IN RE: ARNOLD M. (Anonymous).

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

IN RE: ARNOLD M. (Anonymous). Orange County Department of Social Services, respondent; Angelina P. (Anonymous), appellant.  (Proceeding No. 1). In the Matter of Jennamarie M. (Anonymous). Orange County Department of Social Services, respondent; Angelina P. (Anonymous), appellant.  (Proceeding No. 2). In the Matter of Kristen M. (Anonymous). Orange County Department of Social Services, respondent; Angelina P. (Anonymous), appellant.  (Proceeding No. 3). In the Matter of Nickola M. (Anonymous). Orange County Department of Social Services, respondent; Angelina P. (Anonymous), appellant.  (Proceeding No. 4). In the Matter of Vanessa M. (Anonymous). Orange County Department of Social Services, respondent; Angelina P. (Anonymous), appellant.  (Proceeding No. 5).

Decided: November 29, 2004

A. GAIL PRUDENTI, P.J., DAVID S. RITTER, HOWARD MILLER, and ROBERT A. SPOLZINO, JJ. Brian S. MacNamara, Goshen, N.Y., for appellant. David Darwin, Acting County Attorney, Goshen, N.Y. (Christine Foy-Stage of counsel), for respondent. John A. Pappalardo, White Plains, N.Y., Law Guardian for the children.

In five related proceedings pursuant to Social Services Law § 384-b to terminate parental rights on the ground of permanent neglect, the mother appeals from an order of disposition of the Family Court, Orange County (Klein, J.), entered June 18, 2003, which, after fact-finding and dispositional hearings, and upon a fact-finding order of the same court entered June 5, 2003, finding that she permanently neglected the subject children, terminated her parental rights and transferred custody and guardianship of the subject children to the petitioner, Orange County Department of Social Services, for the purpose of adoption.

ORDERED that the order of disposition is affirmed, without costs or disbursements.

The Family Court's finding that termination of the mother's parental rights was in the best interests of the children is supported by a preponderance of the evidence (see Matter of Olivia Susan C., 2 A.D.3d 441, 767 N.Y.S.2d 798;  Matter of Baby Girl C., 1 A.D.3d 593, 594, 767 N.Y.S.2d 462;  Matter of Avery Curtis Foster Joe D., 306 A.D.2d 276, 278, 761 N.Y.S.2d 672;  Matter of Tenisha Tishonda T., 302 A.D.2d 534, 535, 755 N.Y.S.2d 277;  cf. Matter of Tiffany A., 242 A.D.2d 709, 712-713, 662 N.Y.S.2d 796).   Contrary to the mother's contention, the Family Court providently exercised its discretion in declining to suspend judgment (see Matter of Avery Curtis Foster Joe D., supra;  Matter of Atiba Andrew B., 275 A.D.2d 320, 322, 712 N.Y.S.2d 560;  Matter of Lameek L., 226 A.D.2d 464, 465, 640 N.Y.S.2d 600).

 The petitioner, Orange County Department of Social Services, established, by a preponderance of the evidence (see Matter of Olivia Susan C., supra;  Matter of Baby Girl C., supra at 594, 767 N.Y.S.2d 462), that the mother, by failing to comply with court-ordered drug, alcohol, and mental health counseling, failed to “take such steps as may be necessary to provide an adequate, stable home and parental care for the child[ren] within a period of time which is reasonable under the financial circumstances available” to her (Social Services Law § 384-b[7][c];  see Matter of Nathaniel T., 67 N.Y.2d 838, 840, 501 N.Y.S.2d 647, 492 N.E.2d 775).   The order of disposition was thus properly based on the best interests of the children (see Matter of Star Leslie W., 63 N.Y.2d 136, 147, 481 N.Y.S.2d 26, 470 N.E.2d 824;  Matter of Nereida S., 57 N.Y.2d 636, 640, 454 N.Y.S.2d 61, 439 N.E.2d 870;  Matter of Avery Curtis Foster Joe D., supra;  Matter of Tenisha Tishonda T., supra at 535, 755 N.Y.S.2d 277;  Matter of Tiffany A., supra at 712-713, 662 N.Y.S.2d 796).

 The recommendation of the children's Law Guardian that the judgment of neglect be suspended is not determinative (see Matter of Ray A.M., 37 N.Y.2d 619, 624, 376 N.Y.S.2d 431, 339 N.E.2d 135;  Matter of Picot v. Barrett, 8 A.D.3d 288, 777 N.Y.S.2d 698;  Young v. Young, 212 A.D.2d 114, 118, 628 N.Y.S.2d 957;  Matter of Prete v. Prete, 193 A.D.2d 804, 805, 598 N.Y.S.2d 79).   In the absence of proof that the Family Court did not give due consideration to the recommendation, an appellate court must give deference to the Family Court's evaluation of the Law Guardian's position (see Matter of Suffolk County Dept. of Social Servs., 215 A.D.2d 395, 396, 626 N.Y.S.2d 227;  Matter of Prete v. Prete, supra ).

The Law Guardian's contention regarding the admission into evidence of the case notes of a former case worker is not properly before this court.

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