Mary H., Respondent–Appellant. v. << (1999)

 We reject the contention of respondent that Family Court's finding that she neglected her two children is not supported by the record.   Petitioner presented unrebutted proof that Jaime's physical condition was impaired and that Jenny's was impaired or was in imminent danger of being impaired by respondent's use of excessive corporal punishment (see, Family Ct. Act § 1012[f][i][B];  § 1046[a][ii];  Matter of R./W. Children, 240 A.D.2d 207, 658 N.Y.S.2d 597, lv. denied 90 N.Y.2d 807, 664 N.Y.S.2d 269, 686 N.E.2d 1364;  Matter of Anthony C., 201 A.D.2d 342, 607 N.Y.S.2d 324).

 The court did not err in drawing a negative inference from the failure of respondent to testify despite the fact that criminal charges were pending against her for the acts giving rise to this proceeding.   Family Court Act article 10 proceedings are civil rather than criminal in nature (see, People v. Smith, 62 N.Y.2d 306, 311, 476 N.Y.S.2d 797, 465 N.E.2d 336), and any inference drawn from the failure of respondent to testify does not violate her Fifth Amendment right in the criminal case (see, Matter of New York City Commr. of Social Servs. v. Elminia E., 134 A.D.2d 501, 521 N.Y.S.2d 283;  Matter of Tammy L., 132 Misc.2d 722, 504 N.Y.S.2d 1011).   In any event, even in the absence of the inference, we conclude that petitioner established by a preponderance of the evidence that respondent neglected the children.

Order unanimously affirmed without costs.

MEMORANDUM: