
    In the Matter of Tammie Z. and Others, Alleged to be Neglected Children. Chemung County Department of Social Services, Respondent; Owen Dennis Z., Appellant.
    Decided October 8, 1985
    
      POINTS OF COUNSEL
    
      John J. Ryan, Jr., for appellant.
    I. The preponderance of evidence standard in a neglect proceeding is unconstitutional. (Matter of Bennett v Jeffreys, 40 NY2d 543; Santosky v Kramer, 455 US 745; Matter of Marie B., 62 NY2d 352; Mathews v Eldridge, 424 US 319; Matter of Linda C., 86 AD2d 356; Lassiter v Department of Social Servs., 452 US 18; Stanley v Illinois, 405 US 645; Addington v Texas, 441 US 418.) II. As a matter of law, the evidence presented was insufficient to sustain a finding of neglect. (Matter of Darlene T., 28 NY2d 391; Matter of Bennett v Jeffreys, 40 NY2d 543.) III. The Family Court, as a matter of law, abused its discretion by placing the children with the county. (Matter of Darlene T., 28 NY2d 391; Matter of Urdianyk, 27 AD2d 122.) IV. Appellant, as a matter of law, was denied a fair hearing. (Lutwak v United States, 344 US 604; Matter of Mertens, 56 AD2d 456.)
    
      John F. O'Mara, County Attorney (Robert A. Groff, Jr., of counsel), for respondent.
    I. The standard of proof employed by the court was constitutional. (Matter of Linda C., 86 AD2d 356.) II. Proof was sufficient to support a finding of neglect based upon a preponderance of the evidence. (Matter of C. B., 81 Misc 2d 1017.) III. The court did not abuse its discretion in removing the children from the home. (Matter of Katherine C., 122 Misc 2d 276.) IV. Respondent-appellant was not denied a fair hearing.
    
      I. Robert Abrams, Attorney-General (Robert J. Schack and Robert Hermann of counsel), in his statutory capacity under Executive Law § 71.
    This court need not address the constitutionality of Family Court Act § 1046 (b) (i) if, as a matter of law, the evidence fails to meet the preponderance of the evidence standard of proof. (New York City Tr. Auth. v Beazer, 440 US 568; People v Mobil Oil Corp., 48 NY2d 192; Matter of Peters v New York City Hous. Auth., 307 NY 519; Matter of Hime Y., 54 NY2d 282; Tucker v Tucker, 55 NY2d 378; Matter of Sylvia M., 82 AD2d 217, 83 AD2d 925, 57 NY2d 637.) II. Due process does not require that child neglect be proven by more than a fair preponderance of the evidence. (Santosky v Kramer, 455 US 745; Matter of Linda C., 86 AD2d 356; Matter of Christine H., 114 Misc 2d 475; Lassiter v Department of Social Servs., 452 US 18; University of Cal. Regents v Bakke, 438 US 265; St. Pierre v United States, 319 US 41; Addington v Texas, 441 US 418; Matter of Millar, 40 AD2d 637; Matter of Fred S., 66 Misc 2d 683; Finlay v Finlay, 240 NY 429.)
   OPINION OF THE COURT

Per Curiam.

In a fact-finding hearing to determine whether a child is abused or neglected, the provision of Family Court Act § 1046 (b) that a finding of neglect "must be based on a preponderance of the evidence” affords due process under the Federal Constitution.

This proceeding was brought by respondent Department of Social Services pursuant to Family Court Act article 10, alleging that appellant father, the custodial parent, was neglecting his three children. Article 10 sets forth a two-step procedure to identify and protect abused or neglected children. The first step is a fact-finding hearing at which abuse or neglect must be established by a preponderance of the evidence (Family Ct Act § 1012 [e], [f]; § 1044). If a child is determined to be abused or neglected, the court must thereafter hold a dispositional hearing to determine what order of disposition should be made (Family Ct Act § 1045). Among the dispositional options is placement out of the home for a period of 18 months.

Here, the trial court, applying a preponderance standard, found that appellant’s children were neglected, and issued an order placing them with the Department of Social Services for 18 months. Appellant, citing Santosky v Kramer (455 US 745), contends that the fact-finding hearing was constitutionally infirm because the trial court should have applied a standard of clear and convincing evidence. In Santosky, the Supreme Court addressed the burden of proof required by the Constitution at the fact-finding stage in a permanent neglect proceeding held pursuant to article 6 of the Family Court Act, concluding that, "[bjefore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence” (455 US, at pp 747-748).

Without doubt "[a] parent’s concern for the liberty of the child, as well as for his care and control” is a "fundamental * * * interest and right”, and due process must be afforded in article 10 proceedings (Matter of Ella B., 30 NY2d 352, 356). Determining how much process is due involves balancing "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, at p 754; see, Mathews v Eldridge, 424 US 319). The balance of interests here differs materially from Santosky.

A neglect proceeding pursuant to Family Court Act article 6 may result in permanent termination of "the natural parents’ rights in the child. * * * Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.” (Santosky v Kramer, supra, at p 749.) By contrast, in an article 10 proceeding, the maximum initial period of placement is 18 months. An even more fundamental difference, however, relates to the risk of error. In an article 6 termination proceeding, the child has been in the care of an authorized agency for a period of more than one year (Social Services Law § 384-b [7]) and, as the court in Santosky observed, even if an article 6 termination proceeding fails for lack of proof, "a judge has ample discretion to ensure that * * * a child will not return to a hostile environment” (455 US, at p 766, n 16). The court noted that in Santosky itself, "when the State’s initial termination effort failed for lack of proof * * * the court simply issued orders under Fam. Ct. Act § 1055 (b) extending the period of the child’s foster home placement” (id.). Accordingly, "[f]or the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo” (id., at pp 765-766). In article 10 proceedings, however, an erroneous failure to place the child may have disastrous consequences. If abuse or neglect is not proved, the court must dismiss the petition (Family Ct Act § 1051 [c]). While the court may authorize temporary placement or protection (Family Ct Act § 1027 [a]), that placement or protection remains in effect only pending a final order of disposition, at which time the child is returned to the parents.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in Per Curiam opinion.

Order affirmed, without costs. 
      
      . While the initial placement may be extended for additional periods of one year each (Family Ct Act § 1052 [a]; § 1055 [b]) — and indeed the placement here was extended for one year — no challenge to the extension order is before us, and we thus do not consider any issue relating to the additional periods.
     
      
      
        . We reach appellant’s constitutional argument after having determined that his other contentions are without merit. We agree with the conclusions of the Appellate Division (a) that the evidence as reflected in the affirmed findings was sufficient to support the trial court’s finding of neglect, and (b) that appellant failed to support his charge that the trial atmosphere was not fair and impartial. Moreover, Family Court’s dispositional order, entered by the same judge two weeks after his extensive fact-finding determination and referring to the interests of the children as well as the situation created for them by appellant, adequately stated the grounds for the disposition (Family Ct Act § 1052 [b]; cf. Matter of Darlene T., 28 NY2d 391), and its disposition was not an abuse of discretion as a matter of law.
     