IN RE: TRAVIS DEVON B.

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

IN RE: TRAVIS DEVON B., et al., Children Under the Age of Eighteen Years, etc., Jennifer Anne T., etc., Respondent-Appellant, Pius XII Youth and Family Services, Petitioner-Respondent.

Decided: June 18, 2002

NARDELLI, J.P., MAZZARELLI, SULLIVAN, ROSENBERGER and MARLOW, JJ. Amy Hausknecht, for Travis Devon B., et al. Geoffrey P. Berman, for Respondent-Appellant. Michael A. Neff, for Petitioner-Respondent.

Orders of disposition, Family Court, Bronx County (Maureen McLeod, J.), entered on or about October 10, 2000, terminating respondent's parental rights to the subject children upon findings of permanent neglect, and committing the children's custody and guardianship to petitioner agency and the Commissioner of Social Services for purposes of adoption, unanimously affirmed, without costs.

 The findings of permanent neglect are supported by clear and convincing evidence that, for one year prior to the filing of the petition, respondent failed to complete a drug treatment program, and, indeed, refused to admit that she had a drug problem (Dutchess County Dept. of Social Servs., [T.G.] v. G., 141 Misc.2d 641, 534 N.Y.S.2d 64, affd. sub nom.  Matter of Travis Lee G., 169 A.D.2d 769, 565 N.Y.S.2d 136;  see, Matter of Diana Crystal D., 200 A.D.2d 365, 606 N.Y.S.2d 186), and thus failed to plan for the children's future (see, e.g., Matter of Tanya Alexis G., 273 A.D.2d 19, 708 N.Y.S.2d 394;  Matter of Arron Brandend C., 267 A.D.2d 107, 701 N.Y.S.2d 6;  Social Services Law § 384-b[7][c] ).  Even if, as respondent contends, respondent did maintain contact with her children, “a finding of failure to plan, in and of itself, suffices to support a determination of permanent neglect” (Matter of Orlando F., 40 N.Y.2d 103, 110, 386 N.Y.S.2d 64, 351 N.E.2d 711;  see also, Social Services Law § 384-b[7][a] ).   While respondent claims that petitioner agency did not meet its threshold obligation diligently to endeavor to assist her to overcome the problems standing in the way of her regaining custody of the subject children, the record discloses that petitioner agency repeatedly sought to offer petitioner assistance but that petitioner was not responsive to the agency.   An agency faced with an uncooperative parent will be deemed to have fulfilled its duty to make diligent efforts (see, e.g., Matter of Sheila G., 61 N.Y.2d 368, 385, 474 N.Y.S.2d 421, 462 N.E.2d 1139;  Matter of Gyvon Lamar P., 190 A.D.2d 592, 593 N.Y.S.2d 791, lv. denied 82 N.Y.2d 654, 602 N.Y.S.2d 803, 622 N.E.2d 304).

 The finding that it was in the children's best interests to be adopted by their foster mother, who is also their maternal aunt, is supported by the requisite preponderance of the evidence (see, Matter of Star Leslie W., 63 N.Y.2d 136, 147-148, 481 N.Y.S.2d 26, 470 N.E.2d 824).   The children have lived with their aunt since November 1998 and are thriving in her care.   In contrast, the children have not lived with their mother since 1995.   While respondent's achievement in overcoming her drug addiction, obtaining vocational training, and attending school is admirable, Family Court was not required to suspend judgment, since respondent did not have a realistic plan to find a job and suitable housing for herself and her children (see, e.g., Latasha W., 268 A.D.2d 340, 701 N.Y.S.2d 418;  Arron Brandend C., 267 A.D.2d, supra, at 108, 701 N.Y.S.2d 6).   During the dispositional phase, “[t]here is no presumption that [the child's] interests will best be served by return to the parent” (Matter of Star Leslie W., supra ).