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In re Melaya F.

Court of Appeals of Nebraska

August 20, 2013



Appeal from the Separate Juvenile Court of Lancaster County: Roger J. Heideman, Judge.

Nancy R. Wynner and Maria J. Thietje, of DeMars, Gordon, Olson, Zalewski & Wynner, for appellant.

Joe Kelly, Lancaster County Attorney, and Shellie D. Sabata for appellee.

Moore and Pirtle, Judges, and Mullen, District Judge, Retired.


Pirtle, Judge.


Mindy F. appeals from an order of the separate juvenile court of Lancaster County, which terminated her parental rights to her two minor children, Melaya F. and Melysse F., in a case in which the Nebraska Indian Child Welfare Act (ICWA) is applicable. Because we find that a statutory ground to terminate exists, that the additional requirements under ICWA were met, and that termination is in the children's best interests, we affirm.


Mindy is the biological mother of Melaya, born in 2006, and Melysse, born in 2010. On December 15, 2010, the State filed a petition alleging the children came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) in that they lacked proper parental care by reason of the fault or habits of Mindy and that they were in a situation dangerous to life or limb or injurious to their health or morals. The factual basis for the petition was as follows:

On or about December 12, 2010, law enforcement officers were dispatched to the home of Mindy . . . where it was discovered that the home was in an unsanitary and unsafe condition. [Mindy] was initially found to be unresponsive, and believed to be under the influence of drugs and/or alcohol. One or more of the children were crying, were minimally dressed, were dirty, and appeared to be in distress.
[Mindy] has a history of involvement in situations involving domestic violence, assaultive behaviors, and/or alcohol or drug abuse, and has had one of the above-named children previously removed from her care by order of the Juvenile Court of Lancaster County, Nebraska, in 2006.

The children were removed from their home on December 12, 2010, and the juvenile court subsequently entered an ex parte order for temporary custody. At the time of the children's removal, Melaya was 4 years old and Melysse was almost 1 year old.

In January 2011, Mindy filed a motion to transfer the case to the Yankton Sioux Tribal Court, and the Yankton Sioux Tribe (the Tribe) was subsequently allowed to intervene in the matter. The Tribe also filed a motion to transfer jurisdiction to the Yankton Sioux Tribal Court pursuant to the ICWA, Neb. Rev. Stat. § 43-1501 et seq. (Reissue 2008). The juvenile court denied the motion to transfer jurisdiction to the tribal court, and Mindy appealed. This court affirmed the juvenile court's decision. See In re Interest of Melaya F. & Melysse F., 19 Neb.App. 235, 810 N.W.2d 429 (2011).

On December 21, 2011, Melaya and Melysse were adjudicated and determined to be juveniles within the meaning of § 43-247(3)(a) based on the allegations set forth in the State's petition.

On June 1, 2012, the State filed a motion for termination of parental rights, alleging that statutory grounds to terminate existed under Neb. Rev. Stat. § 43-292(2), (4), (6), and (7) (Cum. Supp. 2012); that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful; that continued custody by Mindy is likely to result in serious emotional or physical damage to the children; and that terminating Mindy's parental rights was in the children's best interests.

Trial on the motion for termination was held in August 2012 on 2 separate days. Mindy did not appear for trial on either day.

Kathy Hohbein, who is employed by the Department of Health and Human Services (Department), testified that she was assigned as Mindy's family permanency specialist from December 14, 2010, to May 18, 2011. During that time, she was responsible for setting up services that would help achieve reunification. There was no court-ordered plan during the time Hohbein was assigned to the case.

Hohbein testified that Mindy refused to take responsibility for the situation that resulted in her children's removal. Mindy, her mother, and an individual from the Indian Center all maintained that the Lincoln Police Department planted evidence, such as empty beer cans, in her home, and that none of the information in the police reports and the Department's reports was true.

Hohbein testified that Mindy indicated on a regular basis that the case was going to be transferred to the tribal court and that the Tribe would get her children back for her. Based on this belief, Mindy refused to work with Hohbein and refused services that she attempted to set up.

When the case was first assigned to Hohbein, she tried to set up five 2-hour supervised visits per week for Mindy and her children. During the first 6 to 8 weeks, Mindy made 5 out of 28 scheduled visits. Many of the visits were missed because Mindy was required to submit to a urine analysis (UA) test for drugs and alcohol before visits and either she refused to submit to the test or the results of the test would be positive for drugs and/or alcohol. There were also occasions where Mindy would call and confirm visits, and then fail to show up. During the time Hohbein was assigned to the case, there were several weeks at a time on more than one occasion that Mindy did not have visitation.

Hohbein attempted on multiple occasions to do a "walk through" of Mindy's home so that visitations could occur in the home rather than at a visitation center, but Mindy always refused. Mindy indicated that transportation to visits was an issue for her, so Hohbein offered to pick her up, which offer Mindy refused. Mindy was also given bus passes. She was offered the services of a family support worker who could assist her with a range of parenting and life skills. Mindy refused this service.

Hohbein testified that team meetings were held on a monthly basis and that Mindy attended most of the meetings, but she was hostile, aggressive, and threatening toward those in attendance and often left in the middle of the meetings.

Hohbein testified that because Mindy was continuing to test positive for different substances, Hohbein offered to set up a substance abuse evaluation and a pretreatment assessment on multiple occasions, but Mindy refused each time. In March 2011, Mindy set up and completed a substance abuse evaluation with the Ponca Tribe. The results recommended residential treatment, and Hohbein offered to arrange that treatment for Mindy but she refused.

In Hohbein's first few meetings with Mindy, Hohbein discussed the need to develop a cultural plan for the children to help maintain their Native American heritage. In addition to asking for Mindy's assistance in developing a plan, Hohbein also met with an individual from the Indian Center and an ICWA specialist. Neither Mindy nor the individual from ...

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