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Tag: adoption
  • The Indian Child Welfare Act and Subject Matter Jurisdiction in Child Welfare Actions

    The Indian Child Welfare Act (ICWA)* is a complex federal law that applies to abuse, neglect, or dependency (A/N/D); termination of parental rights (TPR); and adoption proceedings. One of the purposes of ICWA is to provide special protections to federally recognized Indian tribes and the tribes’ children and families. See 25 U.S.C. 1901‒1902.

    Subject matter jurisdiction between tribal courts and state courts is governed by ICWA when an “Indian child” is the subject of the A/N/D, TPR, or adoption proceeding. When any of the criteria of 25 U.S.C. 1911(a) are met, the tribal court has exclusive subject matter jurisdiction. When that criteria do not exist, ICWA allows for concurrent jurisdiction between state and tribal courts. See 25 U.S.C. 1911(b), (c). The N.C. Court of Appeals (COA) recently published two opinions addressing subject matter jurisdiction under ICWA. In one case, the COA held that the N.C. court had jurisdiction in an adoption proceeding that involved two Indian children. In the other case, the COA remanded for further proceedings in the trial court in part to ensure the trial court had subject matter jurisdiction in the A/N/D action when it was uncertain whether the child was an “Indian child.”

    A takeaway from these cases is that the N.C. court is not automatically divested of subject matter jurisdiction when an Indian child is the subject of the proceeding. But, how does the N.C. court know if it has subject matter jurisdiction? Continue Reading

  • 2018 N.C. Legislative Changes Impacting Child Welfare

    The 2018 Legislative Session created and amended various North Carolina statutes affecting child welfare. Some of those changes are effective now and others at later dates. Here are the highlights. Continue Reading

  • To Amend or Not Amend, That is the Question

    I recently taught in a course for clerks on proceedings involving minors.   One of the sessions related to proceedings to establish facts of birth set forth in G.S. 130A-106 and G.S. 130-107.  Both proceedings are discussed in more detail in Chapter 141 of the NC Clerk of Superior Court Procedures Manual.  The session was included on the course agenda in part to highlight the areas where clerks have jurisdiction to enter judgments and orders related to facts of birth and where clerks do not.   The two proceedings set forth in G.S. 130A before the clerk provide a mechanism for a person born in NC, whether an adult or a minor, who does not have a recorded birth certificate (G.S. 130A-106) or has unknown parentage and unknown place and date of birth (i.e. the person was abandoned at birth) (G.S. 130A-107) to obtain a judgment from the clerk establishing facts of birth.   If the clerk enters a judgment, the clerk then (i) certifies the judgment to the State Registrar, a person appointed by the Secretary of NC Department of Health and Human Services to run NC Vital Records, and (ii) sends a copy to the local register of deeds.

    These proceedings are different from a proceeding where a person has a birth certificate and wants to change information on the existing birth certificate.  Essentially, the person is seeking to obtain an amended birth certificate because information on the birth certificate is incorrect or new information is known such as the person’s parentage. People often end up in the clerk’s office seeking an order to amend a birth certificate because they have been told by Vital Records in Raleigh or a local register of deeds that a court order is needed for the State Registrar to amend the birth certificate. Continue Reading

  • Final Episode of Season 2 Beyond the Bench Podcast – Obtaining Permanency

    Episode 6, “Obtaining Permanency,” for our Beyond the Bench Season 2 podcast is available now!

    This episode talks about permanent outcomes for the family and child, with a discussion of two opposite outcomes: a child’s reunification with his/her parents and the child’s adoption after a termination of parental rights. Find out what happens in our remaining court case! Continue Reading

  • The Indian Child Welfare Act: New Binding Federal Regulations You Need to Know About!

    In 1978, Congress enacted the Indian Child Welfare Act (ICWA). 25 U.S.C. §§ 1901 – 1963. Through ICWA, Congress declared

    it is the policy of this Nation 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.

    For the first time since its passage, ICWA now has federal regulations that states must follow. 25 CFR Part 23. One of the purposes of these new regulations is to ensure the consistent application of ICWA protections across the states. 25 CFR 23.101. The regulations become effective on December 12th and apply to all “child custody proceedings” and “emergency proceedings” starting on or after that date. 25 CFR 23.103, 23.143. Continue Reading

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