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In re Nery V.

Court of Appeals of Nebraska

June 9, 2015


Page 729

Appeal from the County Court for Hall County: PHILIP M. MARTIN, Jr., Judge.

Megan Alexander, Deputy Hall County Attorney, for appellee State of Nebraska.

Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz, guardian ad litem.

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


Page 730

[22 Neb.App. 960] Inbody, Judge.


The Rosebud Sioux Tribe (Tribe), an intervenor in this case, appeals the order of the county court for Hall County, sitting as a separate juvenile court, denying the Tribe's motion for a change of placement of three minor children, Mario V. (Mario Jr.), Esperanza V., and Nery V. For the reasons that follow, we affirm the order of the trial court finding that the State met its burden of proof in showing that there was good cause to deviate from the placement requirements of the Nebraska Indian Child Welfare Act (NICWA).


Background Information.

Mario Jr., Esperanza, and Nery were removed from their parents' care in November 2010. At the time of the children's removal, their biological mother, Ida V., requested that the children be placed with Tara L. and Terry L., which request was granted without objection from any party. Ida has ties to the Rosebud Sioux Tribe and requested placement with Tara and Terry even though they are not Native American. The Tribe intervened in this case in January 2011, and the Tribe has been aware during the pendency of the case that the children are placed in a non-Native American foster home.

In October 2013, the Tribe filed a motion to change the placement of all three children, asserting that Ida no longer consented to a non-Native American placement and requesting that the children be placed with their maternal aunt, Brianna C., who is an enrolled member of the Tribe. Thereafter, Ida filed with the trial court a " Withdrawal of Consent to Placement in Non-Indian Home." The Nebraska Department of Health and Human Services (DHHS) filed an objection to the change of placement for the reasons that the children had been placed with Tara and Terry for 3 years; that Brianna had been previously suggested for placement, but that on three separate occasions, home studies were completed, none of which recommended placement with her; that the Tribe had been involved [22 Neb.App. 961] in the case since 2010 and had failed to inquire about placement; and that a new placement would traumatize the children and was not in their best interests.

Hearing on Motion to Change Placement.

The hearing on the motion to change placement was held over several days from January through May 2014. The Tribe adduced testimony from several witnesses. Brianna testified that she was the children's aunt and also an enrolled member of the Tribe. At that time, Brianna was 27 years old; lived in Kearney, Nebraska, with her 5-year-old daughter; and was employed by a sports medicine clinic as a " CNA, med aide." Brianna also has a pharmacy technician's license and has received her certification to volunteer as a court-appointed special advocate. Brianna testified about the importance of being such an advocate and her involvement with that work, but later testified that she had

Page 731

worked on only one case and did not know if she had been terminated from the advocate program, since she had moved from Grand Island, Nebraska, to Kearney without giving notice. Brianna testified that she had been employed at seven different places in the last 7 years. Brianna's current home has three bedrooms and two bathrooms.

Brianna explained that on three separate occasions, DHHS had completed home studies at her residence, and that she had been denied authorization as a placement each time. Brianna has not seen any of Ida's children since they were first taken from Ida's home and had only recently attempted to have visitation with them in November 2013. Brianna testified that her involvement with the Tribe included having her federal identification card from the Lakota Sioux Tribe and taking her daughter to a Tribe powwow in 2013. Other than those two instances, Brianna testified she had very little involvement with the Tribe, limited to talking to her daughter about her ancestors and buying a compact disc of " Indian music" to listen to.

The Tribe adduced testimony from Lorna Turgeon. Turgeon testified that she is an enrolled member of the Rosebud [22 Neb.App. 962] Sioux Tribe; she obtained her undergraduate degree from Metropolitan State University in St. Paul, Minnesota; and she obtained master of social work and master of public administration degrees from the University of Nebraska at Omaha. Turgeon testified that she had more than 20 years of experience in working with children and was certified as an expert in Indian child welfare. Turgeon testified about the importance of the extended family in the Indian culture.

Turgeon became involved in this particular case in September 2013. A home study commissioned by the Tribe was completed in October 2013 and is based upon interviews with Brianna. Turgeon testified that the recommendation of that home study was for placement of the three children with Brianna. The recommendation was based on aspects of the home study including child safety, nurturance, Brianna's being able to provide for the children financially and being able to create a safe and loving home for them, and the fact that the children " would retain their cultural identity and sense of belonging within their culture and their family." However, Turgeon testified that in compiling the home study, she did not meet with the children's foster parents, did not know how much contact with Native American culture the children had been exposed to in their lives, and did not know what, if anything, the foster parents have done to help the children retain any Native American culture. Turgeon had also not reviewed any of the DHHS case files for the family, including the home studies DHHS completed.

The Tribe's home study explains that in the Lakota family structure, a biological mother's sister is considered the children's " other mother." The home study indicates that prior to the children's being removed, Brianna was involved in the children's lives. The home study indicates that Brianna was aware of the trauma continued moving causes the children and that she could be " therapeutic" for the children by making the children feel secure. The home study indicates that Brianna supports contact with the children's parents and that she feels that she can control Ida when she gets mad or upset. The Tribe's home study indicates that Brianna is very involved in her Native American culture and mentions several times [22 Neb.App. 963] that Brianna is also very involved as a court-appointed special advocate volunteer.

The Tribe's home study included a home safety checklist indicating the process involved

Page 732

in the study. The checklist includes whether the worker involved in the study contacted a minimum of three references, completed " [g]enograms" and " [e]co [m]aps," investigated Brianna's transportation, and verified her driver's license and whether Brianna met housing requirements. The checklist indicates that Brianna had no automobile insurance and that no screening for abuse and neglect or criminal background check had been completed. Turgeon acknowledged that the minor children were happy in their current foster placement and admitted that it was possible that the children could live in a home that was neither Hispanic nor Native American but still retain the culture of one or both of those cultural identities.

Sherri Eveleth, a DHHS Indian child welfare program specialist, testified as an expert witness for the State and explained that she had been involved with this family and case since 2008. Eveleth testified that several attempts had been made with the family to place the children with family members, but that many of the family members lost contact or interest. Eveleth testified that the Tribe intervened in the case in January 2011, upon her request after finding out about the children's eligibility as enrolled members of the Tribe. Eveleth contacted the Tribe's caseworker, Shirley Bad Wound, about the children via telephone and in person. Eveleth testified that she specifically talked with Bad Wound about placement of the children with Native American families but was told that there were no families available for placement in the area or on the Rosebud Sioux reservation. Eveleth testified that placement of the children with Brianna would result in serious emotional harm to the ...

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