In re Adoption of Micah H., a minor child.
Tyler R., appellant. Daniel H. and Linda H., appellees.
Jurisdiction: Juvenile Courts: Appeal and
Error. A jurisdictional issue that does not involve
a factual dispute presents a question of law. 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.
Adoption: Appeal and Error. Appeals in
adoption proceedings are reviewed by an appellate court for
error appearing on the record.
Judgments: Appeal and Error. When reviewing
a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
Adoption. The matter of adoption is
statutory, and the manner of procedure and terms are all
specifically prescribed and must be followed.
Adoption: Parent and Child: Parental Rights.
Consent of a biological parent to the termination of his or
her parental rights is the foundation of our adoption
statutes, and an adoption without such consent must come
clearly within the exceptions contained in the statutes.
Adoption: Parent and Child. A determination
regarding parental consent, a finding under Neb. Rev. Stat.
§ 43-104(2) (Reissue 2016), or a determination regarding
substitute consent does not end the court's inquiry as to
whether the petition for adoption should be approved.
Adoption. Upon a hearing in an adoption
proceeding, if the statutory requirements are otherwise
satisfied, the court may decree an adoption after finding
that such adoption is in the best interests of the child.
Neb. 438] 9. Due Process: Parent and Child.
An established familial relationship is a liberty interest
entitled to substantial due process protection.
Constitutional Law: Parent and Child.
Concerning a parent-child relationship, the mere existence of
a biological link does not merit equivalent constitutional
___: ___. The constitutional protection given to the familial
relationship stems from the emotional attachments that derive
from the intimacy of daily association.
Constitutional Law: Parent and Child: Adoption:
Notice. When a biological father has not taken the
opportunity to form a relationship with his child, the
constitution does not afford him an absolute right to notice
and an opportunity to be heard before the child may be
Indian Child Welfare Act: Parental Rights.
The Nebraska Indian Child Welfare Act provides a higher
standard of protection to the rights of the parent or Indian
custodian of an Indian child than does the Indian Child
Welfare Act; therefore, the Nebraska Indian Child Welfare Act
___: ___ . Under the Nebraska Indian Child Welfare Act, there
is no precise formula for active efforts; the active efforts
standard requires a case-by-case analysis and should be
judged by the individual circumstances.
___: ___. Under the Nebraska Indian Child Welfare Act, active
efforts are required even if the parent is incarcerated, but
may include programs offered by the Department of
___: ___. Under the Nebraska Indian Child Welfare Act, a
parent's demonstrated lack of willingness to participate
in treatment may be considered in determining whether the
state has taken active efforts.
Adoption: Abandonment: Time. Consent for an
adoption is not required when a parent has abandoned the
child for at least 6 months next preceding the filing of the
Abandonment: Evidence: Proof. In order for a
court to find that abandonment has occurred, the petitioning
party bears the burden of proving by clear and convincing
evidence that the parent abandoned the child.
Abandonment: Proof. To constitute
abandonment, it must appear that there has been, by the
parents, a giving up or total desertion of the minor child.
There must be shown an absolute relinquishment of the custody
and control of the minor and thus the laying aside by the
parents of all care for the minor.
Abandonment: Words and Phrases. Abandonment
may be found where there is willful or intentional conduct on
the part of the parent which evinces a settled purpose to
forgo all parental duties and relinquish all parental claims
to the child, or a willful neglect and [301 Neb. 439] refusal
to perform the natural and legal obligations of parental care
Abandonment: Evidence. The conduct
constituting abandonment must appear by clear and convincing
evidence to be willful, intentional, or voluntary, without
just cause or excuse.
Adoption. Adoption statutes will be
construed strictly in favor of the rights of the natural
parents in controversies involving termination of the
relation of the parent and child.
Abandonment: Evidence: Appeal and
Error. The various definitions of abandonment do not
require an appellate court to view the statutory period
defined in Neb. Rev. Stat. § 43-104(2)(b) (Reissue 2016)
in a vacuum. One may consider the evidence of a parent's
conduct, either before or after the statutory period, because
this evidence is relevant to a determination of whether the
purpose and intent of that parent was to abandon his or her
child or children.
Parental Rights: Abandonment. In considering
the issue of abandonment, parental incarceration may be
considered as a basis for termination of parental rights.
___: ___ . Consideration of parental abandonment is not to
say that criminal conduct or imprisonment alone necessarily
justifies an order of permanent deprivation.
___: ___. In a parental termination proceeding, a court may
consider a parent's inability to perform his or her
parental obligations because of imprisonment and the nature
of the crime committed, which considerations are relevant to
the issue of parental fitness and child welfare, as is the
parent's conduct prior to and during the period of
Indian Child Welfare Act: Intent. The policy
behind the Indian Child Welfare Act was to further the
nation's interest in protecting the best interests of
Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal
Constitutional Law: Parental Rights. It is a
well-established maxim of constitutional law that the Due
Process Clause of the 14th Amendment protects the fundamental
right of parents to make decisions concerning the care,
custody, and control of their children.
Adoption: Parental Rights: Abandonment: Final
Orders. Despite a finding of abandonment, a parent
retains parental rights until the final judgment denying or
granting the petition for adoption, and the parent may still
participate in the proceedings to present evidence that
adoption is not in the child's best interests.
Adoption: Parental Rights. If the court
finds that adoption is not in the child's best interests,
then the rights of the parent, who was deemed to have
abandoned the child, are returned to the status quo.
Neb. 440] 31. Adoption: Abandonment.
Abandonment, for purposes of adoption, is not always
determined in proceedings separate from the underlying
adoption, because nothing in the adoption statutes absolutely
requires bifurcated proceedings.
from the County Court for Saunders County: Patrick R.
McDermott, Judge. Affirmed in part, and in part vacated and
remanded with directions.
Jennifer D. Joakim for appellant.
Michael J. Novotny, of Fredericks, Peebles & Morgan,
L.L.P, for appellees.
N. Babcock and George T. Babcock, of Law Offices of Evelyn N.
Babcock, for amici curiae Evelyn N. Babcock and George T.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
an adoption case we first visited in In re Adoption of
Micah H.,  where we concluded that the county court
applied the wrong standard of proof in determining
abandonment. We further concluded that the active efforts
requirement of the Nebraska Indian Child Welfare Act
(NICWA) applied to cases involving the termination
of parental rights over Indian children, even when the parent
is not of Native American descent. We remanded the cause to
the county court.
remand, the county court, applying the correct standard of
clear and convincing evidence, found that (1) the petitioning
grandparents, Linda H. and Daniel H., had made active efforts
to provide remedial and rehabilitative programs designed to
"unite the parent . . . with the Indian child,"
under [301 Neb. 441] § 43-1505(4), and (2) Linda and
Daniel presented clear and convincing evidence that Tyler R.,
the biological father, had abandoned Micah H., the child in
question. Tyler appeals. This case presents issues regarding
the interpretation of the relevant adoption statutes, as well
as NICWA, and whether Tyler abandoned Micah. We affirm in
part, vacate the adoption decree, and remand the cause to the
county court with directions.
is the 10-year-old biological child of Tyler and Allison H.
Allison is a member of the Oglala Sioux Tribe. As such, Micah
is an "Indian child" pursuant to the federal Indian
Child Welfare Act of 1978 (ICWA) and NICWA.
majority of Micah's life, he has resided with his legal
guardians, Linda and Daniel, who are Allison's adoptive
parents and do not share Allison's Native American
heritage. Linda and Daniel sought to become Micah's
guardians in March 2012, due to Allison's concerns
regarding her ability to maintain sobriety. In April, the
Saunders County Court appointed Linda and Daniel as
to the record, Tyler also struggles with drug and alcohol
addiction. He has been incarcerated since February 2012 for
an alcohol-related motor vehicle homicide and has a projected
release date of August 2019, at the earliest. Prior to his
2012 incarceration, Tyler had numerous encounters with the
criminal justice system, many of those drug or alcohol
January 2014, Micah was taken to see a psychologist for an
evaluation. The psychologist's report concluded that
"[g]iven obvious stressors (i.e.; [Allison's] and
[Tyler's] substance abuse, [Tyler's] incarceration,
alternate placement [with Linda and Daniel], and
[grandparent] visitations [with Tyler's mother]) and
Micah's symptoms of anxiety, including stuttering,
nightmares, and general worry, a diagnosis of Adjustment
Disorder with Anxiety appears appropriate."
Neb. 442] Linda and Daniel filed a petition for adoption and
termination of parental rights in Saunders County Court.
During the course of the adoption proceedings, Allison
voluntarily relinquished all parental rights to, and custody
of, Micah, asking that Micah be permitted to be adopted by
Linda and Daniel. Tyler objected to Linda and Daniel's
petitioned adoption. Linda and Daniel also served a copy of
the complaint on the president of the Oglala Sioux Tribe, as
required by § 43-1505(1), and the tribe declined to
2015, the Saunders County Court denied Linda and Daniel's
petition. Linda and Daniel appealed, assigning as error that
(1) the county court erred in finding that ICWA applied at
the request of Tyler, a non-Indian, and (2) the county court
erred in applying a higher burden of proof to the abandonment
element under Neb. Rev. Stat. § 43-104(2) (Reissue 2016)
by requiring that Linda and Daniel demonstrate abandonment
"beyond a reasonable doubt."
appeal, we determined that the county court erred in applying
the '"beyond a reasonable doubt'" standard
to the abandonment element and also in finding that Linda and
Daniel were not required to show that active efforts had been
made, under NICWA, to unite Tyler and Micah. We noted that the
appropriate standard concerning abandonment under §
43-104(2) is "clear and convincing evidence" of
abandonment. Further, we explained that under NICWA,
Linda and Daniel were required to show active efforts to
unite Tyler and Micah or that attempts to provide active
efforts had been made to the extent possible under the
circumstances. We remanded the cause to the county court for
remand, the county court found in favor of Linda and Daniel.
Specifically, the county court concluded that Linda and [301
Neb. 443] Daniel had demonstrated active efforts to unite
Micah with Tyler by contacting the tribe in an attempt to
establish services, as well as directing Tyler to the same
treatment programs that they had used for Allison. The county
court also found that Tyler had abandoned Micah.
the county court found there was evidence that Tyler had
engaged in some treatment programs, it noted that Tyler
continued to use drugs and alcohol, leading to his conviction
for motor vehicle homicide. The county court also found there
was no evidence that Tyler even attempted to acquaint himself
with the history, cultural norms, and practices of the tribe,
or any customs that have bearing on the parent-child
and Daniel testified that as far as they were aware, prior to
his incarceration, Tyler maintained a residence in his
mother's basement and had the means to acquire
transportation. Prior to 2011, Linda and Daniel assisted in
providing for visitation as well as instruction regarding the
appropriate interactions with and care for a toddler. Linda
indicated that she had conversations with Tyler concerning
scheduling visits and obtaining help with drug and alcohol
addiction, and even assisted with the parenting plan provided
by the court.
noted that after Micah began demonstrating inappropriate
behaviors, Allison retained the services of an attorney in
order to send Tyler a letter expressing her concern and
requesting assurances with regard to the monitoring of
Tyler's visitation with Micah. The letter was dated May
16, 2011. Daniel indicated that after Tyler's receipt of
the letter, he discontinued his visitations with Micah.
Daniel further indicated that he had supported Tyler's
visitations with Micah until Micah began exhibiting
indicated that since his incarceration, he had obtained a
certificate from every level of the "Designated Dad
Program." The record indicates that Tyler attended one
Alcoholics Anonymous meeting for the stated purposes of
"[s]upport[ing] others there." However, Tyler
testified that [301 Neb. 444] Linda and Daniel never spoke
with him about rehabilitation services and that he did not
believe that he required any alcohol rehabilitation services.
This was despite the fact that Tyler had a lengthy criminal
history involving alcohol and drug possession.
admitted that he had not had any face-to-face contact with
Micah since about 2011, or for over a year prior to his
incarceration. Despite Tyler's incarceration, he has
continued to send letters to Micah. Tyler has attempted to
utilize money he earned during his incarceration to pay the
child support he owes. However, due to the minimal earnings,
the State rejected Tyler's request to direct funds to the
Department of Health and Human Services. The record
demonstrates that Tyler's mother pays the child support
and that Tyler assists when he is able. Despite claims that
Linda and Daniel have prevented Micah from visiting Tyler,
the court below noted that no formal request had been made by
Tyler to have Micah visit him in prison.
the course of the adoption proceedings, and while discussing
preliminary matters, the court observed that it was aware
that "these kinds of cases" have two procedural
stages. But the court indicated that the guardian ad litem
had been informed that he may be called to testify at the
completion of the proceedings regarding abandonment and
Micah's best interests, rather than the usual procedure
of holding a hearing on the matter at a later date. In fact,
the guardian ad litem did testify and was cross-examined
regarding Micah's best interests at that same hearing.
conclusion of the trial, the county court judge noted that he
was "not turning this case over to some other judge to
read the record and come to a conclusion. I am the one
that's heard all the live evidence." The judge
further stated that "[i]t would be unfair to a colleague
and really unfair to all of the litigants because . . . those
observations are important in the context of the whole
case.'" (Emphasis supplied.) The county court
then found that Tyler had abandoned Micah and terminated [301
Neb. 445] Tyler's parental rights, further finding that
adoption by Linda and Daniel was in Micah's best
interests. Accordingly, a decree granting the adoption was
entered. Tyler appeals.
assigns that the trial court erred in (1) finding that Linda
and Daniel had used active efforts to provide remedial
services and rehabilitative programs designed to prevent the
breakup of an Indian family or to unite the parent or Indian
custodian with the Indian child within the meaning of NICWA,
(2) finding by clear and convincing evidence that Tyler
abandoned Micah under § 43-104(2), (3) finding that the
adoption was in the best interests of the child, (4) granting
the decree without notice and an opportunity to be heard at a
further hearing on the best interests of Micah after
terminating Tyler's parental rights, and (5) not adhering
to statutory adoption requirements.
jurisdictional issue that does not involve a factual dispute
presents a question of law. An appellate court reviews
juvenile cases de novo on the record and reaches its
conclusions independently of the juvenile court's
findings.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. Appeals in
adoption proceedings are reviewed by an appellate court for
error appearing on the record. When reviewing a judgment for
errors appearing on the record, the inquiry is whether the
decision conforms to [301 Neb. 446] the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor