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
| N.J. Super. Ct. App. Div. | 2015Background
- Infant Ann born 2012 tested positive for PCP; Division obtained custody when she was six days old and filed for guardianship in 2013.
- Mother (K.T.D.) has longstanding PCP addiction, serious mental-health diagnoses, failed court-ordered services, moved to Colorado, and had limited visitation.
- Ann has been in the continuous care of a family friend (Beth) since six weeks old; Beth wishes to adopt; expert testimony found Ann securely attached to Beth and no bond with mother.
- Trial court terminated mother’s parental rights under N.J.S.A. 30:4C-15.1 after finding the statutory four prongs satisfied by clear and convincing evidence.
- At a compliance hearing mother asserted Cherokee ancestry; mother and maternal grandmother provided limited genealogical details but mother was not an enrolled tribal member.
- Division did not notify Cherokee tribes or the BIA before termination; court found there was reason to know Ann might be an "Indian child" under ICWA and remanded for required notice and further proceedings if a tribe asserts membership.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Division met statutory four-prong test for termination under N.J.S.A. 30:4C-15.1 | Division: Clear and convincing evidence established danger to child, inability/unwillingness to remedy, reasonable efforts, and that termination would not do more harm than good | Mother: Claimed Division failed to prove statutory factors (not argued in detail on appeal) | Appellate court affirmed trial court; four prongs proven by clear and convincing evidence |
| Whether ICWA notice was required to tribes/BIA before terminating parental rights | Division: Argued it need not notify because mother failed to provide full genealogical details/enrollment info | Mother: Provided ancestry information indicating Cherokee descent; argues tribes/BIA should have been notified | Court held Division had reason to know child might be Indian and remanded to provide ICWA-required notice to Cherokee tribes and BIA |
| Whether lack of formal tribal enrollment defeats ICWA notice obligation | Division: Assumed enrollment required to trigger ICWA notice | Mother: Ancestral/non-enrolled descent still can make child an "Indian child"; tribes determine membership | Court held enrollment not dispositive; tribes determine membership and notice must be given based on known ancestry |
| Remedy and effect of late notice after termination judgment | Division: Implicitly urged finality / reliance on trial result | Mother: Sought remand and vacatur if ICWA applies | Court remanded: send notices immediately; termination affirmed if tribes do not respond or deny membership; if tribe establishes child is Indian, vacate judgment and proceed under ICWA |
Key Cases Cited
- Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (federal sovereign/tribal interests and ICWA purpose)
- N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420 (standard for appellate review of termination findings)
- N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88 (deference to Family Part credibility determinations)
- N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527 (deference to trial court on credibility)
- In re Adoption of Child of Indian Heritage, 219 N.J. Super. 28 (app. div.) (ICWA control over custody/adoption issues)
- Ordinance 59 Ass'n v. U.S. Dep't of Interior Sec'y, 163 F.3d 1150 (tribal authority to determine membership)
- U.S. v. Broncheau, 597 F.2d 1260 (membership/enrollment not solely determinative)