In re K.G., 270 N.C. App. 423 (2020)

  • Facts: Respondent mother appeals a permanency planning order where the court determined ICWA did not apply.
  • Reason to know child is an Indian child: ICWA establishes federal standards that govern applicable child custody proceedings when the court knows or has reason to know the child is an Indian child. Erring on the side of caution because an order could be invalidated for not complying with applicable notice provisions, the court had reason to know an Indian child may be involved when mother indicated she has Cherokee ancestry.
  • Notice: An abuse, neglect, or dependency proceeding is an involuntary child custody proceeding requiring notice to the tribes and regional BIA office when the court knows or has reason to know an Indian child is involved. Proof of that notice must be included in the court record. 25 U.S.C. 1912; 25 CFR 23.111. Although the record shows DSS sent notice to the EBCI and Cherokee Nation, there was no indication in the record that the tribes and regional BIA office received the notice through return receipts of certified or registered mail or other proof of service. The question of the trial court’s jurisdiction under ICWA cannot be resolved from the evidence in the record. Remanded to confirm notice is provided to the appropriate tribes and regional BIA office.
Abuse, Neglect, Dependency
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