         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1182
CAF 10-01425
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF BRIAN P., JR., DAVID H., III,
AND DYLAN C.
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NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES,     MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

APRIL C., RESPONDENT-APPELLANT,
AND JOHN J., RESPONDENT.


PATRICIA M. MCGRATH, LOCKPORT, FOR RESPONDENT-APPELLANT.

LAURA A. WAGNER, LOCKPORT, FOR PETITIONER-RESPONDENT.

DEBORAH J. SCINTA, ATTORNEY FOR THE CHILDREN, KENMORE, FOR BRIAN P.,
JR., DAVID H., III, AND DYLAN C.


     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, adjudged
that 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 her youngest son and that she derivatively
neglected her two older sons. We affirm. We reject the mother’s
contention that the evidence of neglect was legally insufficient and
that the fact that she diligently sought medical 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 unreasonably inflicting or allowing to
be inflicted harm . . . .” In determining whether a parent exercised
the minimum degree 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). A
child may be found to be neglected when the parent knew or should have
known of circumstances requiring action to avoid harm or the risk of
harm to the child and failed to act accordingly (see Matter of Jessica
P., 46 AD3d 1142, 1143; Matter of Sarah C., 245 AD2d 1111; Matter of
Lynelle W., 177 AD2d 1008). Although the mother took her youngest son
to the doctor on multiple occasions and to the hospital when directed,
                                 -2-                          1182
                                                         CAF 10-01425

Family Court’s finding that she knew or should have known that the
child was being physically abused by her live-in boyfriend, who is
also a respondent in this proceeding, and that she failed to take
steps to avoid the risk of harm to the child when she continued to
live with the boyfriend and allowed him to babysit is 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 inference against the mother based on her
failure to testify at the fact-finding hearing (see Matter of Raymond
D., 45 AD3d 1415). Finally, the mother failed to preserve for our
review her contention that the court was biased against her, as
evidenced by certain statements made by the court in denying her
motion to dismiss the petition at the close of petitioner’s case (see
generally Matter of Angel L.H., 85 AD3d 1637). In any event, that
contention is without merit (see Matter of Warrior v Beatman, 79 AD3d
1770, lv dismissed 16 NY3d 819; Matter of Roystar T., 72 AD3d 1569, lv
denied 15 NY3d 707; Matter of Murdock v Murdock, 183 AD2d 769).




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
