Kent K. v. Bobby M.

SUPREME COURT OF ARIZONA
En Banc

KENT K. and SHERRY K., ) Arizona Supreme Court
) No. CV-04-0209-PR
Appellants, )
)
) Court of Appeals
v. ) Division Two
) No. 2 CA-JV 03-0059
BOBBY M. and LEEH M., )
) Pima County
Appellees. ) Superior Court
) No. S-16021999
)
__________________________________) O P I N I O N

Appeal from the Superior Court of Pima County
No. S-16021999
The Honorable Michael O. Miller
AFFIRMED IN PART; REVERSED IN PART; REMANDED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division Two
No. 2 CA-JV 03-0059
VACATED IN PART
________________________________________________________________

LAW OFFICE OF PATRICIA A. TAYLOR Tucson
By Patricia A. Taylor
Attorney for Kent K. and Sherry K.

RANDI E. ALEXANDER, Attorney at Law Tucson
By Randi E. Alexander
Attorney for Bobby M.
________________________________________________________________

M c G R E G O R, Vice Chief Justice

¶1 Arizona statutes governing the termination of the

parent-child relationship require the trial court to make two

findings before ordering severance of parental rights. The

court first must find the existence of one of several enumerated

statutory grounds for termination, Ariz. Rev. Stat. (A.R.S.)

section 8-533.B (Supp. 2004), and that clear and convincing

evidence establishes the grounds for termination. A.R.S. § 8-

537.B (Supp. 2004). Next, the court must determine that

termination of the parent-child relationship is in the best

interests of the child. A.R.S. § 8-533.B. We granted review to

determine whether the clear and convincing evidence standard

also applies to measure the evidence presented to establish the

best interests of the child.

I.

¶2 Kent K. and Sherry K. (appellants) are the maternal

grandparents and legal guardians of Leeh M., the child of their

sixteen-year-old daughter, Barbara, and eighteen-year-old Bobby

M. Barbara and Bobby M. married in March 1996, but divorced

thirteen months later. Throughout their marriage, Barbara and

Bobby M. engaged in a pattern of fighting and separation,1 and

both exhibited immaturity and an inability to cope with the

responsibilities of parenting. Ultimately, appellants obtained

full-time physical custody of Leeh and, in July 2000, became

Leeh’s legal guardians. Bobby M. initially contested the

guardianship but discontinued his efforts after the first

hearing because he could not afford an attorney.

¶3 Following the guardianship hearing, Bobby M. was

1
These actions led to several allegations of domestic
violence against Bobby M. and to his conviction in January 1997.

2

incarcerated for violating probation and remained incarcerated

from October 2000 to October 2002. During that time and

afterward, Bobby M. failed to maintain a relationship with Leeh.

While in prison, however, Bobby M. took several steps to better

himself by completing a parenting class and obtaining substance

abuse treatment, and he wrote several letters to both Barbara

and Leeh expressing his desire to reunite their family. These

letters could not be delivered to Leeh because appellants had

obtained a restraining order against Bobby M. prohibiting him

from contacting Leeh.

¶4 In April 2002, after nearly two years of caring for

Leeh as her legal guardians, appellants instituted this action

to terminate Bobby M.’s parental rights to Leeh.2 See A.R.S. §

8-533.A (“Any person or agency that has a legitimate interest in

the welfare of a child, including, but not limited to, a

relative, . . . may file a petition for the termination of the

parent-child relationship . . . .”). Following a severance

hearing, the trial court found that appellants proved

abandonment,3 a statutory ground for termination of parental

2
According to the record before this court, Barbara had
consented to severance of her parental rights upon the condition
that Bobby M.’s parental rights also be terminated.
3
“Abandonment” means the failure of a parent to provide
reasonable support and to maintain regular contact
with the child, including providing normal
supervision. Abandonment includes a judicial finding
that a parent has made only minimal efforts to support
3

rights, by clear and convincing evidence. The court also found,

however, that appellants had not presented clear and convincing

evidence that termination of Bobby M.’s parental rights would be

in Leeh’s best interests and, for that reason, refused to order

severance.

¶5 On appeal, appellants claimed that the trial court

erred by applying the clear and convincing standard of proof to

its inquiry into the best interests of the child.4 The court of

appeals affirmed the juvenile court’s ruling, holding that “the

moving party in any action to terminate parental rights must

prove all elements required for severance, including the best

interests of the child, by clear and convincing evidence.” Kent

K. v. Bobby M., 2 CA-JV 2003-0059, slip op. at ¶ 9 (Ariz. App.

2004) (mem. decision).

¶6 We granted review to clarify the standard of proof

required for determining the best interests of the child in a

__________________
and communicate with the child. Failure to maintain a
normal parental relationship with the child without
just cause for a period of six months constitutes
prima facie evidence of abandonment.

A.R.S. § 8-531.1 (Supp. 2004).
4
Appellants raised three other issues at the court of
appeals: (1) the juvenile court abused its discretion by
“disregarding the great weight of the evidence”; (2) the
juvenile court abused its discretion by disregarding the
opinions of an expert witness; and (3) the length of time for
trying the case was unreasonable. They did not ask this court
to review any of these issues.

4

parental severance proceeding. We exercise jurisdiction

pursuant to Article 6, Section 5.3 of the Arizona Constitution

and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

II.

¶7 Arizona statutes address both the grounds and the

standard of proof required to sever parental rights. A.R.S. §§

8-533.B, -537.B. Section 8-533.B defines the grounds that can

be used to justify termination and requires that a court, “in

considering any of the following grounds [for termination], . .

. shall also consider the best interests of the child.” A

separate statute establishes the procedures for hearing

termination cases and directs that “[t]he court’s or jury’s

findings with respect to grounds for termination shall be based

upon clear and convincing evidence under the rules applicable

and adhering to the trial of civil causes.” A.R.S. § 8-537.B.5

The statute thus clearly requires that the party seeking

termination establish the grounds for termination by clear and

convincing evidence.

¶8 The issue presented by this case is whether the court,

in determining whether termination is in the best interests of

5
The version of A.R.S. § 8-537.B in effect at the time of
the severance proceeding in this case provided only for a judge
to make findings with respect to the grounds for termination.
A.R.S. § 8-537.B (1999). The statute was amended in 2003 to
allow either a judge or a jury to make these findings. See 2003
Ariz. Sess. Laws, 2nd Spec. Sess., ch. 6, § 9. The current
version will sunset on January 1, 2007.

5

the child, should again apply a clear and convincing standard or

should apply a preponderance of the evidence standard. The

court of appeals interpreted section 8-537.B as requiring that

both the statutory grounds for termination and the finding that

termination is in the best interests of the child must be

established by clear and convincing evidence. We disagree.6

¶9 Our prior decisions have never directly considered

this issue. In Michael J. v. Ariz. Department of Economic

Security, 196 Ariz. 246, 995 P.2d 682 (2000), we stated that

“[t]o justify termination of the parent-child relationship, the

trial court must find, by clear and convincing evidence, at

least one of the statutory grounds set out in section 8-533, and

also that termination is in the best interest of the child.”

Id. at 249 ¶ 12, 995 P.2d at 685. Appellants argue that this

language clearly supports the conclusion that “Arizona breaks

the inquiry into two parts,” requiring separate standards of

proof. See Kent K., 2 CA-JV 2003-0059, slip op. at ¶ 6. In

contrast, the court of appeals concluded that the passage

supports the conclusion that best interests must be proved by

clear and convincing evidence, because we did not state that a

separate standard of proof applies. Id. at ¶ 7.

__________________
6
We review questions of statutory interpretation de novo.
City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. ___,
___ ¶ 8, 105 P.3d 1163, 1166 (2005).

6

¶10 Both approaches read too much into our Michael J.

opinion. The contested language merely restated the language of

the statute. Indeed, we explicitly stated that we were not

addressing the finding of best interests of the child, as the

appellant had not challenged that finding. Michael J., 196

Ariz. at 249 ¶ 13, 995 P.2d at 685. Thus, we had no occasion to

consider the proper evidentiary standard to be applied to the

best interests inquiry.

¶11 Nor have we ever directly considered the question of

the constitutionally required minimum standard of proof in a

best interests inquiry. In Maricopa County Juvenile Action No.

JS-500274, we held that the “best interests of the child are a

necessary, but not exclusively sufficient, condition for an

order of termination.” 167 Ariz. 1, 5, 804 P.2d 730, 734

(1990). Because severance cases involve fundamental rights, we

stated, these “constitutional rights can be overridden only by

the combined elements of statutorily defined improper behavior

by the parent and the child’s best interests.” Id.

¶12 The court of appeals has on occasion cited JS-500274

for the proposition that the best interests of the child must be

proved by clear and convincing evidence. See, e.g., Maricopa

County Juvenile Action No. JS-9104, 183 Ariz. 455, 461, 904 P.2d

1279, 1285 (App. 1995) (“The severing court must find by clear

and convincing evidence both the statutory elements plus the

7

best interests of the child.”); Maricopa County Juvenile Action

No. JS-8441, 175 Ariz. 463, 465, 857 P.2d 1317, 1319 (App. 1993)

(“A termination order must be supported by clear and convincing

evidence establishing a statutory ground and the best interest

of the child.”). We understand how this misapprehension arose.

Our classification of the statutory grounds and best interests

as “combined elements” for severance cases could lead one to

conclude, as counsel for appellee argued at oral argument, that

these are two sides of the same coin. But holding that a

particular finding is necessary to satisfy considerations of due

process does not involve the same analysis as determining the

degree of proof required to justify that finding.

¶13 We therefore now expressly consider, first, the

standard of proof required by Arizona’s statutes to be applied

in a best interests inquiry and, second, whether the standard of

proof required by statute satisfies constitutional due process

requirements.

A.

¶14 We interpret statutes to give effect to the

legislature’s intent. When a statute is clear and unambiguous,

we apply its plain language and need not engage in any other

means of statutory interpretation. Aros v. Beneficial Ariz.,

Inc., 194 Ariz. 62, 66, 977 P.2d 784, 788 (1999). If ambiguity

exists, however, we determine legislative intent by looking

8

first to the text and context of the statute and then

considering its historical background, effects and consequences,

and its spirit and purpose. See People’s Choice TV Corp., Inc.

v. City of Tucson, 202 Ariz. 401, 403 ¶ 7, 46 P.3d 412, 414

(2002).

¶15 We note at the outset that section 8-537.B is

ambiguous. The statute explicitly establishes the standard of

proof to be applied to the “findings with respect to grounds for

termination.” A.R.S. § 8-537.B. The statute, however, neither

expressly defines the term “grounds for termination” nor

specifically provides a standard of proof to be applied to the

best interests inquiry. Thus, we must interpret this statute to

determine what standard of proof the legislature intended to

apply to the best interests inquiry.

¶16 Although sections 8-533.B and 8-537.B do not

unambiguously establish the standard of proof required to

satisfy the best interests inquiry, the statutory language does

shed some light on the subject. Section 8-533.B distinguishes

between the statutory grounds sufficient to justify the

termination of the parent-child relationship on the one hand,

and the mandatory consideration of the best interests of the

child on the other. The distinction is set up by separate

clauses requiring that the trial court first consider “any of

the following grounds [for termination]” and then requiring that

9

the court “also consider the best interests of the child.”

A.R.S. § 8-533.B. This distinction between grounds for

termination and best interests gains importance when read in

conjunction with section 8-537, which requires clear and

convincing evidence only “with respect to grounds for

termination.” Thus, the specific reference only to grounds for

termination in section 8-537, read together with the distinction

in section 8-533 between statutory grounds for termination and

the best interests inquiry, evinces an intent on the part of the

legislature to apply the standard of proof expressed in section

8-537 only to the grounds for termination and not to the

consideration of best interests.

¶17 The historical development of these statutes

buttresses this conclusion. See Carrow Co. v. Lusby, 167 Ariz.

18, 20, 804 P.2d 747, 749 (1990) (“Legislative intent often can

be discovered by examining the development of a particular

statute.”). As originally enacted, Arizona’s parental-rights

termination statute did not mention the best interests of the

child. 1970 Ariz. Sess. Laws, ch. 153, § 2 (“Any person or

agency that has a legitimate interest in the welfare of a child

may file a petition for the termination of the parent-child

relationship if one or more of the following grounds exist.”).

To sever parental rights under this statute, the court needed

only to find by a preponderance of the evidence one of the

10

enumerated grounds for severance. See id. (“The court’s

findings with respect to grounds for termination shall be based

upon a preponderance of the evidence under the rules applicable

and adhering to the trial of civil causes.”).

¶18 In 1979, the legislature amended the termination

statute to provide as follows:

Evidence sufficient to justify the termination of the
parent-child relationship shall include any one of the
following, and in considering any of the following
grounds, the court may also consider the needs of the
child.

1979 Ariz. Sess. Laws, ch. 86, § 1 (emphasis added). The 1979

amendment clearly established the demarcation between grounds

for termination under the statute and best interests of the

child by including the needs of the child as a permissive,

rather than a mandatory, consideration for the court. Section

8-537.B, including its preponderance standard, remained

unchanged until 1983.

¶19 Responding to the United States Supreme Court’s

holding in Santosky v. Kramer, 455 U.S. 745 (1982), that “due

process requires that the State support its allegations [in

parental termination proceedings] by at least clear and

convincing evidence,” id. at 748, and this court’s

acknowledgement of that rule in Pima County Juvenile Action No.

S-919, 132 Ariz. 377, 646 P.2d 262 (1982), the legislature

amended A.R.S. § 8-537.B in 1983 to replace the preponderance of

11

the evidence standard with a clear and convincing evidence

standard. 1983 Ariz. Sess. Laws, ch. 176, § 3. The legislature

made no other changes at that time to the relevant sections of

the termination statutes. Thus, as the statute stood following

the 1983 amendment, an Arizona court could terminate parental

rights simply by finding at least one statutory ground listed in

section 8-533.B by clear and convincing evidence. After finding

that statutory ground, the court was permitted, but not

required, to consider the needs of the child in making the final

termination decision. We think it unlikely that the legislature

intended to require clear and convincing evidence of a finding

that it left to the discretion of the trial court to consider in

the first instance.

¶20 The statute reached its current form in 1994, when the

legislature amended section 8-533.B to make the best interests

inquiry mandatory. 1994 Ariz. Sess. Laws, ch. 116, § 4 (“[I]n

considering any of the following grounds, the court shall also

consider the best interests of the child.”) (emphasis added).

¶21 Although Bobby M. asserts that this transition from

permissive to mandatory consideration of the best interests of

the child indicates that the legislature intended to make best

interests one of the “grounds” for termination of parental

rights, the legislature did not make any other textual changes

that would support such a conclusion. In making the best

12

interests consideration mandatory, the legislature left intact

the remaining language of section 8-533.B, thereby continuing to

distinguish statutory grounds for termination from the best

interests inquiry. Nor did the legislature alter section 8-

537.B to apply a heightened evidentiary standard to anything

beyond proof of the statutory grounds for termination. Had the

legislature desired to apply the clear and convincing evidence

standard to the finding of best interests of the child, it

easily could have done so.

¶22 For the foregoing reasons, we conclude that Arizona’s

statutes require that the party seeking termination of parental

rights establish only the statutory grounds of section 8-533 by

clear and convincing evidence and establish the best interests

of the child by a preponderance of the evidence.

¶23 This conclusion does not end our analysis, however, as

we must also consider whether the Due Process Clause of the

Fourteenth Amendment requires that the best interests

determination be supported by clear and convincing evidence.

B.

¶24 Parents possess a fundamental liberty interest in the

care, custody, and management of their children. Santosky, 455

U.S. at 753; Michael J., 196 Ariz. at 248 ¶ 11, 995 P.2d at 684.

As with other fundamental rights, however, parental rights are

not absolute. Id. at ¶ 12. A court may order severance of

13

parental rights under certain circumstances, so long as the

parents whose rights are to be severed are provided with

“fundamentally fair procedures” that satisfy due process

requirements. Santosky, 455 U.S. at 754. Application of the

proper standard of proof in a termination hearing is a critical

component of the “fundamentally fair procedures” necessary to

satisfy due process.

¶25 As the Supreme Court has noted, “the minimum standard

of proof tolerated by the due process requirement reflects not

only the weight of the private and public interests affected,

but also a societal judgment about how the risk of error should

be distributed between the litigants.” Id. at 755 (citing

Addington v. Texas, 441 U.S. 418 (1979)). The preponderance of

the evidence standard requires that the fact-finder determine

whether a fact sought to be proved is more probable than not.

See Black’s Law Dictionary 1201 (7th ed. 1999). This standard

essentially allocates the risk of error equally between the

parties involved. Clear and convincing evidence, in contrast,

reflects a heightened standard of proof that indicates that “the

thing to be proved is highly probable or reasonably certain.”

Id. at 577. This standard places a heavier burden upon one

party to prove its case to a reasonable certainty.

¶26 These two standards of proof allocate the risk of

error in the determination of a given fact quite differently and

14

can lead to quite different results. Bobby M. contends that,

because of the importance of a parent’s interest in a severance

proceeding, the Supreme Court’s decision in Santosky mandates

that the party seeking termination of parental rights establish

by clear and convincing evidence that severance serves the

child’s best interests.

¶27 In Santosky, the Supreme Court considered a New York

statute that created a bifurcated proceeding in which a juvenile

court first conducted a fact-finding hearing to determine

whether the government had proved statutory grounds of parental

unfitness.7 455 U.S. at 748. If the court determined that the

State had met its burden for proving the parent’s unfitness, the

court moved to a subsequent dispositional hearing at which it

determined what placement would be in the best interests of the

child. Id.

¶28 On a challenge by the Santoskys to an order

terminating their parental rights under the New York statute,

the Supreme Court held that the government could sever parental

rights only by establishing the grounds for parental unfitness

by at least clear and convincing evidence. Id. at 769. The

Court stated that “such a standard adequately conveys to the

factfinder the level of subjective certainty about his factual

7
In Santosky, the State sought termination of parental
rights on the statutory ground of “permanent neglect.” 455 U.S.
at 747.
15

conclusions necessary to satisfy due process.” Id.

¶29 In determining how the risk of error should be

distributed in parental rights termination proceedings, the

Court balanced the three factors established in Mathews v.

Eldridge, 424 U.S. 319, 335 (1976): “the private interests

affected by the proceeding; the risk of error created by the

State’s chosen procedure; and the countervailing governmental

interest supporting use of the challenged procedure.” Santosky,

455 U.S. at 754. The Court held that in proceedings to sever

parental rights, “the private interest affected is commanding;

the risk of error from using a preponderance standard is

substantial; and the countervailing governmental interest

favoring that standard is comparatively slight.” Id. at 758.

Thus, because the preponderance of the evidence standard

essentially allocates the risk of error equally between the

parents and the state, due process requires a higher standard of

proof than preponderance of the evidence.

¶30 Despite its sometimes sweeping language, throughout

the Santosky opinion the Court made it abundantly clear that its

analysis of constitutional due process requirements addressed

only the first stage of the New York termination proceedings,

the fact-finding hearing. For example, in describing the

private interests affected by the proceeding, the Court

acknowledged that both the child and the foster parents shared

16

an interest in the outcome; however, “at the factfinding stage .

. . the focus emphatically is not on them.” Santosky, 455 U.S.

at 759 (emphasis added). Moreover, at the fact-finding stage,

the state may not presume that the child and her parents possess

adverse interests. Rather, at the outset of a termination

proceeding, parent and child “share a vital interest in

preventing erroneous termination of their natural relationship.”

Id. at 760.

¶31 The Court recognized, however, that at the

dispositional stage, the government may assume that the

interests of the parents and the child diverge. Id. Once a

court determines that a parent is unfit, the focus shifts to the

interests of the child as distinct from those of the parent.

The weight of the presumption that the child shares the parent’s

interest in preserving the family relationship is greatly

reduced by the potential harm to the child from maintaining a

relationship with an unfit parent. Moreover, the court must

consider the state’s interest at the dispositional phase: “Any

parens patriae interest in terminating the natural parents’

rights arises only at the dispositional phase, after the parents

have been found unfit.” Id. at 767 n.17.

¶32 Arizona’s statutory scheme differs slightly from the

New York statutes discussed in Santosky. Arizona does not

explicitly bifurcate its termination proceedings into fact-

17

finding and dispositional stages. Nonetheless, as we have

already discussed, A.R.S. § 8-533.B does distinguish between the

finding of statutory grounds for termination on the one hand and

the consideration of the best interests of the child on the

other. Although the court considers the separate inquiries

required under section 8-533.B in a single hearing, the two

inquiries are comparable to the separate fact-finding and

dispositional hearings conducted under the New York statute.

Thus, within the context of Arizona’s legislative scheme,

Santosky mandates only that the findings of the statutory

grounds for termination be supported by clear and convincing

evidence. The opinion does not define the minimum standard of

proof required for determining the best interests of the child.

C.

¶33 We apply the Mathews test to determine the standard of

proof required for a finding that severance of parental rights

is in the best interests of the child. Under Mathews,

determining the minimum standard of proof required to afford due

process involves consideration of three factors: “First, the

private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the

Government’s interest, including the function involved and the

18

fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” 424 U.S. at

335.

¶34 With respect to the private interests at stake, we

previously have held that “[s]everance of parental rights

necessarily involves the consideration of fundamental, often

competing, interests of parent and child.” Michael J., 196

Ariz. at 248 ¶ 11, 995 P.2d at 684. Proceedings to sever

parental rights involve two private interests. On the one hand,

the parent possesses a fundamental liberty interest in the

control and care of his or her child. The child, on the other

hand, has an interest in a “normal family home.” Santosky, 455

U.S. at 759; see also Pima County Juvenile Severance Action No.

S-114487, 179 Ariz. 86, 101, 876 P.2d 1121, 1136 (1994) (finding

that in parental severance matters, judges must protect a

child’s interest in stability and security).

¶35 As the Supreme Court made clear in Santosky, until a

court finds grounds for termination, parent and child “share a

vital interest in preventing erroneous termination of their

natural relationship.” 455 U.S. at 760. Thus, these interests

must be assumed to “coincide to favor use of error-reducing

procedures.” Id. at 761. In a best interests inquiry, however,

we can presume that the interests of the parent and child

diverge because the court has already found the existence of one

19

of the statutory grounds for termination by clear and convincing

evidence. See A.R.S. §§ 8-533.B, -537.B.8 Thus, while a parent

already found unfit maintains some interest in the care and

custody of his or her child, the court’s determination that

statutory grounds for severance of parental rights exist

substantially reduces the importance of this interest. In

considering the best interests of the child, the court must

balance this diluted parental interest against the independent

and often adverse interests of the child in a safe and stable

home life.

¶36 In light of the shifting of the personal interests at

stake, we must also consider the second Mathews factor: “the

risk of erroneous deprivation of private interests resulting

from use of a ‘fair preponderance’ standard and the likelihood

that a higher evidentiary standard would reduce that risk.”

Santosky, 455 U.S. at 761. In Santosky, the Court found a

magnified risk of error in applying the preponderance of the

evidence standard during the fact-finding portion of New York’s

proceedings because the fact-finding focused solely on the

parent’s conduct, pitting the immense resources of the state

against the parent in an attempt to show parental unfitness.

8
In Arizona, the statutory grounds for termination of
parental rights are serious in nature, involving grave
misconduct, see § 8-533.B.1-2 (abandonment, neglect or willful
abuse), or complete abdication of parental responsibilities, §

20

Id. at 762-65. Because the focus is solely upon the parent at

the fact-finding stage, without a heightened standard, the risk

that a fit parent might be found unfit increases. Use of a

heightened standard of proof at the fact-finding stage

recognizes the severe consequence of an erroneous determination

of unfitness: Error at this stage could lead to permanently

extinguishing the relationship between a fit parent and his or

her child.

¶37 During a best interests inquiry, however, the risk of

error and the potential for reducing that risk by raising the

standard of proof change dramatically. Unlike the fact-finding

proceeding, the best interests inquiry focuses primarily upon

the interests of the child, as distinct from those of the

parent. In determining the child’s best interests, the court

must essentially balance the rights of an unfit parent against

those of the child. At this stage, the child’s interest in

obtaining a loving, stable home, or at the very least avoiding a

potentially harmful relationship with a parent, deserves at

least as much weight as that accorded the interest of the unfit

parent in maintaining parental rights. In such cases, in which

two interests of relatively equal weight clash, allocating a

greater share of the risk of error to one party serves no

societal interest. Moreover, requiring proof by clear and

__________________
8-533.B.3-10 (mental deficiency, lengthy imprisonment, prolonged

21

convincing evidence that termination of parental rights is in

the best interests of the child actually places the risk of an

erroneous conclusion as to the child’s best interests squarely

upon the child.

¶38 An example underscores the problem that arises from

imposing a clear and convincing evidence standard of proof on

the best interests inquiry. Under a heightened standard of

proof, a judge, after finding statutory grounds for termination

of parental rights by clear and convincing evidence, might also

find upon a preponderance of the evidence that severance of

parental rights is in a child’s best interests, perhaps because

the child would be jeopardized by the continuation of the

relationship. See JS-500274, 167 Ariz. at 5, 804 P.2d at 734

(recognizing potential jeopardy as evidence of the best

interests of the child). Under the test proposed by Bobby M.,

unless the evidence of the child’s best interests meets the

heightened clear and convincing evidence standard, that judge

would be required to leave the child in status quo, despite

finding by a preponderance of the evidence that doing so exposes

the child to jeopardy. This result would give too much weight

to a parent’s interests at a stage at which the court should

focus upon what is best for the child.

¶39 Finally, applying the third prong of the Mathews test

__________________
failure to exercise parental rights or responsibilities).
22

requires consideration of two state interests at stake in

parental rights termination proceedings. The state possesses

both “a parens patriae interest in preserving and promoting the

welfare of the child and a fiscal and administrative interest in

reducing the cost and burden of such proceedings.” Santosky,

455 U.S. at 766. Santosky concluded that neither of these state

interests was unduly burdened by applying the clear and

convincing standard of proof during the fact-finding proceeding.

Id. at 766-67. First, according to Santosky, a heightened

standard of proof should not place any substantial fiscal or

administrative burden on the state. Id. at 767. Second,

because the state’s parens patriae interest in termination does

not arise until the statutory grounds for termination have been

established, requiring a heightened standard of proof to

establish those statutory grounds should not burden the state’s

parens patriae interest. Id. at 766-67.

¶40 During the best interests inquiry, however, the court

must consider the state’s compelling parens patriae interest in

protecting the child through terminating the natural parent’s

rights. See id. at 767 n.17; cf. Cochise County Juvenile Action

No. 5666-J, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). While

shifting to the best interests inquiry presumably does not alter

the impact of a heightened standard of proof on the state’s

fiscal or administrative interests, use of the clear and

23

convincing standard during the best interests inquiry clearly

could frustrate the state’s “urgent interest in the welfare of

the child.” Santosky, 455 U.S. at 766 (quoting Lassiter v.

Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981)).

¶41 After balancing these three Mathews factors, we

conclude that due process does not require imposing the clear

and convincing evidence standard for an inquiry into the best

interests of the child pursuant to A.R.S. § 8-533.B. Rather,

because the best interests inquiry requires a delicate balancing

of the child’s interests, along with the parens patriae interest

of the state, against the interests of an unfit parent, we hold

that the preponderance of the evidence standard adequately

allocates the risk of error between these competing interests.

III.

¶42 In the case before us, the trial court determined that

appellants proved the statutory ground for termination of

parental rights, abandonment, by clear and convincing evidence,

but held that they had not proved by clear and convincing

evidence that severing Bobby M.’s parental rights was in the

best interests of the child. The court of appeals affirmed both

of these holdings. Because we hold today that preponderance of

the evidence, rather than clear and convincing evidence, is the

proper standard of proof to be applied to the best interests

inquiry, we vacate the portion of the court of appeals’

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memorandum decision relating to this issue. We affirm that

portion of the trial court’s judgment concerning the statutory

grounds for termination, reverse its finding as to best

interests, and remand to the trial court to reconsider its best

interests finding, applying the proper standard of proof.9

__________________________________
Ruth V. McGregor
Vice Chief Justice

CONCURRING:

_________________________________
Charles E. Jones, Chief Justice

_________________________________
Rebecca White Berch, Justice

_________________________________
Michael D. Ryan, Justice

_________________________________
Andrew D. Hurwitz, Justice

9
In a document recently filed with this court, Bobby M.
suggests that a material change in circumstance has occurred
that may affect the trial court’s best interests inquiry. On
remand, the court may consider evidence of events that have
occurred since its initial decision.
25