BY WHAT STANDARDS SHALL THE PARENTS BE JUDGED? In approaching a discussion of this question the court is mindful of the admonitions of the Appellate Division, Third Department, in Matter of Peter "DD" v St. Lawrence County Dept. of Social Servs. ( 48 A.D.2d 956) where the court said: "I would caution that the section itself is extremely harsh and seems contrary to human instincts and should only be implemented under the most stringent circumstances" and also in Matter of Anthony "CC" ( 48 A.D.2d 415, 418-419, mot for lv to app den 37 N.Y.2d 708) where upon reaffirming Matter of Peter "DD" (supra) the court said: "[T]he statute [Family Ct Act, art 6] should be construed in favor of the mother because of the human relationship." (See, also, Matter of Denlow, 87 Misc.2d 410, 419, n 9, p 418.)
Decided September 23, 1975 Appeal from (3d dept.: 48 A.D.2d 415) MOTIONS FOR LEAVE TO APPEAL
In sum, the record provides clear and convincing evidence supporting Family Court's adjudication of permanent neglect. Finally, we note that testimony at the hearing suggests that respondent's only income is the $415 per month she receives from public assistance and that the record does not establish affirmatively that she was financially able to plan for her children's future (see, Matter of Anthony L. "CC", 48 A.D.2d 415, 418, lv denied 37 N.Y.2d 708). The fact that a parent is on welfare has been held, in and of itself, not to excuse that parent from the need to plan for the future of his child (Matter of John W, 63 A.D.2d 750, 751). To conclude that a parent is not able to plan financially for his child, there must be unequivocal evidence that the amount of public assistance received is inadequate (supra).
Two orders of the Family Court, Kings County, both dated January 5, 1979, affirmed, without costs or disbursements. We find sections 611 FCT and 614 FCT of the Family Court Act to be constitutional (see Matter of Anthony L. "CC", 48 A.D.2d 415, 419, mot for lv to app den 37 N.Y.2d 708). Hopkins, J.P., Titone, Mangano and Rabin, JJ., concur.
The sole contention upon this appeal is that section 622 FCT 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), 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) with those of the natural parents (see Social Services Law, § 384-b, subd 1; Matter of Sanjivini K., 47 N.Y.2d 374, 382; Matter of Corey L v Martin L, 45 N.Y.2d 383, 392).
On this appeal, we find that Family Court's order must be reversed. To prevail in a permanent neglect proceeding a party must prove his case by a fair preponderance of the evidence (Family Ct Act, § 622; Social Services Law, § 384-b, subd 3, par [g]; see, also, Matter of Anthony L. CC, 48 A.D.2d 415, mot for lv to app den 37 N.Y.2d 708), and, in our view, the agency has not carried this burden of proof in this instance. Applying the pertinent statutory guidelines to this case (Family Ct Act, § 614, subd 1, par [d]; Social Services Law, § 384-b, subd 7, par [a]), we find that there were unquestionably numerous contacts between appellant and Kimberly during the period of foster care, and these contacts cannot justifiably be considered insubstantial (see Social Services Law, § 384-b, subd 7, par [b]) merely because at some of the meetings it appeared to agency caseworkers and the foster mother that there was little interaction between mother and child.
The Agency's neglect in fulfilling its express statutory duty cannot be excused or justified because it would have been difficult or burdensome for the Agency to undertake such efforts due to the parent's predicaments. Additionally "the statute should be construed in favor of the [appellant] because of the human relationship" (Matter of Anthony "CC", 48 A.D.2d 415, 418-419, mot for lv to app den 37 N.Y.2d 708). Finally, we have pointed out that the statute is "extremely harsh and seems contrary to human instincts and should only be implemented under the most stringent circumstances" (Matter of Peter "DD" v St. Lawrence County Dept. of Social Servs., 48 A.D.2d 956 [HERLIHY, J., concurring]). The petitions allege that appellant was advised that if he did not make plans for the children he would be faced with a permanent neglect action; the caseworker testified that she advised appellant as to the importance of formulating permanent plans for the children.
Appeal from an order of the Family Court of Chenango County, entered December 15, 1976, which, among other things, declared the infant to be permanently neglected and placed him in the care and custody of the Chenango County Department of Social Services. We have carefully examined the record and exhibits on this appeal and conclude that the determination of the trial court is founded upon a sound and substantial basis in fact and is in conformity with statutory provisions and recent decisional authority (Matter of Bennett v Jeffreys, 40 N.Y.2d 543; Matter of Irene O., 38 N.Y.2d 776; Matter of Amos HH, 59 A.D.2d 795; Matter of Ruth J v Beaudoin, 55 A.D.2d 52; Matter of Anthony CC, 48 A.D.2d 415, mot for lv to app den 37 N.Y.2d 708). Order affirmed, without costs. Sweeney, J.P., Kane, Mahoney, Main and Larkin, JJ., concur.
ently neglected, the father of the child appeals from an order of the Family Court, Kings County, dated June 26, 1975, which, after a hearing, determined that the child was permanently neglected, permanently terminated the father's custody and awarded custody to petitioner, with a direction that all necessary steps be taken to effectuate the adoption of the child by his foster parents. Order affirmed, without costs or disbursements. A review of the minutes of the hearing, which had been held on several dates, indicates that petitioner presented sufficient evidence to establish that the father failed, for a period of more than one year after the date that his son came into petitioner's care, to plan for the future of the child, although he was physically and financially able to do so (see Matter of Clear, 65 Misc.2d 323; Matter of Stephen B., 60 Misc.2d 662). The requirements of article 6 of the Family Court Act were met and the intent and purpose of the statute has been satisfied (see Matter of Anthony L. CC, 48 A.D.2d 415, 418). Hopkins, Acting P.J., Latham, Damiani and Hawkins, JJ., concur.
It cannot be credibly argued for example that the right to raise one's children permits a parent to abuse or neglect the child. (See, Matter of Anthony L. "CC", 48 A.D.2d 415. ) This is due to the recognized principle that children are also protected by the Constitution and have constitutional rights (Carey v Population Servs. Intl., 431 US, supra, at 692 [plurality opn]) which must be protected by all, including parents (Matter of Shane T., 115 Misc.2d 161). The right of privacy regarding decisions affecting procreation, and in particular the right to obtain nonmedical, nonprescription contraceptives, i.e., condoms, extends to minors as well as adults (Carey v Population Servs. Intl., supra, at 693 [plurality opn]).