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)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3684-15T1
A-3711-15T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

A.K.H. and A.B.G.,

Defendants-Appellants,

and

T.S.,

Defendant.
____________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF A.H., E.L.G. and M.N.G., Minors.
____________________________________

Submitted June 6, 2017 – Decided July 19, 2017

Before Judges Suter and Grall.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Essex
County, Docket No. FG-07-244-15.

Joseph E. Krakora, Public Defender, attorney
for appellant A.K.H. (Deric Wu, Assistant
Deputy Public Defender, on the brief)
 Joseph E. Krakora, Public Defender, attorney
for appellant A.B.G. (Charles S. Rosenberg,
Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Joseph
J. Maccarone, Deputy Attorney General, on the
brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Karen Ann
Lodeserto, Designated Counsel, on the brief).

PER CURIAM

These consolidated appeals are from an April 26, 2016 final

judgment of guardianship terminating A.B.G.'s and A.K.H.'s

parental rights. Although we conclude the statutory requirements

for terminating parental rights, N.J.S.A. 30:4C-15.1(a)(1)-(4),

were proven by clear and convincing evidence, we are constrained

to remand for compliance with the notice requirements of the Indian

Child Welfare Act of 1978, 25 U.S.C.A. §§ 1901-1963 (ICWA).

Part I and II of this opinion address termination. Part III

addresses the ICWA.

I.

A.B.G. (Anna) is the mother of A.H. (Abby) born in 2005,

E.L.G. (Evan) born in 2006, and M.N.G. (Matt) born in 2007.1 A.K.H.

1
We use fictitious names for the parties throughout the opinion
to maintain their confidentiality.

2 A-3684-15T1
(Allen) is Abby's and Evan's father. Matt's father, T.S., has

not appealed.

A.

On September 3, 2012, Anna learned T.S. sexually abused the

children and attacked him with a knife in the apartment they

shared. Anna was inebriated. The police responded and arrested

her for assault. The Division of Child Protection and Permanency

(the Division) removed the children, and following a Dodd hearing,2

placed them in a resource home where they continue to reside.3

This was not the first time the Division responded to allegations

involving Anna's inebriation, but this was the only one of the

many referrals the Division deemed substantiated.

The Division arranged for Dr. Leslie J. Williams to conduct

a psychological evaluation of Anna. During this evaluation, she

was not "forthcoming about her alcohol history" and denied having

a drinking problem. Dr. Williams recommended that Anna obtain

stable employment, continue in substance abuse treatment, and

2
The Dodd Act is found at N.J.S.A. 9:6-8.21 to -8.82 (as amended),
and provides procedures for emergency removal.
3
In the Title Nine case arising from the children's removal, Anna
stipulated to a finding of abuse and neglect. The Title Nine case
was tried against T.S., who was found to have sexually abused the
children.

3 A-3684-15T1
attend individual counseling. He concluded Anna was not then

"capable of providing adequate parenting of her children." The

Division arranged for her to have supervised visitation with the

children. Many of the reports from those visits were positive.

She progressed toward recovery in 2012, 2013 and into 2014. By

early 2014, Anna progressed to unsupervised visitation.

Anna's progress slowed. Her unsupervised visitation was

suspended briefly in February 2014, because she missed a full week

of intensive outpatient treatment. In June 2014, her unsupervised

visits again were suspended briefly, because she did not report

for alcohol screening and was observed coming out of a liquor

store, staggering, and appearing to have "urinated on herself."

Anna blamed her urination on aggressive questioning by a

caseworker.

Despite the setbacks, Anna continued attendance at an

intensive outpatient treatment program, and she had unsupervised

visitation with the assistance of a parenting aide. Indeed, Dr.

Williams conducted a second psychological examination and

concluded Anna was "capable of providing adequate parenting of her

children."

Unfortunately, Anna relapsed in October 2014. She no longer

attended her treatment program, exercised visitation, or

4 A-3684-15T1
maintained contact with the Division. Supervised visitation was

reinstituted, but she frequently failed to attend. Anna's

inconsistency affected the children. According to the Division's

caseworker, when Anna began missing the visits, the children became

"frustrated" and did not want to see her. By the caseworker's

account, although Anna acknowledged "struggling" and "need[ing]

some time to get herself together," she stopped participating in

the litigation, had only sporadic contact with the Division, and

was not involved in any services.

In May 2015, the Division filed a complaint for guardianship

of the children, seeking termination of Anna's, Allen's, and T.S.'s

parental rights. In August 2015, the trial court suspended her

visitation until "she [was] willing to comply with some services

or otherwise to initiate visitation."

In September 2015, Dr. Williams conducted a third

psychological evaluation of Anna and a bonding evaluation. Dr.

Williams reported:

[Anna had] been terminated from a number of
substance abuse programs; at times starting
them and then not continuing in treatment.
[Anna] has also not maintained consistent
contact with her children. She had been
terminated from a visitation program due to
nonattendance. [She] had not seen her
children for "seven or eight months" at the
time of the bonding evaluation . . . . [She]
was living alone in an apartment. She was

5 A-3684-15T1
 unemployed . . . . [She] blamed the Division
for the children not being returned to her
care . . . . [She] stated that she was not
like the other people in the programs because
she did not have an addiction.

Dr. Williams concluded Anna was "not capable of providing

adequate parenting of her children." He recommended it was not

in the children's best interests to have visitation with Anna,

because "[s]he chose not to visit her children for over six

months," and her "inconsistency with visits cause[d] distress in

the children who already appear[ed] to be separating from her."

Dr. Williams's bonding evaluation concluded that the resource

parent, Ms. Jill,4 was the "psychological parent" of the children

because they exhibited a "firm, positive bond" with her. She had

"consistently met their physical and emotional needs." In

contrast, the children did not have a "significant positive bond"

with Anna. They did not want to live with her. They believed she

was continuing to drink alcohol, and at one point during the

evaluation they actually "frisked" their mother looking for

alcohol. Dr. Williams concluded the children "would not suffer

severe and enduring psychological harm" if Anna's parental rights

were terminated, but would suffer such harm if removed from Ms.

Jill.

4
This is also a fictitious name.

6 A-3684-15T1
 The Division confirmed that Anna was not attending outpatient

treatment in October and November 2015 and was terminated from

that program. In a December 2015 hearing, counsel for the Division

advised the court that the "children continue[d] to express that

they do not want contact with their mother." In April 2016, just

before trial, Anna tested positive for alcohol.

B.

Allen, the father of Abby and Evan, did not know Anna's first

name and referred to her as the "Spanish lady." He did not live

with them. Soon after the children were placed in the Division's

custody in September 2012, Allen suggested placement of the

children with his mother in Tennessee. The Division contacted

Allen's mother, but ruled her out for placement because of her

health and lack of space. She did not challenge this

determination. Allen did not seek custody.

Allen told the Division about an order from 2008 that

restrained his contact with Anna. The restraining order allowed

for "supervised visits [with the children] only through the court

system" and provided a name and contact number for scheduling

visitation. The caseworker advised Allen he could address the

restraining order with the Union County court. See N.J.S.A. 2C:25-

29(d) (authorizing modification on a showing of good cause made

7 A-3684-15T1
to the issuing judge or one who "has available a complete record

of the hearing or hearings on which the order was based"). Allen

testified at the guardianship trial that he had not seen the

children since 2006, two years before entry of the restraining

order, and thought he might have exercised visitation under the

order just twice. He admitted having no relationship with the

children.

The Division arranged a psychological examination for Allen

with Dr. Williams in August 2013. He concluded that Allen needed

"psychiatric treatment, which should probably include psychotropic

medication" because of his "paranoid thinking, poor judgment and

self-defeating behavior." The doctor recommended against Allen's

visitation with the children because of his "lack of emotional

connection" with them and his "persecutory thinking."

Dr. Williams conducted a second psychological evaluation of

Allen in 2015. Allen was incarcerated at the time. Dr. Williams

concluded Allen appeared "to have a severe psychiatric disorder."

He had a "long history of antisocial/criminal behavior." He

presented as having "tangential thinking." He "rambled on" and

"expressed paranoid ideation about people trying to poison him in

jail." Dr. Williams concluded Allen needed "intensive psychiatric

treatment including psychotropic medication." Given his

8 A-3684-15T1
"presentation," he would be "frightening" to the children. Dr.

Williams recommended against visitation as not in the "children's

best interests."

C.

Anna did not attend the guardianship trial. The trial judge

entered judgments terminating the parental rights of Anna, Allen

and T.S. on April 26, 2016, having placed his reasons on the record

earlier.

The judge found the Division caseworkers to be "credible,

believable, and . . . honest," and Dr. Williams to be "extremely

credible," but did not find Allen's testimony credible because he

had "contradicted himself on numerous occasions."

Addressing Allen, the judge found that Allen had been "in and

out of jail," had untreated "mental health issues," and had "shown

no interest throughout the litigation." Allen's restraining order

permitted supervised visitation, but he chose not to exercise it.

The judge found that Allen "is a total and complete stranger" to

the children "[a]nd that is harmful to the children." The judge

concluded that "termination of [his] parental rights would not do

more harm than good."

With respect to Anna, the trial judge found she had "substance

abuse issues" going back eleven years and was "not interested

9 A-3684-15T1
enough to visit her children . . . [or] to be at the trial." The

judge noted she had "three and a half years to get her act together"

during the litigation and made some progress, but then "sabotaged"

it "by going back to stop her programs." He found credible Dr.

Williams's determination that the children "have been disappointed

and hurt by their mother for so long a period of time," and that

she had developed "distrust" with them through her substance abuse

and noncompliance with services. The judge relied on the bonding

evaluation when he considered that the children were "totally

skeptical of everything she told them." The judge found Anna had

"disappeared from her children," she did not "comply with

services," and just a few months before trial, she "was still

testing positive for alcohol." The judge found the Division made

reasonable efforts, working with Anna for two and a half years,

giving her extensions and trying "every which way to try to get

her to comply with services." The court found neither parent was

capable of parenting the children and there were no other placement

options.

With respect to the resource parent, Ms. Jill, the court

found the children "are devoted to her as she is to them." The

children expressed they wanted to stay with her. The judge found

that to "break up this family," referencing the resource parent,

10 A-3684-15T1
"would be absolutely criminal." The judge rejected the notion

that the resource parent was offering to adopt the children for

"economic gain."

On appeal, Allen contends that the Division did not make

reasonable efforts toward reunification because it did not provide

him with visitation based on its misunderstanding of the

restraining order.

Anna contends on appeal that the Division failed to show

evidence sufficient to terminate her parental rights, contending

that each prong of the statutory test was not satisfied.

Additionally, she contends the Division failed to comply with the

ICWA, requiring a reversal and remand.

We agree with the trial judge that there was sufficient

credible evidence in the record to prove by clear and convincing

evidence that all four prongs under N.J.S.A. 30:4C-15.1(a) were

met, and affirm the order terminating Allen's parental rights. We

also find the trial court's conclusions unassailable that the

Division proved by clear and convincing evidence all four criteria

needed to terminate Anna's parental rights. However, as expressed

in this opinion, we remand Anna's case to the trial court to comply

with the ICWA.

11 A-3684-15T1
 II.

"Our review of a trial judge's decision to terminate parental

rights is limited." N.J. Div. of Youth & Family Servs. v. G.L.,

191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172

N.J. 440, 472 (2002)); see also N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 278-79 (2007). Factual findings that are

supported by adequate, substantial and credible evidence "should

not be disturbed unless 'they are so wholly insupportable as to

result in a denial of justice.'" Rova Farms Resort, Inc. v. Inv'rs

Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield

v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff’d o.b., 33

N.J. 78 (1960)); see also In re Guardianship of J.T., 269 N.J.

Super. 172, 188 (App. Div. 1993) (internal citations omitted). We

must accord substantial deference to the findings of the Family

Part due to that court's "special jurisdiction and expertise in

family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998).

A parent has a fundamental right to enjoy a relationship with

his or her child. In re Guardianship of K.H.O., 161 N.J. 337,

346-47 (1999). These rights are not absolute, but are "tempered

by the State's parens patriae responsibility to protect the welfare

of children." Id. at 347 (citing In re Guardianship of J.C., 129

N.J. 1, 10 (1992)). The standard by which the rights of the

12 A-3684-15T1
parents and the interests of the State in the welfare of the child

are balanced is "through the best interests of the child standard."

Ibid. Under that standard, an individual's parental rights may

be terminated if the Division establishes all of the following

criteria:

(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 [D]ivision 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.

[N.J.S.A. 30:4C-15.1(a)(1)-(4).]

These factors relate to each other and overlap; they are not

"discrete and separate." K.H.O., supra, 161 N.J. at 348. Each

prong must be proven by the Division with clear and convincing

13 A-3684-15T1
evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.

420, 447 (2012) (internal citations omitted).

A.

Under the first prong, the concern is "whether the parent has

harmed the child or may harm the child in the foreseeable future."

N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76,

113 (App. Div.) (citing N.J. Div. of Youth & Family Servs. v.

A.W., 103 N.J. 591, 607 (1986)), certif. denied, 180 N.J. 456

(2004). In assessing whether the child has been harmed by the

parental relationship, "a parent or guardian's past conduct can

be relevant and admissible in determining risk of harm to the

child." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.

Super. 551, 573 (App. Div. 2010). The Division must demonstrate

"that the harm is likely to continue because the parent is unable

or unwilling to overcome or remove the harm." K.H.O., supra, 161

N.J. at 348 (citation omitted).

Anna contends5 the court erred in finding this prong was

satisfied because the Division did not prove the children were

5
We limit our discussion to Anna because Allen did not challenge
the judge's finding under the first prong of the statute that he
posed a danger to the children because of his lack of a
relationship with them, his unaddressed mental health issues, his
criminal history and his lack of interest in the litigation. Allen
only challenged prong three.

14 A-3684-15T1
harmed or at imminent risk of harm by their parental relationship

with her. However, "courts need not wait to act until a child is

actually irreparably impaired by parental inattention or neglect."

In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing

A.W., supra, 103 N.J. at 616 n.14).

Anna was suffering from a substance abuse problem, which was

not resolved. She had lost her housing and was not employed. She

had not been able to overcome her alcohol addiction and this

negatively affected her relationship with the children, who

distrusted her. Once she relapsed in 2014, she rarely visited

with the children and did not contact the Division. Dr. Williams

opined that the inconsistency in her visits caused "distress in

the children who already appear to be separating from her." Anna

offered no expert testimony that her relationship with the children

was undermined by anything other than her own conduct. The court

did not err in finding prong one was satisfied.

B.

Under the second statutory prong, the trial court is required

to "determine whether it is reasonably foreseeable that the parents

can cease to inflict harm upon the child[]." A.W., supra, 103

N.J. at 607. "While the second prong more directly focuses on

conduct that equates with parental unfitness," prongs one and two

15 A-3684-15T1
of the best interests standard "are related to one another, and

evidence that supports one informs and may the support the other."

D.M.H., supra, 161 N.J. at 379 (citing K.H.O., supra, 161 N.J. at

348-49, 351-52). The court considers "whether the parent is fit,

but also whether he or she can become fit within time to assume

the parental role necessary to meet the child's needs." N.J. Div.

of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App.

Div. 2006) (citing J.C., supra, 129 N.J. at 10), certif. denied,

190 N.J. 257 (2007). "A parent's withdrawal of . . . solicitude,

nurture, and care for an extended period of time is in itself a

harm that endangers the health and development of the child."

D.M.H., supra, 161 N.J. at 379 (citation omitted).6

We agree with the trial judge that the Division proved prong

two by clear and convincing evidence. Anna only completed

successfully one substance abuse treatment program, and was

discharged from many others in which she was enrolled. She did

not rebut Dr. Williams's conclusion that she was unable to parent

the children because of her unresolved substance abuse issues.

She remained largely out of contact with the Division and the

children. Anna presented no expert testimony that her recovery

6
Allen did not challenge the judge's finding that he abandoned
the children through his lack of contact and that this harmed the
children.

16 A-3684-15T1
was "hampered" by the suspension of her visitation with the

children.

C.

The third statutory prong requires the Division to show it

"has made reasonable efforts to provide services to help the

parent[s] correct the circumstances which led to the child's

placement outside the home and the court has considered

alternatives to termination of parental rights." N.J.S.A. 30:4C-

15.1(a)(3). "'Reasonable efforts' will vary depending upon the

circumstances of the removal." N.J. Div. of Youth & Family Servs.

v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing N.J. Div.

of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 437 (App.

Div. 2001), certif. denied, 171 N.J. 44 (2002)), certif. denied,

192 N.J. 68 (2007). The Division’s efforts are "not measured by

their success." D.M.H., supra, 161 N.J. at 393. Rather, "[t]hese

efforts must be assessed against the standard of adequacy in light

of all the circumstances of a given case." Ibid.

The court's judgment on the third prong was not in error.

Allen was suffering from "a severe mental disorder,

schizoaffective[] and delusional disorder." He needed "intensive

psychiatric treatment." The doctor recommended against setting

up visits with the children because of his psychiatric

17 A-3684-15T1
"presentation." Allen lost contact with the Division. He was in

jail and not offering himself as a caretaker. Under these

circumstances, the court was correct to find that reasonable

services were provided. See N.J. Div. of Youth & Family Servs.

v. T.S., 417 N.J. Super. 228, 242-43 (App. Div. 2010) (rejecting

the father's challenge to the lack of services where "he had no

relationship with [the child] and could not offer the child

permanency," there was "no past parenting of, or relationship

with, the child," and the "lack of relationship between father and

daughter could not be ameliorated by visitation or services because

[he] remained incarcerated throughout the litigation"), certif.

denied, 205 N.J. 219 (2011).

Anna was provided with multiple psychological evaluations,

"a substance abuse evaluation, multiple referrals for substance

abuse treatment[,] . . . transportation assistance, supervised

visitation, therapeutic visitation, [and] unsupervised, overnight

visitation." She was provided with a parenting aide during

unsupervised visitation. There was no error by the trial court

in finding that the Division provided reasonable services to Anna

to assist her in overcoming the reasons for termination.

The record does not support Anna's allegation on appeal that

visitation was suspended improperly. Rather, the record supports

18 A-3684-15T1
that it was suspended because of her lack of cooperation with

services and loss of contact with the Division. Moreover, aside

from her unsupported allegation that the resource parent discussed

Anna's substance abuse problem with the children on one occasion,

there was no actual proof this occurred or that it undermined

Anna's relationship with the children.

D.

The fourth statutory prong requires the trial court to balance

the harms suffered from terminating parental rights against the

good that will result from terminating these rights. K.H.O.,

supra, 161 N.J. at 363; A.W., supra, 103 N.J. at 610-11. It does

not require a showing that "no harm" will result from the

termination of parental rights, but involves a comparison of the

child's relationship with the biological parent and the foster

parent. K.H.O., supra, 161 N.J. at 355. Thus, "[t]he question

to be addressed under [the fourth] prong is whether, after

considering and balancing the two relationships, the child will

suffer a greater harm from the termination of ties with her natural

parents than from the permanent disruption of her relationship

with her foster parents." Ibid.

Allen does not contest the court's finding that termination

of his parental rights "would not do more harm than good" because

19 A-3684-15T1
he was a "stranger" to the children, who did not know him. The

court found that "it would not be safe for him to have had

visitation with them or to have any contact with them" because of

his mental health issues. These findings were amply supported by

the testimony of the Division's expert who testified the children

had not mentioned their father, they did not interact with him,

and there would be no severe and enduring harm to the children if

his parental rights were terminated.

Similarly, the trial court's conclusion that termination of

Anna's parental rights would not do more harm than good was

supported by the testimony of Dr. Williams, who reached this

opinion based on Anna's lack of relationship with the children in

the last year before trial and their expression that they did not

want to live with her. The children are bonded with the resource

parent who also wants to adopt them. They do not recognize Anna

as their psychological parent.

Anna does not contest this finding either factually or through

expert testimony, protesting instead in this appeal that we simply

should direct the Division to stop suspending visitation between

foster children and their parents except after an evidentiary

hearing. We decline to address this issue, where there was no

objection by counsel when the orders suspending visitation were

20 A-3684-15T1
entered, and which was not raised before the trial court. See

State v. Witt, 223 N.J. 409, 419 (2015) ("[W]ith few exceptions,

'our appellate courts will decline to consider questions or issues

not properly presented to the trial court when an opportunity for

such a presentation is available.'" (quoting State v. Robinson,

200 N.J. 1, 20 (2009))).

Having satisfied all four prongs of N.J.S.A. 30:4C-15.1(a),

for both parents, there was no error by the trial judge in entering

the judgment terminating Allen's parental rights, and should the

children not be "Indian" children under the ICWA, in terminating

Anna's parental rights.

III.

We turn to address Anna's claim under the ICWA.7 The Supreme

Court and this court have discussed the ICWA's purpose and

application in cases involving termination of parental rights.

Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155

(1988) (hereinafter Child of Indian Heritage); N.J. Div. of Child

Prot. & Permanency v. K.T.D., 439 N.J. Super. 363 (App. Div. 2015).

In order to preserve the "continued existence and integrity of

7
The Division's motion to supplement the record on this point was
denied without prejudice to renewal before the panel deciding the
appeal. The Division included the supplemental materials in its
appendix. No party objecting, we sua sponte grant leave to
supplement and consider the materials.

21 A-3684-15T1
Indian tribes," Child of Indian Heritage, supra, 111 N.J. at 166,

"tribes have a right to intervene" in a court proceeding involving

termination of parental rights. K.T.D., supra, 439 N.J. Super.

at 369. To facilitate exercise of the right, the ICWA requires

notice. Ibid. (discussing 25 U.S.C.A. § 1912(a)). The obligation

to give notice is triggered when "a state court knows or has reason

to know that the child involved is an 'Indian child.'" Ibid.

A child is an "Indian child" when the child 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. § 1903(4). "Tribes have different

criteria" to determine who can be a member and have "exclusive

authority" over that determination. K.T.D., supra, 439 N.J. Super.

at 369-70.

Under the regulations in effect at the time of the

guardianship trial, the Division, as the "party seeking"

termination, was obligated, if known, to "directly notify the

Indian parents, Indian custodians, and the child's tribe by

certified mail with return receipt requested, of the pending

22 A-3684-15T1
proceedings and of their right of intervention." 25 C.F.R. §

23.11(a) (2014).8

"The BIA has issued guidelines to assist in interpreting the

ICWA." K.T.D., supra, 439 N.J. Super. at 371.9 Per the Guidelines,

"[i]f there is any reason to believe the child is an Indian child,

the agency and State court must treat the child as an Indian child,

unless and until it is determined that the child is not a member

or is not eligible for membership in an Indian tribe." Guidelines,

supra, 80 Fed. Reg. at 10,152. The court is to confirm that the

Division made "active efforts" to work with the tribes to verify

if the child may be eligible for membership. Ibid.

Anna initially asserted the ICWA did not apply to her.

However, her amended birth certificate provided:

Mixture of English, Negro, and Indian blood.
Indian can be traced from my grandmother,
Willie Ann Ellison, born in Lauderdale County,
Mississippi, in the 1860s. My mother, born

8
If the tribe cannot be identified, the Bureau of Indian Affairs
(BIA) must be contacted. See 25 U.S.C.A. § 1912(f).
9
See Guidelines for State Courts and Agencies in Indian Child
Custody Proceedings, 80 Fed. Reg. 10,146 (Feb. 25, 2015),
https://www.federalregister.gov/documents/2015/02/25/2015-
03925/guidelines-for-state-courts-and-agencies-in-indian-child-
custody-proceedings (Guidelines). These Guidelines were revised
in December 2016, which was after the guardianship trial.

23 A-3684-15T1
 same place, 1913, August Rush. Grandfather is
Mose Rush, born same place, about 1870.10

On March 8, 2016, the Division sent certified letters to the

BIA and the Department of the Interior to determine whether the

ICWA applied to this proceeding. On March 29, 2016, the BIA

responded that it did not maintain such information and advised

the Division to obtain it "from the tribe itself, if tribal

affiliation can be determined."

On April 8, 2016, the Division sent a letter to the eight

federally recognized Apache tribes,11 advising them of Anna's

amended birth certificate. Five tribes responded after the

guardianship trial was completed and indicated that Anna and the

children were not eligible for tribal membership. Neither the BIA

nor the tribes requested additional information.

Post-termination orders included in the supplemented record,

which were entered in proceedings conducted under docket numbers

FC-07-159-13, FC-07-160-15 and FC-07-162-13, determined that the

10
It is unclear when the Division acquired this amended birth
certificate; it is not included in the trial record or the record
as supplemented on appeal.
11
According to the Division, T.S., Matt's father, had suggested
at some point that Anna "might have Apache heritage." He claimed
to have heritage as a Blackfoot Indian, but the Division contacted
the Blackfoot tribes and did not receive any response indicating
that T.S. or his relatives were enrolled members of any tribe.

24 A-3684-15T1
ICWA did not apply to Anna's children. Anna, however, was not a

party to those proceedings.12

There was no objection at trial by the Law Guardian for the

children or Anna's counsel to the content of the notices provided,

the timing of the trial, or the tribes that were contacted. The

tribes have not asked to intervene, to vacate the judgment or for

additional information.

Anna suggests the Division had an obligation affirmatively

to contact other tribes based on census data from 1880 and 1910

involving two of the relatives identified in the amended birth

certificate. She contends the notices were not consistent with

the applicable regulations, see 25 C.F.R. § 23.111 (2016),13 and

that the court erred in proceeding with the guardianship trial

prior to the tribes responding.

These issues are raised by Anna for the first time on appeal.

Although we generally decline to address issues that were not

raised before the trial court, see Witt, supra, 223 N.J. at 419,

we do so here because of the unique issues presented by the ICWA.

12
None of the parties provided a record of the proceedings.
13
25 C.F.R. § 23.11 was amended on June 14, 2016 to include
reference to 25 C.F.R. § 23.111, which was added as part of the
amendments and lists everything that the Division must now include
in the notice. 81 Fed. Reg. 38,778 (June 14, 2016).

25 A-3684-15T1
 The Division concedes that the notice requirements of the

ICWA were triggered by a copy of Anna's "amended birth

certificate," but "asserts that it made the appropriate efforts

upon determining that [Anna] might have Native American ancestry

and that the proceeding below was not adversely affected." We are

constrained, however, to remand Anna's case to the trial court for

compliance with the ICWA regulations.

The Division's notices to the BIA and the Apache tribes did

not include all the information required by the regulations.

Specifically, the notices did not include the children's

birthplace, Anna's former addresses, aliases or birthplace, or any

information about the fathers. 25 C.F.R. § 23.11(d)(1), (3)

(2014). The amended birth certificate gave limited information

about ancestors. 25 C.F.R. § 23.11(d)(3) (2014). A copy of the

guardianship complaint was not included. 25 C.F.R. § 23.11(d)(4)

(2014). The notice did not say the case involved termination of

parental rights, the phone number of the court was omitted, and

the notice did not advise the tribes they could ask to transfer

jurisdiction. See 25 C.F.R. § 23.11(e) (2014). Although the

regulation required the notice to provide only such information

as is known, the Division did not say that all or some of these

items were unknown.

26 A-3684-15T1
 We recognize that none of the responding tribes have asked

for additional information, nor has Anna or the Law Guardian

presented any new information about the children's alleged Indian

heritage. However, we cannot say the additional information

required by the regulation might not have prompted further inquiry.

The Division is to send new notices consistent with the

applicable regulation. See 25 C.F.R. § 23.111 (2016).

The Division also should make efforts to identify if other

tribes should be notified, and then to provide them with notices

compliant with the regulation. The post-judgment orders entered

under the FC dockets are not before us on this appeal.

Nevertheless, as a party to this appeal, the Division is bound by

this opinion in any further proceedings in this matter. See,

e.g., Eherenstorfer v. Div. of Pub. Welfare, 196 N.J. Super. 405,

411 (App. Div. 1984).

Seeing no reason to deviate from the course we took in K.T.D.,

supra, 439 N.J. Super. at 373, we direct the trial court to ensure

that conforming notices are sent forthwith. The guardianship

judgments shall be deemed affirmed after service of conforming

notice if: (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 the children are Indian children

27 A-3684-15T1
defined by the ICWA; or (3) the court determines, after the tribes

have been given an opportunity to intervene, that the ICWA does

not apply. If the children or any one of them is determined to

be an Indian child under the ICWA, the judgment terminating Anna's

parental rights shall be vacated and further proceedings

consistent with the ICWA should be held.14 See ibid. These

proceedings shall be expedited.

While seemingly a technicality, the ICWA has significant

implications. Once a child is determined to be an Indian child,

proof beyond a reasonable doubt is required. Id. at 370 (citing

25 U.S.C.A. § 1912(f)). Moreover, under 25 U.S.C.A. § 1914, if

an Indian child is the subject of a termination of parental rights

proceeding, the child's Indian parent or the tribe itself, "may

petition any court of competent jurisdiction to invalidate such

action upon a showing that such action violated any provision of

sections [25 U.S.C.A. §§ 1911, 1912 or 1913] of" the ICWA. These

proceedings shall be expedited.

Affirmed in part; remanded in part for further proceedings

consistent with this opinion. We do not retain jurisdiction.

14
Allen did not appeal on this issue. However, to the extent a
judgment of guardianship requires termination or surrender of both
parents' rights, his are implicated.

28 A-3684-15T1
29 A-3684-15T1