In re Interest of Zylena R. & Adrionna R.
2. Statutes. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.
4. Indian Child Welfare Act: Parental Rights: Case Disapproved. To the extent In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), can be read as holding that a foster placement proceeding and a subsequent termination of parental rights proceeding involving an Indian child are not separate and distinct under the federal Indian Child Welfare Act of 1978 and the Nebraska Indian Child Welfare Act, it is disapproved.
5. Indian Child Welfare Act: Jurisdiction: Case Overruled. To the extent that In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), permits a state court to consider the best interests of an Indian child in deciding whether there is good cause to deny a motion to transfer a proceeding to tribal court, it is overruled.
Petition for further review from the Court of Appeals, IRWIN, SIEVERS, and CASSEL, Judges, on appeal thereto from the Separate Juvenile Court of Lancaster County, ROGER J. HEIDEMAN, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.
Norman Langemach for appellant.
Joe Kelly, Lancaster County Attorney, Alicia B. Henderson, and Christopher M. Turner for appellee.
Rita Grimm and Rosalynd J. Koob, of Heidman Law Firm, L.L.P., for intervenor-appellee.
Hazell G. Rodriguez, guardian ad litem.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller-Lerman, JJ.
STEPHAN, J.
Zylena R. and Adrionna R. are Indian children who were adjudicated by the separate juvenile court of Lancaster County under
BACKGROUND
Elise M. and Francisco R. are the biological parents of Zylena, born in June 2007, and Adrionna, born in December 2008. Elise has been an enrolled member of the Tribe since 1991. Francisco is not an enrolled member and is not eligible for enrollment. This appeal involves two separate cases which were filed in the separate juvenile court and eventually consolidated.
In the case which is before us as No. S-11-659, the State filed a petition on June 20, 2008, alleging that Zylena was a child as defined by
The case which is before us as No. S-11-660 was commenced by the filing of a petition in the separate juvenile court on May 1, 2009. In this petition, the State alleged that both Zylena and Adrionna were minor children as defined by
In October 2010, an employee of the Nebraska Department of Health and Human Services realized that notice had not been sent to the Tribe with respect to Adrionna. She then sent a notice to the Tribe and inquired whether Adrionna was an enrolled member or eligible for membership. The notice included a statement that the pending action could result in removal of the child from the home or termination of parental rights and adoption. The department did not receive a response from the Tribe.
From and after May 29, 2009, various services were provided to Elise and Francisco by the State of Nebraska. Neither Elise nor Francisco made measurable progress toward rehabilitation. In November 2010, the permanency objective was changed from reunification to adoption. And on February 7, 2011, the State filed motions in each case seeking to terminate the parental rights of Elise and Francisco to both children.
In case No. S-11-660, the case involving both children, the Tribe filed a notice of intervention on February 14, 2011, and a notice of intent to transfer on February 22. The latter motion asserted that Zylena and Adrionna were eligible for enrollment in the Tribe and requested that the case be transferred to tribal court pursuant to
At a hearing on the Tribe‘s motions, the State and the guardian ad litem orally objected to the requested transfers
The State presented evidence that it was in the best interests of the children to remain in their current foster care placement. In addition, the foster mother testified that she and her husband were willing to adopt the children and that if they did so they intended to integrate the children‘s cultural traditions into their lives. A state caseworker reviewed the proposed case plan prepared by the Tribe and opined that it was essentially the same case plan the State had been implementing since the proceedings began 2 years prior.
In orders entered on June 30, 2011, the juvenile court denied the Tribe‘s motions to transfer to tribal court. In case No. S-11-659, the case involving only Zylena, the juvenile court found that the case had been pending since June 2008, that Zylena was adjudicated in September 2008, that the permanency plan of adoption was approved in November 2010, that a motion to terminate parental rights was filed, and that the Tribe had not filed its notice of intent to transfer until March 1, 2011, despite receiving notice in July 2008. The court concluded that the proceeding was at an advanced stage and that because the Tribe had not filed its motion to transfer “for 32 months after receiving original notice, good cause has been shown to deny the transfer.” In case No. S-11-660, the case involving both children, the juvenile court noted that the petition was filed in May 2009; that numerous hearings
Elise filed a timely appeal in each case, and the Tribe cross-appealed. Elise assigned that the juvenile court erred in denying the motion to transfer, arguing that in determining whether the proceedings were at an “advanced stage” when the motions to transfer were filed, the court should have considered only the time after the filing of the petitions to terminate parental rights, and not the preceding period when the children were placed in foster care.
In affirming the judgments of the juvenile court, the Court of Appeals relied on three prior Nebraska cases,4 including one from this court, in concluding that “it is the policy of this state to consider the entire history of a juvenile proceeding in determining whether such is at an advanced stage.”5 Utilizing this standard, the court determined that the Tribe had filed its motion to transfer “1 week after the State filed a motion to terminate parental rights and nearly 2 years after Zylena and Adrionna were placed with their current foster family.”6 Citing our opinion in In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983), the Court of Appeals noted that “ICWA does not change the cardinal rule that the best interests of the child are
ASSIGNMENT OF ERROR
Elise assigns, summarized and consolidated, that the Court of Appeals erred in finding the juvenile court had good cause to deny her motion to transfer to tribal court. The Tribe filed a response to the petition for further review, joining in Elise‘s assignment of error.
STANDARD OF REVIEW
[1] This court has not specifically articulated a standard for reviewing the order of a juvenile court on a motion to transfer a case to tribal court. But in In re Interest of C.W. et al.,10 we held that a Nebraska juvenile court had discretionary authority to vacate an order transferring a case to a tribal court and that it did not abuse its discretion in doing so. In subsequent cases, the Court of Appeals has stated that a denial of a transfer to tribal court is reviewed for an abuse of discretion.11 We agree that this is the appropriate standard of review.
ANALYSIS
ICWA was enacted by Congress in 1978. Its stated purpose is
to protect the best interests of Indian children and to promote the stability and security of Indian tribes
ICWA is based upon an assumption that protection of an Indian child‘s relationship to the tribe is in the child‘s best interests.13 The Act “`seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.‘”14 The U.S. Supreme Court has observed that ICWA does so “by establishing `a Federal policy that, where possible, an Indian child should remain in the Indian community,’ . . . and by making sure that Indian child welfare determinations are not based on `a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.‘”15
NICWA was enacted by the Nebraska Legislature in 198516 “to clarify state policies and procedures regarding the implementation by the State of Nebraska of the federal Indian Child Welfare Act.”17 The Legislature declared that “[i]t shall be the policy of the state to cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced.”18
However, a state court must refer “any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child” to a tribal court if the tribe or either parent petitions for transfer, unless “good cause” is shown for the retention of state court jurisdiction.22 At a hearing on a petition to transfer a proceeding to tribal court, the party opposing the transfer has the burden of establishing that good cause not to transfer exists.23 The U.S. Supreme Court has characterized these provisions of ICWA as creating “concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation.”24
“Good cause” is not defined in either ICWA or NICWA. However, nonbinding guidelines published by the Bureau of Indian Affairs (BIA Guidelines) provide that good cause not to transfer a proceeding may exist if the proceeding is “at an advanced stage” when the petition to transfer was received and the petitioner failed to “file the petition promptly” after receiving notice.25 We have looked to the BIA Guidelines in the past
To resolve this appeal, we must address two questions. First, what constitutes a “proceeding” within the meaning of ICWA, NICWA, and the BIA Guidelines? And second, should a Nebraska court apply the “best interests of the child” standard of the Nebraska Juvenile Code in deciding whether to transfer a child custody proceeding involving an Indian child to a tribal court for disposition? Our opinion in In re Interest of C.W. et al.28 is pertinent to both questions.
In In re Interest of C.W. et al., the juvenile court sustained a motion to transfer to tribal court filed shortly before trial on a petition to terminate parental rights, but then vacated its transfer order before the trial commenced. After conducting a trial and determining that parental rights of the mother and putative fathers of the children should be terminated, the juvenile court transferred the case to tribal court for “the dispositional phase of the proceeding.”29 On appeal, the mother argued that the juvenile court erred in vacating the pretrial transfer order. In a cross-appeal, the State argued that the juvenile court erred in ordering transfer to tribal court after trial.
In rejecting the mother‘s argument, we noted that the juvenile court had properly considered “the 8-year history of the case” in concluding that good cause had been shown to deny the requested transfer.30 While it is not entirely clear from the opinion, it appears that this time period included juvenile court proceedings which occurred both before and after the filing of the motion to terminate parental rights. Thus, although we did not specifically address the issue presented in the instant
Although we realize that the guidelines deem inappropriate considerations of tribal socioeconomic considerations and the perceived adequacy of the tribal or Bureau of Indian Affairs social services or judicial systems, we also recognize that, in the case of two of the children, those considerations become necessary to a determination of the best interests of the children and, therefore, “good cause” not to transfer the case.31
We reasoned that two of the children had special needs and would suffer “if their respective foster homes, the only stability they have ever known, are taken away from them.”32 We now revisit our holdings in In re Interest of C.W. et al. to determine whether they are consistent with ICWA and NICWA.
What Constitutes “Proceeding“?
Elise and the Tribe focus on the language of ICWA and NICWA governing transfer to tribal court of a state court proceeding “for the foster care placement of, or termination of parental rights to,” an Indian child not residing on a reservation, in the absence of good cause to the contrary.33 They argue that the use of the disjunctive “or” demonstrates a foster care proceeding differs from a termination of parental rights proceeding under ICWA and NICWA and that therefore the two should not be lumped together in considering whether a motion to transfer is made at an “advanced stage” of the proceeding. The State and the guardian ad litem argue that under the
Under the definitional sections of ICWA and NICWA, the term “child custody proceeding” includes foster care placement, termination of parental rights, preadoptive placement, and adoptive placement.37 Foster care placement is specifically defined to mean “any action removing an Indian child from its parent or Indian custodian for temporary placement.”38 Termination of parental rights means “any action resulting in the termination of the parent-child relationship.”39 Preadoptive placement means “temporary placement of an Indian child . . . after the termination of parental rights.”40 And adoptive placement means “the permanent placement of an Indian child for adoption.”41 As we have noted, the statutory provisions governing transfer provide that in any state court “proceeding for the foster care placement of, or termination of parental rights to” an Indian child not domiciled
[2,3] A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.43 Absent anything to the contrary, an appellate court will give statutory language its plain and ordinary meaning.44 Applying these familiar principles, we conclude that ICWA and NICWA contemplate four different types of child custody proceedings, two of which must be transferred from a state court to a tribal court upon proper motion in the absence of good cause to the contrary. Thus, when the BIA Guidelines state that good cause may exist when “[t]he proceeding was at an advanced stage” at the time a petition to transfer is received, they can only be referring to one of the two proceedings subject to transfer: foster care placement or termination of parental rights. The State‘s argument that a foster care placement proceeding and a termination of parental rights proceeding are a single “proceeding” for purposes of the “advanced stage” analysis is inconsistent with the plain language of ICWA and NICWA, which defines them as separate proceedings. The fact that Nebraska law permits both objectives to be pursued sequentially in a single-docketed case is entirely irrelevant to the question of whether they are separate “proceedings” under the plain statutory language of ICWA and NICWA.
At least two other state courts have reached this conclusion. The North Dakota Supreme Court in In re A.B.45 held that a juvenile court “correctly interpreted ICWA to measure the
A Minnesota appellate court employed similar reasoning in concluding that foster placement proceedings and termination of parental rights proceedings were separate and distinct under ICWA and should not be “conflated” in determining whether a “proceeding” is at an “advanced stage” within the meaning of the BIA Guidelines.47 The court noted that whether Minnesota law considered the two types of proceedings to be “continuous or distinct” was not pertinent to the issue of transfer, which was governed by the statutory language of ICWA.48 It further reasoned that a tribe‘s interest in maintaining its relationship with an Indian child may not be implicated in a foster care placement proceeding to the same degree as in a termination proceeding.49
The record in this case vividly demonstrates why the reasoning of the Illinois court is inconsistent with the principles underlying ICWA and NICWA. A representative of the Tribe testified that placement of Indian children with foster parents, relatives, or a long-term guardian is consistent with the Tribe‘s cultural interests but that termination of parental rights is not. Thus, a Tribe may have no reason to seek transfer of a foster placement proceeding where it agrees with the Indian child‘s placement and the permanency goal is reunification with the parents. However, once the goal becomes termination of parental rights, a Tribe has a strong cultural interest in seeking transfer of that proceeding to tribal court. As one court has noted, “[s]upporting the State‘s reunification efforts should not result in allegations of a Tribe‘s lack of diligence in requesting transfer” when the proceeding becomes one for the termination of parental rights.52
[4] Accordingly, to the extent In re Interest of C.W. et al.53 can be read as holding that a foster placement proceeding and a
Best Interests
The juvenile court made no findings as to whether transfer to tribal court would be in the best interests of these Indian children. But the Court of Appeals did. It noted that the children had been out of their parents’ home for 2 years, that they were being well cared for in a home that “appears to be committed to fostering their Native American heritage,” and that “the present situation is clearly in the children‘s best interests.”55 The court included this best interests determination as one of the reasons for its conclusion that the juvenile court did not abuse its discretion in denying the motions to transfer.
As the legal underpinning of its best interests analysis, the Court of Appeals relied on this court‘s decision in In re Interest of Bird Head.56 In that case, we held that a county court did not err in denying a motion to transfer on grounds that the motion had been abandoned and good cause had been shown. We then turned to a separate issue, whether the county
But in In re Interest of C.W. et al., we clearly did determine that the best interests of Indian children was a factor to be considered in deciding whether to transfer a state court proceeding to tribal court. We relied on decisions of Arizona59 and Indiana60 courts in reaching this conclusion. But other state courts have taken a contrary and what we now believe to be a better approach. In In re A.B., the North Dakota Supreme Court stated:
Although one of the goals of ICWA is to protect the best interests of an Indian child, . . . the issue here is the threshold question regarding the proper forum for that decision. . . . We agree with those courts that have concluded the best interest of the child is not a consideration for the threshold determination of whether there is good cause not to transfer jurisdiction to a tribal court.61
One of the cases which the North Dakota court found persuasive was Yavapai-Apache Tribe v. Mejia,62 in which a Texas
The ICWA precludes the imposition of Anglo standards by creating a broad presumption of jurisdiction in the tribes. Thus, the jurisdictions [sic] provisions in sections 1911(a) and (b) are at the very heart of the ICWA. We decline to embrace a test that would, in our judgment, eviscerate the spirit of the Act.64
Second, the Texas court rejected the best interests standard because it deemed it relevant to issues of placement, not jurisdiction. The court stated:
For a court to use this standard when deciding a purely jurisdictional matter, alters the focus of the case, and the issue becomes not what judicial entity should decide custody, but the standard by which the decision itself is made. The utilization of the best interest standard and fact findings made on that basis reflects the Anglo-American legal system‘s distrust of Indian legal competence by its assuming that an Indian determination would be detrimental to the child.65
Other courts have followed similar reasoning in holding that best interests should not be a factor in resolving the issue of whether there is good cause to deny a motion to transfer a case involving an Indian child from state court to tribal court.66
[5] We now conclude that these decisions are more consistent with the underlying purpose of ICWA and NICWA than the Indiana and Arizona cases we cited in In re Interest
Stated another way, recognizing best interests as “good cause” for denying transfer permits state courts to decide that it is not in the best interests of Indian children to have a tribal court determine what is in their best interests. By enacting ICWA, Congress clearly stated otherwise. Accordingly, we overrule In re Interest of C.W. et al.69 to the extent that it permits a state court to consider the best interests of an Indian child in deciding whether there is good cause to deny a motion to transfer a proceeding to tribal court.
CONCLUSION
For the reasons discussed, we conclude that there is no basis on the records for a determination that the motions to transfer these cases to tribal court were filed at an advanced stage of
REVERSED AND REMANDED WITH DIRECTIONS.
CASSEL, J., not participating.
HEAVICAN, C.J., dissenting.
I respectfully dissent. I would find that the proceedings in these consolidated cases were at an advanced stage and that good cause existed for the juvenile court to retain jurisdiction and to deny the requests to transfer. As such, I would affirm the decisions of the juvenile court.
As noted by the majority, we addressed, albeit implicitly, the issue presented here in In re Interest of C.W. et al.,1 where this court noted that the juvenile court had properly considered “the 8-year history of the case” in concluding that good cause had been shown to deny the requested transfer.2 We also noted in In re Interest of C.W. et al. that it was appropriate for the juvenile court to consider the best interests of the child in determining good cause to deny a transfer.3 Since our decision in that case, the Court of Appeals has twice considered the entire pendency of a juvenile abuse and neglect proceeding when affirming the juvenile court‘s denial of a motion to transfer to tribal courts on the ground that the motion was filed at an advanced stage of the proceeding.4
Moreover, this position is consistent with other authority. The Illinois Court of Appeals in In re M.H.,5 rejected an
In my view, the conclusion that a new “proceeding” is not initiated by the filing of a motion to terminate parental rights is an appropriate balance of the interests of all the stakeholders in a juvenile case. An Indian tribe unquestionably has an interest in “protect[ing] the best interests of Indian children and [in] promot[ing] the stability and security of Indian tribes,”7 and Indian children should be placed whenever possible in homes that “will reflect the unique values of Indian culture.”8 But the State also has a parens patriae interest9 and has a right to protect the welfare of its resident children,10 which includes establishing permanency for those children.11 By requiring notice and freely allowing intervention, at least in nonadvanced stages of the proceedings, the Tribe is permitted sufficient opportunity to protect its interest while not interfering with the welfare and best interests of children residing in Nebraska. By curtailing the right of transfer after a certain point, the State is allowed to pursue permanency on behalf of children who are not able to be returned to their parental home.
In this instance, the Tribe was given notice of these proceedings. In Zylena‘s case, the amended petition to adjudicate was filed on July 1, 2008, and notice was sent to the Tribe on
Not only was the Tribe sent notice of these actions, that notice was unambiguous: the action filed on behalf of Zylena, and later Adrionna, “may result in restriction of parental or custodial rights to the child or foster care placement of the child or termination of parental rights to the child.” In Zylena‘s case, the Tribe actually responded in the negative and allowed the State‘s proceedings to continue for another 31 months before finally asking to intervene and for transfer.
Nebraska‘s juvenile code provides that the code should be construed to accomplish, among other goals, “permanent arrangements for children . . . who are unable to return home.”12 But in this case, it is clear that by allowing the transfer, Zylena‘s and Adrionna‘s rights to such permanency have been delayed as the futures of these children play out in yet another court.
I would hold that the filing of a petition to terminate parental rights does not commence a new proceeding under ICWA and NICWA and that the Tribe‘s intervention came at an advanced stage of the proceedings. I would therefore conclude that this late intervention was good cause to deny the Tribe‘s motions to transfer and that the decision of the Court of Appeals affirming the juvenile court‘s denial of the motions to transfer should be affirmed.