New Jersey Division of Youth and Family Services v. R.G. and J.G. (069970)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

New Jersey Division of Youth and Family Services v. J.G. (A-116-11) (069970)

Argued May 14, 2013 -- Decided June 2, 2014

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

The issue in this appeal is whether the New Jersey Division of Youth and Family Services (Division)
proved by clear and convincing evidence that appellant’s parental rights should be terminated pursuant to N.J.S.A.
30:4C-15.1(a).

Appellant J.G. is the birth father of Tara, a girl born in February 2004 (“Tara” is a pseudonym used to
protect the identity of the minor) . R.G., the child’s mother, is also the mother of K.G., a son fathered by another
man. In November 2000, J.G. moved in with R.G. and K.G., who was two years old. Appellant supported R.G. and
K.G. and, according to him, loved K.G. as his own son. Three years after appellant moved in, Tara was born, four
weeks premature. According to appellant, he was part of Tara’s life since her birth. He fed her, changed her
diapers, took her to doctors, and did the “normal everyday father stuff.” Six months after Tara’s birth, appellant was
arrested for second-degree eluding a police officer. He was convicted and sentenced to an aggregate five-year term
in state prison.

The Division’s first contact with the family occurred in July 2008, when Tara was four years old. The
Division received an anonymous referral that R.G. was abusing alcohol and was endangering the well-being of Tara
and her brother. The Division removed the children from R.G.’s home, temporarily placed them with their maternal
grandmother, G.B., and visited appellant at the prison to inform him of the removal. Appellant was glad that Tara
and her brother were placed in G.B.’s care. The Division provided services to R.G., including psychological
evaluations, and substance abuse and psychiatric programs.

The Division filed a verified complaint for care, custody, and supervision of Tara and her brother pursuant
to N.J.S.A. 9:6-8.18. The Division presented a plan for reunification, but because R.G. failed to remain alcohol free,
it offered a new permanency plan consisting of termination of R.G.’s parental rights to Tara and K.G. and of
appellant’s parental rights to Tara, to be followed by adoption by G.B. The trial court approved the Division’s
permanency plan. Subsequently, the Division filed a complaint seeking guardianship of Tara and K.G. pursuant to
N.J.S.A. 30:4C-12. In July 2010, R.G. voluntarily surrendered her parental rights to both children, contingent on
their adoption by her mother. K.G. was adopted by G.B. Given K.G.’s adoption and R.G.’s voluntary surrender of
parental rights to Tara, the sole contested issue was the termination of appellant’s parental rights to Tara. During the
trial, appellant indicated that he was not seeking custody of Tara, but that he wanted to maintain a relationship with
her and be a part of her life. The Division, however, insisted that the permanency plan required termination of all of
appellant’s parental rights, including contact and visitation with his six-year-old daughter.

Psychologist Robert J. Miller, Ph.D., testified that a nearly six-year absence from Tara’s life caused harm to
Tara and that the harm could not be remediated in a reasonable time period. He further concluded that there was no
bond between appellant and Tara, although he never conducted a bonding evaluation, and opined, “we’ve missed
the window for reunification.” Appellant testified about his relationship and extensive caretaking role with Tara
during the first six months of her life. He testified that upon his release from prison to a halfway program on April
12, 2007, he spoke to Tara and her mother nearly every day until Father’s Day, June 7, 2009. He wrote letters to
Tara monthly after the Division became involved with the family, as well as on birthdays and holidays. Appellant
claimed that the Division did nothing to facilitate his communications with Tara. While in prison, appellant
voluntarily participated in classes on anger management, behavior modification, cognitive behavioral change,
reentry preparation, and parenting.

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 The trial court applied the four prong standard for termination of parental rights set by N.J.S.A. 30:4C-
15.1(a) and found that the Division failed to prove by clear and convincing evidence that appellant’s parental rights
should be terminated. The trial court discredited Dr. Miller’s testimony, finding that he relied on “flawed

information,” but credited “highly” appellant’s “clear, concise, and inclusive” testimony. The court concluded that
the matter should be returned to the Abuse and Neglect Docket calendar for reassessment.

The Division appealed. In an unpublished opinion, a majority of the Appellate Division panel reversed the
trial judge’s decision. Relying on New Jersey Division of Youth & Family Services v. T.S., 417 N.J. Super. 228
(App. Div. 2010), certif. denied, 205 N.J. 519 (2011), the majority held, in part, “as a matter of law . . . that
[appellant’s] incarceration, which lasted from when Tara was six months old until after her sixth birthday and
prevented the formation of a parental bond, constitute[d] a harm to Tara” pursuant to the first prong of N.J.S.A.
30:4C-15.1(a). The dissenting judge opined that “the Division’s evidence -- as found by the trial court -- simply did
not measure up” to clear and convincing evidence to satisfy the four prongs of N.J.S.A. 30:4C-15.1(a).

HELD: The trial court’s finding that the Division of Youth and Family Services failed to prove by clear and
convincing evidence that appellant’s parental rights should be terminated pursuant to N.J.S.A. 30:4C-15.1(a) is
supported by the trial evidence.

1. The applicable standard of review is limited, requiring that the trial court’s factual findings be upheld when
supported by adequate, substantial, and credible evidence. Concomitantly, reviewing courts should defer to the trial
court’s credibility determinations. Greater deference is owed to a denial of an application to terminate parental
rights than to a grant of an application because a termination of parental rights is final. (pp. 28-30)

2. The United States and New Jersey Constitutions protect parents’ rights to maintain relationships with their
children. Because of its parens patriae responsibility, the State may terminate parental rights when necessary to
protect the child’s best interests. N.J.S.A. 30:4C-15.1(a) sets forth the four elements that the Division must prove by
clear and convincing evidence before terminating a parent’s parental rights. Although incarceration is a relevant
factor in resolving termination of parental rights cases, incarceration alone -- without particularized evidence of how
a parent’s incarceration affects each prong of the best-interests-of-the-child standard -- is an insufficient basis for
terminating parental rights. The Division is required to make reasonable efforts to provide services to help the
parents correct the circumstances that led to the child’s placement outside the home, which may be satisfied when
the Division provides services to, and seeks reunification with, the custodial parent from whom the child was
removed. However, absent an order under N.J.S.A. 30:4C-11.3, the Division may not ignore requests or avoid
providing services to an incarcerated parent. In addition, a child’s need for permanency is an extremely important
consideration. (pp. 30-39)

3. The Appellate Division majority erred in reversing the trial court’s denial of the Division’s application to
terminate appellant’s parental rights. The standard for termination of parental rights is not any different when the
parent is incarcerated. The Division failed to show by clear and convincing evidence that appellant’s incarceration
caused harm to Tara. In addition, because appellant presented evidence that he effectively parented Tara during the
first six months of her life, because the Division failed to provide appellant with sufficient services in order to
effectuate a successful reunification, and because appellant complied with and participated in all court proceedings
related to Tara’s care, the trial court’s finding that the Division failed to prove clearly and convincingly that
appellant is unwilling to remediate the harm his incarceration caused to Tara is supported by credible evidence.
Although this Court has stated that providing services to incarcerated persons is difficult and may be futile, and that
the Division is permitted to focus its services on the primary caretaker, the Division should not avoid providing
services to all incarcerated persons, regardless of their seeming unwillingness to improve their parental fitness.
Here, the Division paid only cursory attention to appellant. The trial court’s findings of a relationship between
appellant and Tara and its credibility determinations that the Division failed to show by clear and convincing
evidence that failure to terminate appellant’s parental rights would do more harm than good to Tara was not
reversible. The trial court’s conclusion that the Division failed to prove its case by clear and convincing evidence is
supported by the trial evidence. (pp. 39-48)

The judgment of the Appellate Division is REVERSED, the decision of the Family Part is

2
REINSTATED, and the matter is REMANDED to the Family Part for further proceedings consistent with this
opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-116 September Term 2011
069970

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.G.,

Defendant-Respondent,

and

J.G.,

Defendant-Appellant.

IN THE MATTER OF THE
GUARDIANSHIP OF T.G.,

Minor-Respondent,

and

K.G.,

Minor-Respondent.

Argued May 14, 2013 – Decided June 2, 2014

On appeal from the Superior Court, Appellate
Division.

T. Gary Mitchell, Deputy Public Defender,
Director of Litigation, argued the cause for
appellant J.G. (Joseph E. Krakora, Public
Defender Parental Representation, attorney;
Mr. Mitchell and Beatrix W. Shear, Deputy
Public Defender, on the briefs).

1
 Douglas M. Greene and Eric Foley, Designated
Counsel, submitted a brief on behalf of
respondent R.G. (Joseph E. Krakora, Public
Defender Parental Representation, attorney).

Caryn M. Stalter, Assistant Deputy Public
Defender, argued the cause for respondent
T.G. (Joseph E. Krakora, Public Defender Law
Guardian, attorney).

Jane S. Blank, Assistant Attorney General,
argued the cause for respondent New Jersey
Division of Youth and Family Services
(Jeffrey S. Chiesa, Attorney General of New
Jersey, attorney; Andrea M. Silkowitz,
Assistant Attorney General, of counsel).

Katherine J. Bierwas, Designated Counsel,
argued the cause for respondent K.G. (Joseph
E. Krakora, Public Defender Law Guardian,
attorney).

Jeyanthi C. Rajaraman argued the cause for
amicus curiae Legal Services of New Jersey
(Melville D. Miller, Jr., President,
attorney; Ms. Rajaraman, Mr. Miller, Mary M.
McManus-Smith, and Akil S. Roper, on the
brief).

Ronald K. Chen argued the cause for amici
curiae American Civil Liberties Union of New
Jersey Foundation and The New Jersey
Institute for Social Justice (Rutgers
Constitutional Litigation Clinic Center for
Law & Justice, attorneys; Mr. Chen, Edward
L. Barocas, Jeanne M. LoCicero, Alexander R.
Shalom, and Craig R. Levine, of counsel and
on the brief).

JUDGE RODRÍGUEZ, temporarily assigned, delivered the

opinion of the Court.

In this matter, a father was incarcerated six months after

the birth of his daughter. He was released five years and four

2
months later, while a guardianship trial was in progress. The

birth mother surrendered her rights in favor of her own mother.

The trial court found that the Division of Youth and Family

Services (Division)1 failed to prove its case for termination of

the father’s rights by clear and convincing evidence. The

majority of the Appellate Division panel reversed and entered

judgment in favor of the Division. Judge Jonathan N. Harris

dissented, agreeing with the trial court’s conclusions drawn

from factual findings. We reverse the decision of the Appellate

Division majority, reinstate the judgment of the trial court,

and remand to the Family Part for further proceedings.

I.

Appellant J.G. is the birth father of Tara,2 a girl born in

February 2004. R.G., the child’s mother, is also the mother of

K.G., a son fathered by another man who died in 2001. R.G.

voluntarily surrendered her parental rights to Tara and K.G.

According to appellant’s testimony at the guardianship

trial, in November 2000, he moved in with R.G. and K.G., who was

two years old. Appellant worked full-time in construction. He

supported them and paid household bills. He played a role in

1
On June 29, 2012, the New Jersey Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency. See L. 2012, c. 16, § 20 (amending N.J.S.A. 9:3A-
10(b)).
2
“Tara” is a pseudonym used in this and the Appellate Division
opinion to protect the identity of the minor, T.G.
3
K.G.’s life and saw himself as K.G.’s stepfather. According to

appellant, he loved K.G. as “my son.”

Three years after appellant moved in with K.G. and R.G.,

Tara was born in February 2004, four weeks premature. According

to appellant, he was part of Tara’s life since her birth. He

“learned how to feed her [and] how to give her two ounces of

milk every four hours” while she spent the first four weeks of

her life in a hospital. After Tara was discharged from the

hospital, she lived with her mother, K.G. and appellant, who

continued to take care of her. Appellant fed Tara, changed her

diapers, took her to the doctor, and did “normal everyday father

stuff.”

Six months after Tara’s birth, appellant was arrested for

second-degree eluding a police officer. In October 2004, he

pleaded guilty to that charge and to a violation of probation.

In December 2004, he was sentenced to an aggregate five-year

term in state prison. After appellant began serving his

sentence, Tara and her brother remained in the care and custody

of their mother, R.G. Appellant spoke with R.G. regularly about

the children, but requested that, due to their age, the children

not visit him in prison. However, he did see Tara in 2007 on

Father’s Day. The children lived with their mother for another

three years and seven months.

II.

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 A.

The Division’s first contact with the family occurred in

July 2008, when Tara was four years old. The Division received

an anonymous referral that R.G. was abusing alcohol and was

endangering the well-being of Tara and her brother. The

Division’s investigation revealed that the children feared their

mother’s behavior when she abused alcohol and that their home

was unsanitary. R.G. smelled of alcohol when she was

interviewed by the Division’s caseworker.

The Division removed Tara and her brother from R.G.’s home

and temporarily placed them with their maternal grandmother,

G.B. Contemporaneously, the Division caseworker visited

appellant at Riverfront State Prison to inform him of the

removal. Appellant stated that he was glad that Tara and her

brother were placed in the care of their maternal grandmother.

The Division provided services to R.G., including psychological

evaluations, and substance abuse and psychiatric programs.

The Division filed a verified complaint for care, custody,

and supervision of Tara and her brother pursuant to N.J.S.A.

9:6-8.18. At a July 2009 permanency hearing, the Division

presented a plan for reunification. However, the trial court

granted the Division’s request for an extension to evaluate

R.G.’s progress and continued Tara and her brother’s placement

with their maternal grandmother. The trial court also permitted

5
the continuation of communications between appellant and the

children and authorized the Division to screen appellant’s

letters to them.

Several months later, at an October 2009 permanency

hearing, due to R.G.’s failure to remain alcohol-free, the

Division offered a new permanency plan consisting of termination

of R.G.’s parental rights to Tara and K.G. and of appellant’s

parental rights to Tara, to be followed by adoption by the

maternal grandmother. However, kinship legal guardianship (KLG)

options had not been explored by the Division. The trial court

approved the Division’s permanency plan. The next day, the

Division explained to the maternal grandmother the processes of

adoption and KLG. The grandmother expressed her preference to

adopt the children.

B.

Subsequently, the Division filed a complaint seeking

guardianship of Tara and K.G. pursuant to N.J.S.A. 30:4C-12. In

July 2010, R.G. voluntarily surrendered her parental rights to

both children, contingent on their adoption by her mother. K.G.

was adopted by the maternal grandmother.

At the start of the trial, on July 12, 2010, appellant was

transported by the Department of Corrections (DOC) and lodged at

the Bergen County Jail for several trial days. Given K.G.’s

adoption and R.G.’s voluntary surrender of parental rights to

6
Tara, the sole contested issue was the termination of

appellant’s parental rights to Tara. The only attorneys

participating at the trial were the representatives of the

Division, appellant, and Tara’s law guardian.

During the trial, appellant indicated that he was not

seeking custody of Tara, but that he wanted to maintain a

relationship with her and be a part of her life. Appellant

consented to Tara remaining in her maternal grandmother’s

custody. At that point, the focus of the hearing was further

narrowed because appellant only sought contact and visitation

with Tara in order to foster and enhance their present

relationship. He made it clear that he was not in a position to

be the custodial parent. The Division, however, insisted that

the permanency plan required termination of all of appellant’s

parental rights, including contact and visitation with his six-

year-old daughter.

Division caseworker Jill DePeri was the first witness at

the trial. According to DePeri, Tara and her brother had a

close relationship. She testified that Tara was happy living

with her grandmother, and that Tara wanted to be adopted by her.

She testified that the Division generally provides no

particular services, such as substance abuse treatment or

parenting skills, to incarcerated persons. Moreover, she

testified that as far as she knew, psychological evaluations

7
were the only services that the Division provided to inmates.

DePeri confirmed that an August 18, 2008 meeting between another

Division caseworker and appellant was the only time Division

personnel met with him while he was in prison. DePeri stated

that she spoke with appellant by telephone on March 9, 2010, and

appellant told her that he had no objections to Tara’s placement

with the maternal grandmother. In answer to DePeri’s question

about his plans for caring for Tara upon his release, he

answered that he wanted to maintain contact with her and be a

part of her life.

DePeri also testified that she encouraged Tara to send

letters and photographs to appellant. Appellant responded to

Tara’s letters shortly after receiving them. Tara reported to

DePeri that her father “always wrote back [to her].”

Subsequently, DePeri advised appellant to use prepaid telephone

cards to make calls to Tara from prison because the maternal

grandmother refused to accept future collect calls, because

previous calls resulted in a $600 telephone bill. DePeri

confirmed that prior to December 2009, there was no record of

the Division encouraging communication between appellant and his

daughter either by letter or telephone.

DePeri stated that five months before the trial, a Division

caseworker sent a letter to the correctional facility where

appellant was held, requesting information about his

8
participation in programs. She testified that the Division

never compared DOC programs to Division programs. During a

conference call three weeks later, the Division learned that

appellant was scheduled to be released in September 2010, but

could be released as early as August 2010, depending on his

conduct.

Psychologist Robert J. Miller, Ph.D., testified that he

conducted two evaluations of appellant on August 4, 2009 and

June 24, 2010. After the first evaluation, Dr. Miller concluded

that appellant was unable to ensure Tara’s safety, care, and

emotional nurturance, explaining that appellant “by virtue of

his own behavior, takes himself out of the parenting task”

because of his incarceration during a critical period of Tara’s

development. Dr. Miller testified that appellant appeared

dismissive, angry, or defensive while discussing K.G.’s desire

not to have appellant in his life. Dr. Miller explained that he

considered R.G.’s unsubstantiated allegations that appellant

physically abused her in determining that appellant could not

perform the functions of a primary caretaker.

After the second evaluation of appellant, Dr. Miller

reported that appellant appeared more confrontational than

during their first interaction. Appellant had not participated

in further programs since his first evaluation, and Dr. Miller

opined that in light of his parental deficiencies, appellant

9
needed years of post-release therapy in which he was disinclined

to engage. Dr. Miller explained that a nearly six-year absence

from Tara’s life caused harm to Tara and could not be remediated

in a reasonable time period.

Dr. Miller concluded there was no bond between appellant

and Tara, although he never conducted a bonding evaluation. He

reasoned that a bonding evaluation would not have been helpful

regardless of the number of letters or phone calls because

Tara’s original attachment to appellant could never be

recovered, and their relationship certainly could not commence

until appellant was released from prison. Appellant’s long

absence from Tara caused the lack of a bond between the two, and

thus Dr. Miller opined, “we’ve missed the window for

reunification.”

Dr. Miller conducted a bonding evaluation of Tara and her

maternal grandmother and concluded that there was a strong bond

between them, as well as between Tara and K.G. Thus, he

concluded that the maternal grandmother’s adoption of Tara was

in Tara’s best interest because delaying her permanency would

only cause her additional harm.

G.B., Tara’s grandmother, testified that the Division’s

counsel spoke to her about KLG and adopting Tara. She confirmed

her willingness and capability to adopt Tara. With respect to

10
the possibility of KLG as a disposition, the grandmother

testified:

It’s basically the same [as adoption]. But
with KLG, if anything should happen to me,
what happens to the children? With adoption
I have my daughter that has two children
that one is in college and one is [K.G.’s]
age. And she would take them. She would
adopt them and keep them in her family.

The grandmother expressed her desire to adopt Tara because:

I just want [Tara and K.G.] to have
stability. I want the children to have
stability to know where they’re living. And
if I do adopt, I’m not changing their names.
They’re going to be their own person. And
I’m going to keep their mother and father in
the picture. I’m -– I’m still going to be
their grandmother.

Appellant testified about his relationship and extensive

caretaking role with Tara during the first six months of her

life. Appellant acknowledged that on the day Tara was born he

was in jail. R.G. bailed him out on the day she left the

hospital.

Appellant began serving his sentence in August 2004. Upon

appellant’s release from prison to a halfway program on April

12, 2007, he spoke to Tara and her mother nearly every day until

Father’s Day, June 7, 2009. On that day, appellant took several

forms of transportation to see his daughter, purchased for K.G.

and Tara videos that they liked, and then visited them at the

maternal grandmother’s home. He wrote letters to Tara monthly

11
after the Division became involved with the family in July 2008,

as well as on birthdays and holidays. The Division provided him

with no letters from the children until he complained in

December 2009.

Meanwhile, appellant voluntarily participated in classes on

anger management, behavior modification, cognitive behavioral

change, reentry preparation, and parenting while in prison. He

claimed that he requested Tara’s school records from the

Division but none were provided. He also claimed that the

Division never provided him with prepaid calling cards or

financial support to purchase the cards to call Tara. He

testified that, shortly before trial, Tara told him on a

telephone call, “I love you daddy,” and “I can’t wait for you to

come home so we could watch movies together.”

Noting that he was presently incarcerated, appellant

testified that he would “max out,” or reach his maximum term on

September 8, 2010. Appellant described his post-incarceration

plans as follows:

Ideally what I really want to do is go up to
Lake George for a couple weeks, rest, and
then I was going to stay at a friend’s house
and then come back and start my job and stay
with a friend for about a month until I get
enough money for an apartment.

He explained that he would be unable to care for Tara

immediately upon his release and “never disputed” that Tara

12
should remain with the maternal grandmother. He also expressed

that he understood the care that the maternal grandmother

provided to Tara, but that he desired to maintain a relationship

with Tara and “be part of [her] life.” R.G., the birth mother,

did not testify at the trial.

C.

In a written opinion dated October 4, 2010, the trial court

found that the Division failed to prove by clear and convincing

evidence that appellant’s parental rights with respect to Tara

should be terminated. The trial court applied the four prong

standard for termination of parental rights set by N.J.S.A.

30:4C-15.1(a) to the evidence presented and made detailed

findings.3 First, the trial court considered whether appellant’s

3
(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
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
13
incarceration constituted abandonment as defined by N.J.S.A.

30:4C-15.1(b) because abandonment was the only harm that the

Division’s complaint alleged against appellant. The judge

concluded that, despite the Division’s contention that appellant

and Tara had no relationship, the record established that there

was no period greater than six months during which appellant had

no contact with Tara. The trial court found that the record

indicated that appellant (1) parented Tara for the first six

months of her life, (2) communicated with R.G. regarding Tara

and K.G. prior to the children’s removal from R.G., and (3)

directly communicated with Tara and K.G. via telephone and

letters thereafter. Thus, the judge found that, pursuant to

N.J.S.A. 30:4C-15.1(a), there was “an insufficient showing that

[Tara] was endangered by the incarceration of her father” and

the Division’s complaint articulated no other types of harm that

appellant caused to Tara.

Second, the trial court concluded that there was

insufficient evidence that appellant was unable or unwilling to

remediate any harm that his incarceration caused to Tara because

the Division provided little, if any, services to him to devise

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).]

14
a plan to remedy the alleged harm. The court reasoned that,

termination was opposed by both R.G. and the maternal

grandmother at the time of the Division’s complaint to terminate

both parents’ parental rights. It commented that understanding

the importance of Tara’s stability, appellant had consistently

explained that he did not want to separate Tara from the

maternal grandmother, who could provide the consistent care that

he was not able to provide at the time of his release. The

court noted that despite his criminal history for cocaine

possession, resisting arrest, theft, joyriding, burglary,

hindering apprehension, and a single aggravated assault on a

police officer, “[n]othing has been shown that the nature of

these offenses is so abhorrent to society that would require”

terminating appellant’s parental rights. In the trial court’s

view, those crimes did not impede appellant from communicating

with Tara and K.G., as the Division’s expert acknowledged.

Third, the judge determined that although the Division

provided extensive services to R.G., she failed to respond

positively to nearly all of the services provided. To the trial

court, R.G.’s failure to respond to services, however, did not

suggest that appellant was undeserving of services, or that he

was provided with sufficient services, particularly because the

Division misinformed the maternal grandmother about providing

communications from appellant to Tara and misinformed appellant

15
about his ability to obtain calling cards from the Division to

call Tara. The trial court also concluded that the Division

exceeded its authority pursuant to an August 28, 2008 order by

not only screening appellant’s letters to Tara but also letters

from Tara and K.G. to appellant. The court noted that appellant

also sought services on his own, but his efforts were overlooked

by the Division, and he was simply ignored and disregarded.

Finally, with respect to whether termination of appellant’s

parental rights would do more harm than good, the trial court

found that the record was replete with examples of Tara’s

affinity towards appellant and appellant being a part of Tara’s

life -- both in-person and over the telephone:

[Appellant] has taken various steps to
rehabilitate himself and has nurtured an
attachment to his daughter. He was
encouraged to write and telephone his
daughter which he did regularly. He
testified to calling home frequently when he
first went away. Upon learning the children
were taken from their mother, he immediately
began writing to them. [K.G.] sent him two
letters in which he stated his love for
[appellant]. . . . [Appellant] also
testified to his relationship with his
daughter. Before the trial they spoke by
telephone and she said “I love you daddy.”

Further, the trial court discredited Dr. Miller’s testimony

because there were no criminal convictions or proofs submitted

substantiating R.G.’s claim that appellant abused her. In fact,

the children testified that a different boyfriend of R.G. abused

16
her. Moreover, Dr. Miller relied on “flawed information” that

the Division had provided appellant with services in prison.

Instead the judge credited “highly” the nonevasive “clear,

concise, and inclusive” testimony of appellant. The trial court

concluded that the matter should be returned to the Abuse and

Neglect Docket calendar for reassessment.

D.

The Division appealed. In an unpublished opinion, a

majority of the Appellate Division panel reversed the trial

judge’s decision not to terminate appellant’s parental rights.

Relying on New Jersey Division of Youth & Family Services v.

T.S., 417 N.J. Super. 228 (App. Div. 2010), certif. denied, 205

N.J. 519 (2011), the majority held “as a matter of law . . .

that [appellant’s] incarceration, which lasted from when Tara

was six months old until after her sixth birthday and prevented

the formation of a parental bond, constitute[d] a harm to Tara”

pursuant to the first prong of N.J.S.A. 30:4C-15.1(a). With

respect to the second prong of the statutory test, the majority

concluded that appellant is “unable or unwilling to provide a

safe and stable home for [Tara] and the delay of permanent

placement will add to [her] harm” because: Tara was “entitled to

a legally permanent, safe and secure home”; KLG is not a

preferred placement when adoption is an option; and appellant

17
did not request to serve as Tara’s primary or secondary

caretaker.

Regarding the third prong, the appellate majority disagreed

with the trial court’s finding that the Division failed to

provide appellant with services because it was “impeded by the

difficulty and likely futility of providing services” to

appellant while he was in prison. Although acknowledging that

the Division could have facilitated greater communication

between appellant and Tara, the majority concluded that the

services provided to R.G. were enough to satisfy the Division’s

obligations “as a matter of law,” especially because appellant

was not seeking “true reunification.” Finally, the panel

majority explained that “[t]ermination of [appellant’s] parental

rights [would] not do more harm than good” because Tara’s

relationship with her grandmother is much stronger and more

nurturing than her “tenuous” relationship with appellant, and

Tara’s placement with the maternal grandmother is permanent and

would allow her to foster her strong relationship with K.G.

E.

The dissenting judge, citing N.J. Div. of Youth & Family

Servs. v. C.S., 367 N.J. Super. 76 (App. Div.), certif. denied,

180 N.J. 456 (2004), noted that this is one of only two cases in

which the Appellate Division has reversed a trial court’s denial

of an application to terminate parental rights. The dissenting

18
judge further explained that reversal is rare because

termination cases are “encased in a double layer of deference,”

including the substantial deference owed to a trial court’s

findings of fact and to Family Part judges’ expertise in these

matters.

III.

A.

Appellant contends that this appeal concerns not only his

“fair shot” to have a positive role in Tara’s life but also

Tara’s right not to “suffer permanent severance of family bonds

that evidence promise.” Appellant argues that the complaints

against him included no allegation of abuse or neglect. He

contends that he contributed to a strong family unit prior to

his incarceration and worked before, during, and afterwards to

develop, maintain, and improve his relationship with Tara and

K.G. Appellant notes that the trial court did not credit Dr.

Miller’s evaluations because he did not know the Division failed

to provide appellant with services. Appellant also argues that

his inability to take custody of Tara should not, as a matter of

law, constitute causing more harm than good to her because he is

willing to provide for Tara. Finally, appellant argues that

none of his convictions were so abhorrent to justify terminating

his parental rights.

19
 Appellant challenges the Appellate Division majority’s

failure to defer to the trial court’s findings when future

remedies exist to limit appellant’s interactions with Tara, and

its disregard of the clear and convincing evidence standard in

termination cases. He argues that the panel imposed its views

of the record in an admittedly close case, even though “all

doubts must be resolved against termination,” (quoting In re

Guardianship of K.H.O., 161 N.J. 337, 347 (1999)). According to

appellant, the panel improperly focused on appellant’s

incarceration in the name of Tara’s permanency, and this

decision rendered restoration of their relationship impossible.

Appellant argues that incarceration alone is not sufficient harm

to support termination of parental rights, and that the view

that a parent’s incarceration is unpardonable obviates the fact-

intensive nature of the best-interests-of-the-child standard.

Appellant also notes that “New Jersey law does not make

relinquish[ing] physical custody tantamount to termination of

parental rights.”

Turning to factor three of the best-interests test,

appellant contends that noncustodial parents deserve services

from the Division and that the statute’s plain language

contravenes any other interpretation because legislative policy

is to reunify families when possible. Appellant maintains that

the Division’s “paltry” two attempts to provide him services

20
were insufficient to satisfy prong three. He argues that

failure to consider placement alternatives short of adoption

contravenes this Court’s ruling in New Jersey Division of Youth

& Family Services. v. A.W, 103 N.J. 591, 611 (1986), because KLG

by the maternal grandmother would have been proper considering

that appellant was not deemed unfit and reunification was only

infeasible in the immediate future.

Finally, with respect to factor four, appellant argues that

the trial court’s finding -- that terminating appellant’s

parental rights would not cause more harm than good to Tara --

should have been upheld.

B.

In response, the Division argues that the panel was correct

to terminate appellant’s parental rights because appellant’s

reunification with Tara was not achieved in the statutory

timeframe due to appellant’s incarceration; Tara has a strong

and permanent bond with the maternal grandmother; and appellant

is not seeking true reunification with Tara. It argues that the

statutory amendments to N.J.S.A. 30:4C-15 et seq. and case law

have shifted the “emphasis in guardianship proceedings . . .

from protracted efforts favoring family reunification to those

which underscore the health, safety and welfare of the child and

effect an expeditious and permanent plan for the child.”

According to the Division, the trial court improperly weighed,

21
as a matter of law, the harm that appellant’s incarceration and

the disruption to Tara’s relationship and permanency with the

maternal grandmother would cause to Tara.

The Division first argues that the consequences flowing

from appellant’s antisocial behavior, including his physical

absence from Tara’s life, his inability to provide for Tara’s

safety after her removal from her mother’s care, her placement

in foster care, and his decreased communications and strained

relationship with her caused harm to Tara. Second, the Division

contends appellant failed “to provide a safe and stable home for

Tara within a reasonable period of time.” The Division argues

that experts confirmed appellant was unable to provide

consistent care and lacked awareness of the impact of his

absence on Tara’s development. Moreover, the Division argues

that disrupting Tara’s relationship with her maternal

grandmother and brother would have a negative impact.

Third, the Division asserts that it provided reasonable

services to appellant because its services were provided based

on this family’s specific needs and the “difficulty and likely

futility of providing services to a person in custody.” The

Division avers that it encouraged appellant and Tara to write to

each other while he was incarcerated, updated him on the court

proceedings about Tara’s care, and focused its services on R.G.

and the maternal grandmother. Finally, the Division argues that

22
because the possibility of KLG cannot serve as a basis for

denying a feasible adoption, terminating appellant’s parental

rights was appropriate, (citing N.J. Div. of Youth & Family

Servs. v. P.P., 180 N.J. 494, 510 (2004)).

C.

Tara’s law guardian, K.G.’s law guardian, and R.G.

reiterate many of the arguments advanced by the Division.

Tara’s law guardian adds that the trial court erred in its

analysis of the first prong by focusing only on the nature of

the appellant’s convictions. Additionally, because Tara’s bond

with her maternal grandmother was much deeper than the almost

non-existent one with appellant, failure to place Tara

permanently with her grandmother would result in more harm than

good.

K.G.’s law guardian adds that the Court should focus on

several factors to determine the harm that incarceration caused,

including the child’s age, the length of the separation, the

strength of the family, the child’s relationship with the new

caregiver and the parent, as well as the nature of the crime and

the stigma that is associated with it, (citing Wright & Seymour,

Working with Children and Families Separated by Incarceration: A

Handbook for Child Welfare Agencies, 77 Child Welfare: J. of

Policy, Practice & Program 5 (Sept. 1998, reprinted 2001)).

Moreover, relying on Dr. Miller’s evaluation, K.G.’s law

23
guardian contends that appellant’s future relationship with Tara

could cause harm because appellant perceives the maternal

grandmother as an “adversary.”

D.

As amicus curiae, Legal Services of New Jersey (LSNJ)

argues that the majority improperly terminated appellant’s

parental rights. It first discusses the challenges that inmates

face in maintaining familial relationships. LSNJ then contends

that a parent’s incarceration is insufficient evidence of harm

to terminate parental rights; instead, it is a factor to

consider in a totality of the circumstances analysis.

Thus, LSNJ argues that the majority substituted its

judgment for the trial court’s findings, despite the special

deference owed to judges’ credibility determinations in

termination cases. It incorrectly determined that the length of

appellant’s incarceration was “a sufficient basis to find prong

one harm” despite appellant’s best efforts to parent Tara while

he was incarcerated, without the Division’s help, and despite

the trial court’s findings of a strong parent-child bond.

Additionally, the panel majority failed to assess if appellant’s

prior convictions created a future risk of harm, even though the

trial court found no nexus between those offenses and a future

risk of harm.

24
 With respect to prong two, LSNJ contends that appellant

developed a strong relationship with and cared for Tara prior to

his incarceration and went to prison believing Tara would be

under R.G.’s care. Appellant also took steps to reenter

society, not recidivate, and agreed to Tara’s placement in a

stable and safe home. Without a bonding evaluation of appellant

and Tara, LSNJ maintains that the panel majority incorrectly

determined that disrupting Tara and the maternal grandmother’s

bond would cause more harm than severing Tara and appellant’s

relationship.

Concerning prong three, LSNJ asserts that, because

incarcerated parents often request that their children not visit

them in prison, the Division should have provided other services

to appellant to supplement his participation in prison-run

programs. The Division improperly focused solely on providing

services to R.G. and ignored or disregarded appellant. The

Division should also have evaluated the possibility of KLG, even

though the maternal grandmother was willing to adopt Tara.

Lastly, with respect to prong four, LSNJ argues that failing to

acknowledge Tara’s desire to deepen her bond with appellant and

the resulting harm of severing her bond with appellant overlooks

credible evidence that terminating appellant’s parental rights

would cause more harm than good to Tara.

E.

25
 American Civil Liberties Union of New Jersey (ACLU-NJ) and

New Jersey Institute for Social Justice (NJISJ), as amici

curiae, request that this Court “direct the Division to develop

standard procedures by which it shall discharge its obligation

to incarcerated or recently incarcerated parents to provide

appropriate services aimed toward reunification” because the

Appellate Division effectively relieved the Division of its

statutory duty to make reasonable efforts. They explain that

the increase of incarcerated persons in New Jersey requires, as

a matter of sound policy, “a more particularized statement of

reasonable efforts in the context of incarcerated parents.”

Amici argue that because the objectives of permanency and

stability were already established by Tara’s placement with the

maternal grandmother, no harm to Tara was alleviated by

terminating appellant’s parental rights, and particularized harm

to Tara must be proven by clear and convincing evidence.

ACLU-NJ and NJISJ add that suggesting that incarcerated

parents have difficulty performing the “composite of tasks” of

parenthood “and cannot continue to undertake or to share the

daily responsibilities of raising a child” overly generalizes

the type of harm suffered by children whose parents are in

prison. It also undermines the deference owed to fact finders

in termination cases. For example, appellant’s decision not to

assume care of Tara should not weigh in favor of terminating his

26
parental rights when the trial court found that appellant’s

decision was prudent and realistic in light of the difficulties

he faced in reentering society.

The ACLU-NJ and NJISJ argue that, after acknowledging the

deficient services provided to appellant, the Appellate Division

held, as a matter of law, that providing sufficient services to

one custodial parent satisfies the Division’s obligation as to

both parents. However, amici curiae contend that New Jersey law

does not allow the Division to ignore or refuse to provide

services to all incarcerated parents, and failing to provide

incarcerated parents with the services outlined in N.J.S.A.

30:4C-15.1(c) is not supported by the statute’s plain language

and contravenes the intent of the best-interests-of-the-child

standard. ACLU-NJ and NJISJ aver that failing to provide

services effectively imposes an additional punishment of

termination of parental rights on incarcerated persons, making

it more likely that the person will recidivate and causing

additional harm to the family and society. According to amici,

those collateral consequences contradict federal policy aimed at

reducing the collateral consequences imposed on inmates, who

amici identify as disproportionately African American and

Hispanic American persons.

ACLU-NJ and NJISJ also argue that, because incarceration

deprives a child of emotional support from his or her parent,

27
failing to provide services to incarcerated persons only

exacerbates harm to the child and to the family generally. As a

result, amici submit that this Court should require the Division

to adopt a practice guide and program standards that lay out

what “particularized reasonable efforts” should be for dealing

with incarcerated parents.

IV.

A.

Because J.G. appeals as of right pursuant to Rule 2:2-

1(a)(2), our review is limited to the issue raised in the

dissent. See R. 2:2-1(a)(2) (“Appeals may be taken to the

Supreme Court from final judgments as of right . . . in cases

where, and with regard to those issues as to which, there is

dissent in the Appellate Division.” (emphasis added)).

Here, the dissenting judge opines that “the Division’s

evidence -- as found by the trial court -- simply did not

measure up” to clear and convincing evidence to satisfy the four

prongs of N.J.S.A. 30:4C-15.1(a).

Thus, the standard of review applicable in this matter is

appellate review of a trial court’s order terminating parental

rights. This standard is limited. In re Guardianship of

J.N.H., 172 N.J. 440, 472 (2002). In such cases, the trial

court’s factual findings should be upheld when supported by

adequate, substantial, and credible evidence. N.J. Div. of

28
Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

Concomitantly, reviewing courts should defer to the trial

court’s credibility determinations. See Cesare v. Cesare, 154

N.J. 394, 412-13 (1998). “[B]ecause it has the opportunity to

make first-hand credibility determinations about the witnesses

who appear on the stand; it has a ‘feel of the case’ that can

never be realized by a review of the cold record.” E.P., supra,

196 N.J. at 104. However, “where the focus of the dispute is .

. . alleged error in the trial judge’s evaluation of the

underlying facts and the implications to be drawn therefrom, the

traditional scope of review is expanded.” In re Guardianship of

J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (citation and

internal quotation marks omitted). “A trial court’s

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference.” Manalapan Realty v. Manalapan Twp. Comm., 140 N.J.

366, 378 (1995).

Moreover, by virtue of its specific jurisdiction, the

Family Part “possess[es] special expertise in the field of

domestic relations” and thus “appellate courts should accord

deference to [F]amily [Part] factfinding.” Cesare, supra, 154

N.J. at 412-13. Additionally, as the dissenting judge in the

Appellate Division noted, greater deference is owed to a denial

of an application to terminate parental rights than to a grant

29
of an application because a termination of parental rights is

final and cannot be re-visited by the court. See In re

Guardianship of S.C., 246 N.J. Super. 414, 428 (App. Div. 1991).

Finally, as stated by the Appellate Division dissent in the

present matter, “[t]erminations should be granted sparingly and

with great caution because they irretrievably impair imperative

constitutionally-protected liberty interests and scores of

centuries of societal family constructs.” Thus, “[w]e should

scorn the undoing of that deliberative and comprehensive

approach unless the trial court’s findings were ‘so wide of the

mark’ that a mistake must have been made.” (quoting N.J. Div.

of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

B.

We turn now to the legal standard applicable in cases

involving termination of parental rights. The United States and

New Jersey Constitutions protect parents’ rights to maintain

relationships with their children. K.H.O., supra, 161 N.J. at

346 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.

1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). Although courts

impose “strict standards for the termination of parental

rights,” parental rights are not absolute. Id. at 347. Because

of its parens patriae responsibility, the State may terminate

parental rights if the child is at risk of serious physical or

emotional harm or when necessary to protect the child’s best

30
interests. A.W., supra, 103 N.J. at 599. The best-interests-

of-the-child standard codified at N.J.S.A. 30:4C-15.1(a) “aims

to achieve the appropriate balance between parental rights and

the State’s parens patriae responsibility.” M.M. supra, 189

N.J. at 280.

Pursuant to N.J.S.A. 30:4C-15.1(a), parental rights may be

terminated when:

(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
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.

These elements are not discrete and separate; they overlap to

offer a full picture of the child’s best interests. M.M.,

supra, 189 N.J. at 280. “The considerations involved are

extremely fact sensitive and require particularized evidence

31
that address[es] the specific circumstance in the given case.”

Ibid. (citations and internal quotation marks omitted). The

Division must prove by clear and convincing evidence that all

four statutory criteria are satisfied. E.g., ibid.

Pursuant to the first prong, “[t]he harm shown . . . must

be one that threatens the child’s health and will likely have

continuing deleterious effects on the child.” K.H.O., supra,

161 N.J. at 352; accord M.M., supra, 189 N.J. at 281. The State

must “demonstrate harm to the child by the parent,” which

“involves the endangerment of the child’s health and development

resulting from the parental relationship.” N.J. Div. of Youth &

Family Servs. v. I.S., 202 N.J. 145, 170 (2010) (citation and

internal quotation marks omitted). “Incarceration is . . .

probative of whether the parent is incapable of properly caring

for . . . or has abandoned the child.” In re Adoption of

Children by L.A.S., 134 N.J. 127, 136 (1993).

In L.A.S., this Court considered whether an incarcerated

father’s sentence to life in prison for first-degree murder

justified terminating his parental rights. Id. at 130. The

Court pronounced that incarceration alone is insufficient to

prove parental unfitness or abandonment and terminate parental

rights. Id. at 137; see also N.J.S.A. 30:4C-15.1(b) (detailing

current three statutory bases for terminating parental rights on

abandonment grounds). It found that unquestionably,

32
incarceration is a relevant factor in resolving termination of

parental rights cases. L.A.S., supra, 134 N.J. at 138.

“However, it is by no means settled or obvious that

incarceration is so inimical to that relationship as to justify

its termination as a matter of law.” Id. at 137. That said, an

incarcerated parent has difficulty “performing the ‘composite of

tasks’ associated with parenthood and cannot continue to

undertake or to share the daily responsibilities of raising a

child.” Id. at 138-39. The Court continued:

[A] parent’s lengthy incarceration is a
material factor that bears on whether
parental rights should be terminated.
Incarceration may be such a factor based on
either abandonment or parental unfitness.
Further, we conclude that the nature of the
underlying crime giving rise to
incarceration is relevant in determining
whether parental rights should be
terminated, because it may bear on parental
unfitness. We also determine that the
hearing to decide whether parental rights
should be terminated must be based on a
broad inquiry into all the circumstances
bearing on incarceration and criminality,
and must include an assessment of their
significance in relation to abandonment or
parental unfitness.

[Id. at 143.]

The Court remanded the case for consideration of whether

the circumstances surrounding the father’s lengthy incarceration

were sufficient to terminate his parental rights based on the

following factors:

33
 [P]erformance as a parent before
incarceration, to what extent his children
were able to rely on him as a parent, and
what effort, if any, he has made to remain
in contact with his children since his
incarceration. The court should also
consider whether [the parent] will be able
to communicate and visit with his children;
what effect such communications and
visitation will have on the children in
terms of fulfilling the parental
responsibility to provide nurture and
emotional support, to offer guidance,
advice, and instruction, and to maintain an
emotional relationship with his children.
Further, the court must consider the risk
posed to his children by [the parent]’s
criminal disposition; what rehabilitation,
if any, has been accomplished since [the
parent]’s incarceration; and the bearing of
those factors on the parent-child
relationship. The court should, with the aid
of expert opinion, determine the need of the
children for permanency and stability and
whether continuation of the parent-child
relationship with [the parent] will
undermine that need. Further, the court
should determine the effect that the
continuation of the parent-child
relationship will have on the psychological
and emotional well-being of the children.

[Id. at 143-44.]

Although the 1997 and 1999 amendments to N.J.S.A. 30:4C-15

now outline the current best-interests-of-the-child standard,

see L. 1999, c. 53, § 30 (eff. Mar. 31, 1999); L. 1997, c. 175,

§ 18, the principles articulated in L.A.S. retain continued

vitality in our application of the current version of N.J.S.A.

30:4C-15.1(a). We therefore reiterate that incarceration alone

–- without particularized evidence of how a parent’s

34
incarceration affects each prong of the best-interests-of-the-

child standard –- is an insufficient basis for terminating

parental rights. See L.A.S., supra, 134 N.J. at 137-38. L.A.S.

identified several factors for courts to consider when

evaluating whether a parent’s incarceration supports or cautions

against terminating parental rights. See id. at 143-44. Such

an analytical approach reflects New Jersey courts’ historic

commitment to fact-sensitive analyses when deciding termination

of parental rights cases. See, e.g., N.J.S.A. 30:4C-15.1(a);

M.M., supra, 189 N.J. at 280. These factors apply to the

analysis for the termination of appellant’s parental rights.

Pursuant to the second prong of N.J.S.A. 30:4C-15.1(a), the

Division must prove “that the child will suffer substantially

from a lack of stability and a permanent placement and from the

disruption of [his or] her bond with foster parents.” K.H.O.,

supra, 161 N.J. at 363; accord M.M., supra, 189 N.J. at 281.

The State must show not only that the
child’s health and development have been and
continue to be endangered, but also that the
harm is likely to continue because the
parent is unable or unwilling to overcome or
remove the harm. That inquiry is aimed at
determining whether the parent has cured and
overcome the initial harm that endangered
the health, safety, or welfare of the child,
and is able to continue a parental
relationship without recurrent harm to the
child. Alternatively, under this second
criterion, it may be shown that the parent
is unable to provide a safe and stable home
for the child and that the delay in securing

35
 permanency continues or adds to the child’s
harm.

[K.H.O., supra, 161 N.J. at 348-49 (internal
citations omitted).]

However, parents must remedy or show they are able to remedy

harm to the child in advance of reunification within the time

limits established in 42 U.S.C.A. § 671, the federal Safe

Families Act of 1977; C.S., supra, 367 N.J. Super. at 111.

The third prong of N.J.S.A. 30.4C-15.1(a) requires the

Division to make reasonable efforts to provide services to help

the parents correct the circumstances that led to the child’s

placement outside the home. N.J.S.A. 30:4C-15.1(a)(3).

Reasonable efforts include consulting with the parent,

developing a reunification plan, providing services essential to

realizing the reunification plan, informing the family of the

child’s progress, and facilitating visitation. M.M., supra, 189

N.J. at 281 (citing N.J.S.A. 30:4C-15.1(c)). The Division “must

monitor the services, change them as needs arise, and identify

and strive to overcome barriers to service provision or service

utilization.” In re Guardianship of D.M.H., 161 N.J. 365, 387

(1999) (citation and internal quotation marks omitted). The

Division must “encourage, foster and maintain” the parent-child

bond, “promote and assist in visitation,” inform the parent “of

the child’s progress in foster care” and inform the parent of

36
the “appropriate measures he or she should pursue . . . to . . .

strengthen” their relationship. Id. at 390.

Reasonable efforts depend on the facts and circumstances of

each case. Ibid. Later in this opinion, we consider the unique

challenges that incarceration presents. Because the Division is

necessarily impeded by the difficulty and possible futility of

providing services to an incarcerated person, see, e.g., N.J.

Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-

36 (App. Div. 2006), reasonable efforts may be satisfied when

the Division provides services to, and seeks reunification with,

the custodial parent from whom the child was removed. D.M.H.,

supra, 161 N.J. at 393; see also T.S., supra, 417 N.J. Super. at

242-44 (finding that, because father had no relationship with

his daughter prior to incarceration, providing services to him

would be futile). Absent an order under N.J.S.A. 30:4C-11.3,

the Division may not ignore requests or avoid providing services

to an incarcerated parent. See S.A., supra, 382 N.J. Super. at

535-36.

Relevant to this prong is whether appointing another person

as the child’s KLG is feasible. See N.J.S.A. 3B:12A-6(d). KLG

is proper when:

(1) each parent’s incapacity is of such a
serious nature as to demonstrate that the
parents are unable, unavailable or unwilling
to perform the regular and expected
functions of care and support of the child;

37
 (2) the parents’ inability to perform those
functions is unlikely to change in the
foreseeable future;
(3) in cases in which [the Division] is
involved with the child as provided in
[N.J.S.A] 30:4C-85, (a) [the Division]
exercised reasonable efforts to reunify the
child with the birth parents and these
reunification efforts have proven
unsuccessful or unnecessary; and (b)
adoption of the child is neither feasible
nor likely; and
(4) awarding kinship legal guardianship is
in the child’s best interests.

[N.J.S.A. 3B:12A-6(d).]

Unlike a judgment terminating parental rights, KLG does not

sever the legal relationship between the child and the parent.

N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76,

87 (App. Div. 2003). “[T]he parent remains entitled to

visitation and responsible for child support [and] also has the

right to seek termination of the guardianship and a resumption

of custody if . . . she is [later] able to provide a safe and

secure home for the child.” Ibid. However, KLG “is not

intended as an equally available alternative to termination that

must be considered in order to satisfy the third [prong] of

N.J.S.A. 30:4C-15.1.” Id. at 88. Thus, “when the permanency

provided by adoption is available, [KLG] cannot be used as a

defense to termination of parental rights.” P.P., supra, 180

N.J. at 513.

38
 Finally, the fourth prong “serves as a fail-safe against

termination even where the remaining standards have been met.”

E.P., supra, 196 N.J. at 108 (citation and internal quotation

marks omitted). The question is

not whether a [birth] mother or father is a
worthy parent, but whether a child’s
interest will best be served by completely
terminating the child’s relationship with
that parent. It has been “suggested that
[a] decision to terminate parental rights
should not simply extinguish an unsuccessful
parent-child relationship without making
provision for . . . a more promising
relationship . . . [in] the child’s future.”

[Ibid. (quoting A.W., supra, 103 N.J. at
610) (alterations in original).]

Thus, a child’s need for permanency is an extremely important

consideration pursuant to this prong. M.M., supra, 189 N.J. at

281; K.H.O., supra, 161 N.J. at 357-58. The State should offer

“testimony of a well qualified expert who has had full

opportunity to make a comprehensive, objective, and informed

evaluation of the child’s relationship” with the natural parents

and the foster parents. In re Guardianship of J.C., 129 N.J. 1,

19 (1992).

V.

In applying the legal principles and authorities to the

evidence presented at trial, we conclude that the Appellate

Division majority erred in reversing the trial court’s denial of

the Division’s application to terminate appellant’s parental

39
rights. We emphasize that the standard for termination of

parental rights is not any different when the parent is

incarcerated. T.S., supra, 417, N.J. Super. at 240-43. The

burden of proof does not shift. Ibid. The Division must prove

all four prongs by clear and convincing evidence. M.M., supra,

189 N.J. at 280.

Here, with respect to the first prong, the trial court

concluded that the Division failed to show by clear and

convincing evidence that appellant’s incarceration caused harm

to Tara. The trial court noted that when appellant was

incarcerated in 2004, he believed that Tara was safely in her

mother’s care and appellant wrote to Tara, although he did not

want his daughter to visit him. Additionally, when appellant

discovered that Tara was removed from R.G.’s custody, he

immediately increased his efforts and contacted Tara to remain a

part of her life. Relying on T.S., supra, the panel majority

rejected this finding and held “as a matter of law under these

facts that [appellant]’s incarceration . . . continues harm to

Tara.” But, in T.S., supra, the Appellate Division held that

because the father had no relationship with his daughter except

that she knew her father’s name, and because he demonstrated no

past parenting proficiency, it was clear that terminating the

father’s parental rights would not cause more harm than good to

the child. 417 N.J. Super. at 242-43.

40
 We conclude that the Appellate Division majority’s reliance

on T.S. is misplaced. Unlike the father in T.S., who neither

parented nor communicated with his child prior to incarceration,

appellant parented Tara prior to his incarceration, communicated

with R.G. about Tara and K.G.’s well-being prior to their

removal from R.G.’s custody, and called and wrote to Tara while

in prison. See id. at 242-43; see also L.A.S., supra, 134 N.J.

at 143-44 (counseling courts to consider parents’ conduct prior

to and during incarceration to evaluate extent of harm to

child). Thus, the level of harm caused to Tara by appellant’s

incarceration is distinguishable from the harm caused by the

wholly absent father in T.S. See T.S., supra, 417 N.J. Super.

at 243. Moreover, the trial court found that the proofs

submitted at trial do not substantiate that any crime for which

appellant was convicted and incarcerated directly bore on

appellant’s parental fitness. See L.A.S., supra, 134 N.J. at

141-42.

With respect to prong two, the Appellate Division majority

characterized appellant’s approval of Tara’s placement with the

maternal grandmother and his unwillingness to seek custody of

Tara at the time of his release from prison as evidence that

appellant could not remediate the harm caused to Tara by his

incarceration. Significantly, that interpretation suggests that

a parent, by virtue of his unwillingness to seek full custody of

41
his child, relinquishes the other parental rights protected by

both the United States and New Jersey Constitutions. It is not

uncommon, however, for a parent to relinquish custody of his or

her children but maintain other parental rights. See V.C. v.

M.J.B., 163 N.J. 200, 228 (“visitation rights are almost

invariably granted to the non-custodial parent”), cert. denied,

531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). Thus,

the majority overlooked the trial court’s finding that appellant

credibly recognized that Tara should remain in a safe and stable

environment while he reintegrated into society and that he

should strengthen his relationship with Tara through visitation

and communication. That practical realization should not be

equated to relinquishment of parental rights to maintain a

parental connection to one’s child.

Moreover, because appellant presented evidence that he

effectively parented Tara during the first six months of her

life, because the Division failed to provide appellant with

sufficient services in order to effectuate a successful

reunification with Tara upon his release, and because appellant

complied with and participated in all court proceedings related

to Tara’s care, the trial court’s finding that the Division

failed to prove clearly and convincingly that appellant is

unwilling to remediate the harm his incarceration caused to Tara

is supported by credible evidence.

42
 That said, the Division raises a compelling argument about

the harm caused to Tara by delaying her permanent placement and

the potential future harm of severing her strong bond with the

maternal grandmother pursuant to the second prong of N.J.S.A.

30:4C-15.1(a)(2). See C.S., supra, 367 N.J. Super. at 111. The

Division presented expert testimony concluding that a strong

bond existed between Tara and her maternal grandmother and that

Tara could be psychologically harmed if that bond were disrupted

by reintroducing appellant into Tara’s life permanently.

Moreover, Tara expressed her desire to be adopted by the

maternal grandmother, and she is entitled to “a permanent, safe

and stable placement.” Ibid. However, as the dissent noted,

“it cannot be fairly said that the trial court erred as a matter

of law, and its findings that the proofs put forth were

unconvincing should not be gainsaid. A tie in the convincing

power of the proofs does not satisfy the clear and convincing

standard.” We agree.

Most importantly, the Division failed to meet its burden

with respect to the third prong. This Court has repeatedly held

that termination of parental rights cases are fact-sensitive and

turn on the particular circumstances of each case. See M.M.,

supra, 189 N.J. at 280. Although this Court has stated that

providing services to incarcerated persons is difficult and may

be futile, and that the Division is permitted to focus its

43
services on the primary caretaker, the Division should not avoid

providing services to all incarcerated persons, regardless of

their seeming unwillingness to improve their parental fitness.

See D.M.H., supra, 161 N.J. at 393 (explaining that Division may

not ignore or disregard non-primary caretaker parent).

Here, the Division paid only cursory attention to appellant

from the outset of its involvement with his family. The

Division visited appellant once in prison and called him on one

other occasion to determine his date of release from prison.

The Division arranged two psychological evaluations of appellant

but never arranged a bonding evaluation between appellant and

Tara. The Division failed to provide appellant with letters

from Tara until he complained nearly one-and-one-half years

after the Division became involved with the family. The

Division never provided appellant with assistance in telephoning

his children. Despite knowing that appellant was participating

in prison programs and was scheduled to be released from prison

shortly after trial, the Division never compared the prison

programs’ content with programs offered by the Division or

attempted to schedule services upon appellant’s release.

Even after R.G. failed to comply with the Division’s

services and relapsed, the Division did not reevaluate what

services it could provide to appellant during his incarceration

or after his pending release or suggest enrollment in programs

44
while appellant remained incarcerated. Rather, it abandoned any

plan for reunification. Accordingly, the trial court’s finding

that “the Division has failed to establish by clear and

convincing evidence that reasonable efforts to provide services

were made to [appellant]” is entitled to deference, particularly

in light of appellant’s efforts to seek services while in

prison.

We do not suggest that the Division was required to provide

any particular services to appellant. However, we note that in

circumstances such as these, particularly when an incarcerated

parent’s release is imminent, the other parent has relinquished

her rights to their child, and the incarcerated parent has

expressed a willingness to improve his parenting skills and a

desire to deepen his parent-child relationship, the Division

must do more than merely speak with the parent and provide two

psychological evaluations. See id. at 390 (explaining that

Division should modify services to parents as needs change in

particular circumstances). Amici curiae, ACLU-NJ and NJISJ,

suggested several services offered to inmates in other

jurisdictions:

Visitation where appropriate; collect
telephone calls; transportation to court
proceedings where appropriate; evaluating
policies that affect incarcerated parents;
promoting healthy relationships with
children of the incarcerated and avoiding
permanent separation; contacting parents and

45
 investigating the history and extent of the
parent-child relationship; monitoring
parents’ progress through corrections
counselors or other employees of the jail;
inquiring into parent’s probable post-
release situation and plan; developing and
implementing practice memos, operational
guidelines and manuals for caseworkers when
working with incarcerated parents; and an
affirmative obligation to inform
incarcerated parents of the Division-
involved children of their rights.

We encourage the Division to explore those options with the DOC

to determine whether such services are feasible and appropriate

for certain incarcerated parents. We leave that determination

to the agencies charged with these statutory responsibilities.

Lastly, with respect to prong four’s application, we

conclude that the appellate majority improperly reversed the

trial court’s finding. As the Division correctly notes, it is

undisputed that the maternal grandmother is able to provide a

“permanent safe and stable” living environment; that Tara has a

strong bond with her grandmother; and that Tara has expressed a

desire to be adopted by her grandmother. Additionally, Dr.

Miller opined that Tara had no attachment to appellant, she knew

little about him, and had experienced limited interaction with

him. Thus, Dr. Miller opined that no bond existed between

appellant and Tara.

However, the trial court found that “[Dr. Miller’s]

conclusions appear to be based on flawed information,” and that

46
his characterization of appellant’s efforts to maintain a bond

with Tara are “contrary to the evidence at trial and should be

discounted.” Moreover, no bonding evaluation was conducted

between appellant and Tara to assist the court in determining

whether severing the bond between Tara and appellant would cause

more harm than good to Tara. See J.C., supra, 129 N.J. at 19

(recommending expert bonding evaluations of natural parents and

foster parents).

Further, the caseworker, the maternal grandmother, and

appellant all testified that Tara displayed an affection for or

emotional bond with her father. Unlike the daughter in T.S.,

supra, who only knew her father’s name and whose father

demonstrated no parenting proficiencies, 417 N.J. Super. at 242-

43, in this case there was evidence of a relationship between

appellant and Tara. The trial court also credited appellant’s

testimony that immediately preceding the hearing, Tara told

appellant that she loved him and looked forward to spending time

with him in the future. Thus, the trial court’s findings based

on that evidence and his credibility determinations that the

Division failed to show by clear and convincing evidence that

failure to terminate appellant’s parental rights would do more

harm than good to Tara was not reversible.

Although we recognize the legitimate interest of Tara in a

permanent placement, we conclude from our review of this record

47
that there was substantial evidence to support the trial court’s

decision not to terminate appellant’s parental rights at the

time of trial because it was still uncertain whether severing

Tara’s bond with her father would cause her more harm than good.

Thus, we hold that the trial court’s finding that the

Division failed to prove its case by clear and convincing

evidence is supported by the trial evidence. Moreover, the

trial court did not abuse its discretion by ordering a

subsequent hearing to reassess Tara’s best interests.

VI.

The judgment of the Appellate Division is reversed, the

decision of the Family Part is reinstated, and the matter is

remanded for further proceedings consistent with this opinion.

On remand, all options remain on the table for the trial court,

i.e., the trial court remains free to enter any other

disposition, if current proofs clearly and convincingly show

that such a disposition is in Tara’s best interests.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRÍGUEZ’s opinion.

48
 SUPREME COURT OF NEW JERSEY

NO. A-116 SEPTEMBER TERM 2011
ON APPEAL FROM Appellate Division, Superior Court

NEW JERSEY DIVISION OF YOUTH
AND FAMILY SERVICES,

Plaintiff-Respondent,
v.

R.G.,

Defendant-Respondent,
and

J.G.,

Defendant-Appellant.
______________________________________
IN THE MATTER OF THE
GUARDIANSHIP OF T.G.,
Minor-Respondent,

And

K.G.,
Minor-Respondent.

DECIDED June 2, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY

REVERSE/
CHECKLIST REINSTATE/
REMAND
CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X
6

1