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

108 A.3d 685, 439 N.J. Super. 363

• Court: New Jersey Superior Court Appellate Division
• Decided: February 20, 2015
• Docket: A-2646-13
• Status: Published

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

4 A-2646-13T1 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.

11 A-2646-13T1 [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.

12 A-2646-13T1 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