842 N.W.2d 140
Neb. Ct. App.2013Background
- NICWA governs proceedings involving Shane L. and siblings; Cameron and Amanda are biological parents appealing termination of parental rights; jurisdictional transfer to tribal court was denied by the juvenile court; children removed in 2009 due to parental neglect and alcohol issues; DHHS provided services over several years with limited progress; expert Townsend testified to fetal alcohol syndrome and risk if returned to parents, while foster care placement developed a stable, culturally aware plan.
- The tribe intervened in 2012 and moved to transfer jurisdiction; juvenile court denied transfer in July 2012; termination hearing held January 2013; court found clear and convincing grounds under § 43-292(2)(4)(6)(7) and NICWA requirements were met; State proved active efforts and that continued custody would cause serious emotional harm; court concluded termination was in the children’s best interests.
- The appellate court conducted de novo review of termination issues and held jurisdictional transfer appeal untimely, so no jurisdiction to review that issue; nonetheless, it affirmed termination based on NICWA elements and best interests.
- The foster placement is stable, the children have flourished, and Townsend’s testimony supported termination to prevent further emotional harm; parents showed only minimal, unstable progress and continued alcohol issues.
- The decision cites substantial DHHS services over years without successful reunification, supporting ongoing best-interest determination for removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order denying tribal transfer was properly reviewable | Cameron and Amanda argue denial affects substantial rights | State contends timely appeal required for review | No jurisdiction to review due to untimely appeal |
| Whether termination was in children's best interests | State must show best interests and NICWA elements | Parents failed to address alcohol issues and housing; foster care stable | Clear and convincing evidence supports termination in best interests |
| NICWA active efforts requirement satisfied | State showed efforts to prevent breakup | Efforts were not successful; parents did not rehabilitate | Active efforts proven and unsuccessful, satisfying NICWA |
| Whether NICWA emotional/physical harm standard met | Evidence shows likely serious harm if returned | No adequate proof of ongoing risk | Evidence demonstrates likely serious emotional or physical damage if custody returned |
Key Cases Cited
- In re Jamyia M., 281 Neb. 964 (2011) (jurisdictional final-order review; tribal transfer appeal timing)
- In re Brittany C. et al., 13 Neb. App. 411 (2005) (final-order review of transfer; NICWA considerations explained)
- In re Ramon N., 18 Neb. App. 574 (2010) (expert testimony and NICWA standards for expert qualifications)