In re K.G., 031720 NCCA, COA19-424
|Opinion Judge:||MURPHY, JUDGE|
|Party Name:||IN THE MATTER OF: K.G.|
|Attorney:||Erika Hamby for petitioner-appellee Wilkes County Department of Social Services. Steven S. Nelson for respondent-appellant mother. Nelson Mullins Riley & Scarborough LLP, by Carrie A. Hanger, for guardian ad litem.|
|Judge Panel:||Judges DIETZ and COLLINS concur.|
|Case Date:||March 17, 2020|
|Court:||Court of Appeals of North Carolina|
Heard in the Court of Appeals 19 February 2020.
Appeal by Respondent-Mother from order entered 14 February 2019 by Judge David V. Byrd in Wilkes County No. 17 JA 132 District Court.
Erika Hamby for petitioner-appellee Wilkes County Department of Social Services.
Steven S. Nelson for respondent-appellant mother.
Nelson Mullins Riley & Scarborough LLP, by Carrie A. Hanger, for guardian ad litem.
"The Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes[.]" U.S. Const. art. I, § 8, cl. 3. "[T]hrough this [clause] and other constitutional authority, Congress has plenary power over Indian affairs[.]" 25 U.S.C. § 1901(1) (1978). In recognition of that power-and in response to the "wholesale removal of Indian children from their homes"-Congress passed the Indian Child Welfare Act ("ICWA"), "which establishes federal standards that govern state-court child custody proceedings involving Indian children." Adoptive Couple v. Baby Girl, 570 U.S. 637, 642, 186 L.Ed.2d 729, 736 (2013).
Although the parties to this appeal present arguments on a number of issues, our analysis of this case need not go beyond the first issue presented: whether the trial court erred in concluding ICWA did not apply to its Permanency Planning Order entered 14 February 2019. We hold the trial court erred because "the question of [its] jurisdiction under . . . ICWA cannot be resolved based on the evidence [in the] record." In re: A.P., 818 S.E.2d 396, 400 ( N.C. Ct. App. 2018) (internal quotation marks and citation omitted). We remand to confirm notice of these proceedings is provided to the relevant tribes and that the trial court has properly determined whether it has subject matter jurisdiction of this case.
Appellant argues the trial court failed to comply with ICWA's notice provisions because it did not ensure the record included "return receipts or other proof of actual delivery in the record to confirm delivery of the notices in compliance with 25 C.F.R. [§] 23[-]111." This provision, 25 C.F.R. § 23-111(a), is nearly identical to 25 U.S.C. § 1912(a); both describe the measures a state court must take to notice federally recognized tribes of involuntary proceedings that may involve an "Indian child," as that term is...
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