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In re Adoption of Micah H.

Supreme Court of Nebraska

December 2, 2016

In re Adoption of Micah H., a minor child.
Tyler R., appellee. Daniel H. and Linda H., appellants.

         1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.

         3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

         4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction over an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken.

         6. Judgments: Final Orders: Words and Phrases. A judgment is the final determination of the rights of the parties in an action.

         7. __: __: __ .A final judgment is one that disposes of the case either by dismissing it before a hearing is had upon the merits, or after trial by rendition of judgment for the plaintiff or defendant.

         8. Indian Child Welfare Act: Federal Acts: Child Custody. The applicability of the federal Indian Child Welfare Act of 1978 and the Nebraska Indian Child Welfare Act to a child custody proceeding turns not on the Indian status of the person who invoked the acts but on the status of the child involved in the proceeding.

         9. Indian Child Welfare Act: Federal Acts: Parental Rights. To the extent that the Nebraska Indian Child Welfare Act provides a higher [295 Neb. 214] standard of protection to the rights of the parent or Indian custodian of an Indian child under the federal Indian Child Welfare Act of 1978, the Nebraska Indian Child Welfare Act controls.

         10. Indian Child Welfare Act: Parental Rights: Parent and Child. "Active efforts" must be made to unite the Indian child with both biological parents, regardless of whether they are Indian.

         Appeal from the County Court for Saunders County: Patrick R. McDermott, Judge. Reversed and remanded.

          John H. Sohl for appellants.

          Jennifer D. Joakim for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch, and Funke, JJ.

          Kelch, J.

         I. NATURE OF CASE

         This case presents the issue of whether the "active efforts" and "serious emotional or physical damage" elements of the federal Indian Child Welfare Act of 1978 (ICWA)[1] and the Nebraska Indian Child Welfare Act (NICWA)[2] apply to provide increased protection to the parental rights of a non-Indian, noncustodial parent of an "Indian child."

         II. FACTS

         Daniel H. and Linda H., the maternal grandparents and guardians of Micah H., a minor child, appeal the order of the Saunders County Court denying their petition to adopt Micah. In their petition, Daniel and Linda alleged, among other things, that the child's mother (their daughter), Allison H., had consented to the adoption; that the father, Tyler R., had abandoned Micah; and that terminating Allison's and Tyler's parental rights was in Micah's best interests. In Tyler's answer, he alleged that Micah was an "Indian Child" pursuant to [295 Neb. 215] ICWA and NICWA. Because neither party disputed that Micah met the "Indian child" definition under both acts, the county court applied those acts, which provide heightened protection to the rights of parents and tribes in proceedings involving custody, termination of parental rights, and adoption of Indian children.[3] After a hearing on Daniel and Linda's petition, the county court found that it was compelled to deny the petition, because it was "unable to find beyond a reasonable doubt that [Tyler] has abandoned the child."

         1. Background

         Micah's mother, Allison, was placed with Daniel and Linda when she was 4 years old. Allison is a member of the Oglala Sioux Tribe. Daniel and Linda are not members of an Indian tribe, but they took measures to help Allison understand her Indian heritage. At the hearing on the petition, Linda testified that the family kept Native American artifacts in their home, read Native American books and literature to Allison, and took her to powwows and reservations. Linda also testified that in her practice as a nurse, she underwent training to become "trans-culturally certified, " with a focus on Native American culture.

         When Allison was 17 years old, she first met Tyler. She had run away from home with a friend, and the two of them went to Tyler's mother's house. Allison testified that Tyler's mother provided Allison with alcohol and that Tyler provided her with marijuana, which they smoked in the basement. Allison testified that Tyler's mother was aware that the marijuana was being used. At some point that night, Tyler and Allison had sexual intercourse. As a result of that sexual contact, Micah was born in September 2007. After his birth, Allison and Micah lived in Daniel and Linda's home.

         In June 2008, when Micah was 9 months old, the State initiated an action against Tyler to establish paternity and child [295 Neb. 216] support. Prior to that time, Tyler was not aware of Micah's existence. On July 2, 2010, the county court entered a decree of paternity, custody, and child support. The decree granted Allison full legal and physical custody. It ordered Tyler to pay child support of $100 per month beginning August 1, 2010. The decree also awarded Tyler parenting time. Supervised visitation was to occur every other weekend, 1 to 2 weeks in the summer, and on alternating holidays.

         (a) Tyler's Visitation

         Linda testified that Tyler's first visit with Micah occurred at her home in November 2008. She testified that until the county court awarded Tyler parenting time in 2010, Tyler visited "more than once a year, " but not always more than once a month. After Tyler was awarded parenting time, he saw Micah every other week to every 3 weeks. Under the decree, Tyler's visits with Micah were to be supervised by his mother or another suitable person approved by Allison.

         Tyler's mother testified that the visits between Tyler and Micah were "great." She stated that she observed a loving relationship between them and that Micah appeared to enjoy himself and look up to Tyler. Tyler also testified about his parenting time, naming various activities that he and Micah enjoyed together. According to Tyler, at some point, Daniel and Linda started denying him visits for no reason.

         Linda testified that the face-to-face visits ceased on May 8, 2011, for two reasons. There were concerns, first, that Tyler's visits were not being supervised as ordered, and second, that inappropriate sexual behavior displayed by Micah was attributable to Tyler. At some point, Allison's attorney wrote Tyler a letter stating that Allison was restricting Tyler's parenting time because of Micah's inappropriate behaviors.

         On the issue of whether Tyler's visits were being supervised, Linda testified that sometime in February 2011, Tyler came to Daniel and Linda's house to pick Micah up for a visit, and his mother was not with him. When Allison saw that Tyler's [295 Neb. 217] mother was not present, she told him that he could not take Micah. Linda testified that she had also suspected that the visits were sometimes unsupervised because Micah would talk about "being with Daddy Tyler downstairs" and going "up to the big house where [Tyler's mother] was." Tyler and his mother denied that the visits were ever unsupervised.

         As for Micah's inappropriate sexual behavior, Linda stated she had observed that "when Micah would hug or kiss, he would say things like, ew-w, baby, baby and rub against." Allison testified that Micah "took Buzz and Woody [dolls representing characters from a children's movie] and talked about Buzz kissing his penis."

         Daniel also testified about some of Micah's questionable behavior. Daniel testified that he was supervising Micah's bath one night. Because Micah is uncircumcised, Daniel reminded Micah that he needed to pull the foreskin back to clean himself. Daniel testified that Micah said, "oh, this is how guys make white stuff come out of their penis, " and that Micah then started making a lot of movement on his penis. When Daniel asked Micah how he found out about that, Micah said, "from Daddy Tyler, " and "from movies." At that time, Micah was 3 or 4 years old.

         Tyler's testimony supports Linda's claim that Tyler's last face-to-face visit was May 8, 2011. He testified that prior to his incarceration in February 2012, he did not have face-to-face contact with Micah for what "could have been" a year or more. Linda testified that to her knowledge, Tyler did not request visitation with Micah after that time. Tyler, however, claims that at some point, he filed a contempt action in county court to allow visitation, and that the matter was pending.

         Tyler testified that while in prison, he wrote numerous letters to Micah addressed to Daniel and Linda's residence and that he sometimes received a response. Tyler's mother testified that Tyler had sent cards, drawings, and puzzles for Micah to her residence.

         [295 Neb. 218] (b) Child Support

         Tyler was unable to pay the full monthly child support obligation after he was imprisoned in February 2012 for motor vehicle homicide. While in prison, Tyler requested that the State withhold his prison income to satisfy his child support obligation. However, Tyler's request was denied because his income was too low to qualify for withholding. The amount was also insufficient to cover the full child support obligation. Tyler testified that he then sent his prison income to his mother, who supplemented the income with her own funds, to pay the child support obligation on Tyler's behalf. The county court found that it was "the paternal grandmother, not the father, who pays the child support for the child." Tyler's child support payment history reflects that between July 1, 2008, and May 26, 2015, $7, 517.20 had been paid and that Tyler owed $816.12.

         (c) Daniel and Linda Appointed as Micah's Guardians

         Allison has struggled with addiction since she was 15 years old. While she was in Daniel and Linda's custody and control, they sought counseling for her. Allison also received alcohol and drug counseling and treatment prior to the hearing on Daniel and Linda's petition. Although Allison had been sober for 7 months prior to the hearing, she relinquished her rights at the hearing. When asked why she wanted to do that, Allison stated, "Because I have struggled with alcohol on and off for the last 11 years of my life."

         The evidence shows that Micah has spent the majority of his life residing with Daniel and Linda. Linda testified that Micah resided with her and Daniel from his birth in September 2007 to October 2008. From October 2008 to January 2009, Micah lived with Allison in an apartment, but had almost daily contact with Daniel and Linda. After that, Allison and Micah lived with Tyler at his mother's residence for 7 to 10 days before moving back to Daniel and Linda's house. After that, Allison [295 Neb. 219] and Micah moved back with Daniel and Linda and lived there until February 2011, at least "most of that time." The evidence does not reflect where Micah lived from February to October 2011, but from November 2011 to the time of the hearing in June 2015, Micah resided with Daniel and Linda again. At that time, Allison had asked Daniel and Linda to care for Micah because she was struggling with addiction.

         In March 2012, Daniel and Linda took action to become joint guardians of Micah, and in April, they were appointed.

         (d) Tyler's Mother's Visitation

         After the guardianship commenced in 2012, Daniel and Linda offered Tyler's mother visitation with Micah. Tyler's mother testified that while Micah was visiting her, she would call Tyler in prison and allow the two to talk. She testified that these telephonic ...

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