                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA17-173

                                   Filed: 5 September 2017

Burke County, No. 15 JT 57

IN THE MATTER OF: L.W.S.


       Appeal by respondent-father from order entered 28 November 2016 by Judge

Burford A. Cherry in Burke County District Court. Heard in the Court of Appeals 10

August 2017.


       Chrystal S. Kay for petitioner-appellee Burke County Department of Social
       Services.

       Julie C. Boyer for respondent-appellant father.

       Poyner Spruill LLP, by Christopher S. Dwight for guardian ad litem.


       BRYANT, Judge.


       Where respondent never presented the issue that he now raises on appeal to

the trial court and completely failed to meet his burden of showing the provisions of

the Indian Child Welfare Act apply to this case, we affirm.

       The Burke County Department of Social Services (“DSS”) initiated the

underlying juvenile case on 1 May 2015 when it filed a petition alleging L.W.S.

(“Luke”)1 was an abused, neglected, and dependent juvenile. DSS obtained nonsecure

custody of Luke that same day and retained custody of him throughout the case. After


       1   A pseudonym is used throughout to protect the juvenile’s privacy pursuant to N.C. R. App.
P. 3.1(b) (2017).
                                     IN RE: L.W.S.

                                   Opinion of the Court



a hearing on 3 March 2016, the trial court entered an order adjudicating Luke to be

an abused, neglected, and dependent juvenile. The court found that both respondent

and Luke’s mother had pending criminal charges of felony child abuse inflicting

serious injury to Luke, that respondent and the mother had relinquished their

parental rights to two previous children, and that respondent and the mother had

been involved in several past incidents of domestic violence in front of their children.

The court ceased reunification efforts with respondent and Luke’s mother and set the

matter for a permanency planning hearing on 31 March 2016. In its order from the

permanency planning hearing, the trial court set the permanent plan for Luke as

adoption with a concurrent plan of custody or guardianship.           Respondent was

subsequently found guilty of felony child abuse and sentenced to a term of sixty to

eighty-four months imprisonment.

      On 1 August 2016, DSS filed a petition to terminate parental rights to Luke.

As to respondent, DSS alleged grounds of abuse, neglect, failure to correct the

conditions that led to Luke’s removal from his home, failure to pay a reasonable

portion of the cost of Luke’s care while Luke was in DSS custody, abandonment, and

that respondent had committed a felony assault against Luke that resulted in serious

bodily injury. See N.C. Gen. Stat. § 7B-1111(a)(1)–(3), (7)–(8) (2015). DSS filed an

amended petition for termination of parental rights on 22 August 2016, alleging the

same grounds as the first petition but correcting the mother’s name.



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                                            IN RE: L.W.S.

                                         Opinion of the Court



        After a hearing on 27 October 2016, the trial court entered an order on 28

November 2016 terminating respondent’s parental rights to Luke. 2                          The court

concluded all grounds alleged in the petition existed to terminate respondent’s

parental rights and that termination of his parental rights was in Luke’s best

interest. Respondent filed timely written notice of appeal from the trial court’s order.

                  ___________________________________________________

        Respondent’s sole argument on appeal is that the trial court erred in

terminating his parental rights to Luke because it failed to address whether Luke

was a member of a Native American tribe and whether the Indian Child Welfare Act

applied to him. We disagree.

        “The Indian Child Welfare Act of 1978 (hereinafter ICWA or Act) was enacted

to ‘protect the best interests of Indian children and to promote the stability and

security of Indian tribes and families.’ ” In re A.D.L., 169 N.C. App. 701, 708, 612

S.E.2d 639, 644 (2005) (quoting 25 U.S.C.A. § 1902 (2005)).

                There are two prerequisites to invoking the requirements
                of ICWA. First, it must be determined that the proceeding
                is a “child custody proceeding” as defined by the Act. Once
                it has been determined that the proceeding is a child
                custody proceeding, it must then be determined whether
                the child is an Indian child.




        2 The court’s order also terminated the parental rights of Luke’s mother, but she is not a party
to this appeal.

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                                             IN RE: L.W.S.

                                          Opinion of the Court



Id. (internal citations omitted). “ ‘Indian child’ means any unmarried person who is

under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for

membership in an Indian tribe and is the biological child of a member of an Indian

tribe[.]” 25 U.S.C. § 1903(4) (2006).

                In any involuntary proceeding in a state court where the
                court knows or has reason to know that an Indian child is
                involved, and where the identity of the child’s Indian
                parents or custodians or tribe is known, the party seeking
                the . . . termination of parental rights to[] an Indian child
                shall directly notify the Indian parents, Indian custodians,
                and the child’s tribe by certified mail with return receipt
                requested of the pending proceedings and of their right of
                intervention.

25 C.F.R. § 23.11(a) (2011).3 “The burden is on the party invoking [ICWA] to show

that its provisions are applicable to the case at issue, through documentation or

perhaps testimony from a tribe representative.” In re C.P., 181 N.C. App. 698, 701–




        3  On 14 June 2016, a new subpart, Subpart I, was added to the Department of the Interior’s
regulations implementing ICWA. See 25 C.F.R. §§ 23.101 et seq. (2017); Indian Child Welfare Act
Proceedings, 81 Fed. Reg. 38,867 (June 14, 2016) (to be codified at 25 C.F.R. pt. 23) (effective 12
December 2016) (“The final rules adds [sic] a new subpart to the Department of the Interior’s
(Department) regulations implementing . . . [ICWA], to improve ICWA implementation. The final rule
addresses requirements for State courts in ensuring implementation of ICWA in Indian child-welfare
proceedings and requirements for States to maintain records under ICWA.”). Among other things, the
newly-added Subpart I provides that “[t]he Indian Tribe of which it is believed the child is a member
. . . determines whether the child is a member of the Tribe” and further provides that this
determination “is solely within the jurisdiction and authority of the Tribe . . . .” 25 C.F.R. § 23.108(a)–
(b) (2017) (emphasis added). Subpart I also provides that “[p]rior to ordering an involuntary . . .
termination of parental rights, the court must conclude that active efforts have been made to prevent
the breakup of the Indian family and that those efforts have been unsuccessful[,]” and that those
“[a]ctive efforts must be documented in detail in the record.” 25 C.F.R. § 23.120(a)–(b) (2017). However,
because the order in the instant case was entered on 28 November 2016, before the effective date for
new Subpart I (12 December 2016), Subpart I is not applicable to the instant case.



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                                            IN RE: L.W.S.

                                         Opinion of the Court



02, 641 S.E.2d 13, 16 (2007) (citing In re Williams, 149 N.C. App. 951, 957, 563 S.E.2d

202, 205 (2002)).4

        In support of his argument on appeal, respondent directs this Court’s attention

to an identical sentence from two court reports prepared by a DSS social worker on 3

and 16 March 2016, which state: “[Respondent] indicated he is Cherokee on [Luke’s]

birth certificate. The Department contacted the tribe regarding [respondent’s] claim

and did not receive a response.” The statement that respondent indicated he is

Cherokee on Luke’s birth certificate is, however, demonstrably untrue, as shown by

the copies of Luke’s birth certificate included in the record on appeal. Luke’s birth

certificate does not include any statement that either respondent or Luke are

Cherokee and does not have a section in which a parent’s or child’s American Indian

heritage, or lack thereof, could be listed. Moreover, although the order terminating

respondent’s parental rights is silent as to the applicability of ICWA, we note the trial

court repeatedly found in its orders entered in the underlying juvenile case, including

the initial adjudication and disposition order, that ICWA does not apply to this

matter.




        4  We note that, now, it seems to be the case that the burden has shifted to state courts to
inquire at the start of a proceeding whether the child at issue is an Indian child, and, if so, the state
court must confirm that the agency used due diligence to identify and work with the Tribe and treat
the child as an Indian child unless and until it is determined otherwise. See 25 C.F.R. § 23.107(a),
(b)(1)–(2) (2017).

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                                      IN RE: L.W.S.

                                   Opinion of the Court



      Respondent never presented the issue to the trial court that he now raises on

appeal and completely failed to meet his burden of showing the provisions of ICWA

apply to this case.    See Williams, 149 N.C. App. at 956–57, 563 S.E.2d at 205

(“Equivocal testimony of the party seeking to invoke the Act, standing alone, is

insufficient to meet this burden.”); see also In re A.R., 227 N.C. App. 518, 523–25, 742

S.E.2d 629, 633 (2013) (noting that a “mere belief” that a child is an Indian child

covered under the ICWA, without more, does not meet a parent’s burden of showing

ICWA applies in a Chapter 7B proceeding, but “err[ing] on the side of caution by

remanding for the trial court to determine the results of the . . . ‘investigation’ and to

ensure that the ICWA notification requirements, if any, are addressed as early as

possible”). Accordingly, this argument is overruled. Respondent does not otherwise

challenge the trial court’s order terminating his parental rights to Luke, and it is

hereby affirmed.

      AFFIRMED.

      Judges HUNTER, JR., and MURPHY concur.




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