                                       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                                 NOT FOR PUBLICATION WITHOUT THE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 i s limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-2697-17T2
                                                                     A-2698-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

S.C. and G.S.,

     Defendants-Appellants.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF S.J.S,

     a Minor.
_____________________________

                    Argued May 2, 2019 – Decided June 3, 2019

                    Before Judges Simonelli, Whipple and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Passaic County,
                    Docket No. FG-16-0021-17.
            Lauren Derasmo, Designated Counsel, argued the cause
            for appellant S.C. (Joseph E. Krakora, Public Defender,
            attorney; Lauren Derasmo, on the briefs).

            Marc D. Pereira, Designated Counsel, argued the cause
            for appellant G.S. (Joseph E. Krakora, Public Defender,
            attorney; Marc D. Pereira, on the briefs).

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

            Olivia Belfatto Crisp, Assistant Deputy Public
            Defender, argued the cause for minor (Joseph E.
            Krakora, Public Defender, Law Guardian, attorney;
            Olivia Belfatto Crisp, on the brief).

PER CURIAM

      Defendant S.C. (Sandra), 1 the biological mother of S.J.S. (Sam), born in

March 2016, and G.S. (George), the biological father, appeal from the February

2, 2018 judgment of guardianship, which terminated their parental rights to the

child. Sandra challenges the trial judge's finding that plaintiff Division of Child

Protection & Permanency (Division) proved prongs two, three, and four of

N.J.S.A. 30:4C-15.1(a). George challenges the judge's findings on all four

prongs. George also argues he was deprived of due process and fundamental


1
 We used pseudonyms to identify defendants and the child. R. 1:38-3(d)(12).
We shall sometimes collectively refer to Sandra and George as defendants.
                                                                           A-2697-17T2
                                        2
fairness when the Division presented a different theory for termination than

asserted in the guardianship complaint, and the Division erred in failing to

properly determine whether Sam was a Native American child under the Indian

Child Welfare Act, 25 U.S.C. §§ 1901-1963 (ICWA). We affirm.

      We will not recite in detail the history of the Division's involvement with

the family. Instead, we incorporate by reference the factual findings set forth in

Judge Vicki A. Citrino's comprehensive written opinion, dated February 2, 2018.

We add the following comments.

      A court should terminate parental rights when the Division shows by clear

and convincing evidence that:

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

            (2) The parent is unwilling or unable to eliminate the
            harm facing the child or is unable or unwilling to
            provide a safe and stable home for the child and the
            delay of permanent placement will add to the harm.
            Such harm may include evidence that separating the
            child from his resource family parents would cause
            serious and enduring emotional or psychological harm
            to the child;

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

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                                        3
            (4) Termination of parental rights will not do more
            harm than good.

            [N.J.S.A. 30:4C-15.1(a).]

These "four prongs are not 'discrete and separate', but 'relate to and overlap with

one another to provide a comprehensive standard that identifies a child's best

interests.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012)

(quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07

(2007)).

    The Division need not demonstrate actual harm in order to satisfy prong

one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440

(App. Div. 2001).     "Courts need not wait to act until a child is actually

irreparably impaired by parental inattention or neglect." In re Guardianship of

DMH, 161 N.J. 365, 383 (1999). The test is whether the child's safety, health

or development will be endangered in the future and whether the parent is or

will be able to eliminate the harm. A.G., 344 N.J. Super. at 440. Prong one can

be satisfied by establishing the serious psychological damage to the child caused

by the parental relationship, as well as the potential for emotional or

psychological harm resulting from the parent's actions or inactions.         In re

Guardianship of K.L.F., 129 N.J. 32, 44 (1992); N.J. Div. of Youth & Family

Servs. v. A.W., 103 N.J. 591, 599 (1986). Also, a parent's failure to provide a

                                                                           A-2697-17T2
                                        4
"permanent, safe and stable home" engenders significant harm to the child.

DMH, 161 N.J. at 383.

      The first prong of the best interests test requires the Division to show that

"the alleged harm 'threatens the child's health and will likely have continuing

deleterious effects on the child.'"     F.M., 211 N.J. at 449 (quoting In re

Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). "To satisfy this prong, [the

Division] does not have to wait 'until a child is actually irreparably impaired by

parental inattention or neglect.'" Ibid. (quoting DMH, 161 N.J. at 383).

      A parent's failure to provide a "permanent, safe and stable home"

engenders significant harm to the child. DMH, 161 N.J. at 383. Likewise, a

parent's failure to provide "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. Compounding the harm is the parent's "persistent failure to

perform any parenting functions and to provide . . . support for [the child.]" Id.

at 380. Such inaction "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 380-81.

      "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.,


                                                                           A-2697-17T2
                                        5
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 inflict harm upon the child. A.W., 103 N.J. 591, 607 (1986). 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 third prong requires an evaluation of whether [the Division] 'made

reasonable efforts to provide services to help the parent' remedy the

circumstances that led to removal of the children from the home." Id. at 452

(quoting N.J.S.A. 30:4C-15.1(a)(3)). The emphasis on the third prong

            is on the steps taken by [the Division] toward the goal
            of reunification. "The diligence of [the Division's]
            efforts on behalf of a parent is not measured by"
            whether those efforts were successful. "'Reasonable

                                                                         A-2697-17T2
                                         6
            efforts' may include consultation with the parent,
            developing a plan for reunification, providing services
            essential to the realization of the reunification plan,
            informing the family of the child's progress, and
            facilitating visitation." Experience tells us that even
            [the Division's] best efforts may not be sufficient to
            salvage a parental relationship.

            [Ibid. (first quoting DMH, 161 N.J. at 393; then quoting
            N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
            261, 281 (2007)).]

As part of the inquiry, "the court must consider the alternatives to termination

of parental rights and whether the Division acted reasonably." A.G., 344 N.J.

Super. at 434-35. "The reasonableness of the Division's efforts depends on the

facts in each case." Id. at 435.

      The fourth prong seeks to determine whether "[t]ermination of parental

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

prong serves as a "'fail-safe' inquiry guarding against an inappropriate or

premature termination of parental rights." F.M., 211 N.J. at 453. "The question

ultimately is not whether a biological mother or father is a worthy parent, b ut

whether a child's interest will best be served by completely terminating t he

child's relationship with that parent."   N.J. Div. of Youth & Family Servs. v.

E.P., 196 N.J. 88, 108 (2008). The court must determine "whether . . . the child

will suffer a greater harm from the termination of ties with [his or] her natural


                                                                         A-2697-17T2
                                          7
parents than from the permanent disruption of [his or] her relationship with [his

or] her foster parents." K.H.O., 161 N.J. at 355.

      Because harm to the child stemming from termination of parental rights is

inevitable, "the fourth prong of the best interests standard cannot require a

showing that no harm will befall the child as a result of the severing of biological

ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which

the court must consider expert evaluations of the strength of the child's

relationship to the biological parents and the foster parents. Ibid. Thus, "'[t]o

satisfy 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 M.M. 189 N.J. at 281).

"Under this prong, an important consideration is [a] child's need for

permanency.     Ultimately, a child has a right to live in a stable, nurturing

environment and to have the psychological security that his most deeply formed

attachments will not be shattered." Ibid. (alteration in original) (quoting M.M.,

189 N.J. at 281).

      Judge Citrino reviewed the evidence presented at the trial, made

meticulous factual findings as to each prong of N.J.S.A. 30:4C-15.1(a), and


                                                                            A-2697-17T2
                                         8
thereafter concluded the Division met by clear and convincing evidence all of

the legal requirements for a judgment of guardianship as to both defendants.

The judge's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a),

accords with N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420 (2012),

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88 (2008), In re

Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of DMH, 161

N.J. 365 (1999), and N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591

(1986), and is amply supported by the record. We affirm substantially for the

reasons Judge Citrino expressed in her cogent written opinion. However, we

make the following brief comments.

      Contrary to Sandra's contention, there was no actual evidence that the

Division contacted or conspired with U.S. Immigration and Customs

Enforcement (ICE) to have her arrested and/or deported. She misrepresents the

significance of the contact sheets on which she relies to argue the contrary. For

example, she argues that the September 27, 2016, contact sheet "demonstrates

that [the Division] was specifically requesting that ICE detain [her] while [the

ICE] Agent . . . basically apologized to [the Division] that he had not had the

time to apprehend her." However, the contact sheet shows that the Division

worker emailed the ICE agent as follows: "Just wondering what is the status of


                                                                         A-2697-17T2
                                       9
this. [Sandra] has reached out to us telephonically, but not provided a current

address and as such we are initiating a search. Do you have any information

regarding her current whereabouts that could assist us?" To which the ICE agent

responded: "I was transferred to a different unit. I am still her investigator. I

have not had a chance to do anything. Hopefully I will work it in October."

      Sandra also points to the February 7, 2017, contact sheet to support her

contention that the Division disclosed confidential information to ICE. The

contact sheet indicated: "[Sandra] confirmed her address but not apartment

number. ICE is looking for her and contacted [the Division]. They were

provided her current address and reported they may come to the court hearing

to detain her." However, that entry does not specifically state that the Division

provided ICE with Sandra's address; it is ambiguous at best.

      There is no merit in George's contention that he was deprived of due

process and fundamental fairness because the Division alleged he harmed Sam

under a theory of abandonment, as reflected in the guardianship complaint, but

proceeded at trial under a different theory. The guardianship complaint advised

George that the Division intended to satisfy the four prongs of the best-interests-

of-the-child standard under N.J.S.A. 30:4C-15.1(a) and did not intend to pursue

an abandonment theory.


                                                                           A-2697-17T2
                                       10
      There also is no merit in George's contention that the Division erred in

failing to properly determine whether Sam was a Native American child under

the ICWA by failing to comply with the statute's notice requirements. George

testified that he has Native American heritage:

            My, my mother is 100 percent Native American. She's
            half Cherokee and half Lenape Indian.           My
            grandmother is . . . from the Ramapough Lenape
            Nation, which . . . half of the reservation sits in
            Mahwah, New Jersey and the other half sits on the
            Suffern, New York side. My grandfather comes from
            the Cree Cherokee Nation, Oklahoma City, Oklahoma.

Judge Citrino found as follows:

            [George] had previously indicated that he had
            Ramapough Lenape heritage . . . but testified at trial for
            the first time that his mother was "one-hundred percent
            Native American"—he described her as "half Lenape
            Indian" and "half Cherokee." [George]'s testimony
            differs slightly from the certification produced by his
            attorney on the same subject. [George]'s attorney's
            certification states that [George]'s mother was "half
            Lenape Ramapo" through her mother (his maternal
            grandmother) and "half Cree Cherokee" through her
            father (his maternal grandfather). While the testimony
            and the certification may seem the same, the
            inconsistency between "Cree Cherokee" and
            "Cherokee" is material. There are a number of different
            Cherokee tribes, some of which are federally
            recognized and some of which of which are not. There
            is only a single federally recognized Cree tribe—the
            Chippewa Cree in Montana—which is not affiliated
            with the Cherokee, despite [George]'s attorney's
            certification. See 81 F.R. 5019 (Jan. 29, 2016); . . .

                                                                         A-2697-17T2
                                       11
     [George] later indicated that his maternal grandfather is
     "Cree Cherokee" from Oklahoma City, Oklahoma . . . .
     After the Court ordered [George]'s counsel to comply
     with the Division's request to provide enough
     information to the Division for it to provide appropriate
     ICWA notices, the Division sent letters to the Cherokee
     Nation of Oklahoma, the United Keetoowah Band of
     Cherokee Indians, the Eastern Band of Cherokee
     Indians, and the Chippewa-Cree Indians of the Rocky
     Boy's Reservation. The Ramapough Lenape tribe is not
     federally recognized; as a result, ICWA would not
     apply even if [Sam] does have Ramapough Lenape
     heritage. See 81 F.R. 5019 (Jan. 29, 2016). That the
     State of New Jersey recognizes the tribe is not relevant;
     ICWA applies only to federally recognized tribes.

Judge Citrino added:

     Should any of the federally recognized Indian tribes
     noticed . . . notify the Division that it recognizes [Sam]
     as an "Indian Child" as defined under ICWA within the
     time ICWA prescribes, such tribe shall be permitted to
     request that the matter be reopened. The Court notes,
     however, that it would have made the same findings
     under the heightened standard required under ICWA,
     which requires evidentiary support beyond a reasonable
     doubt, including testimony from a qualified expert, that
     "continued custody of the child by the parent . . . is
     likely to result in serious emotional or physical damage
     to the child." 25 U.S.C. § 1913(f). The same evidence,
     particularly the lasting negative psychological impact
     on [Sam] if he were to be removed from his current
     resource parents and [George's] inability to remedy that
     impact about which Dr. Kanen testified, supports the
     same finding under ICWA.




                                                                  A-2697-17T2
                                12
      In order to preserve the "continued existence and integrity of Indian

tribes[,]" In re Adoption of a Child of Indian Heritage, 111 N.J. 155, 166 (1988),

"tribes have the right to intervene" in a court proceeding involving termination

of parental rights. N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J.

Super. 363, 369 (App. Div. 2015). To facilitate exercise of the right, the ICWA

requires notice. Ibid. (discussing 25 U.S.C. § 1912(a)). The obligation to give

notice is triggered when "a state court knows or has reason to know that the child

involved is an 'Indian child[.]'" Ibid. A child is an "Indian child" when the child

is either: "(a) a member of an Indian tribe or (b) is eligible for membership in

an Indian tribe and is the biological child of a member of an Indian tribe[.]" 25

U.S.C. § 1903(4). "Tribes have different criteria" to determine who can be a

member and have "exclusive authority" over that determination. K.T.D., 439

N.J. Super. at 369-70.

      Under federal regulations, the Division, as the "party seeking"

termination, was obligated, if known, to "directly notify the parents . . . and the

child's Tribe by certified mail with return receipt requested, of the pending

child-custody proceedings and of their right of intervention." 25 C.F.R. §

23.11(a). The Bureau of Indian Affairs (BIA) "has issued guidelines to assist in

interpreting the ICWA." K.T.D., 439 N.J. Super. at 371. Per the Guidelines,


                                                                           A-2697-17T2
                                       13
"[i]f there is any reason to believe the child is an Indian child, the agency and

State court must treat the child as an Indian child, unless and until it is

determined that the child is not a member or is not eligible for membership in

an Indian tribe." Guidelines for State Courts and Agencies in Indian Child

Custody Proceedings, 80 Fed. Reg. 10,146, 10,152 (Feb. 25, 2015). The court

is to confirm that the Division made "active efforts" to work with the tribes to

verify if the child may be eligible for membership. Ibid. The Guidelines define

"active efforts" as beyond "reasonable efforts." Id. at 10,150. Once a child is

determined to be an Indian child, proof beyond a reasonable doubt is required.

K.T.D., 439 N.J. Super. at 370 (citing 25 U.S.C. § 1912(f)).

      Here, as Judge Citrino explained, George initially said he had Ramapough

Lenape heritage and the Division determined the Ramapough Lenape is not a

federally recognized tribe. See 83 Fed. Reg. 4235 (Jan. 30, 2018). However,

the Division provided notice of George's and Sam's possible Native American

heritage to the Delaware Tribe of Indian Lenape. By letter dated November 20,

2017, the Delaware Tribe of Indians confirmed that George and Sam were not

enrolled, registered members, or eligible for enrollment.

      At trial, George claimed he was of Lenape and Cherokee Indian heritage

and the Division immediately notified several federally recognized tribes and


                                                                         A-2697-17T2
                                      14
the BIA of Sam's possible Cherokee and/or Lenape heritage. All tribes noticed

confirmed that Sam is not an "Indian Child" within the meaning of the ICWA,

and therefore, the tribes have no basis to intervene or seek jurisdiction in his

case. See U.S.C. 23 § 1911(b) and (c).

      Furthermore, George does not actually argue that Sam is an "Indian Child"

within the meaning of the ICWA, and there is no evidence the child is an Indian

child. Thus, the evidence supports Judge Citrino's conclusion that the ICWA

does not apply to Sam.

      Finally, the record also supports Judge Citrino's conclusion that she

"would have made the same findings under the heightened standard required

under ICWA, which requires evidentiary support beyond a reasonable doubt."

Thus, even if the ICWA did apply to Sam, the judge did not err by terminating

defendants' parental rights to the child.

      Affirmed.




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                                       15
