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NOT FOR PUBLICATION WITHOUT THE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
A-2697-17T2
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
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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
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[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
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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
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"[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
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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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