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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTERS OF C.P., L.P., and N.P., MINOR CHILDREN
Filed: 20 February 2007
1. Child Support, Custody, and Visitation; Indians_custody_Native American_Indian
Welfare Act_tribal membership not established
The trial court did not abuse its discretion by finding that the Indian Child
did not apply to a child custody case where the only evidence offered by the mother that she and
the children were tribe members was her own word; no documentation was provided, and the
Pokagen Band of the Potawatomi Indians did not respond to a letter mailed to them by DSS. The
tribe can intervene at a later time if it determines that the mother and children are tribal members.
2. Child Abuse and Neglect_findings of neglect_supported by evidence
The trial court's findings indicating child neglect were supported by a DSS report, a
Guardian ad Litem report, the summary of Family Preservation Services, and testimony from
several witnesses, even if there was also evidence to support contrary findings.
3. Child Abuse and Neglect_conclusion that children neglected_supported by
findings_no suggestion of lack of effort by mother
The trial court's conclusion that children had been neglected was supported by findings
concerning problems shown by the children in the mother's care that were not present in foster
care. While that conclusion is consistent with findings concerning the living conditions of the
children, it does not suggest that the mother has not made efforts to learn to better care for the
children or that the neglect was willful.
4. Child Support, Custody, and Visitation_custody order_no visitation
A child custody order was remanded where the court did not find that visitation would
harm the children or provide for visitation.
Appeal by Respondent-mother from order entered 11 August 2006,
nunc pro tunc
24 July 2006, by Judge Edgar B. Gregory in District
Court, Wilkes County. Heard in the Court of Appeals 17 January
Paul W. Freeman, Jr., for petitioner-appellee Wilkes County
Department of Social Services.
Tracie M. Jordan, for petitioner-appellee Guardian ad Litem.
Rebekah W. Davis, for respondent-appellant.
Where an Indian child is involved in a custody proceeding, the
Indian Child Welfare Act allows an Indian tribe to intervene to
provide for placement with an Indian family or guardian if
(See footnote 1)
Here, Respondent-mother contends the trial court erred
by failing to continue the case until such time as the Pokagen Band
of Potawatomi Indians could intervene. Because Respondent-mother
provided no evidence beyond her bare assertions that would prove
the Indian Child Welfare Act should apply, we affirm the trial
court's order. However, because the trial court failed to make any
provisions for visitation between Respondent-mother and the older
two children, as required by North Carolina General Statute § 7B-
905(c), we remand for further proceedings as to placement and
According to the Wilkes County Department of Social Services
(DSS), Respondent-mother and her three minor children, N.P., L.P.,
and C.P., have been directly involved in Case Management Services
with DSS since 6 January 2006, when DSS substantiated an allegation
of inappropriate discipline by Respondent-mother. DSS had earlier
investigated, and failed to substantiate, five reports of abuse or
neglect concerning Respondent-mother and her children. At the time of the substantiated report in January 2006,
Respondent-mother entered into a case plan with DSS that included
family preservation services, child development assessment services
for C.P., and mental health assessments for L.P. and N.P. A
Certified Family Specialist worked with Respondent-mother and the
three children for five weeks, completing the intensive family
preservation services on 11 April 2006.
In late April 2006, Respondent-mother brought the three minor
children at issue to DSS because of concern over serious bruises on
much of C.P.'s body. Respondent-mother was worried that the older
two children, L.P. and N.P., might have caused the bruises. The
minor children were taken into DSS custody pursuant to an order for
nonsecure custody filed on 23 April 2006. On 25 April 2006, DSS
filed petitions to have the children adjudicated neglected because
Respondent-mother had failed to provide them with proper care,
supervision, or discipline. However, on 26 April 2006, blood tests
and a doctor report to DSS confirmed that C.P.'s bruising was due
to a condition called idiopathic thrombocytopenia, which results in
a very low platelet count and means that even a simple fall off of
a couch could result in severe bruises.
Nevertheless, on 2 May 2006, DSS substantiated its finding of
neglect due to improper care, based largely on concern that
Respondent-mother had waited approximately forty-eight hours after
finding the bruises to seek medical care for C.P., as she statedthat she was afraid DSS would take the children from her custody.
Additionally, DSS noted in its petitions that Respondent-mother had
on other occasions locked herself in her bedroom to be away from
the children, that the two older children were left to act in a
parental role for the youngest, and that one of the older children
had taken a piece of broken glass to school as a potential weapon
and had kept a knife underneath her bed. In its court report for
the adjudication and disposition hearing, DSS recommended
reunification of the family but stated that returning to
Respondent-mother's custody was contrary to the best interests of
the children because she does not ha[ve] the appropriate skills to
effectively parent the children.
Prior to the adjudication and disposition hearing, but after
a hearing in which the trial court ordered that the children remain
in DSS custody, Respondent-mother informed DSS that she and the
children might be members of the Pokagen Band of Potawatomi Indians
and that the Indian Child Welfare Act might therefore apply to
their case. According to Respondent-mother, her own mother is the
only person on the maternal side of her family who is not formally
affiliated with the tribe. Respondent-mother formally applied for
membership to the tribe during the course of the adjudication
proceedings. The original hearing date for the proceedings was 5
June 2006, but the trial court allowed two continuances, until 17
July 2006, to allow the tribe time to respond to Respondent-mother's application or to intervene in the adjudication
proceedings after they had been informed of the pending neglect
The three children were in foster homes from April 2006 until
the date of the adjudication and disposition hearing on 17 and 24
July 2006. At that time, the trial court found that the Indian
Child Welfare Act did not apply, as Respondent-mother had presented
no proof to the court of her tribal membership, nor had the tribe
responded in any way to its notice of the neglect action. The
trial court concluded that the minor children were neglected
juveniles in that they had not received proper care, supervision,
or discipline from Respondent-mother. He further concluded that it
was contrary to the best interests of the children to be returned
to the home of Respondent-mother and instead directed N.P. and L.P.
to be placed in their father's home in Arkansas and for C.P. to
remain in DSS custody and foster care, as his father was not a
Respondent-mother appeals from that order, arguing that (I)
the trial court erred in concluding that the Indian Child Welfare
Act did not apply and in failing to continue the hearing until the
designated tribe had responded to Respondent-mother's application
for membership; (II) the trial court's findings of fact were not
supported by competent, clear, and convincing evidence; (III) the
trial court's conclusion that the minor children are neglected wasnot supported by competent, clear, and convincing evidence or its
findings of fact; and, (IV) the trial court erred in failing to
provide for visitation by Respondent-mother of the minor children
N.P. and L.P., as required by law.
 First, Respondent-mother argues that the trial court erred
in its finding that the Indian Child Welfare Act did not apply to
this case, and by failing to continue the case until such time as
the Pokagen Band of Potawatomi Indians had responded to the notice
of the neglect action. We disagree.
The Indian Child Welfare Act (the Act), passed by Congress
in 1978, is intended to regulate placement and custody proceedings
involving Indian children in order to strengthen and preserve
Native American families and culture. See 25 U.S.C. §§ 1901 et
seq. (2006). In North Carolina, in order for the Act to apply, a
proceeding must first be determined to be a child custody
proceeding as defined by the Act itself, and it must then be
determined that the child in question is an Indian child of a
federally recognized tribe. In re A.D.L., 169 N.C. App. 701, 708,
612 S.E.2d 639, 644, disc. review denied, 359 N.C. 852, 619 S.E.2d
402 (2005). The burden is on the party invoking the Act to show
that its provisions are applicable to the case at issue, through
documentation or perhaps testimony from a tribe representative. In
re Williams, 149 N.C. App. 951, 957, 563 S.E.2d 202, 205 (2002). According to the Act,
In any involuntary proceeding in a State
court, where the court knows or has reason to
know that an Indian child is involved, the
party seeking the foster care placement of, or
termination of parental rights to, an Indian
child shall notify the parent or Indian
custodian and the Indian child's tribe, by
registered mail with return receipt requested,
of the pending proceedings and of their right
of intervention. . . . No foster care
placement or termination of parental rights
proceeding shall be held until at least ten
days after receipt of notice by the parent or
Indian custodian and the tribe or the
Secretary: Provided, That the parent or
Indian custodian or the tribe shall, upon
request, be granted up to twenty additional
days to prepare for such proceeding.
25 U.S.C. § 1912(a) (2006). These requirements of notice and time
for preparation allow an Indian tribe to intervene in a pending
custody proceeding in order to provide for placement with an Indian
family or guardian if possible.
Additionally, an Indian child's tribe shall have a right to
intervene at any point in the proceeding of any State court
concerning the foster care placement of an Indian child. 25 U.S.C.
§ 1911 (2006). The Act further provides that, even after the
conclusion of the proceedings, the tribe may petition any court of
competent jurisdiction to invalidate [any action for foster care
placement or termination of parental rights under State law] upon
a showing that such action violated the sections of the Act that
outline the proper procedures to follow. 25 U.S.C. § 1914 (2006). Here, the trial court was informed by Respondent-mother, at
the first scheduled adjudication and disposition hearing on 5 June
2006, that the Act might apply because she and the children might
be members of the Pokagen Band of the Potawatomi Indians. In
accordance with the provisions of the Act as to notice, the trial
court ordered DSS to notify the tribe of the pending proceedings
and their right to intervene, and then continued the hearing until
26 June 2006 to allow time for the tribe to respond. The record
contains the letter that DSS sent to the tribe, as well as a signed
return receipt indicating its effective delivery. When the hearing
reconvened on 26 June 2006, the trial court again continued the
case, as the tribe had not yet responded.
When the hearing reconvened again on 17 July 2006, Respondent-
mother requested another continuance but was denied. At that
point, approximately thirty days had passed since the notification
letter from DSS had been signed for at the address of the Pokagen
Band in Michigan, with no response or action taken by the tribe.
The only evidence offered by Respondent-mother that she and the
children were tribe members was her own word; no other
documentation was provided. The period of time that had passed
exceeded the statutory requirements of the Act, and Respondent-
mother failed to sustain her burden of proof to show the Act's
applicability to the case at hand. Under these circumstances, we
decline to find that the trial court abused its discretion in itsfinding that the Act did not apply, or in its refusal to continue
the case. If the Pokagen Band determines that Respondent-mother
and her children are tribe members, the tribe can still intervene
at a later date to revisit the placement issues in question.
Accordingly, we overrule this assignment of error.
 Next, Respondent-mother argues that several of the trial
court's findings of fact were not supported by competent, clear,
and convincing evidence. Again, we disagree.
In North Carolina, a neglected child is defined in part as
one who does not receive proper care, supervision, or discipline
from the juvenile's parent, guardian, custodian, or caretaker; . .
. or who is not provided necessary medical care; . . . or who lives
in an environment injurious to the juvenile's welfare[.] N.C.
Gen. Stat. § 7B-101 (2005). When reviewing a trial court's
adjudication of a minor child as neglected, this Court must
determine whether the trial court's findings of fact are supported
by clear and convincing evidence and whether these findings of fact
support the trial court's conclusions of law. In re Gleisner, 141
N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000); see also N.C. Gen.
Stat. § 7B-805 (2005) (requiring allegations of neglect to be
proven by clear and convincing evidence). However, if supported by
clear and convincing evidence, the trial court's findings of fact
are deemed conclusive, even where some evidence supports contraryfindings. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672,
Here, Respondent-mother specifically challenges ten of the
trial court's twenty-nine findings of fact, including that
Respondent-mother delayed taking C.P. for medical treatment for his
bruises because of her fear that DSS would take custody of the
children, and that the minor children have had other disciplinary
and developmental problems while in her care. She argues that the
evidence supporting these findings was overly vague and does not
meet the clear and convincing standard. However, after a careful
review of the record, exhibits, and transcript, we find no merit to
The DSS court report, the Guardian ad Litem court report, the
summary of Family Preservation Services, and testimony from several
witnesses at the hearing, including two DSS social workers, all
supported the findings of fact challenged by Respondent-mother,
even if there was also evidence that could have supported contrary
findings. Accordingly, this assignment of error is overruled.
 Next, Respondent-mother argues that the trial court's
conclusion that the minor children had been neglected was not
supported by sufficient, competent, clear, and convincing evidence
or findings of fact. We disagree.
Having determined that the trial court's findings of factwere, indeed, supported by clear and convincing evidence, we note
that those findings included facts such as Respondent-mother's
delay in seeking necessary medical care for C.P. for his bruising
and disciplinary, behavioral, and developmental problems displayed
by the children while in Respondent-mother's care that were not
present after their placement in foster care. Such findings
support the conclusion of law that the minor children are
neglected, under the statutory definition provided in North
Carolina General Statute 7B-101.
We emphasize, too, that when evaluating whether a child is
neglected, the d eterminative factors are the circumstances and
conditions surrounding the child, not the fault or culpability of
the parent; the fact that the parent loves or is concerned about
[the] child will not necessarily prevent the court from making a
determination that the child is neglected. In re Montgomery, 311
N.C. 101, 109, 316 S.E.2d 246, 252 (1984). The trial court's
findings went directly to the living situation of the children
while with Respondent-mother, including whether their problems had
persisted after being removed from her care. His conclusion of
neglect is consistent with those findings but does not suggest
Respondent-mother had not made efforts to learn how to better care
for the children nor that her neglect of the children was willful.
This assignment of error is therefore overruled.
 Finally, Respondent-mother argues that the trial court
erred in failing to provide for visitation between Respondent-
mother and the two older children, L.P. and N.P., as required by
North Carolina General Statute 7B-905. We agree.
According to North Carolina law, [a]ny dispositional order
under which a juvenile is removed from the custody of a parent,
guardian, custodian, or caretaker . . . shall provide for
appropriate visitation as may be in the best interests of the
juvenile and consistent with the juvenile's health and safety.
N.C. Gen. Stat. § 7B-905(c) (2005). Moreover, where custody is
removed from a parent . . . the court shall conduct a review
hearing within 90 days from the date of the dispositional hearing,
at which he should consider and make written findings of fact
regarding, among other issues
, [a]n appropriate visitation plan.
N.C. Gen. Stat. §§ 7B-906(a),(c)(6) (2005); see also In re E.C.
174 N.C. App. 517, 522, 621 S.E.2d 647, 651 (2005). Significantly,
[t]he trial court maintains the responsibility to ensure that an
appropriate visitation plan is established within the dispositional
order, and cannot leave the question of visitation to the
discretion of the appointed guardian. Id.
at 522, 621 S.E.2d at
Here, the trial court's order concluded that it was consistent
with the welfare of N.P. and L.P. to be placed with their father in
Arkansas, and with the welfare of C.P. to remain in his foster careplacement. It further concluded that it was consistent with the
welfare of all of the children for DSS to continue to utilize
reasonable efforts to eliminate the need for placement of the
The order decrees that DSS shall develop a schedule of
gradual visitation between [C.P] and his parents subject to the
conditions set forth herein,
but no reference is made to
visitation between Respondent-mother and N.P. and L.P., once they
have been placed with their father in Arkansas. Nor are there any
findings or conclusions that state _ or even suggest _ such
visitation would not be in the best interests of N.P. and L.P. or
would be otherwise inconsistent with their health and safety.
Furthermore, the record before us does not contain any
documentation from the review hearing of N.P. and L.P.'s placement,
scheduled for 21 August 2006, so we have no evidence of any
findings, conclusions, or orders by the trial court as to
visitation for Respondent-mother and the two older children. As
such, the trial court essentially left the question of visitation
to the discretion of the children's father, an impermissible
delegation of that authority. In re Custody of Stancil
, 10 N.C.
App. 545, 552, 179 S.E.2d 844, 849 (1971). Rather, in the absence
of findings that a parent has forfeited her right to visitation or
that it is in the child's best interest to deny visitation, the
court should safeguard the parent's visitation rights by a
provision in the order defining and establishing the time, place[,]and conditions under which such visitation rights may be
Because the trial court failed to make any findings that
visitation would harm the minor children in question, or to
otherwise provide for visitation between Respondent-mother and the
children, we remand for further proceedings regarding visitation
consistent with this opinion.
Affirmed in part, remanded in part.
Chief Judge MARTIN and Judge McGEE concur.
25 U.S.C. § 1912(a) (2006)
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