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Monday, February 23, 2015

NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY VS. K.T.D. I/M/O THE GUARDIANSHIP OF A.K.S. A-2646-13T1

NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY VS. K.T.D. I/M/O THE GUARDIANSHIP OF A.K.S. 
A-2646-13T1 
Before the trial to terminate defendant's parental rights, defendant informed the court that a maternal ancestor was part Cherokee and a paternal one was "half Indian." Despite this knowledge, the DCPP failed to notify any of the three recognized Cherokee tribes or the Bureau of Indian Affairs of the pending guardianship proceeding, as required under the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901-1963. Under the Act, a tribe has the right to intervene in a parental rights termination proceeding if any child involved is a member of its tribe, as tribes have an interest in its minor members that is deemed to be on parity with that of their parents. Tribes have exclusive authority to determine who its members are. A judgment terminating parental rights is vulnerable to being set aside if a tribe was not given notice and one of its minor members was involved. 
The court proceeded with the guardianship trial and terminated defendant's parental rights. While we agreed with the trial court that termination of the mother's parental rights was warranted, nevertheless we were compelled to remand the matter so that notice could be issued to the Cherokee tribes and the Bureau of Indian Affairs. If no tribe responds to the notice or if the pertinent tribes determine the child is not one of its members, the judgment terminating parental rights shall be deemed affirmed. Otherwise, the judgment has to be vacated.