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NOT FOR PUBLICATION WITHOUT THE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.
32 A-3241-16T2