In re K.L.J., ___ N.C. App. ___ (July 16, 2019)

Held: 
Affirmed
  • Facts: Two children, who are members of the Cheyenne River Sioux Tribe and are “Indian children” under ICWA, are the subject of this adoption proceeding. They had previously been the subject of a child custody action in South Dakota, where their parents’ rights were terminated. The Tribal Court assumed jurisdiction and placed the children in the care of their paternal aunt, the Indian custodian, and then closed and dismissed the case. Months later, the aunt agreed to the appointment of a guardian for the children by the New Hanover County Superior Court Clerk. Two years later, the guardians filed adoption petitions for the children. After the petitions were filed, the clerk ordered the petitioners to give notice to the Tribe and to the aunt. The Tribal Court did not timely respond, but the aunt did and intervened requesting the children’s return. The adoption proceeding was transferred to district court to address the issue of subject matter jurisdiction. Before the district court hearing, the aunt filed an ex parte motion with the Tribal Court asking it to assume jurisdiction and provided to the NC district court a faxed copy of what is purported to be an order of jurisdiction from the Tribal Court. The NC district court concluded it had jurisdiction over the adoption proceedings and granted both adoptions. The aunt appeals arguing the Tribal Court had exclusive subject matter jurisdiction and the NC district court failed to give full faith and credit to the Tribal Court order.
  • Standard of Review: Subject matter jurisdiction is reviewed de novo. Whether a trial court has properly provided full faith and credit to a foreign judgment is also reviewed de novo.
  • Under 25 U.S.C. 1911(a) of ICWA, a tribal court has exclusive jurisdiction of a child custody proceeding in 3 circumstances: “(1) over an Indian child who resides within the reservation; (2) over an Indian child domiciled within the reservation; and (3) over an Indian child who is a ward of the tribal court.” Sl. Op. at 6. In this case, the children did not reside and were not domiciled within an Indian reservation. ICWA does not define a tribal court ward or address who makes the finding as to the child’ status. Black’s law dictionary definition of “ward of the state” applies – “someone who is housed by, and receives protection and necessities, from the government.” Sl. Op. at 7. Under this definition, once a child has stopped being housed by or provided protections or necessities from the tribe, she is no longer the tribal court’s ward. Here, the tribe did not provide protections or necessities to the children; instead, guardianship was obtained through the NC courts.
  • Under 25 U.S.C. 1911(d) of ICWA, the state court must give full faith and credit to judicial proceedings of any Indian tribe that are applicable to child custody proceedings to the same extent as the state court gives to other entities. The Uniform Enforcement Foreign Judgments Act (UEFJA) applies, and it requires the party seeking to enforce a foreign judgment to file a properly authenticated foreign judgment with the office of a clerk of superior court in any NC county and an accompanying affidavit attesting that the judgment is both final and unsatisfied in whole or part. There was no such filing here but instead the only copy of the Tribal Court’s order is an unauthenticated copy. Additionally, the adoption petitioners and children’s due process rights were not protected in Tribal Court as there is no record of notice to and a meaningful opportunity to participate in that proceeding by either the adoption petitioners or children (via their GAL). “Due process will not allow the best interests of the children to be silenced.” Sl. Op. at 11. The district court did not err in failing to give full faith and credit to the tribal court order.
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Adoption of a Minor Child
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