John AA, Matter of

• Decision Date: 01 May 1980
• Citation: 75 A.D.2d 910,427 N.Y.S.2d 319
• Parties: In the Matter of JOHN AA * et al., children alleged to be permanently neglected. Bernhardt S. KRAMER, as Commissioner, Ulster County Department of Social Services, Respondent, v. JOHN AA * et al., Appellants. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 319

427 N.Y.S.2d 319

75 A.D.2d 910

In the Matter of JOHN AA * et al., children alleged to be permanently

neglected. Bernhardt S. KRAMER, as Commissioner, Ulster

County Department of Social Services, Respondent, v. JOHN AA ^* et al., Appellants.

Supreme Court, Appellate Division, Third Department.

May 1, 1980.

Alan N. Sussman, Kingston, for appellants.

Edward E. Strohsahl, Saugerties, for respondent.

Wilfred E. Marrin, New York City, for foster parents.

Robert Abrams, Atty. Gen. (Lawrence J. Logan, Asst. Atty. Gen., of counsel), appeared pursuant to § 71 of the Executive Law.

Before MAHONEY, P. J., and GREENBLOTT, KANE, MAIN and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Family Court of Ulster County entered April 5, 1979, which adjudged appellants' three children to be permanently neglected pursuant to article 6 of the Family Court Act.

The sole contention upon this appeal is that section 622 of the Family Court Act is unconstitutional because the standard of proof required by the statute, a fair preponderance of the evidence, is so low that it deprives them of due process of law. In Matter of Anthony L. "CC ", 48 A.D.2d 415, 419, 370 N.Y.S.2d 219, this court held that the level of proof required by section 622 was constitutional. In adhering to our decision, we note that the permanent neglect statute (Social Services Law, § 384-b; Family Ct. Act, § 611, et seq.) recognizes and seeks to balance rights possessed by the child (see Social Services Law, § 384-b, subd. 1; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546, 547, 387 N.Y.S.2d 821, 356 N.E.2d 277) with those of the natural parents (see Social Services Law, § 384-b, subd. 1; Matter of Sanjivini K., 47 N.Y.2d 374, 382, 418 N.Y.S.2d 339, 391 N.E.2d 1316; Matter of Corey L v. Martin L, 45 N.Y.2d 383, 392, 408 N.Y.S.2d 439, 380 N.E.2d 266). Accordingly, application of the preponderance of evidence standard in such a proceeding involving these often conflicting rights is proper and constitutional.

Judgment affirmed, without costs.

* Fictitious name.