In re Adoption of Micah H.
295 Neb. 213
| Neb. | 2016Background
- Micah, born 2007, is an “Indian child” under ICWA and Nebraska’s NICWA; maternal grandparents Daniel and Linda H. (non‑Indian) have been his primary caregivers and were appointed guardians.
- The mother, Allison (an Oglala Sioux Tribe member), consented to adoption by Daniel and Linda; the father, Tyler R. (non‑Indian), objected and asserted ICWA/NICWA protections for Micah.
- County court adoption petition alleged Tyler abandoned Micah for at least six months preceding the filing; Tyler had limited contact, supervised visitation historically, criminal convictions, and incarceration (not eligible for parole until 2019).
- The county court applied ICWA/NICWA and denied the adoption, concluding it could not find abandonment beyond a reasonable doubt and that heightened ICWA/NICWA protections applied.
- On appeal, the Nebraska Supreme Court considered (1) whether ICWA/NICWA apply when invoked by a non‑Indian parent, (2) proper burdens of proof for abandonment and ICWA/NICWA elements, and (3) applicability of the “active efforts” and “serious emotional or physical damage” provisions to a noncustodial, non‑Indian father.
Issues
| Issue | Plaintiff's Argument (Daniel & Linda) | Defendant's Argument (Tyler) | Held |
|---|---|---|---|
| Whether ICWA/NICWA apply when invoked by a non‑Indian parent | ICWA/NICWA should not be invoked by a non‑Indian parent; only tribes or Indian parents may invoke protections | ICWA/NICWA apply because Micah is an Indian child regardless who invokes them | ICWA/NICWA apply when an Indian child is involved; applicability turns on the child’s status, not the statu of the party invoking the acts |
| Proper burden to prove abandonment for adoption exception | County court should apply clear and convincing evidence for abandonment | County court applied beyond a reasonable doubt (higher) because of ICWA/NICWA | Abandonment must be proved by clear and convincing evidence; county court erred applying beyond a reasonable doubt |
| Whether NICWA/ICWA “active efforts” requirement applies to a noncustodial, non‑Indian parent | Active efforts not required here; county court found none required | Tyler argued protections apply and active efforts should be required | Federal ICWA’s “active efforts” (per Baby Girl) apply where termination would break up an Indian family; Nebraska’s NICWA adds unifying language — Nebraska court remanded to determine whether active efforts to unite parent and child were made to the extent possible under the circumstances |
| Whether NICWA/ICWA “serious emotional or physical damage” element applies to a parent who never had custody | If parent never had custody, this element is inapplicable | Tyler argued his visitation and some past contact distinguish him from Baby Girl | Following Adoptive Couple v. Baby Girl, the court held the “serious emotional or physical damage” element does not apply to a parent who never had custody; it does not apply to Tyler |
Key Cases Cited
- In re Adoption of Kenten H., 272 Neb. 846 (2007) (discusses application of ICWA/NICWA to adoption proceedings involving Indian children)
- Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (U.S. Supreme Court construes ICWA’s “active efforts” and “serious emotional or physical damage” provisions as inapplicable where a parent never had custody)
- In re Adoption of Madysen S. et al., 293 Neb. 646 (2016) (procedural discussion on finality and appellate jurisdiction in adoption proceedings)
- In re Interest of Jorge O., 280 Neb. 411 (2010) (standard of review in juvenile/child welfare appeals)
- In re Interest of Walter W., 274 Neb. 859 (2008) (discusses burden of proof under NICWA for the "serious emotional or physical damage" element)