In re J.O., ___ N.C. App. ___ (May 7, 2024)
Held:
Vacated and Remanded
- Facts: This case involves a child who is a member of the Eastern Band of Cherokee Indians (EBCI) and is an Indian child under the Indian Child Welfare Act (ICWA). The child was adjudicated dependent. At initial disposition, custody was ordered to DSS and Mother was granted unsupervised weekly visitation. Recurring issues heard at permanency planning hearings centered around Mother’s failure to make progress in improving the safety and cleanliness concerns for her housing and vehicle, and Mother allowing her older son, who has a history of violent and inappropriate behavior, to have contact with the child despite the court ordering no contact. DSS and EBCI submitted reports that recommended changing the child’s primary plan to guardianship. The court changed the child’s primary plan to guardianship, granted guardianship to the child’s guardians, and provided for no further permanency planning hearings for the child. Mother appeals the order raising several issues. This summary addresses mother’s argument that the court failed to satisfy the higher standard of proof for findings required by the ICWA prior to placing an Indian child in foster care.
- A de novo standard of review applies when determining whether the court followed a statutory mandate. ICWA is a federal law that establishes minimum standards the court must follow including any higher standard of protection than that provided by state law.
- ICWA requires a determination 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 before foster placement may be ordered. The determination must be supported by clear and convincing evidence and include testimony of qualified expert witnesses. 25 U.S.C. § 1912(e).
- “The findings in a disposition order or permanency planning order may be based upon a preponderance of the evidence, unless the order waives additional hearings required by [G.S.] 7B-906.1 and if so, the trial court must make certain findings by ‘clear, cogent, and convincing evidence.’ ” Sl. Op. at 8. G.S. 7B-906.1(n) allows waiver of permanency planning hearings if the court finds by clear, cogent, and convincing evidence, each of the five enumerated factors regarding the child’s placement, best interests, and rights of the parties.
- The permanency planning order does not satisfy the standard of proof or written findings required by G.S. 7B-906.1(n). The order effectively waived future permanency planning hearings by stating “no further review shall be scheduled at this time[,]” thereby requiring that each of the five findings be made and supported by clear and convincing evidence pursuant to G.S. 7B-906.1(n). The court did not state the standard of proof applied by the court in its written order or in open court, other than the juvenile’s best interest stated in one finding, and it is unclear if each of the five factors were addressed as required by G.S. 7B-906.1(n).The court of appeals did not review whether the ICWA standard of proof and findings were met since the order was found to not satisfy the requirements of G.S. 7B-906.1(n). The order is vacated and remanded for further proceedings, including holding a new hearing and entering a new order that satisfies both NC statutory and ICWA requirements.
Category:
Abuse, Neglect, DependencyStage:
ICWATopic: