Archive

• NC Supreme Court Addresses ICWA for the First Time

  This entry was contributed by Sara DePasquale on October 15, 2020 at 12:07 pm and is filed under Child Welfare Law.

  In August, the North Carolina Supreme Court published its first opinion addressing the Indian Child Welfare Act (ICWA): In re E.J.B., 375 N.C. 95 (2020). Specifically, the supreme court examined the history and purpose behind Congress’s enactment of ICWA and the notice requirements that apply when a trial court knows or has reason to know the child involved in the “child custody proceeding” is an “Indian child.”

  What is ICWA? Why the quotation marks? What does the opinion say? How does the opinion impact practice? Continue Reading

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

  This entry was contributed by Sara DePasquale on February 3, 2020 at 7:01 am and is filed under Child Welfare Law.

  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

  This entry was contributed by Sara DePasquale on July 9, 2018 at 9:00 am and is filed under Child Welfare Law.

  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

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

  This entry was contributed by Sara DePasquale on December 9, 2016 at 7:45 am and is filed under Child Welfare Law.

  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 12^th and apply to all “child custody proceedings” and “emergency proceedings” starting on or after that date. 25 CFR 23.103, 23.143. Continue Reading