Is New York's Statutory Scheme to Terminate Parental Rights Flawed ?

In Santosky v. Kramer (455 US 745 [1982]), the Supreme Court held that New York's statutory scheme to terminate parental rights was flawed because due process required that the fact-finding determination be made by clear and convincing evidence, as opposed to a preponderance of the evidence standard. The majority decision, essentially parent-focused, held that the risk of fact-finding error should be distributed toward the Department of Social Services and away from the parents. In so holding, the decision assumes an alliance or unity of interest between the parents and the child. The minority, in finding that due process was served by a preponderance of the evidence standard, which allocated the risk of error evenly between the parents and the agency, left the children in a neutral position. "The child has an interest in the outcome of the fact-finding hearing independent of that of the parent ... the child's interest in a continuation of the family unit exists only to the extent that such a continuation would not be harmful to him." (Kramer at 790, n 13 [Rehnquist, J., dissenting].) In Swann v. Charlotte-Mecklenburg Bd. of Educ. (402 US 1, 5 [1971]), the Court sought "to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court's mandate [as set forth in Brown v. Board of Educ. (347 US 483 [1954])] to eliminate racially separate public schools established and maintained by state action." The issue of a parent or a child's right to have some say over where and how the child goes to school was completely missing from the Court's discussion. The forced busing of a child to a distant school was an enormous governmental intrusion into a parent's fundamental right to determine the best educational setting for the parent's children. In Swann, this issue deserves no mention. "School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities." (Swann at 16.)