NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.B.G.

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APPROVAL OF THE APPELLATE DIVISION
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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,

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 January 15, 2019

Before Judges Hoffman, Suter and Firko.
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

A-1061-17T3
2
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.

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.
A-1061-17T3
3
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. 30:4C-

15.1(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

A-1061-17T3
4
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],

A-1061-17T3
5
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.

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).
A-1061-17T3
6
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

A-1061-17T3
7
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.
A-1061-17T3
8
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.]

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

A-1061-17T3
9
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

A-1061-17T3
10
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.

....

A-1061-17T3
11
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.

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.

A-1061-17T3
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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.

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

A-1061-17T3
13
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).

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"

A-1061-17T3
14
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:

A-1061-17T3
15
(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 child-
custody proceeding, to intervene in the
proceedings.

(iii) The Indian Tribe's right to intervene at any
time in a State-court proceeding for the foster-
care 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 court-
appointed counsel.

(v) The right to be granted, upon request, up to
[twenty] additional days to prepare for the child-
custody 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

A-1061-17T3
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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;

A-1061-17T3
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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).

A-1061-17T3
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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

A-1061-17T3
19
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

A-1061-17T3
20
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, in-

court testimony and her counsel regarding Anna and Tim's ancestry and an out-

of-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.

A-1061-17T3
21
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.

A-1061-17T3
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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.

A-1061-17T3
23
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.

A-1061-17T3
24

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