North Carolina “Reason to Know” ICWA Notice Case

Here.

*Whether the evidence presented at the adjudication hearing should have caused the trial court to have reason to know an “Indian child” may be involved and trigger the notice requirement is the issue before us. The federal regulations implementing ICWA and promulgated in 2016, clearly the states court has reason to know an “Indian child” is involved if: “Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c)(2) (2018).

The ICWA proscribes that once the court has reason to know the child could be an “Indian child,” but does not have conclusive evidence, the court should confirm and “work with all of the Tribes … to verify whether the child is in fact a member.” 25 C.F.R. § 23.107(b)(1). Federal law provides: “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.]” 25 U.S.C. § 1912(a). Further, a court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’ ” 25 C.F.R. § 23.107(b)(2).

Other jurisdictions have recognized that “Indian child” status of the juvenile can only be decided by the tribe itself; therefore, only a suggestion that the child may be of Indian heritage is enough to invoke the notice requirements of the ICWA. In re Antoinette S., 104 Cal. App. 4th 1401, 1408, 129 Cal.Rptr.2d 15, 21 (2002). Additionally, ICWA provides that even after the completion of custody proceedings, if the provisions of ICWA were violated, “any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914 (2012).

In In re A.R., the Respondent-father claimed that he had “a family connection to a registered Native American group” which consequently qualified his children for the protections under ICWA. In re A.R., 227 N.C. App. 518, 523, 742 S.E.2d 629, 633 (2013). . . . Further, this Court held that “[t]hough from the record before us we believe it unlikely that [the juveniles] are subject to the ICWA, we prefer to err on the side of caution by remanding for the trial court to … ensure that the ICWA notification requirements, if any, are addressed … since failure to comply could later invalidate the court’s actions.” Id.

In the case of In re C.P., the respondent-mother made the bare assertion that she and her children could possibly be eligible for membership with a band of Potawatomi Indians. In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16. The trial court required the ICWA notice to be sent. Id. When the time required under ICWA had passed without response from the tribe, the trial court allowed two continuances before determining ICWA did not apply and resumed the proceedings. Id. at 703, 641 S.E.2d at 16-17.

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Our Court has required social service agencies to send notice to the claimed tribes rather than risk the trial court’s orders being voided in the future, when claims of Indian heritage arise, even where it may be unlikely the juvenile is an Indian child. See In re A.R., 227 N.C. App. at 524, 742 S.E.2d at 634; In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16.

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