IN RE ADOPTION OF: K.L.J. and K.P.J.
in the Court of Appeals 28 March 2019.
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.
D. Mills for the petitioners-appellees.
LeeAnne Quattrucci for the Guardian Ad Litem.
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.
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
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.
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.
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.
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.
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 ...