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In re Nery V.

Court of Appeals of Nebraska

May 28, 2013

In re Interest of Nery V. et al., children under 18 years of age. State of Nebraska, appellee,
v.
Mario V., Sr., appellant, Ida V., appellee, and Rosebud Sioux Tribe, intervenor-appellee. In re Interest of Esperanza V. and Mario V., Jr., children under 18 years of age. State of Nebraska, appellee,
v.
Mario V., Sr., appellee, Ida V., appellee, and Rosebud Sioux Tribe, intervenor-appellee.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.

2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

4. Indian Child Welfare Act: Proof. Under Nebraska law, a party to a proceeding who seeks to invoke a provision of the Nebraska Indian Child Welfare Act has the burden to show that the act applies in the proceeding.

5. Indian Child Welfare Act: Time. To determine whether the Nebraska Indian Child Welfare Act applies, the critical issue is not whether the child is an "Indian child, " but, rather, when his or her status was established in the proceedings.

6. Indian Child Welfare Act: Federal Acts: Time. The provisions of the federal Indian Child Welfare Act and the Nebraska Indian Child Welfare Act apply prospectively from the date the Indian child's status as such is established on the record.

7. Indian Child Welfare Act: Parental Rights. The provisions relating to the withdrawal of a relinquishment provided for in Neb. Rev. Stat. § 43-1506 (Reissue 2008) of the Nebraska Indian Child Welfare Act do not apply to a relinquishment signed prior to the applicability of the act.

8. Parental Rights: Adoption. Pursuant to Neb. Rev. Stat. § 43-106.01 (Reissue 2008), the rights of the relinquishing parent are terminated when the Nebraska Department of Health and Human Services, or a licensed child placement agency, accepts responsibility for the child in writing.

9. Parental Rights: Adoption: Time. A duly executed revocation of a relinquishment and consent to adoption delivered to a licensed child placement agency within a reasonable time after execution of the relinquishment and before the [20 Neb.App. 799] agency has, in writing, accepted full responsibility for the child, as required by statute, is effective to invalidate the original relinquishment and consent.

10. Parental Rights. There are four requirements for a valid and effective revocation of a relinquishment of parental rights: (1) There must be a duly executed revocation of a relinquishment, (2) the revocation must be delivered to a licensed child placement agency or the Nebraska Department of Health and Human Services, (3) delivery of the revocation must be within a reasonable time after execution of the relinquishment, and (4) delivery of the revocation must occur before the agency has, in writing, accepted full responsibility for the child.

11. Parental Rights: Time. When a parent's attempted revocation of his or her relinquishment of parental rights is not done in a reasonable time after the relinquishment, the relinquishment becomes irrevocable.

12. Indian Child Welfare Act: Parental Rights: Interventions: Notice. Pursuant to Neb. Rev. Stat. § 43-1505(1) (Reissue 2008), in any involuntary proceeding in a state court, when the court knows or has reason to know that an Indian child is involved, the party seeking termination of parental rights to an Indian child shall notify the Indian child's tribe, by certified or registered mail with return receipt requested, of the pending proceedings and of the tribe's right of intervention.

13. Indian Child Welfare Act: Parental Rights: Notice: Time. Pursuant to Neb. Rev. Stat. § 43-1505(1) (Reissue 2008), no termination of parental rights proceedings shall be held until at least 10 days after receipt of notice by the tribe or the Secretary of the Interior.

14. Indian Child Welfare Act: Parental Rights: Notice. If an Indian child's tribe was not given proper notice of proceedings resulting in termination of parental rights to the child, the termination proceedings conducted were invalid and the order of termination must be vacated.

15. Indian Child Welfare Act: Parental Rights: Pleadings. The Nebraska Indian Child Welfare Act requires the State, in proceedings to terminate parental rights, to plead (1) active efforts by the State to prevent the breakup of the family and (2) that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical harm.

16. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.

Appeal from the County Court for Hall County: Philip M. Martin, Jr., Judge.

Matthew C. Boyle, of Lauritsen, Brownell, Brostrom & Stehlik, for Mario V., Sr. Janice I. Reeves, of Truell, Murray & Associates, for Ida V.

[20 Neb.App. 800] Sarah N. Johnson, Deputy Hall County Attorney, and Jay B. Judds, of Nebraska Department of Health and Human Services, for State of Nebraska.

Susan M. Koenig, guardian ad litem for children.

Sievers, Pirtle, and Riedmann, Judges.

Sievers, Judge.

The county court for Hall County, sitting as a juvenile court, terminated the parental rights of Mario V., Sr. (Mario Sr.), and Ida V. to their minor children. Mario Sr. appeals in case No. A-12-629, and Ida appeals in case No. A-12-662. We initially determine that the relinquishments that Ida executed some 3 years before these proceedings are valid and that her attempted revocation of such is of no force and effect. But, because there is no evidence that the Rosebud Sioux Tribe was given proper notice of these termination of parental rights proceedings as required by the Nebraska Indian Child Welfare Act (NICWA), we find that the termination proceedings conducted were invalid and thus that the order of termination in both cases must be vacated. We therefore remand the causes to the juvenile court for further proceedings consistent with our opinion.

FACTUAL BACKGROUND

This appeal involves three children: Mario V., Jr. (Mario Jr.), born in November 2004; Esperanza V., born in August 2006; and Nery V., born in October 2008. All three children are the biological children of Mario Sr. and Ida. Mario Sr. and Ida were married on December 23, 2004, and divorced on July 22, 2009. However, Mario Sr. and Ida began living together again in July 2010.

Mario Sr. and Ida have been involved in a number of juvenile court proceedings over the years, and we briefly summarize their encounters with the juvenile system. In October 2004, Ida had rights to another child, her firstborn son, terminated by order of a juvenile court. Mario Sr. was not this child's biological father. Mario Jr. was born less [20 Neb.App. 801] than 2 months after Ida's parental rights to her firstborn son were terminated.

In October 2005, Mario Jr. was removed from the parental home because Ida tested positive for methamphetamine, violating her probation. Mario Jr. was not placed with Mario Sr. because Mario Sr. then had a pending assault charge wherein Ida was the alleged victim. Mario Jr. was returned to the parental home 6 months later.

In December 2006, Mario Jr. and Esperanza were removed from the parental home because of reports of domestic violence between Mario Sr. and Ida and of drug use by Ida. Ida relinquished her parental rights to Mario Jr. and Esperanza in March 2008, and we note that she was pregnant with Nery at the time. Mario Sr. and Ida separated, and Mario Sr. planned to divorce Ida. Mario Jr. and Esperanza were returned to the custody of Mario Sr. The procedural background of the 2006 juvenile proceedings, case No. JV06-470, will be further discussed below.

Although Mario Sr. and Ida had divorced in July 2009, they began living together again in July 2010. Because Mario Sr. worked out of town and was only home on the weekends, Ida was the primary caregiver for Mario Jr., Esperanza, and Nery.

In November 2010, Mario Jr., Esperanza, and Nery were removed from the parental home after a 1-month investigation by the Nebraska Department of Health and Human Services (DHHS). DHHS was concerned about Ida's being the primary caregiver because of her previous relinquishments of Mario Jr. and Esperanza. DHHS was also concerned because Ida admitted feeling overwhelmed, Ida had made statements about wanting Mario Jr. and Esperanza back in foster care, and Ida admitted the urge to use drugs again. Additionally, Ida's brother, who had an extensive criminal history, had been living in the family home. Around the time of this removal, Esperanza and Nery tested positive for exposure to methamphetamine. The November 2010 removal gave rise to juvenile case No. JV10-505, wherein Mario Sr.'s and Ida's parental rights were terminated. The procedural background of cases Nos. JV06-470 and JV 10-505 will be discussed below.

[20 Neb.App. 802] PROCEDURAL BACKGROUND

To put all of the procedural background together in "one place, " before attempting a narrative account of the procedure, we set forth the following timeline of significant dates and events, with the hope that such allows the reader to follow the progression of the cases more easily, and we note the lower court case number for clarity:

• 03/13/2008 Ida signed her relinquishments of her parental rights to Mario Jr. and Esperanza (JV06-470).
• 11/01/2010 The State filed its petition alleging that Mario Jr., Esperanza, and Nery were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008); temporary custody was granted to DHHS (JV 10-505).
• 12/03/2010 NICWA notice was sent to the Rosebud Sioux Tribe regarding the State's § 43-247(3)(a) petition and the order for immediate custody (JV 10-505).
• 12/07/2010 The return receipt for the NICWA notice was signed (JV 10-505).
• 12/08/2010 The State filed its petition for termination of Mario Sr.'s and Ida's parental rights to Mario Jr., Esperanza, and Nery pursuant to Neb. Rev. Stat. ...

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