Genesee County Department of Social Services v. Zeagler

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: After a fact-finding hearing, Family Court granted an order dated September 12, 1980 determining defendant was an abandoned child as defined by section 384-b of the Social Services Law and transferring custody of the child to the Genesee County Department of Social Services. The order recited that the determination was made upon “a fair preponderance of the evidence”. In March of 1982, the Supreme Court of the United States, in Santosky v Kramer ( 455 US 745, 768, 769 ), held that in parental rights termination proceedings the use of “a fair preponderance of the evidence” standard is unconstitutional and the proper standard is “clear and convincing evidence”. After the Santosky decision, appellant’s attorney wrote to the court asking that, in view of Santosky , it vacate the order and conduct a new hearing. The court denied the request, stating that, in its opinion the “Appellate Division will apply ‘the clear and convincing’ test to the record and affirm.” After a full consideration of the record in this case, we find upon clear and convincing evidence, that appellant had abandoned her child for the period of six months immediately prior to the date on which the petition was filed in the court (Social Services Law, § 384-b). Accordingly, the order appealed from should be modified by striking therefrom the words “upon a fair preponderance of the evidence”, and, as modified, affirmed (see Matter of Michael B., 88 AD2d 700 ; Matter of Snyder, 88 AD2d 772). (Appeal from order of Genesee County Family Court, Graney, J. — terminate parental rights.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and Schnepp, JJ.