In re Kayla M.

Appellate Division of the Supreme Court of New York

In re Kayla M.

22 A.D.3d 856, 802 N.Y.S.2d 755

Appellate Division of the Supreme Court of the State of New York·Decided October 31, 2005·Published·Cited by 1 cases

Opinion

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Spinner, J.), dated November 1, 2004, as, after a hearing, found that she had neglected the subject child.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellant’s contention, the petitioner established a prima facie case of neglect with respect to the subject child based on evidence that the child tested positive for cocaine at birth, that she had a low birth weight, that the appellant admitted using cocaine during the pregnancy, that she was [857]*857not taking part in a substance abuse program, and that her parental rights had been terminated, in some cases voluntarily, with respect to six of her seven other children (see Family Ct Act § 1046 [a] [iii]; Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 76 [1995]; Matter of Ziaire M., 309 AD2d 938 [2003]; Matter of W. Children, 277 AD2d 242, 243 [2000]).

The finding of neglect was supported by a preponderance of the evidence, together with the negative inference to be drawn from the appellant’s failure to testify (see Family Ct Act § 1012 [f] [i] [B]; Matter of Nassau County Dept. of Social Servs. v Denise J., supra at 79-80; Matter of Ziaire M., supra).

The appellant’s remaining contentions are without merit. Florio, J.P., Crane, Mastro and Rivera, JJ., concur.

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In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Spinner, J.), dated November 1, 2004, as, after a hearing, found that she had neglected the subject child.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellant’s contention, the petitioner established a prima facie case of neglect with respect to the subject child based on evidence that the child tested positive for cocaine at birth, that she had a low birth weight, that the appellant admitted using cocaine during the pregnancy, that she was [857]*857not taking part in a substance abuse program, and that her parental rights had been terminated, in some cases voluntarily, with respect to six of her seven other children (see Family Ct Act § 1046 [a] [iii]; Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 76 [1995]; Matter of Ziaire M., 309 AD2d 938 [2003]; Matter of W. Children, 277 AD2d 242, 243 [2000]).

The finding of neglect was supported by a preponderance of the evidence, together with the negative inference to be drawn from the appellant’s failure to testify (see Family Ct Act § 1012 [f] [i] [B]; Matter of Nassau County Dept. of Social Servs. v Denise J., supra at 79-80; Matter of Ziaire M., supra).

The appellant’s remaining contentions are without merit. Florio, J.P., Crane, Mastro and Rivera, JJ., concur.

In re Kayla M., 22 A.D.3d 856, 802 N.Y.S.2d 755 (N.Y. Ct. App. 2005).

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Opinion

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