                             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                         NOT FOR PUBLICATION WITHOUT THE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-4390-15T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

        Plaintiff-Respondent,

v.

J.N.,

        Defendant-Appellant,

and

S.L.,

     Defendant.
_________________________________

IN THE MATTER OF THE GUARDIANSHIP OF
K.N., K.L. and S.N.,

     Minors.
_________________________________

              Submitted February 1, 2017 – Decided             April 6, 2017

              Before    Judges    Fuentes,    Carroll    and   Gooden
              Brown.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Middlesex County, Docket No. FG-12-93-15.
            Joseph E. Krakora, Public Defender, attorney
            for appellant (Carol A. Weil, Designated
            Counsel, on the brief).

            Christopher S. Porrino, Attorney General,
            attorney for respondent (Melissa Dutton
            Schaffer, Assistant Attorney General, of
            counsel; Michael A. Thompson, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minor S.N. (Lisa M.
            Black, Designated Counsel, on the brief).

PER CURIAM

    Defendant J.N.1 appeals from the June 6, 2016 judgment of

guardianship which terminated his parental rights to his son,

S.N., born in 2004.         The judgment also terminated defendant's

parental rights to a daughter, K.L., born in 2000, by virtue of

defendant's    voluntary     identified   surrender,    and   approved     a

permanency plan of kinship legal guardianship (KLG) for another

daughter,    K.N.,   born   in   2002.    Defendant    only   appeals    the

termination of his parental rights to S.N.            All three children

have the same biological mother, S.L.        S.L.'s parental rights to

S.N. and K.L. were also terminated.          S.L. does not appeal the

termination.




1
  Pursuant to Rule 1:38-3(d), we use initials to protect the
confidentiality of the participants in these proceedings.


                                     2                             A-4390-15T1
     Defendant argues that the trial court erred in finding that

the Division met its burden of proof with respect to prongs three

and four of the best interests test embodied in N.J.S.A. 30:4C-

15.1(a)(3) and (4).     Specifically, defendant argues that the

Division failed to properly assess his mother for KLG and the

court failed to consider alternatives to termination of parental

rights.   Defendant also argues for the first time on appeal that

the court failed to confirm the Division's compliance with the

provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C.A. §§

1901-63 (1982).   In response, the Division of Child Protection and

Permanency (Division) and the Law Guardian argue that defendant's

mother was assessed and properly ruled out, and expert testimony

supported the Division's plan for select home adoption.      Further,

they assert that there was insufficient evidence of defendant's

membership in an Indian tribe to trigger ICWA. We agree and affirm

substantially for the reasons stated by Judge Lorraine Pullen in

her comprehensive oral opinion issued on May 26, 2016.

     The guardianship trial lasted three days from February 23 to

25, 2016.    Three Division workers and an expert qualified in

psychology testified for the Division.         In addition, numerous

documentary exhibits were admitted into evidence.         Defendant's

mother testified on his behalf.       The trial evidence is set forth

at length in the judge's opinion and will not be repeated here in

                                  3                           A-4390-15T1
the same level of detail.            Defendant fathered eight children,

seven of whom were in his care.2             From 2008 to 2012, the Division

received multiple referrals alleging inadequate supervision, and

environmental      and    educational        neglect,   all        of   which   were

determined to be unfounded.

      On February 20, 2013, the Division received another referral

alleging that defendant drank to the point of intoxication daily,

became violent when intoxicated and had altercations in his home

necessitating a police response.             In addition, it was alleged that

the   home   was   filthy    and   the   children     were     unkempt    and   left

unsupervised. On March 5, 2013, while the Division's investigation

was ongoing, the Division received another referral that one of

defendant's daughters, Ka.N., was transported by ambulance to the

hospital,      complaining   of    pain,     accompanied      by    defendant    who

appeared to be intoxicated.         When defendant was interviewed at the

hospital by Division caseworkers, he admitted drinking that day

but   denied    being    intoxicated.         The   Division    caseworkers      who

responded to defendant's home found the children being supervised


2
  The four other children in defendant's care had three different
biological mothers.   T.M. is the biological mother of Ky.N., a
girl born in 1996; Su.N. is the biological mother of Ka.N., a girl
born in 2001; and A.C. is the biological mother of T.N., a boy
born in 2006, and Si.N., a boy born in 2007. Defendant's eighth
and eldest child, Kl.N., a girl born in 1991, had reached the age
of majority throughout most of these proceedings.


                                         4                                  A-4390-15T1
by defendant's sixteen-year-old daughter, Ky.N., and defendant's

adult   paternal   cousin,    both   of   whom   denied     seeing   defendant

drinking that day.

      The Division executed an emergency removal of all seven

children and was granted custody of the children by the trial

court on March 7, 2013.       Initially, the children were placed with

defendant's    mother,     V.N.3     After   further      investigation,     the

Division substantiated defendant for inadequate supervision based

on the March 5, 2013 incident, and educational neglect based on

reports of the children's poor school attendance and chronic

lateness.     On April 10, 2014, following a fact-finding hearing,

the   court   determined    that   defendant     abused    or   neglected    his

children, but concluded that the Division met its burden of proof

only with respect to the allegations of educational neglect,

N.J.S.A. 9:6-8.21(c).

      Following the removal of the children, over the course of

approximately two years, evaluations and services were provided

to defendant by the Division to facilitate reunification, and

compliance    reviews      were    conducted     to   monitor     and    assess

defendant's compliance.       A July 1, 2013 psychological evaluation



3
  The four children who were not the subjects of the guardianship
complaint were ultimately placed with their respective biological
mothers.

                                      5                                 A-4390-15T1
diagnosed    defendant    with    alcohol       dependency,     impulse       control

disorder,     intermittent     explosive        disorder,      and    narcissistic

personality    disorder    with    obsessive         compulsive      traits.       The

psychologist recommended successful completion of a substance

abuse treatment program followed by aftercare, frequent and random

drug    testing,      individual     psychotherapy,           anger        management

counseling, employment, and a home assessment.

       Defendant   was   afforded    substance        abuse    treatment,       anger

management     counseling,       family       counseling,      parenting       skills

education, supervised and unsupervised visitation, linkage to

community and employment resources, and transportation services.

Although there was sporadic compliance, defendant was unable to

maintain sobriety, stable housing or employment.                     Defendant was

inconsistent    with     his   attendance       at   various    substance       abuse

treatment programs, failed to comply with program requirements,

and failed to abide by recommendations for a higher level of care.

In addition, defendant often failed to provide urine samples,

provided    diluted    samples,    and    provided      samples      that    produced

disputed    results.      Further,    although        defendant      was    generally

consistent with his attendance at supervised visitation and family

counseling, he was often late and left early.                   Additionally, at

times, defendant was reportedly inattentive to the children during

the sessions and smelled of alcohol.

                                          6                                   A-4390-15T1
     After granting defendant two extensions to complete court

ordered    services,    the    court    ultimately    approved     a   plan    for

termination of parental rights and a complaint for guardianship

of S.N. was filed on May 26, 2015.          S.N. is a special needs child.

After his initial placement with V.N., S.N. was moved to an

approved resource home with his brothers on March 13, 2013.

Thereafter,    S.N.    was    removed    from   a   series    of   unsuccessful

placements, including removal from his mother, S.L., after she

tested positive for drug use while S.N. was in her care.

     On November 17, 2015, S.N. was hospitalized in a psychiatric

unit for making suicidal and homicidal threats.               He was diagnosed

with attention deficit hyperactivity disorder (ADHD), impulse

control    disorder    and    disruptive    mood    dysregulation      disorder.

After S.N. was discharged on December 10, 2015, he was placed in

a therapeutic group home where he will remain for six to twelve

months,    depending   on     his   progress.       The   Division's    approved

permanency plan for S.N. was adoption by his half-brother, A.F.,

one of S.L.'s other sons, or select home adoption, for which there

were three approved homes willing to adopt a child with S.N.'s

special needs.    S.N.'s prospects for adoption were characterized

as extremely positive and promising.

     The    Division   presented       unrebutted    expert    testimony      that

despite the plethora of services provided to defendant, he was

                                        7                                A-4390-15T1
unwilling or unable to overcome or remove the harms facing his

children and was not capable of parenting at the time of the

guardianship trial or in the foreseeable future.                The expert

explained that defendant downplayed his alcohol use, indicated

that he did not need substance abuse treatment, failed to remediate

his drinking problem, and deflected blame for his shortcomings

onto others.

      Based on the psychological and bonding evaluations conducted,

the   expert   described   defendant's    bond    with   his   children    as

"insecure."     According    to   the   expert,   defendant    lacked     the

predictability, reliability and consistency necessary to form a

basis of trust with his children.           The expert explained that

defendant's interactions with his children were not nurturing but

bordered on emotional abuse "in terms of belittling, and shaming,

and embarrassing his children."          In addition, the expert noted

that defendant was skeptical and dismissive of S.N.'s severe

emotional and psychological problems.        She described defendant as

a poor role model who brought out the worst in his children, and

termination "will not do more harm than good."

      According to the expert, defendant acknowledged being unable

to care for his children. She noted that defendant was unemployed,

homeless and recently diagnosed with prostate cancer.           The expert

recommended termination of defendant's parental rights with select

                                    8                               A-4390-15T1
home adoption for S.N. or, in the alternative, adoption by a well-

adjusted adult sibling able to address S.N.'s special needs.

Acknowledging S.N.'s desire to remain with a family member, the

expert explained that although S.N. "would have . . . a sense of

conflict in part because there's no plan for him right now[,]"

delaying permanency would be harmful because "it puts [him] in a

state of limbo" that adversely affects his self-esteem and his

self-worth and his "ability to establish healthy[] independence."

     V.N. testified that S.N. resided with her from the age of

three to five.   According to V.N., after S.N. and his two brothers

were removed on March 13, 2013, with the exception of Ky.N., the

three girls remained in her care until September 2013 when there

was an incident during which V.N. admitted slapping K.N. in the

face with an open hand when she found her with a boy.     Although

abuse was not established, all three girls were removed from her

care on September 10, 2013.

     On July 23, 2015, the Division ruled V.N. out as a placement

option on best interests grounds.     The Division's decision was

based primarily on concerns that she allowed defendant to have

unsupervised access to the children, she did not believe that

defendant had a drinking problem, she had inadequate space in her

two-bedroom apartment to accommodate the children, and there were

concerns about the children's school attendance and appearance

                                 9                          A-4390-15T1
while     in   her   care.    V.N.   did    not   appeal    the    Division's

determination.       However, in an attempt to gain custody of S.N. and

K.N., she filed a FD complaint and a motion to intervene in the

FG case, both of which were rejected.         V.N., a judge's secretary,

testified that she anticipated retiring the following month and

was willing to undergo training to care for S.N.                    She also

acknowledged defendant's drinking problem and vowed to deny him

access to the children.

     In    her   comprehensive   oral     opinion,   the   judge   found   the

Division's evidence persuasive and credited the testimony of the

Division caseworkers as well as the expert's opinions.              The judge

made meticulous factual findings as to all four prongs of the best

interests test embodied in N.J.S.A. 30:4C-15.1(a), and thereafter

concluded that the Division had satisfied all four prongs by clear

and convincing evidence.       See N.J.S.A. 30:4C-15.1(c).

     The judge found "no doubt" that S.N. "[has] been and will

continue to be placed in harm's way if returned to the custody of

. . . [defendant,]" whose "extensive use of alcohol and denial of

the fact that he is an alcoholic has placed the children in harm's

way repeatedly."      Further, the judge found that although defendant

"loves" S.N. and "has the intelligence needed to understand and

rectify his present situation[,]" he "is incapable of insuring the

safety, health and development" of S.N. and "is unwilling to

                                     10                               A-4390-15T1
eliminate the harm that lead to the children's removal from his

custody."

     The judge continued that despite the Division's efforts,

defendant "has not seriously participated in any of the services

offered by the Division" and "cannot remediate [his] parental

deficits . . . ."    Notably, the judge found that the KLG plan

offered by defendant was "not offered with the best interest of

the [child] as a priority."    Instead, defendant's plan for S.N.

placed defendant's "needs and wants ahead of [S.N.'s]" by affording

defendant "the option of injecting [himself] into the life[] of

[S.N.] . . . whenever it suits [his] needs."     After considering

the alternatives presented, the judge concluded that termination

of defendant's parental rights to S.N. "will not do more harm than

good."

     The judge's opinion tracks the statutory requirements of

N.J.S.A. 30:4C-15.1(a).    It 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 D.M.H., 161

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

103 N.J. 591 (1986), and is more than amply supported by the

record.   F.M., supra, 211 N.J. at 448.



                               11                           A-4390-15T1
     We reject defendant's argument that the Division failed to

properly assess his mother for KLG.          A parent "may request . . .

that the court consider a [KLG] arrangement as an alternative

disposition[,]"    but   "[o]nly   the    [D]ivision   or   the   court"    is

permitted to ultimately decide whether to seek that alternative

disposition.    N.J.S.A. 30:4C-87.       Our Supreme Court has made clear

that KLG should only be considered when adoption is not possible:

            The plain language of the [Kinship] Act, as
            well as its legislative history, establish
            [KLG] as a more permanent option than foster
            care when adoption "is neither feasible nor
            likely" and "kinship legal guardianship is in
            the child's best interest." N.J.S.A. 3B:12A-
            6d(3)-(4); [N.J. Div. of Youth & Family Servs.
            v. S.V., 362 N.J. Super. 76, 88 (App. Div.
            2003)]. Conversely, when the permanency
            provided by adoption is available, [KLG]
            cannot be used as a defense to termination of
            parental   rights   under    N.J.S.A.   30:4C-
            15.1(a)(3).

            [N.J. Div. of Youth & Family Servs. v. P.P.,
            180     N.J.     494,    512-13     (2004).]

     Here, the record amply supports the court's determination

that adoption was both feasible and likely for S.N. and the

undisputed expert testimony supported the Division's plan for

adoption.     Moreover, although V.N. was assessed and ruled out by

the Division, the court noted that its finding did "not preclude

the Division from investigating" V.N. for "permanent placement if

warranted."


                                   12                                A-4390-15T1
     We also reject defendant's belated argument that the court

failed to confirm the Division's compliance with the provisions

of ICWA.     In the course of eliciting information from defendant

to   effectuate    the     voluntary    identified   surrender   of     K.L.,

defendant     responded     to   his    attorney's   question    regarding

membership or eligibility for membership in a federally recognized

American Indian tribe by stating "[i]t was brought to my attention

it was Mattaponi and Pamunkey.          We just haven't got proof of it

yet."   When asked whether he obtained any proof since the day

before, defendant responded "[n]o."          Defendant confirmed that he

was "comfortable with a no until [he] can find any information."

Defendant's attorney stated to the court that she did not have

enough information to show that ICWA applied.           The court accepted

the voluntary surrender but directed defense counsel to advise the

court   if    additional    information     regarding   membership      in    a

recognized American Indian tribe was uncovered.

     ICWA states

             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 and the
             placement of such children in foster or
             adoptive homes which will reflect the unique
             values of Indian culture, and by providing for
             assistance to Indian tribes in the operation
             of child and family service programs.

                                       13                             A-4390-15T1
            [25 U.S.C.A § 1902.]

In addition, in state court proceedings involving an Indian child,

ICWA requires "the party seeking the foster care placement of, or

termination of parental rights to, an Indian child [to] notify the

parent or Indian custodian and the Indian child's tribe, by

registered mail with return receipt requested, of the pending

proceedings and of their right of intervention."        25 U.S.C.A.

§1912(a).    "The purpose of giving notice is to give the Indian

tribe the opportunity to determine whether the child is an 'Indian

child' as defined by the [Act], and, if so, to intervene in the

termination proceeding."     N.J. Div. of Child Prot. & Permanency

v. K.T.D., 439 N.J. Super. 363, 369 (App. Div. 2015) (citation

omitted); In re Guardianship of J.O., 327 N.J. Super. 304, 315

(App. Div.) (citation omitted), certif. denied, 165 N.J. 492

(2000).

     An "Indian child" is defined as "any unmarried person who is

under age eighteen and 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.A. §

1903(4).    "Indian tribes have exclusive authority to determine who

is a member or eligible for membership in a tribe." K.T.D., supra,

439 N.J. Super. at 369 (citation omitted).        If a child is an


                                   14                        A-4390-15T1
"Indian," the termination of his or her parents' rights cannot be

ordered without "a determination, supported by evidence beyond a

reasonable doubt . . . 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.A. § 1912(f).

The Division must also establish that it provided remedial services

but that those services were not successful.            25 U.S.C.A. §

1912(d).

     Other than defendant's vague and inconclusive references to

"Mattaponi" and "Pamunkey," there was no reason to believe that

S.N. was of Native American heritage.       Cf. K.T.D., supra, 439 N.J.

Super. at 372.   Where, as here, there are merely "vague and casual

reference[s]     to   Indian   ancestry[,]"     such   references     are

insufficient to trigger the notice requirements of ICWA.            J.O.,

supra, 327 N.J. Super. at 317.          However, even if S.N. was an

"Indian" child, the court's termination of defendant's parental

rights was consistent with ICWA.       Although the court evaluated the

termination of defendant's parental rights under the clear and

convincing evidence standard in accordance with New Jersey law,

we are satisfied that the result would have been the same under

the enhanced and more rigorous federal requirements.       Id. at 320.

     Affirmed.



                                  15                            A-4390-15T1
