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A Better Partnership
May 10, 2013

COA: Preponderance of the evidence is the standard for child's best interest determination in termination proceedings

In In re Moss Minors, the Court of Appeals held that a court must determine whether termination of parental rights is in a child's best interest by a preponderance of the evidence.

After hearing evidence of the respondent mother's substance abuse, mental illness, thoughts of harming her children, and lack of suitable housing, the trial court terminated her parental rights. The appellate court concurred with the trial court's determination that the petitioner had proven two statutory grounds for termination by clear and convincing evidence. The mother claimed that the clear and convincing evidence standard should also apply to the best-interests determination. The court of appeals disagreed.

The court applied the three-factor test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), to determine the appropriate standard of proof that due process would require. First, there was no need for a heightened standard based on competing interests because, after statutory grounds for termination are established, the interests of the parent and child no longer coincide. Second, a clear and convincing standard of proof would shift the risk of an erroneous determination to the state. Lastly, a clear and convincing standard would impair the state's interest in protecting the child and avoiding undue cost. Finding that the preponderance standard had been met, the appellate court affirmed termination of parental rights.

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