State v. Joseph B. (In re Interest of Tavian B.)
| Decision Date | 19 February 2016 |
| Docket Number | No. S–15–129,S–15–129 |
| Citation | 874 N.W.2d 456,292 Neb. 804 |
| Parties | 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, intervenor-appellee. |
| Court | Nebraska Supreme Court |
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., Lincoln, for appellant.
Joe Kelly, Lancaster County Attorney, and Lory Pasold, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, Cassel, and Stacy, JJ.
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.
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).
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 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 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:
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.
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.
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 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 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 was required to transfer the proceeding to tribal court.
The juvenile court found that the State had met its burden of showing good cause because the proceeding was at an advanced stage. It reasoned that usually, the date for determining whether the case was at an advanced stage would be the date of the filing of a motion to terminate parental rights. Because the State withdrew its motion for termination of parental rights on January 6, 2015, the court concluded that May 16, 2013, was the date of the State's petition for adjudication.
Using May 16, 2013, as the starting date, it concluded that the proceeding was at an advanced stage.
The juvenile court expressed concern that an Indian parent could play "an ICWA trump card at the eleventh hour" to transfer the case to tribal court. But we point out that the State's dismissal of its motion to terminate parental rights to avoid a transfer leaves an Indian child suspended in uncertainty. If the State sought a termination of parental rights, the party seeking transfer could file a new motion to transfer and the State could again dismiss the termination proceeding. The juvenile court's conclusion that the matter was in an advanced stage stemmed from the State's voluntary dismissal of the termination proceeding.
Good cause to overrule Appellant's motion to transfer to tribal court is not defined in ICWA. But the guidelines published by the Bureau of Indian Affairs (BIA guidelines) provide a basis for determining what constitutes good cause to deny motions to transfer. Previously, this court and other courts have looked to the BIA guidelines in making such determinations. See, In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012) ; In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), overruled on other grounds, In re Interest of Zylena R. & Adrionna R., supra . See, also, People ex rel. T.I., 707 N.W.2d 826 (S.D.2005) ; In re Adoption of S.W., 41 P.3d 1003 (Okla.Civ.App.2001) ; In re A.P., 25 Kan.App.2d 268, 961 P.2d 706 (1998). The BIA guidelines provide guidance to state courts and child welfare agencies implementing ICWA and promote compliance with ICWA's stated goals by providing a framework and best practices for compliance.
At the time of the juvenile court ruling, the BIA guidelines provided that good cause not to transfer may exist if the proceeding was "at an advanced stage" when the petition to transfer was received and the petitioner failed to "file the petition promptly" after receiving notice. See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,591, C.3(b)(i) (Nov. 26, 1979) (not codified). While this appeal was pending, the BIA guidelines were amended. They now provide that in determining whether good cause exists to deny a motion to transfer to...
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