In re G.A.D., ___ N.C. App. ___ (July 1, 2026)
Held:
Remanded
- Facts: Mother appeals from an order terminating her parental rights arguing the trial court failed to comply with the mandatory inquiry requirements under the Indian Child Welfare Act (ICWA). The children at issue were placed in nonsecure custody after petitions were filed alleging the children were neglected and dependent juveniles. The first order continuing nonsecure custody found ICWA was not applicable based on Father’s identification of himself and the children as white and Father’s statement that neither he nor the children are members of or eligible for membership to a Native American tribe. Mother was not present at this hearing. Subsequent orders continuing nonsecure custody state that ICWA does not apply and required Mother and Father inform the court if they receive information that they or the children are tribal members or eligible for membership. Mother was present at one of six hearings on the need for continued nonsecure custody, the adjudication hearing, and one of four permanency planning hearings. The adjudication order and subsequent permanency planning orders made no findings regarding ICWA. DSS motioned to terminate the parents’ rights and both parents’ rights were ultimately terminated. The TPR order contained no findings regarding ICWA.
- The standard of review for compliance with ICWA is de novo.
- ICWA requires that when a state court knows or has reason to know that a child involved in an involuntary proceeding, including a TPR, is an Indian child, the party seeking foster care placement or to TPR must notify the parent or Indian custodian and the Indian child’s tribe of the pending proceedings. 25 U.S.C. 1912(a). Federal regulations, 25 CFR 23.107(c), address 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). State courts “must ask each participant in an . . . involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The inquiry is made at the commencement of the proceeding and all responses should be on the record.” 25 C.F.R. 23.107(a). In In re M.L.B., 377 N.C. 335 (2021), the supreme court held that the focus of the ICWA inquiry is the child or parents’ political affiliation with a tribe and not the child’s race. A TPR order will be remanded where an inquiry is not made of each participant and each participant’s response to the inquiry was not received on the record. In re A.L., 378 N.C. 396 (2021).
- The trial court did not comply with the mandatory inquiry requirement of 25 C.F.R. 23.107(a). While the first order continuing nonsecure custody found Father identified himself and the children as white and that neither he nor the children were tribal members or eligible for membership, the record does not reflect that the trial court made an inquiry of Mother as to whether Mother knows or has reason to know that either of the children are an Indian child. Relying on In re M.L.B., without Mother’s response on the record, a determination of whether there is reason to know the proceeding involves Indian children as required by 25 C.F.R. 23.107(c) cannot be made. The matter is remanded for the trial court to make the mandatory inquiry of Mother. If there is reason to know the child is an Indian child, the trial court must comply with the notice requirements of 25 C.F.R. 23.107(b) and hold a new TPR hearing. If there is not reason to know the child is an Indian child, the trial court must enter an order so stating and the TPR order remains undisturbed.
Category:
Termination of Parental RightsStage:
ICWATopic: