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In re Shane L.

Court of Appeals of Nebraska

December 31, 2013

In re Interest of Shane L. et al., children under 18 years of age.
v.
Amanda L., appellant, State of Nebraska, appellee and cross-appellee, and Cameron L., appellee and cross-appellant.

Page 141

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Page 142

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Page 143

Appeal from the County Court for Box Butte County: RUSSELL W. HARFORD, Judge.

Affirmed.

Dave Eubanks, Box Butte County Public Defender, for appellant.

Kathleen J. Hutchinson, Box Butte County Attorney, for appellee State of Nebraska.

Dave Eubanks, Box Butte County Public Defender, for appellee Cameron L.

Page 144

Pamela Epp Olsen, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., guardian ad litem.

Inbody, Chief Judge, and Moore and Riedmann, Judges.

Syllabus

1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the Nebraska Juvenile Code are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings. In reviewing questions of law arising in such proceedings, an appellate court reaches a conclusion independent of the lower court's ruling.

2. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.

4. Final Orders: Appeal and Error. There are three types of final orders that may be reviewed on appeal: (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made upon summary application in an action after a judgment is rendered.

5. Indian Child Welfare Act: Jurisdiction: Final Orders. An order denying a transfer of a case to tribal court affects a substantial right in a special proceeding and is, therefore, a final, appealable order.

6. Jurisdiction: Final Orders: Time: Notice: Appeal and Error. In order to vest an appellate court with jurisdiction, a notice of appeal must be filed within 30 days of the entry of the final order.

7. Final Orders: Time: Appeal and Error. If a party fails to timely perfect an appeal of a final order, he or she is precluded from asserting any errors on appeal resulting from that order.

8. Parental Rights: Proof. To terminate parental rights, the State must prove by clear and convincing evidence that one or more of the statutory grounds listed in Neb.Rev.Stat. § 43-292 (Cum.Supp.2012) have been satisfied and that termination is in the child's best interests.

[21 Neb.App. 592] 9. Indian Child Welfare Act: Parental Rights: Proof: Expert Witnesses. Under the Nebraska Indian Child Welfare Act, in addition to the statutory grounds listed in Neb.Rev.Stat. § 43-292 (Cum.Supp.2012), the State must prove two more elements before terminating parental rights in cases involving Indian children. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. Second, the State must prove by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

10. Indian Child Welfare Act. The heightened standard applicable to certain elements of the Nebraska Indian Child Welfare Act is not applicable to all elements.

11. Indian Child Welfare Act: Parental Rights: Proof. In a case arising under the Nebraska Indian Child Welfare Act, the standard by which the State must prove that terminating parental rights is in the child's best interests is clear and convincing evidence, not beyond a reasonable doubt.

12. Parental Rights. When a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the child's best interests require termination of parental rights.

13. Parental Rights. Children cannot, and should not, be suspended in foster care or be made to await ...


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