Matter of Raymond D.
2007 NY Slip Op 08683 [45 AD3d 1415]
November 9, 2007
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 16, 2008
Matter of Raymond D.
In the Matter of Raymond D., Jr. and Another, Infants. Monroe County Department of Human and Health Services, Respondent; Kenya W., Appellant.
—[*1] Edward J. Nowak, Public Defender, Rochester (Timothy S. Davis of counsel), for respondent-appellant.
Daniel M. DeLaus, County Attorney, Rochester (Paul N. Humphrey of counsel), for petitioner-respondent.
Appeal from an order of the Family Court, Monroe County (Dandrea L. Ruhlmann, J.), entered January 3, 2006 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that Raymond D., Jr. is neglected and Kenyada G. is derivatively neglected.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, adjudicated her son to be neglected and her daughter to be derivatively neglected. We agree with the mother that Family Court erred in drawing a negative inference from her failure to appear for several days of testimony at the fact-finding hearing. Although a negative inference may properly be drawn against a party based on his or her failure to testify (see Ralph M. v Nancy M., 280 AD2d 995, 996 ), the mother testified on her own behalf at the fact-finding hearing, notwithstanding her occasional absences. We conclude, however, that petitioner established that the mother neglected her son by a preponderance of the admissible evidence, i.e., that her excessive use of corporal punishment against her son and her perpetration of acts of violence in her son's presence created an imminent danger of harm to the child's physical, mental, and emotional health (see Family Ct Act § 1012 [f] [i] [B]; Matter of Sanjeeda M., 24 AD3d 445 ; see also Matter of Demetrius B., 28 AD3d 1249 , lv denied 7 NY3d 707 ). We reject the further contention of the mother that petitioner failed to establish that she derivatively neglected her daughter. The neglect of the mother's son " 'is so closely connected with the care of [the mother's daughter] as to indicate that [she] is equally at risk' " (Matter of A.R., 309 AD2d 1153, 1153, quoting Matter of Marino S., 100 NY2d 361, 374 , cert denied 540 US 1059 ). Present—Hurlbutt, J.P., Centra, Lunn, Fahey and Pine, JJ.