DCPP VS. A.K.H., A.B.G. AND T.S.IN THE MATTER OF THE GUARDIANSHIP OF A.H., E.L.G. AND M.N.G.(FG-07-244-15, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-3684-15T1
A-3711-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.K.H. and A.B.G.,
Defendants-Appellants,
and
T.S.,
Defendant.
____________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF A.H., E.L.G. and M.N.G., Minors.
____________________________________
Submitted June 6, 2017 – Decided July 19, 2017
Before Judges Suter and Grall.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket No. FG-07-244-15.
Joseph E. Krakora, Public Defender, attorney
for appellant A.K.H. (Deric Wu, Assistant
Deputy Public Defender, on the brief)
Joseph E. Krakora, Public Defender, attorney
for appellant A.B.G. (Charles S. Rosenberg,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Joseph
J. Maccarone, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Karen Ann
Lodeserto, Designated Counsel, on the brief).
PER CURIAM
These consolidated appeals are from an April 26, 2016 final
judgment of guardianship terminating A.B.G.'s and A.K.H.'s
parental rights. Although we conclude the statutory requirements
for terminating parental rights, N.J.S.A. 30:4C-15.1(a)(1)-(4),
were proven by clear and convincing evidence, we are constrained
to remand for compliance with the notice requirements of the Indian
Child Welfare Act of 1978, 25 U.S.C.A. §§ 1901-1963 (ICWA).
Part I and II of this opinion address termination. Part III
addresses the ICWA.
I.
A.B.G. (Anna) is the mother of A.H. (Abby) born in 2005,
E.L.G. (Evan) born in 2006, and M.N.G. (Matt) born in 2007.1 A.K.H.
1
We use fictitious names for the parties throughout the opinion
to maintain their confidentiality.
2 A-3684-15T1
(Allen) is Abby's and Evan's father. Matt's father, T.S., has
not appealed.
A.
On September 3, 2012, Anna learned T.S. sexually abused the
children and attacked him with a knife in the apartment they
shared. Anna was inebriated. The police responded and arrested
her for assault. The Division of Child Protection and Permanency
(the Division) removed the children, and following a Dodd hearing,2
placed them in a resource home where they continue to reside.3
This was not the first time the Division responded to allegations
involving Anna's inebriation, but this was the only one of the
many referrals the Division deemed substantiated.
The Division arranged for Dr. Leslie J. Williams to conduct
a psychological evaluation of Anna. During this evaluation, she
was not "forthcoming about her alcohol history" and denied having
a drinking problem. Dr. Williams recommended that Anna obtain
stable employment, continue in substance abuse treatment, and
2
The Dodd Act is found at N.J.S.A. 9:6-8.21 to -8.82 (as amended),
and provides procedures for emergency removal.
3
In the Title Nine case arising from the children's removal, Anna
stipulated to a finding of abuse and neglect. The Title Nine case
was tried against T.S., who was found to have sexually abused the
children.
3 A-3684-15T1
attend individual counseling. He concluded Anna was not then
"capable of providing adequate parenting of her children." The
Division arranged for her to have supervised visitation with the
children. Many of the reports from those visits were positive.
She progressed toward recovery in 2012, 2013 and into 2014. By
early 2014, Anna progressed to unsupervised visitation.
Anna's progress slowed. Her unsupervised visitation was
suspended briefly in February 2014, because she missed a full week
of intensive outpatient treatment. In June 2014, her unsupervised
visits again were suspended briefly, because she did not report
for alcohol screening and was observed coming out of a liquor
store, staggering, and appearing to have "urinated on herself."
Anna blamed her urination on aggressive questioning by a
caseworker.
Despite the setbacks, Anna continued attendance at an
intensive outpatient treatment program, and she had unsupervised
visitation with the assistance of a parenting aide. Indeed, Dr.
Williams conducted a second psychological examination and
concluded Anna was "capable of providing adequate parenting of her
children."
Unfortunately, Anna relapsed in October 2014. She no longer
attended her treatment program, exercised visitation, or
4 A-3684-15T1
maintained contact with the Division. Supervised visitation was
reinstituted, but she frequently failed to attend. Anna's
inconsistency affected the children. According to the Division's
caseworker, when Anna began missing the visits, the children became
"frustrated" and did not want to see her. By the caseworker's
account, although Anna acknowledged "struggling" and "need[ing]
some time to get herself together," she stopped participating in
the litigation, had only sporadic contact with the Division, and
was not involved in any services.
In May 2015, the Division filed a complaint for guardianship
of the children, seeking termination of Anna's, Allen's, and T.S.'s
parental rights. In August 2015, the trial court suspended her
visitation until "she [was] willing to comply with some services
or otherwise to initiate visitation."
In September 2015, Dr. Williams conducted a third
psychological evaluation of Anna and a bonding evaluation. Dr.
Williams reported:
[Anna had] been terminated from a number of
substance abuse programs; at times starting
them and then not continuing in treatment.
[Anna] has also not maintained consistent
contact with her children. She had been
terminated from a visitation program due to
nonattendance. [She] had not seen her
children for "seven or eight months" at the
time of the bonding evaluation . . . . [She]
was living alone in an apartment. She was
5 A-3684-15T1
unemployed . . . . [She] blamed the Division
for the children not being returned to her
care . . . . [She] stated that she was not
like the other people in the programs because
she did not have an addiction.
Dr. Williams concluded Anna was "not capable of providing
adequate parenting of her children." He recommended it was not
in the children's best interests to have visitation with Anna,
because "[s]he chose not to visit her children for over six
months," and her "inconsistency with visits cause[d] distress in
the children who already appear[ed] to be separating from her."
Dr. Williams's bonding evaluation concluded that the resource
parent, Ms. Jill,4 was the "psychological parent" of the children
because they exhibited a "firm, positive bond" with her. She had
"consistently met their physical and emotional needs." In
contrast, the children did not have a "significant positive bond"
with Anna. They did not want to live with her. They believed she
was continuing to drink alcohol, and at one point during the
evaluation they actually "frisked" their mother looking for
alcohol. Dr. Williams concluded the children "would not suffer
severe and enduring psychological harm" if Anna's parental rights
were terminated, but would suffer such harm if removed from Ms.
Jill.
4
This is also a fictitious name.
6 A-3684-15T1
The Division confirmed that Anna was not attending outpatient
treatment in October and November 2015 and was terminated from
that program. In a December 2015 hearing, counsel for the Division
advised the court that the "children continue[d] to express that
they do not want contact with their mother." In April 2016, just
before trial, Anna tested positive for alcohol.
B.
Allen, the father of Abby and Evan, did not know Anna's first
name and referred to her as the "Spanish lady." He did not live
with them. Soon after the children were placed in the Division's
custody in September 2012, Allen suggested placement of the
children with his mother in Tennessee. The Division contacted
Allen's mother, but ruled her out for placement because of her
health and lack of space. She did not challenge this
determination. Allen did not seek custody.
Allen told the Division about an order from 2008 that
restrained his contact with Anna. The restraining order allowed
for "supervised visits [with the children] only through the court
system" and provided a name and contact number for scheduling
visitation. The caseworker advised Allen he could address the
restraining order with the Union County court. See N.J.S.A. 2C:25-
29(d) (authorizing modification on a showing of good cause made
7 A-3684-15T1
to the issuing judge or one who "has available a complete record
of the hearing or hearings on which the order was based"). Allen
testified at the guardianship trial that he had not seen the
children since 2006, two years before entry of the restraining
order, and thought he might have exercised visitation under the
order just twice. He admitted having no relationship with the
children.
The Division arranged a psychological examination for Allen
with Dr. Williams in August 2013. He concluded that Allen needed
"psychiatric treatment, which should probably include psychotropic
medication" because of his "paranoid thinking, poor judgment and
self-defeating behavior." The doctor recommended against Allen's
visitation with the children because of his "lack of emotional
connection" with them and his "persecutory thinking."
Dr. Williams conducted a second psychological evaluation of
Allen in 2015. Allen was incarcerated at the time. Dr. Williams
concluded Allen appeared "to have a severe psychiatric disorder."
He had a "long history of antisocial/criminal behavior." He
presented as having "tangential thinking." He "rambled on" and
"expressed paranoid ideation about people trying to poison him in
jail." Dr. Williams concluded Allen needed "intensive psychiatric
treatment including psychotropic medication." Given his
8 A-3684-15T1
"presentation," he would be "frightening" to the children. Dr.
Williams recommended against visitation as not in the "children's
best interests."
C.
Anna did not attend the guardianship trial. The trial judge
entered judgments terminating the parental rights of Anna, Allen
and T.S. on April 26, 2016, having placed his reasons on the record
earlier.
The judge found the Division caseworkers to be "credible,
believable, and . . . honest," and Dr. Williams to be "extremely
credible," but did not find Allen's testimony credible because he
had "contradicted himself on numerous occasions."
Addressing Allen, the judge found that Allen had been "in and
out of jail," had untreated "mental health issues," and had "shown
no interest throughout the litigation." Allen's restraining order
permitted supervised visitation, but he chose not to exercise it.
The judge found that Allen "is a total and complete stranger" to
the children "[a]nd that is harmful to the children." The judge
concluded that "termination of [his] parental rights would not do
more harm than good."
With respect to Anna, the trial judge found she had "substance
abuse issues" going back eleven years and was "not interested
9 A-3684-15T1
enough to visit her children . . . [or] to be at the trial." The
judge noted she had "three and a half years to get her act together"
during the litigation and made some progress, but then "sabotaged"
it "by going back to stop her programs." He found credible Dr.
Williams's determination that the children "have been disappointed
and hurt by their mother for so long a period of time," and that
she had developed "distrust" with them through her substance abuse
and noncompliance with services. The judge relied on the bonding
evaluation when he considered that the children were "totally
skeptical of everything she told them." The judge found Anna had
"disappeared from her children," she did not "comply with
services," and just a few months before trial, she "was still
testing positive for alcohol." The judge found the Division made
reasonable efforts, working with Anna for two and a half years,
giving her extensions and trying "every which way to try to get
her to comply with services." The court found neither parent was
capable of parenting the children and there were no other placement
options.
With respect to the resource parent, Ms. Jill, the court
found the children "are devoted to her as she is to them." The
children expressed they wanted to stay with her. The judge found
that to "break up this family," referencing the resource parent,
10 A-3684-15T1
"would be absolutely criminal." The judge rejected the notion
that the resource parent was offering to adopt the children for
"economic gain."
On appeal, Allen contends that the Division did not make
reasonable efforts toward reunification because it did not provide
him with visitation based on its misunderstanding of the
restraining order.
Anna contends on appeal that the Division failed to show
evidence sufficient to terminate her parental rights, contending
that each prong of the statutory test was not satisfied.
Additionally, she contends the Division failed to comply with the
ICWA, requiring a reversal and remand.
We agree with the trial judge that there was sufficient
credible evidence in the record to prove by clear and convincing
evidence that all four prongs under N.J.S.A. 30:4C-15.1(a) were
met, and affirm the order terminating Allen's parental rights. We
also find the trial court's conclusions unassailable that the
Division proved by clear and convincing evidence all four criteria
needed to terminate Anna's parental rights. However, as expressed
in this opinion, we remand Anna's case to the trial court to comply
with the ICWA.
11 A-3684-15T1
II.
"Our review of a trial judge's decision to terminate 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)); see also N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 278-79 (2007). Factual findings that are
supported by adequate, substantial and credible evidence "should
not be disturbed unless 'they are so wholly insupportable as to
result in a denial of justice.'" Rova Farms Resort, Inc. v. Inv'rs
Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield
v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff’d o.b., 33
N.J. 78 (1960)); see also In re Guardianship of J.T., 269 N.J.
Super. 172, 188 (App. Div. 1993) (internal citations omitted). We
must accord substantial deference to the findings of the Family
Part due to that court's "special jurisdiction and expertise in
family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
A parent has a fundamental right to enjoy a relationship with
his or her child. In re Guardianship of K.H.O., 161 N.J. 337,
346-47 (1999). These rights are not absolute, but are "tempered
by the State's parens patriae responsibility to protect the welfare
of children." Id. at 347 (citing In re Guardianship of J.C., 129
N.J. 1, 10 (1992)). The standard by which the rights of the
12 A-3684-15T1
parents and the interests of the State in the welfare of the child
are balanced is "through the best interests of the child standard."
Ibid. Under that standard, an individual's parental rights may
be terminated if the Division establishes all of the following
criteria:
(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
(4) Termination of parental rights will not
do more harm than good.
[N.J.S.A. 30:4C-15.1(a)(1)-(4).]
These factors relate to each other and overlap; they are not
"discrete and separate." K.H.O., supra, 161 N.J. at 348. Each
prong must be proven by the Division with clear and convincing
13 A-3684-15T1
evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 447 (2012) (internal citations omitted).
A.
Under the first prong, the concern is "whether the parent has
harmed the child or may harm the child in the foreseeable future."
N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76,
113 (App. Div.) (citing N.J. Div. of Youth & Family Servs. v.
A.W., 103 N.J. 591, 607 (1986)), certif. denied, 180 N.J. 456(2004). In assessing whether the child has been harmed by the
parental relationship, "a parent or guardian's past conduct can
be relevant and admissible in determining risk of harm to the
child." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.
Super. 551, 573 (App. Div. 2010). The Division must demonstrate
"that the harm is likely to continue because the parent is unable
or unwilling to overcome or remove the harm." K.H.O., supra, 161
N.J. at 348 (citation omitted).
Anna contends5 the court erred in finding this prong was
satisfied because the Division did not prove the children were
5
We limit our discussion to Anna because Allen did not challenge
the judge's finding under the first prong of the statute that he
posed a danger to the children because of his lack of a
relationship with them, his unaddressed mental health issues, his
criminal history and his lack of interest in the litigation. Allen
only challenged prong three.
14 A-3684-15T1
harmed or at imminent risk of harm by their parental relationship
with her. However, "courts need not wait to act until a child is
actually irreparably impaired by parental inattention or neglect."
In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing
A.W., supra, 103 N.J. at 616 n.14).
Anna was suffering 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. Once she relapsed in 2014, she rarely visited
with the children and did not contact the Division. Dr. Williams
opined that the inconsistency in her visits caused "distress in
the children who already appear to be separating from her." Anna
offered no expert testimony that her relationship with the children
was undermined by anything other than her own conduct. The court
did not err in finding prong one was satisfied.
B.
Under the second statutory prong, the trial court is required
to "determine whether it is reasonably foreseeable that the parents
can cease to inflict harm upon the child[]." A.W., supra, 103
N.J. at 607. "While the second prong more directly focuses on
conduct that equates with parental unfitness," prongs one and two
15 A-3684-15T1
of the best interests standard "are related to one another, and
evidence that supports one informs and may the support the other."
D.M.H., supra, 161 N.J. at 379 (citing K.H.O., supra, 161 N.J. at
348-49, 351-52). The court considers "whether the parent is fit,
but also whether he or she can become fit within time to assume
the parental role necessary to meet the child's needs." N.J. Div.
of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App.
Div. 2006) (citing J.C., supra, 129 N.J. at 10), certif. denied,
190 N.J. 257 (2007). "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."
D.M.H., supra, 161 N.J. at 379 (citation omitted).6
We agree with the trial judge 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 Dr. Williams's conclusion that she was unable to parent
the children 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
6
Allen did not challenge the judge's finding that he abandoned
the children through his lack of contact and that this harmed the
children.
16 A-3684-15T1
was "hampered" by the suspension of her visitation with the
children.
C.
The third statutory prong requires the Division to show it
"has made reasonable efforts to provide services to help the
parent[s] correct the circumstances which led to the child's
placement outside the home and the court has considered
alternatives to termination of parental rights." N.J.S.A. 30:4C-
15.1(a)(3). "'Reasonable efforts' will vary depending upon the
circumstances of the removal." N.J. Div. of Youth & Family Servs.
v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing N.J. Div.
of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App.
Div. 2001), certif. denied, 171 N.J. 44 (2002)), certif. denied,
192 N.J. 68 (2007). The Division’s efforts are "not measured by
their success." D.M.H., supra, 161 N.J. at 393. Rather, "[t]hese
efforts must be assessed against the standard of adequacy in light
of all the circumstances of a given case." Ibid.
The court's judgment on the third prong was not in error.
Allen was suffering from "a severe mental disorder,
schizoaffective[] and delusional disorder." He needed "intensive
psychiatric treatment." The doctor recommended against setting
up visits with the children because of his psychiatric
17 A-3684-15T1
"presentation." Allen lost contact with the Division. He was in
jail and not offering himself as a caretaker. Under these
circumstances, the court was correct to find that reasonable
services were provided. See N.J. Div. of Youth & Family Servs.
v. T.S., 417 N.J. Super. 228, 242-43 (App. Div. 2010) (rejecting
the father's challenge to the lack of services where "he had no
relationship with [the child] and could not offer the child
permanency," there was "no past parenting of, or relationship
with, the child," and the "lack of relationship between father and
daughter could not be ameliorated by visitation or services because
[he] remained incarcerated throughout the litigation"), certif.
denied, 205 N.J. 219 (2011).
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
visitation." She was provided with a parenting aide during
unsupervised visitation. There was no error by the trial court
in finding that the Division provided reasonable services to Anna
to assist her in overcoming the reasons for termination.
The record does not support Anna's allegation on appeal that
visitation was suspended improperly. Rather, the record supports
18 A-3684-15T1
that it was suspended because of her lack of cooperation with
services and loss of contact with the Division. Moreover, aside
from her unsupported allegation that the resource parent discussed
Anna's substance abuse problem with the children on one occasion,
there was no actual proof this occurred or that it undermined
Anna's relationship with the children.
D.
The fourth statutory prong requires the trial court to balance
the harms suffered from terminating parental rights against the
good that will result from terminating these rights. K.H.O.,
supra, 161 N.J. at 363; A.W., supra, 103 N.J. at 610-11. It does
not require a showing that "no harm" will result from the
termination of parental rights, but involves a comparison of the
child's relationship with the biological parent and the foster
parent. K.H.O., supra, 161 N.J. at 355. Thus, "[t]he question
to be addressed under [the fourth] prong is whether, after
considering and balancing the two relationships, the child will
suffer a greater harm from the termination of ties with her natural
parents than from the permanent disruption of her relationship
with her foster parents." Ibid.
Allen does not contest the court's finding that termination
of his parental rights "would not do more harm than good" because
19 A-3684-15T1
he was a "stranger" to the children, who did not know him. The
court found that "it would not be safe for him to have had
visitation with them or to have any contact with them" because of
his mental health issues. These findings were amply supported by
the testimony of the Division's expert who testified the children
had not mentioned their father, they did not interact with him,
and there would be no severe and enduring harm to the children if
his parental rights were terminated.
Similarly, the trial court's conclusion that termination of
Anna's parental rights would not do more harm than good was
supported by the testimony of Dr. Williams, who reached this
opinion based on Anna's lack of relationship with the children in
the last year before 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.
Anna does not contest this finding either factually or through
expert testimony, protesting instead in this appeal that we simply
should direct the Division to stop suspending visitation between
foster children and their parents except after an evidentiary
hearing. We decline to address this issue, where there was no
objection by counsel when the orders suspending visitation were
20 A-3684-15T1
entered, and which was not raised before the trial court. See
State v. Witt, 223 N.J. 409, 419 (2015) ("[W]ith few exceptions,
'our appellate courts will decline to consider questions or issues
not properly presented to the trial court when an opportunity for
such a presentation is available.'" (quoting State v. Robinson,
200 N.J. 1, 20 (2009))).
Having satisfied all four prongs of N.J.S.A. 30:4C-15.1(a),
for both parents, there was no error by the trial judge in entering
the judgment terminating Allen's parental rights, and should the
children not be "Indian" children under the ICWA, in terminating
Anna's parental rights.
III.
We turn to address Anna's claim under the ICWA.7 The Supreme
Court and this court have discussed the ICWA's purpose and
application in cases involving termination of parental rights.
Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155(1988) (hereinafter Child of Indian Heritage); N.J. Div. of Child
Prot. & Permanency v. K.T.D., 439 N.J. Super. 363 (App. Div. 2015).
In order to preserve the "continued existence and integrity of
7
The Division's motion to supplement the record on this point was
denied without prejudice to renewal before the panel deciding the
appeal. The Division included the supplemental materials in its
appendix. No party objecting, we sua sponte grant leave to
supplement and consider the materials.
21 A-3684-15T1
Indian tribes," Child of Indian Heritage, supra, 111 N.J. at 166,
"tribes have a right to intervene" in a court proceeding involving
termination of parental rights. K.T.D., supra, 439 N.J. Super.
at 369. To facilitate exercise of the right, the ICWA requires
notice. Ibid. (discussing 25 U.S.C.A. § 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.A. § 1903(4). "Tribes have different
criteria" to determine who can be a member and have "exclusive
authority" over that determination. K.T.D., supra, 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"
termination, was obligated, if known, to "directly notify the
Indian parents, Indian custodians, and the child's tribe by
certified mail with return receipt requested, of the pending
22 A-3684-15T1
proceedings and of their right of intervention." 25 C.F.R. §
23.11(a) (2014).8
"The BIA has issued guidelines to assist in interpreting the
ICWA." K.T.D., supra, 439 N.J. Super. at 371.9 Per the Guidelines,
"[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,
supra, 80 Fed. Reg. at 10,152. 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.
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
8
If the tribe cannot be identified, the Bureau of Indian Affairs
(BIA) must be contacted. See 25 U.S.C.A. § 1912(f).
9
See Guidelines for State Courts and Agencies in Indian Child
Custody Proceedings, 80 Fed. Reg. 10,146 (Feb. 25, 2015),
https://www.federalregister.gov/documents/2015/02/25/2015-
03925/guidelines-for-state-courts-and-agencies-in-indian-child-
custody-proceedings (Guidelines). These Guidelines were revised
in December 2016, which was after the guardianship trial.
23 A-3684-15T1
same place, 1913, August Rush. Grandfather is
Mose Rush, born same place, about 1870.10
On March 8, 2016, the Division sent certified letters to the
BIA and the Department of the Interior to determine whether the
ICWA applied to this proceeding. On March 29, 2016, the BIA
responded that it did not maintain such information and advised
the Division to obtain it "from the tribe itself, if tribal
affiliation can be determined."
On April 8, 2016, the Division sent a letter to the eight
federally recognized Apache tribes,11 advising them of Anna's
amended birth certificate. Five tribes responded after the
guardianship trial was completed and indicated that Anna and the
children were not eligible for tribal membership. Neither the BIA
nor the tribes requested additional information.
Post-termination orders included in the supplemented record,
which were entered in proceedings conducted under docket numbers
FC-07-159-13, FC-07-160-15 and FC-07-162-13, determined that the
10
It is unclear when the Division acquired this amended birth
certificate; it is not included in the trial record or the record
as supplemented on appeal.
11
According to the Division, T.S., Matt's father, had suggested
at some point that Anna "might have Apache heritage." He claimed
to have heritage as a Blackfoot Indian, but the Division contacted
the Blackfoot tribes and did not receive any response indicating
that T.S. or his relatives were enrolled members of any tribe.
24 A-3684-15T1
ICWA did not apply to Anna's children. Anna, however, was not a
party to those proceedings.12
There was no objection at trial by the Law Guardian for the
children or Anna's counsel to the content of the notices provided,
the timing of the trial, or the tribes that were contacted. The
tribes have not asked to intervene, to vacate the judgment or for
additional information.
Anna suggests the Division 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. She contends the notices were not consistent with
the applicable regulations, see 25 C.F.R. § 23.111 (2016),13 and
that the court erred in proceeding with the guardianship trial
prior to the tribes responding.
These issues are raised by Anna for the first time on appeal.
Although we generally decline to address issues that were not
raised before the trial court, see Witt, supra, 223 N.J. at 419,
we do so here because of the unique issues presented by the ICWA.
12
None of the parties provided a record of the proceedings.
13
25 C.F.R. § 23.11 was amended on June 14, 2016 to include
reference to 25 C.F.R. § 23.111, which was added as part of the
amendments and lists everything that the Division must now include
in the notice. 81 Fed. Reg. 38,778 (June 14, 2016).
25 A-3684-15T1
The Division concedes that the notice requirements of the
ICWA were triggered by a copy of Anna's "amended birth
certificate," but "asserts that it made the appropriate efforts
upon determining that [Anna] might have Native American ancestry
and that the proceeding below was not adversely affected." We are
constrained, however, to remand Anna's case to the trial court for
compliance with the ICWA regulations.
The 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 information
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 termination 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 information
as is known, the Division did not say that all or some of these
items were unknown.
26 A-3684-15T1
We recognize that none of the responding tribes have asked
for additional information, nor has Anna or the Law Guardian
presented any new information about the children's alleged Indian
heritage. However, we cannot say the additional information
required by the regulation might not have prompted further inquiry.
The Division is to send new notices consistent with the
applicable regulation. See 25 C.F.R. § 23.111 (2016).
The Division also should make efforts to identify if other
tribes should be notified, and then to provide them with notices
compliant with the regulation. The post-judgment orders entered
under the FC dockets are not before us on this appeal.
Nevertheless, as a party to this appeal, the Division is bound by
this opinion in any further proceedings in this matter. See,
e.g., Eherenstorfer v. Div. of Pub. Welfare, 196 N.J. Super. 405,
411 (App. Div. 1984).
Seeing no reason to deviate from the course we took in K.T.D.,
supra, 439 N.J. Super. at 373, we direct the trial court to ensure
that conforming notices are sent forthwith. 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 Indian children
27 A-3684-15T1
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 judgment terminating Anna's
parental rights shall be vacated and further proceedings
consistent with the ICWA should be held.14 See ibid. These
proceedings shall be expedited.
While seemingly a technicality, the ICWA has significant
implications. Once a child is determined to be an Indian child,
proof beyond a reasonable doubt is required. Id. at 370 (citing
25 U.S.C.A. § 1912(f)). Moreover, under 25 U.S.C.A. § 1914, if
an Indian child is the subject of a termination of parental rights
proceeding, the child's Indian parent or the tribe itself, "may
petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision of
sections [25 U.S.C.A. §§ 1911, 1912 or 1913] of" the ICWA. These
proceedings shall be expedited.
Affirmed in part; remanded in part for further proceedings
consistent with this opinion. We do not retain jurisdiction.
14
Allen did not appeal on this issue. However, to the extent a
judgment of guardianship requires termination or surrender of both
parents' rights, his are implicated.
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29 A-3684-15T1