Introduction

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 
allegations. [FN7]

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 
process protection.

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. 
[FN104]

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 
court. [FN192]

*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 
parents.

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 
termination. [FN204]

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 
programming. [FN245]

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.

Conclusion

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 
action.").

[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 
patriae:

[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 
interests).

[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 
children's rights).

[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 
(1944)).

[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 
654.

[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 
was due:

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 
834.

[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 
cases).

[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 
problem).

[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.

[FN103]. 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 
1982).

[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.

[FN122]. Id.

[FN123]. See id.

[FN124]. 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 
1992)).

[FN129]. Id.

[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 
(1994).

[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. 
1983)).

[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 
preservation).

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 
social relationships").

[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