In re A.P., 260 N.C. App. 540 (2018)

to determine and ensure that the ICWA notification requirements are met

• Facts and procedural history: In March 2016, Mecklenburg County DSS filed a neglect and dependency petition and obtained a nonsecure custody order for A.P. In June 2016, A.P. was adjudicated neglected and dependent and placed in DSS custody. Respondent mother appealed, arguing the Mecklenburg County DSS director lacked standing to file the petition. The Court of Appeals held that the Mecklenburg County DSS director lacked standing to file a petition because the child did not reside and was not found in Mecklenburg County when the petition was filed. The N.C. Supreme Court reversed the Court of Appeals and remanded the case to the Court of Appeals to address the other issues raised by respondent mother. One issue is whether the adjudicatory hearing should have been continued for further investigation into the applicability of the Indian Child Welfare Act (ICWA). The evidence at the adjudicatory hearing included a DSS form that indicated “A.P. and her mother have ‘American Indian Heritage’ within the ‘Cherokee’ and ‘Bear foot’ tribes.” Sl. Op. at 9. Respondent mother’s attorney raised the issue that the federally recognized tribes were not provided with any notice under ICWA. The trial court noted it made an ICWA inquiry at the hearing on the need for continued nonsecure custody, found ICWA did not apply, and did not order DSS to provide notice the tribe (there is no transcript of the hearing on the need for nonsecure custody in the record).
• When the trial court knows or has reason to know that a child is an Indian child, the party seeking foster care placement (or a termination of parental rights) of that Indian child must comply with the notice provisions set forth in 25 U.S.C. 1912. A hearing may not be held until at least 10 days after the parent or Indian custodian and Indian tribe or BIA secretary have received the notice, and if requested, an additional 20 days must be granted. 25 U.S.C. 1912.  An “Indian child” is any unmarried person under the age of 18 who is either (1) a member of a federally recognized Indian tribe or (2) eligible for membership in a federally recognized Indian tribe and the biological child of a member of a federally recognized Indian tribe. 25 U.S.C. 1903(4); In re A.D.L., 169 N.C. App. 701 (2005). The court has reason to know a child is an “Indian child” if any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe or organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. 25 C.F.R. 23.107(c)(7). The tribe determines the child’s status as an Indian child. The respondent mother’s potential Indian heritage with a federally recognized tribe is sufficient to provide the court with reason to know the child is an Indian child. The trial court should confirm and work with the tribes to verify whether the child is a member and must treat the child as an Indian child until it is determined on the record that the child does not meet the definition of Indian child. 25 C.F.R. 23.107(b)(1)−(2). The trial court must direct DSS to send notice to the tribes in compliance with 25 C.F.R. 23.111. If a response from the tribe is not received, “the Respondent-mother must meet her burden to produce evidence to sustain ICWA’s application to this case.” Sl. Op. at 10. This interpretation aligns with previous holdings that have erred on the side of caution to ensure ICWA notification requirements are addressed rather than risk the trial court’s orders being voided in the future for failing to comply with ICWA requirements. See In re A.R., 227 N.C. App. 518 (2013); In re C.P. 181 N.C. App. 698 (2007).
• Author’s Note: Prior to December 12, 2016, there were no effective federal regulations implementing ICWA, which is a federal law that was enacted in 1978. However, in this opinion, the Court of Appeals discusses and applies some, but not all, of the regulations that became effective after the orders subject to the appeal were entered. Further discussion and hyperlinks to resources re: ICWA can be found in the A/N/D TPR Manual, Chapter 13.2, here.