Opinion
October 8, 1991
Appeal from the Family Court, New York County (Sheldon M. Rand, J.).
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), 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), the Court of Appeals specifically held the preponderance standard, applicable to article 10 proceedings (Family Ct Act § 1046 [b] [i]), to be constitutional (see also, Matter of Nicole V., 71 N.Y.2d 112).
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, cert denied sub nom. Gigante v. Lankler, 444 U.S. 887).
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 Ct Act § 1046 [a] [vi]; Matter of Nicole V., 71 N.Y.2d 112, supra). The priest's account of respondent's admissions that he "did it" only once and would not "do it" again, and that the incident happened because he and his stepdaughter both had a mutual need for comfort and consolation was in itself sufficient corroboration to sustain the charges.
The stepdaughter's recantation did not so undermine her credibility as to require dismissal of the proceeding. A child's recantation is a "common reaction among abused children" (Matter of Tania J., 147 A.D.2d 252, 257; but see, Matter of Kimberly X., 133 A.D.2d 226 ), and was particularly understandable here given the proof that the child was fearful of respondent, the circumstance that the recantation came within days after respondent's return from a trip, and the testimony that during the course of the trial respondent was overheard threatening the child.
Concur — Sullivan, J.P., Milonas, Kupferman, Kassal and Smith, JJ.