IN THE MATTER OF EUGENE J

Appellant's challenge to the constitutionality of Family Court Act § 1038-a was not raised before Family Court and therefore is not preserved for appeal ( see Matter of Vanessa S., 20 AD3d 924). In any event, the negative inference of drug use drawn by Family Court against appellant because of his refusal to submit to drug testing is not necessary to the finding of neglect, which is sufficiently supported by the evidence showing appellant's awareness of respondent mother's drug use and failure to intervene ( see Matter of R.W. Children, 240 AD2d 207, lv denied 90 NY2d 807). Indeed Family Court's findings in the latter regard are not challenged by appellant on appeal. We have considered and rejected appellant's other contentions.