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In re Shayla H.

Supreme Court of Nebraska

November 14, 2014

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

Petition for further review from the Court of Appeals, INBODY, Chief Judge, and MOORE and RIEDMANNNN, Judges, on appeal thereto 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.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 775

[289 Neb. 474] Stephan, J.

This case is before us on the State's petition for further review. The sole issue presented is whether the active efforts standard of 25 U.S.C. § 1912(d) of the federal Indian Child Welfare Act of 1978 (ICWA)[1] and § 43-1505(4) of the Nebraska Indian Child Welfare Act (NICWA)[2] applies when a juvenile court physically places an Indian child[3] with his or her parent but awards another entity legal custody of the Indian child. The question is whether this disposition in an involuntary juvenile proceeding is " seeking to effect a foster care placement" within the meaning of ICWA/NICWA.[4] Upon further review, we agree with the Nebraska Court of Appeals[5] [289 Neb. 475] and hold that at any point in an involuntary juvenile proceeding involving an Indian child at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard applies in place of the reasonable efforts standard[6] applicable in cases involving non-Indian children.

FACTS

The underlying facts are detailed in the published opinion of the Court of Appeals.[7] For our purposes, it is sufficient to note that David H. is the father of three minor children. Through David, the children are eligible for enrollment with the Rosebud Sioux Tribe and are thus " Indian child[ren]" within the meaning of ICWA/NICWA.[8] In May 2013, the children were adjudicated as being within Neb. Rev. ...


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