State v. Elise M. (In re Zylena R.)

• Decision Date: 14 December 2012
• Docket Number: Nos. S–11–659,S–11–660.,s. S–11–659
• Citation: 825 N.W.2d 173,284 Neb. 834
• Parties: In re INTEREST OF ZYLENA R. and Adrionna R., Children Under 18 years of age. State of Nebraska, Appellee and Cross–Appellee, v. Elise M., Appellant, and Omaha Tribe of Nebraska, Intervenor–Appellee and Cross–Appellant.
• Court: Nebraska Supreme Court

284 Neb. 834

825 N.W.2d 173

In re INTEREST OF ZYLENA R. and Adrionna R., Children Under 18 years of age.

State of Nebraska, Appellee and Cross–Appellee,

v.Elise M., Appellant,andOmaha Tribe of Nebraska, Intervenor–Appellee and Cross–Appellant.

Nos. S–11–659, S–11–660.

Supreme Court of Nebraska.

Dec. 14, 2012.

Syllabus by the Court

[284 Neb. 834]1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a transfer to tribal court under the Indian Child Welfare Act is reviewed for an abuse of discretion.

2. Statutes. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.

[284 Neb. 835]3. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court will give statutory language its plain and ordinary meaning.

4. Indian Child Welfare Act: Parental Rights: Case Disapproved. To the extent In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), can be read as holding that a foster placement proceeding and a subsequent termination of parental rights proceeding involving an Indian child are not separate and distinct under the federal Indian Child Welfare Act of 1978 and the Nebraska Indian Child Welfare Act, it is disapproved.

5. Indian Child Welfare Act: Jurisdiction: Case Overruled. To the extent that In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), permits a state court to consider the best interests of an Indian child in deciding whether there is good cause to deny a motion to transfer a proceeding to tribal court, it is overruled.

Norman Langemach, Lincoln, for appellant.

Joe Kelly, Lancaster County Attorney, Alicia B. Henderson, and Christopher M. Turner for appellee.

Rita Grimm and Rosalynd J. Koob, of Heidman Law Firm, L.L.P., for intervenor-appellee.

Hazell G. Rodriguez, guardian ad litem.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

STEPHAN, J.

Zylena R. and Adrionna R. are Indian children who were adjudicated by the separate juvenile court of Lancaster County under Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008) and placed in foster care. When the State filed motions to terminate parental rights, the Omaha Tribe of Nebraska (the Tribe) sought to transfer the proceedings to the Omaha Tribal Court pursuant to the federal Indian Child Welfare Act of [284 Neb. 836]1978 (ICWA) ¹ and the Nebraska Indian Child Welfare Act (NICWA).² The juvenile court denied the requested transfers based upon its finding that the motions were filed at an “advanced stage” of the juvenile proceedings. The Nebraska Court of Appeals affirmed in a memorandum opinion, rejecting the argument of the mother and the Tribe that under ICWA and NICWA, a court should treat foster care placement and termination of parental rights as separate proceedings for purposes of determining whether a juvenile case pending in state court has reached an advanced stage at the time a motion is made to transfer the case to tribal court.³ We granted the mother's petition for further review, in which the Tribe has joined, to consider this question.

BACKGROUND

Elise M. and Francisco R. are the biological parents of Zylena, born in June 2007, and Adrionna, born in December 2008. Elise has been an enrolled member of the Tribe since 1991. Francisco is not an enrolled member and is not eligible for enrollment. This appeal involves two separate cases which were filed in the separate juvenile court and eventually consolidated.

In the case which is before us as No. S–11–659, the State filed a petition on June 20, 2008, alleging that Zylena was a child as defined by § 43–247(3)(a) as a result of the fault or habits of Elise. An amended petition filed on July 1 alleged that Zylena was a child as defined by § 43–247(3)(a) by reason of the fault or habits of both Elise and Francisco. On or about July 9, the State mailed a copy of the amended petition and a notice to the Omaha Tribal Council. The notice stated that Zylena was a member of or may be eligible for membership in the Tribe. The notice further stated that the Tribe could intervene in the case and that the action “may result in restriction of parental or custodial rights to the child or foster care placement of the child or termination of parental rights to the child.” On July 16, the Tribe informed the State that Zylena was not an enrolled member and was not eligible for enrollment. Zylena was adjudicated on September 22, 2008.

The case which is before us as No. S–11–660 was commenced by the filing of a petition in the separate juvenile court on May 1, 2009. In this petition, the State alleged that both Zylena and Adrionna were minor children as defined by § 43–247(3)(a) by reason of the fault or habits of Elise and Francisco. Both children were adjudicated on May 12. They were placed with their current foster family on May 29. At that time, the permanency objective for both children was reunification with their parents.

In October 2010, an employee of the Nebraska Department of Health and Human Services realized that notice had not been sent to the Tribe with respect to Adrionna. She then sent a notice to the Tribe and inquired whether Adrionna was an enrolled member or eligible for membership. The notice included a statement that the pending action could result in removal of the child from the home or termination of parental rights and adoption. The department did not receive a response from the Tribe.

From and after May 29, 2009, various services were provided to Elise and Francisco by the State of Nebraska. Neither Elise nor Francisco made measurable progress toward rehabilitation. In November 2010, the permanency objective was changed from reunification to adoption. And on February 7, 2011, the State filed motions in each case seeking to terminate the parental rights of Elise and Francisco to both children.

In case No. S–11–660, the case involving both children, the Tribe filed a notice of intervention on February 14, 2011, and a notice of intent to transfer on February 22. The latter motion asserted that Zylena and Adrionna were eligible for enrollment in the Tribe and requested that the case be transferred to tribal court pursuant to § 43–1503(4). The Tribe filed similar documents in case No. S–11–659 on March 1.

At a hearing on the Tribe's motions, the State and the guardian ad litem orally objected to the requested transfers without specifically stating the grounds for their objection. A representative of the Tribe testified that, due to a mathematical error, it had incorrectly determined in July 2008 that Zylena was not eligible for enrollment. The Tribe presented evidence that both children are eligible for enrollment through Elise. The Tribe first realized its error in late January or early February 2011. A tribal representative testified that but for the mistake, the Tribe likely would have moved to intervene sooner. A representative also testified that a tribal court would work to reunify the family, but would not terminate parental rights. She explained that a long-term guardianship could be established for the children by the tribal court. The representative further testified that if the cases were transferred, the Tribe intended to keep the children in their current foster care placement.

The State presented evidence that it was in the best interests of the children to remain in their current foster care placement. In addition, the foster mother testified that she and her husband were willing to adopt the children and that if they did so they intended to integrate the children's cultural traditions into their lives. A state caseworker reviewed the proposed case plan prepared by the Tribe and opined that it was essentially the same case plan the State had been implementing since the proceedings began 2 years prior.

In orders entered on June 30, 2011, the juvenile court denied the Tribe's motions to transfer to tribal court. In case No. S–11–659, the case involving only Zylena, the juvenile court found that the case had been pending since June 2008, that Zylena was adjudicated in September 2008, that the permanency plan of adoption was approved in November 2010, that a motion to terminate parental rights was filed, and that the Tribe had not filed its notice of intent to transfer until March 1, 2011, despite receiving notice in July 2008. The court concluded that the proceeding was at an advanced stage and that because the Tribe had not filed its motion to transfer “for 32 months after receiving original notice, good cause has been shown to deny the transfer.” In case No. S–11–660, the case involving both children, the juvenile court noted that the petition was filed in May 2009; that numerous hearings had been held; that a permanency plan of adoption had been approved on November 4, 2010; that a motion to terminate parental rights was filed; and that the Tribe had not filed its notice of intent to transfer until February 22, 2011. The court concluded that because the proceeding was at an advanced stage when the Tribe requested transfer, “good cause has been shown to deny the transfer.” The juvenile court did not make findings in either case as to whether transfer was in the best interests of the children.

Elise filed a timely appeal in each case, and the Tribe cross-appealed. Elise assigned that the juvenile court erred in denying the motion to transfer, arguing that in determining whether the proceedings were at an “advanced stage” when the motions to transfer were filed, the court should have considered only the time after the filing of the petitions to terminate parental rights, and not the preceding period when the children were placed in foster care.

In affirming the judgments of the juvenile court, the Court of Appeals relied on three prior Nebraska cases,⁴ including one from this court, in concluding that “it is the policy of this state to consider the entire history of a...