Unpublished Nebraska Court of Appeals Case on Active Efforts (ICWA).


We rarely post unpublished ICWA cases because otherwise that’s all we would do. However, in this case involving an analysis of active efforts, the court found that:

Efforts made in this case included facilitating supervised visits, providing family support hours, drug testing, offering parenting classes to Nathaniel, placing Aviyanah in a NICWA-compliant foster home, and taking steps to enroll Aviyanah in the Rosebud Sioux tribe. Additionally, Nathaniel was provided transportation to visitations and during his job search.

Emphasis added.

This is not an active effort. This is the minimum requirement of 25 U.S.C. 1915 (placement preferences).



Active Efforts Case out of the Nebraska Court of Appeals


NICWA, however, adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. In re Interest of Walter W., supra. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. See § 43-1505(4); see also In re Interest of Walter W., supra. Second, the State must prove by evidence beyond a reasonable doubt, 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. See § 43-1505(6).


Although the record indicates that for the first two years this case was pending in the juvenile court, there is some question about whether the Department was doing as much as it “possibly could have been” under an active efforts standard, it is clear that for the last two years this case was pending, the Department was providing Louisa with active efforts toward achieving reunification with her children. Despite the two years of active efforts, Louisa failed to make significant or sustainable progress towards reunification. Moreover, while we recognize that during the beginning stages of the juvenile court case the Department may have failed to provide active efforts, this does not mean that the Department failed to provide any efforts. The record is clear that Louisa has been receiving services from the Department since prior to the petition being filed in this case in November 2011. Despite all of those efforts, coupled with the Department’s recent active efforts, Louisa has not made progress towards reunification with her children. Louisa’s assertion that she has not been given enough time to turn her life around is simply without merit.


Unpublished Expert Witness Case out of Nebraska


In this case, the State called Patterson to testify that returning Eyllan to Nathaniel’s care was likely to result in serious emotional or physical damage to him. Patterson is currently employed as a school psychologist. Her educational background includes an education specialist degree and a bachelor’s degree in social work. Previous to her current employment position, she has worked as a social worker who specialized in and worked exclusively with Native American families. As a part of this employment, she provided expert testimony in NICWA cases, developed activities for children living outside of their tribe to maintain “cultural connectiveness,” and worked with tribes to facilitate enrollment of Indian children. In addition,Patterson has experience providing parental supervision, parenting education, and in-home counseling for Native American families. Patterson testified that she continues to have knowledge of “the prevailing social and cultural standard for rearing children within the Native American community.” She also indicated that she has experience with the Sioux Tribe, which is the tribe in which Eyllan is eligible for enrollment.

One side note–the Nebraska Court of Appeals only cites to the Nebraska ICWA rather than the federal ICWA (they do also cite to the BIA Guidelines via an NE Supreme Court case). Without reading through the whole statute, the state version does appear to essentially mirror the federal one. However, this week I had a conversation about how important it turned out to be for Michigan, specifically regarding investment in state education and state training on ICWA issues, to have a state ICWA law passed. Cases like this reinforce that belief.

Two Additional Links of Interest Regarding the Nebraska ICWA Truancy Case

Here is the audio of the oral arguments for the case we posted on here.

And here is a UCLA Law Review Discourse (online) article on the problematic framing of truancy in general.

Nebraska Court of Appeals Overturns Lower Court Removing Child for Truancy Under ICWA

Opinion here (from June 24).

On February 26, 2013, the juvenile court ordered Mischa to be placed into foster care and the case plan was modified to allow for liberal visitation of Mischa with her family. In reaching this decision, the court noted the parents’ argument that Neb. Rev. Stat. § 43-1505(5) (Reissue 2008) provides that foster care placement may not be ordered in the absence of a determination by clear and convincing evidence includ- ing testimony of qualified expert witnesses that continued custody by the parent or Indian custodian is likely to result in serious emotional and physical damage to the child. The court found that serious emotional damage would result to Mischa as a result of insufficient education. The court found, however, that even in the absence of such proof, the statute is unconstitutional as applied in this case, stating that “Indian children are entitled to no less educational opportunity than other children and accordingly, as applied in this particular case, such statute is unconstitutional to the extent that it would deny Mischa educational opportunity even in the absence of serious emotional and physical damage . . . .” The order was silent on whether active efforts had been provided to prevent the breakup of this family. Deanna and Chris subsequently perfected their appeal to this court.

Nebraska Court of Appeals: Active Efforts Required When Children Under State Jurisdiction are In Parental Home

Opinion here.

Case law in this state has clearly established that the active efforts standard in this section requires more than the reason- able efforts standard that applies in cases not involving ICWA. See, In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008); In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010). See, also, Neb. Rev. Stat. § 43-292(6) (Cum. Supp. 2012).
The question presented to us in this case is whether ICWA’s active efforts standard applies when the State, through DHHS, has legal custody of the children, but the children are placed in the parental home. Nebraska appellate courts have not spe- cifically addressed this question. David argues that case law from other jurisdictions should lead this court to conclude that ICWA’s protections are applicable at all stages of a juvenile court proceeding.


In reaching the conclusion that active efforts should be pro- vided during periods that placement of the children is with the parent or parents, we recognize that the active efforts required may certainly be different from those required during a period of removal from the home. As discussed by the Nebraska Supreme Court in In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008), the active efforts standard requires a case-by-case analysis. See, e.g., In re Interest of Louis S. et al., supra (where further rehabilitative efforts would be futile, requirement of active efforts is satisfied); T.F. v. State, Dept. of H & S Services, 26 P.3d 1089 (Alaska 2001); People ex rel. D.G., 679 N.W.2d 497 (S.D. 2004); In re Cari B., 327 Ill. App. 3d 743, 763 N.E.2d 917, 261 Ill. Dec. 668 (2002) (degree of active efforts required to prevent Indian familial breakup reduced by parent’s incarceration).

Nebraska COA ICWA Matter — Trial Court Reversed where State Agency Failed to Allege ICWA

Here is the unpublished opinion in In re Avery S.:

In re Avery S

An excerpt:

Therefore, we conclude that at the time the State filed its petition and motion for  temporary custody in this case, it was aware that Katherine’s other children were  members of the Tribe or at least that ICWA was applicable to their case. Accordingly, the State knew or should have known that ICWA applied in the case involving Avery and Izabel. Thus, based on the facts of this case, the State was required to set forth allegations under ICWA in the petition and motion for temporary custody. Based on the State’s failure to do so, the juvenile court erred in entering an order detaining the children and should have dismissed the petition.

Nebraska COA Orders Transfer of ICWA Matter to Tribal Court

Here is the opinion in In re Jayden D.

An excerpt:

Because the State did not meet its burden of establishing good cause to deny transfer to tribal court, the juvenile court abused its discretion in denying Yolanda’s motion to transfer. We reverse the order of the juvenile court and remand the cause with directions to sustain the motion to transfer.

ICWA Transfer Case Out of Nebraska


We conclude that Cameron and Amanda failed to timely
appeal from the orders denying the motions to transfer the cases to tribal court. As such, this court is without jurisdiction to address Cameron and Amanda’s argument that the juvenile court erred in that respect. Upon our de novo review, we find that the State presented clear and convincing evidence that termination of Cameron’s and Amanda’s parental rights to S, L, H, and J was in the children’s best interests. Accordingly, we affirm the orders of the juvenile court.

Unpublished Nebraska ICWA Case Outlining Active Efforts

Assuming the efforts listed in the opinion are accurate, here is a case detailing what we think most ICWA experts would agree are active efforts. It is true, however, that the court denied transfer to tribal court due to essentially a forum non convenes (concern about subpoenaing witnesses, which is strange).