I recently received a question about whether and how the Indian Child Welfare Act (ICWA) applies to an infant who is safely surrendered. The short answer is ICWA applies to infants who are safely surrendered when there is a termination of parental rights (TPR) proceeding and in any adoption of the minor. See G.S. 7B-525(b)(7); -526(b)(5); -1105.1; -1111(a)(7). There are other limited circumstances where ICWA will apply to a safely surrendered infant. Those circumstances include when
- the surrendering parent later seeks to regain custody of the infant that results in the commencement of a neglect proceeding (see G.S. 7B-526(b)(4), (c); - 527(a)),
- the non-surrendering parent seeks custody of their infant, and the department of social services (DSS) initiates an abuse, neglect, or dependency (A/N/D) action because of circumstances created by that parent (see G.S. 7B-525(c)(3), (d); -526(b)(5)), and
- either parent contacts DSS to execute a relinquishment for the child’s adoption (see G.S. 7B-526(b)(7); -527(b)).
The ICWA requirements that apply will depend on the action.
Infant Safe Surrender
The law on infant safe surrender allows a parent to intentionally and safely abandon their infant without criminal prosecution or civil liability. G.S. 7B-527(c). One of the purposes of infant safe surrender is to prevent infant mortality by giving a parent a safe method for abandoning their infant without the intent to return in a way that ensures the infant is immediately cared for and protected until a permanent home is found. See G.S. 7B-520; - 522; -525. A surrendering parent has the right to have their identity remain confidential absent limited statutory exceptions. See G.S. 7B-524(a)–(c); -528(b)(3).
An infant is safely surrendered when their parent voluntarily surrenders the infant who is reasonably believed to be no more than 30 days old without signs of abuse or neglect to (i) a health care provider who is on duty or at a hospital, health department, or nonprofit community health center; (ii) a first responder who is on duty; or (iii) a social services worker who is on duty or at a local department of social services (DSS). G.S. 7B-101(19a); see G.S. 7B-521.
When an individual who is authorized to accept a safely surrendered infant receives the infant, they may ask the surrendering parent for the parent’s identity, the infant’s date of birth, any relevant medical history, and the parent’s marital status. The surrendering parent is not required to give this information. Then, the individual must immediately notify DSS in the county where the infant is surrendered. G.S. 7B-522. The individual must also inform DSS of any information they know about the infant, the parents, medical history, and circumstances of the surrender. G.S. 7B-524(b).
DSS must take certain steps when it receives a safely surrendered infant who is now in the legal and physical custody of DSS by virtue of the safe surrender. See G.S. 7B-525. One of those steps is to wait at least 60 days from the surrender to initiate a TPR if the surrendering parent has not sought to regain custody of the infant and the infant has not been placed with the non-surrendering parent during those first 60 days. G.S. 7B-525(b)(7); -526(b)(7); see G.S. 7B-1111(a)(7).
The Indian Child Welfare Act (ICWA)
Congress enacted ICWA in 1978 in response to the alarmingly disproportionate large numbers of Native American and Alaska Native children who were removed from their families and communities, for often unwarranted reasons, by public and private child welfare and adoption agencies and placed in non-Indian foster and adoptive homes and institutions. See 25 U.S.C. 1901(4); Haaland v. Brackeen, 599 U.S. 255 (2023). The purpose of ICWA is “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by 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; see In re E.J.B., 375 N.C. 95 (2020).
ICWA applies to “child custody proceedings,” which are defined as proceedings that may result in a
- foster care placement,
- termination of parental rights (TPR),
- preadoptive placement, or
- adoptive placement.
- 25 U.S.C. 1903(1); 25 C.F.R. 23.2.
This means that in North Carolina ICWA applies to all TPR, A/N/D, and adoption of minor proceedings. ICWA mandates that the court make an inquiry at the commencement of the proceeding as to whether any participant to the proceeding knows or has reason to know whether the child at issue is an Indian child. 25 C.F.R. 23.107(a); In re M.L.B., 377 N.C. 335 (2021). An “Indian child” is defined as an unmarried child under the age of 18 who is either
- a member of a federally recognized Indian tribe or
- eligible for membership in a federally recognized Indian tribe and the biological child of a member of a federally recognized Indian tribe.
- 25 U.S.C. 1903(4); 25 C.F.R. 23.2.
The child’s status as an “Indian child” is based upon political affiliation (or citizenship) with a federally recognized tribe and not merely on the child’s or parent’s ancestry. BIA Guidelines, 2016, B.1 (p. 10); In re C.C.G., 380 N.C. 23 (2022); In re M.L.B., 377 N.C. 335. There are 575 federally recognized Indian tribes. See 91 Fed. Reg. 4102.
ICWA Applies in a TPR
In most cases involving a safely surrendered infant, DSS will commence a TPR action against the parents (known and unknown) so that the infant may be adopted. Since the TPR action is a child custody proceeding under ICWA, the court is required to ask on the record at the commencement of the TPR proceeding whether any participant knows or has reason to know whether the child is an Indian child. 25 C.F.R. 23.107(a).
In a TPR for a safely surrendered infant, the first hearing where the court can make the inquiry is the preliminary hearing for a safely surrendered infant that must be held within 10 days of when the TPR petition is filed. See G.S. 7B-1105.1. Although not addressed in the safe surrender statutes, the court must comply with ICWA and make the inquiry. In a TPR for a safely surrendered infant, it is unlikely the respondents will appear. In that case, the court makes the inquiry of the DSS attorney and social worker and any other persons who are present. Note, the hearing is closed unless the surrendering parent appears and requests that it be open. G.S. 7B-1105.1(a). If a respondent appears, the court must make the inquiry of the respondent and any other persons accompanying that respondent. The responses to the court’s inquiry must be on the record. 25 C.F.R. 23.107(a).
It is likely that information about the infant’s status as an Indian child will be unknown such that there is no reason to know the child is an Indian child. In that event, the court has complied with ICWA and need not take further action other than to notify the participants that if they later receive information that provides reason to know the child is an Indian child, they must notify the court. See Id.
It is possible, however, that information about the surrendering parent’s membership in a federally recognized Indian tribe was shared with the individual who accepted the safely surrendered infant, and in that case, there is reason to know. Additionally, there may be reason to know from the non-surrendering parent. If the identity of the non-surrendering parent is known, that parent will be served with the TPR petition via Rule 4 of the NC Rules of Civil Procedure. See G.S. 7B-1105.1(d). If their identity is unknown, they are served by publication pursuant to G.S. 7B-1105.1(d) and (e). If the non-surrendering parent appears at the TPR, the court should make the inquiry with that parent. See In re G.A.D., ___ N.C. App. ___ (July 1, 2026). That parent may have information that gives the court reason to know the child is an Indian child, either because they are a member or they know the surrendering parent is a member of a federally recognized Indian tribe.
If there is reason to know the child is an Indian child, DSS as the petitioner, must give notice to the applicable Indian tribe(s) and the regional office of the Bureau of Indian Affairs. 25 U.S.C. 1912(a); 25 C.F.R. 23.11; 23.111. The court must treat the child as an Indian child, meaning comply with ICWA, unless it determines the child is not an Indian child. 25 C.F.R. 23.107(b)(2). If the child is an Indian child, additional procedures apply including
- the tribe’s right to intervene (25 U.S.C. 1911(c); 25 C.F.R. 23.107(d)(6)(iii)),
- transferring the action to tribal court (25 U.S.C. 1911(b), 25 C.F.R. 23.115–23.119)
- active efforts by DSS (25 U.S.C. 1912(d); 25 C.F.R. 23.2; 23.120), and
- the need for a qualified expert witness (25 U.S.C. 1912(f). 25 C.F.R.; 23.121(b); 23.122).
ICWA applies in A/N/D case
If, at the time of the surrender, the child is believed to be older than 30 days or shows signs of abuse or neglect, they are not a safely surrendered infant. G.S. 7B-520(b)(1), (2); - 525(b)(1). DSS must treat that child as a juvenile who has been reported to be abused, neglected, or dependent. G.S. 7B-525(b)(1). That may result in the commencement of an A/N/D action, which is treated as any other A/N/D action, and ICWA applies.
If the child is a safely surrendered infant, DSS may initiate an A/N/D action in one of two circumstances. First, the surrendering parent seeks to regain custody of their child. In that case, DSS must treat the parent’s request as a report of neglect and conduct an assessment. G.S. 7B-526(b)(4); -527(a). The parent’s identity is no longer confidential. G.S. 7B-526(b)(4). The assessment may result in DSS determining a neglect petition must be filed. See G.S. 7B-302(c), (d). Second, the non-surrendering parent may seek custody of their child. DSS is required to place the child with that parent unless the director has cause to suspect abuse, neglect, or dependency due to circumstances created by that parent. G.S. 7B-525(c)(3). In that case, DSS must conduct an assessment (which does not include the surrendering parent), and if necessary, file an A/N/D petition. G.S. 7B-525(d); see G.S. 7B-302(c), (d).
The court should treat the A/N/D case as any other. However, if the action is because of circumstances created by the non-surrendering parent, the surrendering parent is not required to be a party. See G.S. 7B-525(d); -401.1(b)(2). In the A/N/D case, the court starts with making the inquiry of all the participants at the commencement of the proceeding as to whether they know or have reason to know that the child is an Indian child. If there is reason to know, the ICWA provisions discussed in the TPR section above apply.
ICWA Applies at Adoption
Under ICWA, an adoption is a child custody proceeding. There are provisions under ICWA that apply to adoptions, some of which differ from the provisions for TPR and A/N/D cases. See 25 C.F.R. 23.104. ICWA applies as there is no exception for safely surrendered infants whose parents are unknown. See G.S. 48-1-108.
Assuming the infant has not been returned to either parent, DSS will look to achieve permanency for the infant through an adoption and will place the infant with prospective adoptive parents. The prospective adoptive parents file the adoption petition. See G.S. 48-2-301. Because this is an agency placement, DSS must consent to the adoption. G.S. 48-3-601. As such, the petitioners and DSS are participants in the proceeding. There may be other participants, such as the agency who completes the preplacement assessment and/or report to the court or other witnesses. See G.S. 48-2-501; 48-3-301.
At the commencement of the adoption proceeding, the clerk of superior court (who has jurisdiction over adoption proceedings, G.S. 48-2-100(a)) must make the inquiry of the participants as to whether they know or have reason to know that the child is an Indian child. Although North Carolina law allows the clerk to enter a final adoption decree without a hearing if it appears that the petition is not contested (G.S. 48-2-601(a)), ICWA still requires the inquiry be made. If the child is an Indian child or there is reason to know the child is an Indian child, other provisions of ICWA apply. See Chapter 13 of the A/N/D Manual, section 13.2.J–L.
Relinquishment for Adoption
It is possible that the surrendering and/or non-surrendering parent will reach out to DSS and agree to execute a relinquishment. See G.S. 7B-526(b)(7); -527(b). DSS should inquire as to whether the child is an Indian child. If the answer is yes, the process for a relinquishment differs, and the provisions under ICWA differ significantly from North Carolina law.
A relinquishment may not be given until ten days after the child’s birth; any consent given before then is invalid. 25 U.S.C. 1913(a); 25 C.F.R. 23.125(e). The relinquishment must be in writing and recorded before a court of competent jurisdiction. 25 U.S.C. 1913(a); 25 C.F.R. 23.125. In North Carolina, a court of competent jurisdiction for a judicial proceeding to accept a relinquishment for an adoption includes the office of the clerk of superior court, the district court, and the superior court. G.S. 48-3-605(g)(i); see G.S. 48-3-702(b). The court must (1) explain to the parent or Indian custodian the terms and consequences of the consent and the limitations on the withdrawal of the consent and (2) certify that the terms and consequences were fully explained and understood by the parent or Indian custodian. 25 U.S.C. 1913(a); 25 C.F.R. 23.125(a)−(c); see Haaland v. Brackeen, 599 U.S. 255. A relinquishment may be withdrawn for any reason at any time before the entry of the final adoption decree, and the child is returned to the parent when the relinquishment to adoption is withdrawn. 25 U.S.C. 1913(c); 25 C.F.R. 23.125(b)(2)(ii)‒(iii); 23.128(a), (b).
Take Away
Anonymity of a parent does not relieve the court or parties from complying with ICWA. 25 C.F.R. 23.107(d). Even though it’s likely that there is no reason to know the child is an Indian child, the court in any TPR, A/N/D, or adoption proceeding must at a minimum make the inquiry of the participants on the records. Depending on the answer to that inquiry, more provisions of ICWA may apply.
Additional Resources
For more information about North Carolina’s infant safe surrender law, see Infant Safe Surrender in North Carolina: Significant Changes in 2023, Amendment sin 2024. For more information about ICWA and its application in North Carolina child welfare proceedings, see Chapter 13, section 13.2 of the A/N/D Manual.
