IN RE: KAYLA M. (Anonymous).

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: KAYLA M. (Anonymous). Suffolk County Department of Social Services, petitioner-respondent; Elizabeth G. (Anonymous), appellant, et al., respondent.

Decided: October 31, 2005

ANITA R. FLORIO, J.P., STEPHEN G. CRANE, WILLIAM F. MASTRO, and REINALDO E. RIVERA, JJ. Stephen R. Hellman, Mastic, N.Y., for appellant. Christine Malafi, County Attorney, Central Islip, N.Y. (Frank Krotschinsky of counsel), for petitioner-respondent. Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), Law Guardian for the child.

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 not 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 N.Y.2d 73, 76, 637 N.Y.S.2d 666, 661 N.E.2d 138;  Matter of Ziaire M., 309 A.D.2d 938, 766 N.Y.S.2d 98;  Matter of W. Children, 277 A.D.2d 242, 243, 716 N.Y.S.2d 677).

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, 637 N.Y.S.2d 666, 661 N.E.2d 138;  Matter of Ziaire M., supra ).

The appellant's remaining contentions are without merit.

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