New Jersey Divison of Child Protection and Permanency v. K.T.D. in the Matter of the Guardianship of A.K.S.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2646-13T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND APPROVED FOR PUBLICATION
PERMANENCY,
February 20, 2015
Plaintiff-Respondent,
APPELLATE DIVISION
v.
K.T.D.,
Defendant-Appellant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.K.S.,
a minor.
_______________________________
Submitted November 19, 2014 – Decided February 20, 2015
Before Judges Fuentes, Ashrafi and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden
County, Docket No. FG-04-0112-14.
Joseph E. Krakora, Public Defender, attorney
for appellant (Durrell Wachtler Ciccia,
Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Michelle D. Perry-Thompson, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Phyllis G.
Warren, Designated Counsel, on the brief).
The opinion of the court was delivered by
O'CONNOR, J.A.D.
Defendant K.T.D. (mother) appeals a final judgment entered
by the Family Part terminating her parental rights to her
daughter, Ann,1 born in 2012. Ann has been in the custody of the
Division of Child Protection and Permanency (the Division) since
she was six days old. At the time of trial, Ann was in the
physical custody of a family friend, Beth, who has had physical
custody of Ann since she was six weeks old and wishes to adopt
her. The identity of Ann's father is unknown. For the reasons
that follow, we remand for further proceedings.
I
On the day Ann was born, the Division received a referral
that the mother and baby tested positive for Phencyclidine
(PCP). The Division filed a verified complaint for the care,
custody, and supervision of Ann pursuant to N.J.S.A. 9:6-8.21,
1
To protect their privacy, we refer to Ann and others connected
to this litigation by fictitious names, although for clarity we
we refer to K.T.D. as either the mother or K.T.D.
2 A-2646-13T1
N.J.S.A. 30:4C-12, and Rule 5:21-1, and subsequently obtained
legal custody of the baby.
The mother has a long-standing history of abusing PCP.
Despite participating in numerous substance abuse treatment
programs, she has been unable to overcome her addiction. When
Ann was born the mother had two other children, but both had
been removed from her care; a relative now has kinship legal
guardianship over these children. Four months after Ann's
birth, the mother moved to Colorado and has visited Ann only
three times since. The mother did not comply with any court
ordered services and, throughout the litigation, tested positive
for drugs or refused to submit to drug tests, creating the
inference she would have tested positive had she submitted a
urine sample to the Division.
On July 25, 2013, the Division filed a complaint for
guardianship. At a compliance review hearing held on October
21, 2013, the mother informed the court that she was part Native
American, specifically, Cherokee, as were both of her parents.
She was not, however, an "enrolled" or "registered" member of
any Cherokee tribe. At that time, the mother provided the names
of her parents and three out of her four grandparents, including
the maiden name of one grandmother. She did not know the birth
dates of either parent or any of her grandparents, but was
3 A-2646-13T1
instructed to submit this information to the Division. The
mother was not asked to provide any other information.
The mother did not give the Division the requested
information or provide any other details about her forebears'
Cherokee heritage, but during a pretrial conference held on
January 9, 2014, the court indicated the Division planned to
contact K.T.D.'s mother for additional information about the
family's Native American background. The guardianship trial was
held shortly thereafter, on January 23 and 30, 2014.
During the trial the Division called psychologist Linda
Jeffrey, Ph.D., as an expert witness. The court found Dr.
Jeffrey "highly credible." She testified the mother had a "very
serious constellation of issues," which included not only a
marked and unrelenting dependence on substances, but also severe
mental health afflictions. These included unspecified
schizophrenia spectrum disorder, borderline paranoia, and
intermittent explosive disorder. The expert opined the mother
was not able to safely parent Ann, and there was no bond between
the child and the mother. Ann, however, was securely attached
to Beth; if Ann were removed from Beth's care, Ann would suffer
severe and enduring harm. In addition to Dr. Jeffrey, a
Division caseworker also testified and recounted the services
made available to the mother in both New Jersey and Colorado.
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K.T.D.'s mother, Edna, testified that two of Ann's great,
great grandmothers were part Native American. One great, great
grandmother was from K.T.D's father's side and the other was
from Edna's side of the family. One was half Cherokee, but Edna
did not know if she had ever been registered or affiliated with
a tribe. Edna provided the name and maiden name of this
relative. The other great, great grandmother was "half Indian,"
but was never affiliated or registered with any tribe. Edna
mentioned her name and testified that she was "still digging" to
find out if other members of the family were affiliated with a
Native American tribe.
At the conclusion of the guardianship trial, the trial
court found that the Division met the four prongs in N.J.S.A.
30:4C-15.1(a)2 by clear and convincing evidence and terminated
the mother's parental rights to Ann.
2
These four prongs are:
(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
5 A-2646-13T1
II
A Family Part's decision to terminate parental rights will
not be disturbed when there is substantial credible evidence in
the record to support the court's findings. N.J. Div. of Youth
& Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279
(2007)). "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." N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth &
Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Further,
appellate courts should defer to decisions made by a Family Part
judge that are heavily dependent upon the judge's credibility
determinations. N.J. Div. of Youth & Family Servs. v. R.G., 217
N.J. 527, 552-53 (2014).
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.
6 A-2646-13T1
Here, we find unassailable the trial court's conclusion
that all four prongs in N.J.S.A. 30:4C-15.1 were proven by clear
and convincing evidence. The mother's claim that the Division
failed to prove these statutory factors is devoid of merit and
does not warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). However, the mother also argues a remand is
warranted so that the Cherokee tribes and the Department of
Interior, Bureau of Indian Affairs (BIA), can be notified of the
termination proceedings. We agree.
III
The Indian Child Welfare Act of 1978, 25 U.S.C.A. §§ 1901-
1963 (ICWA) was enacted to protect and preserve Native American
families by limiting the ability of state courts to remove an
Indian child from his or her family. See Miss. Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1599-
600, 104 L. Ed. 2d 29, 36 (1989). The legislative history of
the ICWA emphasized that the "separation of Indian children from
their families is perhaps the most tragic and destructive aspect
of American Indian life today." H.R. Rep. No. 95-1386 (1978).
The Congressional findings accompanying the ICWA state that
Indian children are essential to the continued existence and
integrity of Indian tribes, 25 U.S.C.A. § 1901(3), and vests in
the ICWA control over the custody, adoption, and termination of
7 A-2646-13T1
parental rights of Indian children. In re Adoption of Child of
Indian Heritage, 219 N.J. Super. 28, 31 (App. Div. 1987), aff’d
111 N.J. 155 (1988).
The ICWA contains a provision requiring that in any
termination of parental rights proceeding where a state court
knows or has reason to know that the child involved is an
"Indian child," the child's tribe or, if the tribe cannot be
identified, the BIA, must be notified of the proceeding. 25
U.S.C.A. § 1912(a). The purpose of giving notice is to give the
Indian tribe the opportunity to determine whether the child is
an "Indian child" as defined by the ICWA, see In re Jeffrey A.,
127 Cal. Rptr. 2d 314, 317 (Cal. Ct. App. 2002), and, if so, to
intervene in the termination proceeding. Indian tribes have
exclusive authority to determine who is a member or eligible for
membership in a tribe. Ordinance 59 Ass'n v. U.S. Dep't of
Interior Sec'y, 163 F.3d 1150, 1153 n.3 (10th Cir. 1998).
Indian tribes have the right to intervene under the ICWA
because they have an interest in Indian children that is
commensurate with that of a parent. "The numerous prerogatives
accorded the tribes through the ICWA's substantive provisions
. . . must . . . be seen as a means of protecting not only the
interests of individual Indian children and families, but also
of the tribes themselves." Miss. Band of Choctaw Indians,
8 A-2646-13T1
supra, 490 U.S. at 49, 109 S. Ct. at 1609, 104 L. Ed. 2d at 47;
See In re Adoption of Halloway, 732 P.2d 962, 969 (Utah 1986)
(Indian tribes have "an interest in the child which is distinct
from but on a parity with the interest of the parents.").
Moreover, under the ICWA the burden of proof imposed upon
the party seeking to terminate a party's parental rights is
beyond a reasonable doubt. 25 U.S.C.A. § 1912(f).
Specifically, the moving party in a termination proceeding must
prove beyond a reasonable doubt that the child is likely to
suffer serious emotional or physical damage if left in the
parent's custody. Ibid. Further, if an Indian child is to be
adopted, in the absence of good cause to the contrary,
preference must be given to placement with a member of the
child's extended family, other members of the Indian child's
tribe, or other Indian families. 25 U.S.C.A. § 1915(a). The
failure to give notice can have very serious consequences. A
tribe can petition a court to invalidate a judgment terminating
parental rights if notice was not provided in compliance with
the ICWA. 25 U.S.C.A. § 1914.
The ICWA defines an "Indian child" as "any unmarried person
who is under age eighteen and is either (a) a member of an
Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian
9 A-2646-13T1
tribe." 25 U.S.C.A. § 1903(4). Tribes have different criteria
of what constitutes being a member of a tribe, and being
registered or enrolled is not necessarily determinative of
whether a person is a member of a particular tribe. See U.S. v.
Broncheau, 597 F.2d 1260, 1263 (1979). Some tribes recognize a
person as a member if he is a descendant of a tribal member who
was listed on the tribal rolls as of a specific date. For
example, the Constitution of the Cherokee Nation of Oklahoma3
states that one can be a citizen of that tribe if he or she is
either an original enrollee or a descendant of an original
enrollee who was listed on the Dawes Commission Rolls.4 Const.
of the Cherokee Nation, art. III, § I. Other tribes require a
certain quantum of tribal blood or residency on a reservation to
be deemed a member. Broncheau, supra, 597 F.2d at 1263.
3
There are three Cherokee tribes recognized by the federal
government: the Cherokee Nation of Oklahoma; the Eastern Band
of Cherokee Indians of North Carolina; and the United Keetoowah
Band of Cherokee Indians in Oklahoma. Indian Entities
Recognized and Eligible to Receive Services from the U.S. Bureau
of Indian Affairs, 68 Fed. Reg. 68180, 68181, 68183 (Dec. 5,
2003).
4
The Dawes Commission was appointed by Congress in 1893 to
negotiate with the "Five Civilized Tribes," including the
Cherokee, to compile tribal membership rolls to determine
eligibility for allotment of tribal lands. Witt v. United
States, 681 F.2d 1144, 1147, 1148 n. 8 (9th Cir. 1982); see
generally Stephens v. Cherokee Nation, 174 U.S. 445, 19 S. Ct.
722, 43 L. Ed. 1041 (1899).
10 A-2646-13T1
The BIA has issued guidelines to assist in interpreting the
ICWA. See Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67584 (Nov. 26, 1979). While not
binding upon state courts, they are helpful in interpreting
provisions in the ICWA. See In re Adoption of a Child of Indian
Heritage, supra, 219 N.J. Super. at 41 (citing In re Junious M.,
193 Cal. Rptr. 40 (1983)). The guidelines address the
circumstances under which a court should have reason to believe
a child is Indian. Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed. Reg. 67584, 67586 (Nov. 26, 1979).
These non-exclusive circumstances occur when:
(i) any party to the case, Indian tribe,
Indian organization or public or private
agency informs the court that the child is
an Indian child.
(ii) any public or state licensed agency
involved in child protection services or
family support has discovered information
which suggests that the child is an Indian
child.
(iii) the child who is the subject of the
proceeding gives the court reason to believe
he or she is an Indian child.
(iv) the residence or the domicile of the
child, his or her biological parents, or the
Indian custodial is known by the court to be
or is shown to be a predominately Indian
community.
(v) an officer of the court involved in the
proceeding has knowledge that the child may
be an Indian child.
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[Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed. Reg. 67584,
67586 (Nov. 26, 1979).]
Only paragraph (i) is implicated in this case. Here, the
mother reported during a compliance review hearing that
ancestors on both her mother's and father's side of the family
were part Native American. The mother provided the names of
some of these ancestors. During the guardianship trial,
K.T.D.'s mother testified she had an ancestor that was half
Cherokee and that K.T.D.'s father had an ancestor that was "half
Indian." K.T.D.'s mother also provided some identifying
information about the descendants of these two ancestors.
Given what K.T.D. and her mother reported to the court, there
was sufficient reason to know or believe Ann might be an Indian
child as defined under the ICWA. Even if there were any
uncertainty, "'it is preferable to err on the side of giving
notice.'" In re Guardianship of J.O., 327 N.J. Super. 304, 315
(App. Div.) (quoting Family Independence Agency v. Maynard (In
re Maynard), 592 N.W.2d 751, 757 (Mich. Ct. App. 1999)), cert.
denied, 165 N.J. 492 (2000).
Accordingly, under 25 C.F.R. § 23.11, the Cherokee tribes
and the BIA should have been notified of, among other things,
the guardianship proceeding and the tribes' right to intervene.
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To the extent of its knowledge, the Division was also obligated
to provide those details about Ann's genealogy required in the
regulation.
The Division argued that, because the mother failed to
supply the information about Ann's genealogy5 required in the
regulation, the Division was relieved of its obligation to send
any notices. We disagree. The regulation requires that such
information be provided only to the extent it is known.
Further, because the ICWA presumes that it is in an Indian
child's best interests that he or she not be separated from
family and tribal heritage, the mother's actions or inactions
should not affect the protections afforded to Ann under the
ICWA.
The Division also assumed that, in order to be a member of
a tribe, one has to be formally enrolled or registered.
However, not only is that incorrect but also Indian tribes have
exclusive authority to determine who is a member of a tribe.
Ordinance 59 Ass'n, supra, 163 F.3d at 1153 n.3. Further,
because the information provided to the Family Part was not
5
The regulation requires the following, if known, be provided:
"all names known, and current and former addresses of the Indian
child's biological mother, biological father, maternal and
paternal grandparents and great grandparents or Indian
custodians, including maiden, married and former names or
aliases; birthdates; places of birth and death; tribal
enrollment numbers, and/or other identifying information." 25
C.F.R. § 23.11(d)(3).
13 A-2646-13T1
sufficient to determine the identity of the tribe to which
K.D.T.'s paternal ancestors may have belonged, the Division was
required to send a notice to the BIA providing, among other
things, "as much information as is known on the Indian child's
direct lineal ancestors . . . ." See 25 C.F.R. § 23.11(b).
Once it receives an appropriate notice, the BIA must make
reasonable efforts to locate and notify the appropriate tribe of
the termination proceedings.
We are thus compelled to remand this matter so that the
appropriate notices can be provided to the Cherokee tribes and
the BIA in accordance with the ICWA and its implementing
regulations. See 25 U.S.C. § 1912(a); 25 C.F.R.
§ 23.11. Although it is imperative that notice be provided at
the earliest possible time to avoid undue disruption or delay of
Guardianship proceedings, notice must be provided even at this
late stage.
To minimize the delay in securing permanency and stability
for Ann, the trial court shall ensure that the notices are sent
forthwith. The judgment terminating parental rights shall be
deemed affirmed if after being served with the requisite notices
under the ICWA: (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 Ann is an Indian child as
14 A-2646-13T1
defined by the ICWA; or (3) the court determines, after the
tribes have been given an opportunity to intervene, that the
ICWA does not to apply to this matter. If Ann is determined to
be an Indian child under the ICWA, the judgment terminating
parental rights shall be vacated and the trial court shall hold
further proceedings consistent with the ICWA. All proceedings
shall be conducted as expeditiously as practicable in accordance
with the overarching goal of attaining permanency for Ann.
Remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
15 A-2646-13T1