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--- A.3d ----, 2015 WL 720564 (N.J.Super.A.D.)

(Cite as: 2015 WL 720564 (N.J.Super.A.D.))

Superior Court of New Jersey,

Appellate Division.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintif | Respondent,

v.

K.T.D., Defendant | Appellant.

In the Matter of the Guardianship of A.K.S., a minor.

Submitted Nov. 19, 2014.

Decided Feb. 20, 2015.

SYNOPSIS

Trial court in proceeding to terminate parental rights of mother with Native
American ancestors was required to notify Indian tribes and Bureau of Indian
Affairs (BIA) of guardianship proceeding and right to intervene, even though
mother failed to supply information required by BIA regulation about child's
genealogy and was not enrolled or registered member of any Cherokee tribe;
mother's actions or inactions did not affect protections afforded to child under
Indian Child Welfare Act (ICWA) since it presumed that not separating child from
family and tribal heritage was in her best interests, and identify of tribe to
which paternal ancestors belonged was unknown. 25 U.S.C.A. s 1901(3); Indian Child
Welfare Act of 1978, ss 4(4), 102(a), 102(f), 104, 105(a), 25 U.S.C.A. ss 1903(4),
1912(a), 1912(f), 1914, 1915(a); ; 25 C.F.R. s 23.11.

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).

Before Judges FUENTES, ASHRAFI and O'CONNOR.

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).

*1 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,FN1 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, 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 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.

*2 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) FN2 by clear and
convincing evidence and terminated the mother's parental rights to Ann.

II

[1][2][3] 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, 914
A.2d 1265 (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, 952 A.2d 436 (2008) (quoting N.J. Div.
of Youth & Family Servs. v. G.L., 191 N.J. 596, 605, 926 A.2d 320 (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).

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

[4] The Indian Child Welfare Act of 1978, 25 U.S.C.A. ss 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. s
1901(3), and vests in the ICWA control over the custody, adoption, and termination
of parental rights of Indian children. In re Adoption of Child of Indian Heritage,
219 N.J.Super. 28, 31, 529 A.2d 1009 (App.Div.1987), aff'd 111 N.J. 155, 543 A.2d
925 (1988).

*3 [5] 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. s 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., 103 Cal.App.4th 1103, 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).

[6] 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, 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. s
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. s
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. s 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
tribe." 25 U.S.C.A . s 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 Oklahoma
FN3 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.FN4 Const. of the Cherokee Nation, art. III, s 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.

*4 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, 529 A.2d 1009 (citing In re Junious M., 144
Cal.App.3d 786, 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.

[Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
67584, 67586 (Nov. 26, 1979).]

[7] 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, 743 A.2d 341 (App.Div.) (quoting
Family Independence Agency v. Maynard (In re Maynard), 233 Mich.App. 438, 592
N.W.2d 751, 757 (Mich.Ct.App.1999)), cert. denied, 165 N.J. 492 (2000).

Accordingly, under 25 C.F.R. s 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. 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 genealogy FN5 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.

*5 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 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. s 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. s 1912(a); 25 C.F.R. s 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 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.

FN1. 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.

FN2. 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 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.

FN3. 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).

FN4. 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).

FN5. 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. s
23.11(d)(3).

N.J.Super.A.D.,2015.

New Jersey Div. of Child Protection and Permanency v. K.T.D.