side of caution. [FN262] Considering the myriad of factors that perpetuate
erroneous custodial deprivations, a preponderance of the evidence--a standard of
proof rejected for civil commitment and juvenile delinquency proceedings--in the
words of Justice Blackmun, "does not reflect properly" the relative severity of
the outcomes. [FN263]
B. Child Abuse Registries
As Lee TT. demonstrates, child abuse registries serve an important purpose
[FN264] but have detrimental and potentially devastating social and economic
consequences for the accused parent. [FN265] The decision cites Valmonte v.
Bane, [FN266] in which the *196 plaintiffs had asserted that seventy-five per
cent of the challenged child registry reports were expunged for lack of even
this low level of proof. [FN267] State agencies, however, are subjected to
increasing scrutiny regarding their failure to detect patterns of abuse directed
at a particular child or in a family. [FN268] Expungement of unfounded records
has compounded the problem because it effectively erases historical accounts
that might otherwise reveal abusive patterns. [FN269] A study by a special New
York Commission charged with investigating the effectiveness of child abuse
investigations found that traditional social services approaches, particularly
regarding allegations of sexual abuse, were failing. [FN270] As a result, recent
changes to New York State law make it more difficult for unsubstantiated reports
to be expunged. [FN271] The provisions provide a powerful incentive for
increasing social worker accountability. However, the laws' liberal *197
disclosure rules, low evidentiary standard, and an increasing number of false
accusations further subject a falsely accused parent to social stigma.
C. Opening Courtrooms to the Public
Compounding the stigma is a movement to open up family court proceedings to the
public and press, revising the traditional preference to close all such hearings
to outsiders. [FN272] For example, pursuant to a change in New York judicial law
that went into effect on September 2, 1997, Family Court proceedingsare now
presumptively open to the public and to the press. [FN273] While opponents claim
that the long-term negative effects to the parties should outweigh the public's right
to access to the courts, proponents counter that public access plays a
vital educational role. [FN274] Thus far, courts have demonstrated a willingness
to protect the privacy of children, but are far less protective of the privacy
interests of their parents. [FN275]
*198 In the context of a civil proceeding, the preponderance of the evidence
standard contemplates that the parties before the court share equal or near
equal risks in the outcome. Parents whose custodial rights are challenged
because of allegations of sexual abuse, however, face far greater risks than the
typical civil litigant. Political pressure on factfinders and the tendency for
early judicial determinations to influence later ones belie the temporary nature
of the parent's loss. The stigma of child abuse allegations, which may be
unsubstantiated, significantly impact the risks, particularly regarding the
privacy interests of the accused parent. The increasing influence of child abuse
registries and a movement towards opening child protective proceedings to the
public further exaggerate the inequality of risk.
Motivated by a desire to protect children from severe and repeated abuse, our
legal system seeks to serve the interests of parent and child in a manner that
is fundamentally fair. In Santosky v. Kramer, the Supreme Court concluded that,
in order to protect the due process rights of parents facing termination of
parental rights, proof by clear and convincing evidence was required,
particularly since this higher standard of proof would reduce the risk of
erroneous decisions without unduly burdening the state. Determinations made in
custody proceedings that may result in devastating blows to family integrity and
to the individual integrity of the accused likewise require greater certainty
than a preponderance standard affords. The courts' continued reliance on child
custody proceedings' civil nature inequitably allocates the risk of error, to the
considerable detriment of both parent and child.
In an effort to protect children's rights, a climate of hysteria threatens the
lives and liberty of the falsely accused. In the interest of fundamental
fairness, the preponderance of the evidence standard, found to be defective in
parental termination proceedings, should likewise be abandoned in fact-finding
hearings involving a parent's potential loss of custody based on sexual abuse
allegations. Raising the standard of proof to clear and convincing evidence
would serve society's interest in preserving family integrity, ensure that
proceedings are fair to the accused parent, and allow for resources to be
reallocated towards family monitoring and counseling. Thus, this higher standard
would *199 satisfy the state's compelling interest in protecting children and
serve public policy by preserving family integrity.
[FN1]. See HHS Releases New Data Showing High Level of Child Abuse,
Neglect Cases, U.S. Newswire, Apr. 8, 1997, available in LEXIS, Nexis Library,
NEWS/CURNWS File, (quoting Health and Human Services Secretary Donna Shalala:
"Child abuse and neglect continue to be a shameful tragedy in our country, and
every one of us has a stake in preventing it....and our shock must move us to
[FN2]. See Lela B. Costin et al., The Politics of Child Abuse in America 18- 19
(1996). The authors discuss sexual child abuse as a form of entertainment fodder
for talk show hosts, sensational celebrity cases, and the media's focus on
high-visibility trials. See id. The media thereby deflects attention from the
most vulnerable victims, trivializing the problem. See id. at 40.
[FN3]. See A.B.A. Center on Children and the Law, Liability in Child Welfare and
Protection Work: Risk Management Strategies 14 (Marcia Sprague & Robert M.
Horowitz eds., 1991) (discussing frequent litigation under federal civil rights laws
concerning wrongful removal of children from parental custody and qualified
immunity protection afforded social service workers).
[FN4]. See generally id. (discussing child protection agencies' dilemma in
evaluating cases when intervention is required and yet workers must minimize the
potential for litigation charging erroneous intervention); see also Gail Vida
Hamburg, When Parents Fail, Chi. Trib., Nov. 9, 1997, at 1 (discussing climate
of hysteria which has had the unfortunate effect of over-intervention); Susan
Freinkel, Aggressive Counsel, Unpopular Cause, Recorder, July 23, 1992,
(describing a law practice built on representing accused child abusers in an
atmosphere compared to Salem during the witch trials).
[FN5]. See Costin, supra note 2, at 126-29. Federal initiatives include the
Child Abuse and Prevention Act of 1974, the Adoption Assistance and Child
Welfare Act of 1980 and the Omnibus Budget Reconciliation Act of 1993. See
id. By the time President Clinton took office, federal action was urgently needed.
See id. at 127. In spite of projections that federal spending for foster care
would climb 61%, from $2,423,000 in 1993 to $3,913,000 in 1998, there was no
evidence that child welfare conditions were improving. See id. The Children's
Defense Fund estimated that the number of children reported to be abused or
neglected in 1992 had tripled since 1980. See id. State budgets were similarly
burdened. See id. Child welfare researchers Edith Fein and Anthony Maluccio
observed that "[t]he astronomical rise in reports of child abuse and neglect is
stretching the state systems to the breaking point." Id. at 127. The federal
government's policy in directing states to implement policy initiatives
"permitted 50 different state 'systems' to operate." Id. at 128. The result has
been an "overwhelming crisis" of ever-increasing caseloads, inadequately trained
social workers, and insufficient funding. Id. at 128.
[FN6]. See Costin, supra note 2, at 138. Due to a lack of conformity or
consistency in research methods, researchers believe that child abuse is vastly
underreported. See id. at 135. The child abuse and neglect problem has been
likened to an iceberg; the small portion of actual cases recorded by authorities
is but the tip of the iceberg. See id. at 137-38. Time wasted investigating
false or unsubstantiated reports further strains human and economic resources.
See id. at 135.
[FN7]. This Note asserts that a child protective proceeding's characterization
of the parent as a child molester affects distinct interests, warranting
constitutional protection. This assertion comports with the Supreme Court's
recognition of the need for additional procedural protections and certainty in
matters when the final judgment of the court results in the deprivation of
liberty or the imposition of stigma on the accused. See, e.g., Addington v.
Texas, 441 U.S. 418 (1979) (civil commitment); Woodby v. I.N.S., 385 U.S. 276
(1966) (deportation). The Supreme Court found that parents facing the
termination of parental rights deserved additional protection and compared a
parental termination proceeding's fact-finding hearing to a criminal trial due
to the severity of the consequences and the magnified risk of error. See
Santosky v. Kramer, 455 U.S. 745, 760-62 (1982). New Hampshire, Louisiana, and
cases involving United States Native Americans require proof beyond a reasonable
doubt in order to terminate parental rights. See State v. Robert H., 118 N.H.
713, 716 (1978); La. Rev. Stat. § 13:1603.A (West Supp. 1982); Indian Child
Welfare Act of 1978, 25 U.S.C. § 1912(f) (1994).
[FN8]. See supra note 5 and accompanying text. Although approximately 1 million
incidents of child abuse and neglect are substantiated each year, a national
study estimated that, due to underreporting, 2.8 million children were actually
abused and neglected in 1993. See id. It is estimated that 80% of child abuse and
neglect cases may be attributed to parents and other relatives. See id.
[FN9]. See Theodore J. Stein, Child Welfare and the Law 54 (1991) (discussing
characteristics of families reported for child abuse and neglect). According to
a study conducted by the American Humane Association, approximately 14% of child
abuse is attributed to sexual abuse. See id.; see also Lisa Carpenter, Changing
the Balance: Rhode Island's Amended Termination Of Parental Rights Statute, 60
Wash. U. J. Urb. & Contemp. L. 153, 159 n.34 (1996) (discussing the shifting
constituents of child welfare policies from orphaned and abandoned children to
those abused at the hands of their biological families).
[FN10]. Black's Law Dictionary 1114 (6th ed. 1990). The doctrine of parens
[R]efers traditionally to role of state as sovereign and guardian of persons
under legal disability, such as juveniles...and in child custody determinations,
when acting on behalf of the state to protect the interests of the child. It is the
principle that the state must care for those who cannot take care of
themselves, such as minors who lack proper care and custody from their parents.
Id.; see In re William L., 383 A.2d 1228, 1236 (Pa. 1978). The doctrine of
parens patriae is defined as "the concept that the sovereign is the father of
his country." Id. (citations omitted). Through this doctrine, the state has the
power as well as the duty to protect its minor citizens. See Stanley v.
Illinois, 405 U.S. 645, 649 (1972).
[FN11]. See Stein, supra note 9, at 31 (discussing standards employed by the
various states to determine whether state intervention into family matters is
warranted). "The best interest standard has typically been interpreted as
requiring the decision maker to make long-range predictions about the effects of
parental behaviors on children." Id. at 31. The author argues that, given the
difficulty in making long-range predictions regarding the needs of children,
decisions that result in the separation of parent and child should be predicated
on proof that the child cannot be protected from specific harm, rather than
"hypotheses" about long-range harm. See id. at 31-32; see also Meredith Felise
Sopher, "The Best of All Possible Worlds": Balancing Victims' and Defendants'
Rights in the Child Sexual Abuse Case, 63 Fordham L. Rev. 633, 639-40 (1994)
(discussing states which provide for the appointment of a guardian ad litem to
represent a child's best interests in a child protective proceeding).
[FN12]. The function of a standard of proof should "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." In r
e Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). The Court stated
that "[i]n 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. 418, 425 (1979) (quoting Tippett v.
Maryland, 436 F. 2d 1153, 1166 (4th Cir. 1971)).
[In the typical civil case], society has a minimal concern with the outcome
[and, therefore,] plaintiff's burden of proof is a mere preponderance of the
evidence....In a criminal case...the interests of the defendant are of such
magnitude that...they have been protected by standards of proof designed to
exclude as nearly as possible the likelihood of an erroneous judgment....The
intermediate standard, which usually employs some combination of the words
"clear," cogent," "unequivocal" and "convincing," is less commonly used.... One
typical use of the standard is in civil cases involving allegations of fraud or
some other quasi-criminal wrongdoing by the defendant. The interests at stake in
those cases are deemed to be more substantial than mere loss of money and some
jurisdictions accordingly reduce the risk to the defendant of having his reputation
tarnished erroneously by increasing the plaintiff's burden of proof.
[FN13]. Id. at 423-424. See generally Prince, Richardson on Evidence § 3- 203
(Richard T. Farrell, ed. 1995). Used primarily in the civil context, litigants,
usually suing for monetary damages meet in court to prove their respective
cases, each shouldering an equal burden of proof. See id. In order to establish
proof by a preponderance of the evidence, the fact finder need only believe that
a "fact is more probable than its non-existence." Id. § 3- 206 (citing In re
Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). "A fair
preponderance of evidence does not necessarily mean a greater number of
witnesses; rather, the quality of the evidence is determinative." Id. § 3-206.
In contrast, criminal defendants must be found guilty beyond a reasonable doubt.
See id. § 3-204. In this instance, any doubt in the factfinder's mind must be
based upon a reason. See id.
[FN14]. See 42 U.S.C. § 625(a)(5)(A)-(F) (1994 & Supp. III 1997). In the event a
state removes a child from a parent's custody, federal law mandates that a
dispositional hearing to determine if out of home placement is to be continued
be held within twelve months.
[FN15]. See infra Part III for discussion of the stigma associated with child
abuse registries; see also Child Abuse Prevention and Treatment Act of 1974, 42
U.S.C. § 5101-5119 (1994 & Supp. II 1996). The Child Abuse Prevention and
Treatment Act requires states to maintain systems to report, monitor, and
respond to child abuse. Additionally, see Costin, supra note 2, at 34. The Act
established the National Center on Child Abuse and Neglect charged with duties
to research and disseminate information pertaining to child abuse. See 42 U.S.C.
§ 5105 (1994 & Supp. II 1996). Under its research and reporting function, the
National Center on Child Abuse and Neglect must include information on
"substantiated reported child abuse cases that result in civil child protection
proceedings or criminal proceedings...with respect to which the court makes a
finding that abuse or neglect exists and the disposition of such cases." Id. §
5105(a)(1)(C)(iii). The Supreme Court held that "[w]here a person's good name,
reputation, honor, or integrity is at stake because of what the government is
doing to him," a liberty interest may be implicated. Wisconsin v. Constantineau,
400 U.S. 433, 437 (1971). See Bohn v. County of Dakota, 772 F.2d 1433, 1436 n.4
(8th Cir. 1985) (finding that a couple accused of child abuse were "exposed...to
public opprobrium and may have damaged their standing in the community"). The
mere accusation of sexual abuse of one's child may have disastrous consequences.
See Harry Stein, Explosive Charge, Men's Health, July 1993, at 84 (discussing
false allegations made in divorce disputes that leave the accused confronting the
public perception that "such horrific charges can't be entirely
groundless"). In the midst of divorce, a New Jersey woman accused her
psychologist-husband of sexually abusing their 18-month old child. See id. "One
day I was a successful psychologist and professor; the next morning the college
asked for my resignation and my private practice started to collapse. My whole
life was simply wiped away." Id.
[FN16]. This Note focuses on the liberty interests of accused parents but does
not overlook the substantial interests of the child to live free from sexual
abuse or maltreatment of any kind. The loss of one's reputation demands due
process protection. See, e.g., Owen v. City of Independence, 445 U.S. 622,
633-34 n.13 (1980) (holding that conduct damaging reputation in connection with
loss of employment implicates due process); Addington v. Texas, 441 U.S. 418
(1979) (explaining that some jurisdictions increase the plaintiff's burden of proof,
thus effectively reducing the risk to the defendant of having his
reputation tarnished erroneously); Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971) (noting that a protectable liberty interest may be implicated "[w]here a
person's good name, reputation, honor, or integrity is at stake").
[FN17]. Brian J. Molton, Solomon's Wisdom or Solomon's Wisdom Lost: Child
Custody in North Dakota--A Presumption That Joint Custody is in the Best
Interests of the Child in Custody Disputes, 73 N.D. L. Rev. 263, 269 (1997).
[FN18]. Black's Law Dictionary 385 (6th ed. 1990).
[FN19]. Santosky v. Kramer, 455 U.S. 745, 746 (1982).
[FN20]. See Elizabeth Trainor, Annotation, Sufficiency of Evidence to Establish
Parent's Knowledge or Allowance of Child's Sexual Abuse By Another Under Statute
Permitting Termination of Parental Rights for "Allowing" or "Knowingly Allowing"
Such Abuse to Occur, 53 A.L.R. 5th 499 (1997).
[FN21]. See, e.g., In re Five Minor Children, 407 A.2d 198 (Del. 1979)
(explaining that the nature of proceedings to decide parental rights is civil,
not penal, thus the preponderance standard applies); Hernandez v. State ex rel.
Arizona Dep't of Econ. Sec., 530 P.2d 389 (Ariz. Ct. App. 1975) (upholding the
preponderance of the evidence standard in termination proceedings).
[FN22]. 455 U.S. 745 (1982) (finding that proof by a preponderance of the
evidence did not adequately protect the due process rights of parents whose
rights were to be permanently terminated).
[FN23]. In its analysis of the risks of erroneously deciding a parental
termination matter, the Court distinguished termination proceedings from custody
proceedings. See id. at 766 n.16. The Court considered that judicial discretion
in a custody proceeding allowed a judge to reconsider and extend temporary
placement. See id.; see also Douglas A. Besharov, Practice Commentary F.C.A.
McKinney's Consolidated Laws of N.Y. § 1046 at 388-89 (McKinney 1983). Mr.
Besharov states that the Santosky Court's "passing reference is hardly
dispositive of this issue" and notes that evidentiary issues regarding child
protective proceedings are "far from settled." Id.
[FN24]. See H.R. 1855 Before the House Government and Oversight Committee (1995)
(statement of Hollida Wakefield, M.A., and Ralph Underwager, Ph.D., Institute
for Psychological Therapies) (discussing the disastrous consequences to families
resulting from false accusations and lack of procedural protections which "make
fairness and due process nigh impossible."); see infra notes 108- 59.
[FN25]. See Santosky v. Kramer, 455 U.S. 745, 755 (1982). The Court opined that
the "'minimum requirements [of procedural due process] being a matter of federal
law...are not diminished by the fact that the State may have specified its own
procedures that it may deem adequate." ' Id. (quoting Vitek v. Jones, 445 U.S. 480,
491 (1980)). States are free to fashion their own statutory schemes
regarding matters of family law. For purposes of this Note, New York law is used
to illustrate the procedural protections and accompanying due process challenges
to the use of the preponderance of the evidence standard.
[FN26]. See, e.g., In re Robert, 556 N.E.2d 993 (Mass. 1990); In re Katrina W.,
575 N.Y.S.2d 705 (2d Dep't 1991); Wright v. Arlington County Dep't of Soc. Svc.,
388 S.E.2d 477 (Va. Ct. App. 1990).
[FN27]. See Robert A. Barker & Vincent C. Alexander, Evidence in New York State
and Federal Courts § 300.4e (1996); see also Santosky, 455 U.S. at 764 ("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." ') (quoting In re Winship, 397 U.S. 358, 363 (1970)).
[FN28]. See Santosky, 455 U.S. at 755. The Court noted:
When the State brings a criminal action to deny a defendant liberty or life...
"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."
Id. (quoting Addington v. Texas, 441 U.S. 418, 423 (1979)).
[FN29]. See 43 C.J.S. Infants § 62 (1978). The fact-finding hearing is the
adjudicatory stage of the proceeding wherein the allegations are evaluated on
the merits; the dispositional phase determines the temporary resolution. See id.
[FN30]. Use of the preponderance standard does not comport with Supreme Court
jurisprudence regarding matters where substantial personal rights have been
determined to be at stake. See Prince, supra note 13, at § 3-205. The
intermediate standard of clear and convincing evidence has been used when
"policy imperatives dictate adoption of the higher standard of probability reflected
by the term 'clear and convincing' evidence." Id. See, e.g., Cruzan v.
Missouri Dep't of Health, 497 U.S. 261 (1990) (terminating life support
systems); Santosky, 455 U.S. 745 (terminating parental rights); Addington, 441
U.S. 418 (confining individual to a mental institution).
[FN31]. See Santosky, 455 U.S. at 772-73 (1982) (Rehnquist, J., dissenting)
(warning against the perceived "federalization of family law"); see also Mansell
v. Mansell, 490 U.S. 581, 597 (1989) (asserting that the traditional authority
of the State in matters of family law is generally not preempted by federal
law); Lassiter v. Department of Social Servs., 452 U.S. 18, 38 (1981) (Blackmun,
J., dissenting) (claiming that "although the Constitution is verbally silent on
the specific subject of families, freedom of personal choice in matters of
family life long has been viewed as a fundamental liberty interest worthy of
protection under the Fourteenth Amendment"); Smith v. Organization of Foster
Families, 431 U.S. 816, 845 (1977) (locating the source of the liberty interest
in family privacy in traditional notions of basic human rights, rather than
state or federal law); Moore v. City of East Cleveland, 431 U.S. 494, 499
(1977); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Society of
Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399
(1923). But see Rose v. Rose, 481 U.S. 619, 624 (1987) (establishing that the
Supremacy Clause preempts state family law intruding upon substantial federal
[FN32]. See U.S. Const. amend. XIV, § 1; see also Santosky, 455 U.S. at 753
(stating that the Court has traditionally recognized that "freedom of personal
choice in matters of family life is a fundamental liberty interest protected by
the Fourteenth Amendment"); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632,
639-40 (1974); Pierce, 268 U.S. at 534-35 (1925).
[FN33]. See Prince, 321 U.S. at 165-66. The Supreme Court stated that "[i]t is
cardinal with us that the custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder." Id. at 166. This right is
of such magnitude that it is not necessarily preempted by a parent's failings or
even a temporary loss of custody. See Santosky, 455 U.S. at 753.
[FN34]. See Stein, supra note 9, at 26-27 (discussing the evolution of American
family law from the 1800s, when parental rights were seemingly infinite, to the
contemporary approach, which seeks to serve the best interests of the child in a
balancing of parents' and children's rights); see also Reno v. ACLU, 117 S. Ct.
2329, 2343 (1997) (recognizing the federal government's compelling interest in
protecting children's psychological and physical well-being); Santosky, 455 U.S.
at 766 (asserting that the government's "parens patriae interest in preserving and
promoting the welfare of the child" is implicated in parental rights
termination proceedings); J.B. v. Washington County, 127 F.3d 919, 925 (10th
Cir. 1997) (observing that the interests of the parent and child implicated by a
forced separation must be weighed against the government's compelling interest
as parens patriae in protecting minors from abuse); Whisman v. Rinehart, 119
F.3d 1303, 1309 (8th Cir. 1997) (stating that the liberty interest shared by
parent and child in each other's care and companionship is limited by
government's interest in ensuring that children are protected from abuse);
Jordan v. Jackson, 15 F.3d 333, 346 (4th Cir. 1994) (recognizing that the State
has a compelling interest in the welfare and safety of children due to its
status as parens patriae); In re Department of Public Welfare, 421 N.E.2d 28, 36
(Mass. 1981) (observing that "[t]he State as parens patriae may act to protect
minor children from serious physical or emotional harm"); see also Clive Grace,
Social Workers, Children, and the Law 1 (1994) (stating that "social and
political concern oscillates between anxiety that children are failing to get
adequate protection from abuse, and worry that family and parental feelings are
too readily overridden by the child-protection system"); Stein, supra note 9, at
26-28 (discussing the evolution of American family law from the 1800s when
parental rights were seemingly infinite, to the contemporary approach, which
seeks to serve the best interests of the child in a balancing of parents' and
[FN35]. "Between 1976 and 1989, reports of child abuse and neglect rose by
259%...and  increased [again] by 50% between 1985 and 1992." America's
Children at Risk: A National Agenda for Legal Action 45 (1993) (A.B.A., Report
by Presidential Working Group on the Unmet Legal Needs of Children and Their
Families, 1993) (internal citations omitted). The report asserts that public policy
must be redirected from intervention to prevention of child abuse and
neglect. See id. at 45-46.
[FN36]. Pub. L. No. 93-247, 88 Stat. 5 (codified as 42 U.S.C. §§ 5101- 5107
(1994 & Supp. II 1996)).
[FN37]. See id. § 5106(a). In addition to establishing the National Center on
Child Abuse, the Act provides federal funds for state child abuse prevention and
treatment programs. See id.; Stein, supra note 9, at 43-46. The Act has been
amended and its programs expanded many times. See, e.g., Child Abuse Prevention
and Treatment and Adoption Reform Act of 1978, Pub. L. No. 95-266, 92 Stat. 205
(1978) (codified as amended at 42 U.S.C. §5101 (1994 & Supp. II 1996))
(expanding grant-making authority); Child Abuse Amendments of 1984, Pub. L. No.
98-457, 98 Stat. 1749 (1984) (codified as amended at 42 U.S.C. § 5101)
(improving program regarding family violence prevention and associated
services); Child Abuse Prevention and Treatment Act Amendments of 1996, Pub. L.
No. 104-235, 110 Stat. 3063 (1996) (codified as amended at 42 U.S.C. § 5101-
5119 (1994 & Supp. II 1996)) (reauthorizing the Act); see also S. Rep. No.
104-117, at 4-6 (1996), reprinted in 1996 U.S.C.C.A.N. 3490, 3493-95 (providing
history of federal involvement in child abuse and neglect). In 1984, Congress
enacted the Child Abuse Prevention Federal Challenge Grants Act to encourage
states to implement programs for child abuse prevention. See id. at 5, reprinted
in 1996 U.S.C.C.A.N. 3490, 3494. In fiscal year 1990, 47 states qualified for
funds. See id. The Children's Justice and Assistance Act, enacted in 1986,
created new state grants to improve "judicial handling of child abuse cases,
especially those involving child sexual abuse." See Pub. L. No. 99-401, 100
Stat. 903 (1986) (codified at 42 U.S.C. § 5117 (1994 & Supp. II 1996)). In order
to qualify for funding, states must provide for "(1)...reporting of child
abuse...(2) investigations of [the] reports...(3) ...confidentiality of all records
concerning abuse and neglect; (4) guardian ad litem to represent the
child in any court proceedings; (5) public education on child abuse and neglect;
and (6) immunity for persons who report in good faith." Stein, supra note 9, at
44. See 42 U.S.C. § 5106(a)-(c) (establishing eligibility requirements for
federal grants to stakes for use in programs targeted at the prevention and
treatment of child abuse and neglect).
[FN38]. Pub. L. No. 96-272, 94 Stat. 501 (1980) (codified at 42 U.S.C. § 670
(1994 & Supp. II 1996).
[FN39]. See Stein, supra note 9, at 36-43. The goals of the Act were to prevent
removal of the child from the home of his or her natural family whenever
possible and to avoid placing children in long-term foster placement by
reunifying families or facilitating adoptions. See id. at 37. Studies had shown
that permanency planning was less expensive than foster care, and that by
providing extensive social services, families could remain together. See id.
Budget cuts, however, have severely limited the success of permanency planning.
See Costin, supra note 2, at 123.
In the absence of intensive support services, permanency planning for many
children became a revolving door-placement in foster care, reunification with
the biological parent(s), then a return to foster care...[O]ne four-year old New
York boy...was placed in thirty-seven different homes over two months
and...another [child] had been placed in seventeen homes in twenty-five days.
Id. (internal citations omitted); see also Carpenter, supra note 9, at 159
(1996) (discussing provisions of the Adoption Assistance and Child Welfare Act
of 1980). Permanency planning is "the systematic process of carrying out, within
a brief, time-limited period, a set of goal-directed activities designed to help
children live in families that offer continuity of relationships with nurturing
parents or caretakers and the opportunity to establish lifetime relationships." Id.
at 158 n.32 (quoting Katherine S. Homer, Program Abuse in Foster Care: A
Search for Solutions, 1 Va. J. Soc. Pol'y & L. 177, 185 (1993)).
[FN40]. See 42 U.S.C. § 625(a)(1)(C) (1994 & Supp. II 1996) (establishing that
social services should be directed toward "preventing the unnecessary separation
of children from their families by identifying family problems, assisting
families in resolving their problems, and preventing breakup of the family where
the prevention of child removal is desirable and possible").
[FN41]. 42 U.S.C. § 625(a)(1)(B).
[FN42]. See 42 U.S.C. § 675(5)(C) (1994 & Supp. 1998) (recently changing, in
November 1997, the time period within which a dispositional hearing must be held
from 18 months to 12 months); see also Stein, supra note 9, at 40-41 (discussing
federal requirements that cases be reviewed to insure that children are returned
to their families whenever possible). In order to ensure that a child's development
is not unduly interrupted, separation from his or her parents must
be for as short a time as possible. See Lori Klein, Doing What's Right:
Providing Culturally Competent Reunification Services, 12 Berkeley Women's L.J.
20, 38 (1997) (claiming that a parent's interest in the companionship, care, and
custody of a child and the child's right to a safe and stable home justify
allowing the parent to retain custody, unless the parent has been shown to be
unfit) (internal citations omitted); Carpenter, supra note 9, at 159-60, 163-65
(arguing that long term separation from a child's parent can impede the
development of the child) (internal citations omitted); Jennifer Ayres Hand,
Preventing Undue Terminations: A Critical Evaluation of the Length-
of-Time-Out-of-Custody Ground for Termination of Parental Rights, 71 N.Y.U. L.
Rev. 1251, 1257 (1996) (recognizing that even a relatively brief separation from
the parent can have grave effects on a child, as "psychological development depends
on a secure, uninterrupted relationship with one caregiver") (internal
citations omitted); Jill Sheldon, 50,000 Children Are Waiting: Permanency,
Planning and Termination of Parental Rights Under the Adoption Assistance and
Child Welfare Act of 1980, 17 B.C. Third World L.J. 73, 78-79 (1997) (analyzing
the governmental efforts to prevent foster care drift).
[FN43]. 42 U.S.C. § 671(a)(15) (1994 & Supp. II 1996). See Stein, supra note 9,
at 38 (discussing the requirement that, before a child is placed outside the
family home, the state must demonstrate its efforts to avoid that course of
action by first using less intrusive means); see also Jessica A. Graf, Note, Can
Courts and Welfare Agencies Save the Family? An Examination of Permanency
Planning, Family Preservation, and The Reasonable Efforts Requirement, 30
Suffolk U. L. Rev. 81, 97-102 (1996) (discussing Congressional intent to
encourage the correction of problems regarding permanency planning by
enacting the Adoption Assistance and Child Welfare Act of 1980).
[FN44]. See Mallory v. Mallory, 539 A.2d 995, 997 (Conn. 1988) (recognizing
that, in child custody hearings, "a preponderance of the evidence standard
adequately protects a parent from false accusations of sexual abuse, and that
the ordinary civil standard of proof better serves the strong societal interest
in protecting children from abusive parents"); In re Juvenile Appeal (83-CD),
455 A.2d 1313, 1323 (Conn. 1983) (holding that "the proper standard of proof in
temporary custody hearings is the normal civil standard of a fair preponderance
of the evidence"); New Jersey Div. of Youth and Family Servs. v. V.K., 565 A.2d
706, 714 (N.J. Super. Ct. App. Div. 1989) (observing that in temporary custody
proceedings, as opposed to hearings for the termination of parental rights, the
State must prove its case by a preponderance of the evidence); In re N.Y.C.
Dep't of Social Servs. v. Oscar C., 600 N.Y.S.2d 957, 959 (2d Dep't. 1993) (ruling
that the preponderance of the evidence standard is appropriate when the
parent faces a temporary loss of custody); Wright v. Arlington County Dep't of
Soc. Servs., 388 S.E.2d 477, 479 (Va. Ct. App. 1990) (concluding that "the
preponderance of the evidence standard is an appropriate standard for an abuse
and neglect proceeding which may lead to temporary placement of the child"); see
also 43 C.J.S. Infants § 61 (1978 & Supp. 1997).
[FN45]. See supra note 12 and accompanying text; see also Santosky v. Kramer,
455 U.S. 745, 768 (1982). The Court held that the clear and convincing standard
of proof "adequately conveys to the factfinder the level of subjective certainty
about his factual conclusions necessary to satisfy due process." Id. at 769.
[FN46]. See id. at 768.
[FN47]. See id. at 762 (delineating the risks of erroneous fact-finding
attributable to the use of the preponderance of the evidence standard in the context
of cases regarding the termination of parental rights); see also supra
note 41 and accompanying text (discussing the federal preference for maintaining
the integrity of the home).
[FN48]. See, e.g., In re Robert, 556 N.E.2d 993, 997 (Mass. 1990) (recognizing
that "a significant consideration [in a due process analysis] is 'the permanency
of the threatened loss" ') (quoting Santosky, 455 U.S. at 758); In re Tammie Z.,
484 N.E.2d 1038, 1039 (N.Y. 1985) (per curiam) (contrasting the gravity of a
potential error in a permanent termination of parental rights with an 18-month
maximum custodial disposition); Wright, 388 S.E.2d at 478-79 (finding that a
parent's interest in temporary foster care placement is not as substantial as
his or her interest in a permanent termination of parental rights); Mary D. v.
Watt, 438 S.E.2d 521, 526 n.11 (W. Va. 1992) (noting that the interim nature of
temporary custody determinations justifies allowing courts to err on the side of
protecting children at the expense of parental rights).
[FN49]. 405 U.S. 645 (1972).
[FN50]. Id. at 651. The court noted, "It is cardinal with us that the custody,
care and nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the state can neither
supply nor hinder." Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166
[FN51]. See id. at 658. The father challenged a statute that denied him a
hearing regarding his fitness as a parent following the death of his children's
mother. See id. at 646. Under this statute, upon their mother's death, children
of unwed fathers become wards of the state. See id. The father claimed that this
statute discriminated against unmarried fathers, thus violating his rights under
the Equal Protection Clause of the Fourteenth Amendment. See id. The Court
agreed, and established that the constitutionally protected right to family integrity
entitled the father to a fair hearing, wherein Stanley could assert
his fitness. See id. at 657-58. The Court stated, "[t]he private interest here,
that of a man in the children he has sired and raised, undeniably warrants
deference and, absent a powerful countervailing interest, protection." Id. at
651. If through this process, Stanley showed himself to be a fit parent, the
statutory policy would be served by leaving custody with the parent, rather than
the state. See id. at 655. Although a due process claim had not been raised, the
Court next evaluated the Constitutionality of procedures utilized by the state
to advance its interest in protecting children. See id. at 652.
[FN52]. See id. at 651. The Court also affirmed the states' power to protect
children, even if it necessitated removing children from their parents' custody.
See id. at 655-56.
[FN53]. See id. at 650. Under the Illinois statute, unwed fathers lacking parental
status were excluded from the proceedings because their unfitness was
"presumed at law." Id. The father's claim to his children was deemed to be
"irrelevant" under the statute. Id. The statute based its presumption of
unfitness on the generalization that "most" unwed fathers were unfit. Id. at
[FN54]. Id. at 657.
[FN55]. 455 U.S. 745 (1982).
[FN56]. See id. at 747 (stating that New York law allowed the state to terminate
the natural parent's rights in their child upon a showing that the child had
been "permanently neglected") (citing N.Y. Soc. Serv. Law §§ 384- b.4.(d),
384-b.7.(a) (McKinney 1981-82)).
[FN57]. See id. at 753.
[FN58]. Chief Justice Burger and Justices White and O'Connor joined in Justice
Rehnquist's dissent. See id. at 770-91. The dissent warned that the decision
invited the federal courts to "intru[de] into every facet of state family law."
Id. at 770.
[FN59]. See id. at 747-48 (holding that New York law, which allowed termination
of parental rights upon the same level of proof necessary for an award of
monetary damages in a civil trial, provided insufficient protection to the
parents' due process rights).
[FN60]. 424 U.S. 319 (1976). In this case, Eldridge, a disabled veteran, brought
suit when the government stopped payment of his disability benefits, as they had
determined he was no longer disabled. See id. at 324-25. Eldridge challenged the
procedures utilized and asserted that a hearing was required before benefits
were discontinued. See id. at 325.
[FN61]. The Mathews Court fashioned a three-part test to determine what process
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Id. at 335.Additionally, see Santosky, 455 U.S. at 755 (assessing the three
distinct factors in Eldridge). "[T]he 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." Id. (citing Addington v. Texas,
441 U.S. 418 (1979)).
[FN62]. See Santosky, 455 U.S. at 754.
[FN63]. Id. at 758 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341
U.S. 123, 168 (1951) (Frankfurter, J., concurring)).
[FN64]. See id. at 759. The state seeks "not merely to infringe that fundamental
liberty interest, but to end it." Id.
[FN65]. See id.
[FN66]. See id. at 761. The Court noted that termination proceedings at the
fact-finding stage "bear many of the indicia of a criminal trial." Id. at 762. The
Court considered the state's ability to marshal its assets to build a case
against the parent, the potential for cultural or class bias, and the subjective
nature of the decision-making. See id. at 762-63.
[FN67]. See id. at 759.
[FN68]. See id. at 764.
[FN69]. See id. at 768. The Court stated that the sharing of risks was
"constitutionally intolerable." Id.; see also Note, Balancing Children's Rights
into the Divorce Decision, 13 Vt. L. Rev. 531, 559 (1989) (noting that a higher
standard of proof is necessary for balancing risks, when dealing with forced
termination of parental rights); H. Joseph Gitlin, A Legislative Remedy to the
Baby Richard Problem, Chi. Daily L. Bull., Mar. 17, 1997, at 5 (stating that
"[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").
[FN70]. See Santosky, 455 U.S. at 762-64. "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." Id. at 764. The
decision suggests that erroneous determinations are exacerbated by the
vulnerability of the parents. See id. at 762-63. "Because parents subject to
termination proceedings are often poor, uneducated, or members of minority
groups,  such proceedings are often vulnerable to judgments based on cultural
or class bias." Id. at 763 (citing Smith v. Organization of Foster Families, 431
U.S. 816, 833-35 (1977) (citation omitted)). When Smith was decided, 52.23% of
children in foster care were black and 25.5% were Puerto Rican . See Smith, 431
U.S. at 833-34. The Smith Court noted that social workers tend to resist
returning children placed in affluent foster homes to their poorer parents. See id. at
[FN71]. See Santosky, 455 U.S. at 765-66. The risk to the child, in the words of
the Court, is "preservation of an uneasy status quo." Id.
[FN72]. See id. at 766 (discussing how erroneous termination for the natural
parent "is the unnecessary destruction of their natural family").
[FN73]. See id. at 765 (stating that this allocation of risk of error between
parent and child is "fundamentally mistaken"); see also Addington v. Texas, 441
U.S. 418, 423 (1979) (holding the State to a higher burden of persuasion to
"share the risk of error in roughly equal fashion").
[FN74]. See Santosky, 455 U.S. at 766.
[FN75]. See id.
[FN76]. See id. at 767.
[FN77]. See id. at 768. The Court noted that New York also required proof by
clear and convincing evidence for matters involving contract reformation and for
proof of traffic infractions. See id. at 767-68. The Court found that there
would be no undue burden on the state "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." Id. at 768.
[FN78]. See id. at 786 n.12 (Rehnquist, J., dissenting). In addition to its
multi-phased fact-finding and disposition procedures for both custody and
termination proceedings, the dissent noted that New York's family court further
reduced the risk by having one judge supervise a case from initial removal
through final termination. See id. The dissent noted that this gave the judge
the opportunity to become "intimately familiar" with the case. Id.
[FN79]. Id. at 755 (quoting Vitek v. Jones, 445 U.S. 480, 491 (1980)).
[FN80]. See id. at 753-55 (discussing the fairness of state procedures in
parental termination actions and federal concern with ensuring due process).
[FN81]. See id. at 748.
[FN82]. See supra note 26 and accompanying text (discussing that courts rely on
dicta in Santosky and utilize the preponderance standard in child abuse and neglect
[FN83]. See, e.g., In re Tammie Z., 484 N.E.2d 1038, 1038 (N.Y. 1985) (per
curiam) (noting that the appellants argued that the appropriate standard to
follow is clear and convincing evidence, as applied in Santosky, and not a
preponderance standard); In re New York City Dep't of Soc. Servs., 600 N.Y.S.2d
957, 959 (2d Dep't 1993) (explaining that a preponderance standard is to be used
in temporary neglect cases).
[FN84]. Santosky, 455 U.S. at 747.
[FN85]. See Francis B. McCarthy, The Confused Constitutional Status and Meaning
of Parental Rights, 22 Ga. L. Rev. 975, 985 (1988) (discussing the "patchwork of
decisions that leave many questions unanswered").
[FN86]. Compare In re Christine H., 451 N.Y.S.2d 983, 986 (Fam. Ct. Queens
County 1982) (finding that more serious interests that are affected required
proof by clear and convincing evidence), with Tammie Z., 484 N.E.2d at 1039
(holding that preponderance of the evidence is the appropriate standard).
[FN87]. See BeVier v. Hucal, 806 F.2d. 123, 126 (7thCir. 1986) (alleging that
children were being neglected because they were in blistering heat all day, were
filthy, and had severe diaper rash); In re Robert, 556 N.E.2d 993, 994-95 (Mass.
1990) (finding sufficient evidence that eight children were neglected based on
their unkept house, an inadequate number of beds forcing three children to share
one bunk bed and another child to sleep in a chair, lack of a privacy barrier
between male and female children, the children's serious tardiness at school,
absenteeism and emotional problems, and their father's admitted drinking
[FN88]. See In re Kasheena M., 666 N.Y.S.2d 639, 640 (1st Dep't 1997) (removing
children from parents' custody after a finding of physical abuse); In re
Jennifer Q., 652 N.Y.S.2d 829, 830 (3d Dep't 1997) (finding physical abuse as
evidenced by photographs of bruises); In re Fred S., 322 N.Y.S.2d 170, 181 (Fam.
Ct. Richmond County 1971) (finding physical abuse based on medical records
evidencing that a three-year old girl had been badly battered to the extent that
hospitalization was required).
[FN89]. See In re Jaclyn P., 658 N.E.2d 1042, 1043 (N.Y. 1995) (finding that the
preponderance standard was satisfied by the child's out of court statements
alleging sexual abuse by her father with corroboration by a social worker's
testimony and evaluation of the child using anatomical dolls), cert. denied,
Papa v. Nassau County Dep't of Soc. Servs., 516 U.S. 1093 (1996).
[FN90]. See April K. v. Boston Children's Serv. Ass'n, 581 F. Supp. 711, 711-13
(D. Mass. 1984) (describing incidents which indicated that a young child was
both physically and sexually abused); see also 43 C.J.S. Infants § 61 (1978)
("Other such matters which may support a finding of neglect or dependency
include failure to work regularly or provide adequately for the family, debauchery
or immoral conduct of parent, parental strife or marital discord, misconduct or
criminal behavior of the child, and failure of the child to attend school.").
[FN91]. 451 N.Y.S.2d 983 (Fam. Ct. Queens County 1982).
[FN92]. Id. at 986 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
[FN93]. See id. at 983-84. The father denied all of the allegations and
suggested that the timing of the petition was related to marital discord. See
id. at 984.
[FN94]. See id. at 985-86. The court reconsidered traditional adherence to the
preponderance rule in civil family court matters in view of the then- recent
decision in Santosky v. Kramer and an amendment to New York law that added child
abuse as a predicate act on which parental termination could be sought. See id.
at 985. The court noted the potential for criminal prosecution, and the Family
Court Act's definitions of "severe" and "repeated" abuse which "establishe[d] a
rigorous standard for the proof of both intent and injury, which parallels
similar language in the Penal Law." Id. at 986 n.1. Felony sex offenses
actionable under the Family Court Act were also identified. See id.
[FN95]. See id. at 984. The father's attorney compared the applicable statute to
a criminal statute, thus warranting proof by clear and convincing evidence. See
id. at 984. The court noted the great risk of error given the "subjective
predictions" and "calculated gambles" involved, as well as the preponderance
standard's susceptibility to misinterpretation. Id. at 987 (citation omitted).
[FN96]. See id. at 986-87. The court reasoned that the preponderance standard
could satisfy governmental interest regarding findings of neglect, but more
serious abuse findings warranted the clear and convincing standard of proof. See
id. at 987.
[FN97]. See id. at 987.
[FN98]. 484 N.E.2d 1038 (N.Y. 1985) (per curiam).
[FN99]. See id. at 1038. "In a fact-finding hearing to determine whether a child
is [or has been] abused or neglected, the provision of Family Court Act §
1046(b) that a finding of neglect 'must be based on a preponderance of the
evidence' affords due process under the Federal Constitution." Id.
[FN100]. See id. at 1038. The petition had claimed that the children were
neglected within the meaning of section 1012(f) of the Family Court Act. See
N.Y. Fam. Ct. Act§ 1012(f) (McKinney 1983).
[FN101]. See Tammie Z., 484 N.E. 2d at 1038-39.
[FN102]. See id. at 1039. This test involves the balancing of private interests,
the chance of mistake with a state's procedure, and the governmental interest
supporting the procedure. See id.
[FN104]. See id. at 1038-39. But cf. In re Pablo C., 439 N.Y.S.2d 229, 234 (Fam.
Ct. Bronx County 1980) (determining that clear and convincing evidence is the
proper standard of proof for proceedings to suspend visitation for parents whose
children were removed from home by the state). The court recognized the risk of
error in utilizing the lower preponderance standard and articulated the need to
preserve family integrity:
Use of the higher standard would reflect the premise of state policy and the
Constitution that maintenance of the family unit is the preferred solution, and
would serve to further those particularly important interests of the child and
parent by reducing the likelihood of erroneous decisions to suspend visitation.
Given the interests of the child in being returned home if possible, and the
interest of the state in effectuating that outcome, and given the fact that
supervised visitation provides protection for the child, it is not apparent that
there is any countervailing interest on the part of the child or state which
would be furthered by use of the "preponderance" standard or justify the
increased likelihood of erroneous decisions concomitant with its use.
Id. at 233.
[FN105]. 575 N.Y.S.2d 705 (2d Dep't 1991) (per curiam) (affirming a decision to
remove a child from her mother's custody due to sexual abuse by a sibling).
[FN106]. See id. at 709. The court concluded that removal was necessary because
Katrina's brother, who was discharged to a relative's home, had returned to the
family home. See id.
[FN107]. See id. at 708. Medical evidence presented by Social Services included
a pediatrician who testified to Katrina's enlarged hymeneal opening and vaginal
scarring as being consistent with intercourse. See id. A guidance counselor also
testified that Katrina discussed her brother's "raping" of her. See id. On
appeal, the court found that the evidence supported a finding of abuse. See id.
[FN108]. See id. at 706. Katrina's mother claimed the evidentiary standard did
not afford procedural due process. See id.
[FN109]. Id. at 706.
[FN110]. See id.
[FN111]. Id. at 708. The court stated, "the [s]tate's parens patriae interest in
promoting the welfare of the child is even more compelling where the petition
alleges abuse." Id.
[FN112]. See id. at 707. A parent is not subject to criminal sanctions simply
because there is a finding of sexual abuse. Furthermore, the court found that
the stigma attached to an abuse finding, as opposed to a finding of neglect,
does not "require a higher burden of proof." Id. at 707-08.
[FN113]. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).
[FN114]. See In re Christine H., 451 N.Y.S.2d 983, 986 (Fam. Ct. Queens County
[FN115]. See id. at 984. The mother testified that her husband began sexually
abusing their younger child the previous summer. See id. The child, aged 4, had
stated that her father "put his bone in my mouth and ma[d]e pee pee all over my
mouth." Id. The child had repeated this and similar accounts in the presence of
a third person. See id. Neither the younger child nor the third party testified. See
id. The mother also alleged that the respondent father rubbed the younger
daughter's genitals. The father had allegedly beaten, pushed, and punched an
older daughter. See id. The mother further alleged that her husband drank
excessively and took valium. See id. at 983. The mother testified that she had
consulted with an attorney in mid-August but that the attorney "advised her to
do nothing until an understanding could be reached." Id. at 984.
[FN116]. See id. at 984. The court found that the older child's testimony lacked
credibility, due to her "anger and resolve to have no dealings with her father."
Id. The court determined that the child was "strongly influenced" by her mother
and although her testimony supported some of her mother's testimony, it
contradicted her mother's version in material respects. Id.
[FN117]. See id. The father claimed that the timing of his wife's allegations
was not coincidental: the police complaint containing the allegations occurred
after he ordered his wife's parents out of the marital home, one week after his
wife had passed her medical exams, and during a time when he was traveling
abroad for several weeks. See id.
[FN118]. Id. at 987.
[FN119]. Id. "As in so many of these child abuse proceedings, the events have
occurred away from the view of outside disinterested parties and therefore
credibility becomes a major factor in seeking to determine the truth." Id. at
984. The court noted the risks associated with subjective decisions in child
custody matters. See id. at 987. The opinion suggested that the accused parent's
liberty interests and the stigma associated with a finding of child abuse
required greater certainty despite the proceeding's civil nature. See id. at
986-87 (citing Addington v. Texas, 441 U.S. 418, 425 (1979) (ruling on civil
commitment proceedings), and In re Winship, 397 U.S. 358, 368 (1970) (involving
a civil juvenile delinquency proceeding)). The decision noted that the Supreme
Court had applied the clear and convincing evidence standard in both types of
proceedings, due to the particular importance of the individual's interests and
the need for greater certainty. See id. at 986.
[FN120]. 484 N.E.2d 1038 (N.Y. 1985) (holding that the preponderance standard in
a neglect matter affords due process under federal law).
[FN121]. Id. at 1039. The court found risk of mistake to be a "fundamental
difference" between an abuse and neglect proceeding. Id.
[FN123]. See id.
[FN125]. See id. at 1038 (finding the father had neglected his children
resulting in their placement with the Department of Social Services).
[FN126]. 575 N.Y.S.2d 705 (2d Dep't 1991).
[FN127]. See id. at 707-08. The court acknowledged that subsequent criminal
prosecution, while a possibility, would be "completely independent" and that no
criminal sanctions attached to a finding in a family court proceeding. Id. at 707.
The court acknowledged the "less rigid" rules of hearsay and corroboration
applied in child protective proceedings. Id.
[FN128]. See id. at 708 (citing N.Y. Soc. Serv. Law § 384- b(3)(g) (McKinney
[FN130]. See supra notes 120-25 and accompanying text (discussing Tammie Z.).
[FN131]. See In re Katrina W., 575 N.Y.S.2d 705, 706 (citing In re Nicole V.,
518 N.E.2d 914 (N.Y. 1987) (finding of abuse or neglect need only be proved by
preponderance of the evidence); In re Linda K., 521 N.Y.S.2d 705 (2d Dep't 1987)
(finding that neglect or abuse determination must be based on preponderance of
the evidence rather than clear and convincing evidence standard); In re Ryan D.,
516 N.Y.S.2d 606 (2d Dep't 1987) (determining that the trial court erroneously
applied a clear and convincing standard of proof but dismissing the petition for
failure to meet the lower preponderance standard).
[FN132]. See In re Robert, 556 N.E.2d 993, 995-96 (Mass. 1990). The Supreme
Judicial Court of Massachusetts recognized that § 24 was clear in its
requirement that a "reasonable cause" standard be met in an initial hearing
regarding emergency removal. Id. at 996. The court recognized that when a
statute does not specify the evidentiary standard of proof to be applied, the
standard must comply with due process. See id. The court concluded that the
preponderance of the evidence standard sufficiently protected the parties
involved. See id. at 1001. Additionally, see Mass. Gen. Laws ch. 119, § 24
[FN133]. 556 N.E.2d 993 (Mass. 1990).
[FN134]. See id. at 998; see also supra notes 60-77 and accompanying text
(discussing the particulars of the Mathews test).
[FN135]. Id. at 1001.
[FN136]. See, e.g., In re Sabrina M., 460 A.2d 1009 (Me. 1983) (finding of
sexual abuse of two sisters and physical abuse of brother proven by
preponderance of the evidence).
[FN137]. See, e.g., In re O.E.P., 654 P.2d 312 (Colo. 1982) (affirming judgment
removing child found to be physically and sexually abused based on preponderance
of the evidence).
[FN138]. See, e.g., Wright v. Arlington County Dep't of Soc. Servs., 388 S.E.2d
477 (Va. Ct. App. 1990) (determining by a preponderance of the evidence that
children were sexually abused by mother and mother's boyfriend).
[FN139]. See Cal. Welf. & Inst. Code § 300(d) (Deering 1988) (recognizing the
court's jurisdiction when a minor "has been...or there is a substantial risk
that the minor will be sexually abused"); id. § 355 (stating that the
preponderance of the evidence standard applies during the jurisdictional phase);
id. § 361(b) (stating that a child cannot be taken away from parents without
clear and convincing evidence that the child is in danger). Additionally, see In
re Cheryl H., 200 Cal. Rptr. 789, 798 (Ct. App. 1984) (ruling that preponderance
is sufficient for jurisdictional phase but clear and convincing evidence is
required for placement of child with non-parent).
[FN140]. In re Joshua S., 252 Cal. Rptr. 106, 109 (Ct. App. 1988) (recognizing
that, although the preponderance standard is appropriate in this case, different
due process interests are involved when a child is taken away from a parent);
see also Cynthia D. v. Superior Court, 851 P.2d 1307, 1310 (Cal. 1993) (en banc)
(holding that the use of preponderance standard to terminate parental rights was
proper because the mother's use of dangerous drugs and resulting injury to her
child was previously established by clear and convincing evidence); In re
Jennifer V., 243 Cal. Rptr. 441, 443 (Ct. App. 1988) ("A child may not be
removed from physical custody of a parent or guardian absent clear and
convincing evidence of abuse or neglect."); see also Cal. Rules of Court 1456d
(Deering Supp. 1998) (requiring a finding by clear and convincing evidence that
a child is in danger before removal from parents).
[FN141]. See 25 U.S.C. § 1912(e) (1994). Child custody proceedings for Native
American Indian children require that "[n]o foster care placement may be ordered
in such proceeding in the absence of a determination, supported by clear and
convincing evidence...that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage to
the child." Id. See generally Judge Edward L. Thompson, Protecting Abused
Children (1994) (discussing the impact of child protective proceedings on Native
American Indians). "The interests of children in a wholesome environment has a
constitutional dimension no less compelling than that the parents have in the
preservation of family integrity. In the hierarchy of constitutionally protected
values both interests rank as fundamental, and must be shielded with equal vigor
and solicitude." Id. at 27 (citing In re Jerry L., 662 P.2d 1372, 1374 (Okla.
[FN142]. See, e.g., Wright, 388 S.E.2d at 478-79; In re Robert, 556 N.E.2d 993,
1000 (Mass. 1990).
[FN143]. See Costin, supra note 2, at 119-122 (discussing family preservation
models to assert that the government should target and treat at- risk families,
rather than resort to foster care placement).
[FN144]. See 42 U.S.C. § 629(a) (1994 & Supp. II 1996). The Act provides funding
"[f]or the purpose of encouraging and enabling each State to develop and
establish, or expand, and to operate a program of family preservation services
and community-based family support services." Id.
[FN145]. See Costin, supra note 2, at 119 . By 1993, 30 states had adopted a
family preservation program, Homebuilders, as a model program. See id. Troubled
families are identified and assigned a caseworker. See id. at 120. Although a
pilot program involved a caseworker assigned to "no more than two families" in
order to provide round-the-clock access and intensive family services, avoidance
of more expensive foster or institutional care resulted in "astonishing" cost savings. Id.;
see also Peter A. Lauricella, Chi Lascia La Via Vecchia Per La
Nuova Sa Quel Che Perde E Non Sa Quel Che Trova: The Italian-American Experience
and Its Influence on the Judicial Philosophies of Justice Antonin Scalia, Judge
Joseph Bellacosa, and Judge Vito Titone, 60 Alb. L. Rev. 1701, 1711 (1997)
(asserting that Justice Scalia views "the preservation of the family unit as
paramount"); Carole A. Smith, Family; Family Preservation Services, 25 Pac. L.
J. 701, 704-05 (1994) (examining state law which encourages family
But see Melanie Togman Sloan, No More Baby Jessicas: Proposed Revisions to the
Parental Kidnapping Prevention Act, 12 Yale L. & Pol'y Rev. 355, 381 (1994)
(criticizing the policy of family preservation and claiming that it "is not
based on the best interest of the child and more specifically on the child's
[FN146]. See Cal. Welf. & Inst. Code § 361(b) (Deering 1988 & Supp. 1997); In
re Joshuia S., 205 Cal. App.3d 119, 125 (Ct. App. 1988) ("Questions concerning a
more stringent standard [than preponderance of the evidence] do not arise until
a finding of dependency results in a disposition which severs the parent-child
relationship either temporarily or permanently."); In re Christopher B., 82 Cal.
App. 3d 608, 617 (Ct. App. 1978) (stating that "clear and convincing proof is
required only when the final result is to sever the parent-child relationship
and award custody to a nonparent").
[FN147]. See Cal. Welf. & Inst. Code § 300 (Deering 1994) (defining minors
subject to the court's jurisdiction including those determined to be sexually
abused or at risk of sexual abuse). The statute expressly provides that services
to families in need of assistance may be offered regardless of whether there is
an adjudication of abuse or neglect. See id. Additionally, see Cal. Welf. &
Inst. Code § 16500.5 (Deering 1994) (containing a variety of legislative initiatives
aimed at supporting and preserving family unity).
[FN148]. In re Pablo C., 439 N.Y.S.2d 229, 233 (Fam. Ct. Bronx County 1980). See
also Resignato v. Resignato, 624 N.Y.S.2d 440, 441 (2d Dep't 1995) ("Denial of
visitation rights is a drastic remedy, and should only be done where there are
compelling reasons and substantial evidence that such visitation is detrimental
to the child's welfare."); Vasile v. Vasile, 498 N.Y.S.2d 635, 636 (4th Dep't
1986) (asserting the importance of visitation to the noncustodial parent).
[FN149]. 439 N.Y.S.2d 229 (Fam. Ct. Bronx County 1980).
[FN150]. See id. at 233. The court stated:
[An] assessment of the interests of the child, parent and State in a
determination of the question of suspension of visitation and the use of a
particular standard of proof leads to the conclusion that the appropriate
standard in this type of proceeding is the equivalent of the "clear and
Id. The natural mother of two children placed in foster care objected to the
foster parents' petition to suspend her visitation privileges. See id. at 230.
Although the Supreme Court had not yet considered the due process issues later
decided in Santosky v. Kramer, the New York trial court used a similar analysis
in weighing the interests of parent, child and the state in reaching its
decision. See id. at 231-32.
[FN151]. See W.M.E. v. E.J.E., 619 So.2d 707, 709 (La. Ct. App. 1993) (applying
preponderance of evidence standard of proof in a proceeding to suspend
visitation because such suspension is not permanent); In re Marriage of
Kingsbury, 917 P.2d 1055, 1058-60 (Or. Ct. App. 1996) (asserting that the
suspension of the father's visitation rights could be reexamined when it would
be in the daughter's best interest to do so).
[FN152]. Pablo C., 439 N.Y.S.2d at 234 (claiming that the degree of intrusion
caused by the suspension of visitation must be considered in determining the
applicable standard of proof); see also Acker v. Acker, 623 N.Y.S.2d 34, 34 (4th
Dep't 1995) (observing that the denial of visitation is such a drastic remedy
that substantial evidence and compelling reasons must be presented as to why it
would be in the child's best interests to discontinue visitation).
[FN153]. Pablo C., 439 N.Y.S.2d at 233 (stating that a permanent alternative to
reuniting the family can be sought only when it is impossible for a normal
family home to be provided for the child by the parent).
[FN154]. Id. at 234 (quoting Backer Management Corp. v. Acme Quilting Co., 385
N.E.2d 1062, 1066 (N.Y. 1978)).
[FN155]. Id. at 233 (stating that breaking the custodial link by denying parents
visitation "sets the stage" for eventual termination of parental rights); see
also Acker, 623 N.Y.S.2d at 34 (describing the denial of visitation as a drastic
[FN156]. See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) (observing that
"[c]hild abuse is one of the most difficult crimes to detect and prosecute...
because there often are no witnesses except the victim"); see also Sopher,
supra note 11, at 636 (discussing evidentiary difficulties encountered
in prosecuting and defending child sexual abuse cases due to lack of physical
evidence in most cases).
[FN157]. See, e.g., supra notes 104-06 and accompanying text.
[FN158]. Santosky v. Kramer, 455 U.S. 745, 775 (1982) (Rehnquist, J.,
[FN159]. See Addington v. Texas, 441 U.S. 418, 427 (1979) (asserting that "[t]he
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").
[FN160]. See Woodby v. INS, 385 U.S. 276, 285 (1966) (recognizing the serious
consequences of deportation).
[FN161]. See Chaunt v. United States, 364 U.S. 350, 353 (1960) (asserting that
"in view of the grave consequences to the citizen, naturalization decrees are
not lightly to be set aside"); Schneiderman v. United States, 320 U.S. 118, 122
(1943) (recognizing the importance of the right of citizenship, and that "such a
right once conferred should not be taken away without the clearest sort of
justification and proof").
[FN162]. See Santosky, 455 U.S. at 756. The Santosky court realized that certain
civil proceedings which threaten important liberty interests or result in stigma
to the individual deserve the greater certainty provided by the clear and
convincing evidence standard. See id. at 756.
[FN163]. See id. at 758; see also Gilbert v. Homer, 117 S. Ct. 1807, 1813 (1997)
(recognizing that the Supreme Court, "in determining what process is due, [must
take into account] 'the length' and ' finality of the deprivation" ').
[FN164]. 441 U.S. 418 (1979).
[FN165]. See Santosky, 455 U.S. at 759.
[FN167]. See Addington, 441 U.S. at 423-25 (asserting that "[t]he standard [of
proof] serves to allocate the risk of error between the litigants and to
indicate the relative importance attached to the ultimate decision").
[FN168]. Id. at 430.
[FN169]. See id. at 423 (recognizing that the preponderance standard is
well-suited for civil proceeding because it affords the rights of the parties
approximately equal weight).
[FN170]. Id. at 423 (contrasting the function of the Due Process Clause in civil
and criminal cases).
[FN171]. Id. at 427 (expressing that equal risk sharing in this situation is
inappropriate because erroneous decisions pose a substantially greater threat to
an individual's interest).
[FN172]. Id. at 426 (analyzing the detrimental effect of employing the
preponderance standard given the state's interest in the matter).
[FN173]. See supra note 10 and accompanying text.
[FN174]. See In re Winship, 397 U.S. 358, 365-66 (1970) (rejecting the
preponderance standard in civil juvenile delinquency proceedings). The Court
noted that "civil labels and good intentions do not themselves obviate the need
for criminal due process safeguards in juvenile courts." Id.; see also In re
Dianne P., 494 N.Y.S.2d 881, 884 (2d Dep't 1985) (acknowledging that the
"potential impact" child custody proceedings have on "family relationships
evokes the need for limited constitutional protections").
[FN175]. See Addington, 441 U.S. at 426-27 (noting the impact that burdens of
proof have on the factfinder).
[FN176]. See Santosky v. Kramer, 455 U.S. 745, 764-65 (1981) (quoting Addington,
441 U.S. at 427) (noting the importance of using a clear and convincing standard
"in a parental rights termination proceedings [because it] would alleviate 'the
possible risk that a factfinder might decide to [deprive] an individual based
solely on a few isolated instances of unusual conduct [or]...idiosyncratic
[FN177]. See Addington, 441 U.S. at 425 (noting the potential loss of liberty in
civil commitments "requires due process protection").
[FN178]. See, e.g., N.Y. Fam. Ct. Act § 1052 (McKinney 1999). Dispositional
alternatives include: the child's placement in a foster home or state
institution; issuance of an order of protection or restriction; or prohibition
of contact between parent and child. See id.
[FN179]. See infra Part III (regarding the social stigma of sexual abuse
findings); see also Stein, supra note 9, at 31 (discussing ambiguous statutes
and the social harms that they may confer on both parent and child).
[FN180]. See Santosky, 455 U.S. at 745. The Court acknowledged that a natural
parent's interest in "'the companionship, care, custody, and management of his
or her children' is an interest far more precious than any property right." Id.
at 758-59 (citation omitted).
[FN181]. See Addington, 441 U.S. at 428 (distinguishing standards of proof in
civil and criminal proceedings and declining to equate civil commitment
proceedings with juvenile delinquency proceedings).
[FN182]. See Sopher, supra note 11, at 638 n.38 (explaining that "[b]ecause the
juvenile court's purpose is to implement nonpunitive, individualized justice for
children, the focus is on help and treatment, not punishment."); In re Diane P.,
494 N.Y.S.2d 881, 885 (2d Dep't 1985) (noting that parents in child custody
proceedings do not face criminal penalties); In re Vance A., 432 N.Y.S.2d 137,
146 (Fam. Ct. New York County 1980) (noting that civil child protection
proceedings serve a remedial, as opposed to a punitive, purpose). But see Stein,
supra note 9, at 31 (discussing the argument that child neglect laws are
unconstitutionally vague and attempt "to punish parents for antisocial
[FN183]. See Addington, 441 U.S. at 426 (noting that regardless of the label
used, classifications that draw negative social attention "can have a very
significant impact on the individual").
[FN184]. Id. at 425-26.
[FN185]. Id. at 426 (referring to involuntary mental commitment).
[FN186]. Id. at 431.
[FN187]. 397 U.S. 358 (1970).
[FN188]. See Addington, 441 U.S. at 427-28 (discussing In re Winship, 397 U.S.
[FN189]. See Winship, 397 U.S. at 363. The Court stated that juvenile
delinquency proceedings implicated the "possibility that [the respondent] may
lose his liberty upon conviction and...the certainty that he would be
stigmatized by the conviction." Id.
[FN190]. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (holding that a
state sponsored "posting" statute attached a "badge of infamy" to the citizen,
and resultingly implicated due process concerns). A year later, the Court
decided Board of Regents v. Roth, 408 U.S. 564 (1972). The Court acknowledged
that refusal to re-employ a state employee might, under certain circumstances,
implicate a liberty interest. See id. at 573. In 1979, Congress enacted § 1983
of the public health and welfare code, which created a federal cause of action
when state action deprives an individual of "rights, privileges, or immunities
secured by the Constitution." 42 U.S.C. § 1983 (1994).
[FN191]. See Paul v. Davis, 424 U.S. 693, 711-12 (1976) (stating that in order
for a liberty violation to occur, a state-protected right or status separate
from the injury to reputation must be altered or terminated). The plaintiff's
name and photograph were included in a police department flyer which was
circulated to local merchants. The flyer was entitled "active shoplifters." Id.
at 695. At the time, the matter was pending and the plaintiff's guilt or
innocence had not been established. See id. at 696.
[FN192]. See id at 708-10. The Court explained that the stigma associated with
defamatory allegations is "doubtless an important factor in evaluating the extent
of harm worked by that act, but we do not think that such defamation,
standing alone, deprive[s the victim] of any 'liberty' protected by the
procedural guarantees of the Fourteenth Amendment." Id. at 709. The court
distinguished prior cases in which the "'public opprobrium and scorn" ' resulted
from formalized government action and "'affirmative determinations." ' Id. at
707 n.4 (quoting Hannah v. Larche, 363 U.S. 420, 443 (1960)) (criticizing
Justice Brennan's dissent). Justice Brennan argued that the majority's
foreclosure of constitutional safeguards amounted to a "regrettable abdication"
of the court's role in protecting against "arbitrary and capricious official
conduct." Id. at 734-35 (Brennan, J., dissenting).
Stigma plus involves a two-prong test. See Tarkanian v. National Collegiate
Athletic Ass'n, 741 P.2d 1345, 1350 (Nev. 1987), rev'd on other grounds, 488
U.S. 179 (1988). The first prong is satisfied by an injury to reputation. See id.
Additionally, the stigma must be so severe that the individual is precluded
from pursuing opportunities in his chosen profession. See id.; see also Stretten
v. Wadsworth Veterans Hosp., 537 F.2d 361, 366 n.13 (9thCir. 1976).
[FN193]. See In re Gina D., 645 A.2d 61, 65 (N.H. 1994) ("[A]n abuse proceeding
undertakes a solemn decision-making process as does a criminal trial on
allegations of sexual abuse.").
[FN194]. See Barton L. Ingraham, The Right of Silence, the Presumption of
Innocence, the Burden of Proof, and a Modest Proposal: A Reply to O'Reilly, 86
J. Crim. L. & Criminology 559, 572 (1996) (discussing the distinctions between
civil and criminal actions in terms of procedures, presumptions, and burdens of
[FN195]. See Santosky v. Kramer, 455 U.S. 745, 762 (1982) (stating that "the
factfinding stage of a state-initiated permanent neglect proceeding bears many
of the indicia of a criminal trial"). In criminal proceedings the potential for creating
factual errors that justified imposing a heightened standard of proof
was found to similarly exist in parental termination proceedings; therefore,
imposing the clear and convincing standard in termination proceedings had "both
practical and symbolic consequences." Id. at 764; see, e.g., infra notes 210-21
and accompanying text.
[FN196]. See N.Y. Fam. Ct. Act. § 1051(e) (McKinney 1999).
[FN197]. See id. § 1014 (authorizing transfer to and from family court and
[FN198]. See id. § 1034(2) (McKinney 1999). "The standard of proof and procedure
for such an authorization shall be the same as for a search warrant under the
criminal procedure law." Id. Furthermore, in child protection proceedings,
evidence seized illegally is not subject to the exclusionary rule. See In re
Dianne P., 494 N.Y.S.2d 881, 882 (2d Dep't 1985). The state's interest in
protecting minors was found to far outweigh the exclusionary rule's deterrent
value. See id.
[FN199]. See N.Y. Fam. Ct. Act § 1033-b (McKinney 1999) (listing the rights of a
respondent at the preliminary hearing).
[FN200]. See Lawrence J. Braunstein, Child Sex Abuse Allegations: Recognizing
One's Limits as a Practitioner, N.Y. L.J., Feb. 22, 1991, at 1 (discussing the
application of the exclusionary rule in child protective proceedings); see also
Ingraham, supra note 194, at 572.
[FN201]. See Braunstein, supra note 200 (noting that clients that testify in
child protective proceedings risk self-incrimination in criminal proceedings).
See generally N.Y. Fam. Ct. Act § 1014(c) (McKinney 1999) ("Nothing in this
article shall be interpreted to preclude concurrent proceedings in the family
court and a criminal court."). The family court judge has discretion, however,
to grant "testimonial immunity in any subsequent criminal court proceeding." Id.
[FN202]. See N.Y. Fam. Ct. Act § 1046(a)(vi) (McKinney 1999).
[FN203]. See People v. Daniels, 339 N.E.2d 139, 140-41 (N.Y. 1975) (explaining
that, due to the overriding public policy considerations inherent in sexual
abuse cases, the New York Court of Appeals has relaxed the requirement for
[FN204]. Santosky v. Kramer, 455 U.S. 745, 763 (1982).
[FN205]. See id. Greater procedural and evidentiary protections were
traditionally given to criminal defendants because they were said to need
additional "protection...against the massive forces and resources of the state."
Ingraham, supra note 194, at 574. However, this rationalization may be outdated
because potential sanctions are less severe today than under 18th century
English common law. See id. at 574-75.
[FN206]. Braunstein, supra note 200, at 4.
[FN207]. See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31-32 (1981)
(holding that indigent parents in termination proceedings are not automatically
entitled to court-appointed counsel; rather, the decision should be left to the
discretion of the trial court); see also Kevin W. Shaughnessy, Note, Lassiter v.
Department of Social Services: A New Interest Balancing Test for Indigent Civil
Litigants, 32 Cath. U. L. Rev. 261, 285 (1982) (criticizing the Lassiter court's
failure to establish an absolute right to counsel).
[FN208]. See Alan Sussman & Stephan J. Cohen, Reporting Child Abuse and Neglect:
Guidelines for Legislation 111 (1975) (offering several explanations for the
statistical finding that the number of reported child abuse cases
disproportionately represent the poor and minority populations). To a certain
degree, overrepresentation of minorities in child custody proceedings may be due
to bias in reporting because lower-income families are more visible to police
and caseworkers. See id.; see also Costin, supra note 2, at 149 (considering the
correlation between reports of child abuse and levels of poverty); Peggy Cooper
Davis & Gautam Barua, Custodial Choices for Children at Risk: Bias, Sequentiality
and the Law, 2 U. Chi. L. Sch. Roundtable 139, 157 (1995). The
authors suggest "less drastic...dispositional alternatives, such as family
supervision, home visits, or services for children and families at risk as the
result of inadequate resources." Id.
[FN209]. Santosky, 455 U.S. at 756 (quoting Addington v. Texas, 441 U.S. 418,
[FN210]. 664 N.E.2d 1243 (N.Y. 1996).
[FN211]. See id. at 1246 (holding that a report of sexual abuse must first be
substantiated by a fair preponderance of the evidence before any information
concerning the incident may be released to employers in child care agencies);
see also Larry "R" v. State of New York Dep't of Soc. Servs., 1997 WL 778338, *1
(N.Y. App. Div. 3d Dep't Dec. 18, 1997); In re Kenneth "VV" v. Wing, 652
N.Y.S.2d 894, 896 (3d Dep't 1997); In re Walter W. v. State of New York Dep't of
Soc. Servs., 651 N.Y.S.2d 726, 727 (3d Dep't 1997) (annulling and remitting for a
review consistent with the appropriate standard of proof, an employees request
to have his name expunged from the Central Registry).
[FN212]. See Lee TT., 664 N.E.2d at 1246 (explaining that the petitioners sought
to have their names expunged from the Central Registry).
[FN213]. See id. at 1248. Petitioner was the subject of a telephone hotline call
to the Central Register. See id. The Register sent the report to the local
county Department of Social Services, which investigated the allegation. See id.
[FN214]. See id. (noting that the petitioners had three foster children).
[FN215]. Id. The psychologist filed the report with the Central Register. See
[FN216]. Id. at 1248-49. The Department of Social Services requires an
investigatory finding that "some credible evidence of the alleged abuse or
maltreatment" exist in order to maintain a listing in the Central Register. N.Y.
Soc. Serv. Law § 422(5) (McKinney 1992 & Supp. 1999). Further, the acts
alleged were said to be "reasonably related" to employment in the child care field. Lee
TT., 664 N.E.2d at 1249.
[FN217]. See Lee TT., 664 N.E.2d at 1249.
[FN218]. Id. The two-prong test determines if the damage to reputation rises to
the level of a deprivation of a constitutional right. See id. at 1250.
[FN219]. Id. at 1249 (noting that "[t]he stigma which results from the
publication of such defamatory material is not constitutionally protected. A
loss of liberty results only if some more 'tangible' interest is affected or a
legal right is altered").
[FN220]. Id. at 1250 (explaining that all future employers would have to consult
the list before hiring petitioner, and that if an employer decided to hire him,
the employer would be required to state, in writing, his reasons for such a
[FN221]. See id. (stating that the inclusion of the petitioners in the Central
Register affected their present employment and foreclosed future employment in
the child care area). The listing had resulted in all three of their foster
children being removed by the state. See id. The foster parents were also forced
to abandon their plans to adopt one of the children as a result of their
inclusion in the registry. See id.
[FN222]. See id. at 1250. The three-part balancing test was established by the
Court as a means of examining the constitutional sufficiency of administrative
procedures. See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).
[FN223]. Lee TT., 664 N.E.2d at 1251.
[FN224]. Id. at 1251 (referring to the statutory requirement that "some credible
evidence" exist in order to list reports in the Central Register). Some credible
evidence is defined as "evidence worthy of being believed." Id. (citing
Department of Social Services Child Protective Services Program Manual, app. B,
at 7 (Aug. 1989)).
[FN225]. See Lee TT., 664 N.E.2d at 1252 (stating that "[t]he most practical
method of safeguarding subjects reported to the Central Register is to require a
higher standard of proof before reports are substantiated"). The Court further
concluded that there may be some cases in which it would not be appropriate to
disclose reports, even though the report could be clearly substantiated by a
preponderance of the evidence. See id.
[FN226]. Id. at 1250-51.
[FN227]. See In re Robert, 556 N.E.2d 993, 1000-01 (Mass. 1990).
[FN228]. See Davis & Barua, supra note 208, at 151 n.60 (stating that many
judges focus on the risks in the home and tend to overlook the significant risks
that a child may suffer as a result of placement in a state care program); see
also Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least
Drastic Alternative, 75 Geo. L.J. 1745, 1753-54 (1987) (discussing the
shortcomings of the traditional child welfare system); Pat Litzelfner and
Christopher G. Petr, Case Advocacy in Child Welfare, 42 Social Work 4, 322
(July 1, 1997) (stating that various studies prompted public criticism that instead of
protecting children, the child welfare system was harming them).
[FN229]. Davis & Barua, supra note 208, at 143. The authors assert that it is
more desirable to consider custodial matters by excluding the risks to parents,
and focusing solely on the best interests of the child. See id. at 145 n.35.
[FN230]. Id. at 146.
[FN231]. See id. at 146.
[FN232]. See id. at 156 (stating that "[w]hen a judge errs on the side of
intervention, that intervention becomes the status quo from which deviation will
be difficult in later phases of the proceeding").
[FN233]. See id. at 152.
[FN235]. See id. at 158 (noting that the decision-maker who opts against
intervention is more vulnerable to public reprisal); see also In re Christine
H., 451 N.Y.S.2d 983, 987 (Fam. Ct. Queens County 1982) (stating that "[u]nless
the judge takes no chances and removes all children from all offending or possible
offending parents, some children will suffer further injury and even
death after their cases are brought to court") (citation omitted).
[FN236]. See In re Winship, 397 U.S. 358, 367-68 (1970) (explaining that the
preponderance test is often misinterpreted by the trier of fact). Proof beyond a
reasonable doubt is "a prime instrument for reducing the risk of convictions
resting on factual error." Id. at 363.
[FN237]. See Scott M. Brennan, Due Process Comes Due: An Argument for the Clear
and Convincing Evidentiary Standard in Sentencing Hearings, 77 Iowa L. Rev.
1803, 1809-10 (1992) (noting that the risk of error increases when the
preponderance of the evidence standard is applied to complex issues); see also
U.S. v. Townley, 929 F.2d 365, 369 (8th Cir. 1991) (stating that "[w]e
nonetheless observe the unusual nature of the sentencing determination in this
case....[u]nder such circumstances, due process conceivably could require more
than a mere preponderance").
Conversely, the risk of error diminishes by utilizing the clear and convincing
evidence standard which "is no stranger to the civil law." Woodby v. I.N.S., 385
U.S. 276, 285 (1966). This intermediate standard has been utilized in
quasi-criminal proceedings where greater certainty is required. See Winship, 397
U.S. at 368 n.6 (Harlan, J., concurring) (discussing the applicability of a
clear and convincing standard in deportation proceedings); see also TMF Tool
Co., v. Siebengartner, 899 F.2d 584, 588 n.4 (7th Cir. 1990) (stating that
"[t]he standard is high because of the fear that claims of fraud can be
manufactured easily") (citations omitted).
[FN238]. See infra notes 252-253 and accompanying text.
[FN239]. See Addington v. Texas, 441 U.S. 418, 429 (1979). "Psychiatric
diagnosis...is to a large extent based on medical 'impressions' drawn from
subjective analysis and filtered through the experience of the diagnostician.
This process often makes it very difficult for the expert physician to offer
definite conclusions about any particular patient." Id. at 430.
[FN240]. Id. at 431.
[FN241]. See In re Christine H., 451 N.Y.S.2d 983, 987 (Fam. Ct. Queens County
1982). This risk of error is exaggerated by use of the preponderance standard
because it calls on the factfinder to "perform an abstract weighing of
evidence...without regard to...convincing his mind of the truth of the
propositions asserted." Id. (quoting Dorsan & Rezneck, In Re Gault and the
Future of Juvenile Law, 1 Fam. L. Quarterly No. 4, at 26-27, cited in Winship,
397 U.S. at 368).
[FN242]. 455 U.S. 745, 762 (1982). Subjectivity becomes a particular problem
when sexual abuse is alleged, as vague symptoms may be subject to
interpretations. See Costin, supra note 2, at 17.
[FN243]. See Stein, supra note 9, at 31 (discussing ambiguous child abuse
statutes). "[I]t has been argued that 'the judge, by virtue of parens patriae, has
the freedom and perhaps the responsibility to use his own subjective views.
It is the judge's notion of 'neglect' or 'depravity' that is most important."
Id. (quoting Sanford N. Katz, When Parents Fail: The Law's Response to Family
Breakdown 59 (1971)).
[FN244]. See Costin, supra note 2, at 17 (citing possible indicators of child
abuse according to a list prepared by The National Committee for the Prevention
of Child Abuse).
[FN245]. See id.; see also Thomas D. Lyon & Jonathan J. Koehler, The Relevance
Ratio: Evaluating the Probative Value of Expert Testimony in Child Sexual Abuse
Cases, 82 Cornell L. Rev. 43, 58-63 (1997); Robert P. Mosteller, Syndromes and
Politics in Criminal Trials and Evidence Law, 46 Duke L.J. 461, 469-72 (1996).
[FN246]. Expert testimony espousing various syndromes further complicates
judicial evaluation. See Rita Smith & Pamela Coukos, Fairness and Accuracy in
Evaluations of Domestic Violence and Child Abuse in Custody Determinations,
Judges' Journal, Fall 1997, at 38, 42. Among the theories believed to influence
witness's testimony are "Parental Alienation Syndrome," and "Malicious Mother
Syndrome." Id. at 41.
[FN247]. 658 N.E.2d 1042 (N.Y. 1995).
[FN248]. See id. at 1044 (Smith, J., dissenting) (providing factual and
[FN249]. See id. at 1043 (noting that the older daughter described abuse of both
daughters to the mother).
[FN250]. See id.
[FN251]. See id. The child's paternal grandmother testified that her
granddaughter never complained during her visits. See id. A psychologist and a
family therapist testified that the allegations of abuse were "unfounded." Id.
[FN252]. See id.
[FN253]. Id. (citing N.Y. Fam. Ct. Act § 1046 (McKinney 1999)).
[FN254]. See id. The court of appeals rejected the father's challenge to the
social worker's qualifications, finding that the objections were not properly
raised at the trial level. See id.
[FN255]. See id. at 1044 (Smith, J., dissenting).
[FN256]. See id. The appellate court evaluated the evidence and concluded that
the social worker's testimony was "highly reliable" and that the father's
evidence was "unpersuasive." Id. at 1043. On appeal, the dissent noted that the
social worker was unable to substantiate the abuse until, after the seventh or
eight session, the child told her that she had been sexually abused by her
father. See id. at 1044.
[FN257]. See id. (explaining that the family court found only that the social
worker was an expert in the general area of child sexual abuse).
[FN258]. See id. (indicating that some courts do not permit the use of the
techniques employed by the social worker in this case).
[FN259]. See id. The majority did not address the issue, although the father's
expert disputed the reliability of their use. See id. During cross examination
the social worker admitted that "only the genitals of the dolls used were life-like
while the other features of the body, such as nose, eyes and ears,
were painted on the dolls, and there were no fingers or toes." Id.
[FN260]. Id. Cf. Smith & Coukos, supra note 246, at 41 (arguing against the use
of syndromes with questionable scientific validity to discredit the parent who
reports the abuse).
[FN261]. See, e.g., In re Cheryl H., 200 Cal. Rptr. 789, 812 (1984). The court
found sufficient evidence that the child had been abused by her father based on
the following evidence: 1) sexual play during therapy indicated that the child
had had sexual contact with a male; 2) expert testimony revealed that her
conduct during therapy was consistent with other molested children; 3) the child
had injuries to her vaginal area; 4) the child's injuries could not have
occurred accidentally; 5) the injuries could have been sustained on the days the
child had visitation with her father; 6) the child "recoiled" at the sound of her
father's name; and 7) the father failed to offer evidence that someone other
than himself was responsible. Id. at 812; In re Nicole V., 518 N.E.2d 914,
916-19 (N.Y. 1987) (finding expert testimony that the child displayed behavior
consistent with sexual abuse coupled with physical evidence satisfied
[FN262]. See, e.g., Mary D. v. Watt, 438 S.E.2d 521, 530 (W. Va. 1992) (denying
father unsupervised visitation despite acquittal on same sexual abuse offenses
tried in a criminal court). A single dissenting judge admonished the majority
opinion and remarked on the hysteria surrounding sexual child abuse:
[S]exual abuse these days seems to arouse all the
hysteria that was
associated with witchcraft in yesteryear. In fact, it has even
witch-huntingesque cottage industry, to-wit badly trained, ideological
trauma experts, rape counselors, bachelor level pseudo-psychologists,
social activists, and other assorted species of jacklegs. I am a firm
believer that the best interests of the child are paramount,
but that does
not mean... [that a father], like an accused witch... cannot
beyond any shadow of a doubt. Continuous yelling and screaming of
accusation does not make that accusation any more true.
Id. (Neely, J., dissenting).
But see In re Gina D., 645 A.2d 61, 64 (N.H. 1994) (rejecting sufficiency of
evidence based on psychologist's identification of "victimization themes"
interpreting two-year old child's nightmares and drawings).
[FN263]. See Santosky v. Kramer, 455 U.S. 745, 766 (1982).
[FN264]. See Sussman & Cohen, supra note 208, at 11 (proposing a model law of
reporting child abuse and neglect). The authors argue that "[t]he protection of
children is furthered by encouraging the reporting of cases of suspected child
abuse and neglect." Id.
[FN265]. See Costin, supra note 2, at 35-37 (discussing controversy over false
reports made to child abuse registries).
Even when investigations are handled
well, accused persons often find
to shake off the stigma of being suspected of sexual
abuse, even when the case proves to be unfounded or is dismissed in
court....The label of "child abuser" can have profound consequences,
among them job loss, family breakup, and social isolation.
Id. at 36.
[FN266]. 18 F.3d 992 (2d Cir. 1994) (holding that the procedures employed by the
Department of Social Services to remove names from the state's central register
of suspected child abusers violated due process since they contained an
unacceptably high risk of error).
[FN267]. See Lee TT., 664 N.E.2d 1243, 1252 (N.Y. 1996) (citing Valmonte v.
Bane, 18 F.3d 992, 1003-04 (2d Cir. 1994); Governor's Memoranda, 1996 N.Y. Laws
1846 (statement of George Pataki, Governor) ("[A]pproximately 80% of the reports
made to the child abuse hotline are effectively erased from existence.").
[FN268]. See, e.g., Secrets That Can Kill: Child Abuse Investigations in New
York State, Commission of Investigation, Jan. 1996 at 13. When child abuse
results in a fatality, caseworkers are criticized for not intervening. See id.
at 9. The study showed that confidentiality of records and the expungment of
unfounded reports prevent caseworkers from assessing their alleged failings. See
id. at 11.
[FN269]. See id. at 7.
[FN270]. See id. at 2. The Commission reported that New York State received
128,111 reports of child abuse by parents or guardians in 1994. Of these, 12,593
included allegations of sexual abuse. See id. at 19. During the course of its
investigation, the Commission ascertained that the confidentiality rules which
resulted in expungment of unfounded reports prevented case workers from
detecting and preventing incidents of repeated abuse and shielded case workers
from accountability when serious and sometimes fatal abuse occurred. See id. at
[FN271]. In response to the Commission's findings, the state legislature enacted
the Elisa's Law Child Protective Services Reform Act of 1996. See 1996 N.Y. Laws
ch. 12 (McKinney). The law was named after six-year old Elisa Izquierdo, who
died from her parents' repeated beatings. See Governor's Memoranda, supra note
267, at 1845 (statement of George Pataki, Governor). The law includes revisions
to social services law, domestic relations law, the Family Court Act and the
mental hygiene law, allowing child protective services information to be shared
with schools or health care providers so that abusive families may be quickly
identified and furnished with abuse-preventive services. See id. at 1846; see,
e.g., N.Y. Soc. Serv. Law § 422(4)(A) (McKinney 1992 & Supp. 1999). Rather than
expunge unfounded reports, the records are sealed and not disseminated to the
public. However, records may be shared if the suspected abuser has been charged
with an abuse- related crime, officially reported by a state investigatory
agency or judge, there has been prior disclosure by the individual in a prior
child abuse report, or the child named in the report has died. See §
422-a(1)(a)- (d) (McKinney Supp. 1999).
[FN272]. See N.Y. Fam. Ct. Act § 1043 (McKinney 1999). Under the statute,
hearings have presumptively been closed but public access has been permitted at
the judge's discretion. See id. The stigma associated with a sexual abuse
allegation warrants procedural protections in light of trends towards opening
the courtrooms. See In re Gault, 387 U.S. 1, 24-25 (1967) ("The more
comprehensive and effective the procedures used to prevent public disclosures of
the finding, the less the danger of stigma.").
[FN273]. See N.Y. Uniform Rules Fam. Ct. § 205.4(a) (McKinney 1997). The rule
states that "[t]he Family Court is open to the public. Members of the public,
including the news media, shall have access to all courtrooms, lobbies, public
waiting areas and other common areas of the Family Court otherwise open to
individuals having business before the court." Id.
[FN274]. See In re Ruben R., 641 N.Y.S.2d 621, 624 (1st Dep't 1996) ("[T] he
underlying tragedy, and the ensuing public debate, provided an appropriate
opportunity to educate the public as to the 'essential...role of the Family
Court in the child protective process,' which, thereby, overrode any potential,
long-term damage that would result to the children."); see also David A. Schulz
& Carolyn K. Foley, Child Protective Proceedings: Open to Public? N.Y. L.J.,
Feb. 13, 1996, at S2.
[FN275]. See, e.g., Ruben R., 641 N.Y.S.2d at 621 (reversing trial court
decision which permitted press access to trial). This case involved protective
proceedings for Elisa Izquierdo's five half siblings. The appellate court
reversed and closed the proceedings to the press, noting the privacy interests
of the children. See id. at 626-29. The trial court stated that the parents had
"little privacy left to protect." Id. at 624. Additionally, see In re Katherine
B., 596 N.Y.S.2d 847, 852 (2d Dep't 1993) (reversing trial court decision to
open the courtroom based on the privacy interests of the child, and finding that
the right of media access under the First Amendment did not apply to child
protective proceedings). But see Schulz & Foley, supra note 274 (asserting that
these holdings conflict with the New York Court of Appeals' view that open
courtrooms play a positive role in child protective proceedings and do not
comport with Supreme Court jurisprudence regarding the First Amendment).