In re Boryana D.

a child neglected, the preponderance of the evidence must establish that the child’s physical, mental or emotional condition has been or is in imminent danger of being impaired as a result of the failure of the legal custodian to provide the minimum degree of care (see Family Ct Act § 1012 [f] [i]). The parental behavior asserted as a basis for neglect is measured against the behavior of a reasonable and prudent parent faced with the same circumstances. A child can be declared to be neglected as a result of the failure of the parent to act when the parent knew or should have known of circumstances which required action in order to avoid actual or potential impairment of the child” (Matter of Alaina E., 33 AD3d 1084 , 1085-1086 [2006] [citations omitted]).

Family Court properly found that respondent neglected the children. The record contained ample evidence of circumstances that existed prior to the reported incident of abuse that required action by respondent to avoid actual harm to the children and further demonstrated that respondent failed to take appropriate action to protect the children from the risk of such harm. Respondent was aware that her ex-husband had a prior indicated report for child abuse that, although ultimately reversed, was based on his admission that he had viewed a magazine containing nude photographs while in the company of his then-girlfriend’s eight-year-old daughter. Respondent was also aware that both children had a traumatic past in Bulgaria, including rape of the daughter, and that, as a result, the daughter evinced an age-inappropriate interest in sex that she manifested by viewing pornography on her computer and by seeking attention from adult men. Nonetheless, respondent allowed the children to develop a relationship with the ex-husband that included regular, unsupervised overnight stays and age-inappropriate conduct. In that regard, respondent learned that her ex-husband had taken the daughter to a wine and food festival on his motorcycle, where he let her drink wine and bought her a bracelet with a heart charm. Two weeks before the reported incident of abuse, the ex-husband had disclosed to respondent that he was concerned because the daughter had become very affectionate toward him, an observation the son had previously shared with respondent. Notably, respondent was also advised that the children slept in the same bed as the ex-husband during overnight visits to his home and she acknowledged being advised, in May 2015, that both children had slept in the same bed as the ex-husband when he stayed with them in her home while she attended an out-of-town funeral. Despite having this knowledge, she allowed the unsupervised overnight visits to continue for as many as three

nights per week. Respondent’s limited efforts to curtail the daughter’s use of a shared computer to view pornography and to obtain counseling for the children were patently insufficient to address the extensive risks, and a reasonably prudent parent would not have permitted the ex-husband to have continued, unsupervised access to the children under the circumstances present in this case. Accordingly, we conclude that Family Court properly found the children to be neglected (see Matter of Zackery D. [Tosha E.], 129 AD3d 1121 , 1123 [2015]; Matter of Penny Y. [Roxanne Z.], 129 AD3d 1117 , 1118-1119 [2015]; Matter of Mary MM., 38 AD3d 956 , 957 [2007]; Matter of Alaina E., 33 AD3d at 1087 ).

Garry, P.J., Clark, Mulvey and Aarons, JJ., concur.

Ordered that the appeal from the order entered December 1, 2015 is dismissed, without costs. Ordered that the order entered May 2, 2016 is affirmed, without costs.