In re Guardianship of Eliza W.
304 Neb. 995
| Neb. | 2020Background
- Susan W., maternal grandmother, petitioned the Douglas County Court to be appointed temporary and permanent guardian of her granddaughter Eliza (age 4); court initially appointed Susan temporary guardian.
- Susan later amended the petition to allege that Eliza is an "Indian child" (through Jay W., a Muscogee (Creek) Nation member) and asserted ICWA applied.
- Tara W., Eliza’s mother, opposed the guardianship, repeatedly requested court-appointed counsel under NICWA/ICWA as indigent, and represented herself at trial.
- Trial evidence: Susan and Jay testified they were Eliza’s primary caregivers and raised concerns about Tara’s stability; Tara testified about health issues, schooling, and alternative living arrangements; no qualified expert testified about likely serious emotional or physical harm if Eliza remained with Tara.
- The county court found Tara unfit and appointed Susan guardian in a written order that did not mention ICWA/NICWA; Tara appealed.
Issues
| Issue | Plaintiff's Argument (Susan) | Defendant's Argument (Tara) | Held |
|---|---|---|---|
| 1) Do ICWA and NICWA apply to this intrafamily guardianship? | Guardianship is a private intrafamily matter and not a "foster care placement" covered by ICWA/NICWA; policy provisions show federal concern with government removals. | The statutory definition of "foster care placement" encompasses any action removing an Indian child to a guardian where custody cannot be returned on demand; guardianship fits that definition. | ICWA/NICWA apply: the statutory definition of "foster care placement" covers this guardianship. |
| 2) Did the county court have to afford ICWA/NICWA procedural protections (e.g., appointed counsel, notice, active efforts)? | Even if ICWA/NICWA applied, the court effectively complied or the statutes were not intended to reach private guardianship petitions. | Tara argued she was entitled to appointed counsel if indigent, notice, and "active efforts" protections under ICWA/NICWA. | Court did not clearly resolve all procedural issues on record, but procedural objections were subsumed by the dispositive failure of proof under ICWA/NICWA. |
| 3) Did petitioner satisfy ICWA/NICWA’s heightened burden (clear and convincing evidence, including qualified expert testimony) that continued custody by the parent is likely to cause serious harm? | Susan conceded no expert for her side but argued Tara’s testimony sufficed as expert evidence. | Tara argued no qualified expert witness testified and her testimony was factual, not expert opinion on likely serious emotional or physical harm. | Held: Petitioner failed to meet the statutory burden; no qualified expert testified and Tara’s testimony did not satisfy the expert requirement. |
| 4) Remedy once ICWA/NICWA requirements not met: vacatur, dismissal, return of child? | If error, remand for further proceedings was sufficient. | Tara sought reversal, dismissal, and immediate return of custody under the statutory return provision. | Court reversed: vacate guardianship, dismiss petition, and return Eliza to Tara’s custody (statutory return provision inapplicable because removal was by court order, not extralegal retention). |
Key Cases Cited
- In re Guardianship of D.J., 268 Neb. 239 (2004) (remanding to return child where petitioners failed to prove mother forfeited parental rights)
- In re Adoption of Micah H., 301 Neb. 437 (2018) (rejecting a strict "checklist" approach to NICWA’s active efforts list)
- In re Interest of C.W. et al., 239 Neb. 817 (1992) (endorsing Bureau of Indian Affairs guidelines to evaluate who qualifies as an ICWA expert)
- In re Interest of Ramon N., 18 Neb. App. 574 (Neb. Ct. App. 2010) (mother was not a qualified expert under NICWA on the record)
- Matter of Guardianship of Q.G.M., 808 P.2d 684 (Okla. 1991) (holding guardianship proceedings can fall within ICWA’s definition of foster care placement)
- Empson-Laviolette v. Crago, 280 Mich. App. 620 (Mich. Ct. App. 2008) (treating guardianship as a proceeding covered by ICWA)
- In re Custody of A.K.H., 502 N.W.2d 790 (Minn. Ct. App. 1993) (ICWA’s scope includes certain guardianship/custody actions)
- Application of Bertelson, 189 Mont. 524 (Mont. 1980) (interpreting ICWA not to apply to intrafamily disputes — discussed and rejected)
- A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982) (rejecting Bertelson’s approach and applying ICWA protections in intrafamily contexts)