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

IN RE: KASHEENA M., et al., Children Under Eighteen Years of Age, etc., COMMISSIONER OF the ADMINISTRATION FOR CHILDREN'S SERVICES OF the CITY OF NEW YORK, Petitioner-Appellant, v. LATONYA M., et al., Respondents-Respondents.

Decided: December 30, 1997

Before MURPHY, P.J., and SULLIVAN, WALLACH, TOM and ANDRIAS, JJ. Jonathan M. Kratter, for Kasheena M. Stephen J. McGrath, for Petitioner-Appellant.

Orders, Family Court, Bronx County (Allen Alpert, J.), entered on or about June 13, 1997, which, after a hearing pursuant to Family Court Act § 1028, inter alia, released respondents' four children, Kasheena M., Kenya A., Kymira A. and Kason A., to the custody of respondent-mother pending a fact-finding hearing upon the underlying neglect petition, unanimously reversed to the extent appealed from as limited by appellant's brief, on the law, the facts and in the exercise of discretion, without costs, and respondents' application for the parole of their children to their custody denied.

 We believe that the evidence adduced at the removal hearing respecting respondent-father's repeated and serious physical abuse of at least one of the subject children and the children's mother was sufficiently probative of an “imminent risk” of harm to the children (see, Family Court Act § 1028;  Matter of Erick C., 220 A.D.2d 282, 283, 632 N.Y.S.2d 126) to justify the children's temporary removal from respondents' custody pending disposition of the underlying neglect proceeding.   While we recognize that respondent-mother is not the source of the physical abuse, and, indeed, has been, along with her children, its victim, on the record before us we do not think that respondent-mother, even with the aid of an order of protection, is capable of shielding her children from respondent-father's abusiveness.   Thus, although we understand Family Court's reluctance to separate the children from their mother, we believe that prudence dictates such a measure to assure their safety.   The choice posed is undeniably a tragic one but one that must be resolved with the children's safety as the preeminent decisional determinant (see, Matter of Erick C., supra;  Matter of William C., 209 A.D.2d 408, 409, 618 N.Y.S.2d 416;  Matter of Caroline C., 206 A.D.2d 529, 530, 615 N.Y.S.2d 79;  Matter of Jennifer G., 105 A.D.2d 701, 702, 481 N.Y.S.2d 141).


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