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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

J.S.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF A.G., a minor.

________________________________

Submitted October 1, 2013 - Decided

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).

APPROVED FOR PUBLICATION

October 17, 2013

APPELLATE DIVISION

October 17, 2013
2 A-0512-12T1

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. 30:4C12.1 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.
3 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.
4 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 
5 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 
6 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. 30:4C15.1(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 
7 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.
8 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 
9 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 
10 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)
11 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).]
12 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.
13 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. 30:4C15.1(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 
14 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 
15 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. 
16 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. 10:120A3.1(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.
17 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. 30:4C12.1(c), as manifested in the promulgation of N.J.A.C. 10:120A3.1(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. 
18 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 
19 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. 30:4C15.1(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 
20 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 bestinterests 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.
21 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 bestinterests 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. 30:4C12.1 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. 
22 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)
23 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.
24 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. 30:4C12.1 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 greatgrandparent, 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.
25 A-0512-12T1

(noting that the "plain meaning and purpose" of N.J.S.A. 30:4C12.1 "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. 30:4C12.1 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. 
26 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 
27 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 
28 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 
29 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 
30 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.
31 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 factfinder. 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 
32 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.