IN RE: Application for Guardianship

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

IN RE: Application for Guardianship, etc., CHARLENE LASHAY J., et al., Dependent Children Under the Age of 18 Years, etc., Beatrice J., etc., Respondent–Appellant, Commissioner of Social Services, et al., Petitioners–Respondents.

Decided: February 08, 2001

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, LERNER and BUCKLEY, JJ. Amy Hausknecht, for Charlene Lashay J., et al. Carol Lipton, for Respondent–Appellant. Douglas H. Reiniger, for Petitioners–Respondents.

Orders, Family Court, Bronx County (Marjory Fields, J.), entered on or about March 18, 1998, which, to the extent appealed from, upon a finding of permanent neglect, terminated respondent mother's parental rights and transferred care and custody of the subject children to petitioners Children's Aid Society and the Commissioner of Social Services, unanimously affirmed, without costs.

 The record amply demonstrates that petitioner agency made diligent and repeated efforts to fulfill its obligation to assist respondent in overcoming the obstacles to the children's return.   However, while respondent complied with the recommended rehabilitative programs and took advantage of the agency's offered services, the problems that precipitated the children's removal were still present at the time of the neglect hearing.   Although the agency appropriately determined that eliminating the risk of renewed domestic violence and sexual abuse in respondent mother's home was of paramount importance in planning for the children's return (see, Matter of Michael M., 172 A.D.2d 152, 567 N.Y.S.2d 693), respondent failed to separate herself from her abusive husband or otherwise effectively address these problems.   This failure to plan for the return of the children constituted grounds for the court's finding of permanent neglect (see, Matter of Nathaniel T., 67 N.Y.2d 838, 501 N.Y.S.2d 647, 492 N.E.2d 775;  Matter of Christopher II., 222 A.D.2d 900, 635 N.Y.S.2d 747, lv. denied 87 N.Y.2d 812, 644 N.Y.S.2d 145, 666 N.E.2d 1059).

 A suspended judgment, based on respondent's cooperation with the agency and efforts at self-improvement, was unwarranted since there was no evidence that respondent had a realistic and feasible plan to provide an adequate and stable home for the children (see, Matter of Latasha W., 268 A.D.2d 340, 701 N.Y.S.2d 418).