In re Adoption of Micah H., a minor child.
Tyler R., appellee. Daniel H. and Linda H., appellants.
Judgments: Jurisdiction. A jurisdictional
issue that does not involve a factual dispute presents a
question of law.
Juvenile Courts: Appeal and Error. An
appellate court reviews juvenile cases de novo on the record
and reaches its conclusions independently of the juvenile
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.
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.
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
Judgments: Final Orders: Words and Phrases.
A judgment is the final determination of the rights of the
parties in an action.
__: __ .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.
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.
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.
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.
from the County Court for Saunders County: Patrick R.
McDermott, Judge. Reversed and remanded.
H. Sohl for appellants.
Jennifer D. Joakim for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch,
and Funke, JJ.
NATURE OF CASE
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) and the Nebraska Indian Child Welfare Act
(NICWA) apply to provide increased protection to
the parental rights of a non-Indian, noncustodial parent of
an "Indian child."
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. 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
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.
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
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
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
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.
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
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.
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
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
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.
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.
Neb. 218] (b) Child Support
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.
Daniel and Linda Appointed as Micah's Guardians
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."
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.
March 2012, Daniel and Linda took action to become joint
guardians of Micah, and in April, they were appointed.
Tyler's Mother's Visitation
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 ...