230 N.C. App. 196
N.C. Ct. App.2013Background
- DSS filed November 2011 petitions alleging Ellen was neglected and Nancy was neglected and abused; Tribe intervened under ICWA.
- District court on March 16, 2012 adjudicated Ellen neglected; Nancy abused; ordered father on responsible individuals list; custody details tied to kinship care.
- November 15, 2012 90-day review noted Ellen’s custody through the Cherokee Tribal Court divorce; Ellen remained in kinship placement with a family friend, J.F.
- February 18, 2013 permanency order cast legal custody to DSS, Ellen remained in kinship care; plan for reunification with mother; reunification with father ceased.
- Issue of ICWA applicability and tribal vs. state jurisdiction arose because Ellen is an Indian child domiciled within tribal land; district court failed to make ICWA-specific jurisdiction findings.
- MOA between Tribe and NC DSS was presented; court declined to judicially notice the MOA due to lack of authentication and uncertainty about modification/validity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ICWA grant subject matter jurisdiction to the state court? | Respondents contend the district court lacked ICWA-based jurisdiction. | Appellees argue ICWA applies and tribal exclusive jurisdiction should govern, but proper findings are lacking. | Remand for proper ICWA jurisdiction findings; jurisdiction not resolved on record. |
| Was foster care placement supported by clear and convincing evidence and qualified expert testimony under 1912(e)? | Mother argues the court relied on outdated/expert testimony and findings not contemporaneous with placement. | Appellees contend testimony sufficed and timing is not strictly contemporaneous. | Placement unsupported; require contemporaneous expert testimony; vacate and remand for proper findings. |
| Can reunification efforts for the father be ceased under NC law in ICWA cases? | Father argues ICWA requires active efforts until termination or reunification; cessation may conflict with ICWA. | Court may cease efforts if futile or inconsistent with child’s health and permanency. | ICWA permits cessation where futile, but requires proper factual findings; remand for entry of adequate findings. |
| May the MOA be judicially noticed to affect jurisdiction? | MOA shows tribal-state accord on jurisdiction; argues it impacts ICWA jurisdiction. | MOA should be recognized as binding unless properly authenticated and current. | MOA not judicially noticed due to lack of authentication; remand to determine jurisdiction with proper evidence. |
Key Cases Cited
- In re M.G., 187 N.C. App. 536 (2007) (remand for findings on ICWA subject matter jurisdiction)
- Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (ICWA purposes and federal standards for Indian child welfare)
- Pallet & Forest Prods. Co. v. Pallet, 283 N.C. 705 (1973) (judicial notice considerations and official records)
- In re T.B., 177 N.C. App. 790 (2006) (subject matter jurisdiction may be reviewed on appeal)