### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A

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- 17T3

A

- 1062

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NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff

- Respondent,

v. A.B.G.,
Defendant

- Appellant , and
A.K.H. and T.S.,
Defendant s
.

____ ______________________ IN THE MATTER OF THE GUARDIANSHIP OF A.H., E.L.G. and M.N.G.,
Minors.

____ ______________________

Submitted December 11, 2018

– Decided Before Judges Hoffman, Suter and Firko.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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.

January 1 5 , 20192 A

- 1061

- 17T3 On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG

- 07

- 0 244

- 15.
Jo seph E. Krakora, Public Defender, attorney for appellant (Charles S. Rosenberg, Designated Counsel, on the brief ; Patricia A. Nichols, Assistant Deputy Public Defender, of counsel and on the brief ). Gurbir S. Grewal, Attorney General, attorney for respond ent (Jason W. Rockwell, Assistant Attorney General, of counsel; Diane L. Scott, Deputy Attorney General, and Lisa J. Rusciano, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodesert o, Designat ed Counsel, on the brief).
PER CU RIAM Defendant A.B.G. (Anna) appeals the October 13, 2017 orde r of the Family Part that found the Division of Child Protection and Permanency (D ivision ) complied with the notice requirements of the Indian Ch ild Welfare Act (ICWA), 25 U.S.C. §§ 1901 to 1963 , and based on evidence presented at the remand proceedings , that Anna's children are not "Indian children" within the meaning of the ICWA . Anna contend s the court's order was erroneous because
the Division did not use active efforts or due diligence to verify , through relevant
Indian tribes , the children's Native American heritage nor allow the tribes a3 A

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sufficient time to respond

. We are satisfied the Family Part judge did not err in
its order that the ICW A does not apply to these children or in terminating the litigation.
I.
Anna i s the mother of three children: A.H. (Abby) born in 2005, E.L.G. (Evan) born in 2006, and M.N.G. (Matt) born in 2007. A.K.H. (Allen) is Abby
and Evan's father. Matt's father i s T.S. (Tim). On April 26, 2016, Anna , Allen and Tim's parental rights were terminated by a judgment of guardianship entered under N.J.S.A. 30:4C

- 15.1(a) following

a trial . Anna and Allen appealed the guardianship judgment. In July 2017, we
issued an unpublished opinion that affirmed the judgment in part and remanded it in part for further proceedings consistent with our opinion. See N.J. Div. of
Child Prot. & Permanency v. A.K.H. , Nos. A

- 3684

- 15 and A

- 3711

- 15 (App. Div. July 19, 2017) . The case is n ow before us following remand proceedings conducted by the Family Part from which Anna appeals. 1

1 Allen has not appealed the Family Part's October 13, 2017 order entered after remand.4 A

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- 17T3 A. In our July 2017 opinion , w e agreed with the Family Part that the statutory requirement s to terminate Anna's parental rights had been satisfied by clear and convincing evidence

. In concluding that Anna's parental relationship with her children endangered their safety, health or development , N.J.S.A. 30:4C

15.1(a)(1) , we stated:

Anna was suf

fering from a substance abuse problem, which was not resolved. She had lost her housing and was not employed. She had not been able to overcome her alcohol addiction and this negatively affected her relationship with the children, who distrusted her. On ce she relapsed in 2014, she rarely visited with the children and did not contact the Division. [This] . . . inconsistency in her visits caused "distress in the children who already appear to be separating from her." Anna offered no expert testimony tha t her relationship with the children was undermined by anything other than her own conduct. [ A.K.H. , (slip op. at 15) .]
O ur prior opinion concluded Anna was unwilling or unable to eliminate the harms facing her children

. Id. at 20; See N.J.S.A. 30:4C

- 15.1(a)(2). W e stated:

that the Division proved prong two by clear and convincing evidence. Anna only completed successfully one substance abuse treatment program, and was discharged from many others in which she was enrolled. She did not rebut [the Di vision's expert's] conclusion that she was unable to parent the children5 A

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- 17T3 because of her unresolved substance abuse issues. She remained largely out of contact with the Division and the children. Anna presented no expert testimony that her recovery was "h ampered" by the suspension of her visitation with the children. [ A.K.H. , ( slip op. at 16

- 17 ) .]
We were satisfied as well that the Division had made reasonable efforts to provide services to the parents. Id. at 17

- 18; See N.J.S.A. 30:4C

- 15.1(a)(3).

Anna was provided with multiple psychological evaluations, "a substance abuse evaluation, multiple referrals for substance abuse treatment[,] . . . transportation assistance, supervised visitation, therapeutic visitation, [and] unsupervised, overnight visitati on." She was provided with a parenting aide during unsupervised visitation.

. . . . The record does not support Anna's allegation on appeal that visitation was suspended improperly. Rather, the record supports that it was suspended because of her lack of cooperation with services and loss of contact with the Division. [ A.K.H. , (slip op. at 18

- 19).]
We agreed with the trial judge that termination of parental rights would not do more harm than good. Id. at 19

- 21 ; See N.J.S.A. 30:4C

- 15.1(a).

[T] he tr ial court's conclusion that termination of Anna's parental rights would not do more harm than good was supported by the testimony of [the Division's expert],6 A

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- 17T3 who reached this opinion based on Anna's lack of relationship with the children in the last year b efore trial and their expression that they did not want to live with her. The children are bonded with the resource parent who also wants to adopt them. They do not recognize Anna as their psychological parent. [ A.K.H. , ( slip op. at 20 ) .]
W e conclude d that the parental rights of Anna and Allen should be terminated provided that the children are not "Indian children" under the ICWA. Id. at 21.
B. When Anna appealed the guardianship judgment in 2017, she alleged for the first time that the judgment violated the ICWA. Our July 2017 opinion explained: Anna initially asserted the ICWA did not apply to her.

However, her amended birth certificate provided: Mixture of English, Negro, and Indian blood. Indian can be traced from my grandmother, Willie Ann Ellison, born in Lauderdale County, Mississippi, in the 1860s. My mother, born same place, 1913, August Rush. Grandfather is Mose Rush, born same place, about 1870. On March 8, 2016, the Division sent certi fied letters to the BIA [ 2 ] and the Department of the Interior to determine whether the ICWA applied to this

2 The reference is to the F ed eral Bureau of Indian Affairs (BIA)

.7 A

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Post

- termination orders included in the supplemented record, which were entered in proceedings condu cted under docket numbers FC

- 07

- 159

- 13, FC

- 07

- 160

- 15 and FC

- 07

- 162

- 13, determined that the ICWA did not apply to Anna's children. Anna, however, was not a party to those proceedings. [ Id. at 23

- 25.]
Anna claimed in the 2017 appeal that the "the Divis ion had an obligation affirmatively to contact other tribes based on census data from 1880 and 1910 involving two of the relatives identified in the amended birth certificate." Id. at
25. W e concluded :

[t] he Division's notices to the BIA and the Apache tribes did not include all the information required by the regulations. Specifically, the notices did not include the children's birthplace, Anna's former addresses, aliases or birthplace, or any information about the fathers. 25 C.F.R. § 23.11(d)(1), (3 ) (2014). The amended birth certificate gave limited information8 A

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- 17T3 about ancestors. 25 C.F.R. § 23.11(d)(3) (2014). A copy of the guardianship complaint was not included. 25 C.F.R. § 23.11(d)(4) (2014). The notice did not say the case involved terminati on of parental rights, the phone number of the court was omitted, and the notice did not advise the tribes they could ask to transfer jurisdiction. See 25 C.F.R. § 23.11(e) (2014). Although the regulation required the notice to provide only such informat ion as is known, the Division did not say that all or some of these items were unknown. [ Id. at 26.] We could not say that the "additional information required by the regulation might not have prompted further inquiry" even though none of the responding
tribes asked for "additional information" and there was no "new information" about the children's Indian heritage. Id. at 27. We directed that "[t]he Division is to send new notices consistent with the applicable regulation

. " Ibid. ( citing 25 C.F.R. § 23.111 (2016) ) . Further, "the
Division

. . . should make efforts to identify if other tribes should be notified, and then to provide them with notices compliant with the regulation." Ibid. T he
notices were to be sent "forthwith." Ibid. We made clear the limited nature of
our remand. 3

3 In a footnote, we note d that Allen did not appeal the ICWA issue but "to the extent a judgment of guardianship requires termination or surrender of both parents' rights, his are implicated. " Id. at 28, n. 14.9 A

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- 17T3 The guardianship judgments shall be deemed affirmed after service of conforming notice if: (1) no tribe responds to the notices within the time provided under the ICWA; (2) no tribe determines within the time allotted under the ICWA that the children are I ndian children defined by the ICWA; or (3) the court determines, after the tribes have been given an opportunity to intervene, that the ICWA does not apply. If the children or any one of them is determined to be an Indian child under the ICWA, the judgmen t terminating Anna's parental rights shall be vacated and further proceedings consistent with the ICWA should be held

. . . . These proceedings shall be expedited. [ Id. at 27

- 28.]
C. The remand proceedings spanned five separate hearing dates in 2018

. Anna testified about her address, telephone number, birth date, birthpla ce, aliases, married names, her parents' names, dates of birth, birthplaces, addresses, phone numbers, her family history, information listed on her amended birth certificate, and othe r relevant information pertaining to her heritage

. She said
she had additional "papers [at] home" regarding h er relatives and "a document

. . . say ing that they found [her] Tribe." Anna testified her Indian ancestors were on her father's side, but she did not have with her the names and phone numbers
of those relatives who may have additional information. Anna's counsel advised there were two "federally recognized Tribes in Mississippi" t hat had not been10 A

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not ified by the Division. The court ordered Ann a to provide all of the
information that she referenced to the Division.
Anna's counsel advised the court that Tim also may have Indian heritage.
Anna provided his aunt's name and phone number, because she was "the only person that [would] know all of the background

. " The court denied Anna's requests to stay the remand proceedings or to invalidate the guardianship judgment under 25 U.S.C. § 1914. The Division drafted a new notice to be sent to various tribes; Anna's

coun sel requested additional time to review the notice

. The court ordered Anna to supply the information she had referenced during her testimony and if she did
not, to bar her from relying on information she had not supplied. T he trial court
clarified that the burden to comply with the I CWA remained with the Division. Anna's counsel sent written objections to the notices and provided additional information regard ing Anna's and Tim's ancestry.
The Division sent ICWA notices to the BIA and twenty

- three tribes between August 31 and Septem ber 5, 2017. The se notices said the Division was "pursuing a termination of parental rights cause of action . . . in a matter of alleged Indian affiliation," and that pursua nt to federal law, the Tribe had a right
to intervene if it were determined that t he children were "Indian children" under11 A

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the ICWA. The notice included a copy of the protective service and guardianship complaints that contained the nam e and phone number of the court. The judge again denied motions by Anna's counsel to invalidate the guardianship judgment under 25 U.S.C. § 1914, or to reverse it under Rule 4:50

- 1 and for psychiatric and bonding evaluations. It denied Anna's counsel 's request for access to the Division's case file that he intended to review "in order to support [his] previous motion" for revers al of the guardianship judgment.
On October 13 , 2017, the Division advised the court that it sent the notices
to the BIA and twenty

- three Indian Tribes. Most tribes responded that the
children were not members of their tribe and they would not be intervening. A
few other tribes did not respond , but the Division supplied the court with copies
of the certified mailing and receipt information to show those tribes had received
the letter . Anna's counse l objected to the form of the notice, its contents, and
the Division's request to the court to find that it had complied with the ICWA. The Family Part judge rejected these arguments finding:

I'm satisfied based on representation s that appropriate notices were mailed to these Tribes. And the Tribes have had their opportunity to intercede or advise or seek additional time.

. . . .12 A

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- 17T3 It's clear to me the record's reflected all the evidence, returned receipts and/or responses of the Tribes themselves, satisfy me. As a matter of fact, that the Tribes have been noticed.

. . . . And I do find based on the evidence that is before me th at the children and parents are not members or eligible to be members of a Native American Indian Tribe. And therefore, ICWA does not apply in this case.
D.
On appeal, defendant raises the following issues:
I. THE COURT ERRONEOUSLY DETERMINED THAT ABBY, EVAN, AND MATT WERE NOT INDIAN CHILDREN AS DEFINED BY ICWA.
A. DCPP Failed to Use Active Efforts To Work With The Tribes To Verify If The Child May Be Eligible For Membership.
B. DCPP Failed to Use Due Dili gence To Work With The Tribes To Verify If The Child May Be Eligible For Membership. C. The Court Did Not Provide Ample Opportunity For BIA and the Indian Tribes to Respond to the Notices They Received and DCPP Did Not Take The Appropriate Steps To Foll ow Up On Tribes That Did Not Respond.13 A

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- 17T3 II. THE COURT LACKED SUFFICIENT EVIDENCE TO REJECT [ANNA'S] MOTION TO INVALIDATE THE TERMINATION OF HER PARENTAL RIGHTS PURSUANT TO 25 U.S.C. §1914 OR REVERSE THE TERMINATION OF HER PARENTAL RIGHTS PURSUANT TO R ule 4:50

- 1. A. The Court Incorrectly Rejected Anna’s Motion to Reverse the Termination of Her Parental Rights Pursuant to R ule 4:50

- 1. B. The Court Incorrectly Rejected Anna’s Motion to Invalidate the Termination of Her Parental Rights Pursuant to 25 U.S. C. §1914. We do not find merit in these arguments.
II.
A. We note our general deference to Family Part judges' fact

- finding because of their "special jurisdiction and expertise in family matters." Cesare v. Cesare , 154 N.J. 394, 413 (1998). See als o N.J. Div. of Youth & Family Servs. v. R.G. , 217 N.J. 527, 553 (2014). We will uphold fact

- finding that is supported by sufficient, substantial and credible evidence in the record. See N.J. Div. of Youth & Family Servs. v. L.L. , 201 N.J. 210, 226 (2010) ; N.J. Div. of Youth & Family Servs. v. M.M. , 189 N.J. 261, 279 (2007). However, we will not hesitate to set aside a ruling that is "so wide of the mark that a mistake must have been14 A

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made." M.M. , 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW o f N. Am., Inc. , 233 N.J. Super. 65, 69 (App. Div. 1989)). The court's interpretation of the law or its legal conclusions are reviewed de novo. See State in Interest
of A.B. , 219 N.J. 542, 554

- 55 (2014).
B.
In o ur prior opinion , we discussed the ICWA as it applies to cases involving termination of parental rights.

In order to preserve the "continued existence and integrity of Indian tribes," [ Matter of the Adoption of a Child of Indian Heritage , 111 N.J. 155, 166 (1988)] , "tribes have a 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 noti ce. 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 authori ty" over that determination. K.T.D

. , 439 N.J. Super. at 369

- 70. Under the regulations in effect at the time of the guardianship trial, the Division, as the "party seeking"15 A

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- 17T3 termination, was obligated, if known, to "directly notify the Indian parents, Indi an custodians, and the child's tribe by certified mail with return receipt requested, of the pending proceedings and of their right of intervention." 25 C.F.R. § 23.11(a) (2014)

. [ A.K.H. , (slip op. at 21

- 23).]
We noted that 25 C.F.R. § 23.11 was revised in December 2016. As revised , it provides "[n]otice must be sent by registered or certified mail with return receipt requested." 25 C.F.R. § 23.111(c) (2016). Notice must be in "clear and understandable language" and include:

(1) The child's na me, birthdate, and birthplace; (2) All names known (including maiden, married, and former names or aliases) of the parents, the parents' birthdates and birthplaces, and Tribal enrollment numbers if known; (3) If known, the names, birthdates, birthplace s, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents; (4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a biological parent is a member); (5) A cop y of the petition, complaint, or other document by which the child

- custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing; (6) Statements setting out:16 A

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- 17T3 (i) The name of the petition er and the name and address of petitioner's attorney; (ii) The right of any parent or Indian custodian of the child, if not already a party to the child

custody proceeding, to intervene in the proceedings. (iii) The Indian Tribe's right to intervene at any time in a State

- court proceeding for the foster

care placement of or termination of parental rights to an Indian child. (iv) That, if the child's parent or Indian custodian is unable to afford counsel based on a determination of indigency by the cour t, the parent or Indian custodian has the right to court

appointed counsel. (v) The right to be granted, upon request, up to [twenty] additional days to prepare for the child

custody proceedings. (vi) The right of the parent or Indian custodian and the Indian child's Tribe to petition the court for transfer of the foster

- care
- placement or termination

- of

- parental

- rights proceeding to Tribal court as provided by 25 U.S.C. § 1911 and § 23.115. (vii) The mailing addresses and telephone numbers of the court and information related to all parties to the child

- custody proceeding and individuals notified under this section. (vii) The potential legal consequences of the child

- custody proceedings on the future parental17 A

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- 17T3 and custodial rights of the parent or Indi an custodian. (ix) That all parties notified must keep confidential the information contained in the notice and the notice should not be handled by anyone not needing the information to exercise rights under ICWA. [25 C.F.R. § 23.111(d) (2016).]

" If the identity or location of the child's parents, the child's Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is ' reason to know ' 4 the child is an

4 "Reason to know" is defined in 25 C.F.R. 23.107(c). It states:

(c) A court, upon conducting th e inquiry required in paragraph (a) of this section, has reason to know that a child involved in an emergency or child

- custody proceeding is an Indian child if: (1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has di scovered information indicating that the child is an Indian child; (3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child;18 A

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Indian child, notice of t he child

- custody proceeding must be sent to the [ BIA ]

. " 25 C.F.R. § 23.1 1 1 (2016). "The BIA has issued Guidelines to assist in interpreting the ICWA."
K.T.D. , 439 N.J. Super. at 371. 5 As much information as is known regarding
the child's direct lineal ancestors should be provided. Id. at 373 (citing 25 C.F.R. § 23.11(b) (2016)). State agencies and courts "should ask the parent and, potentially, extended family what Tribe or Tribal ancestral group the parent may
be affiliated with." Guidelines , Secti on B.4.

(4) The court is informed that the domicile or residence of the child, the ch ild's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village; (5) The court is informed that the child is or has been a ward of a Tribal court; or (6) The court is informed that either parent or the child possesses an id entification card indicating membership in an Indian Tribe.

5 See Guidelines for Implementing The Indian Child Welfare Act , 81 Fed. Reg. 96,476 ( Dec. 30, 2016 ), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2

- 056831.pdf (Guidelines).19 A

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- 17T3 C. Defendant raises a host of issues about the efforts made by the Division
on remand to identify if the children are subject to the ICWA . We are satisfied
the notices conformed with our limited remand and that the Division's efforts
satisfied our direction

. We agree with the Family Part judge that the notices provided the information required by the regulation s . The notices were sent by certified mail with return receipt requested. 25 C.F.R. § 23.111(c) (2016). They were written "in clear and understandable language," and explained that the Division was pursuing a termination of parental rights case. The notices included: the children's names, birthdates, and birthplaces; all names known (including maiden, married, and former nam es or aliases) of the parents, the parents' birthdates and birthplaces, and known current and former addresses; all known names (including maiden, married, and former names or aliases), birthdates, and birthplaces of the children's direct lineal ancestors; and the name s of Indian
Tribe s in which the children were potential members. 25 C.F.R. § 23.111(d)(1)

to (4) (2016). The notices also included: contact information for the trial court, the Division, parent's counsel, and children's counsel; and statemen ts advising the Tribe of its rights to intervene, to have court

- appointed counsel, to request20 A

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an additional twenty days to prepare for the proceedings, and to transfer the
matter to Tribal court. 25 C.F.R. § 23.111(d)(6)(i) to (vi) (2016). Copies of the protective services and guardianship complaints, and the name and phone number of the court that had jurisdiction also were included. 25 C.F.R. § 23.111(d)(5) (2016). The Division was not required to provide a complete family history as long as it provi ded all "known" information. 25 C.F.R. § 23.111 (2016) . The
Division was not "required" to "research any vital statistics records to obtain the birth and death dates/locations or any of the other information ab out the [children's] ancestors

. " Anna's rel iance on N.J. Div

. of Child Prot

. and Permanency v. K.T.D. , No. A

- 4205

- 14 (App. Div. Jan. 19, 2016) ( K.T.D. II ) is misplaced. Not only is our opinion in K.T.D. II unpublished , but in that case the Division had information the child might be eli gible to be a member of one
of three Cherokee Tribes recognized by the federal government, as well as another unspecified Tribe , but did not follow up on this. K.T.D. II , slip op. at
2

- 3. Here, unlike K.T.D. , the Division utilized all information readily
availa ble. The Division did not fail to obtain relevant information or withhold known information from the Tribes or BIA. Also, 25 U.S.C. § 23.111 does not21 A

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require DCPP to obtain death dates

. A nna's counsel simply speculated that
contact with Lauderdale Count y Chancery Court's division of vital records might have yielded additional information. We also agree that the Division satisfied the regulatory requirement to use due diligence :

to identify and work with all of the Tribes of which there is reason to kno w the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership). [25 C.F.R. § 23.107 (2016).]
The Division used the information obtain ed from Anna's birth certificate, in

court testimony and her counsel regarding Anna and Tim's ancestry and an out

of

- court discussion with Allen to identify the tribes to be contacted and to draft the notices. The tribes were able to determine, based on t he information provided, that the children were not members. Some tribes invited additional information if it were known but Anna does not suggest there was additional
information about Native American relatives that was not supplied to the tribes already . Thus, we agree with the Family Part judge that relevant tribes were notified and that the responses were sufficient to find these children were not "Indian children" within the meaning of the ICWA.22 A

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We are satisfied that Anna had the opportunity to revi ew the letters. They were drafted and provided on more than one o ccasion for review. Counsel had the ability to comment ext ensively. The record also showed the court complied with ICWA time requirements for notice. The notices were sent from August
31 to September 5 , 2017 . The court's decision was not made until October 13 , 2017

. Defendant contends the letters should have been uniform with all the tribal
information on one sheet. There is no such requirement in the regulations.
III.
W e decline to add ress other issues raised by Anna that were beyond the scope of our remand. For instance, Anna filed motions before the Family Part judge to reopen the judgment of guardianship under R ule 4:50

- 1 , although she acknowledged having no new information. Anna had hoped to "discover" information post judgment , through psychological or bonding evaluations and by reviewing the Division ' s records, even though our opinion affirmed the termination of parental rights if the children were not "Indian children" under

t he ICWA. Our remand was limited to the ICWA issue as the Family Part judge correctly held.23 A

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T his case is not like In re Guardianship of J.N.H. , 172 N.J. 440, 474 (2002) that is relied on by Anna. In J.N.H. , the Court was willing to consider vacating a judgment that terminated parental rights based on a "unique" "confluence of

events , " which included evidence of rehabilitation by the parent whose rights were terminated and the child who was not doing well in foster placement

. J.N.H. , 172 N.J. at 479. In the present case, there was no evidence of any changed circumstances or problems with the children's placement. Anna en tered a rehabilitation program but did not show completion of the program

. There

was no evidence the children's placement was problematic in any way. The caseworker testified the children were doing well in placement. Anna argues the trial court violated the ICWA by not proceeding as if the
children were Indian children. Anna contends that termination of her parental rights should be invalidated. We agree with the Family Part that o ur remand was limited and clear. We already concluded that if the children were not Indian children under the ICWA, then the termination of Anna's parental rig hts (and
the father' s as well) was affirmed. The issue s raised now to challenge the guardianship were decided by the underlying appeal prior to remand. The trial court had no ability to invalidate the guardianship judgment once it resolved the
ICWA issue

.24 A

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After carefully reviewing the record and the applicable legal principles, we conclude that defendant's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E).
Affirmed.