The purpose of this Article is to analyze the Santosky presupposition and demonstrate why it is misdirected. In particular, the Article posits that the clear and convincing standard adopted by the Court deprives the child of his or her due process rights. The minimum standard should be reduced to at least one of preponderance of the evidence. Such a standard would recognize the so-called parental presumption, i.e. the historical preference given to parents, but give greater recognition to the rights of the child.
This Article examines the due process concerns of parent and child from both a legal and a factual perspective. The legal analysis focuses on the level of proof necessary to terminate parental rights. The factual study examines the rapidly changing portrait of the American family and the efforts of individual states to address the alarming increases in abuse, neglect, and abandonment of children by parents. A synthesis of these factual and legal perspectives serves to illustrate that the best interest of the child is not served by adherence to a constitutional standard that deprives states of their legislative ability to address the significant domestic relations problems within their borders.
Raymond C. O'Brien, An Analysis of Realistic Due Process Rights of Children Versus Parents, 26 CONN. L. REV. 1209 (1994).