Maryland’s Scarlett Letter (Continued from page 25)


The earlier Supreme Court case,


Stanley v. Illinois, 405 U.S. 645, recited a long list of cases the Supreme Court has decided with regard to different aspects of parenting. The fundamental concept being that the “integrity of the family unit” must be protected by due process. The courts in Maryland have also fol-


lowed the Supreme Court mandate that parental rights are fundamental and can only be infringed upon by a showing of clear and convincing evidence. See In Re Adoption/Guardianship No. 10941, 335 Md. 99, 112 and In Re Adoption No. 11137, 106 Md. App. 308, 320. The court in Santosky, supra, further analyzed the preponderance standard and determined that the preponderance stan- dard did not fairly allocate the risk of an erroneous fact finding between the State and the natural parents. The Court found that proceedings to terminate parental rights bear many similarities to a crimi- nal trial and numerous factors combine to magnify the risk of erroneous fact find- ing. The Court believed that the failure to fairly allocate the risk of an erroneous fact finding, the indicia of a criminal trial coupled with the preponderance standard created a significant prospect of errone- ous termination of parental rights. The Court opined that to spread the risk of an erroneous finding equally between the state and the parents did not adequately reflect the relative severity of the two out- comes. Santosky at 761-766.


While the cases at hand do not involve termination of parental rights, they do involve a significant infringement on pa- rental rights. First and foremost, they label a parent as an abuser of his child. A finding of indicated child abuse and place- ment on the central registry also severely restricts the parent’s ability to raise chil- dren as he or she sees fit. This parent is


now on notice that should anything else happen to the child or any other accusa- tion be made, being on the list could make the difference between retaining custody. This is most definitely an infringement on the basic fundamental right to parent in the manner the parent deems appro- priate. Beyond that, it strikes fear in the heart of any parent should any harm be- fall the child by accident. The Federal Courts have also found that


reputation and freedom from the stigma of the label of child abuser is a protected in- terest. Bohn v. County of Dakota, 772 F.2d.1433, 1436 (1985). The Bohn opin- ion also cited Wisconsin v. Constantineau, stating, “Where the State attaches a ‘badge of infamy’ to the citizen, due process comes into play.” Id. at 1436. The Court in Bohn dealt with due process in terms of notice and right to an appeal but it is clear that due process protections of the Fourteenth Amendment apply to child abuse central registries as a protectible interest to the par- ents involved. Given the protectible interest against being placed on the central registry it is necessary to once again evaluate the bur- den of proof in those terms. In an analysis of the burden of proof and the Due Pro- cess Clause the court in Santosky stated: In Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L.Ed.2d 323 (1979), the Court, by unanimous vote of the participating Justices, declared: ‘The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘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.’ Id. at 423, 99 S. Ct. at 1808, quoting, In Re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1075, 25 L.Ed.2d 368 (1970). Supra, 1395. The Court in that same case went on


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to state that use of the preponderance standard reflected a judgment on the part of society that it is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Supra, 1401. For obvious reasons that is hardly the case and the Court ruled that the appropriate standard should be at least clear and convincing evidence. For the same reasons the standard for place- ment on the central child abuse registry should be at least clear and convincing evidence. Placement on the list most defi- nitely infringes on the rights of parents to parent and violates a protected liberty in- terest against being placed on the registry and dealing with the stigma of being la- beled a child abuser. The Court in Santosky reiterated the Su-


preme Court’s mandate for an intermediate standard of proof, that of “clear and con- vincing evidence,” when the “individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more sub- stantial than mere loss of money.’ Addington v. Texas, 441 U.S., at 424.” This is not- withstanding the state’s good intentions, id. at 427, quoting In re Winship, 397 U.S., at 365-366. The Court went on to list a se- ries of cases in which it had been deemed appropriate to use the intermediate stan- dard “to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’” 441 U.S., at 425, 426. These cases were: Addington v. Texas, supra (civil commitment); Woodby v. INS, 385 U.S., at 285 (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denatu- ralization).


The question arises whether height-


ened scrutiny is required for adjudicatory hearings where a child is placed in short- or long-term foster care. The Supreme Court and Maryland cases which bear on this issue deal entirely with termination of parental rights–the final step after in the DSS process. During the interim pe- riod between a shelter hearing and termination of parental rights, DSS has a statutory and case law requirement to pro- vide services to the parents to attempt to keep the family unit intact. During this period, custody of the children is re- manded to the state. Given that the vast majority of parents involved in this pro- cess are poor and uneducated, there is dependency on DSS for the success of DSS services. For this reason, every case involving the child abuse registry or adjudication of a CINA case should use the clear and convincing evidence standard.


Winter 2003


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