{ "id": 4278577, "name": "IN THE MATTER OF E.G.M.", "name_abbreviation": "In re E.G.M.", "decision_date": "2013-11-05", "docket_number": "No. COA13-584", "first_page": "196", "last_page": "213", "citations": [ { "type": "official", "cite": "230 N.C. App. 196" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "645 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638645 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0888-01" ] }, { "cite": "644 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638413 ], "year": 2007, "pin_cites": [ { "page": "594", "parenthetical": "quoting N.C.G.S. \u00a7 7B-507(b)(l)" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0588-01" ] }, { "cite": "653 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639971 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0581-01" ] }, { "cite": "629 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635823 ], "year": 2006, "pin_cites": [ { "page": "896-97" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0895-01" ] }, { "cite": "186 L. Ed. 2d 729", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12698479 ], "weight": 3, "year": 2013, "pin_cites": [ { "page": "733", "parenthetical": "Thomas, J., concurring" }, { "page": "740", "parenthetical": "\"[T]he purpose of [the ICWA] is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families].]\"" }, { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/us/570/0637-01" ] }, { "cite": "2012 SD 49", "category": "reporters:state", "reporter": "SD", "case_ids": [ 7067781 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nw2d/816/0110-01" ] }, { "cite": "316 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "873", "parenthetical": "describing origin of the Qualla Boundary lands in western North Carolina" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525718 ], "year": 1984, "pin_cites": [ { "page": "4", "parenthetical": "describing origin of the Qualla Boundary lands in western North Carolina" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0001-01" ] }, { "cite": "198 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "437", "parenthetical": "recognizing \"courts will take judicial notice of... political subdivisions of the State\"" } ], "opinion_index": 0 }, { "cite": "283 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560207 ], "year": 1973, "pin_cites": [ { "page": "712", "parenthetical": "recognizing \"courts will take judicial notice of... political subdivisions of the State\"" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0705-01" ] }, { "cite": "702 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "208 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181094 ], "year": 2010, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0160-01" ] }, { "cite": "714 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "499" } ], "opinion_index": 0 }, { "cite": "558 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "504", "parenthetical": "recognizing \"the need for permanency for young children\"" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365071 ], "year": 2002, "pin_cites": [ { "page": "238", "parenthetical": "recognizing \"the need for permanency for young children\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0228-01" ] }, { "cite": "665 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "57", "parenthetical": "\"The importance of timely resolution of cases involving the welfare of children cannot be overstated.\"" } ], "opinion_index": 0 }, { "cite": "362 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150160 ], "year": 2008, "pin_cites": [ { "page": "450", "parenthetical": "\"The importance of timely resolution of cases involving the welfare of children cannot be overstated.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0446-01" ] }, { "cite": "42 U.S.C. \u00a7 675", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(5)(C)" } ], "opinion_index": 0 }, { "cite": "599 N.W.2d 772", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "\"[U]nder the circumstances of this case, . . . remedial efforts would have been largely futile.\"" } ], "opinion_index": 0 }, { "cite": "97 Cal. Rptr. 2d 303", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 2000, "pin_cites": [ { "page": "308-09", "parenthetical": "\"The law does not require the performance of idle acts.\"" } ], "opinion_index": 0 }, { "cite": "2008 UT App 477", "category": "reporters:neutral", "reporter": "UT App", "case_ids": [ 8208247 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 30" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/p3d/200/0194-01" ] }, { "cite": "155 P.3d 634", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 8326868 ], "year": 2007, "pin_cites": [ { "page": "637", "parenthetical": "quoting In re J.S.B., 2005 SD 3, \u00b6 29, 691 N.W.2d at 621" } ], "opinion_index": 0, "case_paths": [ "/p3d/155/0634-01" ] }, { "cite": "2005 SD 3", "category": "reporters:state", "reporter": "SD", "case_ids": [ 9036023 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 21" }, { "page": "619" }, { "page": "\u00b6 29" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nw2d/691/0611-01" ] }, { "cite": "50 P.3d 388", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 11447622 ], "year": 2002, "pin_cites": [ { "page": "392", "parenthetical": "relying on the ASFA as support for its ruling that active efforts were not required under the ICWA in cases of sexual abuse by a parent" } ], "opinion_index": 0, "case_paths": [ "/p3d/50/0388-01" ] }, { "cite": "45 C.F.R. \u00a7 1356.21", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "year": 2012, "pin_cites": [ { "page": "(b)", "parenthetical": "\"The title IV-E agency must make reasonable efforts ... to effect the safe reunification of the child and family[.]\"" }, { "page": "(b)(3)" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 671", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 2011, "pin_cites": [ { "page": "(a)(15)(A)" }, { "page": "(a)(15)(A)" }, { "page": "(a)(15)(C)" } ], "opinion_index": 0 }, { "cite": "184 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185535 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/184/0289-01" ] }, { "cite": "183 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8202464 ], "year": 2007, "pin_cites": [ { "page": "214", "parenthetical": "quoting N.C.G.S. \u00a7 7B-507(b)(l)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0207-01" ] }, { "cite": "44 Fed. Reg. 67,584", "category": "reporters:federal", "reporter": "Fed. Reg.", "weight": 2, "pin_cites": [ { "page": "67,593" }, { "parenthetical": "stating the ICWA \"makes clear that knowledge of tribal culture and childrearing practices will frequently be very valuable to the court\"" } ], "opinion_index": 0 }, { "cite": "471 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6208461 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "766" }, { "page": "759" } ], "opinion_index": 0, "case_paths": [ "/us/471/0759-01" ] }, { "cite": "722 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "474", "parenthetical": "recognizing \"the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody[ - ]that the best interest of the child is the polar star\" (alteration in original; citation and quotations omitted)" } ], "opinion_index": 0 }, { "cite": "365 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154260 ], "year": 2012, "pin_cites": [ { "page": "381", "parenthetical": "recognizing \"the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody[ - ]that the best interest of the child is the polar star\" (alteration in original; citation and quotations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0374-01" ] }, { "cite": "742 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2013, "pin_cites": [ { "page": "593", "parenthetical": "noting the inconsistency between the finding of a \"reasonable probability\" that respondent-father would discipline his daughter with a bullwhip and the court's award of unsupervised visitation to the father" }, { "page": "595", "parenthetical": "\"[T]he findings fail to support a conclusion that reunification efforts 'clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time.' \"" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7 1912", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 20, "year": 2012, "pin_cites": [ { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "742 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "634", "parenthetical": "remanding for findings on the applicability of the ICWA" } ], "opinion_index": 0 }, { "cite": "681 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150891 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0570-01" ] }, { "cite": "187 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375233 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "538, 543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0536-01" ] }, { "cite": "568 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "903", "parenthetical": "\"Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process .... Legal conclusions are not the proper subject of judicial notice.\" (citations and quotation omitted)" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248584 ], "year": 2002, "pin_cites": [ { "page": "38", "parenthetical": "\"Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process .... Legal conclusions are not the proper subject of judicial notice.\" (citations and quotation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0025-01" ] }, { "cite": "538 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "620", "parenthetical": "declining judicial notice of police department regulations" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133018 ], "year": 2000, "pin_cites": [ { "page": "633-34", "parenthetical": "declining judicial notice of police department regulations" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0606-01" ] }, { "cite": "25 U.S.C. \u00a7 1919", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 7, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" }, { "page": "(a)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7 1922", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2012, "opinion_index": 0 }, { "cite": "28 U.S.C. \u00a7 1360", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2011, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "490 U.S. 30", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605240 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "48" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/us/490/0030-01" ] }, { "cite": "352 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "419", "parenthetical": "\"[0]ur State courts lack subject matter jurisdiction to determine paternity in [a] case where the child, mother and defendant are members of the Eastern Band of Cherokee Indians residing on the reservation.\"" } ], "opinion_index": 0 }, { "cite": "319 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748431 ], "year": 1987, "pin_cites": [ { "page": "63", "parenthetical": "\"[0]ur State courts lack subject matter jurisdiction to determine paternity in [a] case where the child, mother and defendant are members of the Eastern Band of Cherokee Indians residing on the reservation.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0052-01" ] }, { "cite": "716 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "213 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4233172 ], "year": 2011, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc-app/213/0353-01" ] }, { "cite": "177 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302880 ], "year": 2006, "pin_cites": [ { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0790-01" ] }, { "cite": "25 U.S.C. \u00a7 1903", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "year": 2012, "pin_cites": [ { "page": "(l)(i)" }, { "page": "(l)(i)" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7 1921", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "opinion_index": 0 }, { "cite": "881 P.2d 795", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2214464 ], "year": 1994, "pin_cites": [ { "page": "809-10" } ], "opinion_index": 0, "case_paths": [ "/or/320/0233-01" ] }, { "cite": "26 P.3d 1089", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 11088384 ], "year": 2001, "pin_cites": [ { "page": "1098" } ], "opinion_index": 0, "case_paths": [ "/p3d/26/1089-01" ] }, { "cite": "805 N.W.2d 44", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 7069871 ], "year": 2011, "pin_cites": [ { "page": "49", "parenthetical": "citing U.S. Const. art. VI, \u00a7 2" } ], "opinion_index": 0, "case_paths": [ "/nw2d/805/0044-01" ] }, { "cite": "25 U.S.C. \u00a7 1902", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2012, "opinion_index": 0 }, { "cite": "490 U.S. 163", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 604915 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "192", "parenthetical": "\"[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs[.]\"" }, { "page": "237", "parenthetical": "\"[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs[.]\"" } ], "opinion_index": 0, "case_paths": [ "/us/490/0163-01" ] }, { "cite": "25 U.S.C. \u00a71901", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7 1911", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 5, "year": 2012, "pin_cites": [ { "page": "(c)", "parenthetical": "\"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.\"" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7\u00a7 1901-63", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "opinion_index": 0 } ], "analysis": { "cardinality": 1458, "char_count": 44143, "ocr_confidence": 0.726, "pagerank": { "raw": 9.351962612806508e-08, "percentile": 0.5139797725658909 }, "sha256": "9240f1414421dc45af1e88896c46b497a7d8907a7ea86b3840ee4b0286adb801", "simhash": "1:30790717fbaf061a", "word_count": 7083 }, "last_updated": "2023-07-14T21:27:10.360096+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STROUD concur." ], "parties": [ "IN THE MATTER OF E.G.M." ], "opinions": [ { "text": "BRYANT, Judge.\nWhere the record does not contain sufficient findings of fact and conclusions of law to confirm subject matter jurisdiction under the Indian Child Welfare Act, we vacate the trial court order and remand for entry of findings as to subject matter jurisdiction.\nI. Procedural History\nIn November 2011, Jackson County Department of Social Services (\u201cDSS\u201d) filed petitions alleging that three-year-old E.G.M. (\u201cEllen\u201d) was a neglected juvenile and her four-year-old half-sister, \u201cNancy,\u201d was neglected and abused. The petitions arose from reports of abusive injuries inflicted on Nancy by respondent-father in Ellen\u2019s presence. DSS served notice that Ellen was subject to the Indian Child Welfare Act of 1978 (\u201cICWA\u201d or \u201cAct\u201d) as an eligible member of the Eastern Band of the Cherokee Indian Tribe (\u201cthe Tribe\u201d). 25 U.S.C. \u00a7\u00a7 1901-63 (2012). The Tribe intervened in the proceedings pursuant to 25 U.S.C. \u00a7 1911(c) (2012) (\u201cIn any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child\u2019s tribe shall have a right to intervene at any point in the proceeding.\u201d).\nOn 16 March 2012, the district court adjudicated Ellen a neglected juvenile. It entered adjudications of abuse and neglect as to Nancy and ordered respondent-father to be placed on the responsible individuals list. See N.C. Gen. Stat. \u00a7\u00a7 7B-101(18a), 7B-311(b)(2) (2011). In its subsequent \u201cOrder on Disposition\u201d entered 10 May 2012, the court awarded legal custody of Ellen to respondents and continued her placement in kinship care with respondent-mother, who had moved out of the marital residence after the petitions were filed. In a 90-day review order entered 15 November 2012, the court found that respondent-mother had been \u201cawarded custody of [Ellen] through a divorce action in the Cherokee Tribal Court.\u201d The district court ordered that legal custody would remain with respondent-mother on the condition that Ellen continue in her kinship placement with family friend J.F.\nFollowing a hearing on 7 January 2013, the court entered the instant permanency planning and review order on 18 February 2013. The order granted legal custody of Ellen to DSS and ordered her continued placement in the home of J.F. The court established a permanent plan of reunification with respondent-mother but relieved DSS of further efforts toward reunification with respondent-father. Both respondents filed notice of appeal from the 18 February 2013 permanency planning order.\nII. Applicability of the ICWA\nCongress enacted the ICWA pursuant to its \u201cplenary power over Indian affairs\u201d under U.S. Const, art. I, \u00a7 8, cl. 3. See 25 U.S.C. \u00a71901(1) (2012); see also Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 104 L. Ed. 2d 209, 237 (1989) (\u201c[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs[.]\u201d). The purpose of the ICWA was \u201cthe establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture])]\u201d 25 U.S.C. \u00a7 1902 (2012). Accordingly, where the Act provides a higher standard of protection to the Indian family than is otherwise provided by state law, the ICWA standard prevails. See, e.g., In re Welfare of Child of R.S., 805 N.W.2d 44, 49 (Minn. 2011) (citing U.S. Const. art. VI, \u00a7 2); T.F. v. Dep\u2019t of Health & Soc. Servs., 26 P.3d 1089, 1098 (Alaska 2001); Quinn v. Walters, 881 P.2d 795, 809-10 (Or. 1994). Where applicable state law \u201cprovides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under [the ICWA],\u201d the state law prevails. 25 U.S.C. \u00a7 1921 (2012).\nThe ICWA applies to all \u201cstate-court child custody proceedings involving Indian children[.]\u201d Adoptive Couple v. Baby Girl, 570 U.S. _, _, 186 L. Ed. 2d 729, 733 (2013) (Thomas, J., concurring). The Act defines \u201cchild custody proceeding\u201d to include any \u201cfoster care placement[.]\u201d 25 U.S.C. \u00a7 1903(l)(i) (2012). For purposes of the ICWA, \u201cfoster care placement\u201d refers to \u201cany action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated[.]\u201d Id. Inasmuch as the district court transferred legal custody of Ellen to DSS, leaving respondent-mother unable to demand her return from kinship care, the proceeding qualifies as a \u201cfoster care placement\u201d and thus, a \u201cchild custody proceeding\u201d under the ICWA.\nBecause Ellen is an Indian child, the parties agree that the ICWA applies.\nIII. Subject Matter Jurisdiction under the ICWA\nRespondents each challenge the district court\u2019s exercise of subject matter jurisdiction as contrary to the provisions of the ICWA. \u201cThe issue of subject matter jurisdiction may be considered by the court at any time, and may be raised for the first time on appeal.\u201d In re T.B., 177 N.C. App. 790, 791, 629 S.E.2d 895, 896-97 (2006). Whether the district court had subject matter jurisdiction is a question of law subject to de novo review. Powers v. Wagner, 213 N.C. App. 353, 357, 716 S.E.2d 354, 357 (2011). Although the court found that the ICWA \u201cdoes apply to this matter\u201d and asserted subject matter jurisdiction pursuant to N.C. Gen. Stat. \u00a7 7B-200 (2011), it made no findings or conclusions regarding its exercise of jurisdiction under the ICWA.\nThe ICWA allocates jurisdiction between tribal and state courts as follows:\n(a) ... An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law....\n(b) ... In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child\u2019s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child\u2019s tribe: Provided, That such transfer shall be subject to decimation by the tribal court of such tribe.\n(c) ... In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child\u2019s tribe shall have a right to intervene at any point in the proceeding.\n25 U.S.C. \u00a7 1911 (2012); cf. also Jackson Cnty. v. Swayney, 319 N.C. 52, 63, 352 S.E.2d 413, 419 (1987) (\u201c[0]ur State courts lack subject matter jurisdiction to determine paternity in [a] case where the child, mother and defendant are members of the Eastern Band of Cherokee Indians residing on the reservation.\u201d).\nFor purposes of the ICWA, Ellen\u2019s domicile was that of her parents. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 104 L. Ed. 2d 29, 46 (1989). At the time DSS filed the juvenile petition on 8 November 2011, respondents were domiciled in Cherokee, North Carolina, within the Tribe\u2019s Qualla Boundary land trust. Therefore, this case is governed by 25 U.S.C. \u00a7 1911, which grants exclusive jurisdiction to the tribal court, \u201cexcept where such jurisdiction is otherwise vested in the State by existing Federal law.\u201d 25 U.S.C. \u00a7 1911(a).\nExisting federal law provides three means by which a state court may exercise jurisdiction under subsection 25 U.S.C. \u00a7 1911(a). First, Public Law 280 provides six states \u2014 not including North Carolina \u2014 with jurisdiction over cases arising on \u201cIndian country within the State.\u201d 28 U.S.C. \u00a7 1360(a) (2011). Second, a state court may exercise emergency jurisdiction under the ICWA over an Indian child who is temporarily located off of the reservation \u201cin order to prevent imminent physical damage or harm to the child.\u201d 25 U.S.C. \u00a7 1922 (2012). Here, however, the district court did not purport to exercise emergency jurisdiction over Ellen, nor did it relinquish jurisdiction as contemplated by 25 U.S.C. \u00a7 1922. The record reflects that Ellen was safely in kinship care by agreement of respondents at the time DSS filed the juvenile petition. Finally, the ICWA authorizes ad hoc agreements between individual states and Indian tribes:\n(a) ... States and Indian tribes are authorized to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent jurisdiction between States and Indian tribes.\n(b) . . . Such agreements may be revoked by either party upon one hundred and eighty days\u2019 written notice to the other party....\n25 U.S.C. 1919 (2012).\nRespondents observe that the district court made no findings as to any agreement between the Tribe and the State affecting the tribal court\u2019s exclusive jurisdiction under 25 U.S.C. \u00a7 1919(a). Therefore, they contend, the court\u2019s orders in this cause are void.\nAppellees guardian ad litem, DSS, and The Eastern Band of Cherokee Indians ask this Court to take judicial notice of a memorandum of agreement (\u201cMOA\u201d) submitted by the guardian ad litem (\u201cGAL\u201d) as a supplement to the record on appeal. See N.C.R. App. P. 9(b)(5) (2013). Styled \u201cAgreement Between the Eastern Band of Cherokee Indians and the North Carolina Department of Health and Human Services, Division of Social Services; the Cherokee County Department of Social Services; the Graham County Department of Social Services; the Jackson County Department of Social Services; and the Swain County Department of Social Services[,]\u201d the MOA purports \u201cto establish, for the mutual benefit of the Parties, procedures which will provide for the enforcement of the [North Carolina\u2019s] Child Protective Services laws . . . consistent with the provision^] of the Indian Child Welfare Act[.]\u201d In pertinent part, the MOA provides that \u201c[t]he TRIBE agrees to defer to the jurisdiction of the State of North Carolina for the specific purpose of complying with Chapter 7B of the North Carolina General Statutes\u201d as authorized by 25 U.S.C. \u00a7 1919, and allows DSS to \u201cfile a Juvenile Petition in the District Court where the child resides pursuant to the provision of Chapter 7B\u201d if DSS deems an Indian child \u201cto be abused or at risk of being abused, neglected or dependent.\u201d The MOA was signed by the Tribe\u2019s principal chief on 8 December 2006, and by the directors of DSS and the state Division of Social Services on 16 March and 2 May 2007. In addition to providing for termination by the Tribe or State upon 180 days written notice, see 25 U.S.C. \u00a7 1919(b), the MOA allows for written modifications, if signed by all parties, and requires a joint review by the parties \u201cno less than once every three (3) years.\u201d\nUnder North Carolina Rules of Evidence, Rule 201, a court may take judicial notice of adjudicative facts that are \u201cnot subject to reasonable dispute in that [they are] either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.\u201d N.C.G.S. \u00a7 8C-1, Rule 201(b) (2011). \u201cJudicial notice may be taken at any stage of the proceeding.\u201d Id. \u00a7 8C-1, Rule 201(f) (2011). Moreover, where a party makes a request and provides the court with the necessary information, judicial notice is mandatory. Id. \u00a7 8C-1, Rule 201(d) (2011).\nBased on the materials before this Court, we are unable to take judicial notice of the MOA. As an evidentiary matter, the document tendered by the GAL is not certified or otherwise authenticated in accordance with our Rules of Evidence. N.C. Gen. Stat. \u00a7\u00a7 8C-1, Art. 9 (2011). The GAL provides no source for the MOA; and the record provides no means for this Court to determine its formal validity. Cf. Pallet, 283 N.C. at 712, 198 S.E.2d at 437 (\u201cJudicial notice is not taken of municipal ordinances, and annoying difficulties of proof may be encountered unless the ordinance is printed or published under proper authority.\u201d) (citation and quotations omitted); cf also Glenn-Robinson v. Acker, 140 N.C. App. 606, 633\u201434, 538 S.E.2d 601, 620 (2000) (declining judicial notice of police department regulations). Nor are we persuaded that an MOA executed under 25 U.S.C. \u00a7 1919(a) falls within the ambit of \u201cadjudicative facts\u201d as contemplated by N.C.G.S. \u00a7 8C-1, Rule 201 (2011). We are unable to determine, for example, whether such an agreement has been subject to an intervening modification by the parties or a revocation by the Tribe or the State as contemplated by 25 U.S.C. \u00a7 1919(b). We therefore conclude that the existence of the agreement between the Tribe and the State under the ICWA is in the nature of a \u201clegislative fact\u201d not subject to judicial notice. See Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 38, 568 S.E.2d 893, 903 (2002) (\u201cLegislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process .... Legal conclusions are not the proper subject of judicial notice.\u201d (citations and quotation omitted)).\nBoth DSS and the Tribe insist that the MOA\u2019s existence is \u201cgenerally known within the territorial jurisdiction of the trial court[,]\u201d N.C.G.S. \u00a7 8C-1, Rule 201(b) (2011), as evidenced by the fact that \u201cfour of the seven county departments of social services in the 30th Judicial District of North Carolina are signatories\u201d thereto. The GAL suggests that the district court took judicial notice of the MOA implicitly. As nothing in the trial court record makes reference to the MOA, however, we have no means by which to determine the state of general knowledge within Jackson County or the basis for the court\u2019s exercise of subject matter jurisdiction.\nBecause the question of the district court\u2019s jurisdiction under the ICWA cannot be resolved based on the evidence of record, we must remand the cause \u201cfor a determination of subject matter jurisdiction.\u201d In re M.G., 187 N.C. App. 536, 538, 543, 653 S.E.2d 581, 585 (2007), rev\u2019d in non-pertinent part, 363 N.C. 570, 681 S.E.2d 290 (2009); see also In re A.R, _ N.C. App. _, _, 742 S.E.2d 629, 634 (2013) (remanding for findings on the applicability of the ICWA).\nNotwithstanding our ruling, we proceed to address respondents\u2019 remaining arguments on appeal \u201cin the interests of expediting review. In the event that the trial court concludes on remand that it lacks subject matter jurisdiction..., then it will be required to dismiss the petition[.]\u201d In re M.G., 187 N.C. App. at 548 n.5, 653 S.E.2d at 588 n.5.\nIV. Requirements for Foster Care Placement under the ICWA\nRespondent-mother next claims the trial court violated the ICWA by placing Ellen in DSS custody without clear and convincing evidence, including qualified expert testimony, that the child would likely suffer serious emotional or physical damage if she remained in the custody of respondent-mother. See 25 U.S.C. \u00a7 1912(e) (2012). While conceding that the district court made the necessary finding under 25 U.S.C. \u00a7 1912(e), she contends that the finding was not based on expert testimony adduced at the 7 January 2013 permanency planning hearing or otherwise supported by clear and convincing evidence at the hearing.\nThe relevant statute provides as follows:\nNo foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.\nId. \u00a7 1912(e). As previously noted, the district court\u2019s transfer of legal custody from respondent-mother to DSS while leaving Ellen in kinship care constituted a foster care placement subject to the requirements of 25 U.S.C. \u00a7 1912(e). See id. \u00a7 1903(l)(i).\nThe record reflects that Jenny Bean, case manager for Cherokee Family Support Services, testified at Ellen\u2019s initial dispositional hearing on 4 April 2012 as an expert in \u201cIndian Culture as it Applies to Indian Child Rearing[.]\u201d hi its May 2012 dispositional order, the district court made the following finding of fact by clear and convincing evidence: \u201cIn [Bean\u2019s] expert opinion, which the Court finds as fact, continued custody or a return to the custody of [respondent-father] and/or [respondent-mother] would likely cause serious physical or emotional damage to [Ellen].\u201d Although Bean did not testify at any subsequent hearing, both the court\u2019s 15 November 2012 review order and its 18 February 2013 permanency planning order include the following finding:\nThat Jenny Bean, case manager for Cherokee Family. Support Services, previously testified and was received by the Court as an expert witness .... In her expert opinion, which the Court finds as fact, continued custody or a return of the custody of [respondent-father] and/or [respondent-mother] would likely cause serious physical or emotion damage to [Ellen],\n(emphasis added). The finding is identical to the initial finding at disposition, except for the court\u2019s reference to Bean\u2019s \u201cprevious\u201d testimony.\nA. Timing of Qualified Expert Testimony under 25 U.S.C. \u00a7 1912(61\nIn urging this Court to uphold the permanency planning order, appellees note that 25 U.S.C. \u00a7 1912(e) does not require that the expert testify contemporaneously to the court\u2019s decision to order a foster care placement, merely that such testimony be presented. Respondent-mother disagrees. We have found no case law from other jurisdictions interpreting this specific aspect of 25 U.S.C. \u00a7 1912(e), and the issue is one of first impression for our appellate courts.\nThe practical flaw in appellees\u2019 position is revealed by their characterization of respondent-mother\u2019s appeal as an impermissible collateral attack on the 10 May 2012 disposition order which contained the district court\u2019s first iteration of the contested finding. Indeed, appellees assert that \u201cthe doctrine of collateral estoppel prevents respondent[-]mother from attacking this finding of fact[,]\u201d having failed to appeal the original disposition order. We find this argument unpersuasive. Respondent-mother had no occasion to appeal from the initial disposition order in this cause, inasmuch as it awarded her both legal custody and physical care of her daughter. Indeed, as she observes, appellees\u2019 argument highlights the inherent conflict between the court\u2019s disposition and its finding \u2014 purportedly based on expert testimony and clear and convincing evidence \u2014 that continuing Ellen in respondent-mother\u2019s custody \u201cwould likely cause serious physical or emotional damage\u201d to the child. Cf. In re I.K., _ N.C. App. _, _, 742 S.E.2d 588, 593 (2013) (noting the inconsistency between the finding of a \u201creasonable probability\u201d that respondent-father would discipline his daughter with a bullwhip and the court\u2019s award of unsupervised visitation to the father). The fact that the court waited until February of 2013 to remove Ellen from respondent-mother\u2019s custody, despite reiterating its finding of a likelihood of serious damage to the child in its November 2012 review order, \u201cseems irrational\u201d and calls into question the solemnity of the court\u2019s fact-finding. Id.\nNotwithstanding Congress\u2019s avowed goal of preserving Indian families, we do not believe the ICWA contemplates a court leaving an Indian child in a parent\u2019s custody after finding a likelihood of serious physical or emotional damage to the child under 25 U.S.C. \u00a7 1912(e). Such an outcome would be contrary to the overriding concern on the child\u2019s best interests that lies at the heart of both the ICWA and our state\u2019s Juvenile Code. See Adoptive Couple, _ U.S. at _, 186 L. Ed. 2d at 740 (\u201c[T]he purpose of [the ICWA] is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families].]\u201d) (emphasis added) (citation and quotations omitted); In re M.I.W., 365 N.C. 374, 381, 722 S.E.2d 469, 474 (2012) (recognizing \u201cthe fundamental principle underlying North Carolina\u2019s approach to controversies involving child neglect and custody[ \u2014 ]that the best interest of the child is the polar star\u201d (alteration in original; citation and quotations omitted)). In other words, a determination under 25 U.S.C. \u00a7 1912(e) that \u201ccontinued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child\u201d should result in the child\u2019s removal from custody at the time such determination is made, not nine months and multiple hearings thereafter. While we need not consider whether a 25 U.S.C. \u00a7 1912(e) determination requires the court to order a foster care placement, we are persuaded that Congress intended the determination to be made contemporaneously to any such placement. Our conclusion is fully consistent with the ICWA\u2019s purpose as well as the principle that \u201cstatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit[.]\u201d Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 85 L. Ed. 2d 753, 759 (1985). We therefore hold that a determination under 25 U.S.C. \u00a7 1912(e) must be supported by evidence, including expert testimony, introduced at the proceeding that results in the foster care placement.\nB. \u201cQualified Expert Witnesses\u201d under the ICWA\nAlthough the ICWA does not define \u201cqualified expert witnesses,\u201d non-binding guidelines promulgated by the Bureau of Indian Affairs emphasize \u201cthat Congress attribute [d] many unwarranted removals of Indian children to cultural bias on the part of the courts and social workers making the decisions.\u201d Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593, (Nov. 26,1979). Therefore, the guidelines offer the following list of \u201c[p]ersons . . . most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:\u201d\n(i) A member of the Indian child\u2019s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.\n(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child\u2019s tribe.\n(iii) A professional person having substantial education and experience in the area of his or her specialty.\nId. (stating the ICWA \u201cmakes clear that knowledge of tribal culture and childrearing practices will frequently be very valuable to the court\u201d).\nWe note that pediatric psychologist Dr. Lydia Aydlett testified as an expert at the 7 January 2013 permanency planning hearing but offered no opinion regarding the likelihood of serious physical or emotional damage to Ellen in respondent-mother\u2019s custody. Nor did the court purport to rely upon her opinion in making its determination under 25 U.S.C. \u00a7 1912(e), instead citing the previous testimony of Ms. Bean. We further note that Dr. Aydlett did not profess any expertise in matters of Cherokee tribal culture or childrearing practices. While we need not define the specific requirements for a qualified expert witness under the ICWA, we do not believe Dr. Aydlett\u2019s hearing testimony or the few findings based thereon were sufficient to comply with 25 U.S.C. \u00a7 1912(e).\nC. Conclusion\nIn order to sustain a foster care placement under the ICWA, the \u201cdetermination . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child\u201d must be \u201csupported by clear and convincing evidence, including testimony of qualified expert witnesses,\u201d adduced at the proceeding that results in the \u201cplacement. . . be[ing] ordered[.]\u201d 25 U.S.C. \u00a7 1912(e). Because the qualified expert cited by the district court did not testify at the permanency planning hearing, its order awarding legal custody to DSS must be vacated and the cause remanded for further proceedings consistent with the ICWA.\nV. Ceasing Reunification Efforts as to Respondent-Father\nRespondent-father challenges the district court\u2019s ceasing of reunification efforts pursuant to N.C. Gen. Stat. \u00a7 7B-507(b)(l) (2011). Generally, \u201c[a] trial court may cease reunification efforts upon making a finding that further efforts \u2018would be futile or would be inconsistent with the juvenile\u2019s health, safety, and need for a safe, permanent home within a reasonable period of time[.]\u2019 \u201d In re C.M., 183 N.C. App. 207, 214, 644 S.E.2d 588, 594 (2007) (quoting N.C.G.S. \u00a7 7B-507(b)(l)). The order includes a conclusion of law that DSS \u201cshall be relieved of the requirement that it make reasonable efforts to reunify [Ellen] with the Respondent Father as those efforts would be futile or inconsistent with [her] need for a safe, permanent home within a reasonable period of time.\u201d However, respondent-father claims that the ICWA overrides N.C.G.S. \u00a7 7B-507(b)(l). In the alternative, he contends the court\u2019s decision to cease reunification efforts under subpart (b)(1) was unsupported by its findings or the evidence.\nCiting In re D.K.H., 184 N.C. App. 289, 645 S.E.2d 888 (2007), appellees respond that respondent-father has no right of immediate appeal from the order ceasing reunification efforts under N.C.G.S. \u00a7 7B-1001(a) (5). Id. at 291,645 S.E.2d at 890. Unlike the order at issue in In re D.K.H., the 18 February 2013 permanency planning order also \u201cchange[d] legal custody of\u2019 Ellen from respondent-mother to DSS. N.C.G.S. \u00a7 7B-1001(a) (4). The order is thus immediately appealable pursuant to N.C.G.S. \u00a7 7B-1001(a)(4) and properly before this Court for review.\nA. Ceasing Reunification Efforts under the ICWA\nRaising an issue of first impression in this Court, respondent-father argues the ICWA prohibits the ceasing of \u201cactive efforts\u201d to reunify an Indian family at any time prior to a termination of parental rights. 25 U.S.C. \u00a7 1912(d) (2012). He notes the ICWA makes no provision for ceasing such efforts toward the Indian family and cites the following statutory language as evincing its contrary intention:\nAny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.\nId. By requiring a finding of unsuccessful efforts both prior to placing a child in foster care and prior to termination of parental rights, respondent-father claims, the ICWA \u201cdoes not allow the agency to give up on reuniting an Indian family until it has reached the final stage of the court proceedings\u201d - resulting in either a termination of parental rights or the return of the child to the parents. Moreover, because the ICWA establishes \u201cminimum Federal standards\u201d for the protection of Indian families, id. \u00a7 1902, it prevails over any conflicting state law providing lesser protections.\nBy requiring \u201creasonable efforts\u201d toward reunification, the North Carolina Juvenile Code incorporates the standard established by the Adoption and Safe Families Act (\u201cASFA\u201d) as a condition of federal funding under Title IV-E. 42 U.S.C. \u00a7 671(a)(15)(A) (2011); N.C. Gen. Stat. \u00a7 7B-100(5) (2011); see also 45 C.F.R. \u00a7 1356.21(b) (2012) (\u201cThe title IV-E agency must make reasonable efforts ... to effect the safe reunification of the child and family[.]\u201d); N.C. Gen. Stat. \u00a7 7B-101(18) (2011) (defining \u201creasonable efforts\u201d). The ASFA specifies that \u201cthe child\u2019s health and safety shall be the paramount concern\u201d when applying the term \u201creasonable efforts\u201d in a given case. 42 U.S.C. \u00a7 671(a)(15)(A). The ASFA further enumerates four circumstances in which reasonable efforts are not required: (1) when \u201cthe parent has subjected the child to aggravated circumstances\u201d such as torture; (2) when the parent has been convicted of murder or voluntary manslaughter of a parent or sibling of the child, or of a felonious assault that resulted in serious bodily injury to any of the parent\u2019s children; (3) when the parent\u2019s rights as to a sibling of the child have been involuntarily terminated; and (4) when such efforts are \u201cdetermined to be inconsistent with the permanency plan for the child[.]\u201d 42 U.S.C. \u00a7 671(a)(15)(C)-(D); 45 C.F.R. \u00a7 1356.21(b)(3). These circumstances are reflected in our courts\u2019 authority to cease reunification efforts under N.C.G.S. \u00a7 7B-507(b)(l)-(4).\nWhether the ICWA forbids the ceasing of reunification efforts in circumstances where it is otherwise allowed by the ASFA is a matter of dispute among the states. Compare J.S. v. State, 50 P.3d 388, 392 (Alaska 2002) (relying on the ASFA as support for its ruling that active efforts were not required under the ICWA in cases of sexual abuse by a parent), with In re J.S.B., 2005 SD 3, \u00b6 21, 691 N.W.2d 611, 619 (\u201c[W]e do not think Congress intended that ASFA\u2019s \u2018aggravated circumstances\u2019 should undo the State\u2019s burden of providing \u2018active efforts\u2019 under [the] ICWA.\u201d). A consensus has emerged, however, that \u201c[although the state must make \u2018active efforts\u2019 under the ICWA, it need not \u2018persist with futile efforts.\u2019 \u201d In re K.D., 155 P.3d 634, 637 (Colo. App. 2007) (quoting In re J.S.B., 2005 SD 3, \u00b6 29, 691 N.W.2d at 621); accord State ex rel. C.D., 2008 UT App 477, \u00b6 30, 200 P.3d 194, 205 (\u201c[T]he State must demonstrate that active efforts have been made with respect to the specific parent or Indian custodian ... or provide evidence that such efforts would be futile.\u201d); Letitia v. Superior Court of Orange Cnty., 97 Cal. Rptr. 2d 303, 308-09 (Cal. Ct. App. 2000) (\u201cThe law does not require the performance of idle acts.\u201d); In re S.D., 599 N.W.2d 772, 775 n.3 (Mich. Ct. App. 1999) (\u201c[U]nder the circumstances of this case, . . . remedial efforts would have been largely futile.\u201d).\nWe join our sister states in concluding that the court may order the cessation of reunification efforts in ICWA cases if it finds that \u201c[s]uch efforts clearly would be futile.\u201d N.C.G.S. \u00a7 7B-507(b)(l). Moreover, we do not believe the ICWA requires reunification efforts to persist if they are \u201cclearly . . . inconsistent with the juvenile\u2019s health, safety, and need for a safe, permanent home within a reasonable period of time.\u201d Id. As previously noted, the ICWA shares the primary aim of the ASFA and our Juvenile Code to protect and serve the best interests of children. See Adoptive Couple,_. U.S. at_, 186 L. Ed. 2d at 740. As shown by the ASFA\u2019s imposition of strict deadlines to attain permanency for children in foster care, 42 U.S.C. \u00a7 675(5)(C), (E) (2011), both timeliness and permanency are essential to a child\u2019s well-being. See In re T.H.T., 362 N.C. 446, 450, 665 S.E.2d 54, 57 (2008) (\u201cThe importance of timely resolution of cases involving the welfare of children cannot be overstated.\u201d); In re Fletcher, 148 N.C. App. 228, 238, 558 S.E.2d 498, 504 (2002) (recognizing \u201cthe need for permanency for young children\u201d) (citation and quotation omitted).\nWe are not convinced by respondent-father\u2019s structural argument that the language of 25 U.S.C. \u00a7 1912(d) prohibits the ceasing of reunification efforts prior to the proceeding to terminate parental rights. This subsection merely requires a finding, both before ordering a foster care placement and before terminating parental rights, that \u201cactive efforts\u201d to prevent the disruption of the Indian family \u201cproved unsuccessful.\u201d If a court ceases such efforts at the time of the foster care placement, and the case then proceeds to termination, the court may simply cite the pre-foster-care efforts in making the necessary finding under 25 U.S.C. \u00a7 1912(d).\nWe hold that the authority of North Carolina\u2019s district courts to cease reunification efforts under N.C.G.S. \u00a7 7B-507(b)(l) does not conflict with \u201cminimum Federal standards\u201d for Indian child welfare cases established by the ICWA. 25 U.S.C. \u00a7 1902 (2012). The policy concerns that animate the ICWA do not oblige our social service agencies to undertake actions inconsistent with the welfare of Indian children. We recognize that the ICWA\u2019s application to a case will require \u201cactive efforts\u201d toward reunification, rather than the \u201creasonable efforts\u201d generally required by our Juvenile Code. It may also inform a court\u2019s assessment of what constitutes \u201ca reasonable period of time\u201d for purposes of N.C.G.S. \u00a7 7B-507(b) (1), if warranted by tribal culture or childrearing practices. As neither of these issues are raised by respondent-father\u2019s appeal, we need not address them.\nB. Sufficiency of Findings\nRespondent-father also claims that \u201cthe court made no specific findings regarding why continued reasonable efforts (or active efforts) were futile.\u201d We agree.\nDespite its statutory designation as a finding or \u201cultimate finding[,]\u201d see In re I.R.C., _ N.C. App. _, _, 714 S.E.2d 495, 499 (2011), the determination that grounds exist to cease reunification efforts under N.C.G.S. \u00a7 7B-507(b)(l) is in the nature of a conclusion of law that must be supported by adequate findings of fact. See In re I.K., _ N.C. App. _, _, 742 S.E.2d 588, 595 (2013) (\u201c[T]he findings fail to support a conclusion that reunification efforts \u2018clearly would be futile or would be inconsistent with the juvenile\u2019s health, safety, and need for a safe, permanent home within a reasonable period of time.\u2019 \u201d) (citing In re T.R.M., 208 N.C. App. 160,162, 702 S.E.2d 108,109 \u2014 10 (2010)).\nHere, the court found that respondent-father was \u201ccurrently in federal custody and unable to attend this hearing.\u201d After listing the conditions of his case plan, the court made the following additional findings about respondent-father:\n16. . . . The Respondent Father has no visitation at this time.\n24. That on at least one occasion the Respondent Mother has spoken to the Respondent Father, despite the requirement that he have no contact with potential witnesses in his federal case. [He] reported to the Department\u2019s social worker that he had never gone to the Respondent Mother\u2019s apartment, but that the Respondent Mother was doing his wash for him and that he would see her from time to time away from her apartment.\n25. That the Respondent Father\u2019s criminal attorney had filed a motion to allow the Respondent Father to have contact with the Respondent Mother because the Respondent Father did not think that [she] would be a witness. This was done because the [respondents] still have bills together. The Respondent Father has admitted to the social worker that he has spoken to the Respondent Mother by telephone....\nPlainly, these limited facts do not show that further efforts to reunify Ellen with her father \u201cwould be futile or inconsistent with [her] need for a safe, permanent home within a reasonable period of time.\u201d The specific factual findings in the order mostly address the actions and situation of respondent-mother. In addition, the order did not find any facts by reference to or incoiporation by reference of any of the reports submitted to the trial court or prior orders, although the order does note that various exhibits and reports were \u201cadmitted into evidence.\u201d From these reports and prior orders, it appears that the trial court previously found in the disposition order that respondent-father \u201ckicked [Nancy] down the stairs\u201d and caused a serious and life-threatening injury to her small intestine, for which she had surgery and \u201cwas on a ventilator for approximately one week and in the Pediatric Intensive Care Unit (PICU) for 17 days.\u201d Respondent-father is under federal indictment for various felony charges as a result of his abuse of Nancy. There is also evidence that Ellen saw respondent-father kick her half-sister down the stairs and that she was traumatized by this event. Therefore, while there may be evidence in the record to support a determination that further efforts would be futile, it is up to the trial court to make proper factual findings based on the record evidence.\nAccordingly, we reverse the order ceasing reunification efforts \u201cand remand for entry of an order containing proper findings and conclusions.\u201d In re I.K.,__N.C. App. at_, 742 S.E.2d at 596. The court may receive additional evidence on this issue, within its sound discretion. Id.\nVI. Conclusion\nThe district court\u2019s permanency planning order is hereby vacated. We remand to the court for further proceedings to include entry of findings of fact and conclusions of law on the following issues: (1) whether the court has subject matter jurisdiction under the ICWA; and if so (2) whether clear and convincing evidence at the hearing, including testimony of qualified expert witnesses, shows that respondent-mother\u2019s continued custody is likely to result in serious emotional or physical damage to Ellen; and (3) whether reunification efforts should cease as to respondent-father.\nVacated and remanded.\nJudges McGEE and STROUD concur.\n. Pseudonyms have been used to protect the identities of the juveniles.\n. Respondent-mother is the mother of Ellen. Nancy\u2019s mother did not appeal and is not a respondent in this matter. Respondent-father is the father of both Ellen and Nancy.\n. This order addresses only Ellen and the respondent-parents in this action.\n. Pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 201(c) (2011), we take judicial notice that the Town of Cherokee lies within the Qualla Boundary. See State v. W.N. C. Pallet & Forest Products Co., 283 N.C. 705, 712, 198 S.E.2d 433, 437 (1973) (recognizing \u201ccourts will take judicial notice of... political subdivisions of the State\u201d); Wildcatt v. Smith, 69 N.C. App. 1, 4, 316 S.E.2d 870, 873 (1984) (describing origin of the Qualla Boundary lands in western North Carolina).\n. Afijudicative facts \u201care the facts that normally go to the jury in a jury case\u201d and involve \u201cthe immediate parties \u2014 who did what, where, when, how, and with what motive or intent[.]\u201d N.C.G.S. \u00a7 8C-1, Rule 201, commentary (quotation omitted). \u201cLegislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body.\u201d Id.\n. We recognize that the court\u2019s 90-day review order of 15 November 2012 conditioned respondent-mother\u2019s legal custody upon Ellen\u2019s kinship placement with J.E This condition did not eliminate respondent-mother\u2019s legal right to demand the child\u2019s return, albeit with likely consequences. We further note that respondent-mother had no ability to appeal the 15 November 2012 review order, Inasmuch as it did not \u201cchang[e] legal custody\u201d of Ellen. N.C. Gen. Stat. \u00a7 7B-1001(a)(4) (2011). We thus conclude that the court\u2019s formal transfer of legal custody from respondent-mother to DSS on 18 February 2013 amounted to Ellen\u2019s \u201cfoster care placement\u201d under 25 U.S.C. \u00a7 1903(l)(i).\n. Most states addressing the issue have held that the ICWA\u2019s \u201cactive efforts requirement \u2018sets a higher standard for social services departments than the reasonable efforts required by state statutes.\u2019\u201d People ex re\u00ed. P.S.E., 2012 SD 49, \u00b6 18, 816 N.W.2d 110, 115 (quotation omitted). However, respondent father disavows any objection to the quality of DSS\u2019s previous reunification efforts. We note the court did find that DSS had engaged in \u201cactive efforts to rehabilitate the Indian Family.\u201d", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Mary G. Holliday, agency attorney for petitioner-appellee Jackson County Department of Social Services.", "Angela Lewis, counsel for petitioner-appellee The Eastern Band of Cherokee Indians.", "Administrative Office of the Courts, by Associate Counsel Deana K. Fleming, for guardian ad litem.", "Assistant Appellate Defender Joyce L. Torres for respondent-appellant father.", "Richard Croutharmelfor respondent-appellant mother." ], "corrections": "", "head_matter": "IN THE MATTER OF E.G.M.\nNo. COA13-584\nFiled 5 November 2013\n1. Native Americans \u2014 child neglect proceeding \u2014 Indian Child Welfare Act\nThe Indian Child Welfare Act (ICWA) was applicable to a child neglect proceeding where the district court transferred legal custody of the child to the Department of Social Services. The ICWA applies to all state court child custody proceedings involving Indian children. This proceeding qualified as a \u201cfoster care placement\u201d and thus a \u201cchild custody proceeding\u201d under the ICWA.\n2. Jurisdiction \u2014 subject matter \u2014 Native American child\u2014 neglect \u2014 agreement with tribe \u2014 record insufficient\nThe question of the district court\u2019s jurisdiction under the Indian Child Welfare Act (ICWA) in a child neglect proceeding could not be resolved on the record presented and the matter was remanded for a determination of subject matter jurisdiction. While the State may exercise subject matter jurisdiction pursuant to an agreement with the Eastern Band of the Cherokee Indian Tribe, and a Memorandum of Agreement between the Tribe and the State was tendered, the document was not authenticated and the trial record contained no reference to it.\n3. Native Americans \u2014 placement of child in foster care \u2014 supporting testimony \u2014 prior hearing\nThe trial court\u2019s placement of a child in foster care under the Indian Child Welfare Act must be supported by evidence, including expert testimony, introduced at the proceeding that results in the foster care placement.\n4. Native Americans \u2014 neglected child \u2014 foster care \u2014 supporting testimony \u2014 not sufficient\nThe removal to foster care of an allegedly neglected child who was a member of the Eastern Band of the Cherokee Indian tribe was not supported by the expert testimony where the court relied upon the testimony of a case manager for Cherokee Family Support Services from a prior hearing. The pediatric psychologist who testified as an expert at the foster care hearing offered no opinion regarding the likelihood of serious physical or emotional damage to the child in respondent mother\u2019s custody and did not profess any expertise in matters of Cherokee tribal culture or childrearing practices.\n5. Appeal and Error \u2014 interlocutory orders and appeals\u2014 child custody \u2014 changed from mother to DSS \u2014 immediately appealable\nA permanency planning order that changed legal custody of a child from respondent mother to DSS was immediately appealable.\n6. Native Americans \u2014 child neglect \u2014 foster case \u2014 cessation of reunification efforts \u2014 findings\nThe authority of North Carolina\u2019s district courts to cease family reunification efforts under N.C.G.S. \u00a7 7B-507(b)(l) does not conflict with \u201cminimum Federal standards\u201d for Indian child welfare cases established by the Indian Child Welfare Act. The Act merely requires a finding, both before ordering a foster care placement and before terminating parental rights, that \u201cactive efforts\u201d to prevent the disruption of the Indian family \u201cproved unsuccessful.\u201d The policy concerns that animate the ICWA do not oblige our social service agencies to undertake actions inconsistent with the welfare of Indian children.\n7. Appeal and Error \u2014 findings\u2014not made by trial court \u2014 evidence in the record\nAn order in a child neglect case, involving the Indian Child Welfare Act, that ceased reunification efforts was reversed and remanded for proper findings. While there may be evidence in the record to support a determination that further efforts would be futile, it was up to the trial court to make proper factual findings based on the record evidence.\nAppeal by respondent-mother and respondent-father from order entered 18 February 2013 by Judge Donna Forga in Jackson County District Court. Heard in the Court of Appeals 8 October 2013.\nMary G. Holliday, agency attorney for petitioner-appellee Jackson County Department of Social Services.\nAngela Lewis, counsel for petitioner-appellee The Eastern Band of Cherokee Indians.\nAdministrative Office of the Courts, by Associate Counsel Deana K. Fleming, for guardian ad litem.\nAssistant Appellate Defender Joyce L. Torres for respondent-appellant father.\nRichard Croutharmelfor respondent-appellant mother." }, "file_name": "0196-01", "first_page_order": 206, "last_page_order": 223 }