RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-1061-17T3

 A-1062-17T3

NEW JERSEY DIVISION OF 

CHILD PROTECTION AND 

PERMANENCY,

Plaintiff-Respondent,

v.

A.B.G.,

Defendant-Appellant,

and 

A.K.H. and T.S.,

Defendants.

__________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF A.H., 

E.L.G. and M.N.G., 

Minors.

__________________________

Submitted December 11, 2018 – Decided 

Before Judges Hoffman, Suter and Firko.

NOT FOR PUBLICATION WITHOUT THE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.

January 15, 2019
2

A-1061-17T3

 

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FG-07-0244-15.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Charles S. Rosenberg, Designated Counsel, 

on the brief; Patricia A. Nichols, Assistant Deputy 

Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jason W. Rockwell, Assistant Attorney 

General, of counsel; Diane L. Scott, Deputy Attorney 

General, and Lisa J. Rusciano, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minors (Karen A. Lodeserto, Designated 

Counsel, on the brief). 

PER CURIAM

Defendant A.B.G. (Anna) appeals the October 13, 2017 order of the 

Family Part that found the Division of Child Protection and Permanency 

(Division) complied with the notice requirements of the Indian Child Welfare 

Act (ICWA), 25 U.S.C. §§ 1901 to 1963, and based on evidence presented at the 

remand proceedings, that Anna's children are not "Indian children" within the 

meaning of the ICWA. Anna contends the court's order was erroneous because 

the Division did not use active efforts or due diligence to verify, through relevant 

Indian tribes, the children's Native American heritage nor allow the tribes a 
3

A-1061-17T3

 

sufficient time to respond. We are satisfied the Family Part judge did not err in 

its order that the ICWA does not apply to these children or in terminating the 

litigation.

I.

Anna is the mother of three children: A.H. (Abby) born in 2005, E.L.G. 

(Evan) born in 2006, and M.N.G. (Matt) born in 2007. A.K.H. (Allen) is Abby 

and Evan's father. Matt's father is T.S. (Tim). 

On April 26, 2016, Anna, Allen and Tim's parental rights were terminated 

by a judgment of guardianship entered under N.J.S.A. 30:4C-15.1(a) following 

a trial. Anna and Allen appealed the guardianship judgment. In July 2017, we 

issued an unpublished opinion that affirmed the judgment in part and remanded 

it in part for further proceedings consistent with our opinion. See N.J. Div. of 

Child Prot. & Permanency v. A.K.H., Nos. A-3684-15 and A-3711-15 (App. 

Div. July 19, 2017). The case is now before us following remand proceedings

conducted by the Family Part from which Anna appeals.1

 

1

 Allen has not appealed the Family Part's October 13, 2017 order entered after 

remand.
4

A-1061-17T3

 

A.

In our July 2017 opinion, we agreed with the Family Part that the statutory 

requirements to terminate Anna's parental rights had been satisfied by clear and 

convincing evidence. In concluding that Anna's parental relationship with her 

children endangered their safety, health or development, N.J.S.A. 30:4C15.1(a)(1), we stated: 

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. [This] . . . 

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. 

[A.K.H., (slip op. at 15).]

Our prior opinion concluded Anna was unwilling or unable to eliminate the 

harms facing her children. Id. at 20; See N.J.S.A. 30:4C-15.1(a)(2). We stated:

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 [the Division's expert's]

conclusion that she was unable to parent the children 
5

A-1061-17T3

 

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 was "hampered" by the suspension of her 

visitation with the children.

[A.K.H., (slip op. at 16-17).]

We were satisfied as well that the Division had made reasonable efforts to 

provide services to the parents. Id. at 17-18; See N.J.S.A. 30:4C-15.1(a)(3).

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.

. . . .

The record does not support Anna's allegation on appeal 

that visitation was suspended improperly. Rather, the 

record supports that it was suspended because of her 

lack of cooperation with services and loss of contact 

with the Division. 

[A.K.H., (slip op. at 18-19).]

We agreed with the trial judge that termination of parental rights would not do 

more harm than good. Id. at 19-21; See N.J.S.A. 30:4C-15.1(a).

[T]he trial court's conclusion that termination of Anna's 

parental rights would not do more harm than good was 

supported by the testimony of [the Division's expert],
6

A-1061-17T3

 

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. 

[A.K.H., (slip op. at 20).]

We concluded that the parental rights of Anna and Allen should be terminated 

provided that the children are not "Indian children" under the ICWA. Id. at 21. 

B.

When Anna appealed the guardianship judgment in 2017, she alleged for 

the first time that the judgment violated the ICWA. Our July 2017 opinion 

explained:

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 same place, 1913, 

August Rush. Grandfather is Mose Rush, 

born same place, about 1870. 

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

the BIA[2]and the Department of the Interior to 

determine whether the ICWA applied to this 

 

2

 The reference is to the Federal Bureau of Indian Affairs (BIA).
7

A-1061-17T3

 

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, 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 ICWA did not 

apply to Anna's children. Anna, however, was not a 

party to those proceedings. 

[Id. at 23-25.]

Anna claimed in the 2017 appeal that the "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." Id. at 

25. We concluded:

[t]he 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 
8

A-1061-17T3

 

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.

[Id. at 26.]

We could not say that the "additional information required by the regulation 

might not have prompted further inquiry" even though none of the responding 

tribes asked for "additional information" and there was no "new information" 

about the children's Indian heritage. Id. at 27. 

We directed that "[t]he Division is to send new notices consistent with the 

applicable regulation." Ibid. (citing 25 C.F.R. § 23.111 (2016)). Further, "the 

Division . . . should make efforts to identify if other tribes should be notified, 

and then to provide them with notices compliant with the regulation." Ibid. The 

notices were to be sent "forthwith." Ibid. We made clear the limited nature of 

our remand.3

 

3

 In a footnote, we noted that Allen did not appeal the ICWA issue but "to the 

extent a judgment of guardianship requires termination or surrender of both 

parents' rights, his are implicated." Id. at 28, n. 14.
9

A-1061-17T3

 

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 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 . . . . These proceedings shall be expedited.

[Id. at 27-28.]

C.

The remand proceedings spanned five separate hearing dates in 2018. 

Anna testified about her address, telephone number, birth date, birthplace, 

aliases, married names, her parents' names, dates of birth, birthplaces, addresses, 

phone numbers, her family history, information listed on her amended birth 

certificate, and other relevant information pertaining to her heritage. She said 

she had additional "papers [at] home" regarding her relatives and "a document 

. . . saying that they found [her] Tribe." Anna testified her Indian ancestors were 

on her father's side, but she did not have with her the names and phone numbers 

of those relatives who may have additional information. Anna's counsel advised 

there were two "federally recognized Tribes in Mississippi" that had not been
10 A-1061-17T3

 

notified by the Division. The court ordered Anna to provide all of the

information that she referenced to the Division. 

Anna's counsel advised the court that Tim also may have Indian heritage. 

Anna provided his aunt's name and phone number, because she was "the only 

person that [would] know all of the background." The court denied Anna's 

requests to stay the remand proceedings or to invalidate the guardianship 

judgment under 25 U.S.C. § 1914. 

The Division drafted a new notice to be sent to various tribes; Anna's 

counsel requested additional time to review the notice. The court ordered Anna

to supply the information she had referenced during her testimony and if she did 

not, to bar her from relying on information she had not supplied. The trial court 

clarified that the burden to comply with the ICWA remained with the Division. 

Anna's counsel sent written objections to the notices and provided additional 

information regarding Anna's and Tim's ancestry. 

The Division sent ICWA notices to the BIA and twenty-three tribes 

between August 31 and September 5, 2017. These notices said the Division was 

"pursuing a termination of parental rights cause of action . . . in a matter of 

alleged Indian affiliation," and that pursuant to federal law, the Tribe had a right 

to intervene if it were determined that the children were "Indian children" under 
11 A-1061-17T3

 

the ICWA. The notice included a copy of the protective service and 

guardianship complaints that contained the name and phone number of the court. 

The judge again denied motions by Anna's counsel to invalidate the

guardianship judgment under 25 U.S.C. § 1914, or to reverse it under Rule 4:50-

1 and for psychiatric and bonding evaluations. It denied Anna's counsel's

request for access to the Division's case file that he intended to review "in order 

to support [his] previous motion" for reversal of the guardianship judgment. 

On October 13, 2017, the Division advised the court that it sent the notices 

to the BIA and twenty-three Indian Tribes. Most tribes responded that the 

children were not members of their tribe and they would not be intervening. A 

few other tribes did not respond, but the Division supplied the court with copies 

of the certified mailing and receipt information to show those tribes had received 

the letter. Anna's counsel objected to the form of the notice, its contents, and 

the Division's request to the court to find that it had complied with the ICWA. 

The Family Part judge rejected these arguments finding:

I'm satisfied based on representations that appropriate 

notices were mailed to these Tribes. And the Tribes 

have had their opportunity to intercede or advise or seek 

additional time. 

. . . . 
12 A-1061-17T3

 

It's clear to me the record's reflected all the evidence, 

returned receipts and/or responses of the Tribes 

themselves, satisfy me. As a matter of fact, that the 

Tribes have been noticed. 

. . . .

And I do find based on the evidence that is before me 

that the children and parents are not members or 

eligible to be members of a Native American Indian 

Tribe. And therefore, ICWA does not apply in this 

case.

D.

On appeal, defendant raises the following issues: 

I. THE COURT ERRONEOUSLY DETERMINED 

THAT ABBY, EVAN, AND MATT WERE NOT 

INDIAN CHILDREN AS DEFINED BY ICWA. 

A. DCPP Failed to Use Active Efforts To 

Work With The Tribes To Verify If The 

Child May Be Eligible For Membership. 

B. DCPP Failed to Use Due Diligence To 

Work With The Tribes To Verify If The 

Child May Be Eligible For Membership. 

C. The Court Did Not Provide Ample 

Opportunity For BIA and the Indian Tribes 

to Respond to the Notices They Received 

and DCPP Did Not Take The Appropriate 

Steps To Follow Up On Tribes That Did 

Not Respond. 
13 A-1061-17T3

 

II. THE COURT LACKED SUFFICIENT EVIDENCE 

TO REJECT [ANNA'S] MOTION TO INVALIDATE 

THE TERMINATION OF HER PARENTAL RIGHTS 

PURSUANT TO 25 U.S.C. §1914 OR REVERSE THE 

TERMINATION OF HER PARENTAL RIGHTS 

PURSUANT TO Rule 4:50-1. 

A. The Court Incorrectly Rejected Anna’s 

Motion to Reverse the Termination of Her 

Parental Rights Pursuant to Rule 4:50-1. 

B. The Court Incorrectly Rejected Anna’s 

Motion to Invalidate the Termination of 

Her Parental Rights Pursuant to 25 U.S.C.

§1914. 

We do not find merit in these arguments.

II.

A.

We note our general deference to Family Part judges' fact-finding because 

of their "special jurisdiction and expertise in family matters." Cesare v. Cesare, 

154 N.J. 394, 413 (1998). See also N.J. Div. of Youth & Family Servs. v. R.G., 

217 N.J. 527, 553 (2014). We will uphold fact-finding that is supported by 

sufficient, substantial and credible evidence in the record. See N.J. Div. of 

Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010); N.J. Div. of Youth & 

Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, we will not hesitate 

to set aside a ruling that is "so wide of the mark that a mistake must have been 
14 A-1061-17T3

 

made." M.M., 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. 

Am., Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). The court's interpretation 

of the law or its legal conclusions are reviewed de novo. See State in Interest 

of A.B., 219 N.J. 542, 554-55 (2014). 

B.

In our prior opinion, we discussed the ICWA as it applies to cases 

involving termination of parental rights. 

In order to preserve the "continued existence and 

integrity of Indian tribes," [Matter of the Adoption of a 

Child of Indian Heritage, 111 N.J. 155, 166 (1988)], 

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

involving termination of parental rights. [N.J. Div. of 

Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 

363, 369 (App. Div. 2015)]. To facilitate exercise of 

the right, the ICWA requires notice. Ibid. (discussing 

25 U.S.C. § 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. § 

1903(4). "Tribes have different criteria" to determine 

who can be a member and have "exclusive authority" 

over that determination. K.T.D., 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" 
15 A-1061-17T3

 

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 proceedings and of their right of 

intervention." 25 C.F.R. § 23.11(a) (2014).

[A.K.H., (slip op. at 21-23).]

We noted that 25 C.F.R. § 23.11 was revised in December 2016. As revised, it 

provides "[n]otice must be sent by registered or certified mail with return receipt 

requested." 25 C.F.R. § 23.111(c) (2016). Notice must be in "clear and 

understandable language" and include:

(1) The child's name, birthdate, and birthplace; 

(2) All names known (including maiden, married, and 

former names or aliases) of the parents, the parents' 

birthdates and birthplaces, and Tribal enrollment 

numbers if known; 

(3) If known, the names, birthdates, birthplaces, and 

Tribal enrollment information of other direct lineal 

ancestors of the child, such as grandparents; 

(4) The name of each Indian Tribe in which the child is 

a member (or may be eligible for membership if a 

biological parent is a member); 

(5) A copy of the petition, complaint, or other document 

by which the child-custody proceeding was initiated 

and, if a hearing has been scheduled, information on the 

date, time, and location of the hearing; 

(6) Statements setting out:
16 A-1061-17T3

 

(i) The name of the petitioner and the name and 

address of petitioner's attorney;

(ii) The right of any parent or Indian custodian of 

the child, if not already a party to the childcustody proceeding, to intervene in the 

proceedings.

(iii) The Indian Tribe's right to intervene at any 

time in a State-court proceeding for the fostercare placement of or termination of parental 

rights to an Indian child. 

(iv) That, if the child's parent or Indian custodian 

is unable to afford counsel based on a 

determination of indigency by the court, the 

parent or Indian custodian has the right to courtappointed counsel. 

(v) The right to be granted, upon request, up to 

[twenty] additional days to prepare for the childcustody proceedings. 

(vi) The right of the parent or Indian custodian 

and the Indian child's Tribe to petition the court 

for transfer of the foster-care-placement or 

termination-of-parental-rights proceeding to 

Tribal court as provided by 25 U.S.C. § 1911 and 

§ 23.115.

(vii) The mailing addresses and telephone 

numbers of the court and information related to 

all parties to the child-custody proceeding and 

individuals notified under this section. 

(vii) The potential legal consequences of the 

child-custody proceedings on the future parental 
17 A-1061-17T3

 

and custodial rights of the parent or Indian 

custodian. 

(ix) That all parties notified must keep 

confidential the information contained in the 

notice and the notice should not be handled by 

anyone not needing the information to exercise 

rights under ICWA. 

[25 C.F.R. § 23.111(d) (2016).]

"If the identity or location of the child's parents, the child's Indian 

custodian, or the Tribes in which the Indian child is a member or eligible for 

membership cannot be ascertained, but there is 'reason to know'

4

the child is an 

 

4

"Reason to know" is defined in 25 C.F.R. 23.107(c). It states:

(c) A court, upon conducting the inquiry required in 

paragraph (a) of this section, has reason to know that a 

child involved in an emergency or child-custody 

proceeding is an Indian child if:

(1) Any participant in the proceeding, officer of the 

court involved in the proceeding, Indian Tribe, Indian 

organization, or agency informs the court that the child 

is an Indian child;

(2) Any participant in the proceeding, officer of the 

court involved in the proceeding, Indian Tribe, Indian 

organization, or agency informs the court that it has 

discovered information indicating that the child is an 

Indian child;

(3) The child who is the subject of the proceeding gives 

the court reason to know he or she is an Indian child;
18 A-1061-17T3

 

Indian child, notice of the child-custody proceeding must be sent to the [BIA]." 

25 C.F.R. § 23.111 (2016). 

"The BIA has issued Guidelines to assist in interpreting the ICWA." 

K.T.D., 439 N.J. Super. at 371.5 As much information as is known regarding 

the child's direct lineal ancestors should be provided. Id. at 373 (citing 25 C.F.R. 

§ 23.11(b) (2016)). State agencies and courts "should ask the parent and, 

potentially, extended family what Tribe or Tribal ancestral group the parent may 

be affiliated with." Guidelines, Section B.4. 

 

(4) The court is informed that the domicile or residence 

of the child, the child's parent, or the child's Indian 

custodian is on a reservation or in an Alaska Native 

village;

(5) The court is informed that the child is or has been a 

ward of a Tribal court; or

(6) The court is informed that either parent or the child 

possesses an identification card indicating membership 

in an Indian Tribe.

5 See Guidelines for Implementing The Indian Child Welfare Act, 81 Fed. Reg.

96,476 (Dec. 30, 2016), 

https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf

(Guidelines). 
19 A-1061-17T3

 

C.

Defendant raises a host of issues about the efforts made by the Division 

on remand to identify if the children are subject to the ICWA. We are satisfied 

the notices conformed with our limited remand and that the Division's efforts 

satisfied our direction. 

We agree with the Family Part judge that the notices provided the 

information required by the regulations. The notices were sent by certified mail 

with return receipt requested. 25 C.F.R. § 23.111(c) (2016). They were written 

"in clear and understandable language," and explained that the Division was 

pursuing a termination of parental rights case. The notices included: the 

children's names, birthdates, and birthplaces; all names known (including 

maiden, married, and former names or aliases) of the parents, the parents' 

birthdates and birthplaces, and known current and former addresses; all known 

names (including maiden, married, and former names or aliases), birthdates, and 

birthplaces of the children's direct lineal ancestors; and the names of Indian 

Tribes in which the children were potential members. 25 C.F.R. § 23.111(d)(1)

to (4) (2016). The notices also included: contact information for the trial court, 

the Division, parent's counsel, and children's counsel; and statements advising 

the Tribe of its rights to intervene, to have court-appointed counsel, to request 
20 A-1061-17T3

 

an additional twenty days to prepare for the proceedings, and to transfer the 

matter to Tribal court. 25 C.F.R. § 23.111(d)(6)(i) to (vi) (2016). Copies of the 

protective services and guardianship complaints, and the name and phone 

number of the court that had jurisdiction also were included. 25 C.F.R. § 

23.111(d)(5) (2016). 

The Division was not required to provide a complete family history as 

long as it provided all "known" information. 25 C.F.R. § 23.111 (2016). The 

Division was not "required" to "research any vital statistics records to obtain the 

birth and death dates/locations or any of the other information about the 

[children's] ancestors." Anna's reliance on N.J. Div. of Child Prot. and 

Permanency v. K.T.D., No. A-4205-14 (App. Div. Jan. 19, 2016) (K.T.D. II) is 

misplaced. Not only is our opinion in K.T.D. II unpublished, but in that case 

the Division had information the child might be eligible to be a member of one 

of three Cherokee Tribes recognized by the federal government, as well as 

another unspecified Tribe, but did not follow up on this. K.T.D. II, slip op. at 

2-3. 

Here, unlike K.T.D., the Division utilized all information readily 

available. The Division did not fail to obtain relevant information or withhold 

known information from the Tribes or BIA. Also, 25 U.S.C. § 23.111 does not 
21 A-1061-17T3

 

require DCPP to obtain death dates. Anna's counsel simply speculated that

contact with Lauderdale County Chancery Court's division of vital records might 

have yielded additional information. 

We also agree that the Division satisfied the regulatory requirement to use 

due diligence:

to identify and work with all of the Tribes of which 

there is reason to know the child may be a member (or 

eligible for membership), to verify whether the child is 

in fact a member (or a biological parent is a member 

and the child is eligible for membership).

[25 C.F.R. § 23.107 (2016).]

The Division used the information obtained from Anna's birth certificate, incourt testimony and her counsel regarding Anna and Tim's ancestry and an outof-court discussion with Allen to identify the tribes to be contacted and to draft 

the notices. The tribes were able to determine, based on the information 

provided, that the children were not members. Some tribes invited additional 

information if it were known but Anna does not suggest there was additional 

information about Native American relatives that was not supplied to the tribes 

already. Thus, we agree with the Family Part judge that relevant tribes were 

notified and that the responses were sufficient to find these children were not 

"Indian children" within the meaning of the ICWA.
22 A-1061-17T3

 

We are satisfied that Anna had the opportunity to review the letters. They 

were drafted and provided on more than one occasion for review. Counsel had

the ability to comment extensively. The record also showed the court complied 

with ICWA time requirements for notice. The notices were sent from August 

31 to September 5, 2017. The court's decision was not made until October 13, 

2017.

Defendant contends the letters should have been uniform with all the tribal 

information on one sheet. There is no such requirement in the regulations.

III.

We decline to address other issues raised by Anna that were beyond the 

scope of our remand. For instance, Anna filed motions before the Family Part 

judge to reopen the judgment of guardianship under Rule 4:50-1, although she 

acknowledged having no new information. Anna had hoped to "discover" 

information post judgment, through psychological or bonding evaluations and 

by reviewing the Division's records, even though our opinion affirmed the 

termination of parental rights if the children were not "Indian children" under 

the ICWA. Our remand was limited to the ICWA issue as the Family Part judge 

correctly held.
23 A-1061-17T3

 

This case is not like In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002) 

that is relied on by Anna. In J.N.H., the Court was willing to consider vacating 

a judgment that terminated parental rights based on a "unique" "confluence of 

events," which included evidence of rehabilitation by the parent whose rights 

were terminated and the child who was not doing well in foster placement.

J.N.H., 172 N.J. at 479. In the present case, there was no evidence of any 

changed circumstances or problems with the children's placement. Anna entered 

a rehabilitation program but did not show completion of the program. There 

was no evidence the children's placement was problematic in any way. The 

caseworker testified the children were doing well in placement.

Anna argues the trial court violated the ICWA by not proceeding as if the 

children were Indian children. Anna contends that termination of her parental 

rights should be invalidated. We agree with the Family Part that our remand 

was limited and clear. We already concluded that if the children were not Indian 

children under the ICWA, then the termination of Anna's parental rights (and 

the father's as well) was affirmed. The issues raised now to challenge the 

guardianship were decided by the underlying appeal prior to remand. The trial 

court had no ability to invalidate the guardianship judgment once it resolved the 

ICWA issue.
24 A-1061-17T3

 

After carefully reviewing the record and the applicable legal principles, 

we conclude that defendant's further arguments are without sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.