In re E.G.M.

Citation750 S.E.2d 857
Decision Date05 November 2013
Docket NumberNo. COA13–584.,COA13–584.
PartiesIn the Matter of E.G.M.
CourtCourt of Appeal of North Carolina (US)


Appeal by respondent-mother and respondent-father from order entered 18 February 2013 by Judge Donna Forga in Jackson County District Court. Heard in the Court of Appeals 8 October 2013.

Mary G. Holliday, agency attorney for petitioner-appellee Jackson County Department of Social Services.

Angela Lewis, counsel for petitioner-appellee The Eastern Band of Cherokee Indians.

Administrative Office of the Courts, by Associate Counsel Deana K. Fleming, for guardian ad litem.

Assistant Appellate Defender Joyce L. Terres, for respondent-appellant father.

Richard Croutharmel, Raleigh, for respondent-appellant mother.

BRYANT, Judge.

Where the record does not contain sufficient findings of fact and conclusions of law to confirm subject matter jurisdiction under the Indian Child Welfare Act, we vacate the trial court order and remand for entry of findings as to subject matter jurisdiction.

I. Procedural History

In November 2011, Jackson County Department of Social Services (“DSS”) filed petitions alleging that three-year-old E.G.M. (“Ellen”) was a neglected juvenile and her four-year-old half-sister, “Nancy,” was neglected and abused. 1 The petitions arose from reports of abusive injuries inflicted on Nancy by respondent-father in Ellen's presence. DSS served notice that Ellen was subject to the Indian Child Welfare Act of 1978 (“ICWA” or Act) as an eligible member of the Eastern Band of the Cherokee Indian Tribe (“the Tribe”). 25 U.S.C. §§ 1901– 63 (2012). The Tribe intervened in the proceedings pursuant to 25 U.S.C. § 1911(c) (2012) (“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.”).

On 16 March 2012, the district court adjudicated Ellen a neglected juvenile. It entered adjudications of abuse and neglect as to Nancy and ordered respondent-father to be placed on the responsible individuals list. SeeN.C. Gen.Stat. §§ 7B–101(18a), 7B–311(b)(2) (2011). In its subsequent “Order on Disposition” entered 10 May 2012, the court awarded legal custody of Ellen to respondents and continued her placement in kinship care with respondent-mother, who had moved out of the marital residence after the petitions were filed. In a 90–day review order entered 15 November 2012, the court found that respondent-mother had been “awarded custody of [Ellen] through a divorce action in the Cherokee Tribal Court.” 2 The district court ordered that legal custody would remain with respondent-mother on the condition that Ellen continue in her kinship placement with family friend J.F.

Following a hearing on 7 January 2013, the court entered the instant permanency planning and review order on 18 February 2013. The order granted legal custody of Ellen to DSS and ordered her continued placement in the home of J.F. The court established a permanent plan of reunification with respondent-mother but relieved DSS of further efforts toward reunification with respondent-father. Both respondents filed notice of appeal from the 18 February 2013 permanency planning order.3

II. Applicability of the ICWA

Congress enacted the ICWA pursuant to its “plenary power over Indian affairs” under U.S. Const. art. I, § 8, cl. 3. See25 U.S.C. § 1901(1) (2012); see also Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 1715, 104 L.Ed.2d 209, 237 (1989) ([T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs[.]). The purpose of the ICWA was “the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture [.] 25 U.S.C. § 1902 (2012). Accordingly, where the Act provides a higher standard of protection to the Indian family than is otherwise provided by state law, the ICWA standard prevails. See, e.g., In re Welfare of Child of R.S., 805 N.W.2d 44, 49 (Minn.2011) (citing U.S. Const. art. VI, § 2); T.F. v. Dep't of Health & Soc. Servs., 26 P.3d 1089, 1098 (Alaska 2001); Quinn v. Walters, 320 Or. 233, 881 P.2d 795, 809–10 (1994). Where applicable state law “provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under [the ICWA],” the state law prevails. 25 U.S.C. § 1921 (2012).

The ICWA applies to all “state-court child custody proceedings involving Indian children[.] Adoptive Couple v. Baby Girl, 570 U.S. ––––, ––––, 133 S.Ct. 2552, 2554, 186 L.Ed.2d 729, 733 (2013) (Thomas, J., concurring). The Act defines “child custody proceeding” to include any “foster care placement[.] 25 U.S.C. § 1903(1)(i) (2012). For purposes of the ICWA, “foster care placement” refers to “any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated[.] Id. Inasmuch as the district court transferred legal custody of Ellen to DSS, leaving respondent-mother unable to demand her return from kinship care, the proceeding qualifies as a “foster care placement” and thus, a “child custody proceeding” under the ICWA.

Because Ellen is an Indian child, the parties agree that the ICWA applies.

III. Subject Matter Jurisdiction under the ICWA

Respondents each challenge the district court's exercise of subject matter jurisdiction as contrary to the provisions of the ICWA. “The issue of subject matter jurisdiction may be considered by the court at any time, and may be raised for the first time on appeal.” In re T.B., 177 N.C.App. 790, 791, 629 S.E.2d 895, 896–97 (2006). Whether the district court had subject matter jurisdiction is a question of law subject to de novo review. Powers v. Wagner, 213 N.C.App. 353, 357, 716 S.E.2d 354, 357 (2011). Although the court found that the ICWA “does apply to this matter” and asserted subject matter jurisdiction pursuant to N.C. Gen.Stat. § 7B–200 (2011), it made no findings or conclusions regarding its exercise of jurisdiction under the ICWA.

The ICWA allocates jurisdiction between tribal and state courts as follows:

(a) ... An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law....

(b) ... In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

(c) ... In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

25 U.S.C. § 1911 (2012); cf. also Jackson Cnty. v. Swayney, 319 N.C. 52, 63, 352 S.E.2d 413, 419 (1987) ([O]ur State courts lack subject matter jurisdiction to determine paternity in [a] case where the child, mother and defendant are members of the Eastern Band of Cherokee Indians residing on the reservation.”).

For purposes of the ICWA, Ellen's domicile was that of her parents. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29, 46 (1989). At the time DSS filed the juvenile petition on 8 November 2011, respondents were domiciled in Cherokee, North Carolina, within the Tribe's Qualla Boundary land trust.4 Therefore, this case is governed by 25 U.S.C. § 1911, which grants exclusive jurisdiction to the tribal court, “except where such jurisdiction is otherwise vested in the State by existing Federal law.” 25 U.S.C. § 1911(a).

Existing federal law provides three means by which a state court may exercise jurisdiction under subsection 25 U.S.C. § 1911(a). First, Public Law 280 provides six states—not including North Carolina—with jurisdiction over cases arising on “Indian country within the State.” 28 U.S.C. § 1360(a) (2011). Second, a state court may exercise emergency jurisdiction under the ICWA over an Indian child who is temporarily located off of the reservation “in order to prevent imminent physical damage or harm to the child.” 25 U.S.C. § 1922 (2012). Here, however, the district court did not purport to exercise emergency jurisdiction over Ellen, nor did it relinquish jurisdiction as contemplated by 25 U.S.C. § 1922. The record reflects that Ellen was safely in kinship care by agreement of respondents at the time DSS filed the juvenile petition. Finally, the ICWA authorizes ad hoc agreements between individual states and Indian tribes:

(a) ... States and Indian tribes are authorized to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent jurisdiction between States and Indian tribes.

(b) ... Such agreements may be revoked by either party upon one hundred and eighty days' written notice to the other party....

25 U.S.C. § 1919 (2012).


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