New Jersey Division of Youth and Family Services v. R.G. and J.G. (069970) , 217 N.J. 527 ( 2014 )

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.
1
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.
3
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.
4
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
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