In re D.J., 378 N.C. 565 (2021)

  • Facts: The juvenile was adjudicated neglected and dependent. Mother reported Native American heritage, Cherokee and Iroquois, and notices were mailed to some tribes. DSS filed a TPR motion, which was granted by order dated September 18, 2020. Post-TPR, DSS sent notices to all 3 Cherokee and 9 Iroquois tribes. All but one Iroquois and one Cherokee tribe responded that the child was not eligible for membership. In March 2021, notice was sent to the regional Bureau of Indian Affairs (BIA) director requesting assistance. In April, the BIA responded by acknowledging notice was sent to the Iroquois and Cherokee tribes, identified the 2 tribes who did not respond, and stated “you have done due diligence and completed your ICWA responsibilities.” 378 N.C. at 574 (fact no. 24).  Later in April, the last Cherokee tribe responded that the child was not eligible for membership but there had been no response from the last Iroquois tribe. All the letters were admitted into evidence at the post-TPR hearings. The court determined DSS complied with the ICWA notification requirements and that ICWA does not apply. DSS supplemented the appellate record with the post-TPR hearing orders and exhibits addressing the ICWA issue. Mother appeals, arguing the court did not comply with ICWA at the time of the TPR hearing (she also appealed a denial of a motion to continue).
  • The trial court complied with ICWA by ensuring DSS used due diligence and complied with 25 CFR 23.105(c) when the tribe did not respond before determining ICWA did not apply. DSS sent the required notices to the tribes and notice to the regional BIA office seeking assistance when two tribes had not responded as required by 25 CFR 23.105(c). The BIA office determined DSS made its due diligence and completed its responsibilities under ICWA. The post-TPR notices cured the trial court’s failure to comply with ICWA prior to the TPR hearing (distinguishing these facts from In re E.J.B., 375 N.C. 95 (2020) where the post-TPR notices sent to the tribes were insufficient under ICWA).
  • The court’s prior noncompliance did not deprive the court of subject matter jurisdiction. The tribe did not have exclusive jurisdiction under 25 USC 1911(a) as the child did not reside and was not domiciled on a reservation and is not a ward of tribal court. The supreme court did not address what remedy exists for noncompliance with 25 USC 1912(a) for a proceeding involving an Indian child. Prior noncompliance in this case was not prejudicial.
Termination of Parental Rights
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