847 N.W.2d 749
Neb. Ct. App.2014Background
- Parents Deanna and Chris (mother is Oglala Sioux) had daughter Mischa adjudicated under Neb. Rev. Stat. § 43-247(3)(a) for excessive school absences; case plan was family preservation with counseling ordered.
- Despite services (family support workers, transportation, counseling referrals, school accommodations), Mischa accumulated 60–80 missed class periods and had only 11 credits by late February 2013.
- The guardian ad litem moved to remove Mischa from the home for truancy and failure to engage in court-ordered counseling; removal hearing occurred Feb. 25, 2013.
- Juvenile court ordered foster care placement, citing that continued custody would cause serious emotional damage from insufficient education and also declared § 43-1505(5) unconstitutional as applied (sua sponte); order omitted explicit findings on "active efforts."
- Parents appealed, challenging sufficiency of expert testimony under § 43-1505(5), the court’s as-applied unconstitutionality ruling, the absence of active-efforts findings under § 43-1505(4), and denial of their motion to dismiss.
Issues
| Issue | Plaintiff's Argument (State/GAL) | Defendant's Argument (Deanna & Chris) | Held |
|---|---|---|---|
| 1) Sufficiency of qualified expert testimony under § 43-1505(5) | Witnesses (school admin, Dept. caseworker) provided relevant testimony supporting serious emotional damage risk from educational neglect | Witnesses were not qualified under ICWA standards and did not testify that serious emotional damage was likely | Reversed: evidence did not satisfy clear-and-convincing requirement including qualified expert testimony |
| 2) Constitutionality of § 43-1505(5) as applied | GAL/State did not raise unconstitutionality; court’s ruling not necessary | Parents argued court lacked authority to decide constitutionality sua sponte | Court’s sua sponte as-applied unconstitutionality ruling was void |
| 3) Active-efforts requirement under § 43-1505(4) | Dept. had provided culturally neutral remedial services (family support, transport, counseling) aiming to prevent breakup | Parents argued active efforts were insufficient or not shown | On de novo review, preponderance of evidence showed active efforts were made but unsuccessful; omission of express finding was harmless error |
| 4) Denial of motion to dismiss at close of evidence | N/A | Motion should have been granted given insufficient evidence on serious emotional damage | Not reached (court reversed on other grounds; no need to decide) |
Key Cases Cited
- In re Interest of Danaisha W., 287 Neb. 27 (de novo review standard for juvenile appeals)
- In re Interest of C.W., 239 Neb. 817 (ICWA expert guidelines from Bureau of Indian Affairs)
- In re Interest of Zylena R., 284 Neb. 834 (overruling context cited)
- In re Interest of Shayla H., 17 Neb. App. 436 (caseworker not a qualified ICWA expert)
- In re Interest of Walter W., 274 Neb. 859 (standard and proof discussion for "active efforts" under ICWA)
- In re Interest of Emma J., 18 Neb. App. 389 (preponderance standard for adjudication allegations)
- In re Interest of Enrique P., 14 Neb. App. 453 (harmless error for omission of § 43-1505(4) findings when record supports them)
- In re Interest of Thomas M., 282 Neb. 316 (mootness and public interest exception)
- Sarpy Cty. Farm Bureau v. Learning Community, 283 Neb. 212 (limits on sua sponte constitutional rulings)