in the Court of Appeals 10 August 2017.
by respondent-father from order entered 28 November 2016 by
Judge Burford A. Cherry in Burke County District Court No. 15
Chrystal S. Kay for petitioner-appellee Burke County
Department of Social Services.
C. Boyer for respondent-appellant father.
Spruill LLP, by Christopher S. Dwight for guardian ad litem.
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.
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") 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 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.
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.
hearing on 27 October 2016, the trial court entered an order
on 28 November 2016 terminating respondent's parental
rights to Luke. 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.
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
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.
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 ...