definitive evidence. Arizona law, for example, allows state officials to remove a child from an
abusive home in an emergency and place that child in temporary foster care on a showing that
“reasonable grounds exist to believe that temporary custody is clearly necessary to protect the
child,” and that “probable cause exists to believe” that the child is suffering or will imminently
suffer abuse, neglect, or serious emotional injury.239 Arizona law also uses a “preponderance of
evidence” standard in determining dependency— i.e., placing children in long-term foster care.240
In Santosky v. Kramer,241 the Supreme Court employed the “clear and convincing
evidence” standard, finding that anything less demanding would violate the due process rights of
parents—their interests are too significant to be disposed of on a mere preponderance-of-the-evidence basis.242 But the Court also declined to adopt the more demanding “
beyond-a-reasonable-doubt” requirement, because the type of psychological evidence relied upon in family
law cases is not usually susceptible of proof beyond a reasonable doubt,243 and such a demanding
rule might “erect an unreasonable barrier to state efforts to free permanently neglected children
for adoption.”244 This latter point is important because termination is often necessary to clear the
way for permanent adoption and allow a child from a troubled home to find a new, permanent,
239 A.R.S. § 8-821(A)-(B).
240 In re Appeal In Cochise Cty. Juvenile Action No. 5666-J, 133 Ariz. 157, 159 (1982); A.R.S. § 8–844(C).
241 455 U.S. 745 (1982).
242 Id. at 758.
243 Id. at 769.
244 Id. The Court observed in passing that ICWA was the “only analogous federal statute of which we are aware”
that “permits termination of parental rights solely upon ‘evidence beyond a reasonable doubt.’” Id. at 749–50.
Although it did not address the constitutionality of that requirement, it did note that in passing ICWA “Congress did
not consider . . . the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all
state-initiated parental rights termination hearings.”
245 Termination is not a legal prerequisite to voluntary adoption, but it is for involuntary adoption cases, and it
ensures that adoptive families are not forced to allow visitation with unfit birth parents.