New Jersey Appeal Court issues opinion on the Indian Child Welfare Act

New Jersey Appeal Court issues opinion on the Indian Child Welfare ActIn February 2015 a three judge panel of the Appellate Division of the Superior Court of New Jersey issued an opinion involving application of the Indian Child Welfare Act and the requirement to notify an Indian tribe of a pending involuntary termination of parental rights.

The New Jersey Division of Child Protection and Permanency sought to terminate the parental rights of a birth mother who had a long history of drug use and other mental conditions. Although the birth mother had advised the court of family members who may have been members of a recognized Indian tribe, specifically a Cherokee tribe, she could not give specifics as to which tribe or possibly the full names of the family members. She herself had never been registered with a tribe nor had she lived on an Indian reservation.

The trial court found that the statutory standards had been satisfied and terminated her parental rights. On appeal the Appellate Division, while agreeing that the standards for termination had been met under state law, nevertheless found that there had been enough information given that triggered the notice requirement to the tribe under the Indian Child Welfare Act. The court held that the state was required to attempt to follow up on the information received in order to notify the tribe of its right to intervene in the proceeding. The court sent the case back to the trial court with instructions to perform the required search and notification if possible, along with additional instructions if the tribe were to intervene.

This case serves as notice to all petitioners and individuals involved in adoption where there may be eligibility for tribal membership to follow the requirements under ICWA. It is important to note, however, that this was in the context of an involuntary termination of rights as opposed to a voluntary termination of rights which, if all of the requirements are fulfilled, does not require notification to a tribe under ICWA.

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At the law office of Cofsky & Zeidman, LLC, our lawyers bring more than 25 years of experience to every matter we handle. Attorney Donald C. Cofsky has personally handled more than 1,500 adoption proceedings since joining the bar in 1974. We understand the challenges you face, and can help you identify all your options so that you can make good decisions that are in your best long-term interests.

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