In re Interest of Shayla H.
855 N.W.2d 774
Neb.2014Background
- Father David H. is the biological father of three children eligible for Rosebud Sioux Tribe enrollment, so ICWA/NICWA protections potentially apply.
- January 2013 petition to adjudicate recognized the children as Indian and gave notice to the Tribe; the juvenile court applied ICWA/NICWA preadjudication protections.
- At disposition the juvenile court placed the children physically with David but awarded legal custody to the Nebraska Department of Health and Human Services (DHHS) for placement, treatment, and care.
- The court found reasonable efforts had been made to return legal custody to David but still left legal custody with DHHS; David appealed, arguing ICWA/NICWA’s higher "active efforts" standard — not the usual "reasonable efforts" — should have been applied.
- The Nebraska Court of Appeals agreed with David; the State petitioned for further review to decide whether the active efforts standard applies when a child is physically placed with a parent but legal custody is awarded to a state agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA/NICWA's "active efforts" standard applies when a juvenile court physically places an Indian child with a parent but awards legal custody to the state agency | David: ICWA/NICWA requires "active efforts" to prevent breakup and reunify when legal custody is withheld, so the juvenile court should have applied that higher standard | State: No party is "seeking to effect a foster care placement" when the child is placed at home with the parent, so only the ordinary "reasonable efforts" standard applies | The court held that at any point in an involuntary proceeding where a party must show efforts to reunify or prevent family breakup, the active efforts standard of ICWA/NICWA applies instead of the reasonable efforts standard |
Key Cases Cited
- In re Interest of Shayla H. et al., 22 Neb. App. 1, 846 N.W.2d 668 (Neb. Ct. App. 2014) (Court of Appeals held active efforts standard applies to disposition awarding legal custody to DHHS while physically placing children with parent)
- In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (Neb. 2014) (mootness/public-interest exception discussion)
- In re Interest of Candice H., 284 Neb. 935, 824 N.W.2d 34 (Neb. 2012) (standards for appellate review in juvenile cases)
- In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (Neb. 2011) (public-interest exception to mootness doctrine)