Background
In December 2022, the Randolph County Department of Social Services filed juvenile petitions alleging that siblings Gloria and Melody were neglected and dependent due to unstable housing and parental substance abuse. The children were placed in DSS nonsecure custody the same month. At the initial hearing in January 2023, only respondent-father was present; the court asked him about the Indian Child Welfare Act (ICWA), and he stated that he, as well as the children, were white and had no Native American tribal membership or eligibility. The court found ICWA inapplicable, ordered that both parents notify DSS and the court if they received information suggesting tribal membership, and took no further steps to inquire of respondent-mother, who was not present at that hearing.
In subsequent hearings — five non-secure custody reviews over the following months, an adjudication and disposition hearing in May 2023, and multiple permanency planning hearings through December 2024 — respondent-mother was absent from most proceedings, attended one via WebEx, and the court either repeated its “not applicable” finding from the January 2023 order (citing that order’s single inquiry of respondent-father) or made no ICWA findings at all. DSS filed to terminate parental rights in February 2025. At the June 2025 termination hearing, the court entered an order terminating both parents’ rights on grounds of neglect, willful failure to make progress, and willful failure to pay for the children’s care — but made no factual findings on ICWA. Respondent-mother appealed.
The Court’s Holding
The Court of Appeals remanded for further proceedings to ensure compliance with ICWA, leaving the termination order in place pending the inquiry. The Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963, requires that “in any involuntary proceeding in a State court” the party seeking foster-care placement or termination of parental rights must notify the parent and the Indian child’s tribe of the pending proceedings when the court knows or has reason to know an Indian child is involved. Federal regulations implementing ICWA, 25 C.F.R. § 23.107(a), require that courts “make ask each participant in an … involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” That inquiry must occur at the commencement of the proceeding and be on the record.
The court found the record did not reflect that the trial court ever made the required ICWA inquiry of respondent-mother. The January 2023 order documented the inquiry of respondent-father but contained no information about respondent-mother’s tribal affiliation or citizenship eligibility. Subsequent orders either repeated the father-based finding or omitted ICWA findings entirely. Unlike In re C.C.G., 380 N.C. 23 (2022), where the trial court had inquired of all parties at least once and the record affirmatively reflected responses from each, here the record was completely silent as to respondent-mother. Under In re A.L., 378 N.C. 396 (2021), where the record does not reflect the required inquiry or the participants’ responses, remand is mandatory. The court instructed the trial court to ask respondent-mother on the record whether she knows or has reason to know whether either child has tribal membership or eligibility; if no basis for ICWA coverage emerges, the termination order stands undisturbed.
Key Takeaways
- ICWA’s inquiry requirement under 25 C.F.R. § 23.107(a) applies to each participant in a child-custody or termination-of-parental-rights proceeding; an inquiry directed only to one parent does not satisfy the requirement as to the other parent, even if the second parent is absent.
- The ICWA inquiry must be conducted on the record; a court order that states ICWA is “not applicable” based solely on the father’s responses, without any record of asking the mother, does not comply with 25 C.F.R. § 23.107(a).
- The ICWA inquiry is not race-based; it asks whether a child is a tribal citizen or eligible for tribal citizenship as the biological child of a tribal member — a political determination that the court cannot make from one parent’s race identification alone.
- When the ICWA-compliance record is incomplete, the appropriate remedy is a limited remand for the missing inquiry; if no basis for Indian-child status emerges on remand, the termination order is undisturbed, avoiding a full re-trial on the merits.
Why It Matters
ICWA compliance is a recurring issue in North Carolina termination-of-parental-rights appeals because DSS and trial courts sometimes treat a single parent’s denial of tribal connection as sufficient to close the ICWA inquiry for the entire proceeding. In re G.A.D. confirms that the statute requires on-the-record responses from each participant — not just one parent and not just at the initial hearing if subsequent hearings involve a different configuration of parties. Practitioners for DSS, for respondent-parents, and for guardian ad litems should ensure that ICWA inquiry language appears in every order from the first non-secure hearing through the final disposition, documenting each parent’s separate response. The limited remand procedure is efficient for cases that have otherwise been fully adjudicated, but it means a case that should have been concluded can be returned to the trial court years into the proceeding.