N and G Children, Matter of
| Decision Date | 08 October 1991 |
| Parties | In the Matter of the N AND G CHILDREN etc. Alberto G., Respondent-Appellant, Commissioner of Social Services, Petitioner-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and MILONAS, KUPFERMAN, KASSAL and SMITH, JJ.
Order, Family Court, New York County (Sheldon M. Rand, J.), entered on or about October 20, 1989, which, inter alia, prohibited contact between respondent Alberto G. and three of the five children under his care for a period of 12 months, pursuant to a fact-finding determination by the same court, entered August 24, 1989 after a hearing, that respondent had sexually abused his stepdaughter, is unanimously affirmed, without costs.
Family Court did not err in applying a preponderance of the evidence standard of proof in finding respondent guilty of sexual abuse. Respondent's argument that a clear and convincing standard applies is based mainly on Santosky v. Kramer (455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599), a case in which the parent stood to lose custody of his child permanently pursuant to Article 6 of the Family Court Act. In Matter of Tammie Z. (66 N.Y.2d 1, 494 N.Y.S.2d 686, 484 N.E.2d 1038), the Court of Appeals specifically held the preponderance standard, applicable to Article 10 proceedings (Family Court Act § 1046[b][i], to be constitutional (see also, Matter of Nicole V., 71 N.Y.2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914).
Nor did Family Court err in finding that the conversation between respondent and the priest was not privileged under CPLR 4505. Respondent did not seek out the priest for spiritual advice, but was responding to the latter's request to see him for the purpose of informing him of the allegations that had been made against him by his wife and stepdaughter, and to warn him that the authorities would be advised unless he quit his job at the day-care center. As the priest was clearly not acting or purporting to act as respondent's spiritual advisor, the communication was not privileged (Matter of Keenan v. Gigante, 47 N.Y.2d 160, 417 N.Y.S.2d 226, 390 N.E.2d 1151, cert. denied sub nom. Gigante v. Lankler, 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 118).
Respondent's stepdaughter's out-of-court statements to the priest and the caseworker were amply corroborated by other evidence tending to support their reliability (Family Court Act § 1046[a][vi], Matter of Nicole V., 71 N.Y.2d 112, 524 N.Y.S.2d 19...
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724 207 2001 34 KK 34 207 724 207 2001 In the Matter of AKIA " KK 34 HREF SULLIVAN COUNTY DEPARTMENT OF FAMILY SERVICES JOHNNY 34 MM 34 HREF 87208 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION THIRD JUDICIAL DEPARTMENT
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