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In re Adoption of A Child of Indian Heritage

Decided: July 14, 1987.


On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County.

King, Havey and Muir, Jr. The opinion of the court was delivered by King, P.J.A.D.


[219 NJSuper Page 30] This is an appeal from a denial of an application to reopen a judgment of adoption and termination of parental rights on the grounds of fraud and misrepresentation under R. 4:50-1(c) and

denial of an application for intervention. R. 4:33. This case requires us to examine the Indian Child Welfare Act of 1978 (ICWA or the Act), 25 U.S.C.A. §§ 1901-1963. This comprehensive Act of Congress controls custody, adoption, and termination of parental rights of Indian children. Congressional authority over these proceedings was asserted pursuant to Article I, § 8, Clause 3 of the federal Constitution giving Congress plenary authority over Indian affairs: "The Congress shall have Power * * * to regulate Commerce * * * with Indian Tribes." See 25 U.S.C.A. § 1901.

In adopting the Act, Congress specifically found "that there is no resource more vital to the continued existence and integrity of Indian tribes than their children," 25 U.S.C.A. § 1901(3), and "that an alarmingly high percentage of Indian families are broken up by removal, often unwarranted, of their children by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." 25 U.S.C.A. § 1901(4). The Congressional findings concluded that state courts and agencies "have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C.A. § 1901(5). The Act has been held constitutional under the Indian Powers Clause, the Tenth Amendment and the Due Process and Equal Protection Clauses of the Fifth Amendment. Matter of Guardianship of D.L.L. & C.L.L., 291 N.W. 2d 278 (S.D.1980).

Congressional policy was declared in 25 U.S.C.A. § 1902

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

The legislative history of the Act reveals

Surveys of States with large Indian populations conducted by the Association on American Indian Affairs (AAIA) in 1969 and again in 1974 indicate that

approximately 25-35 percent of all Indian children are separated from their families and placed in foster homes, adoptive homes, or institutions. In some States the problem is getting worse: in Minnesota, one in every eight Indian children under 18 years of age is living in an adoptive home; and, in 1971-72, nearly one in every four Indian children under 1 year of age was adopted. [H.R.Rep. No. 1386, 9th Cong., 2nd sess. 9, reprinted in 1978 U.S. Code Cong. & Ad. News 7530, 7531 (House Report)].

The House Report also indicates that voluntary adoptions as well as involuntary termination of parental rights contribute to the problem. Id. at p. 11, 1978 Code Cong. & Adm. News at 7533. One commentator has noted: "Another economic factor accelerating the removal of Indian children has been growth in the private adoption market. In this era of birth control and abortions there has been a decreasing supply of healthy white children available for adoption. As a result, many parents seeking to adopt have sought Indian children instead." Barsh, "The Indian Child Welfare Act of 1978: A critical Analysis", 31 Hastings L. Rev. 1287, 1299 (1980).

Among other safeguards, the Act provides for appointment of compensated counsel for Indian parents and custodians, 25 U.S.C.A. § 1912(b), and remedial services and rehabilitation programs "designed to prevent the breakup of the Indian family." 25 U.S.C.A. § 1912(d). Proof beyond a reasonable doubt "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" is required to terminate parental rights. 25 U.S.C.A. § 1912(f). Strong placement preferences in favor of the child's extended family, other members of the child's tribe, or other Indian families are mandated. 25 U.S.C.A. § 1915(a). Against this background we examine this appeal from a refusal to reopen this judgment of adoption and termination of parental rights. The basic question on this appeal is whether the Family Part judge clearly abused his discretion in refusing to reopen the judgment of adoption and permit relitigation of the issue.

This is the procedural background. In early September 1984 Steven Sklar, former attorney for Terrence*fn1 and Melissa filed a complaint for the adoption of Baby Boy Larry, born on August 17, 1984, in the Family Part of the Chancery Division in Middlesex County. They gained custody of Larry when he was eight days old. On September 11 Judge Longhi entered an order granting Terrence and Melissa temporary custody of Larry, appointing Better Living Services to investigate and report on the proposed adoption pursuant to N.J.S.A. 9:3-48, setting a preliminary hearing date for November 16, and directing that the notice of the hearing be served on the unwed natural mother, Jane Doe,*fn2 by regular and certified mail. The natural mother acknowledged receipt of the notice of hearing and reaffirmed her consent to adoption on October 1, 1984.

Sklar filed an amended complaint for adoption on October 15. The amended complaint for adoption stated that the natural mother claimed she did not know the identity of the natural father but that one Kenneth Wright had alleged that he was the natural father. The amended complaint recited that Wright had orally consented to the adoption but had not returned any consent forms.

On November 16 the judge entered an order terminating the parental rights of Doe, on the ground of consent, and of Wright, on the ground of relinquishment of his rights, and found the prospective parents fit, scheduled a final adoption hearing, and appointed Better Living Services as "next friend." On May 24, 1985 a final judgment of adoption was entered.

On May 23, 1986 Wright moved to set aside the final judgment of adoption, to be permitted discovery, to have the case transferred to the Rosebud Sioux Tribe, and to have counsel appointed under 25 U.S.C.A. § 1912(b). The judge denied the bulk of Wright's requests but allowed him limited access to the

adoption file. On September 24 Wright renewed his motion to vacate the final judgment of adoption. On October 17 a motion to intervene and to vacate the adoption was filed on behalf of Wright's two sisters, his brother, father, uncle and aunt. After argument the judge denied both applications. Wright and the proposed intervenors appealed by notice of December 31. On January 13, 1987 we ordered the appeal expedited.

This is the factual background established by the affidavits and documents presented on the motions. Baby Larry was born on August 17, 1984 in Winner, South Dakota, a town adjacent to and off of the Rosebud Sioux Reservation. His mother, Jane Doe, is an enrolled member of the Rosebud Sioux tribe. She became aware of her pregnancy in December 1983, the same month Wright moved into her residence in Winner where she and her son had been living and receiving ADC payments. She had one child by Wright previously. In her affidavit Doe said that Wright denied being the father of Baby Larry and gave her money to have an abortion. Jane Doe's mother also filed an affidavit which said that Wright told her that he was not Baby Larry's father.

In April 1984 Jane Doe contacted attorneys in New York about placing her unborn child for adoption. She said that Wright knew that she intended to place the child. When Jane Doe gave birth to Baby Larry at the Baptist Memorial Hospital in Winner, Wright went to Mission, South Dakota, and never came to see the child. On August 25, 1984, seven days after his birth, Baby Larry was turned over to his present New Jersey parents, respondents Terrence and Melissa. At that time Jane Doe signed a consent form for the adoption of the child. In the form she said that she did not know the identity of the natural father. Nothing in the executed consent forms and affidavit suggests that Baby Larry was an Indian child.

After the initial complaint was filed the judge set November 16, 1984 as the date for a preliminary hearing and termination of parental rights. R. 5:10-5. Notice of the hearing was sent

to the natural mother; on October 1 she returned a copy acknowledging the notice of hearing and reaffirming her consent to adoption. Sometime before the preliminary hearing Sklar received a phone call from Wright whom he said claimed to be Baby Larry's natural father. Wright said to Sklar that he would consent to the adoption. The present attorney for the adoptive parents produced a copy of a letter that Sklar attempted to send Wright on September 18, 1984. The letter enclosed a consent to adoption, a notice of hearing, and $1 to pay for the notarization. The letter was sent certified in care of Doe, the mother; another copy was sent to Wright's sister's address in Mission. Wright filed an affidavit with his motion in which he said that he never received a notice of hearing but that he did receive a consent to adoption in September 1984 which he refused to sign. Nobody can produce any return receipts for these letters.

As a result of talking to Wright, Sklar filed an amended complaint which stated that Wright had claimed to be the natural father and that he had orally agreed to consent to the adoption but had failed to return a written consent. The amended complaint also alleged Wright's neglect and forsaking of parental obligations. Sklar's letter to the ...

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