| Matter of Raymond D. |
| 2007 NY Slip Op 08683 [45 AD3d 1415] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Raymond D., Jr. and Another, Infants. MonroeCounty Department of Human and Health Services, Respondent; Kenya W.,Appellant. |
—[*1] Daniel M. DeLaus, County Attorney, Rochester (Paul N. Humphrey of counsel), forpetitioner-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 derivativelyneglected.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, adjudicated her sonto be neglected and her daughter to be derivatively neglected. We agree with the mother thatFamily Court erred in drawing a negative inference from her failure to appear for several days oftestimony at the fact-finding hearing. Although a negative inference may properly be drawnagainst a party based on his or her failure to testify (see Ralph M. v Nancy M., 280 AD2d995, 996 [2001]), the mother testified on her own behalf at the fact-finding hearing,notwithstanding her occasional absences. We conclude, however, that petitioner established thatthe mother neglected her son by a preponderance of the admissible evidence, i.e., that herexcessive use of corporal punishment against her son and her perpetration of acts of violence inher son's presence created an imminent danger of harm to the child's physical, mental, andemotional health (see Family Ct Act § 1012 [f] [i] [B]; Matter of Sanjeeda M., 24 AD3d445 [2005]; see also Matter ofDemetrius B., 28 AD3d 1249 [2006], lv denied 7 NY3d 707 [2006]). We rejectthe further contention of the mother that petitioner failed to establish that she derivativelyneglected 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., 309AD2d 1153, 1153, quoting Matter of Marino S., 100 NY2d 361, 374 [2003], certdenied 540 US 1059 [2003]). Present—Hurlbutt, J.P., Centra, Lunn, Fahey and Pine,JJ.