In re E.J.B., 375 N.C. 95 (2020)

Reversed and Remanded
There is a dissent.
  • Facts: In 2015, DSS filed a neglect and dependency petition. Throughout the N/D action, DSS, in multiple reports to the court, stated that the children’s father reported he is affiliated with the Cherokee Indian tribe. That action was terminated through a G.S. 7B-911 order granting custody of the children to mother. A second neglect and dependency action was commenced in 2018, and the children were adjudicated neglected and dependent. DSS filed a motion to terminate father’s parental rights, which was granted. Respondent father appeals. During the pendency of the TPR appeal, the trial court held post-TPR hearings under G.S. 7B-908. At one hearing, the trial court found that ICWA notices had been sent to the 3 Cherokee Tribes and the appropriate regional director of the Bureau of Indian Affairs (BIA). Two of the 3 tribes responded that the children were not “Indian children.” No response was received from the United Keetoowah Band of Cherokee Indians (Keetoowah Band), and the trial court determined ICWA did not apply.
  • ICWA: After various congressional hearings recognizing “abusive child welfare practices that led to an ‘Indian child welfare crisis … of massive proportions’ ”, Congress enacted the Indian Child Welfare Act in 1978. Sl.Op. at 5. ICWA establishes minimum Federal standards that apply to “child custody proceedings” when an Indian child is involved. A child custody proceeding includes abuse, neglect, dependency; termination of parental rights; pre-adoptive placements; and adoption placements. An “Indian child” is an unmarried person under the age of 18 who is either (1) a member of a federally recognized Indian tribe or (2) eligible for membership and the biological child of a member of a federally recognized Indian tribe. 25 U.S.C. 1903(4). Under 2016 binding federal regulations promulgated by the BIA, “state courts bear the burden of ensuring compliance with the Act.” Sl.Op. at 10.
  • Holding: “Because we conclude that the trial court failed to comply with the Act’s [ICWA] notice requirements and that the post termination proceedings before the trial court did not cure the errors, we remand the matter to the trial court so that all of the requirements of the Act an be followed.” Sl.Op. at 1. “If the Keetoowah Band of Cherokee Indians tribe indicates the that the children are not Indian children pursuant to the Act, the trial court shall reaffirm the order terminating respondent-father’s parental rights…. [If the] tribe indicates that the children are Indian children pursuant to the Act, the trial court shall proceed in accordance with the relevant provisions of the Act.” Sl.Op. at 18.
  • ICWA Notice: The BIA regulations place the burden on state courts to ensure compliance with ICWA by requiring the court to ask each participant, on the record, whether they know or have to reason to know that the child involved is an “Indian child.” 25 C.F.R. 23.107. When there is reason to know, the trial court must ensure the petitioner (DSS in this case)  used due diligence to identify and work with all the tribes the child may be a member of or eligible for membership if a biological parent is a member of a tribe, and the court must treat the child as an Indian child during this period. Id. “If a tribe fails to respond to multiple written requests, the trial court must first seek assistance from the [BIA, and] … can only make their own determination as to the child’s status if the tribe and [BIA] fail to respond to multiple requests.” Sl.Op. at 11. There was no evidence in the record, the court inquired at the beginning of the proceeding as to whether any participant knew or had reason to know the child was an Indian child, and although it attempted later comply with the ICWA notice provisions in the post-TPR hearing, the notices were insufficient as they did not include all the required language of 25 U.S.C. 1912 and 25 C.F.R. 23.111(d).
  • Dissent: The lack of responses by both the Keetoowah Band (over 7 months) and BIA gives the court no reason to know the children were Indian children such that the trial made the proper determination that ICWA does not apply. The majority has placed the burden of obtaining a response from the tribe on the trial court and DSS and has elevated form over substance. “The purpose of ICWA is to notify Indian tribes that a potential Indian child is involved in a state proceeding, not to delay termination proceedings based on unsubstantiated allegations of Indian heritage.” Dissent at 5.
Termination of Parental Rights
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