Nebraska Court of Appeals

Nebraska COA Remands ICW Case for Failure to Notify Rosebud Sioux Tribe

Matthew L.M. Fletcher

Here is the opinion in In re Nery V. From the opinion:

The county court for Hall County, sitting as a juvenile court, terminated the parental rights of Mario V., Sr. (Mario Sr.), and Ida V. to their minor children. Mario Sr. appeals in case  No. A-12-629, and Ida appeals in case No. A-12-662. We initially determine that the  relinquishments that Ida executed some 3 years before these proceedings are valid and that her attempted revocation of such is of no force and effect. But, because there is no evidence that the Rosebud Sioux Tribe was given proper notice of these termination of parental rights proceedings as required by the Nebraska Indian Child Welfare Act (NICWA), we find that the termination proceedings conducted were invalid and thus that the order of termination in both cases must be vacated. We therefore remand the causes to the juvenile court for further proceedings consistent with our opinion.

Nebraska COA Decides ICWA Tribal Court Transfer Case

Matthew L.M. Fletcher1 Comment

Here is the opinion.

An excerpt:

Even if we had not found that Sellers failed to object to the parents’ motion to transfer in the county court, his assignment of error has no merit. He argues that the court abused its discretion by ordering a transfer to the tribal court when good cause was shown not to transfer the case. But the burden to prove good cause was on Sellers. See In re Interest of Leslie S. et al., 17 Neb. App. 828, 832, 770 N.W.2d 678, 682 (2009) (“party opposing a transfer of jurisdiction to the tribal courts has the burden of establishing that good cause not to transfer the matter exists”). And per our standard of review, we review the county court’s decision for abuse of discretion. There was testimony that the tribal court could convene for any necessary hearings in Hall County. Indeed, commentary to the Bureau of Indian Affairs’ guidelines specifically referred to the ability of tribal courts to alleviate hardship on the parties and witnesses “by having the court come to the witnesses” or by appointing members of the tribe who live outside of the reservation as tribal judges. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979) (not codified). Furthermore, the tribal representative testified that the tribal court could always receive testimony from witnesses in Hall County via telephone or documentary evidence. Given this evidence, the county court did not abuse its discretion in finding that Sellers failed to prove that there was good cause to deny the transfer based on hardship to potential witnesses.

Nebraska COA Decides ICWA Transfer Case

Matthew L.M. Fletcher

Here is the court’s opinion in In re Melaya F.

Nebraska Appellate Court Issues Opinion on ICWA Qualified Expert Witnesses

Matthew L.M. Fletcher

Here is the unpublished opinion in In re Erika J.

An excerpt:

In the case at hand, the only witness to provide any testimony that returning Erika and Tyler to Edward’s care was likely to result in serious emotional or physical damage to the children was Whipple-Benitez. Edward contends that Whipple-Benitez is not a psychologist or therapist and did not present any evidence that she was recognized by the tribal community. Whipple-Benitez is, however, a member in good standing of the tribe and has a bachelor of arts degree in accounting and a teaching certificate for Spanish. Whipple-Benitez is a Spanish teacher at a local high school and has previously worked with the Chadron Native American Center as a Native American community liaison providing family support and programs about cultural practices, celebrations, youth involvement, and future planning. Whipple-Benitez is also a liaison for the Circle of Pride youth group for Native American students and families, and she has worked with family support workers with Speak Out, providing family classes for Native American families who are in need of extra support with child-rearing or cultural practices. Additionally, the record indicates that Whipple-Benitez previously worked with the DHHS integrated care coordination unit conducting workshops, which required knowledge of the ICWA.

Given her extensive background and continued involvement with the tribe and Native American families, we find that the record establishes that Whipple-Benitez was sufficiently qualified to testify as an expert witness under the requirements of the ICWA.

Nebraska Court of Appeals Decides ICWA “Active Efforts” Case

Matthew L.M. Fletcher

Here is the court’s opinion in In re Louis S. An excerpt:

Chad does not appeal the § 43-292 statutory grounds for termination of parental rights, or that such termination was in the children’s best interests. His grounds for appeal lie strictly with the additional requirements of the ICWA–active efforts and proof  of serious emotional or physical harm. As stated previously, we find that active efforts were made and that the children would suffer serious emotional or physical harm if Chad retained custody. Therefore, we affirm the decision of the juvenile court terminating Chad’s parental rights to these children.

Nebraska Court of Appeals Affirms Denial of Transfer of ICWA Case to Tribal Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re the Interest of Leslie S. An excerpt:

The juvenile court found good cause to deny the motion to transfer, relying on the facts that a previous motion to transfer had been denied, that the case had advanced to the stage where a motion for termination of parental rights had been filed, and that the court had jurisdiction over multiple cases involving several of the children. The court also found that the transfer would not be in the children’s best interests.

Upon our de novo review, we are unable to say that the juvenile court abused its discretion in denying the motion to transfer. One of the stated circumstances set forth in the non-binding regulations noted above is clearly present in this case; namely, the advanced stage of the proceeding. Francis did not file the motion to transfer until well after 2 years following the filing of the juvenile petition, during which time Francis did very little to participate in the case. At the time of the hearing on this motion to transfer, proceedings had begun to terminate both parents’ parental rights. In addition, the fact that other cases involving some of the children were to remain in the juvenile court is essentially a forum non conveniens matter, which is a valid basis for good cause to deny transfer. See In re Interest of Brittany C. et al., 13 Neb.App. 411, 693 N.W.2d 592 (2005). We observe that because Francis is the biological father of only Iyn and Rena, he did not have standing to seek a transfer relative to Leslie, Glory, and Crystal. Neither the Tribe nor Kinda has appealed from the juvenile court’s decision. Accordingly, our opinion applies only to the ruling relative to Iyn and Rena.

Nebraska Court of Appeals — State Must Plead Active Efforts Prior to Termination

Matthew L.M. Fletcher

Here is the Nebraska Court of Appeals decision in In re Shayla H. From the court’s syllabus:

Indian Child Welfare Act: Pleadings. The Indian Child Welfare Act’s requirement of “active efforts” is separate and distinct from the “reasonable efforts” provision of Neb. Rev. Stat. § 43-292(6) (Reissue 2008) and therefore requires the State to plead active efforts by the State to prevent the breakup of the family.

Nebraska COA Orders Trial Court to Comply with ICWA

Matthew L.M. Fletcher

The case, In re Lawrence H., is here.

From the court’s intro:

Ida H. and Jose O. appeal the order of the separate juvenile court of Douglas County that terminated their parental rights to their son Lawrence H., also known as Faren H. (Faren). Because we conclude that the juvenile court erred in deferring its ruling on the motion to transfer of the Omaha Tribe of Nebraska (Omaha Tribe), we reverse the juvenile court’s denial of the motion to transfer, vacate and dismiss the order terminating parental rights, and remand with directions to transfer the matter to tribal court.