                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3241-16T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

E.W.,

        Defendant-Appellant,

and

R.A.,

     Defendant.
__________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF B.W., a Minor.
__________________________________

              Argued May 22, 2018 – Decided July 12, 2018

              Before Judges Yannotti, Mawla and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FG-09-0101-17.

              Mary Potter, Designated Counsel, argued the
              cause for appellant (Joseph E. Krakora, Public
              Defender, attorney; T. Gary Mitchell, Deputy
              Public Defender, of counsel and on the briefs;
              Joel   Marasco,   Assistant    Deputy   Public
          Defender, of counsel; Mary Potter, on the
          briefs).

          Julie B. Colonna, Deputy Attorney General,
          argued the cause for respondent (Gurbir S.
          Grewal, Attorney General, attorney; Jason W.
          Rockwell, Assistant Attorney General, of
          counsel; Julie B. Colonna, on the brief).

          Noel C. Devlin, Assistant Deputy Public
          Defender, argued the cause for minor (Joseph
          E. Krakora, Public Defender, Law Guardian,
          attorney; Noel C. Devlin and M. Alexis
          Pollock, of counsel and on the brief).

PER CURIAM

     Defendant E.W. appeals a judgment terminating her parental

rights to her daughter B.W.    We affirm.

                                   I.

     The following facts are taken from the trial record.                 The

Division of Child Protection and Permanency (the Division or DCPP)

first became involved with E.W. when she was a minor. At seventeen

years old, E.W. began using phencyclidine (PCP), and despite the

Division's   repeated   attempts   to   assist   her,   E.W.   has     never

addressed her addiction.    From 2005 to 2015, E.W. gave birth to

six children, the first when she was nineteen years old.         Five of

her children tested positive for PCP at birth.          E.W.'s first two

children are in the care of her sister following entry of a

judgment of kinship legal guardianship.          E.W.'s parental rights

to her remaining four children, including B.W., the child at issue


                                   2                                 A-3241-16T2
in     this   appeal,   were    involuntarily      terminated     in    judicial

proceedings initiated by DCPP.            During the process of removal of

E.W.'s children, the Division repeatedly referred her to substance

abuse assessments and treatment programs.                 She failed to comply

with all Division recommendations and treatment referrals.                    E.W.

also    experienced     periods      of   psychiatric     hospitalization,       is

homeless,     unemployed,      and    involved   in   a    physically    abusive

relationship.

       B.W. was born in September 2015.          She tested positive for PCP

at birth, and in the days following, developed withdrawal symptoms

including shaking, vomiting, sneezing, and a poor appetite.                    The

child was hospitalized in the intensive care unit for three days.

E.W. also tested positive for PCP at B.W.'s birth.                      Hospital

personnel reported the positive test results to DCPP. In addition,

DCPP was informed that E.W. had reported to the hospital in August

2015, shortly before B.W.'s birth, believing she was in labor.

E.W. tested positive for PCP at that time.

       A Division worker went to the hospital to interview E.W. the

day after the referral.        E.W. was hostile and threatened to punch

a hospital social worker for contacting the Division.                  She denied

PCP use, claiming that she tested positive for the drug because

she had been around people smoking PCP, but was not using it



                                          3                               A-3241-16T2
herself.    When confronted with the August 2015 test results, E.W.

could not explain why she was positive for PCP at that time.

     E.W. denied that she had mental health issues.                She claimed

that her psychiatric hospitalizations were due to bad reactions

to PCP and not mental illness.       She agreed, however, to attend the

Mommy and Me Program, and other outpatient services.

     E.W. identified R.A. as the father of B.W.           E.W. and R.A. had

an approximately seven-year relationship with multiple episodes

of domestic violence.         E.W. obtained three temporary restraining

orders     against    R.A.,   none   of    which   she   pursued    to     final

disposition.         E.W. alleged that R.A. fractured her ribs and

"busted" her lip.       E.W. stated that she was unemployed, survives

on monthly disability benefits, and was living on the couch of a

relative.     She acknowledged having been convicted of aggravated

assault, and having served a one-year sentence for that offense.

     On September 18, 2015, the Division effectuated a Dodd removal

of B.W. from E.W.'s custody.1             E.W. could identify no relative

willing to serve as a caregiver to B.W.            The Division contacted

the caregivers of B.W.'s siblings, who declined to be considered

as a placement resource for the child.             B.W. was placed with a


1
  A "Dodd removal" refers to the emergency removal of a child from
a parent's custody without a court order pursuant to N.J.S.A. 9:6-
8.21 to -8.82, known as the Dodd Act. N.J. Div. of Youth & Family
Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

                                      4                                  A-3241-16T2
resource parent, P.J., who is committed to adopting B.W.              The

removal was based upon E.W.'s substance abuse, mental health

issues, history of domestic violence with R.A., and unstable

housing.   The Division determined that E.W. was unable to provide

stability, protection, and nurturance to B.W.      After the removal,

DCPP provided E.W. with referrals for substance abuse and mental

health treatment, including a substance abuse program at Straight

and Narrow.   E.W. did not participate in these services.

     On September 22, 2015, the Division filed a verified complaint

in the Chancery Division pursuant to N.J.S.A. 30:4C-12 against

E.W. and R.A. for custody of B.W.2      On the same day, the trial

court continued DCPP's custody of B.W., and her placement in P.J.'s

resource home.    The court found that B.W.'s emergent removal was

appropriate, and that it would be contrary to her welfare to return

her to E.W.'s care.      The court ordered E.W. and R.A. to comply

with substance abuse evaluations and treatment and to undergo

psychological    evaluations.   The   parents   were   granted   liberal

supervised visitation.



2
 The Division also filed a complaint alleging pursuant to N.J.S.A.
9:6-8.21 that E.W. and R.A. abused and neglected B.W. R.A. could
not be located or served with the complaint alleging abuse and
neglect. On March 15, 2016, the trial court found that E.W. abused
and neglected B.W. by failing to remediate her drug abuse,
resulting in the child testing positive for PCP at birth.       On
October 30, 2017, this court affirmed the trial court's decision.

                                  5                              A-3241-16T2
     In October 2015, E.W. attended a substance abuse assessment.

She acknowledged first using PCP when she was seventeen years old,

and that at the time of the assessment she was using the drug

daily.    Although E.W. claimed to have participated in several drug

treatment programs, she could not provide any details of her drug

treatment history.    She was recommended for the clinically managed

high-intensity residential substance abuse program at Straight and

Narrow.    A Division caseworker gave E.W. referral forms for the

program five times.    E.W. failed to attend the program.

     In November 2015, the Division arranged for weekly supervised

visits between E.W. and B.W.      E.W. was notified by mail of the

visitation schedule, but attended only one visit.      In addition,

E.W. was referred to a substance abuse assessment to identify

treatment options.     E.W. failed to attend the assessment.      She

remained unemployed, homeless, and living with friends.

     On November 17, 2015, the trial court heard DCPP's motion to

be relieved of its obligation to make reasonable efforts to reunite

E.W. and B.W. under N.J.S.A. 30:4C-11.3(c) because E.W.'s parental

rights to her other children had been terminated.       E.W. tested

positive for PCP in a test administered on the date of the hearing.

     On January 4, 2016, the trial court granted the motion.

E.W.'s motion for reconsideration was denied on February 10, 2016.



                                  6                          A-3241-16T2
       Despite having been relieved of its statutory obligation to

make    reasonable   efforts    at   reunification,      DCPP     continued    to

provide services to E.W.        The Division assisted E.W. with seeking

public assistance, referred her to therapeutic visitation through

Catholic    Charities,    and    arranged    an     appointment    to   have    a

psychological evaluation with Dr. Karen Wells.                  Dr. Wells had

evaluated E.W. in 2014, during E.W.'s incarceration at the Mercer

County jail on an assault charge.                The Division gave E.W. bus

passes to provide transportation to various services.              E.W. failed

to attend any of these services or to see Dr. Wells.

       In January 2016, E.W. began weekly supervised visits with

B.W. at the Urban League.       The visits terminated in February after

E.W. missed two consecutive visits.              The Division referred E.W.

for therapeutic supervised visitation, but she failed to contact

the Division to initiate those visits.              E.W. did not visit B.W.

from February 16, 2016 through June 2016.

       Prior to a February 4, 2016 court hearing, E.W. claimed that

she had not been using drugs and agreed to submit to a urine

screen, to comply with a substance abuse assessment, participate

in     mental   health   counseling,       and    undergo   a   psychological

evaluation by Dr. Wells.         She later refused to attend the drug

screen because her tooth was hurting, and failed to attend several

scheduled substance abuse assessment appointments.                The Division

                                       7                                A-3241-16T2
gave E.W. contact information for mental health services at a

local hospital.        She did not enroll in those services.

      Despite being informed of and agreeing to a March 17, 2016

psychological evaluation by Dr. Wells, E.W. failed to attend.                          She

also failed to attend three rescheduled dates for the evaluation.

Because E.W. did not participate in an evaluation, Dr. Wells was

unable to update the report she completed in September 2014.

      On     March    31,   2016,    the    court    approved         the    Division's

permanency plan to terminate E.W.'s parental rights, followed by

adoption of B.W. by her resource parent.                 The court found that it

was unsafe to return B.W. to E.W. because E.W. failed to complete

substance abuse treatment or comply with the services recommended

by   DCPP.      The     court   determined        that   the   Division        provided

reasonable efforts to reunite E.W. and B.W., including visitations

with the child, exploring relatives for placement of B.W., drug

abuse assessment and treatment options, family team meetings,

psychological         evaluation     appointments,         and        mental        health

counseling.          E.W.   failed   to    take   advantage      of    any     of   those

reunification efforts.

      In June 2016, the Division referred E.W. for therapeutic

supervised visitation with Catholic Charities.                         After missing

several intake appointments, E.W.'s visits with B.W. began in

August.    Catholic Charities terminated E.W.'s visitation after the

                                           8                                    A-3241-16T2
second visit because she became irate and threatened staff when

she arrived late for a visit.           She did not contact the Division

to   arrange   for   visits     with   B.W.     for   the   remainder     of      the

guardianship action.

      On July 11, 2016, DCPP filed for guardianship of B.W.                    At an

August 18, 2016 hearing, E.W. did not appear, but was represented

by counsel.      The court ordered her to attend psychological and

bonding evaluations, and a substance abuse assessment.                  The court

granted E.W. weekly supervised visitation with B.W.

      On July 21, 2016, E.W. submitted to a drug screen. She tested

positive   for    PCP.    She    agreed    to    attend     a    substance     abuse

assessment.      Although the Division provided E.W. with a bus pass,

she failed to appear for the assessment.

      In August 2016, the Division provided E.W. with resources for

welfare benefits, shelters, and food pantries.                  A Division social

worker offered to assist E.W. in identifying an appropriate mental

health program.      On August 10, 2016, E.W. was handed information

concerning     Project   Home,   which     provides    wraparound      services,

including housing, and mental health and substance abuse treatment

for women and their children.          E.W. did not contact the program.

      On October 3, 2016, Dr. Wells conducted a bonding evaluation

between P.J., the resource parent, and then-one-year-old B.W.                     Dr.

Wells concluded to a reasonable degree of psychological certainty

                                       9                                     A-3241-16T2
that B.W. was securely bonded to the resource parent and viewed

her as her psychological parent.

       On October 13, 2016, the court ordered E.W. to comply with

the previously offered services, as well as therapeutic visitation

with B.W.    E.W. did not comply with the court's order.   The trial

court drew a negative inference from E.W.'s refusal to comply with

an instant drug screen.

       On November 2, 2016, the court again ordered E.W. to comply

with services, including counseling and therapy.       E.W. did not

comply with the court's order.        In November 2016, DCPP offered

E.W. assistance with contacting mental health service providers

because she had not engaged in any mental health treatment, but

she did not show up for her appointment at the Division.         E.W.

submitted to a substance abuse evaluation, and tested positive for

PCP.     She was then recommended for intensive outpatient drug

treatment.    She failed to attend the program.

       Because E.W. had not visited B.W. since August 2016, the

Division attempted to arrange for a parent mentor for E.W.       That

effort was unsuccessful because of E.W.'s lack of participation.

       On January 20, 2017, ten days before the scheduled start of

the guardianship trial, E.W. moved for a postponement based on

various constitutional arguments, including that the court should

not order a termination of her parental rights absent proof beyond

                                 10                          A-3241-16T2
a reasonable doubt that such relief is warranted.               E.W. also

requested additional time to comply with services.              The court

rejected one legal argument raised by E.W., reserved decision on

the remainder, and denied E.W.'s motion to postpone the trial.

     The guardianship trial occurred over the course of three days

in January and March 2017.      DCPP presented documentary evidence,

and testimony from Dr. Wells, who was accepted as an expert in

psychology, Elizabeth Rosa, a Division adoption caseworker, and

B.W.'s resource parent.    E.W. did not call witnesses.        B.W.'s law

guardian supported termination of E.W.'s parental rights.

     Dr.   Wells   testified   with   respect   to   her   September   2014

psychological evaluation of E.W., as well as her opinion regarding

E.W.'s current parental capacity.       Dr. Wells testified that E.W.

posed a risk to B.W. because she had not addressed her addiction

to PCP, or her mental health issues, and had not stabilized her

housing or employment.     The doctor testified that E.W.'s use of

PCP was likely to impair her parenting judgment and aggravated

what likely was E.W.'s undiagnosed bipolar disorder.            Dr. Wells

opined that E.W.'s prognosis for overcoming drug addiction was

poor, chiefly because she does not view her use of PCP as a

problem.   E.W. told Dr. Wells that she enjoys using the drug.

     Dr. Wells also opined to a reasonable degree of psychological

certainty that, in light of their limited interaction since B.W.'s

                                  11                               A-3241-16T2
birth, the child would not incur harm if E.W.'s parental rights

were severed.   She opined that B.W. would experience severe and

enduring harm if she were to be removed from P.J.'s care, and

would regress behaviorally because she had bonded to her resource

parent.   Dr. Wells acknowledged that due to B.W.'s age, she would

be capable of bonding to another caretaker, but added that E.W.

was not suitable as a caretaker for B.W.

     P.J. testified that she was committed to adopting B.W.     Since

she was given custody of B.W., she had allowed and facilitated

contact between E.W. and B.W. by permitting E.W. to call for

updates on the child, attend B.W.'s doctor's appointments, and

participate when B.W.'s ears were pierced. However, P.J. testified

that E.W. began behaving inappropriately and threatening her.        As

a result, by November 2015, P.J. no longer permitted E.W. to have

contact with B.W. in the resource home.

     On March 16, 2017, Judge Bernadette N. DeCastro issued a

detailed written decision rejecting the other legal issues raised

in E.W.'s pretrial motions, and concluding that the Division

proved, by clear and convincing evidence, the statutory prongs for

termination of E.W.'s parental rights. The court issued a separate

written opinion rejecting E.W.'s argument that application of the

clear and convincing evidence standard violated her constitutional

rights to due process and equal protection.   The court entered a

                                12                            A-3241-16T2
judgment terminating E.W.'s parental rights to B.W.       This appeal

followed.    B.W.'s   law   guardian   supports   the   trial   court's

judgment.3

                                 II.

     Our scope of review on appeal from an order terminating

parental rights is limited.    N.J. Div. of Youth & Family Servs.

v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of

J.N.H., 172 N.J. 440, 472 (2002)).     We will uphold a trial judge's

factfindings if they are "supported by adequate, substantial, and

credible evidence."   N.J. Div. of Youth & Family Servs. v. R.G.,

217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs.

v. E.P., 196 N.J. 88, 104 (2008)).      No deference is given to the

court's "interpretation of the law" which is reviewed de novo.

D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J. Div. of

Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides

v. Protameen Chems., 160 N.J. 352, 372 (1999)).

     "We accord deference to factfindings of the family court

because it has the superior ability to gauge the credibility of

the witnesses who testify before it and because it possesses


3
 R.A. appeared telephonically on October 16, 2016, for a hearing.
He acknowledged service of the guardianship complaint and was
assigned counsel. He did not appear at any other court hearing,
including the trial, and denied paternity of B.W. R.A. did not
appear for scheduled paternity tests. The court terminated R.A.'s
parental rights to B.W. on March 16, 2017. He did not appeal.

                                 13                             A-3241-16T2
special expertise in matters related to the family."          N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing

Cesare v. Cesare, 154 N.J. 394, 413 (1998)).    "Only when the trial

court's conclusions are so 'clearly mistaken' or 'wide of the

mark' should an appellate court intervene and make its own findings

to ensure that there is not a denial of justice."         E.P., 196 N.J.

at 104 (quoting G.L., 191 N.J. at 605).     We also accord deference

to the judge's credibility determinations "based upon his or her

opportunity to see and hear the witnesses."     N.J. Div. of Youth &

Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006)

(citing Cesare, 154 N.J. at 411-13).

     When terminating parental rights, the court focuses on the

"best interests of the child standard" and may grant a petition

when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are

established by clear and convincing evidence.        In re Guardianship

of K.H.O., 161 N.J. 337, 347-48 (1999).             "The four criteria

enumerated in the best interests standard are not discrete and

separate; they relate to and overlap with one another to provide

a   comprehensive    standard   that   identifies     a   child's    best

interests."     Id. at 348.

     N.J.S.A. 30:4C-15.1(a) requires the Division to prove:

          (1)    The   child's    safety,   health,    or
                 development has been or will continue to


                                 14                              A-3241-16T2
                  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 division 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.

                                     A.

     Before   addressing    the   trial    court's   findings      under   the

statutory factors, we consider E.W.'s contention that this court

should   depart    from   longstanding     precedents    and   require     the

Division to prove each element of the statutory best interests of

the child test beyond a reasonable doubt.               E.W. contends that

application of the clear and convincing evidence standard, which

has been used in parental rights termination matters in this State

for decades, violates her due process rights.            In addition, E.W.

argues that application of the clear and convincing evidence

standard violates her right to equal protection because the Indian

                                     15                               A-3241-16T2
Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, requires that a

state court apply the beyond a reasonable doubt standard to the

termination of parent rights to Indian children.               B.W. is not

Indian.     Thus, E.W. argues, she is being denied the greater

protection afforded under the ICWA because of her child's race.

We find E.W.'s arguments to lack legal support.

     In Santosky v. Kramer, 455 U.S. 745, 747-48 (1982), the United

States    Supreme   Court   held   that   "[b]efore   a   State   may     sever

completely and irrevocably the rights of parents in their natural

child, due process requires that the State support its allegations

by at least clear and convincing evidence."           The Court held that

the clear and convincing evidence standard "adequately conveys to

the factfinder the level of subjective certainty about his [or

her] factual conclusions necessary to satisfy due process."                  Id.

at 769.    While a State is free to apply a stricter evidentiary

standard, the "determination of the precise burden equal to or

greater than that standard is a matter of state law properly left

to state legislatures and state courts."         Id. at 770.

     Four years later, our Supreme Court cited Santosky when

discussing the burden of proof applicable to parental termination

claims:

            As to the burden of proof, in Santosky v.
            Kramer, . . . the United States Supreme Court
            held that the Fourteenth Amendment requires

                                    16                                  A-3241-16T2
           application of at least a "clear and
           convincing" standard of proof to a state's
           parental-rights-termination proceeding.    In
           reaching this conclusion, the Court noted its
           historical   recognition  that   freedom   of
           personal choice in matters of family life is
           a fundamental liberty interest protected by
           the Fourteenth Amendment.

           [N.J. Div. of Youth & Family Servs. v. A.W.,
           103 N.J. 591, 611-12 (1986) (citations
           omitted).]

      For proceedings in this State, the Court held, "[t]he correct

standard is 'clear and convincing' proof.       It is the standard that

our courts have followed."     Id. at 612 (citing In re Guardianship

of R., 155 N.J. Super. 186, 193 (App. Div. 1977) ("Division has

the   burden   of   establishing   [the]   grounds   for   termination    of

parental rights by clear and convincing evidence.")).

      Since the holding in A.W. more than thirty years ago, the

Court has not altered its unequivocal holding.               Nor has the

legislature changed the standard of proof, either when it codified

the best interests of the child test, L. 1991, c. 275, § 7, or at

any time in the decades that followed.        We are, therefore, bound

by the Supreme Court's holding in A.W. applying the clear and

convincing evidence standard to the Division's proofs. Lake Valley

Assocs., LLC v. Twp. of Pemberton, 411 N.J. Super. 501, 507 (App.

Div. 2010) ("Because we are an intermediate appellate court, we




                                    17                             A-3241-16T2
are bound to follow the law as it has been expressed by a majority

of the members of our Supreme Court.").

     Only the Supreme Court can decide whether to depart from its

holding in A.W.   We do not, therefore, express an opinion on the

numerous arguments raised by E.W. advocating the position that the

beyond a reasonable doubt standard is appropriate for termination

of parental rights claims.

     Nor do we find merit in E.W.'s argument that application of

the clear and convincing evidence standard to the Division's

application to terminate her parental rights deprives her of equal

protection.   The ICWA was enacted pursuant to the Congress's

constitutional authority to regulate commerce with Indian tribes,

U.S. Const. art. I, § 8, cl. 3, to address "an alarmingly high

percentage of Indian families . . . broken up by the removal,

often unwarranted, of their children" by nontribal agencies.       25

U.S.C. §§ 1901 (1) and (4).     When enacting the statute, Congress

found that

          it is the policy of this Nation to protect the
          best interests of Indian children and to
          promote the stability and security of Indian
          tribes and families by the establishment of
          minimum Federal standards for the removal of
          Indian children from their families . . . .

          [25 U.S.C. § 1902.]




                                 18                         A-3241-16T2
     The Act provides that in state court proceedings involving

termination of parental rights to an Indian child, the state court,

in the absence of good cause to the contrary, shall transfer such

proceeding to the appropriate tribal court, unless either parent

objects.   25 U.S.C. § 1911(b).       A tribal court may decline to

accept the transfer.    Ibid.   In those instances in which a state

court retains jurisdiction,

           [n]o termination of parental rights may be
           ordered in such proceeding in the absence of
           a determination, supported by evidence beyond
           a reasonable doubt, including testimony of
           qualified expert witnesses, that the continued
           custody of the child by the parent or Indian
           custodian is likely to result in serious
           emotional or physical damage to the child.

           [25 U.S.C. § 1912(f).]

     We begin our analysis of E.W.'s argument with the observation

that the ICWA was enacted in 1978, prior to the holdings in

Santosky and A.W.      The Court in Santosky, after surveying the

varying evidentiary standard applied in the states, noted that the

"only analogous federal statute of which we are aware permits

termination of parental rights solely upon 'evidence beyond a

reasonable doubt.'"    455 U.S. at 749-50 (citing ICWA).    The Court

addressed the statute when it explained the rationale for not

mandating a beyond a reasonable doubt standard:

           [a]lthough   Congress  found   a  "beyond   a
           reasonable doubt" standard proper in one type

                                 19                           A-3241-16T2
            of parental rights termination case, another
            legislative body might well conclude that a
            reasonable-doubt standard would erect an
            unreasonable barrier to state efforts to free
            permanently neglected children for adoption.

            [Santosky, 455 U.S. at 769.]

     The Santosky Court clearly was aware of the higher standard

applicable to the termination of parental rights to Indian children

when it held that the Constitution permitted application of the

clear and convincing evidence standard to the parents of non-

Indian children in those states that decide to apply the lower

standard.    This rationale was, in effect, adopted by our Supreme

Court in A.W., when after the opinion in Santosky was issued,

unequivocally held that the proper standard in our State is clear

and convincing evidence.

     Moreover,    there   is   ample   precedent   establishing    the

constitutionality of the ICWA in the face of an equal protection

challenge.    As the Oregon Court of Appeals succinctly held when

rejecting a constitutional challenge to the statute, "[t]he United

States Supreme Court has consistently rejected claims that laws

that treat Indians as a distinct class violate equal protection.

Traditional equal protection analysis cannot be applied."         In re

Angus, 655 P.2d 208, 213 (Or. App. 1983) (citing Washington v.

Confederated Bands and Tribes of the Yakima Indian Nation, 439

U.S. 463 (1979), Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73

                                 20                          A-3241-16T2
(1977), United State v. Antelope, 430 U.S. 641 (1977), Fisher v.

Dist. Court, 424 U.S. 382 (1976), Morton v. Mancari, 417 U.S. 535

(1974)).   In Morton, the Court held:

           [l]iterally every piece of legislation dealing
           with Indian tribes and reservations, and
           certainly all legislation dealing with the
           [Bureau of Indian Affairs], single out for
           special treatment a constituency of tribal
           Indians living on or near reservations.     If
           these   laws,    derived    from    historical
           relationships and explicitly designed to help
           only Indians, were deemed invidious racial
           discrimination, an entire Title of the United
           States Code (25 USC) would be effectively
           erased and the solemn commitment of the
           Government toward the Indians would be
           jeopardized.

           [417 U.S. at 552.]

     In upholding a law granting Indians a hiring preference, the

Morton Court held that "[t]he preference, as applied is granted

to Indians not as a discrete racial group, but, rather, as members

of quasi-sovereign tribal entities . . . ."      Id. at 554.   "As long

as the special treatment can be tied rationally to the fulfillment

of   Congress'   unique   obligation    toward   the   Indians,      such

legislative judgments will not be disturbed."      Id. at 555.

     The Angus court, after reviewing these precedents held the

"protection of the integrity of Indian families to be a permissible

goal that is rationally tied to the fulfillment of Congress' unique

guardianship obligation toward the Indians and that the ICWA is


                                21                               A-3241-16T2
therefore    not    unconstitutional."       655    P.2d    at    213   (footnote

omitted).    We agree.      E.W. has not established an equal protection

violation.

                                        B.

      E.W. argued that the trial court erred in its findings on the

four prongs set forth in N.J.S.A. 30:4C-15.1(a).                 After reviewing

these arguments in light of the record and applicable legal

principles,    we     are   convinced    there    is   substantial       credible

evidence supporting the trial judge's findings of fact and legal

conclusion that it was in B.W.'s best interests to terminate E.W.'s

parental rights.       We address the four statutory prongs in turn.

      1.    Prong One.

      The first prong of the best interests of the child standard

requires the Division to establish that "[t]he child's safety,

health, or development has been or will continue to be endangered

by   the   parental    relationship[.]"          N.J.S.A.   30:4C-15.1(a)(1).

"[T]he Division must prove harm that 'threatens the child's health

and will likely have continuing deleterious effects on the child.'"

N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013)

(quoting K.H.O., 161 N.J. at 352).

      The harm need not be physical, as "[s]erious and lasting

emotional or psychological harm to children as the result of the

action or inaction of their biological parents can constitute

                                        22                                A-3241-16T2
injury sufficient to authorize a termination of parental rights."

In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing In

re Guardianship of J.C., 129 N.J. 1, 18 (1992)).   The focus of the

harm is not on any isolated incident, but rather "the focus is on

the effect of harms arising from the parent-child relationship

over time on the child's health and development."      K.H.O., 161

N.J. at 348.   "Moreover, '[c]ourts need not wait to act until a

child is actually irreparably harmed by parental inattention or

neglect.'"   Div. of Child Prot. & Perm. v. E.D.-O., 223 N.J. 166,

178 (2015) (alteration in original) (quoting In re Guardianship

of DMH, 161 N.J. 365, 383 (1999)).

     The harm may be established by "a delay in establishing a

stable and permanent home . . . ."      DMH, 161 N.J. at 383.      "A

parent's withdrawal of . . . solicitude, nurture, and care for an

extended period of time is in itself a harm that endangers the

health and development of the child."   Id. at 379 (citing K.H.O.,

161 N.J. at 352-54).   Additionally, a parent's "persistent failure

to perform any parenting functions and to provide . . . support

for [the child] . . . constitutes a parental harm to that child

arising out of the parental relationship [that is] cognizable

under N.J.S.A. 30:4C-15.1(a)(1) and (2)."   Id. at 380.

     E.W. argues that the Division presented no evidence that B.W.

suffered harm caused by E.W.    Although apparently conceding that

                                23                          A-3241-16T2
B.W. tested positive for PCP at birth due to her mother's ingestion

of the drug, E.W. argues that the Division relied on hearsay

evidence to establish that B.W. suffered withdrawal symptoms from

the PCP exposure.     In addition, E.W. argues that the record

contains no evidence B.W. suffered any lasting medical harm as a

result of her mother's drug use while pregnant with the child.

     The judge concluded the first prong was established because

the child was harmed by E.W.'s inability to provide a safe and

stable home for any of her children since 2006, her failure to

address her significant and longstanding drug addiction, and the

deterioration in her behavior caused by her drug abuse.   The court

based her finding on the last point on E.W.'s erratic behavior and

the threats that she made to a Division caseworker.       The court

also noted that because of E.W.'s drug use, B.W. has spent nearly

her entire life in foster care, which is itself a harm to the

child.   In addition, relying on the expert opinion of Dr. Wells,

the court concluded that E.W.'s continued drug use and possible

undiagnosed bipolar disorder harmed B.W. by depriving her of

stability and nurture from E.W.

     We agree.   The record clearly and convincingly demonstrates

that B.W. tested positive for PCP at birth, and that E.W. tested

positive for PCP in August 2015 while pregnant with B.W.         The

record shows that the exposure of B.W. to PCP harmed the child.

                               24                           A-3241-16T2
There is substantial evidence showing that the child spent the

earliest days of her life in withdrawal.            However, the judge's

findings on prong one were not based solely on the child's exposure

to   the   drug.   The   record   also   supports    the   trial   court's

determination that E.W.'s drug use, and failure to provide a

stable, nurturing, and secure home for B.W. caused the child harm

for the duration of her life.

      E.W. took no steps to address her addiction to PCP, which has

been present her entire adult life.       She did not visit the child

with any regularity, depriving her of love, nurture, and emotional

support.    She did not arrange for stable housing for the child.

Nor did she secure employment to provide financially for B.W.             In

effect, E.W. abandoned her child shortly after B.W. was born.

      Accordingly, there was substantial credible evidence in the

record to support the trial judge's finding E.W. endangered B.W.'s

safety, health, or development, and that the child would continue

to be endangered by E.W.'s actions.

      2.    Prong Two.

      "The second prong, in many ways, addresses considerations

touched on in prong one."     F.M., 211 N.J. at 451.        The focus is

on parental unfitness.    K.H.O., 161 N.J. at 352; DMH, 161 N.J. at

378-79.    In considering this prong, the court should determine

whether it is reasonably foreseeable that the parent can cease to

                                  25                               A-3241-16T2
inflict harm upon the child.           A.W., 103 N.J. at 607.         The second

prong may be satisfied

               by indications of parental dereliction and
               irresponsibility,   such   as   the   parent's
               continued or recurrent drug abuse, the
               inability to provide a stable and protective
               home, the withholding of parental attention
               and care, and the diversion of family
               resources in order to support a drug habit,
               with the resultant neglect and lack of nurture
               for the child.

               [K.H.O., 161 N.J. at 353.]

"Prong   two     may   also   be   satisfied   if    'the   child   will    suffer

substantially from a lack of . . . a permanent placement and from

the disruption of [the] bond with foster parents.'"                    F.M., 211

N.J. at 451 (alteration in original) (quoting K.H.O., 161 N.J. at

363).

       The trial judge found that E.W. is unwilling or unable to

correct the harms that resulted in B.W.'s removal from her custody.

The court noted that E.W. had demonstrated no improvement from the

time that Dr. Wells evaluated her in 2014.             She continued to abuse

PCP.     E.W. had not secured stable housing or employment.                     She

remained in a physically abusive relationship with the man she

identified as B.W.'s father.           The court concluded that E.W. was

unable    to    provide   a    safe   and   stable   home   for     B.W.   in   the

foreseeable future.           The judge also concluded that any further

delay in permanency for B.W. would add to the child's harm.

                                       26                                  A-3241-16T2
       In   addition,   the   trial    court,    relying    on   the   bonding

evaluation conducted by Dr. Wells of B.W. and P.J., concluded that

the child was securely bonded to P.J., who was affectionate and

attentive to the child.       The court concluded that B.W. views P.J.

as her psychological parent.      While the court recognized that B.W.

might form a bond with a new caregiver, the judge concluded that

to do so, the new caregiver would have to capable of parenting

effectively.     The court concluded that E.W. was not in a position

to be an effective and appropriate caregiver to B.W.                 Thus, the

court concluded, severing the bond between B.W. and P.J. would be

detrimental to the child.         For these reasons, the trial court

concluded that the second prong of the best interests test was

met.

       Our review of the record lead us to conclude that there is

sufficient     credible     evidence    supporting    the    trial     court's

conclusion that the Division satisfied the second prong of the

best interests of the child test by clear and convincing evidence.

       3.    Prong Three.

       Under prong three, the trial court must consider whether "the

[D]ivision . . . made reasonable efforts to provide services to

help the parent correct the circumstances which led to the child's

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

The Division's efforts must be analyzed "with reference to the

                                       27                              A-3241-16T2
circumstances of the individual case[,]" including the parent's

degree of participation.    DMH, 161 N.J. at 390.

     N.J.S.A. 30:4C-15.1(c) defines reasonable efforts as those

reasonable "attempts by an agency authorized by the [D]ivision to

assist the parents in remedying the circumstances and conditions

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

family   structure[.]"     The   statute      sets    forth    examples    of

"reasonable attempts," including but not limited to:

          (1)   consultation and cooperation with             the
                parent   in   developing a  plan              for
                appropriate services;

          (2)   providing services that have been agreed
                upon, to the family, in order to further
                the goal of family reunification;

          (3)   informing the parent at appropriate
                intervals of the child's progress,
                development, and health; and

          (4)   facilitating appropriate visitation.

          [Ibid.]

     E.W. argues the Division failed to prove its reasonable

efforts to reunify her with B.W.      According to E.W., the Division

merely   gave   E.W.   information    about    drug    abuse     assessment

evaluations, and treatment options, and offered to meet with her

only once to assist E.W. to make phone calls to treatment programs.

E.W. does not identify what further steps she believes DCPP should

have taken, except to argue that E.W.'s caseworker could have

                                 28                                 A-3241-16T2
traveled to E.W.'s home to try to convince her to enroll in a drug

treatment program.   In addition, E.W. argues that the trial court

should have given her additional time to address her PCP addiction.

     The trial court, relying on the extensive attempts by the

Division to engage E.W. in meaningful substance abuse treatment,

and E.W.'s persistent refusal to enroll in a treatment program,

found that the Division produced clear and convincing evidence

that it satisfied the third prong of the best interests of the

child test.   In addition, the court found that E.W. was not likely

to resolve her substance abuse issue in the near future.

     Our review of the record lead us to conclude that substantial

credible evidence supports the trial court's determination with

respect to the Division's reasonable efforts to avoid termination

of E.W.'s parental rights.4   Also, nothing in the record suggests

that E.W. would be in a position to be a suitable parent to B.W.

were she given additional time to address her drug addiction.

     4.   Prong Four.

     The fourth prong of the best interests of the child test

requires the Division to show "[t]ermination of parental rights

will not do more harm than good."       N.J.S.A. 30:4C-15.1(a)(4).



4
  As noted above, although the trial court relieved the Division
of its obligation to make reasonable efforts at reunification, the
agency continued to make such efforts up to the date of trial.

                                29                          A-3241-16T2
Termination of parental rights poses a risk to children due to the

severing of the relationship with their natural parent, but it is

based "'on the paramount need the children have for permanent and

defined parent-child relationships.'"          K.H.O., 161 N.J. at 355

(quoting J.C., 129 N.J. at 26).

       Thus, "the fourth prong of the best interests standard [does

not] require a showing that no harm will befall the child as a

result of the severing of biological ties."         K.H.O., 161 N.J. at

355.    Prong four "serves as a fail-safe against termination even

where the remaining standards have been met."         G.L., 191 N.J. at

609.     "[T]he question to be addressed under [prong four] is

whether, after considering and balancing the two relationships,

the child[ren] will suffer a greater harm from the termination of

ties with [their] natural parents than from permanent disruption

of [their] relationship with [their] foster parents."             I.S., 202

N.J. at 181 (quoting J.N.H., 172 N.J. at 478).

       Generally, to prove the fourth prong, the Division "'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 both the natural

parents and the foster parents.'"        F.M., 211 N.J. at 453 (quoting

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281

(2007)); See R.G., 217 N.J. at 564 (finding the Division's position

                                    30                              A-3241-16T2
lacked support because "no bonding evaluation was conducted");

N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418,

432 (App. Div. 2009) (affirming an order denying the termination

of parental rights in cases where no bonding evaluation was

conducted).   The lack of a bonding evaluation is not fatal where

termination "was not predicated upon bonding, but rather reflected

[the child's] need for permanency and [the parent's] inability to

care for him in the foreseeable future."           N.J. Div. of Youth &

Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).

     Here, the trial court relied on the expert testimony of Dr.

Wells regarding the strong bond that developed between B.W. and

her resource parent who is committed to adopting her.                  B.W.

considers   P.J.   to   be   her   parent.   Dr.   Wells   testified   that

termination of that bond would harm B.W.            While B.W. is young

enough to form a new parental bond with an appropriate caregiver,

Dr. Wells opined E.W. is not likely to be a reasonable caregiver

for B.W. at any point in the foreseeable future.           The trial court

found this opinion to be credible, and concluded that terminating

the bond between B.W and P.J. would cause "acute" harm to the

child.

     E.W. offered no conflicting expert testimony, and did not

appear for an evaluation of her bond with B.W., an infant who she

did not visit for many months before the trial, leaving the

                                     31                            A-3241-16T2
testimony    of   Dr.   Wells,       in   the     words    of   the   trial    court,

"uncontroverted."        The    expert         testimony   provides    substantial

credible    evidence    for    the    trial      court's    conclusion    that     the

Division established the fourth prong of the best interests of the

child test by clear and convincing evidence.

     Affirmed.




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