| Matter of Brian P. (April C.) |
| 2011 NY Slip Op 08418 [89 AD3d 1530] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Brian P., Jr. and Others, Infants. Niagara CountyDepartment of Social Services, Respondent; April C., Appellant, et al.,Respondent. |
—[*1] Laura A. Wagner, Lockport, for petitioner-respondent. Deborah J. Scinta, Attorney for the Children, Kenmore, for Brian P., Jr., David H., III and DylanC.
Appeal from an order of the Family Court, Niagara County (David E. Seaman, J.), entered June 7,2010 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudgedthat respondent April C. had neglected the subject children.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order determining that she neglected heryoungest son and that she derivatively neglected her two older sons. We affirm. We reject the mother'scontention that the evidence of neglect was legally insufficient and that the fact that she diligently soughtmedical care for her youngest son negated a finding of neglect. Pursuant to Family Court Act §1012 (f) (i) (B), a neglected child is one "whose physical, mental or emotional condition. . . is in imminent danger of becoming impaired as a result of the failure of his [or her]parent . . . to exercise a minimum degree of care . . . by unreasonablyinflicting or allowing to be inflicted harm." In determining whether a parent exercised the minimumdegree of care, the court must consider what "a reasonable and prudent parent [would have done]. . . under the circumstances then and there existing" (Nicholson v Scoppetta, 3 NY3d 357, 370 [2004]). A child may befound to be neglected when the parent knew or should have known of circumstances requiring action toavoid harm or the risk of harm to the child and failed to act accordingly (see Matter of Jessica P., 46 AD3d1142, 1143 [2007]; Matter of Sarah C., 245 AD2d 1111 [1997]; Matter of LynelleW., 177 AD2d 1008 [1991]). Although the mother took her youngest son to the doctor onmultiple occasions and to the hospital when directed, Family Court's finding that she knew or shouldhave known that the child was being physically abused by her live-in boyfriend, who is also arespondent in this proceeding, and that she failed to take steps to avoid the risk of harm to the childwhen she continued to live with the boyfriend and allowed him to babysit is [*2]supported by the requisite preponderance of the evidence (see§ 1046 [b] [i]).
Contrary to the mother's further contention, the court was permitted to draw a negative inferenceagainst the mother based on her failure to testify at the fact-finding hearing (see Matter of Raymond D., 45 AD3d1415 [2007]). Finally, the mother failed to preserve for our review her contention that the courtwas biased against her, as evidenced by certain statements made by the court in denying her motion todismiss the petition at the close of petitioner's case (see generally Matter of Angel L.H. [Melissa H.], 85 AD3d 1637[2011]). In any event, that contention is without merit (see Matter of Warrior v Beatman, 79 AD3d 1770 [2010], lvdismissed 16 NY3d 819 [2011]; Matterof Roystar T. [Samarian B.], 72 AD3d 1569 [2010], lv denied 15 NY3d 707[2010]; Matter of Murdock v Murdock, 183 AD2d 769 [1992]). Present—Scudder,P.J., Smith, Sconiers, Gorski and Martoche, JJ.