New Jersey Division of Youth and Family Services v. J.S. in the Matter of the Guardianship of A.G., a Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0512-12T1

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
October 17, 2013
v.
APPELLATE DIVISION
J.S.,

Defendant-Appellant.
________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.G., a minor.
________________________________

Submitted October 1, 2013 - Decided October 17, 2013

Before Judges Messano, Sabatino, and Hayden.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Passaic County, Docket No. FG-16-08-12.

Joseph E. Krakora, Public Defender, attorney
for appellant (Angelo G. Garubo, Designated
Counsel, on the brief).

John J. Hoffman, Acting Attorney General,
attorney for respondent (Lewis A.
Scheindlin, Assistant Attorney General, of
counsel; Lisa A. Puglisi, Assistant Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor A.G. (Lisa M.
Black, Designated Counsel, on the brief).
 The opinion of the court was delivered by

SABATINO, J.A.D.

Defendant J.S., the biological father of A.G., appeals the

Family Part's August 31, 2012 order terminating his parental

rights as to A.G. following a multi-day trial. Among other

things, defendant argues that the trial court erred in upholding

a decision of the Division of Youth and Family Services1 (the

"Division") to "rule out" two relatives who had expressed

interest in serving as alternative caregivers for the child.

For the reasons that follow, we affirm the final judgment

terminating defendant's parental rights. As part of our

analysis, we reject defendant's argument that the Division

lacked the authority to rule out relatives under N.J.S.A. 30:4C-

12.1 based upon considerations of a child's best interests.

Instead, we hold that the applicable statutory provisions and a

related regulation, N.J.A.C. 10:120A-3.1, allow the Division to

rule out a relative on such "best-interests" grounds, regardless

of the relative's willingness or ability to care for a child.

However, the Division's rule-out authority is always subject to

the Family Part's ultimate assessment of that child's best

1
A reorganization of the Department of Children and Families
under L. 2012, c. 16, effective June 29, 2012, changed the name
of the Division of Youth and Family Services to the Division of
Child Protection and Permanency.

2 A-0512-12T1
interests. There is ample support in the trial record in this

case to sustain the trial court's conclusion that termination of

defendant's parental rights and A.G.'s continued placement with

his foster parents are in A.G.'s best interests.

I.

A.G. was born in October 2009. About eight months later,

in June 2010, the Division conducted a Dodd removal2 of him from

the care of his biological mother, J.G., based upon reports that

she had carelessly left him with highly intoxicated persons. At

the time of the child's removal, defendant was incarcerated in

the county jail. A.G. was immediately placed in a foster home,

where he has resided ever since.

In April 2011, J.G., who had a history of substance abuse,

prostitution, and a lack of stable housing, voluntarily agreed

to an identified surrender of A.G. to the foster parents.3

Hence, the issues on appeal relate solely to the child's

biological father, defendant J.S.

Defendant had been diagnosed with mental health and

substance abuse issues. After he was released from jail,

2
A "Dodd removal" refers to the emergency removal of a child
without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-
8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 26 n.11 (2011).
3
J.G. did not appear at the guardianship trial and has not
appealed the termination of her own parental rights.

3 A-0512-12T1
defendant tested positive for cocaine. He was referred for

substance abuse treatment, but had difficulty maintaining a

drug-free life, as evidenced by the fact that he tested positive

for cocaine four times between February and April 2012 while on

probation.

Defendant initially identified from jail four relatives as

potential alternative caretakers for A.G. After those four

initial candidates were ruled out within a month by the Division

 decisions that defendant does not contest on this appeal 

two other relatives were suggested as alternative caretakers.

First, in October 2010, defendant proposed M.R., his second

cousin, as a potential caretaker. Within a month, the Division

contacted M.R., had her complete necessary paperwork, and

arranged visitations for M.R. with the child from October 2010

through April 2011. The Division's investigation of M.R. was

complicated by the fact that she had apparent psychological

problems and limited space in her home, and also by initial

difficulties in getting fingerprints from another adult who

lived in her home. Ultimately, the Division ruled out M.R. as a

caretaker based upon its assessment of A.G.'s best interests.

In May 2011, seven months after M.R. was identified, J.P.,

a first cousin of defendant, contacted the Division and

expressed interest in caring for A.G. By that time, J.P. had

4 A-0512-12T1
already begun visiting A.G. weekly, at defendant's request,

starting in April 2011. The Division investigated her as well,

but the investigation revealed that J.P. was disabled and had

four children living in her home, two of whom were also

disabled. Upon considering her circumstances, the Division also

ruled out J.P., on a best-interests basis. In the meantime,

defendant continued to present an inability to care for his son,

who was doing well with the foster parents.

The trial court entered a permanency order on June 2, 2011,

approving the Division's plan to terminate defendant's rights

and to proceed with the adoption of A.G. by his foster parents.

The Division accordingly filed a guardianship complaint against

defendant seeking the termination of his parental rights.

Later that month, on June 22, 2011, the Division sent

letters separately to M.R. and J.P., advising them that they had

been ruled out as potential caretakers based, in both instances,

upon the Division's assessment of the child's best interests.

J.P. attempted an administrative appeal within the Division of

the rule-out determination as to her. However, the Division

declined to review her appeal administratively, in accordance

with N.J.A.C. 10:120A-3.1, which prescribes that there is no

right to an administrative appeal of such a "best interest"

decision. The trial court denied her request, in anticipation

5 A-0512-12T1
that the rule-out issues would be addressed as part of the

Family Part's application of the third prong of N.J.S.A. 30:4C-

15.1(a), and also in recognition that defendant and the Law

Guardian were participating in the case and would have the

opportunity to advocate for an alternate placement with J.P. if

appropriate.

In September 2011, Robert Kanen, Psy.D., an expert that the

Division retained, conducted a bonding evaluation between A.G.

and his foster parents. Dr. Kanen concluded in his report that

A.G. "is strongly attached to the foster parents and would

suffer serious and enduring harm if removed from them." Such a

removal, Dr. Kanen opined, "would take the form of regression in

the developmental gains [A.G.] has experienced" and "also would

severely impair his sense of trust in human relationships."

During his subsequent cross-examination at trial, Dr. Kanen was

emphatic that removing A.G. from his foster family would cause

harm, no matter where he was placed.

In January 2012, Dr. Kanen performed a psychological

evaluation of defendant. That evaluation revealed that

defendant has a history of mental illness, which has resulted in

numerous psychiatric hospitalizations. Additionally, Dr. Kanen

noted that defendant has a long history of substance abuse and

antisocial behavior. According to Dr. Kanen, defendant has

6 A-0512-12T1
significant cognitive limitations which "seriously impair his

ability to supervise, protect, and care for a child." Dr. Kanen

concluded in his report that defendant's "problems are so severe

that they are unlikely to ever be resolved to the point where he

could independently care for himself and a child." The expert

also opined that returning A.G. to defendant's care "would

expose the child to an unnecessary risk of harm."

The guardianship trial was held over eight intermittent

days between May and July 2012. The Division presented

testimony from Dr. Kanen, two caseworkers, and an adoption

supervisor. It also relied upon extensive records that were

admitted into evidence without objection, except as to

defendant's criminal history, by defense counsel. Defendant did

not testify, nor did he present a competing expert to counter

Dr. Kanen's opinions. He did, however, present testimony from

M.R. and J.P., both of whom reiterated their respective desires

to care for A.G.

After considering these proofs, the trial judge issued a

detailed oral opinion on August 31, 2012, concluding that the

Division had proven, by clear and convincing evidence, all four

prongs of the statutory factors for termination under N.J.S.A.

30:4C-15.1(a). This appeal by defendant followed, which is

opposed by the Division as well as the Law Guardian.

7 A-0512-12T1
 II.

We begin our review of these issues with a recognition that

the termination of a parent's right to raise his or her child is

a matter of constitutional magnitude. See In re Guardianship of

K.H.O., 161 N.J. 337, 346 (1999); see also N.J. Div. of Youth &

Family Servs. v. F.M., 211 N.J. 420, 447 (2012). To be sure,

"[p]arents have a fundamental constitutional right to enjoy a

relationship with and raise their children." N.J. Div. of Youth

& Family Servs. v. F.H., 389 N.J. Super. 576, 608 (App. Div.

2007), certif. denied, 192 N.J. 68 (2007) (citing K.H.O., supra,

161 N.J. at 346-47). However, this constitutional right is

"tempered by the State's parens patriae responsibility to

protect the welfare of children." In re Guardianship of J.N.H.,

172 N.J. 440, 471 (2002).

It is well established that when seeking the termination of

a parent's rights under N.J.S.A. 30:4C-15.1(a), the Division has

the burden of establishing, by clear and convincing proof, the

following elements:

(1) The child's safety, health or
development has been or will continue to be
endangered by the parental relationship;

(2) The parent is unwilling or unable to
eliminate the harm facing the child or is
unable or unwilling to provide a safe and
stable home for the child and the delay of
permanent placement will add to the harm.
Such harm may include evidence that

8 A-0512-12T1
 separating the child from his resource
family parents would cause serious and
enduring emotional or psychological harm to
the child;

(3) The [D]ivision has made reasonable
efforts to provide services to help the
parent correct the circumstances which led
to the child's placement outside the home
and the court has considered alternatives to
termination of parental rights; and

(4) Termination of parental rights will not
do more harm than good.

[N.J.S.A. 30:4C-15.1(a); see also N.J. Div.
of Youth & Family Servs. v. A.W., 103 N.J.
591, 604-11 (1986) (reciting the four
controlling standards later codified in
Title 30).]

In the present appeal, defendant only challenges the trial

court's findings with respect to the third and fourth prongs of

the statute, and does not contest the court's adverse findings

on the first two prongs. We thus confine our analysis to the

two latter prongs, although we note parenthetically our

recognition that the first two prongs were amply proven by the

Division, given defendant's long-standing chronic deficits and

his patent inability to care for A.G. himself.

Our scope of review is limited. "On appeal, a reviewing

court must determine whether a trial court's decision in respect

of termination of parental rights was based on clear and

convincing evidence supported by the record before the court."

N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511

9 A-0512-12T1
(2004). The trial court's factual findings "should not be

disturbed unless they are so wholly unsupportable as to result

in a denial of justice." J.N.H., supra, 172 N.J. at 472

(citations omitted).

A.

1.

Defendant's main argument on appeal concerning the third

termination prong is that the Division violated a related

statutory provision, N.J.S.A. 30:4C-12.1,4 because it

4
N.J.S.A. 30:4C-12.1 provides as follows:

a. In any case in which the Department of
Children and Families accepts a child in its
care or custody, including placement, the
department shall initiate a search for
relatives who may be willing and able to
provide the care and support required by the
child. The search shall be initiated within
30 days of the department's acceptance of
the child in its care or custody. The
search will be completed when all sources
contacted have either responded to the
inquiry or failed to respond within 45 days.
The department shall complete an assessment
of each interested relative's ability to
provide the care and support, including
placement, required by the child.

b. If the department determines that the
relative is unwilling or unable to assume
the care of the child, the department shall
not be required to re-evaluate the relative.
The department shall inform the relative in
writing of:

(continued)

10 A-0512-12T1
unreasonably decided not to place A.G. with either of

defendant's cousins, M.R. or J.P. As we have already noted,

M.R. and J.P. were respectively brought to the Division's

attention in October 2010 and May 2011, after the Division had

already sent rule-out letters to the first four relatives that

defendant proposed. When the Division formally ruled out both

M.R. and J.P. in June 2012, it rested its decisions on the best

interests of the child. Defendant maintains that the Division

did not adequately investigate M.R. and J.P., as called for

(continued)
(1) the reasons for the department's
determination;

(2) the responsibility of the relative
to inform the department if there is a
change in the circumstances upon which
the determination was made;

(3) the possibility that termination
of parental rights may occur if the
child remains in resource family care
for more than six months; and

(4) the right to seek review by the
department of such determination.

c. The department may decide to pursue the
termination of parental rights if the
department determines that termination of
parental rights is in the child's best
interests.

[(Emphasis added).]

11 A-0512-12T1
under N.J.S.A. 30:4C-12.1(a). That alleged failure, defendant

argues, signifies that the Division failed to adequately

consider alternatives to termination, as required by the third

statutory prong for termination. N.J.S.A. 30:4C-15.1(a)(3)

(requiring the court to consider "alternatives to termination of

parental rights").

Defendant raises two separate, but related, points on his

claim of the allegedly improper rule-outs. First, he argues

that M.R. and J.P. "were never fully evaluated by the Division."

Second, he makes a broader challenge to the Division's

construction of N.J.S.A. 30:4C-12.1(c), which the Division has

interpreted to allow it to rule out relatives based solely on

its assessment of the best interests of the child involved.

As this court has previously observed, N.J.S.A. 30:4C-12.1

"does not permit the Division to embark on a course set for

termination of parental rights and adoption by a foster parent

without at least first exploring available relative placements."

N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super.

568, 580 (App. Div. 2011). An important objective of the

statutory scheme is "prompt identification of relatives and

notice to them of the results of the investigation and the

potential for termination if the child remains in foster care."

Ibid. "So understood, the Division's compliance with N.J.S.A.

12 A-0512-12T1
30:4C-12.1 is not in any way inconsistent with the goal of

permanency." Ibid. "Delay of permanency or reversal of

termination based on the Division's noncompliance with its

statutory obligations is warranted only when it is in the best

interests of the child." Id. at 581 (citing N.J. Div. of Youth

& Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div.

2003)).

That said, although the Division has a statutory duty to

evaluate relatives as potential caretakers, there is no

presumption favoring the placement of a child with such

relatives. As we have explained, "although there are statutory

provisions in Title 30 and Title 9 which refer to relative

placements, the statutes do not create a presumption in favor of

such placement." M.F., supra, 357 N.J. Super. at 528-29.

Rather, "[a] presumption of custody only exists in favor of a

natural parent as opposed to placement with relatives or foster

parents." Id. at 528 n.3 (citing Watkins v. Nelson, 163 N.J.

235, 246 (2000)).

Here, in finding that the Division did, in fact, comply

with N.J.S.A. 30:4C-12.1, and also, therefore, N.J.S.A. 30:4C-

15.1(a)(3), the trial court reasoned:

No viable alternatives to termination
of parental rights have been presented to
the [c]ourt. [Defendant] has proposed that
a relative could take custody of [A.G.] for

13 A-0512-12T1
 a period of time during which he will
overcome the barriers he faces to safely
parent the child.

. . . .

This [c]ourt concurs with the Division
in its assessment that each relative was
properly ruled out from custody and that
[defendant's] proposed alternative[s] to
placement [are] therefore impractical.

Furthermore, a simple suggestion by the
defendant that someone might be interested
in caring for his child is very different
from contacting that person himself,
securing his or her cooperation and making
any and all necessary arrangements for the
child's care.

The defendant's reliance on [K.L.W.,
supra, 419 N.J. Super. at 568] is misplaced.
This [c]ourt cannot ignore that the Division
did, in fact, contact all relatives named by
[defendant]. Some of these relatives
declined or were not approved for various
and legitimate reasons, such as the prior
history or living arrangements of the person
in question.

Additionally, the child in K.L.W. had
siblings already in that relative's home and
in that case there was expert testimony that
the harm could be mitigated.

I find that the Division has carried
its burden by proving by clear and
convincing evidence as to [p]rong [three]
under N.J.S.A. 30:4C-15.1(a)(3).

[(Emphasis added).]

Subsection (a) of N.J.S.A. 30:4C-12.1 instructs the

Division to initiate a search of relatives and to complete an

14 A-0512-12T1
assessment of each interested relative's ability to care for the

child. Subsection (b) sets forth the Division's duty to inform

the prospective relative if the Division determines "that the

relative is unwilling or unable to assume the care of the

child[.]" N.J.S.A. 30:4C-12.1(b). Principally at issue here is

subsection (c), which states that "the [Division] may decide to

pursue the termination of parental rights if [it] determines

that termination of parental rights is in the child's best

interests." N.J.S.A. 30:4C-12.1(c) (emphasis added).

Although the Division's brief does not explicitly reference

subsection (c), it appears that the Division commonly interprets

that section as granting it the authority to rule out relatives

based on the Division's assessment that placement with that

relative would not be in the child's best interests. That

interpretation is also evidenced by the Division regulation,

N.J.A.C. 10:120A-3.1(b),5 which provides that a relative does not

5
N.J.A.C. 10:120A-3.1(b) reads in full:

A relative does not have a right to appeal,
as a status issue, a Division action that it
is not in a child's best interest to be
placed with a relative. A relative can
appeal a Division action that the relative
is either unwilling or unable to care for a
child.

15 A-0512-12T1
have the right to pursue an administrative appeal of a rule-out

decision predicated solely upon a best-interests assessment.6

Defendant essentially argues that the Division's statutory

interpretation improperly relieves it of its duty to prove each

of the best-interests prongs by clear and convincing evidence,

because it allegedly takes the question of the child's best

interests  or at least this aspect of it  out of a trial

judge's hands. In defendant's view, the Division "must present

the court with complete information" so that the court, and not

the Division, can determine what is in the child's best

interests.

The Division took into account a similar concern raised by

Legal Services of New Jersey ("LSNJ") when promulgating N.J.A.C.

10:120A-3.1(b). The Division described LSNJ's comment to the

proposed regulation in the New Jersey Register as follows:

LSNJ recommends that the Division delete the
proposed amendment to N.J.A.C. 10:120A-
3.1(b). Best interest determinations
regarding a child's placement are not made
unilaterally by the Division, but by the
Superior Court. See N.J.S.A. 9:6-8.54 and
30:4C-61.2. The litigants can and should
make recommendations as to the appropriate
placement but the ultimate decision is under
the court's authority.

6
Although defendant has not mentioned N.J.A.C. 10:120A-3.1(b) in
his brief, his arguments logically implicate the validity of
that regulation involving a "best interest" rule-out.

16 A-0512-12T1
 [41 N.J.R. 242(a) (Jan. 5, 2009).]

The Division responded to this comment by stating:

N.J.S.A. 30:4C-12.1 permits the [Division]
to make determinations that a relative is
either unwilling or unable to care for a
child. Pursuant to the statute, relatives
have the right to seek review of these
decisions by the [Division]. N.J.S.A.
30:4C-12.1 does not provide for a [Division]
review of decisions not related to the
relative's unwillingness or inability to
care for a child. Placement decisions made
by the Division and based on other factors,
such as the relatives' location or personal
relationship between the child and the
relative, are not subject to administrative
appeal. The Division agrees that the
statutes cited by LSNJ address the [c]ourt's
role in placing children.

[Ibid. (emphasis added).]

The Division's interpretation and regulatory approach in

implementing the "best interests" language in N.J.S.A. 30:4C-

12.1(c), as manifested in the promulgation of N.J.A.C. 10:120A-

3.1(b), is entitled to considerable deference. Although we

certainly are not bound by the Division's construction of the

law, "[i]t is settled that '[a]n administrative agency's

interpretation of statutes and regulations within its

implementing and enforcing responsibility is ordinarily entitled

to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337

N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by

Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div.

17 A-0512-12T1
1997)); see also Waksal v. Dir., Div. of Taxation, 215 N.J. 224,

231 (2013) (noting that our courts "generally defer to the

interpretation that an agency gives to a statute that agency is

charged with enforcing" (internal quotation marks omitted)).

Moreover, a "strong presumption of reasonableness must be

accorded [to an] agency's exercise of its statutorily delegated

duties." In re Certificate of Need Granted to the Harborage,

300 N.J. Super. 363, 380 (App. Div. 1997).

We are persuaded that the Division's interpretation of the

"best interests" language of N.J.S.A. 30:4C-12.1 comports with

the intended meaning of the statute and the overall statutory

scheme for the termination of parental rights. If, as defendant

argues, a non-parental relative could be ruled out only in

instances where he or she is unwilling or unable to care for the

child, then N.J.S.A. 30:4C-12.1 would essentially be creating a

statutory presumption in favor of placing children with

competent and willing relatives. Such a presumption would be in

contravention to this State's case law interpreting Title 30.

The reality is that, no matter how fit or willing a proposed

relative may be, a child will, in some instances, be better off

remaining in a successful foster placement.

The satisfaction of the rule-out criteria in N.J.S.A.

30:4C-12.1 is, in essence, just one element of the requirements

18 A-0512-12T1
imposed by N.J.S.A. 30:4C-15.1(a)'s four-prong "best interests"

test. Allowing the Division to make an assessment of the

child's best interests in the rule-out context of N.J.S.A.

30:4C-12.1(c) does not relieve the Division of its duty to prove

at a guardianship trial all four prongs of N.J.S.A. 30:4C-

15.1(a). The burden still remains on the Division to defend its

determinations, as it must prove to a Family Part judge by clear

and convincing evidence that it "made reasonable efforts to

provide services to help the parent correct the circumstances

which led to the child's placement outside the home and the

court has considered alternatives to termination of parental

rights." N.J.S.A. 30:4C-15.1(a)(3). We therefore perceive no

dissonance between the Division's ability to rule out a relative

as a caretaker purely on a "best interests" assessment under

N.J.S.A. 30:4C-12.1, and the overarching four-pronged statutory

test of termination under N.J.S.A. 30:4C-15.1(a).

As a practical matter, allowing a relative who had been

ruled out as a caretaker on best-interests grounds to pursue an

administrative appeal of that decision through the dispositional

hearing process of N.J.A.C. 10:120A-3.2 (and possibly an appeal

thereafter to this court, pursuant to N.J.A.C. 10:120A-2.8 and

Rule 2:2-3) could readily interfere with the Family Part's

ongoing jurisdiction over the related guardianship case. The

19 A-0512-12T1
best-interests issues and evidence in the administrative matter

will undoubtedly overlap with the disputed issues and evidence

before the Family Part in the guardianship action. There is no

sensible reason to allow those same best-interests questions to

be litigated twice  once in an administrative forum and once in

a judicial forum.7

We do not construe the statutory and regulatory schemes to

permit the risk of inconsistent adjudicated outcomes in an

administrative appeal and the separate guardianship proceedings

in the Family Part. That may present a situation that could

inject more uncertainty and delay into the future path of a

child needing permanency. The Division can defend its best-

interests rule-out of a relative in the fuller context of the

guardianship case. In that case, the Family Part judge will

have the benefit of a fuller record of testimony and exhibits.

The judge also will have the benefit of the advocacy of the

child's parent or parents, and the Law Guardian, who presumably

would not otherwise be parties to the relative's administrative

appeal.

7
We contrast that with a situation in which the Division has
ruled out a potential caretaker for cause on narrow grounds,
e.g., an apparent criminal record, where the administrative
hearing would be focused on that narrow issue.

20 A-0512-12T1
 In sum, we concur with the Division that a relative has no

right to pursue an administrative appeal of a rule-out decision

in instances when that decision is predicated upon a best-

interests assessment, rather than a finding that the relative is

unfit or unwilling. The regulation that the Division has

adopted expressing that prohibition, N.J.A.C. 10:120A-3.1, is

valid. The regulation is not at odds with the overall statutory

scheme or its objectives, with the important caveat that the

court, not the Division, is the ultimate arbiter of the child's

best interests.

Lest our opinion be misunderstood, we emphasize that we do

not construe the Division's authority to reject a relative on

"best interests" grounds under subsection (c) of N.J.S.A. 30:4C-

12.1 to relieve it of its responsibility under subsection (a) of

that statute requiring it to conduct a fair investigation of

such a relative who identifies himself or herself as a potential

caretaker in a reasonably prompt manner. The Division cannot

ignore such a relative's timely application out of bureaucratic

inertia, or consider that application based upon an arbitrary,

preordained preference for the foster placement. The Division

must perform a reasonable investigation of such relatives that

is fair, but also sensitive to the passage of time and the

child's critical need for finality and permanency.

21 A-0512-12T1
 If, hypothetically, the Division has been lax or capricious

in its assessment of such timely-presented alternative

caretakers, it bears the litigation risk that a Family Part

judge will conclude, under N.J.S.A. 30:4C-15.1(a)(3), that it

has failed to prove by clear and convincing evidence that

"alternatives to termination of parental rights" have been

appropriately considered. See also K.L.W., supra, 419 N.J.

Super. at 582 (noting that the Division's statutory obligation

"does not permit willful blindness and inexplicable delay in

assessing" a relative).8 In the present case, however, we

discern no such abuse of the Division's investigative or

decision-making authority.

Apart from the correctness of the Division's legal

construction of the best-interests language in the rule-out

statute, there are compelling, fact-specific reasons in the

present case for upholding its rule-outs of M.R. and J.P.9

8
Although this judicial assessment will normally be made
conclusively after a guardianship trial, our opinion does not
foreclose the Family Part judge from making an earlier inquiry
into the merits of the Division's administrative rule-out of a
relative, as part of the court's ongoing oversight of the
family. If such inquiry reveals that the Division has ruled out
a potential caretaker arbitrarily or prematurely, the judge can
take that into account in making decisions about the child
during the course of litigation.
9
We note that neither M.R. nor J.P. has moved to intervene in
this appeal. We therefore need not address whether the court
(continued)

22 A-0512-12T1
 A.G. has been with his foster family since June 2010.

According to the Division's unrebutted expert witness, Dr.

Kanen, the child has developed a strong and secure attachment to

his foster parents. Aside from a limited number of visitations

at which M.R. and J.P. were present, A.G. has no long-standing

relationship with these distant relatives. Given that there is

no legal presumption in favor of a child's placement with

relatives, and that defendant has not progressed closer to

becoming an able parent, there is no realistic basis to perceive

that placement with M.R. or J.P. would be in A.G.'s best

interests. This is especially true in light of this State's

"strong public policy in favor of permanency." K.H.O., supra,

161 N.J. at 357; see also N.J.S.A. 30:4C-11.3 (stating that "the

child's need for permanency shall be of paramount concern to the

court").

The record suggests that M.R., although she was not

specifically ruled out for cause, had numerous constraints that

might make a placement with her problematic, including some

(continued)
erred in denying J.P.'s request to intervene in the guardianship
proceeding, although we envision that such participation could
have presented complications.

23 A-0512-12T1
psychiatric issues and space limitations.10 M.R. had no apparent

pre-existing relationship with A.G. prior to October 2010, and

her visits with A.G. ended in April 2011.

J.P., meanwhile, was herself disabled, and was already

caring for four children, two of whom had special needs. J.P.

did not come forward until the child had already been in foster

care for ten months. Where a child has been in a positive

foster home environment for a prolonged period, the Division

should have the ability to rule out proposed relatives after an

unreasonable delay. See K.L.W., supra, 419 N.J. Super. at 580

10
With respect to M.R., a second cousin, we also note the
Division's limited definition of "relative." N.J.S.A. 30:4C-
12.1 imposes a duty on the Division to search for "relatives,"
but does not contain a definition for that term. See N.J.S.A.
30:4C-2 (defining relevant terms in Title 30). The Department
of Human Services regulations, however, define "relative" as a

birth or adoptive brother, sister,
stepparent, stepbrother, stepsister, uncle,
aunt, first cousin, niece, nephew, as well
as relatives of half blood or marriage and
those denoted by the prefixes "grand" and
"great," including grandparent or great-
grandparent, and limited to those having a
history of being active in planning for the
child's future.

[N.J.A.C. 10:120A-1.3 (emphasis added).]

According to M.R.'s testimony, she and defendant were only
second cousins. Hence, M.R. was not a "relative" that the
Division was obligated to investigate under the applicable
regulations, although it did so anyway.

24 A-0512-12T1
(noting that the "plain meaning and purpose" of N.J.S.A. 30:4C-

12.1 "is prompt identification of relatives" (emphasis added)).

In addition, J.P., like M.R., had no evident prior relationship

with the child.11

2.

With respect to the other facet of the third statutory

prong for termination, defendant argues that the Division's

efforts to provide him with services were deficient in several

respects. His primary argument is that the Division should have

placed him in an inpatient drug treatment program. He also

11
Although it does not affect our statutory analysis under prong
three, we do agree with defendant that the Division should have
advised M.R. sooner than the June 2011 rule-out letter informing
her that she had been rejected as a potential caretaker. A
contact sheet in the Division's records dated December 10, 2010
noted that the case was on a "fast track to adoption" and that a
rule-out letter to M.R. was one of the multiple tasks left to
perform. If, as the contact sheet suggests, the Division knew
in December 2010 that it was going to rule out M.R., it should
have informed her of that decision much sooner than June 2011,
when it sent the rule-out letter to her. It was, at the very
least, discourteous to M.R. to keep her in the dark for six
additional months. The Division attempts to justify that delay
because it apparently wanted to ensure that the placement with
the foster parents would continue to be successful. However,
that excuse is unpersuasive since nothing would have prevented
the Division (and, for that matter, the trial court) from
reviving M.R.'s application at a later point if she were still
interested. While there is no fixed deadline in N.J.S.A. 30:4C-
12.1 for the issuance of rule-out letters, and a late rule-out
letter does not affect the Division's satisfaction of prong
three of the termination criteria, we urge the Division to act
with reasonable diligence in notifying a potential caretaker
that he or she has been ruled out, assuming that the
investigation has been completed.

25 A-0512-12T1
argues that the Division failed to provide him with sufficient

visitation. In this regard, defendant emphasizes his consistent

attendance at visitations and the positive reports about his

interactions with A.G. The trial court rejected defendant's

criticisms of the many services that the Division provided to

him, and so do we.

We recognize that the Division is required, pursuant to

N.J.S.A. 30:4C-15.1(a)(3) and -15.1(c), to make "reasonable

efforts" to "assist the parents in remedying the circumstances

and conditions that led to the placement of the child and in

reinforcing the family structure." (Emphasis added). The

reasonableness of those efforts is "not measured by their

success." In re Guardianship of D.M.H., 161 N.J. 365, 393

(1999). Rather, "[t]hese efforts must be assessed against the

standard of adequacy in light of all the circumstances of a

given case. Consistent efforts to maintain and support the

parent-child bond are central to the court's determination."

Ibid.

In ruling here that the Division had proven this aspect of

the third prong by clear and convincing evidence, the trial

judge observed:

This [c]ourt is satisfied that the
Division has taken reasonable efforts. The
Division has provided [defendant] with
parenting instruction, supervised

26 A-0512-12T1
 visitation, substance abuse assessment,
substance abuse treatment, mental health
treatment, and access to public
transportation. It has coordinated with
service providers and has met regularly with
[defendant].

Had [defendant] fully availed himself
of the Division's efforts, it is the
[c]ourt's opinion that he would have had the
opportunity to correct the circumstances
which led to [A.G.'s] placement with his
resource parents.

The judge also specifically rejected defendant's argument

that the Division failed to meet its services obligations

because defendant was never enrolled in court-ordered inpatient

drug treatment. In reaching this conclusion, the judge

reasoned:

This [c]ourt finds this claim to be without
merit. [The Division was ordered to]
provide [defendant] with inpatient treatment
on [June 2, 2011]. The Division made
several attempts to enroll [defendant] in
different programs, but none would accept
him because he did not test positive for
narcotics. During this time he simply
refused to provide a urine sample. It is
apparent to this [c]ourt that [defendant]
was aware of the prerequisite to admission
of testing positive and intentionally did
not provide a urine sample in order to avoid
going to inpatient treatment.

[Defendant's] failure to enroll was
entirely the product of his own plan and
does not reflect a lack of reasonable
efforts on the part of the Division. When
he was enrolled in some of the programs his
attendance was extremely poor and, as stated

27 A-0512-12T1
 many times prior to this, he acted out in an
aggressive manner.

Lastly, any claims by the defense that
the Division failed to find a program are
disingenuous as [defendant] is currently
attending an outpatient program through his
placement . . . as he is on probation a[t]
the current time.

[(Emphasis added).]

The judge's observations are adequately supported by

substantial, credible evidence in the record. Defendant

contends that there was no direct evidence at trial that he ever

refused to provide a drug screen. However, there is evidence

from both the testimony of a caseworker, Anna Cebula, and a

December 13, 2010 clinical summary from Options, a program

provider, indicating defendant's failure to attend treatment, at

which time his urine would presumably have been tested for

drugs. The court made a reasonable inference that defendant was

attempting to evade detection by his non-attendance at the

treatment sessions. In any event, even assuming for the sake

of argument that such an inference was mistaken, there is ample

other proof in the record to support a finding of an overall

reasonable effort to provide him with services.

In addition, defendant's criticisms of the visitation

provided to him ring particularly hollow, as the record shows

that the Division provided him with the opportunity for regular

28 A-0512-12T1
weekly visits with A.G. There is no expert proof that such

visitation opportunities were insufficient. In sum, the

services aspect of the third prong was amply met.

B.

We lastly turn to the fourth prong of the statute, and the

question of whether termination of defendant's parental rights

would do A.G. more harm than good. As our case law has noted,

this fourth prong is especially important to a termination

analysis. The fourth prong functions as a "fail-safe" to guard

against the unwise termination of a defendant's parental rights.

N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609

(2007). One of the critical aspects of the analysis under the

fourth prong is the "paramount need the children have for

permanent and defined parent-child relationships." In re

Guardianship of J.C., 129 N.J. 1, 26 (1992); see also N.J.S.A.

30:4C-11.3.

In addressing this fourth prong, the trial judge provided

the following detailed analysis:

Termination of [defendant's] parental rights
as to [A.G.] will not do more harm than
good. It is the opinion of this [c]ourt
that the termination of [defendant's]
relationship with [A.G.] will have minimal,
if any, adverse effect on the child.

In contrast, there is ample reason to
believe that severing the ties between
[A.G.] and his resource parents would cause

29 A-0512-12T1
harm to the child and undo much of the
progress he has made in their care.

Dr. Kanen performed a bonding
evaluation on March 2, 2012 with [A.G.],
[defendant], and [A.G.'s] resource parents.
[A.G.] went into distress when taken from
his resource parents and brought to
[defendant]. He had difficulty separating
from his resource parents and took 35
minutes to speak.

[A.G.] referred to [defendant] . . . by
his first name and his resource parents as
mommy and daddy. When [defendant] left the
room [A.G.] was not concerned. Dr. Kanen
interpreted these observations to mean that
[A.G.] does not see [defendant] as a
parental figure and perceives his resource
parents as his parents. Thus, the result of
the bonding evaluation strongly suggests
that [A.G.] would be negatively affected if
he were to be separated from his resource
parents and minimally affected if denied
contact with [defendant].

[A.G.] exhibited developmental delays
including difficulties with speech when he
was first placed with his resource parents
at age eight months. Dr. Kanen testified
that [A.G.] has made significant
improvements over time and that there was a
high risk of losing developmental progress
if [A.G.] were to be removed from his foster
home.

Dr. Kanen further testified that [A.G.]
would be very traumatized and at risk for
depression if separated from his resource
parents. He has grown and more importantly
thrived under the care of his foster
parents. He regards this couple as his
parents.

30 A-0512-12T1
 It is highly unlikely that . . .
[defendant] will be able to care for the
child in the near future.

As discussed, the prognosis for
[defendant's] improvement is very poor as
per the expert testimony of Dr. Kanen. He
struggles to even care for himself. Dr.
Kanen testified that his problems are
chronic and unlikely to change. He has not
maintained stable housing nor obtained
employment.

Further, his proposed path toward
normalizing his parental relationship
involves his cousin taking physical custody
of [A.G.] for an indeterminate period of
time. And I must stress that there is a
need for permanency and consistency.

We cannot add more to these sound insights by the fact-

finder. Defendant asserts that Dr. Kanen's expert opinion, upon

which the judge relied, was skewed and failed to sufficiently

take into account defendant's positive interactions with A.G.

during visitations. We reject that criticism, as the record

shows that Dr. Kanen performed a sufficiently thorough

assessment of the child's bonding with both defendant and the

foster parents.

We do not believe Dr. Kanen was unfair or that he

overlooked critical information. Since he observed defendant

interact with A.G. first-hand in the bonding evaluation, it was

not vital for Dr. Kanen to review the written reports of

defendant's visits. Nor was it vital for Dr. Kanen to interview

31 A-0512-12T1
M.R. or J.P., with whom the child had no prior long-standing

relationship.

Indeed, Dr. Kanen's assessment of the child's circumstances

is essentially unassailable. It was well within the discretion

of the trial court to accept the unrebutted and unequivocal

opinion of the Division's expert. Brown v. Brown, 348 N.J.

Super. 466, 478 (App. Div.) (noting that "[a] trial court is

free to accept or reject the testimony of either side's

expert"), certif. denied, 174 N.J. 193 (2002).

Applying our limited standard of review, J.N.H., supra, 172

N.J. at 472, to the careful judgment that the trial court fairly

exercised in weighing the fact-sensitive considerations here

under the fourth prong, we affirm the court's determination.

III.

The final judgment terminating defendant's parental rights

as to A.G. is consequently affirmed.

32 A-0512-12T1