260 N.C. App. 540
N.C. Ct. App.2018Background
- A.P., born Aug. 2015, went into nonsecure custody after mother displayed mental-health and substance issues and caregivers could no longer care for the child. YFS (Mecklenburg County) obtained a magistrate nonsecure custody order and filed a juvenile petition alleging neglect and dependency.
- Respondent (mother) had been involved with Cabarrus County DSS initially; CCDSS transferred the case to Mecklenburg YFS after investigating the maternal grandfather’s home and a safety plan had been in place.
- A CCDSS form in the record indicated “American Indian Heritage” for mother and child, listing “Cherokee” and “Bear foot.” That form was admitted at the adjudication hearing.
- At the adjudication hearing (April 2016) the trial court found ICWA inapplicable; respondent’s counsel later argued ICWA notice had not been given to the tribe(s).
- This Court previously vacated the order for lack of YFS standing, the NC Supreme Court remanded holding YFS had standing; this opinion remands again to ensure ICWA notice requirements are satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court had reason to know A.P. might be an “Indian child” triggering ICWA notice | YFS/State: ICWA did not apply; no conclusive evidence child was an Indian child | Respondent: CCDSS form and counsel’s representations gave reason to know; tribe notice required | Court: CCDSS form and trial record provided reason to know; ICWA notice procedures must be followed |
| Whether YFS (Mecklenburg) had standing to file the juvenile petition | YFS: authorized to proceed after CCDSS transferred the case for investigation and placement | Respondent: previously argued only county DSS director where child resides may invoke jurisdiction (earlier appeal) | Supreme Court resolved standing in favor of YFS; this Court proceeds on ICWA issue (remand to ensure jurisdictional/ICWA compliance) |
| Proper remedy when ICWA notice was not given | Respondent: require notice and, if child qualifies, apply ICWA protections; potential dismissal if lack of jurisdiction | YFS: proceed with adjudication absent tribe confirmation | Court: Remand for YFS to send ICWA-compliant registered-mail notice; pause proceedings at least 10 days (plus up to 20 on request); if tribe confirms membership, apply ICWA; if not, respondent must produce evidence proving applicability |
| Scope of trial-court duty when there is reason to know of Indian status | Respondent: court must treat child as Indian child and verify with tribes before proceeding | YFS: (implicit) no further action if unlikely | Court: Court must treat child as Indian unless determined otherwise on record and must work with tribes to verify status before further proceedings |
Key Cases Cited
- In re A.P., 800 S.E.2d 77 (N.C. Ct. App. 2017) (trial court order vacated for lack of standing in earlier appeal)
- In re A.P., 812 S.E.2d 840 (N.C. 2018) (Supreme Court remand holding YFS had standing)
- In re A.R., 742 S.E.2d 629 (N.C. Ct. App. 2013) (remand required to ensure ICWA notice where trial court had reason to suspect Indian status)
- In re C.P., 641 S.E.2d 13 (N.C. Ct. App. 2007) (ICWA notice required on bare assertion of Potawatomi heritage; continuances allowed while tribe did not respond)
- In re A.D.L., 612 S.E.2d 639 (N.C. Ct. App. 2005) (ICWA notice requirement is mandatory when proceeding is a child-custody proceeding and an Indian child may be involved)
- In re E.G.M., 750 S.E.2d 857 (N.C. Ct. App. 2013) (subject-matter jurisdiction under ICWA requires remand for further determination)
- In re M.G., 653 S.E.2d 585 (N.C. Ct. App. 2007) (if remand shows lack of subject-matter jurisdiction, petition must be dismissed)