86 A.D.2d 356 | N.Y. App. Div. | 1982
OPINION OF THE COURT
The primary issue before us is the validity of the statutory standard of proof in a proceeding under article 10 of the Family Court Act, authorizing the Family Court to make a finding of child abuse on the basis of a preponderance of the evidence (Family Ct Act, § 1046, subd [b], par [i]). Respondent was found to have committed an act of abuse upon his 11-year-old daughter, based almost entirely on her testimony at the hearing concerning sexual molestation and the written statement to the same effect which
The issue largely turns on the scope of the United States Supreme Court’s recent decision in Santosky v Kramer (_ US_, 102 S Ct 1388), and the application of the criteria contained therein for determining whether procedural due process requires imposing a stricter standard of proof when the State seeks to interfere in varying degrees with the parent-child relationship. In Santosky, the Supreme Court, by a vote of five Justices to four, held that New York’s permanent neglect statute (Social Services Law, § 384-b, subd 4, par [d]; subd 7, par [a]; Family Ct Act, § 622) violated procedural due process in permitting an adjudication terminating parental rights based upon a preponderance of the evidence.
Preliminarily, there can be little question that since the result of an adjudication of child abuse is to enable the State seriously to intervene in the family life of respondent, there is at stake a “fundamental liberty interest protected by the Fourteenth Amendment” (Santosky v Kramer, supra, p_, p 1394). This, however, is only the beginning of the inquiry, for “[o]nce it is determined that due process applies, the question remains what process is due” (Morrissey v Brewer, 408 US 471, 481). The test to determine what process is constitutionally due involves the balancing of three factors: “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 v Kramer, supra, p_, p 1394; Addington v Texas, 441 US 418, 425; Mathews v Eldridge, 424 US 319, 335).
After considering and weighing each of these three factors, we conclude that the use of a preponderance of the evidence standard of proof in abuse cases does not offend the due process clause, and, because there are significant distinctions between an adjudication of permanent neglect and one of child abuse, in terms of purpose, policy, and effects, Santosky does not compel a different result.
In describing the weight to be given this factor, the majority in Santosky stated: “Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss” (Santosky v Kramer, supra, p_, p 1397; emphasis added). The majority concluded that an adjudication of permanent neglect results all but inevitably in a final, irrevocable, and total destruction of the parent-child relationship. The critical significance of this fact is revealed in the no less then seven separate, specific references to it in the majority opinion.
The result of an adjudication of child abuse in a proceeding pursuant to article 10 of the Family Court Act, however, is not the total and permanent loss of parental rights.
II. RISK OF ERROR
Santosky states that the “relevant question” in weighing this facet of the due process test is “whether a preponderance standard fairly allocates the risk of an erroneous factfinding between [the State and the natural parents]” (Santosky v Kramer, supra, p _, p 1398). The majority identified three factors as persuasive in suggesting that a stricter standard of proof should apply, namely, (1) the imprecision of the substantive standards of the permanent neglect statute, permitting the Judge to apply his own subjective values; (2) the State’s greater litigation resources; and (3) the State’s control of the evidence, arising out of its custody of the child during the occurrence of the relevant events (supra, at p_, pp 1399-1400). Apart from the comparative inequality of resources existent in any litigation between the State and an individual, a child abuse case does not involve the factors the majority in Santosky identified to show that the risk of an erroneous determination against the parent was more severe than the risk of the opposite result. First, the statutory definitions of an abused child (Family Ct Act, § 1012, subd [e], pars [i]-[iii]), phrased in terms of nonaccidental serious physical harm or the commission of a sex offense, are quite concrete and objective. Moreover, it is the parent, and not the State, who controls the evidence, i.e., has “the power to
III. COUNTERVAILING STATE INTEREST In the Santosky case, the majority identified the State’s interest in a permanent neglect proceeding as one “to provide the child with a permanent home” (Santosky v
For all of the foregoing reasons, we hold that New York’s use of the preponderance of the evidence standard of proof at the fact-finding stage of a child abuse case does not offend the due process clause.
Since our review of the record discloses that respondent’s other points on appeal are without merit, we should affirm.
Mahoney, P. J., Main, Yesawich, Jr., and Weiss, JJ., concur.
Order affirmed, without costs.
Termination of parental rights for severe and repeated child abuse may occur under section 384-b (subd 4, par [e]) of the Social Services Law. In that instance, however, the statute imposes a “clear and convincing” standard of proof (Social Services Law, § 384-b, subd 3, par [g]).