Matter of Essleiny A. (Rafael A.--Griselda P.)

142 A.D.3d 862, 37 N.Y.S.3d 542

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2016
• Docket: 1698
• Status: Published

Opinion

Order of fact-finding, Family Court, Bronx County (Valerie A. Pels, J.), entered on or about May 14, 2015, which determined, after a hearing, that respondent father had neglected the subject children, unanimously affirmed, without costs.

The Family Court’s finding that the father neglected the children was supported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). The father was arrested upon exiting the family’s building while possessing a half kilo of heroin. The arresting officer proceeded to search the apartment and discovered a kilo press, which is commonly used to compact heroin, in the children’s bedroom. Further, one of the children testified that she had seen the father counting money with another man in the apartment. Finally, the Family Court was entitled to draw a negative inference against the father for failing to testify at the fact-finding hearing (see Matter of Jamie V. [Jamie V.], 110 AD3d 481 [1st Dept 2013]).

Taken as a whole, the evidence in the record suffices to create an inference that the father engaged in narcotics trafficking in the immediate proximity of the children and thereby created an imminent danger to the subject children’s physical,

mental, and emotional condition (see Family Ct Act § 1012 [f] [i]; Matter of Jamie V. [Jamie V.], 110 AD3d 481 [1st Dept 2013]; Matter of Paul J., 6 AD3d 709 [2d Dept 2004]).

Concur — Friedman, J.P., Andrias, Richter, Gische and Kahn, JJ.