                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

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


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

     Defendant-Appellant.
________________________________

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

         Submitted October 1, 2013   -    Decided October 17, 2013

         Before Judges Messano, Sabatino, and Hayden.

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

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

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

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

SABATINO, J.A.D.

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

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

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

things, defendant argues that the trial court erred in upholding

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

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

interest in serving as alternative caregivers for the child.

       For the reasons that follow, we affirm the final judgment

terminating          defendant's   parental        rights.        As   part    of    our

analysis,       we    reject    defendant's    argument       that      the    Division

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

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

Instead, we hold that the applicable statutory provisions and a

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

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

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

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

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

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




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

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

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

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

                                          I.

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

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

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

she had carelessly left him with highly intoxicated persons.                           At

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

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

where he has resided ever since.

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

prostitution, and a lack of stable housing, voluntarily agreed

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

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

biological father, defendant J.S.

      Defendant      had     been   diagnosed         with    mental    health       and

substance    abuse     issues.         After    he    was    released    from     jail,

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



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

substance    abuse     treatment,       but     had    difficulty      maintaining    a

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

for cocaine four times between February and April 2012 while on

probation.

     Defendant initially identified from jail four relatives as

potential    alternative       caretakers       for     A.G.     After    those    four

initial candidates were ruled out within a month by the Division

 decisions that defendant does not contest on this appeal 

two other relatives were suggested as alternative caretakers.

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

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

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

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

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

complicated    by     the    fact    that     she     had   apparent    psychological

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

difficulties    in     getting       fingerprints       from    another    adult    who

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

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

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

a   first    cousin     of    defendant,        contacted       the    Division     and

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




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

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

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

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

disabled.      Upon considering her circumstances, the Division also

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

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

who was doing well with the foster parents.

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

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

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

The Division accordingly filed a guardianship complaint against

defendant seeking the termination of his parental rights.

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

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

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

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

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

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

declined to review her appeal administratively, in accordance

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

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

decision.      The trial court denied her request, in anticipation




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

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

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

Guardian     were    participating      in      the    case    and    would     have      the

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

appropriate.

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

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

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

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

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

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

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

severely     impair    his   sense     of    trust     in     human       relationships."

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

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

harm, no matter where he was placed.

       In    January    2012,    Dr.    Kanen         performed       a    psychological

evaluation      of     defendant.           That      evaluation          revealed        that

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

numerous psychiatric hospitalizations.                   Additionally, Dr. Kanen

noted that defendant has a long history of substance abuse and

antisocial     behavior.        According        to    Dr.    Kanen,       defendant       has




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

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

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

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

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

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

expose the child to an unnecessary risk of harm."

       The   guardianship         trial   was    held   over   eight    intermittent

days    between      May    and    July     2012.       The    Division      presented

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

supervisor.       It also relied upon extensive records that were

admitted     into     evidence         without      objection,     except       as    to

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

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

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

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

to care for A.G.

       After considering these proofs, the trial judge issued a

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

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

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

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

opposed by the Division as well as the Law Guardian.




                                            7                                  A-0512-12T1
                                   II.

    We begin our review of these issues with a recognition that

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

a matter of constitutional magnitude.         See In re Guardianship of

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

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

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

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

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

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

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

"tempered    by   the   State's   parens     patriae   responsibility    to

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

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

    It is well established that when seeking the termination of

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

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

following elements:

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

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



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

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

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

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

       In the present appeal, defendant only challenges the trial

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

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

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

two    latter   prongs,     although       we   note   parenthetically      our

recognition that the first two prongs were amply proven by the

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

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

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

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

of    termination   of    parental   rights     was    based   on   clear   and

convincing evidence supported by the record before the court."

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



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

disturbed unless they are so wholly unsupportable as to result

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

(citations omitted).

                                             A.

                                             1.

          Defendant's main argument on appeal concerning the third

termination         prong    is    that     the   Division   violated    a   related

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


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

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

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

                                                                        (continued)


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

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

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

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

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

defendant proposed.         When the Division formally ruled out both

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

interests of the child.         Defendant maintains that the Division

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



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

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

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

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

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

             [(Emphasis added).]




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

argues,       signifies        that     the     Division         failed       to   adequately

consider alternatives to termination, as required by the third

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

(requiring the court to consider "alternatives to termination of

parental rights").

       Defendant raises two separate, but related, points on his

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

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

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

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

interpreted to allow it to rule out relatives based solely on

its assessment of the best interests of the child involved.

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

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

termination of parental rights and adoption by a foster parent

without at least first exploring available relative placements."

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

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

statutory      scheme      is       "prompt   identification            of    relatives    and

notice    to       them   of    the   results        of    the   investigation       and   the

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

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




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

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

termination    based     on      the     Division's       noncompliance          with    its

statutory obligations is warranted only when it is in the best

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

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

2003)).

       That said, although the Division has a statutory duty to

evaluate     relatives      as      potential        caretakers,         there     is     no

presumption    favoring        the      placement        of   a    child     with       such

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

provisions    in   Title      30   and    Title     9    which    refer    to    relative

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

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

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

natural parent as opposed to placement with relatives or foster

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

235, 246 (2000)).

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

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

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

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



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

              . . . .

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

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

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

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

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

         [(Emphasis added).]

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

Division to initiate a search of relatives and to complete an




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

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

the prospective relative if the Division determines "that the

relative      is    unwilling        or    unable     to    assume     the   care   of    the

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

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

pursue the termination of parental rights if [it] determines

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

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

       Although the Division's brief does not explicitly reference

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

that section as granting it the authority to rule out relatives

based    on   the     Division's          assessment       that   placement     with     that

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

interpretation        is   also      evidenced        by   the    Division    regulation,

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




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

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




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

decision predicated solely upon a best-interests assessment.6

      Defendant essentially argues that the Division's statutory

interpretation improperly relieves it of its duty to prove each

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

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

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

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

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

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

interests.

      The Division took into account a similar concern raised by

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

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

proposed regulation in the New Jersey Register as follows:

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


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



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

       The Division responded to this comment by stating:

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

           [Ibid. (emphasis added).]

       The Division's interpretation and regulatory approach in

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

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

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

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

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

interpretation        of   statutes      and     regulations   within     its

implementing and enforcing responsibility is ordinarily entitled

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

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

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




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

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

interpretation that an agency gives to a statute that agency is

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

Moreover,        a    "strong     presumption         of    reasonableness        must     be

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

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

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

      We are persuaded that the Division's interpretation of the

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

the intended meaning of the statute and the overall statutory

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

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

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

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

statutory        presumption        in     favor      of    placing     children         with

competent and willing relatives.                    Such a presumption would be in

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

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

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

remaining in a successful foster placement.

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

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




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

test.        Allowing    the   Division        to    make   an   assessment      of    the

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

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

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

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

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

and    convincing      evidence     that   it       "made   reasonable     efforts       to

provide services to help the parent correct the circumstances

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

court      has    considered   alternatives          to   termination     of   parental

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

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

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

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

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

          As a practical matter, allowing a relative who had been

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

administrative appeal of that decision through the dispositional

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

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

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

ongoing jurisdiction over the related guardianship case.                               The




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

will undoubtedly overlap with the disputed issues and evidence

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

sensible reason to allow those same best-interests questions to

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

a judicial forum.7

     We do not construe the statutory and regulatory schemes to

permit    the   risk   of   inconsistent   adjudicated   outcomes     in   an

administrative appeal and the separate guardianship proceedings

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

inject more uncertainty and delay into the future path of a

child needing permanency.          The Division can defend its best-

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

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

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

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

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

would not otherwise be parties to the relative's administrative

appeal.




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



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

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

in   instances   when   that    decision    is    predicated    upon   a   best-

interests assessment, rather than a finding that the relative is

unfit    or   unwilling.       The   regulation    that   the   Division     has

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

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

scheme or its objectives, with the important caveat that the

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

best interests.

      Lest our opinion be misunderstood, we emphasize that we do

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

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

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

that statute requiring it to conduct a fair investigation of

such a relative who identifies himself or herself as a potential

caretaker in a reasonably prompt manner.               The Division cannot

ignore such a relative's timely application out of bureaucratic

inertia, or consider that application based upon an arbitrary,

preordained preference for the foster placement.                 The Division

must perform a reasonable investigation of such relatives that

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

child's critical need for finality and permanency.




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

in    its     assessment           of    such           timely-presented            alternative

caretakers, it bears the litigation risk that a Family Part

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

has   failed     to       prove    by   clear          and    convincing         evidence     that

"alternatives         to     termination          of     parental         rights"    have      been

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

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

"does not permit willful blindness and inexplicable delay in

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

discern     no       such    abuse      of    the       Division's          investigative        or

decision-making authority.

      Apart      from        the    correctness              of     the     Division's        legal

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

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

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


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


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

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

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

his foster parents.            Aside from a limited number of visitations

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

relationship with these distant relatives.                       Given that there is

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

relatives,      and    that     defendant      has      not    progressed         closer    to

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

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

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

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

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

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

court").

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

specifically ruled out for cause, had numerous constraints that

might   make    a     placement       with   her       problematic,      including        some




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




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

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

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

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

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

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

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

foster home environment for a prolonged period, the Division

should have the ability to rule out proposed relatives after an

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


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

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

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

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




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

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

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

with the child.11

                                  2.

     With respect to the other facet of the third statutory

prong   for   termination,   defendant   argues   that   the   Division's

efforts to provide him with services were deficient in several

respects.     His primary argument is that the Division should have

placed him in an inpatient drug treatment program.               He also

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



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

visitation.    In this regard, defendant emphasizes his consistent

attendance at visitations and the positive reports about his

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

criticisms of the many services that the Division provided to

him, and so do we.

    We recognize that the Division is required, pursuant to

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

efforts" to "assist the parents in remedying the circumstances

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

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

reasonableness       of   those    efforts      is    "not   measured     by   their

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

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

standard of adequacy in light of all the circumstances of a

given case.         Consistent efforts to maintain and support the

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

Ibid.

    In ruling here that the Division had proven this aspect of

the third prong by clear and convincing evidence, the trial

judge observed:

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



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

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

       The judge also specifically rejected defendant's argument

that   the   Division   failed   to    meet   its   services    obligations

because defendant was never enrolled in court-ordered inpatient

drug    treatment.      In   reaching      this   conclusion,   the   judge

reasoned:

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

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




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

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

            [(Emphasis added).]

    The      judge's        observations       are    adequately        supported     by

substantial,         credible    evidence      in     the     record.       Defendant

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

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

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

December    13,      2010   clinical     summary       from    Options,    a   program

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

which    time   his     urine    would   presumably         have    been   tested    for

drugs.     The court made a reasonable inference that defendant was

attempting      to    evade     detection   by       his    non-attendance     at    the

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

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

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

reasonable effort to provide him with services.

    In     addition,        defendant's     criticisms         of    the   visitation

provided to him ring particularly hollow, as the record shows

that the Division provided him with the opportunity for regular




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

visitation      opportunities      were     insufficient.        In    sum,    the

services aspect of the third prong was amply met.

                                      B.

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

question of whether termination of defendant's parental rights

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

this   fourth     prong   is   especially     important     to   a    termination

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

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

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

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

fourth    prong     is   the   "paramount    need    the   children     have   for

permanent     and    defined    parent-child        relationships."       In    re

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

30:4C-11.3.

       In addressing this fourth prong, the trial judge provided

the following detailed analysis:

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

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



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

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

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

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

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




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

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

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

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

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

which the judge relied, was skewed and failed to sufficiently

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

during visitations.             We reject that criticism, as the record

shows      that     Dr.    Kanen       performed      a     sufficiently       thorough

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

foster parents.

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

overlooked critical information.                   Since he observed defendant

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

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

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




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

relationship.

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

is essentially unassailable.         It was well within the discretion

of the trial court to accept the unrebutted and unequivocal

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

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

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

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

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

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

exercised    in   weighing   the    fact-sensitive      considerations     here

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

                                     III.

       The final judgment terminating defendant's parental rights

as to A.G. is consequently affirmed.




                                      32                               A-0512-12T1
