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In re Tavian B.

Supreme Court of Nebraska

February 19, 2016

IN RE INTEREST OF TAVIAN B., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE,
v.
JOSEPH B., APPELLANT, AND OGLALA SIOUX TRIBE, IN TERVENOR-APPELLEE

Page 457

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

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.

Joe Kelly, Lancaster County Attorney, and Lory Pasold for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, CASSEL, and STACY, JJ. STACY, J., concurring in part, and in part dissenting. HEAVICAN, C.J., and CASSEL, J., join in this concurrence and dissent.

OPINION

Page 458

[292 Neb. 805] Wright, J.

NATURE OF CASE

Tavian B. was found to be a child who lacks proper parental care by reason of the fault or habits of his parents and to be in a situation dangerous to life or limb or injurious to his health or morals. See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). Approximately 16 months later, the State of Nebraska moved to terminate the parental rights of both parents. The father then filed a motion to transfer jurisdiction to the Oglala Sioux Tribal Juvenile Court (tribal court) pursuant to the federal Indian Child Welfare Act of 1978 (ICWA). See 25 U.S.C. § 1901 et seq. (2012).

Prior to the juvenile court's ruling on the father's motion to transfer, the State withdrew its motion to terminate parental rights. The court found that good cause existed to deny the request to transfer jurisdiction to the tribal court, because the proceedings were in " an advanced stage." The father appeals the juvenile court's order overruling his motion to transfer.

For the reasons stated below, we reverse the judgment of the juvenile court and remand the cause with directions.

SCOPE OF REVIEW

A denial of a transfer to tribal court under ICWA is reviewed for an abuse of discretion. In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012).

Procedural due process is a question of law, which is reviewed independently of the lower court's ruling. See In re Interest of Landon H., 287 Neb. 105, 841 N.W.2d 369 (2013).

[292 Neb. 806] FACTS

On May 16, 2013, the State filed a petition in the separate juvenile court of Lancaster County. It alleged that Tavian was a child who lacked proper parental care by reason of the faults or habits of his parents, Joseph B. (Appellant) and Tera B., and that he was in a situation dangerous to life or limb or injurious to his health or morals. See § 43-247(3)(a). On July 3, the juvenile court placed Tavian in the custody of the Department of Health and Human Services. Pursuant to ICWA, an " Affidavit and Notice" of the proceedings was delivered by registered mail to the Oglala Sioux Tribe (Tribe) and received on August 19.

On October 29, 2014, the State moved to terminate the parental rights of Appellant and Tera. Until that time, the goal of the proceedings in the juvenile court and the placement with the Department of Health and Human Services was reunification with the parents. Both parents denied the allegations in the motion on November 14. The Tribe received notice of the motion for termination of parental rights on November 21.

At a December 12, 2014, review hearing, Appellant testified that he had " just been accepted" and enrolled as a member of the Tribe, but had not received documentation from the Tribe verifying his enrollment. Immediately after the hearing, the Tribe moved to intervene, alleging that Tavian was an Indian child as defined by ICWA. Appellant orally moved to transfer the case to tribal court. The Tribe had not moved to transfer jurisdiction, but the tribal court had filed an order accepting jurisdiction. The juvenile court overruled Appellant's motion to transfer the case, because neither Appellant nor the Tribe had provided documentation verifying tribal

Page 459

enrollment or other evidence showing that ICWA applied to the case.

On December 16, 2014, Appellant filed a subsequent motion to transfer jurisdiction to the tribal court. At a hearing on January 6, 2015, certificates of tribal enrollment for Appellant and Tavian were received by the juvenile court. After the court [292 Neb. 807] found that the provisions of ICWA applied to the case, the State requested and was given leave to withdraw its motion to terminate parental rights. The matter was continued for further hearing until 2 days later.

On January 7, 2015, the State filed an objection to the transfer, stating:

COMES NOW, [a] Deputy County Attorney for Lancaster County, Nebraska, and objects to the transfer of the proceedings in this case to the [tribal court] because good cause exists to deny such transfer pursuant to Neb. Rev. Stat. [§ ] 43-1504(2).
The State further requests the Court [set] this matter for hearing to determine whether good cause exists.

Relying on In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012), the juvenile court concluded that good cause existed to overrule the motion because the proceedings were at an advanced stage. Appellant appeals the overruling of his motion to transfer jurisdiction to the tribal court.

ASSIGNMENTS OF ERROR

Appellant assigns, summarized and consolidated, that the juvenile court erred in finding good cause to deny his motion to transfer based on the advanced stage of the proceeding. Appellant also claims that his due process rights were violated by the court's making findings based on matters outside the scope of the record and not providing Appellant an opportunity to dispute and rebut such evidence.

ANALYSIS

The issue is whether the juvenile court abused its discretion in denying Appellant's motion to transfer the proceeding to tribal court. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, which results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for [292 Neb. 808] disposition. See In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).

We apply ICWA to the case at bar. Neb. Rev. Stat. § 43-1504(2) (Reissue 2008) governs motions to transfer jurisdiction to tribal courts under ICWA. At the time this case commenced, § 43-1504 provided:

(2) In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe, except that such transfer shall be subject to declination by the tribal court of such tribe.

(Emphasis supplied.)

At a hearing on a motion to transfer a proceeding to tribal court, the party opposing the transfer has the burden of establishing that good cause not to transfer exists. In re Interest of Zylena R. & Adrionna R., supra. In In re Interest of Zylena R. & Adrionna R., we held that a proceeding for termination of parental rights should be regarded as a separate

Page 460

and distinct proceeding from foster care placement. In the case at bar, the Tribe accepted jurisdiction and neither parent objected to the transfer. Thus, absent the State's showing of good cause, the juvenile court ...


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