89 A.D.2d 738 | N.Y. App. Div. | 1982
Appeal from a judgment of the Family Court of Ulster County (Elwyn, J.), entered April 5, 1979, which adjudged appellants’ three children to be permanently neglected pursuant to article 6 of the Family Court Act. This case comes before us on remand from the United States Supreme Court. When last before us, the sole issue was whether the standard of proof fixed by section 622 of the Family Court Act ■— a fair preponderance of the evidence — was so low as to deprive appellants of due process of law. We held that it was not and affirmed the judgment terminating their parental rights (Matter of John AA., 75 AD2d 910). The Court of Appeals dismissed the parents’ appeal for lack of a substantial constitutional question (Matter of Apel [Kramer], 51 NY2d 768). On certiorari, the United States Supreme Court vacated our order and re
. The three children involved in this proceeding were placed in foster care in 1973 and 1974, and have been there since. The medical testimony given at the hearing in 1979 established that one of the children had become neurotic as a result of the doubt and confusion created by having two sets of parents and that a second child was well on the way toward a similar neurosis. The expert testified that further delay in resolving this case, one way or the other, could only be harmful to the children.
. Furthermore, in exercising our power independently to determine the facts based upon the evidence in the record (Kay-Fries, Inc. v Martino, 73 AD2d 342, 350, app dsmd 50 NY2d 1056; Wettlaufer v State of New York, 66 AD2d 991,993), and applying the clear and convincing standard, we arrive at the-same conclusion as the Family Court.