In re C.C.G., 380 N.C. 23 (2022)

  • Facts:  The juvenile was adjudicated neglected. At a permanency planning hearing, the court ordered no visitation with mother and concurrent permanent plans of adoption and custody or guardianship. DSS filed a TPR petition. At the TPR hearing, mother was not present and her attorney requested a continuance, which was denied. The TPR was granted and mother appeals, challenging the denial of her motion to continue, noncompliance with the requirements of the Indian Child Welfare Act (ACT), and the denial of visits in the permanency planning order. This summary focuses on ICWA.
  • 25 CFR 23.107(c) addresses when a trial court has reason to know a child is an “Indian child,” which is defined as a child who is either (1) a member of an Indian tribe or (2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. 1903(4).
  • The inquiry as to whether a child is an Indian child focuses on (1) whether the child is a citizen of a tribe or (2) whether the child’s parent is a citizen of a tribe and the child is also eligible for citizenship. (relying on In re M.L.B., 377 N.C. 335 (2021)). Documents relied on by mother to support the argument the court had reason to know the child is an Indian child refer to a possible distant Cherokee relative on the mother’s side and mother reporting Cherokee Indian Heritage. These documents do not state the child is an Indian child and do not include information that indicates the child or her biological parents are members/citizens of an Indian tribe. “Indian heritage, which is racial, cultural, or hereditary does not indicate Indian tribe membership, which is political.” 380 N.C. at 30. The court did not have reason to know the child was an Indian child under 25 C.F.R. 23.107(c).
    • Author’s Note: This opinion appears to supersede by implication the court of appeals opinions that hold erring on the side of caution, ancestry with an Indian tribe is reason to know. See, e.g., In re A.P., 260 N.C. App. 540 (2018); In re K.G., 270 N.C. App. 423 (2020).
  • The mandatory inquiry about the child’s status as an Indian child was made in the underlying neglect proceeding, where the court determined there was no reason to know the child was an Indian child. There is nothing in the record that indicates the court made the inquiry at the TPR hearing. Since the record shows there is no reason to know the child is an Indian child, the court did not commit reversible error in not making the inquiry at the TPR hearing.
Termination of Parental Rights
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