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In re Adoption of K.L.J.

Court of Appeals of North Carolina

July 16, 2019

IN RE ADOPTION OF: K.L.J. and K.P.J.

          Heard in the Court of Appeals 28 March 2019.

          Appeal by Proposed Intervenor from disposition order entered 18 August 2018 by Judge Melinda H. Crouch in New Hanover County Nos. 15 SP 796, 797 District Court. Originally scheduled for hearing in the Court of Appeals 7 August 2018. By order issued 27 July 2018, this Court dismissed this appeal pursuant to Rule 37(a) of our Rules of Appellate Procedure. Upon review granted by the Supreme Court of North Carolina and by order dated 5 December 2018, the Supreme Court vacated our order dismissing the appeal, and remanded to the Court of Appeals with special instructions.

          Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for the intervenor-appellant.

          Bobby D. Mills for the petitioners-appellees.

          LeeAnne Quattrucci for the Guardian Ad Litem.

          MURPHY, JUDGE.

         The New Hanover County District Court ("the District Court") did not err in asserting jurisdiction over the adoption of two "Indian children," K.L.J. and K.P.J., subject to the federal Indian Child Welfare Act ("ICWA"). Additionally, the District Court did not err in electing not to give full faith and credit to the Cheyenne River Sioux Tribal Court's ("Tribal Court") determination that Appellant is an "Indian Custodian," as defined by ICWA, entitled to the return of the two children. We affirm the District Court's Order and Judgment.

         BACKGROUND

         This is an appeal from the District Court's Order and Judgment entering Decrees of Adoption declaring both K.L.J. and K.P.J. adopted by the Petitioners-Appellees. Both children were born in South Dakota-K.L.J. in 2006 and K.P.J. in 2009-to a father who is a member of the Cheyenne River Sioux Tribe and are, themselves, members of the same. Shortly after K.P.J. was born the Minnehaha Department of Social Services in Sioux Falls, South Dakota took custody of both children due to their parents' drug and alcohol abuse. K.L.J. and K.P.J.'s biological parents had their parental rights to the children terminated in 2011. Pursuant to ICWA, the Tribal Court assumed jurisdiction over the children's custody proceeding and placed them in the care of "paternal aunt, Jean Coffman," the Appellant in this matter, ordering the children's case closed and dismissed.

         About three months later, Appellant entered into a Temporary Guardianship Agreement in New Hanover County wherein both children were placed with Appellees, the Petitioners below, for six months or "as long as necessary, beginning on [17 January] 2013." Subsequently, Appellees were appointed K.L.J. and K.P.J.'s legal guardians by the Clerk of Superior Court of New Hanover County ("the Clerk"). In November 2015, Appellees filed petitions in New Hanover County to adopt K.L.J. and K.P.J.

         Neither Appellant nor the Cheyenne River Sioux Tribe were served with the adoption petitions or given notice of the filings at the time they were made. However, two weeks after filing, Appellees served the Tribe with copies of the petitions by certified mail pursuant to an order of the Clerk. Part of this notice advised the Tribal Court that, if it wished "to participate [in the adoption proceedings, it was] required and directed to make defense of such pleadings by filing a response to the petition . . . within thirty (30) days of the receipt [of] this notice in order to participate in and to receive further notice of the proceedings[.]" The Tribal Court did not take any action relating to the adoption proceeding within the thirty-day period.

         Two months after filing the adoption petitions, Appellees-at the request of the Clerk of Court-gave formal notice to Appellant, who then attempted to intervene in the adoption by requesting "the immediate return of the minor Indian Child[ren] to her physical custody pursuant to the Tribal Custody Order . . . ." Appellant also moved to vacate New Hanover's order appointing Appellees as guardians of K.L.J. and K.P.J. At a hearing before the Clerk in March 2016, Appellant's motion was denied, and the matter was transferred to District Court to resolve the issue of whether North Carolina has jurisdiction over the adoption. The hearing in District Court was held on 16 June 2016.

         Prior to the hearing in District Court, Appellant filed an ex parte motion with the Tribal Court on 2 May 2016, in which she asked it to assert jurisdiction over the adoption of K.L.J. and K.P.J. The record also includes what appears to be a faxed copy of what purports to be an Order of Jurisdiction issued by the Tribal Court in response to Appellant's 2 May 2016 motion wherein the Tribal Court asserts: (1) K.L.J. and K.P.J. are "Wards of the Cheyenne River Sioux Tribe until the age of 18 years;" (2) Appellant is the children's "Indian Custodian[;]" and (3) that it has "exclusive jurisdiction according to ICWA[.]" Both Appellant's motion and the faxed copy of the Tribal Court's Order of Jurisdiction are included in the Record as "Proposed Intervenor's Exhibits for June [16, ] 2016 District Court hearing[.]" Neither was admitted into evidence during the 16 June 2016 hearing after Appellees objected to their admission.

         After hearing arguments from both parties, the District Court entered Findings of Fact and Conclusions of Law on the record and memorialized in an Order and Judgment filed 18 August 2016. In relevant part, the District Court concluded "[t]hat this Court has jurisdiction to enter orders with regards to the adoption," and ordered ...


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