FOURTH DIVISION

March 27, 2003

No. 1-01-2410

PRESIDING JUSTICE THEIS delivered the opinion of the court:

Following an evidentiary hearing, the trial court found respondent mother, B.T., an unfit parent forfailing to protect her son, D.T. (born December 18, 1993), from conditions within his environment injurious tohis welfare. 750 ILCS 50/1(D)(g) (West 2000). After a best interest hearing, the trial court terminatedrespondent's parental rights to D.T. on June 8, 2001.^{(1) Respondent appeals, arguing that (1) during the unfitnesshearing, the trial court misinterpreted section 1(D)(g) of the Adoption Act (750 ILCS 50/1(D)(g) (West 2000)) byforeclosing consideration of any evidence that did not directly relate to respondent's past failing to protect D.T.;(2) the court erred in deciding that termination of respondent's parental rights was in D.T.'s best interests on thebasis of its own discretion, without imposing a burden of proof on the State; (3) the court improperly failed tohold the State to a "clear and convincing" standard of proof or a "preponderance of the evidence" standard in thebest interest hearing; (4) the State failed to meet its burden to prove that terminating respondent's rights was inD.T.'s best interests; and (5) the trial court's finding on best interests was incorrect and an abuse of discretion. We reverse and remand for further proceedings.}

I. BACKGROUND

Following a hearing on February 5, 1998, the trial court granted temporary custody of four-year-old D.T.to the Department of Children and Family Services (DCFS). On May 5, 1998, following an adjudicatory hearing,the court found that D.T. had been physically abused by respondent's boyfriend, Brian Weisenritter, neglecteddue to respondent's failure to take D.T. to the hospital after he was injured, and subjected to an injuriousenvironment. On May 27, 1998, the court appointed DCFS as D.T.'s guardian. Following another hearing onAugust 27, 1998, the court entered an order establishing the permanency goal as substitute care pending courtdetermination on termination of parental rights.^{(2) On July 19, 1999, the State filed a supplemental petition forappointment of a guardian with right to consent to adoption alleging four separate allegations of unfitness. TheState later amended the petition to allege only that respondent was unfit because she failed to protect D.T. fromconditions in his environment injurious to his welfare. 750 ILCS 50/1(D)(g) (West 2000).}

At the unfitness hearing held from September 2000 to April 2001, Dr. Alan Johnson, a physician atChildren's Memorial Hospital, testified that he treated D.T. on February 2, 1998, after he was transferred fromRavenswood Hospital. D.T. had several bruises on his face, multiple cuts and bruises on his arm, variousscratches on his back, and several bruises on his buttocks and thighs. Johnson testified that D.T. had a linearbruise on his left cheek that had the characteristic appearance of an opened-handed slap mark. His bruises wereinconsistent with those of a normal four-year-old boy.

Johnson explained that D.T.'s scrotum was swollen to the size of an orange, approximately 5 to 10 timesits normal size, and was dark purple. The bruising extended down his leg and up to his abdomen. D.T. was in asignificant amount of pain from a puncture wound to the scrotum, which leaked bloody fluid. Johnson opinedthat D.T.'s scrotum injury had occurred more than 48 hours earlier. D.T. underwent surgery to explore the natureand extent of his injuries, remained in the hospital for two to three days and required narcotic pain medication. Johnson testified that this injury was caused by repetitive blunt blows to the scrotum and that D.T. was a victimof child abuse. He stated that D.T.'s explanation for his injury, that he fell off the couch on to "some junk," wasnot consistent with his injury.

Charles Rocek, a child protective investigator with DCFS, testified that on February 2, 1998, he noticed11 marks and bruises on D.T.'s face and 8 other circular bruises on his arms and chest. Respondent told Rocekthat she had known her boyfriend, Weisenritter, for approximately two months at that time and had met himthrough a telephone dating service. She stated that she went to Weisenritter's house on Friday, but later told himthat she arrived on Thursday, Wednesday or Tuesday. Respondent also told Rocek that Weisenritter left theapartment Friday night and did not return until Saturday morning. Rocek asked respondent how D.T. sustainedthe facial injuries, and she responded that he slipped and fell several times in the bathtub. Rocek also asked herhow D.T. suffered his groin injury, and she responded that he fell off the couch on to "some junk" atWeisenritter's apartment. Respondent told Rocek that she did not seek medical care earlier because she did notthink D.T. was in pain. On as many as 30 occasions during their two-month relationship, respondent sawWeisenritter wrap D.T. in a towel for several hours and strike him to control his behavior.

Rocek again spoke with respondent on February 4, 1998. During this conversation, respondent statedthat she was present with D.T. and Weisenritter the entire weekend except for two instances when she left forseveral hours to shop for groceries. Respondent told Rocek that after she and D.T. left Weisenritter's house atapproximately 7 p.m. on Sunday, February 1, 1998, she spoke with a friend, and three hours later, brought D.T. tothe hospital. Respondent never stated that Weisenritter prevented her from leaving his apartment.

Lisa Froemel, a social worker at Children's Memorial Hospital, testified that she spoke with respondenton February 2, 1998. Respondent told her that she and D.T. went to Weisenritter's apartment on January 29. Respondent stated that she did not know how D.T. sustained his injuries, but she noticed some redness to D.T.'spenis on January 30. On January 31, respondent noticed that D.T.'s scrotum was "black and blue" and he toldher that he fell off the couch. The next day, after D.T. complained of pain and she noticed his scrotum wasswollen and bleeding, respondent took him to Ravenswood Hospital. Respondent told Froemel that D.T.sustained several bruises from slipping in the bathtub and running into the kitchen island, but had "no realexplanation" for D.T.'s groin injury. Respondent also stated that she gave Weisenritter permission to spank D.T.on his buttocks as a form of discipline and she saw him wrap D.T. in a blanket on a number of occasions. Respondent told Froemel that she left D.T. with Weisenritter for 30 to 40 minutes that weekend, but, she neverstated that she was not allowed to leave Weisenritter's apartment. D.T. told Froemel that respondent was notpresent when he was injured.

Sharon Marach testified that she was respondent's case manager from 1995 to 1997 at Open Door Clinicin Elgin, a service provider for individuals with life-threatening illnesses. She testified that D.T. was always withrespondent at her appointments and he appeared well cared for and happy. Respondent never told Marach thatWeisenritter abused her or D.T.

Kristen James testified that she was a clinical supervisor and therapist at The Children's PlaceAssociation, which provided services to families with life-threatening illnesses. D.T. entered The Children'sPlace Association day care program in the fall of 1997. D.T. was very bright, articulate and advanced for his age. After D.T.'s hospitalization, respondent attended parenting classes, domestic abuse counseling and all of hersupervised visits with D.T. D.T. told James through play therapy that Weisenritter kicked him. Respondentnever told James that Weisenritter prevented her from leaving the apartment.

Johanna Sonnenfeld, a therapist at Midwest Family Resource who was qualified as an expert inpsychodynamic therapy, had counseled respondent since January 2000. She stated that respondent's parentsphysically abused her and she "turned off her awareness" of what was happening to cope. After her father abusedrespondent, respondent's mother did not protect her, was not supportive, minimized her injuries and did not seekmedical attention. Sonnenfeld testified that respondent similarly disassociated from the situation and minimizedD.T.'s injuries. Respondent told Sonnenfeld that Weisenritter kept the keys to respondent's car during theweekend she stayed with him, although she left the apartment to go grocery shopping. When she leftWeisenritter's apartment, she realized the extent of D.T.'s injuries and brought him to the hospital.

Respondent testified that her parents physically abused her as a child. After she married D.T., Sr., andbecame pregnant, D.T., Sr., also became physically abusive. When D.T. was approximately one year old,respondent left D.T., Sr., and returned to her parents' house. She later learned that she had contracted a life-threatening illness. In August 1997, she and D.T. moved to Chicago House, which provided low-income housingfor individuals with her life-threatening illness. Respondent met Weisenritter through a telephone dating servicein late December 1997. In January 1998, Weisenritter would wrap D.T. in a towel for 5 to 10 minutes as a formof discipline. At the time, respondent thought that this discipline was "okay," but now realized that it was abuse. She also allowed Weisenritter to spank D.T.'s buttocks once.

Respondent testified that she and D.T. went to Weisenritter's apartment on Thursday, January 29, 1998. That evening, she left the apartment for food. D.T. asked to accompany her, but respondent told him to stay withWeisenritter because the neighborhood was unsafe. Later, respondent learned from D.T. that Weisenritter hadthreatened to hurt him that night. When she put D.T. to bed that evening, she noticed a red mark on his abdomenand D.T. told her that he fell off the couch. D.T. never told respondent that Weisenritter hurt him, and she didnot remember seeing any bruises on D.T. Weisenritter kept her car keys while she was in the apartment, althoughhe did not physically prevent her from leaving. Respondent repeatedly told Weisenritter that she wanted to takeD.T. to the doctor, but he told her that was unnecessary. Although she left the apartment three times thatweekend, respondent never sought help. When she returned to her apartment on Sunday evening, she noticedD.T.'s groin injury and bruises. She went to her friend's apartment to return money and then brought D.T. toRavenswood Hospital. Respondent admitted that it was her responsibility to protect D.T. In a visit with D.T. inApril 1998, D.T. told respondent that Weisenritter hit him and kicked him in the stomach and groin with his workboots. Respondent admitted that, at that time, she failed to protect D.T. from an injurious environment.

In rebuttal, the State presented the testimony of Ann Simonson, D.T.'s foster mother for 2 1/2 years at thetime of the hearing. In January 1999, D.T. told her that when he was wrapped in the towel, he could not breatheand felt that he could not get away. D.T. also stated that he told respondent not to leave him alone withWeisenritter. At the conclusion of this hearing, the trial court found that the State had proved, by clear andconvincing evidence, that respondent was unfit for failing to protect D.T. from an environment injurious to hiswelfare during the period from January 29 to February 1, 1998.

At the best interest hearing in May and June of 2001, the trial court took judicial notice of its previousfinding of respondent's unfitness and the testimony from that hearing. Simonson testified that she had beenD.T.'s foster mother since August 1998. D.T. called her "mom" and explained that respondent was the "motherwho had me [and Simonson is] the mother who takes care of me." D.T. was very bright and in a gifted first-gradeclass, reading at a sixth-grade level. D.T. expressed to Simonson that he worried that respondent would not beable to take care of him if he went home with her. D.T. occasionally stated that he wanted to live withrespondent, usually when he was angry with Simonson. D.T. initially had many "meltdowns" and tantrums, butthese had greatly decreased in the previous year. D.T. also frequently discussed the incident when Weisenritterkicked him. During one visit between D.T. and respondent that Simonson supervised, D.T. asked respondent ifshe would get a job because he was very concerned about working and money. Simonson testified that she didnot think D.T. would be at risk with respondent. She also stated that she wanted to adoptD.T.

John Arroyo testified that he had been D.T.'s therapist since September 2000. He stated that while D.T.was adapting well to his foster home, he had difficulty with peer relationships, got into fights and becamefrustrated at school. Arroyo stated that D.T. needed rules, boundaries and consequences and Simonson helped toset limits and boundaries. Emotionally, D.T. became upset easily because he did not understand what washappening in court. Arroyo believed that the length of the court proceedings was problematic for D.T. and thatresolution of this case would help him. D.T. told Arroyo on different occasions that he wanted to live withrespondent, Simonson, and respondent's mother. D.T. also stated that he wanted to live with respondent becauseshe let him eat all the candy he wanted and he did not have to do chores. At Simonson's house, D.T. explained,he could only have two pieces of candy and he had to do chores and follow rules.

D.T. craved structure and rules and tested adults to determine who would provide him with stability andpermanency. D.T. told Arroyo that he was tired of telling respondent to get a job. Arroyo never observed a visitbetween respondent and D.T. Arroyo did not have an opinion as to whether it was in D.T.'s best interests toterminate respondent's parental rights.

Thay Danielson, a social worker at The Children's Place Association, testified that she had been D.T.'ssocial worker since November 1999 and saw D.T. and Simonson interact on a monthly basis. She stated thatD.T. had a "very close relationship with [Simonson]" and viewed her as a second mother. Danielson testified thatwhile respondent's interactions with D.T. were appropriate and she set proper limits and boundaries for him,respondent was not able to parent D.T. However, she also testified that D.T. had a very close relationship and astrong bond with respondent. D.T. needed a structured and controlled environment, which he received fromSimonson. D.T. expressed many concerns about respondent's ability to care for herself and he became veryanxious. Danielson stated that D.T. was secure with Simonson and removal from her home would be detrimentaland traumatic. D.T. was very affectionate with both respondent and Simonson. Danielson stated that D.T.needed permanency and removing him from his foster home would cause anxiety and uncertainty. She opinedthat it was in D.T.'s best interests that respondent's parental rights be terminated.

Danielson testified that respondent was receiving in-depth counseling to address her childhood issues andhad made "steady progress" in that area. Respondent also successfully completed both individual and groupdomestic violence treatment and had satisfactorily apprised The Children's Place Association of her relationshipswith other men. Danielson was concerned about D.T. in the middle of this situation and stated that D.T. hadtrouble fully attaching to Simonson because he was also attached to respondent. Initially, D.T. would cry whenhe ended visits with respondent, but this behavior dramatically decreased. D.T. told Danielson that if he couldchange anything in his life, he would visit respondent every day. Sonnenfeld told Danielson that respondent hadmade a breakthrough in the summer of 2000 in terms of understanding how her childhood impacted her behaviorwith D.T. and that although respondent had progressed in therapy, she needed two more years to fully addressthese issues before D.T. could return home. One week later, however, Sonnenfeld stated that it would only takenine months to a year.

Kathleen Pesek, called as a witness by the assistant public guardian, testified that she was the coordinatorof the parenting assessment team at Threshold Mother's Project from January 1995 to December 2000. Theparties stipulated that Pesek was an expert in child development and in assessing parenting capacity. She and theother members of the team read D.T.'s case records and met with respondent, D.T., and Simonson and observedinteractions between them. Pesek testified that, in 1998, D.T. had an insecure attachment to respondent andstated that D.T. often displayed role reversal where he placed respondent's needs above his own. However, whenshe observed respondent and D.T. interact in 1999, she saw no evidence of role reversal. Pesek testified that theparenting assessment team did not make recommendations as to whether a child's goal should be return home ortermination. She acknowledged that The Children's Place Association records noted that respondent was veryattentive during visits, did not need coaching and expressed appropriate concern for D.T.'s safety. In December1999, the team was concerned that respondent would not be able to make the necessary emotional shift to protectD.T. and that there was a substantial risk of maltreatment because of respondent's tendency to be dependant onothers. At her deposition in February 2000, Pesek testified that she believed that while D.T. should remain withSimonson, continued visitation with respondent was in D.T.'s best interests. However, Pesek also stated that itwould not be appropriate to return D.T. to respondent without supervision.

Maria Ferrera testified for respondent that she worked at The Children's Place Association andsupervised D.T.'s case until January 2000, but she had no contact with the case after that date. She stated thatshe had developed case plans for respondent that included domestic violence counseling, joining a batteredwomen's group, participating in individual and family counseling and visitation with D.T. Respondentcompleted domestic violence counseling successfully, and as of January 2000, she was making slow but steadyprogress in individual counseling. Respondent also displayed a willingness to participate in counseling and evensuggested increasing her sessions to twice a week. Ferrera supervised several visits during 1998 and 1999 andobserved physical affection between respondent and D.T. When respondent was asked to set limits for D.T.during visitation, she "did fine" and showed improvement because she was able to put aside her own needs. Respondent received satisfactory ratings on her case plans.

James testified that respondent satisfactorily completed parenting classes and group and individualdomestic violence counseling sessions and participated in individual and family therapy. She stated that she sawsignificant growth in respondent over the year she worked with her. Throughout the family sessions with D.T.,D.T. expressed his desire to return to respondent. After the court ordered supervised visits in May 1998, D.T."drastically deteriorated," became whiny, and clingy and had difficulty at school. After visitation increased inthe summer of 1998, D.T.'s behavior improved. James stated that even though D.T. attached to his foster family,his attachment to respondent never faded. She opined that D.T. may have problems with other attachments as anadult as a result of terminating respondent's parental rights. James ended her relationship as D.T.'s case managerin January 1999 and had no contact with D.T. after January 2000.

Sonnenfeld testified that she had been respondent's therapist since January 2000. While respondentinitially minimized what happened to D.T., she eventually became more assertive and less defensive throughtherapy. Respondent's nurturing and parenting skills were enhanced through these sessions. She stated thatrespondent was capable of keeping herself and D.T. safe from abusive relationships, although respondent neededat least one more year of therapy. Sonnenfeld testified that respondent had the capacity and competency toparent D.T. and breaking the attachment between respondent and D.T. would be harmful to him. Sonnenfeld lastsaw D.T. in December 1999 and she never saw D.T. interact with his foster family. The majority of the basis ofSonnenfeld's knowledge came from respondent's self-reports.

Dr. Frank Lani testified that he was a child psychologist on the parenting assessment team at ThresholdMother's Project. The court accepted Dr. Lani as an expert in the area of child psychology and evaluations ofparenting custody issues. After interviewing and testing D.T. and respondent in November 1998, he found thatthere seemed to be an attachment between respondent and D.T. In 1998, he thought it was possible for D.T. toreturn home in a supervised living situation. Lani performed a follow-up evaluation in November 1999, withoutobserving D.T. or respondent, which showed that respondent had made some improvement. At that time,respondent had been engaged in treatment and showed signs of growth. He admitted that he had no contact withrespondent or D.T. since November 1998 and he never observed D.T. with his foster family.

Danielson testified that she observed a visit between respondent and D.T. on May 21, 2001, where D.T.stated that he wanted the judge to "make up his mind" and he wanted to return home to respondent. Danielsoncontinued to believe that respondent's parental rights should be terminated. D.T. had also told Danielson that hewanted to remain with Simonson.

Respondent testified that after the incident, she participated in parenting classes, group and individualtherapy, and domestic violence counseling and obtained an order of protection against Weisenritter. Respondentexplained what she learned in these sessions and the emotional progress she made in dealing with her abusivechildhood. D.T. repeatedly told her that he wanted to return home to her. Ideally, she wanted D.T. to live withher, but she was willing to give guardianship to Simonson. Respondent also stated that she would be willing toname Simonson in a stand-by adoption plan. She stated that she loved D.T. and could keep him safe.

The trial court found, within its sound discretion, that it was in D.T.'s best interests to terminaterespondent's parental rights. The court credited Simonson, finding that D.T.'s physical and emotional health hadgreatly improved since his placement with her, and Arroyo, who testified that D.T. needed resolution to this case. Additionally, the court relied on Danielson's recommendation that termination was in D.T.'s best interests. Thecourt gave little weight to the testimonies of Ferrera, James, Sonnenfeld and Lani because they had no contactwith the case in over a year and a half and, therefore, their testimonies provided little insight as to the bestinterests of D.T. in June 2001. The court noted the severity of D.T.'s injuries and respondent's inability to protecther child or seek immediate medical attention and considered all of the best interest factors enumerated in theJuvenile Court Act of 1987 before terminating respondent's parental rights. 705 ILCS 405/1-3(4.05) (West2000). Respondent then filed this timely appeal.

II. ANALYSIS

Under the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 2000)) and the Adoption Act (750ILCS 50/1 et seq. (West 2000)), the involuntary termination of parental rights involves a two-step process. In reD.F., 201 Ill. 2d 476, 494, 777 N.E.2d 930, 940 (2002). First, the State must show by clear and convincingevidence that the parent is "unfit," as that term is defined in section 1(D) of the Adoption Act (750 ILCS 50/1(D)(West 2000)). D.F., 201 Ill. 2d at 494-95, 777 N.E.2d at 940. Although section 1(D) sets forth several groundsunder which a parent may be found "unfit," any one ground, properly proven, is sufficient for a finding ofunfitness. 750 ILCS 50/1(D) (West 2000); In re C.W., 199 Ill. 2d 198, 210, 766 N.E.2d 1105, 1113 (2002). Atthis stage, the court focuses on the parent's conduct and cannot consider the child's best interests. In re Adoptionof Syck, 138 Ill. 2d 255, 276, 562 N.E.2d 174, 183 (1990); In re Tashika F., 333 Ill. App. 3d 165, 169, 775N.E.2d 304, 307 (2002). We will reverse a trial court's finding of unfitness only where it is against the manifestweight of the evidence. C.W., 199 Ill. 2d at 211, 766 N.E.2d at 1113. If the court makes a finding that the parentis unfit, the court next considers whether it is in the child's best interests to terminate parental rights. 705 ILCS405/2-29(2) (West 2000); D.F., 201 Ill. 2d at 495, 777 N.E.2d at 940.

A. Unfitness

Respondent first challenges the trial court's finding that she was unfit under section 1(D)(g) of theAdoption Act, which provides that unfitness may be based on the "[f]ailure to protect the child from conditionswithin his environment injurious to the child's welfare." 750 ILCS 50/1(D)(g) (West 2000). She argues that thecourt erred in adopting a "past-only focus" and restricting the scope of the unfitness hearing to the four-dayperiod from January 29 to February 1, 1998, when D.T. was injured and before respondent sought medicalattention. Respondent contends that the court misinterpreted the statute and unconstitutionally applied it to herby excluding evidence concerning her efforts to protect and care for D.T. before and after that time period. TheState and assistant public guardian on behalf of D.T. respond that the Illinois Supreme Court analyzed section1(D)(g) and rejected these arguments in In re C.W., 199 Ill. 2d 198, 766 N.E.2d 1105 (2002). Respondent seemsto concede in her reply brief and at oral argument that C.W. resolved this argument.

We agree that C.W. settled this issue. In C.W., our supreme court held that under the plain language ofsection 1(D)(g), evidence in support of this unfitness ground must focus on the child's environment and theparent's failure to protect before removal of the child from the injurious home environment. C.W., 199 Ill. 2d at214-15, 766 N.E.2d at 1115. Further, the court found that an unfitness finding under section 1(D)(g) can bebased on evidence of the parent's conduct that gave rise to the removal of the child. Thus, evidence of theparent's conduct after the removal of the child is irrelevant to a section 1(D)(g) unfitness finding. C.W., 199 Ill.2d at 218, 766 N.E.2d at 1117. The court reasoned that "evidence that a parent substantially completed offeredservices, or otherwise refrained from prior objectionable conduct following removal of the child, does notsomehow absolve or erase the parent's initial failing that triggered State intervention and removal of the child." C.W., 199 Ill. 2d at 217, 766 N.E.2d at 1116. Such evidence is appropriately considered at the best interest stageof the termination of parental rights hearing. C.W., 199 Ill. 2d at 217, 766 N.E.2d at 1116.

Therefore, in the present case, the trial court properly based its unfitness finding only on respondent'sconduct before D.T.'s removal and correctly limited the scope of respondent's unfitness hearing to respondent'sfailure to protect D.T. from January 29 through February 1, 1998. Further, after reviewing the evidence admittedat the unfitness hearing, including respondent's admission that she failed to protect D.T. during that four-dayperiod, we hold that the trial court's finding that respondent was unfit under section 1(D)(g) was not against themanifest weight of the evidence.

B. Best Interests

After a parent has been found unfit, the court conducts a separate hearing that focuses on whethertermination of the parent's rights is in the child's best interests. Tashika F., 333 Ill. App. 3d at 170, 775 N.E.2d at307. Even after a parent has been found unfit, it does not automatically follow that the parent cannot remain thechild's legal parent with the attendant rights and privileges. In re M.S., 302 Ill. App. 3d 998, 1003, 706 N.E.2d524, 528 (1999). The question of what is in the best interests of the child should not be treated lightly. In reG.L., 329 Ill. App. 3d 18, 25, 768 N.E.2d 367, 372 (2002). When determining whether termination of parentalrights is in a child's best interests, the court must consider the following factors in the context of the child's ageand developmental needs: (1) the child's physical safety and welfare; (2) the development of the child's identity;(3) his background and ties, including familial, cultural and religious; (4) his sense of attachments, includinglove, security, familiarity, and continuity of affection, and the least disruptive placement alternative; (5) hiswishes; (6) his community ties; (7) his need for permanence, including his need for stability and continuity ofrelationships with parent figures and siblings; (8) the uniqueness of every family and child; (9) the risks related tosubstitute care; and (10) the preferences of the persons available to care for the child. 705 ILCS 405/1-3(4.05)(West 2000). A trial court's finding that termination of a parent's rights is in the child's best interests will not bereversed unless it is against the manifest weight of the evidence. In re D.M., No. 1-01-4020 (December 26,2002); In re M.F., 326 Ill. App. 3d 1110, 1115-16, 762 N.E.2d 701, 706 (2002).

Respondent argues that the trial court incorrectly found that the best interest determination rested withinits sound discretion and improperly failed to hold the State to any burden of proof during the best interesthearing. Further, respondent argues that due process concerns require the court to impose upon the State a "clearand convincing evidence" standard of proof, citing Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S.Ct. 1388 (1982), and Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). Alternatively,respondent asserts that the State should bear the burden to prove by a preponderance of the evidence thattermination of a parent's rights is in the child's best interests.

The State concedes that it has the burden to show that termination is in the child's best interests. However, the State contends that "sound discretion" is a sufficient burden of proof at the best interest hearing,explaining that this standard is well-established in case law. If this court were to reject sound discretion as aburden of proof, the State asserts that a preponderance of the evidence standard is the proper burden. Whilerespondent urges this court to adopt a clear and convincing evidence standard, the State rejects that standard,contending that Santosky does not mandate such a burden at the best interest stage ,and instead suggests that alower burden is appropriate. The assistant public guardian on behalf of D.T. asserts that there is no burden ofproof at the best interest hearing, but if a burden exists, it is a preponderance of the evidence.

First, we agree with respondent that "sound discretion" is not a burden of proof. "Burden of proof" isdefined as "[a] party's duty to prove a disputed assertion or charge" and includes both the burden of productionand the burden of persuasion. Black's Law Dictionary 190 (7th ed. 1999). The burden of production is "[a]party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather thandecided against the party in a peremptory ruling," while the burden of persuasion includes "[a] party's duty toconvince the fact-finder to view the facts in a way that favors that party." Black's Law Dictionary 190 (7th ed.1999). An issue is "proved" when the court is convinced by the data submitted that the alleged fact is true. 2 J.Strong, McCormick on Evidence