Summary
finding of parental neglect supported by evidence that "gun and ammunition were within reach of the children" in the family home
Summary of this case from In re Yolanda L.Opinion
No. 4181.
February 3, 2011.
Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about March 3, 2010, which, inter alia, found that respondent father neglected the subject children, unanimously affirmed, without costs.
Kenneth M. Tuccillo, Hastings on Hudson, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), for ACS, respondent.
Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the children.
Before: Saxe, J.P., Friedman, Catterson, Acosta and Richter, JJ.
A preponderance of the evidence supports the finding of neglect as the evidence established that respondent created an imminent danger that the physical, mental and emotional health of the children would be harmed ( see Family Ct Act § 1012 [f] [i]; § 1046 [b] [i]). The hearing testimony showed that the detectives who executed a search warrant of respondent's residence found guns and ammunition that were within the reach of the children ( see Matter of Tajani B., 49 AD3d 874, lv denied 10 NY3d 717).
Since proceedings under article 10 of the Family Court Act are civil rather than criminal in nature, the negative inference drawn from respondent's failure to testify did not violate his Fifth Amendment rights in the criminal case that was pending against him at the time of the hearing ( see Matter of Nicole H., 12 AD3d 182, 183).