In re L.W.S., 255 N.C. App. 296 (2017)

Issue: Respondent father appeals an order terminating his parental rights that was entered on November 28, 2016, arguing the trial court failed to address whether the child was an “Indian child” and whether the Indian Child Welfare Act (ICWA) applied.

ICWA applies when the proceeding is a “child custody proceeding” and the child is an “Indian child” as both terms are defined under ICWA. A termination of parental rights is an involuntary child custody proceeding. An “Indian child” is defined as any unmarried person under 18 years old who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. 25 U.S.C. 1903(4).

Citing a previous case, In re C.P., 181 N.C. App. 698 (2007), the burden to show ICWA applies is on the party seeking to invoke it. Respondent did not raise ICWA before the trial court, and he failed to meet his burden to show ICWA applied. Although the TPR does not refer to ICWA, the underlying abuse, neglect, and dependency case found in its orders that ICWA does not apply.

Legislative Note: 25 C.F.R. Part 23 are new Department of Interior federal regulations implementing ICWA, effective December 12, 2016. The new regulations are inapplicable to this case as the TPR order was entered before the effective date of the regulations. In footnote 4, the court refers to the new federal regulations effective after the TPR order was entered in this case, 25 C.F.R. 23.107, and notes “it seems to be the case that the burden has shifted to state courts to inquire at the start of a proceeding whether the child at issue is an Indian child, and if so, the state court must confirm that the agency used due diligence to identify and work with the Tribe and treat the child as an Indian child unless and until it is determined otherwise.”