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In re Shayla H.

Court of Appeals of Nebraska

May 20, 2014

IN RE INTEREST OF SHAYLA H. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
v.
DAVID H., APPELLANT STATE OF NEBRASKA, APPELLEE,

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[Copyrighted Material Omitted]

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Appeal from the Separate Juvenile Court of Lancaster County: LINDA S. PORTER, Judge.

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

Ashley Bohnet, Deputy Lancaster County Attorney, and Nikki Blazey, Senior Certified Law Student, for appellee.

Rosalynd Koob, of Heidman Law Firm, L.L.P., for amici curiae Winnebago Tribe of Nebraska and Omaha Tribe of Nebraska.

Brad S. Jolly, of Brad S. Jolly & Associates, L.L.C., for amicus curiae Ponca Tribe of Nebraska.

Jennifer Bear Eagle, of Fredericks, Peebles & Morgan, L.L.P., for amicus curiae Santee Sioux Nation.

Robert McEwen and Sarah Helvey, of Nebraska Appleseed Center for Law in the Public Interest, for amicus curiae Nebraska Appleseed Center for Law in the Public Interest.

INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.

OPINION

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[22 Neb.App. 3] Moore, Judge.

Following a dispositional hearing, the separate juvenile court of Lancaster County found that reasonable efforts had been made to return to David H. legal custody of his three children, but that returning the children's legal custody to David at that time would be contrary to their welfare. David was ordered to follow numerous provisions in a rehabilitation plan. David appeals, assigning error to the court's use of the reasonable efforts standard in place of the active efforts standard of the Indian Child Welfare Act (ICWA) in the disposition order. He also argues that the plan's provisions were not materially related to the underlying adjudication and that the court erred in permitting a change in the family therapist. For the reasons set out in our opinion below, we affirm in part, and in part reverse and remand for further proceedings.

FACTUAL BACKGROUND

David is the father of three minor children: Shayla H., born in August 2001;

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Shania H., born in August 2003; and Tanya H., born in September 2004. He and his three daughters live together with his girlfriend, Danielle R., and her three children. Through David, his daughters are eligible for enrollment with the Rosebud Sioux Tribe. At the time of this case, the record shows that Shania and Tanya had become enrolled members of the tribe, while Shayla remained eligible for enrollment.

On January 17, 2013, the Department of Health and Human Services (DHHS) received an intake after Shayla was observed at school with a " dark purple hand-print bruise" on her right cheek. When describing the cause of her injuries, Shayla stated that Danielle had held her down and slapped her. The next day, DHHS took custody of David's and Danielle's children and removed them from the home. On January 22, the State filed a petition alleging that all six children, David's and Danielle's, lacked proper care by reason of Danielle's faults or habits.

By January 29, 2013, all of the children had returned home except for Shayla. Following a hearing on the State's motion for temporary custody, Shayla returned home on March 9. [22 Neb.App. 4] All of the children have remained placed in the home since their return.

The State first notified the Rosebud Sioux Tribe of these juvenile court proceedings by way of an affidavit and notice dated January 31, 2013. The tribe filed a notice of intervention shortly thereafter. Following a hearing on April 2, the court granted the tribe leave to intervene as a party in these proceedings. The tribe did not appear at the adjudication or the disposition hearing.

The juvenile court held an adjudication hearing on April 19, 2013. On May 31, the court issued an order finding that the State had proved its allegations that Danielle had used inappropriate physical discipline on Shayla. Accordingly, the court found that Shayla, Shania, and Tanya (David's children) were at risk of harm as a result of Danielle's inappropriate discipline. However, the court declined to exercise jurisdiction over Danielle's children. In making that decision, the court reasoned that Danielle's children were older than David's and noted that there was no evidence of Danielle's having used inappropriate discipline on her children.

David and Danielle have participated in a variety of services since the initial intake in this case. Caseworkers have entered their home on a daily basis to observe the family at random times throughout the day. The family also successfully completed a unification services program which focused on David's and Danielle's parenting without using physical discipline. In the program's discharge report, the service providers noted that David and Danielle had improved their abilities in addressing negative behaviors and teaching alternative positive behaviors. In addition to these programs, the family also continued to receive family counseling from therapist Laurie Crayne.

The first dispositional hearing in this case was held on July 11, 2013. Silvia Betta Cole, a children and family service specialist for DHHS, was the only witness to testify at the hearing, and her lengthy court report was received in evidence. Cole has been the case manager since February 2013. Cole discussed David's and Danielle's use of a closet to discipline [22 Neb.App. 5] Tanya. When Tanya misbehaved at school, she would be separated from the class in an alternative learning environment room until she corrected the behavior. To simulate this form of discipline at home, David and Danielle cleared out a closet and would have Tanya sit inside after misbehaving. While Tanya was inside,

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the door remained open. Cole also testified that allegations that Tanya was put into a closed closet were found to be untrue after a police investigation.

During Cole's testimony, she stated that DHHS wished to change the family therapist because the family had been working with Crayne for almost 4 years and DHHS felt as though the children had not made sufficient progress. In her opinion, a new perspective in this case would be beneficial. At the time of the hearing, she had identified a good candidate to become the replacement family therapist. Cole opined that the case was not at a stage where it could be closed, because the children had ongoing behavioral issues. She noted that Shania had a possible eating disorder and that Tanya had exhibited a tendency to run away from home after having visited with her biological mother.

After Cole's testimony, the State requested the court to adopt the DHHS recommendations that were contained in Cole's report. David objected to those recommendations, contending that many of the provisions were not related to the reason for the adjudication. He noted that the case would never be closed if DHHS attempts to " fix every problem that was not adjudicated."

At the conclusion of this hearing, the court orally announced that it was accepting the DHHS recommendation for a change in the family therapist. In the written order that followed, the court found that reasonable efforts had been made to return legal custody to David. However, the court concluded that returning the children's legal custody to David at that time would be contrary to their welfare. The court also made nine specific orders related only to David. Specifically, the court ordered David to

a. . . . cooperate with [DHHS] and service providers in his home.
[22 Neb.App. 6] b. . . . cooperate with all drop-in services as arranged by [DHHS] and allow access to [his] children and the family home at all times.
c. . . . not discuss the children's mother . . . or their visitation with their mother, except in a therapeutic setting.
d. . . . not use any form of physical discipline on any of the minor children, except any restraint-based discipline specifically approved by [DHHS, and] not place any of the minor children ...

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