Matter of Jessica Victoria S.

Matter of Jessica Victoria S. 2008 NY Slip Op 00063 [47 AD3d 428] January 8, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

In the Matter of Jessica Victoria S., a Child Alleged to be Permanently Neglected. Rosangela DeS., Appellant; SCO Family of Services, Respondent.

—[*1] Geoffrey P. Berman, New York City, for appellant.

Carrieri & Carrieri, P.C., Mineola (Ralph R. Carrieri of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York City (Lisa B. Freedman of counsel), Law Guardian.

Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about December 13, 2006, after a fact-finding determination of permanent neglect, terminating respondent's parental rights to the subject child and committing the child's custody and guardianship to petitioner agency and the Commissioner of Social Services for the purposes of adoption, unanimously affirmed, without costs.

We note the order entered pursuant to Family Court Act § 1039-b excusing the agency from having to make reasonable efforts to reunite the child and respondent, that the motion therefor was not opposed by respondent and that no issue of diligent efforts is raised on appeal. The finding of permanent neglect is supported by clear and convincing evidence, including respondent's failure to separate from her husband, who she knew was an adjudicated child abuser. Respondent's claim that she was never advised to plan separately from her husband is refuted by the evidence (see Matter of Alexis S.D., 7 AD3d 359, 359-360 [2004]). A preponderance of the evidence at the dispositional hearing shows that while respondent attended a parenting class and attended "some" counseling, her progress in eliminating the problems that led to the child's placement was insufficient to warrant a suspended judgment, and that adoption by the family with whom the child has lived since birth is in the child's best interests (see id. at [*2]360; Matter of "Baby Boy" S., 24 AD3d 161 [2005]). We have considered respondent's other arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and McGuire, JJ.