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Matter of Adoption of Mellinger

March 1, 1996


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.

Approved for Publication March 1, 1996.

Before Judges Pressler, Wefing and A.a. Rodriguez. The opinion of the court was delivered by A.a. Rodriguez, J.A.D.

The opinion of the court was delivered by: Rodriguez

The opinion of the court was delivered by A.A. RODRIGUEZ, J.A.D.

This case presents a novel issue, the impact of federal remedial legislation on the confidentiality of New Jersey's adoption proceedings. The question is whether an adopted person of Indian heritage is entitled to obtain from the court that issued the adoption decree whatever information is in the sealed record establishing or helping to establish her tribal membership, including, if necessary the identity of the natural parents. We answer this question in the affirmative, holding that to the extent necessary to implement its policy, the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (ICWA), preempts the restricted-access provisions of N.J.S.A. 9:3-52(a).

Barbara Dean Mellinger, now Barbara Mellinger Chaiet (petitioner) was adopted by Jacob and Sophie Mellinger on May 21, 1948 by order of the Essex County Orphan's Court. Petitioner knows that she was born on March 26, 1946 and was given the name Catherine A. by her natural mother B.A. who was of American-Indian and French descent. The Essex County Orphan's Court approved the adoption and changed her name to Barbara Dean Mellinger. The Children's Aid and Society For the Prevention of Cruelty to Children, a now defunct agency, was involved in the adoption. *fn1

Pursuant to 25 U.S.C. § 1917, a section of ICWA, petitioner filed a motion for access to her court and agency adoption records in order to obtain the information necessary to pursue her membership in an Indian tribe. Such membership would give her and her children a number of benefits from the tribe and federal government. *fn2 Her adoptive parents and the custodian of the adoption agency's records do not object to the request.

The Chancery Division, Family Part, denied her request. The Judge examined the records and confirmed that they revealed that petitioner's natural mother "was of French and Indian parentage." The Judge observed that "the only other information which could be disclosed which might assist you ... is the name of your natural parents." However, the Judge refused to disclose that information "since the does not direct this information to be given and since New Jersey law clearly prohibits the disclosure of the names of natural parents."

We disagree with the Judge that the ICWA does not direct that this information be given. The ICWA is comprehensive federal legislation dealing with the rights of Indian children, families, and tribes. The ICWA "was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1600, 104 L. Ed. 29, 36 (1989). A primary purpose of the ICWA is to preserve the tie between the Indian tribe and Indian child. Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 166, 543 A.2d 925 (1988). The tribe and child have an interest in maintaining ties independent of the natural parents' interests. Choctaw at 49-53.

25 U.S.C. § 1917 provides,

Upon application by an Indian individual who has reached the age of eighteen and who was the subject of an adoptive placement, the court which entered the final decree shall inform such individual of the tribal affiliation, if any, of the individual's biological parents and provide such other information as may be necessary to protect any rights flowing from the individual's tribal relationship.

Part of the ICWA's legislative history, the Report of the Senate Select Committee on Indian Affairs, specifically addressed whether identifying information of natural parents should be provided under § 1917. The Report states,

It is the intent of this section as amended to authorize the release of only such information as is necessary to establish the child's rights as an Indian person. Upon a proper showing to a court that knowledge of the names and addresses of his or her natural parent or parents is needed, only then shall the child be ...

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