clear and convincing evidence standard in Vermont

2007As we noted in N.H., “[g]iven the significant deprivation of liberty that results from an order of continued treatment, the clear-and-convincing evidence standard should operate as a fundamental caution upon the minds of all judges, barring such orders unless the evidence results in a firm conviction as to the truth of the allegations to be established.” 168 Vt. at 512 , 724 A.2d at 470 .

2004The clear and convincing evidence standard does not require that evidence in support of a fact be uncontradicted, but does require that the fact’s existence be “highly probable.” Id. at 512 , 724 A.2d at 470 (quotation omitted). 3 ¶ 13.

2016The stringent clear-and-convincing evidence standard in termination proceedings reflects the United States Supreme Court’s judgment that the risk of erroneous termination of parental rights is a greater concern than the risk of erroneous failure to terminate those rights because although “the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo” for the child, “the consequence of an erroneous termination [for the parents] is the unnecessary destruction of their . . . family.” Santosky v. Kramer, 455 U.S. 745, 765-66 (1982); see In re T.E., 155 Vt. 172

2016The stringent clear-and-convincing evidence standard in termination proceedings reflects the United States Supreme Court’s judgment that the risk of erroneous termination of parental rights is a greater concern than the risk of erroneous failure to terminate those rights because although “the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo” for the child, “the consequence of an erroneous termination [for the parents] is the unnecessary destruction of their . . . family.” Santosky v. Kramer, 455 U.S. 745, 765-66 (1982); see In re T.E., 155 Vt. 172

2016The stringent clear-and-convincing evidence standard in termination proceedings reflects the United States Supreme Court’s judgment that the risk of erroneous termination of parental rights is a greater concern than the risk of erroneous failure to terminate those rights because although “the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo” for the child, “the consequence of an erroneous termination [for the parents] is the unnecessary destruction of their . . . family.” Santosky v. Kramer, 455 U.S. 745, 765-66 (1982); see In re T.E., 155 Vt. 172

2016In re T.E., 155 Vt. 172, 175 , 582 A.2d 160, 162 (1990); see also In re B.C., 2013 VT 58, ¶ 16 , 194 Vt. 391 , 81 A.3d 1152 (“[T]he State may not effect a permanent termination of parental rights without a showing of parental unfitness by clear and convincing evidence.”). ‘We have also recognized, however, that state intervention which effects only a temporary deprivation of parental rights requires a lesser showing of proof by a preponderance of the evidence.” In re B.C., 2013 VT 58, ¶ 16 .

2014See In re A.D., 143 Vt. 432, 435 (1983) (“The clear and convincing evidence test must be used * Father has not appealed from this order. 2 in cases involving the permanent termination of parental rights.”).

2013See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing parents’ essential right to conceive and raise children, which may not be terminated without hearing on fitness); In re A.D., 143 Vt. 432, 435 , 467 A.2d 121, 123 (1983) (“The clear and convincing evidence test must be used in cases involving the permanent termination of parental rights.”).

2011See Harrington v. Dep’t of Emp’t & Training, 152 Vt. 446 (1989); Garber v. Dep’t of Soc.

1999See Harrington, 152 Vt. at 449 , 566 A.2d at 990 ; Garber v. Department of Soc.

1990Although appellant did not raise this argument below and thus we will not normally consider it for the first time on appeal, see, e.g., Garrow v. Garrow, 150 Vt. 426, 431 , 553 A.2d 569, 572 (1988), he nevertheless argues that failure to apply the correct standard rises to the level of plain error, which we may consider without preservation.

1990Although appellant did not raise this argument below and thus we will not normally consider it for the first time on appeal, see, e.g., Garrow v. Garrow, 150 Vt. 426, 431 , 553 A.2d 569, 572 (1988), he nevertheless argues that failure to apply the correct standard rises to the level of plain error, which we may consider without preservation.

2007As we noted in N.H., “[g]iven the significant deprivation of liberty that results from an order of continued treatment, the clear-and-convincing evidence standard should operate as a fundamental caution upon the minds of all judges, barring such orders unless the evidence results in a firm conviction as to the truth of the allegations to be established.” 168 Vt. at 512 , 724 A.2d at 470 .

2003As we discussed in In re N.H., 168 Vt. 508 , 724 A.2d 467 (1998), the clear-and-convincing-evidence standard represents a very demanding measure of proof.

2016The stringent clear-and-convincing evidence standard in termination proceedings reflects the United States Supreme Court’s judgment that the risk of erroneous termination of parental rights is a greater concern than the risk of erroneous failure to terminate those rights because although “the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo” for the child, “the consequence of an erroneous termination [for the parents] is the unnecessary destruction of their . . . family.” Santosky v. Kramer, 455 U.S. 745, 765-66 (1982); see In re T.E., 155 Vt. 172

2016In re T.E., 155 Vt. 172, 175 , 582 A.2d 160, 162 (1990); see also In re B.C., 2013 VT 58, ¶ 16 , 194 Vt. 391 , 81 A.3d 1152 (“[T]he State may not effect a permanent termination of parental rights without a showing of parental unfitness by clear and convincing evidence.”). ‘We have also recognized, however, that state intervention which effects only a temporary deprivation of parental rights requires a lesser showing of proof by a preponderance of the evidence.” In re B.C., 2013 VT 58, ¶ 16 .

2026In fact, the Tenth Circuit has used “great certainty” to describe the clear and convincing evidence standard; in White v. American Airlines, Inc., the Tenth Circuit explained that “the clear and convincing evidence standard applies to . . . areas of the law, where a need for great certainty is required.” 915 F.2d 1414, 1421 (10th Cir. 1990) (quotation omitted). ¶ 34.

2023See In re D.C., 2012 VT 108, ¶ 22 , 193 Vt. 101 (“The Vermont Legislature has chosen the best-interests criteria contained in 33 V.S.A. § 5114(a), which encompass both directly and indirectly the question of parental fitness.”).

2023See In re D.C., 2012 VT 108, ¶ 22 , 193 Vt. 101 (“The Vermont Legislature has chosen the best-interests criteria contained in 33 V.S.A. § 5114(a), which encompass both directly and indirectly the question of parental fitness.”).

2016Regarding his first argument, father cites 13 V.S.A. § 7553a, which provides that a person charged with a felony involving violence, as he has, “may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person’s release poses a substantial threat of physical violence to any person.” He points out that the clear-and-convincing-evidence standard in § 7553a applies only to whether the defendant poses a substantial threat of violence to another person, and that the criminal division’s role at a bail hearing is not to resolv

2016Regarding his first argument, father cites 13 V.S.A. § 7553a, which provides that a person charged with a felony involving violence, as he has, “may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person’s release poses a substantial threat of physical violence to any person.” He points out that the clear-and-convincing-evidence standard in § 7553a applies only to whether the defendant poses a substantial threat of violence to another person, and that the criminal division’s role at a bail hearing is not to resolv

2016Compare Siegel v. Misch, 2007 VT 116, ¶ 6 , 182 Vt. 623 , 939 A.2d 1023 (mem.) (stating that court is not required “to give deference to or follow DCF substantiation decisions”) with In re A.W., 164 Vt. 412, 416 , 670 A.2d 1265, 1267 (1995) (stating that finding of stagnation based in part on father’s refusal to accept treatment for sexually abusive behavior could not be adequately reviewed absent finding, by clear and convincing evidence, that abuse actually occurred). ¶ 13.

2016Compare Siegel v. Misch, 2007 VT 116, ¶ 6 , 182 Vt. 623 , 939 A.2d 1023 (mem.) (stating that court is not required “to give deference to or follow DCF substantiation decisions”) with In re A.W., 164 Vt. 412, 416 , 670 A.2d 1265, 1267 (1995) (stating that finding of stagnation based in part on father’s refusal to accept treatment for sexually abusive behavior could not be adequately reviewed absent finding, by clear and convincing evidence, that abuse actually occurred). ¶ 13.

2016By the same token, father asserts that because a substantiation of abuse does not satisfy the clear-and-convincing-evidence standard required in a termination hearing, see In re Selivonik, 164 Vt. 383, 388 , 670 A.2d 831, 835 (1995) (stating that “agencies investigating reports of suspected child abuse need not apply a preponderance of evidence standard to their determinations”), it is not competent evidence in a termination hearing.

2016By the same token, father asserts that because a substantiation of abuse does not satisfy the clear-and-convincing-evidence standard required in a termination hearing, see In re Selivonik, 164 Vt. 383, 388 , 670 A.2d 831, 835 (1995) (stating that “agencies investigating reports of suspected child abuse need not apply a preponderance of evidence standard to their determinations”), it is not competent evidence in a termination hearing.

2016In re T.E., 155 Vt. 172, 175 , 582 A.2d 160, 162 (1990); see also In re B.C., 2013 VT 58, ¶ 16 , 194 Vt. 391 , 81 A.3d 1152 (“[T]he State may not effect a permanent termination of parental rights without a showing of parental unfitness by clear and convincing evidence.”). ‘We have also recognized, however, that state intervention which effects only a temporary deprivation of parental rights requires a lesser showing of proof by a preponderance of the evidence.” In re B.C., 2013 VT 58, ¶ 16 .

2016In re T.E., 155 Vt. 172, 175 , 582 A.2d 160, 162 (1990); see also In re B.C., 2013 VT 58, ¶ 16 , 194 Vt. 391 , 81 A.3d 1152 (“[T]he State may not effect a permanent termination of parental rights without a showing of parental unfitness by clear and convincing evidence.”). ‘We have also recognized, however, that state intervention which effects only a temporary deprivation of parental rights requires a lesser showing of proof by a preponderance of the evidence.” In re B.C., 2013 VT 58, ¶ 16 .

2016Compare Siegel v. Misch, 2007 VT 116, ¶ 6 , 182 Vt. 623 , 939 A.2d 1023 (mem.) (stating that court is not required “to give deference to or follow DCF substantiation decisions”) with In re A.W., 164 Vt. 412, 416 , 670 A.2d 1265, 1267 (1995) (stating that finding of stagnation based in part on father’s refusal to accept treatment for sexually abusive behavior could not be adequately reviewed absent finding, by clear and convincing evidence, that abuse actually occurred). ¶ 13.

2016Compare Siegel v. Misch, 2007 VT 116, ¶ 6 , 182 Vt. 623 , 939 A.2d 1023 (mem.) (stating that court is not required “to give deference to or follow DCF substantiation decisions”) with In re A.W., 164 Vt. 412, 416 , 670 A.2d 1265, 1267 (1995) (stating that finding of stagnation based in part on father’s refusal to accept treatment for sexually abusive behavior could not be adequately reviewed absent finding, by clear and convincing evidence, that abuse actually occurred). ¶ 13.

2013See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing parents’ essential right to conceive and raise children, which may not be terminated without hearing on fitness); In re A.D., 143 Vt. 432, 435 , 467 A.2d 121, 123 (1983) (“The clear and convincing evidence test must be used in cases involving the permanent termination of parental rights.”).

2013See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (recognizing parents’ essential right to conceive and raise children, which may not be terminated without hearing on fitness); In re A.D., 143 Vt. 432, 435 , 467 A.2d 121, 123 (1983) (“The clear and convincing evidence test must be used in cases involving the permanent termination of parental rights.”).

2013See In re D.G., 2006 VT 60, ¶ 3 , 180 Vt. 577 (mem.) (observing in the context of permanency planning hearing that the trial court properly “acknowledged . . . the clear-and-convincing-evidence standard” for establishing a permanent guardianship under 14 V.S.A. § 2664(a) and “defined in detail the State’s burden in meeting that standard”).

2013See In re D.G., 2006 VT 60, ¶ 3 , 180 Vt. 577 (mem.) (observing in the context of permanency planning hearing that the trial court properly “acknowledged . . . the clear-and-convincing-evidence standard” for establishing a permanent guardianship under 14 V.S.A. § 2664(a) and “defined in detail the State’s burden in meeting that standard”).

2012In re J.R., 164 Vt. 267, 270 (1995).

2012See In re C.L., 151 Vt. 480, 488-89 (1989) (explaining that court is not required to explicitly state standard of proof).

2003Courts have held that under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 , the plaintiff has the burden of establishing “by a preponderance of the evidence, that he is entitled to the benefit he claims.” Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997).

1998See In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 638 , 481 A.2d 1274, 1275 (1984) (validity of agency’s rules and regulations will be upheld if they are reasonably related to purposes of enabling legislation).

1998See In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 638 , 481 A.2d 1274, 1275 (1984) (validity of agency’s rules and regulations will be upheld if they are reasonably related to purposes of enabling legislation).

1997See Swinehart, 664 A.2d at 969 .

1994In Mallory v. Mallory, 539 A.2d 995, 997 (Conn. 1988), the Connecticut Supreme Court rejected the father’s argument that the clear-and-convincing-evidence standard is required in all custody cases involving allegations of sexual abuse.

1994In Mallory v. Mallory, 207 Conn. 48 , 539 A.2d 995, 997 (1988), the Connecticut Supreme Court rejected the father's argument that the clear-and-convincing evidence standard is required in all custody cases involving allegations of sexual abuse.

1988In re Young, 134 Vt. 569, 570-71 , 367 A.2d 665, 666 (1976).

1988In re Young, 134 Vt. 569, 570-71 , 367 A.2d 665, 666 (1976).