924 N.W.2d 72
Neb. Ct. App.2019Background
- Audrey T., born August 2013, an enrolled member of the Oglala Sioux Tribe, was removed from mother Sabra T.'s care on January 5, 2016; DHHS maintained custody throughout the proceedings.
- The juvenile court adjudicated Audrey as lacking proper parental care due to Sabra's mental-health issues and inconsistent parenting; DHHS provided services and changed permanency goals from reunification to guardianship and then adoption.
- Sabra participated inconsistently in services (child-parent psychotherapy, employment, housing); visits never progressed to overnight and were curtailed when unsafe associates were present or when Audrey made, then recanted, an allegation purportedly coached by Sabra.
- Psychologist Gage Stermensky diagnosed Sabra with schizophrenia and PTSD and opined she lacked capacity to meet Audrey’s needs absent long-term treatment and medication compliance.
- The State moved to terminate Sabra’s parental rights under Neb. Rev. Stat. § 43-292(2), (5), (6), and (7). The county court terminated parental rights, found active efforts were made under NICWA, and found beyond a reasonable doubt (with qualified expert testimony) that continued custody by Sabra was likely to cause serious emotional or physical damage.
Issues
| Issue | Plaintiff's Argument (Sabra) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether statutory grounds for termination were proved (esp. § 43-292(7) — 15 of 22 months in out-of-home placement) | Sabra contested termination under multiple § 43-292 grounds | State relied on 20 months out-of-home placement and other evidence | Court held § 43-292(7) satisfied (Audrey was in out-of-home placement for ≥15 of the most recent 22 months); this alone supports termination |
| Whether NICWA requires qualified expert testimony proving likelihood of serious harm beyond a reasonable doubt, and whether the State met that standard | Sabra argued expert testimony (Tribal expert Stands) only expressed possibility, not likelihood beyond a reasonable doubt | State relied on combined testimony of tribal expert and clinical psychologist plus case evidence to show likelihood beyond a reasonable doubt | Court held qualified experts (Stands and Stermensky) were sufficient and their opinions, plus other evidence, met NICWA’s proof requirement beyond a reasonable doubt |
| Whether termination was in the child’s best interests | Sabra argued she had housing, employment, improvements, and a bond with Audrey; sought more time | State argued Sabra was inconsistent, unfit due to persistent mental-health issues, and Audrey was thriving in placement | Court held termination was in Audrey’s best interests given Sabra’s incapacity/instability and lack of sustained progress |
| Whether the State failed to give proper ICWA/NICWA notice to the Oglala Sioux Tribe | Sabra argued the mailed addresses were incorrect and notice was therefore defective | State showed notice was mailed by certified mail to the P.O. Box used earlier in the case and listed on Audrey’s Certificate of Indian Blood | Court held notice was proper; Sabra may raise notice on direct appeal but here the record showed notice to the same address previously used and received |
Key Cases Cited
- In re Interest of Giavonna G., 23 Neb. App. 853 (de novo review in juvenile appeals)
- In re Interest of Sir Messiah T., 279 Neb. 900 (§ 43-292: multiple independent statutory grounds suffice)
- In re Interest of Chloe C., 20 Neb. App. 787 (appellate approach when one statutory ground is dispositive)
- In re Interest of Walter W., 274 Neb. 859 (NICWA active-efforts and expert-proof requirements)
- In re Interest of C.W. et al., 239 Neb. 817 (standards for qualified expert testimony under ICWA)
- In re Interest of Zylena R. & Adrionna R., 284 Neb. 834 (discussion of ICWA-related authority)
- In re Interest of Shayla H. et al., 17 Neb. App. 436 (qualified expert witness requirement discussion)
- In re Interest of Alec S., 294 Neb. 784 (children should not be left indefinitely in foster care)