| Matter of Tajani B. |
| 2008 NY Slip Op 02838 [49 AD3d 876] |
| March 25, 2008 |
| Appellate Division, Second Department |
| In the Matter of Tajani B., a Child Alleged to be Neglected. SuffolkCounty Department of Social Services, Respondent; Talisha S., Appellant. (Proceeding No. 1.) Inthe Matter of Taliq B., a Child Alleged to be Neglected. Suffolk County Department of SocialServices, Respondent; Talisha S., Appellant. (Proceeding No. 2.) In the Matter of Telis S., aChild Alleged to be Neglected. Suffolk County Department of Social Services, Respondent;Talisha S., Appellant. (Proceeding No. 3.) |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Gary Rosenthal of counsel), forrespondent. Danielle I. Schwager, P.C., Central Islip, N.Y., attorney for the children.
In three related neglect proceedings pursuant to Family Court Act article 10, the motherappeals, as limited by her brief, from so much of an order of fact-finding and disposition of theFamily Court, Suffolk County (Freundlich, J.), entered January 4, 2007, as, after a fact-findingand dispositional hearing, found that she neglected the subject children, and directed her tosubmit to a mental health evaluation and a domestic violence program.
Ordered that the order of fact-finding and disposition is affirmed insofar as appealed from,without costs and disbursements.[*2]
In a child protective proceeding, the party seeking toestablish neglect must show, "first, that a child's physical, mental or emotional condition hasbeen impaired or is in imminent danger of becoming impaired and second, that the actual orthreatened harm to the child is a consequence of the failure of the parent or caretaker to exercisea minimum degree of care in providing the child with proper supervision or guardianship"(Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see Matter of Dimitriy R., 39AD3d 866 [2007]; Family Ct Act § 1012 [f]).
The petitioner proved by a preponderance of the evidence that the subject children wereneglected by the mother (see Family Ct Act § 1046 [b] [i]). Here, the evidencepresented at the hearing was sufficient to prove that the mother left a loaded gun on a bedaccessible to her then three-year-old son and next to her then five-month-old daughter who wasin a crib, thereby creating an imminent danger that their physical, mental, and emotional healthwould be harmed (see Matter of Aminat O., 20 AD3d 480, 481 [2005]).
Additionally, the Family Court providently exercised its discretion in drawing a negativeinference against the mother upon her failure to testify at the hearing (see Matter of KarenPatricia G., 44 AD3d 658, 660 [2007]; Matter of Christopher L., 19 AD3d 597, 598[2005]).
Contrary to the mother's contention, the Family Court did not err in failing to appoint newcounsel to represent her (see Matter of Moore v McClenos, 259 AD2d 752, 753 [1999];Matter of Mooney v Mooney, 243 AD2d 840, 841 [1997]). Skelos, J.P., Lifson, Santucciand Balkin, JJ., concur.