Parents appealed from judgment of the Family Court, Ulster County, Elwyn, J., which adjudged their children to be permanently neglected.   The New York Supreme Court, Appellate Division, affirmed, 75 A.D.2d 910, 427 N.Y.S.2d 319.   The New York Court of Appeals dismissed the parents' appeal. Certiorari was granted.   The Supreme Court, Justice Blackmun, held that before a state may sever completely and irrevocably the rights of parents in their natural child, due process requires that the state support its allegations by at least clear and convincing evidence, and, therefore, the "fair preponderance of the evidence" standard prescribed by the New York Family Court Act for the termination of parental rights denied the parents due process.

 Judgment vacated and remanded.

 Justice Rehnquist, filed a dissenting opinion in which Chief Justice Burger, Justice White and Justice O'Connor, joined

Headnotes

[1] Child Custody 42

76Dk42 Most Cited Cases

      (Formerly 285k2(3.3))

[1] Child Custody 68

76Dk68 Most Cited Cases

      (Formerly 285k2(3.7))

Fundamental liberty interest of natural parents in care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to State. U.S.C.A.Const.Amends. 5, 14.

[2] Infants 191

211k191 Most Cited Cases

Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life;  if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.  U.S.C.A.Const.Amends. 5, 14.

[3] Infants 194.1

211k194.1 Most Cited Cases      (Formerly 211k194)

When state moves to destroy weakened familial bonds, it must provide parents with fundamentally fair procedures.  U.S.C.A.Const.Amends. 5, 14.

[4] Constitutional Law 274(5)

92k274(5) Most Cited Cases

Nature of process due in parental rights termination proceedings turns on balancing of private interests affected by proceedings;  risk of error created by state's chosen procedure;  and countervailing governmental interest supporting use of challenged procedure.  U.S.C.A.Const.Amends. 5, 14.

[5] Constitutional Law 311

92k311 Most Cited Cases

In any given proceeding, minimum standard of proof tolerated by due process requirement reflects not only weight of private and public interests affected, but also societal judgment about how risk of error should be distributed between litigants.  U.S.C.A.Const.Amends. 5, 14.

[6] Federal Courts 416

170Bk416 Most Cited Cases

Minimum standard of proof mandated by due process is question of federal law which Supreme Court may resolve.  U.S.C.A.Const.Amends. 5, 14.

[7] Constitutional Law 251.5

92k251.5 Most Cited Cases

Retrospective case-by-case review cannot preserve fundamental fairness when class of proceedings is governed by constitutionally defective evidentiary standard.  U.S.C.A.Const.Amends. 5, 14.

[8] Constitutional Law 251.5

92k251.5 Most Cited Cases

Whether loss threatened by particular type of proceeding is sufficiently grave to warrant more than average certainty on part of fact finder turns on both nature of private interest threatened and permanency of threatened loss. U.S.C.A.Const.Amends. 5, 14.

[9] Infants 179

211k179 Most Cited Cases

In parental rights termination proceeding, private interest affected weighs heavily against use of preponderance of the evidence standard at state-initiated permanent neglect proceeding.  U.S.C.A.Const.Amends. 5, 14.

[10] Constitutional Law 274(5)

92k274(5) Most Cited Cases

Until state proves parental unfitness under New York law, child and his parents share vital interest in preventing erroneous termination of the natural relationship, and, therefore, preponderance of the evidence standard provided under New York law does not satisfy due process clause.  N.Y.McKinney's Social Service Law §  384-b, subds. 4(d), 7(a);  N.Y.McKinney's Family Court Act §  622;  U.S.C.A.Const.Amends. 5, 14.

[11] Constitutional Law 274(5)

92k274(5) Most Cited Cases

Preponderance of the evidence standard provided for in New York statutes governing termination of parental rights upon finding that child is "permanently neglected" does not properly allocate risk of error between parent and child, since, for child, likely consequence of erroneous failure to terminate is preservation of uneasy status quo, but for natural parents, consequence of erroneous termination is unnecessary destruction of natural family, and, therefore, due process mandates standard of proof greater than fair preponderance of the evidence.  N.Y.McKinney's Social Service Law §  384-b, subds. 4(d), 7(a);  N.Y.McKinney's Family Court Act §  622; U.S.C.A.Const.Amends. 5, 14.

[12] Infants 178

211k178 Most Cited Cases

Standard of proof more strict than fair preponderance of the evidence is consistent with two state interests at stake in parental rights termination proceedings, parens patriae interest in preserving and promoting child's welfare and fiscal and administrative interest in reducing costs and burden of such proceedings.  N.Y.McKinney's Social Service Law §  384-b, subds. 1(a)(i, ii, iv), 3(g), 4(e);  N.Y.McKinney's Family Court Act §  622; U.S.C.A.Const.Amends. 5, 14.

[13] Constitutional Law 274(5)

92k274(5) Most Cited Cases

Before state may sever completely and irrevocably rights of parents in their natural child, due process requires that state support its allegations by at least clear and convincing evidence.  N.Y.McKinney's Social Service Law §  384-b, subds. 4(d), 7(a);  N.Y.McKinney's Family Court Act §  622; U.S.C.A.Const.Amends. 5, 14.

[14] Constitutional Law 274(5)

92k274(5) Most Cited Cases

Clear and convincing evidence standard adequately conveys to fact finder level of subjective certainty about his factual conclusions necessary to satisfy due process in proceedings in which state seeks to completely and irrevocably sever rights of parents in their natural child.  N.Y.McKinney's Social Service Law §  384-b, subds. 4(d), 7(a);  N.Y.McKinney's Family Court Act §  622; U.S.C.A.Const.Amends. 5, 14.

[15] Federal Courts 416

170Bk416 Most Cited Cases

Determination of precise burden of proof equal to or greater than clear and convincing evidence standard, for purpose of proceedings in which parental rights are terminated, is matter of state law properly left to the state legislatures and state courts.  N.Y.McKinney's Social Service Law §  384-b, subds. 4(d), 7(a);  N.Y.McKinney's Family Court Act §  622; U.S.C.A.Const.Amends. 5, 14.

**1390 Syllabus  [FN*]

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.   See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

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

 Held:

 1. Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding.   Pp. 1393-1396.

 (a) The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.   A parental rights termination proceeding interferes with that fundamental liberty interest.   When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.   Pp. 1393-1394.

 (b) The nature of the process due in parental rights termination proceedings turns on a balancing of three factors:  the private interests affected by the proceedings;  the risk of error created by the State's chosen procedure;  and the countervailing governmental interest supporting use of the challenged procedure.  Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18.   In any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the public and *746 private **1391 interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.   The minimum standard is a question of federal law which this Court may resolve. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.   Pp. 1394-1396.

 2. The "fair preponderance of the evidence" standard prescribed by §  622 violates the Due Process Clause of the Fourteenth Amendment.   Pp. 1396-1402.

 (a) The balance of private interests affected weighs heavily against use of such a standard in parental rights termination proceedings, since the private interest affected is commanding and the threatened loss is permanent.   Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable.   Pp. 1397-1398.

 (b) A preponderance standard does not fairly allocate the risk of an erroneous factfinding between the State and the natural parents.   In parental rights termination proceedings, which bear many of the indicia of a criminal trial, numerous factors combine to magnify the risk of erroneous factfinding. Coupled with the preponderance standard, these factors create a significant prospect of erroneous termination of parental rights.   A standard of proof that allocates the risk of error nearly equally between an erroneous failure to terminate, which leaves the child in an uneasy status quo, and an erroneous termination, which unnecessarily destroys the natural family, does not reflect properly the relative severity of these two outcomes.   Pp. 1398-1401.

 (c) A standard of proof more strict than preponderance of the evidence is consistent with the two state interests at stake in parental rights termination proceedings--a parens patriae interest in preserving and promoting the child's welfare and a fiscal and administrative interest in reducing the cost and burden of such proceedings.   Pp. 1401-1402.

 3. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.   A "clear and convincing evidence" standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.   Determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts.   Pp. 1402-1403.

75 App.Div.2d 910, 427 N.Y.S.2d 319, vacated and remanded.

 *747 Martin Guggenheim, New York City, for petitioners.

 Stephen Scavuzzo, Washington, D. C., for respondents, pro hac vice, by special leave of Court.

  Justice BLACKMUN delivered the opinion of the Court.

 Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is "permanently neglected."  N.Y.Soc.Serv.Law § §  384-b.4.(d), 384-b.7. (a) (McKinney Supp.1981-1982) (Soc.Serv.Law).   The New York Family Court Act §  622 (McKinney 1975 and Supp.1981-1982) (Fam.Ct.Act) requires that only a "fair preponderance of the evidence" support that finding.   Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action.

 Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this.   Before a State may sever completely and irrevocably the rights of parents in *748 their natural child, due process requires that the State support its **1392 allegations by at least clear and convincing evidence.

I

A

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

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

 At the factfinding hearing, the State must establish, among other things, that for more than a year after the child entered state custody, the agency "made diligent efforts to encourage and strengthen the parental relationship." Fam.Ct.Act § §  614.1.(c), 611.   The State must further prove that during that same period, the child's natural parents failed "substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so."  §  614.1(d). Should the State support its allegations by "a fair preponderance of the evidence," §  622, the child may be declared permanently neglected.  *749 §  611.   That declaration empowers the Family Court judge to terminate permanently the natural parents' rights in the child.  § §  631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child. [FN1]

FN1. At oral argument, counsel for petitioners asserted that, in New York, natural parents have no means of restoring terminated parental rights.   Tr. of Oral Arg. 9.   Counsel for respondents, citing Fam.Ct.Act §  1061, answered that parents may petition the Family Court to vacate or set aside an earlier order on narrow grounds, such as newly discovered evidence or fraud.   Tr. of Oral Arg. 26.   Counsel for respondents conceded, however, that this statutory provision has never been invoked to set aside a permanent neglect finding.  Id., at 27.

 New York's permanent neglect statute provides natural parents with certain procedural protections. [FN2]  But New York permits its officials to establish "permanent neglect" with less proof than most States require. Thirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a "fair preponderance of the evidence."  [FN3]  **1393 The only analogous federal statute of which we are aware *750   permits termination of parental rights solely upon "evidence beyond a reasonable doubt."   Indian Child Welfare Act of 1978, Pub.L. 95-608, §  102(f), 92 Stat. 3072, 25 U.S.C. §  1912(f) (1976 ed., Supp.IV).   The question here is whether *751 New York's "fair preponderance of the evidence" standard is constitutionally sufficient.

FN2. Most notably, natural parents have a statutory right to the assistance of counsel and of court-appointed counsel if they are indigent.  Fam.Ct.Act §  262(a)(iii).

FN3. Fifteen States, by statute, have required "clear and convincing evidence" or its equivalent.   See Alaska Stat.Ann. §  47.10.080(c)(3) (1980);  Cal.Civ.Code Ann. §  232(a)(7) (West Supp.1982); Ga.Code § §  24A-2201(c), 24A-3201 (1979);  Iowa Code §  600A.8 (1981) ("clear and convincing proof");  Me.Rev.Stat.Ann., Tit. 22, §  4055.1.B.(2) (Supp.1981-1982);  Mich.Comp.Laws §  722.25 (Supp.1981- 1982);  Mo.Rev.Stat. §  211.447.2(2) (Supp.1981) ("clear, cogent and convincing evidence"), N.M.Stat.Ann. §  40-7-4.J. (Supp.1981); N.C.Gen.Stat. §  7A-289.30(e) (1981) ("clear, cogent, and convincing evidence");  Ohio Rev.Code Ann. § §  2151.35, 2151.414(B) (Page Supp.1982);  R.I.Gen.Laws §  15-7-7(d) (Supp.1980);  Tenn.Code Ann. §  37-246(d) (Supp.1981);  Va.Code §  16.1-283.B (Supp.1981);  W.Va.Code §  49-6-2(c) (1980) ("clear and convincing proof");  Wis.Stat. §  48.31(1) (Supp.1981-1982).

Fifteen States, the District of Columbia, and the Virgin Islands, by court decision, have required "clear and convincing evidence" or its equivalent. See Dale County Dept. of Pensions & Security v. Robles, 368 So.2d 39, 42 (Ala.Civ.App.1979);  Harper v. Caskin, 265 Ark. 558, 560-561, 580 S.W.2d 176, 178 (1979);  In re J. S. R., 374 A.2d 860, 864 (D.C.1977); Torres v. Van Eepoel, 98 So.2d 735, 737 (Fla.1957);  In re Kerns, 225 Kan. 746, 753, 594 P.2d 187, 193 (1979);  In re Rosenbloom, 266 N.W.2d 888, 889 (Minn.1978) ("clear and convincing proof");  In re J. L. B., 182 Mont. 100, 116-117, 594 P.2d 1127, 1136 (1979);  In re Souza, 204 Neb. 503, 510, 283 N.W.2d 48, 52 (1979);  J. v. M., 157 N.J.Super. 478, 489, 385 A.2d 240, 246 (App.Div.1978);  In re J.A., 283 N.W.2d 83, 92 (N.D.1979);  In re Darren Todd H., 615 P.2d 287, 289 (Okl.1980);  In re William L., 477 Pa. 322, 332, 383 A.2d 1228, 1233, cert. denied sub nom. Lehman v. Lycoming County Children's Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978);  In re G. M., 596 S.W.2d 846, 847 (Tex.1980);  In re Pitts, 535 P.2d 1244, 1248 (Utah 1975);  In re Maria, 15 V.I. 368, 384 (1978);  In re Sego, 82 Wash.2d 736, 739, 513 P.2d 831, 833 (1973) ("clear, cogent, and convincing evidence");  In re X., 607 P.2d 911, 919 (Wyo.1980) ("clear and unequivocal").

South Dakota's Supreme Court has required a "clear preponderance" of the evidence in a dependency proceeding.   See In re B.E., 287 N.W.2d 91, 96 (1979).   Two States, New Hampshire and Louisiana, have barred parental rights terminations unless the key allegations have been proved beyond a reasonable doubt.   See State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978);  La.Rev.Stat.Ann. §  13:1603.A (West Supp.1982).   Two States, Illinois and New York, have required clear and convincing evidence, but only in certain types of parental rights termination proceedings. See Ill.Rev.Stat. ch. 37, ¶ ¶  705-9(2), (3) (1979), amended by Act of Sept. 11, 1981, 1982 Ill.Laws, P.A. 82-437 (generally requiring a preponderance of the evidence, but requiring clear and convincing evidence to terminate the rights of minor parents and mentally ill or mentally deficient parents);  N.Y.Soc.Serv.Law § §  384-b.3(g), 384-b.4(c), and 384-b.4(e) (requiring "clear and convincing proof" before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse).

So far as we are aware, only two federal courts have addressed the issue. Each has held that allegations supporting parental rights termination must be proved by clear and convincing evidence.  Sims v. State Dept. of Public Welfare, 438 F.Supp. 1179, 1194 (S.D.Tex.1977), rev'd on other grounds sub nom. Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979);  Alsager v. District Court of Polk County, 406 F.Supp. 10, 25 (S.D.Iowa 1975), aff'd on other grounds, 545 F.2d 1137 (CA8 1976).

    B

 Petitioners John Santosky II and Annie Santosky are the natural parents of Tina and John III.   In November 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under Fam.Ct.Act §  1022 and removed Tina from her natural home.   About 10 months later, he removed John III and placed him with foster parents.   On the day John was taken, Annie Santosky gave birth to a third child, Jed.   When Jed was only three days old, respondent transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health.<