Children Under 18 Years of Age. State v. Southern (In re Los)

• Decision Date: 26 April 2016
• Docket Number: No. A-15-996.,A-15-996.
• Parties: IN RE INTEREST OF ABBIE L. ET AL., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, v. ANTHONY S., APPELLANT.
• Court: Nebraska Court of Appeals

IN RE INTEREST OF ABBIE L. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. ANTHONY S., APPELLANT.

No. A-15-996.

NEBRASKA COURT OF APPEALS

April 26, 2016

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the Separate Juvenile Court of Douglas County: ELIZABETH CRNKOVICH, Judge. Reversed and vacated.

Jeffrey A. Wagner and Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellant.

Donald W. Kleine, Douglas County Attorney, and Eric Fabian for appellee.

IRWIN, PIRTLE, and BISHOP, Judges.

BISHOP, Judge.

Anthony S. appeals from the order of the Separate Juvenile Court of Douglas County, granting the continued temporary custody of his child, Eveahla S., to the Nebraska Department of Health and Human Services (DHHS). Anthony argues that the juvenile court did not comply with the requirements of the Nebraska Indian Child Welfare Act (NICWA), Neb. Rev. Stat. § 43-1501 to 43-1517 (Reissue 2008 & Supp. 2015). Anthony and the State agree reversal is warranted; they disagree on how that would affect the temporary custody of Eveahla. We reverse and vacate the juvenile court's order.

BACKGROUND

Anthony is the biological father of Eveahla, born in September 2015. Omrianna F. is Eveahla's biological mother. Because Omrianna is not a part of this appeal, she will only be discussed as necessary. We note that Omrianna has six other children, but Anthony is not their father; those six children are not part of this appeal and will not be discussed further.

On September 18, 2015, the State filed a petition alleging that Eveahla was a child as defined by Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) due to the faults or habits of Omrianna and Anthony; the petition made no mention of NICWA or its applicability. On that same date, the State also filed for, and was granted, immediate custody of Eveahla; the affidavit in support of the State's ex parte motion stated "ICWA does apply - Crow Indian tribe."

On October 6, 2015, the State filed a notice of change of placement for Eveahla, wherein the State notified the court that Eveahla had been moved to a relative's home (mother's side) and indicated that "[t]his is a relative placement that is also a member of the same Native American Tribe."

On October 8, 2015, the State filed an amended petition alleging that Eveahla was a child as defined by § 43-247(3)(a) due to the faults or habits of Omrianna and Anthony. The amended petition included allegations pertinent to NICWA. The State specifically alleged that Eveahla was "enrolled and/or eligible for enrollment in Winnebago Tribe of Nebraska or Crow Nation." The State also alleged that pursuant to § 43-1505(4) active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the family, but that such efforts had been unsuccessful; and pursuant to § 43-1505(5), the continued custody of Eveahla by her parents was likely to result in serious emotional or physical damage to the child.

The first appearance and protective custody hearing was held on October 13, 2015. Anthony appeared at the hearing and was represented by counsel. The hearing was continued as to Omrianna so that the State could perfect service on her. The State also sought a continuance because its "ICWA specialist" had a family emergency and was unable to appear at the hearing. The following discussion was then had on the record.

[ANTHONY'S COUNSEL]: Your Honor, we would oppose a continuance at this time. My client is present. He is asking that custody of his child be returned to him, and we are prepared to proceed. The State has known this was an ICWA case since filing. I don't -- I'm not even aware of them issuing a subpoena for anybody, so --

THE COURT: Okay, Your client is seeking custody or merely placement?

[ANTHONY'S COUNSEL]: Well, he would ask that he would have custody of his child at this time and that the Department be relieved of responsibility.

THE COURT: All right. Thank you. Your objection is overruled. We will proceed today.

[THE STATE]: Yes, Your Honor.

THE COURT: There is no evidence on the record that ICWA is applicable. Is there, [State's counsel]?

[THE STATE]: No, Your Honor.

[ANTHONY'S COUNSEL]: Your Honor, if I may?

THE COURT: Uh-huh

[ANTHONY'S COUNSEL]: In the affidavit for removal filed by the State in this matter it states that the children are enrolled members.

THE COURT: Okay. I was -- well, not exactly. It says Crow Indian Tribe - ICWA does apply. I do not see where it says they are enrolled members.

. . .

[ANTHONY'S COUNSEL]: And then I think there may be another affidavit.

. . .

THE COURT: At any rate, here is the issue. Certain evidence at this initial protective custody hearing has to be presented, period, so -- and it has to rise to a certain level. And this is an initial protective custody hearing.

. . .

[ANTHONY'S COUNSEL]: Your Honor, just for a point of clarification --

THE COURT: Yes.

[ANTHONY'S COUNSEL]: -- the State has filed an amended petition in this matter.

THE COURT: Correct.

[ANTHONY'S COUNSEL]: And, in fact, the amended petition, just for clarification, alleges tribal enrollment.

THE COURT: Yes. I understand that. But we are not here for adjudication.

[ANTHONY'S COUNSEL]: I understand.

THE COURT: Okay.

[ANTHONY'S COUNSEL]: But for the purposes of detention --

THE COURT: Got it.

[ANTHONY'S COUNSEL]: --the court and the parties are on notice that ICWA applies.

THE COURT: Got it.

[ANTHONY'S COUNSEL]: Okay.

THE COURT: I think I am operating under the bump-up under the ICWA.

[ANTHONY'S COUNSEL]: Okay.

THE COURT: I am not addressing anything further. You may call your first witness.

At that point the State called its only witness, Stacy Merrell, to testify.

Merrell, an initial assessment worker with the State of Nebraska, testified as follows. She went to the hospital the day after Eveahla's birth. Omrianna admitted she used marijuana at the onset of labor, used "meth" approximately 3 days prior to delivery, and had limited prenatal care. Omrianna tested positive for amphetamines and THC, and Eveahla had meth in her system. Omrianna and Anthony said they fought a lot; in fact, Omrianna had been in the emergency room the weekend before giving birth due to a domestic situation that caused bruising on her ribs. Anthony said he and Omrianna frequently fought over her drug use. Anthony did not have a place to live because his mother had recently passed away and his grandmother had changed the locksto the home; but he did not say how long the locks had been changed or how long he had been homeless.

Merrell was aware that Eveahla was eligible for tribal enrollment. Prior to removal, Merrell's efforts consisted of doing an investigation, meeting with Eveahla's parents, and gathering documents from hospital staff. She also contacted Eveahla's grandparents, who had two of Eveahla's sisters, but they were not able to take Eveahla. On cross-examination, Merrell acknowledged that her efforts prior to removal did not go beyond reasonable efforts. In response to a question by the court, Merrell stated that efforts would not have prevented removal.

Merrell testified that it would not be safe for Eveahla to return to Anthony because he did not have a place to live, did not have a job, and because of the domestic violence issues. However, she testified that she did not believe that Eveahla would likely be seriously harmed if placed with Anthony.

Following Merrell's testimony, the State renewed its motion to continue, but the motion was denied. Both sides rested and the State submitted on the evidence. Anthony's counsel then addressed the court as follows.

[ANTHONY'S COUNSEL]: Just briefly, Judge. Before this Court can order foster care placement, it must be supported by clear and convincing evidence, including testimony of a qualified expert witness that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. We have no such testimony. We have no such expert. We have no such evidence. I would ask the Court to release the child to my client.

The court then addressed the parties as follows.

THE COURT: All right. I -- the law is -- first of all, this is an initial protective custody hearing. There is information that this child is an Indian child under the Indian Child Welfare Act. There is not evidence before the record [sic] that either parent is an enrolled member of a tribe, nor is there evidence that the children -- this child is an enrolled member and/or is eligible for enrollment, number one. There are certain conditions that are required by the Department and anyone else, knowing that -- just on a preliminary concern that the child might be Native American. There is testimony that the Tribe has been notified.

There is testimony that efforts, period, whether active or reasonable, would not have prevented the removal of this child, and I find that to be the case. I believe the testimony, taken as a whole, provides sufficient evidence under the Indian Child Welfare Act that at this time it would be quite challenging to place this child with her father and that it could result in serious emotional and physical distress.

Now, even though the witness said no to physical, I have no idea where this individual lives. I have no idea what his circumstances are. I have no idea what preparations he may have made for the care of this very young infant. I have information that suggests he remains in a relationship with the child's mother. So at this time the child will remain [in] the custody of [DHHS] for appropriate care and placement to exclude the home of the father. . . .

In an order filed on October 15, 2015, the juvenile court found that active efforts had been made to prevent or eliminate the need for removal; such efforts included, but were not limited to, a risk...