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In re Jayden D.

Court of Appeals of Nebraska

January 14, 2014

In re Interest of Jayden D. and Dayten J., children under 18 Years of age. State of Nebraska, Appellee,
v.
Yolanda W., formerly known as Yolanda O., Appellant.

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Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.

Reversed and remanded with directions.

Patrick T. Carraher, of Legal Aid of Nebraska, for appellant.

Joe Kelly, Lancaster County Attorney, and Maureen E. Lamski for appellee.

Moore, Pirtle, and Bishop, Judges.

Syllabus

1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a transfer to tribal court under the Indian Child Welfare Act is reviewed for an abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

[21 Neb.App. 667] 3. Indian Child Welfare Act: Jurisdiction: Proof. The party opposing a transfer of jurisdiction to the tribal courts has the burden of establishing that good cause not to transfer the matter exists.

4. Indian Child Welfare Act: Words and Phrases. Under the definitional sections of the Indian Child Welfare Act and the Nebraska Indian Child Welfare Act, the term " child custody proceeding" includes foster care placement, termination of parental rights, preadoptive placement, and adoptive placement.

5. Indian Child Welfare Act. A foster placement proceeding and a subsequent termination of parental rights proceeding involving an Indian child are separate and distinct under the Indian Child Welfare Act and the Nebraska Indian Child Welfare Act.

6. Indian Child Welfare Act: Child Custody: Jurisdiction. The courts of this state should not apply the " best interests of the child" standard in deciding whether good cause exists to deny motions to transfer child custody proceedings to tribal court.

7. Indian Child Welfare Act: Jurisdiction. Regarding the Indian Child Welfare Act, in determining whether the doctrine of forum non conveniens should be invoked, the trial court should consider practical factors that make trial of the case easy, expeditious, and inexpensive, such as the relative ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the ability to secure attendance of witnesses through compulsory process.

Moore, Judge.

INTRODUCTION

Yolanda W., formerly known as Yolanda O., appeals from the decision of the separate juvenile court of Lancaster County, which denied her motion to transfer the termination of parental rights proceeding in this juvenile case to tribal court. Because we find that the State failed to establish good cause to deny the transfer, we conclude that the juvenile court abused its discretion in denying the motion to transfer. Accordingly, we reverse the order of the juvenile court and remand the cause to the [21 Neb.App. 668] juvenile court with directions to sustain the motion to transfer to the tribal court.

BACKGROUND

Yolanda is the mother of Jayden D. and Dayten J. Because neither child's father is involved in this appeal, we discuss the issues only as they relate to Yolanda, Jayden, and Dayten. The children were removed from Yolanda's care on December 2, 2010, when they were placed in the temporary legal custody of the Nebraska Department of Health and Human Services (the Department). The children have remained in placements outside the family home since that time.

On December 3, 2010, the State filed a petition in the juvenile court, alleging that Jayden and Dayten were persons as defined by Neb.Rev.Stat. ยง 43-247(3)(a) (Reissue 2008) in that they lacked proper parental care by reason of the fault or habits of their mother, Yolanda.

The children were apparently adjudicated on January 4, 2011, although the adjudication order is not included in our record on appeal. On that date, the juvenile court also found that the provisions of the Nebraska Indian Child Welfare Act (NICWA) apply to this case. On April 15, following a dispositional hearing, the court found that expert testimony had been provided as required under NICWA and found clear and convincing evidence that being under Yolanda's care was likely to result in serious emotional or physical damage to the children. The court also found that active efforts had been made in the form of case management, service coordination, pretreatment assessment, supervised visits, intensive outpatient treatment, transportation, clothing, medication consultation, and monthly team meetings to eliminate out-of-home placement.

The record shows that on April 6, 2012, the State filed a motion seeking to terminate Yolanda's parental rights to both children, although our record does not include a copy of that motion or any filings that may have been made after it and prior to the termination hearing. A formal hearing was held on the termination motion on December 7 and 10. The record shows that no motion to transfer the case was made prior to [21 Neb.App. 669] that time, either by Yolanda or by the Oglala Sioux Tribe (the Tribe). At the hearing, the State ...


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