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In re Adoption of A Child of Indian Heritage

Decided: July 7, 1988.


On certification to the Superior Court, Appellate Division, whose opinion is reported at For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.


[111 NJ Page 160] In this appeal, we are asked to vacate a three-year old private placement adoption of an infant, alleged to be an American Indian, on the grounds that the adoption proceedings failed to conform to the requirements of state law and the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-63 (1982) ("ICWA" or "Act"), which governs the adoption of Indian children. In

addressing this request for relief, we must treat a number of threshold jurisdictional issues relating to the applicability of the Indian Child Welfare Act to the child as well as to the petitioners, who claim respectively parental and familial rights. We also must consider the legal sufficiency of the adoption proceedings under both the federal Act and state law. Under the circumstances surrounding this case, we conclude that the adoption should not be disturbed. We do so because the trial court's decision in refusing to vacate the judgment of adoption did not offend the requirements of either the state adoption laws or the Indian Child Welfare Act, and did not constitute an abuse of discretion.


The child who is the subject of these proceedings has been referred to as Baby Larry. Petitioners, Kenneth Wright Jr., who claims to be the father of the child, and members of his extended family, moved to vacate the adoption on the grounds that they were not provided notice of the adoption proceedings and that the adoption of this child was not in accord with the requirements of the ICWA. Their claims necessitate a detailed and comprehensive recapitulation of the procedural history and facts in the case.

Wright and the child's mother*fn1 are both registered members of the Rosebud Sioux Indian Tribe. Neither has lived, at any time relevant to this case, on the tribal reservation, residing instead in towns that border the reservation. Wright had earlier fathered the mother's first child (not Baby Larry), and for much of the time period relevant to this appeal resided with her and their first child.

In December of 1983, Baby Larry's mother discovered she was pregnant; in that same month Wright, who was then away,

returned to live with her in Winner, South Dakota. Wright's attitude towards the pregnancy is an issue in dispute. In her affidavit to the trial court, the mother claimed that Wright denied that he was the father of the child and offered her $300 to use to get an abortion. Wright, in contrast, states that he claimed to be the father of the child and objected to the mother's plan to give up the child. When she went into labor, however, Wright went to visit relatives in nearby Mission, South Dakota, and did not return until after the mother had placed the child with his adoptive parents. Thus, neither Wright nor any of the members of his extended family have ever seen Baby Larry, who is now approaching his fourth birthday.

Baby Larry was born on August 17, 1984. Prior to the baby's birth, his mother communicated with lawyers in New York about placing the child for adoption. On August 24, 1984, she traveled to New York and executed a consent to adoption and termination of parental rights. The next day, the mother met the adoptive parents, who are New Jersey residents, and turned Baby Larry over to them before returning to South Dakota. On September 3, 1984, the adoptive parents' attorney filed a complaint for adoption in the Chancery Division, Family Part, in Middlesex County. A week later, on September 11, 1984, the trial court granted the adoptive parents temporary custody of Baby Larry, and appointed Better Living Services, a private adoption agency, to prepare a report on the proposed adoption pursuant to N.J.S.A. 9:3-48. A preliminary hearing was scheduled for November 16, 1984.

After relinquishing the child, the mother returned to Winner, and a short time later Wright moved back in with her. There is a dispute over the sequence of events that followed Wright's resumption of his cohabitation with the mother and their first child. Respondents claim that on September 19, 1984, their attorney mailed notice of hearing and consent-to-adoption forms to both the mother and Wright at the mother's Winner address, as well as an additional set of forms sent to Wright at the

address of his relatives in Mission, South Dakota. All three sets of forms were mailed certified mail return receipt requested, accompanied by a cover letter identifying the enclosed forms and providing instructions on how to complete them, including the attorney's telephone number should Wright or the mother require his assistance. Although the return receipts have not been produced due to lack of cooperation on the part of the attorney, proof of mailing has been produced, and the forms sent to the mother were completed and returned by her prior to October 1, 1984. According to respondents, Wright telephoned the attorney and consented to the adoption, but never returned the consent form.

Wright, on the other hand, denies that the attorney ever communicated with him and that he ever called the attorney, contending that the only documents he received were a letter and a consent-to-adoption form from Better Living Services. Wright's version of these events is suspect. Better Living Services, which had been appointed by the court to prepare the pre-adoptive report on the fitness of the child for adoption, never sent such a letter to Wright. It did, however, send a letter to the mother at the Winner, South Dakota address where she and Wright were living, requesting her help in the preparation of the pre-adoptive report.*fn2 The trial court, noting that a consent form could not have been sent to Wright from Better Living Services, discredited Wright's version of the facts and found that Wright in fact had been provided notice. In light of this, Wright argues on appeal that he received only a consent-to-adoption form, and that whoever sent the consent form intentionally failed to include a notice of hearing or any other form of documentation.

On October 15, 1984, respondents filed an amended complaint, which repeated the mother's allegation that the father of

the child was unknown but disclosed Wright's claim of paternity. Although the complaint mentioned that Wright had orally consented to the adoption, it conceded that no written consent had been returned, and asked that Wright's parental rights be terminated on the grounds that he had forsaken his parental obligations. At the November 16, 1984 preliminary hearing, the trial court found that Baby Larry was fit for adoption and that the adoptive parents were fit. It appointed Better Living Services as next friend, granted the adoptive parents custody pending the final adoption hearing scheduled for May 24, 1985, and terminated the parental rights of the mother and Wright. There being no change in the parties' status, the court entered a final judgment of adoption on May 24, 1985, which explicitly terminated the parental rights of the mother and Wright. At no time during either proceeding was there any indication that Baby Larry might be an Indian child. In fact, the report from Better Living Services listed the race of both the mother and Baby Larry as Caucasian.

With the exception of one inquiry to the Rosebud Sioux Tribe in the fall of 1984, of which there is no record, it appears that Wright did nothing to locate or regain custody of Baby Larry from the fall of 1984 until January of 1986, despite the fact that during much of this time he was living with the mother and their first child. Early in January of 1986, however, Wright contacted South Dakota Legal Services, which in turn contacted the Association of American Indian Affairs, an Indian rights organization, which in turn initiated inquiries with the Middlesex County Surrogate's Office on January 8, 1986. Subsequently, Wright obtained representation from Middlesex County Legal Service Corporation, which filed a notice of motion to vacate the adoption of Baby Larry on May 23, 1986, one day before the one-year period to overturn a judgment on the basis of fraud, see R. 4:50-1, 4:50-2, would have expired. In addition to alleging fraud, Wright included an affidavit that he is an enrolled member of the Rosebud Sioux Tribe and that the adoption of Baby Larry, who he claims to be his son, was in

violation of the ICWA. On these grounds, he requested that the adoption be vacated, his parental rights re-established, and that the matter be transferred to the Rosebud Sioux Tribal Court.

The trial court conducted a hearing on Wright's motions on June 6, 1986. In an order dated June 27, 1986, it denied Wright's motions to vacate the adoption, reinstate his parental rights, and transfer the matter to the Rosebud Sioux Tribal Court without prejudice, thus giving Wright a second opportunity to show that the ICWA applied and required such action. The court, however, did grant Wright access to certain parts of the case file, limited to protect the identity of the adoptive parents.

Following the initial hearing, Wright's attorney contacted the Rosebud Sioux Tribe to determine whether Baby Larry qualified for tribal membership and whether the tribe would be interested in intervening in the New Jersey proceedings. The tribe replied that since the mother, although an enrolled Rosebud Sioux, has only 9/32 Rosebud Sioux blood, Baby Larry, relying solely on the basis of his mother's enrollment, would not meet the one-quarter blood quotient requirement. The tribe also declined to intervene on the grounds of insufficient funds. On October 17, 1986, however, a group of Wright's relatives led by Amy Whiting, Wright's sister, moved to intervene on the grounds that the ICWA gave them standing as potential custodians of Baby Larry.

On November 7, 1986, the trial court heard argument on Wright's renewed petition to vacate the adoption, as well as his relatives' petition to intervene. It concluded that Baby Larry was not an Indian child under the ICWA and that Wright had not acknowledged paternity at the time of the adoption proceedings, had had notice of the proceedings, and had waited too long to assert any rights he might have had under the federal Indian laws. Wright and his relatives appealed to the Appellate Division, which issued an opinion concluding that the trial court had

not abused its discretion in refusing to vacate the final judgment of adoption. In re Adoption of a Child of Indian Heritage, 219 N.J. Super. 28 (App.Div.1987). This Court granted appellants' petition for certification, 109 N.J. 57 (1987).


In determining this appeal, we are constrained to consider the applicability of the Indian Child Welfare Act to this adoption proceeding. The Act, if applicable, dictates the issues that will be critical to the claims of the respective parties. It is therefore necessary to understand the nature and purpose of the ICWA.

The ICWA is primarily concerned with preserving the continued existence and integrity of Indian tribes by preventing the unwarranted removal of Indian children from their families by nontribal public and private agencies, see 25 U.S.C. § 1901(3), (4); H.R.Rep. No. 1386 95th Cong. 2d Sess. 9, reprinted in 1978 Code Cong. & Ad.News, 7530, 7531. The Act is intended to combat the removal of Indian children by state administrative and judicial bodies through a failure to recognize and appreciate the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. See 25 U.S.C. § 1901(5). In particular, Congress was concerned with outright bias against Indians by state social workers as well as the more subtle problem of social workers untutored in the ways of Indian family life mistaking methods of raising and disciplining children within an extended Indian family for excessive permissiveness, neglect, or abandonment. H.R.Rep. No. 1386, supra, at 10, reprinted in 1978 Code Cong. & Ad.News at 7532. Additionally, it found that the dependency of many Indian parents on state welfare agencies frequently resulted in coerced "voluntary" placements of Indian children, id., an anomaly of the social welfare system that is not limited to Indian families, see, e.g., Sorentino v. Family & Children's Soc. of Elizabeth, 72 N.J. 127, 129 (1976) (Sorentino I), appeal

after remand, 74 N.J. 313 (1977) (Sorentino II), aff'd after remand, 77 N.J. 483 (1978).

Furthermore, Congress found that the erosive effects of these practices on Indian society were multiplied by the fact that the same cultural biases that led to excessive removal of Indian children from their families militated against the selection of Indians as foster or adoptive parents. As a result, it would frequently come to pass that an Indian child, once removed from his or her parents, would become separated from all aspects of Indian culture. H.R.Rep. No. 1386, supra, at 11, reprinted in 1978 Code Cong. & Ad.News at 7533. This not only posed a threat to the stability and security of Indian tribes, but also carried with it the potential for psychological harm to the Indian child; studies of Indian children placed in non-Indian homes have revealed instances of ethnic confusion and a sense of abandonment. See Barsh, "The Indian Child Welfare Act of 1978, A Critical Analysis," 31 Hastings L.J. 1287, 1291 (1980).

To address these concerns, Congress in 1978 passed the Indian Child Welfare Act. Its declaration of policy states that:

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. [25 U.S.C. § 1902]

The Act attempts to protect the welfare of Indian families by conferring on tribal courts exclusive jurisdiction over any child custody proceedings involving an Indian child who resides or is domiciled on the tribe's reservation, 25 U.S.C. § 1911(a), and provides for the permissive transfer of state court custody proceedings to a tribal court, 25 U.S.C. § 1911(b). The Act also grants the child's tribe the right to intervene in any such proceeding that is not removed to a tribal court. 25 U.S.C. § 1911(c).

In addition, in state court proceedings involving involuntary placement of Indian children, the Act calls for notice to be given

to the child's parents or custodian, and the child's tribe if the court has reason to believe an Indian child is involved, 25 U.S.C. § 1912(a). It also provides for family counselling and court-appointed counsel to ensure that the relevant parties are fully aware of their legal rights. 25 U.S.C. § 1912(b)-(d). Finally, the Act establishes substantive standards for involuntary termination of an Indian parent's parental rights exceeding those provided for non-Indian parents under state law. Under 25 U.S.C. § 1912(f), termination of parental rights cannot be ordered unless there is "a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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." The Act also contains provisions for ensuring that voluntary placements are uncoerced and fully informed, 25 U.S.C. § 1913, as well as providing mechanisms for challenging ...

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