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)
A-3684-15T1/A-3711-15T1
| N.J. Super. Ct. App. Div. | Jul 19, 2017Background
- Children (born 2005–2007) were removed in 2012 after mother Anna assaulted the children’s father and was intoxicated; children placed in a resource home and bonded to the resource parent (Ms. Jill).
- Anna has a long history of substance abuse, multiple treatment failures, periods of noncompliance and relapse (including positive alcohol test shortly before trial); Dr. Williams concluded Anna was not capable of parenting and posed ongoing risk.
- Father Allen had minimal relationship with the children, significant untreated mental-health issues, criminal history, and was largely absent; psychologists recommended against visitation.
- Division provided services (evaluations, substance-abuse referrals, supervised/unsupervised visitation, parenting aide); visitation was suspended at times due to nonattendance and noncompliance.
- Family Part terminated parental rights of Anna and Allen in April 2016 after finding all four statutory prongs under N.J.S.A. 30:4C-15.1(a)(1)–(4) met by clear and convincing evidence.
- Appellate division affirmed the terminations on the merits but remanded Anna’s case for compliance with Indian Child Welfare Act (ICWA) notice requirements because the Division’s notices omitted required information and potentially omitted relevant tribes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Division proved prongs (1)–(4) of N.J.S.A. 30:4C-15.1 for termination | Division: evidence (psych evaluations, testimony, children’s statements, resource parent bond, services provided) meets clear-and-convincing standard | Anna: insufficient evidence; Allen: inadequate reasonable efforts re visitation | Court: Affirmed — both parents met all four statutory prongs by clear and convincing evidence; terminations affirmed on merits (Allen’s appeal limited to prong 3 and failed) |
| Whether Division made reasonable efforts to reunify (prong 3) | Division: provided multiple services, visits, evaluations, and referrals; efforts measured by adequacy, not success | Allen/Anna: alleged failures (Allen: visitation blocked by restraining-order issue; Anna: improper suspensions) | Court: Reasonable efforts found. Allen’s lack of relationship and incarceration limited remedies; Anna’s suspensions were due to noncompliance and lack of contact; claim not preserved at trial |
| Whether termination would do more harm than good (prong 4) | Division: children bonded with resource parent; Dr. Williams opined termination preferable; no severe harm from terminating biological ties | Parents: asserted harm from severing parental relationship | Court: Termination would not do more harm than good given children’s bond with resource parent and parents’ inability to parent |
| Whether ICWA notice/processing was adequate | Division: sent certified letters to BIA and several Apache tribes after amended birth certificate suggested Native ancestry; argued it made appropriate efforts | Anna: notices incomplete; Division should have provided more ancestry details and contacted other tribes and included required case info; trial proceeded before tribe responses | Held: Remand required — notices omitted required information per ICWA regulations; court directed conforming notices and procedures; if tribe establishes child is Indian child, termination must be vacated and ICWA-compliant proceedings held |
Key Cases Cited
- In re Guardianship of K.H.O., 161 N.J. 337 (1999) (balances parental rights and child welfare; outlines best-interests standard for termination)
- In re Guardianship of J.C., 129 N.J. 1 (1992) (parental rights are fundamental but tempered by State’s parens patriae duty)
- N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596 (2007) (standards for appellate review of termination determinations)
- In re Guardianship of D.M.H., 161 N.J. 365 (1999) (courts need not wait for irreversible harm before acting to protect children)
- Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155 (1988) (ICWA purpose and tribal intervention rights)
- N.J. Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363 (App. Div. 2015) (ICWA notice obligations and treatment of possible Indian children)
- Rova Farms Resort, Inc. v. Inv’rs Ins. Co. of Am., 65 N.J. 474 (1974) (standard for disturbing factual findings on appeal)