In re A.L., 2021-NCSC-92

Held: 
Remanded
  • Facts: There is an underlying neglect action where the juvenile was adjudicated neglected. The juvenile’s birth certificate indicates he is “American Indian.” In the underlying neglect action (this author believes at 3 hearings on the need for nonsecure custody), the court determined that the juvenile was a member of the Lumbee tribe, a state-recognized tribe. Ultimately, DSS filed a TPR petition, which was granted. Mother appeals, arguing the trial court did not comply with its duties under ICWA.
  • ICWA imposes a duty on the trial court to ‘ask each participant … whether the participant knows or has reason to know that the child is an Indian child.’ ” ¶26. The inquiry must be made at the commencement of the child custody proceeding and responses must be on the record. Nothing in the TPR record shows that the trial court made the required inquiry in the TPR action such that the court did not comply with ICWA. Although ICWA applies to federal tribes that are recognized for services by the Secretary of the Bureau of Indian Affairs, of which the Lumbee tribe is not, without the inquiry, the court cannot know whether there is reason to know whether the child is an Indian child under ICWA and the appellate court cannot determine if the inquiry was made without the responses being on the record.  Remanded for the court to inquire of each participant whether there is reason to know the child is an Indian child and receive the responses on the record. If there is reason to know, a new TPR hearing, complying with ICWA provisions, must occur. If there is not reason to know, such as the juvenile is only eligible for membership with the Lumbee tribe, a state-recognized tribe, the court should enter an order to this effect and the TPR remains in place.
Category:
Termination of Parental Rights
Stage:
ICWA
Topic:
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