In re L.Q., ___ N.C. App. ___ (April 16, 2025)
Held:
Affirmed
- Facts: Father appeals the termination of his parental rights. The underlying neglect adjudication order included findings that the trial court inquired of the participants with respect to possible Indian heritage, the participants did not report any Indian heritage, and Father is not a member of an Indian tribe. Findings at subsequent permanency planning hearings found Father was not making progress on his case plan and ultimately changed the child’s permanent plan to adoption. DSS filed a TPR petition. The pre-trial hearing was held following twelve continuances, at which time the trial court made inquiry as to whether any participant was aware of any tribal affiliation or any American Indian heritage of the child. Father’s attorney responded that Father’s grandmother is Blackfoot Indian. A DSS worker testified she was not aware or been given any indication of possible Indian heritage of the child or the parents. The hearing was continued. At the adjudication hearing that spanned several sessions, Father testified that he had possible Blackfoot heritage, and Father’s paternal aunt testified that Father’s paternal grandmother was Cherokee Indian. Neither presented documentation or identification showing the grandmother was a member of either tribe. The hearing was again continued. At the next session, DSS explained it was still waiting on letters from the Blackfeet and Cherokee tribes. The trial court gave its findings and left the evidence open for any final determination regarding the child’s tribal affiliations. DSS received letters from the Blackfeet tribe and three Cherokee tribes over the next seven months. After receipt of the final letter, the trial court held a hearing where DSS entered the tribal information and responses into evidence, all indicating the child was not an Indian child, without objection. The trial court later entered its order terminating Father’s parental rights based on three grounds and including a determination that the child was not an Indian child under ICWA. Father argues the trial court violated his due process rights by failing to conduct an ICWA inquiry at the commencement of the TPR proceeding. The court of appeals granted Father’s petition for writ of certiorari to reach the merits of Father’s untimely appeal.
- Whether a trial court complied with ICWA is reviewed de novo.
- “[S]tate 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 [as defined in 25 U.S.C. 1903(4)]. The inquiry is made at the commencement of the proceeding and all responses should be recorded.” 25 C.F.R. § 23.107(a). 25 C.F.R. § 23.107 provides that a trial court has reason to know an Indian child is involved in a proceeding if any participant, court officer, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child and requires the court to confirm and work with all relevant tribes to verify whether the child is a member. When a trial court knows or has reason to know that an Indian child is involved, the party seeking foster placement or the termination of parental rights to an Indian child must notify the Indian child’s tribe of the pending proceedings. The court of appeals has “required social services agencies to send notice to the claimed tribes . . . even where it may be unlikely the juvenile is an Indian child.” Sl. Op. at 11-12 (citation omitted).
- The trial court properly made the inquiry required by 25 C.F.R. 23.107 at the commencement of the TPR proceedings and complied with the notice requirements of ICWA. The inquiry took place at the pre-trial hearing held following the twelve continuances caused by COVID-19 exposures and regulations, Father or Mother’s inability to be present, or a heavy docket. The inquiry at the pre-trial hearing was the trial court’s first opportunity to make the inquiry into the child’s possible Indian heritage. The record shows the court made the inquiry and continued the hearing upon Father’s counsel responding that Father’s grandmother is Blackfoot Indian. The trial court heard testimony on potential Indian heritage from Father, Mother, Father’s paternal aunt, and a social worker at subsequent hearings and no documentation of tribal affiliation was presented. DSS properly notified the four relevant tribes and received responses indicating the child is not an Indian child, which were presented to the court.
Category:
Termination of Parental RightsStage:
ICWATopic: