In re Enrique P.
| Decision Date | 31 January 2006 |
| Docket Number | No. A-05-606.,A-05-606. |
| Citation | 709 N.W.2d 676,14 Neb. App. 453 |
| Parties | In re Interest of ENRIQUE P. et al., children under 18 years of age. State of Nebraska, appellee, v. Shannon P., appellant, and Omaha Tribe of Nebraska, intervenor-appellee. |
| Court | Nebraska Court of Appeals |
Thomas C. Riley, Douglas County Public Defender, and Mona L. Burton, Salt Lake City, UT, for appellant.
Stuart J. Dornan, Douglas County Attorney, and Nicole Brundo Goaley for appellee.
Shannon P. appeals an order by the separate juvenile court of Douglas County which denied (1) a petition to invalidate previous court orders and (2) a motion to dismiss. The petition and motion were based on an alleged failure to comply with both the federal and the state implementations of the Indian Child Welfare Act (ICWA). We affirm.
On June 11, 2003, the State filed a petition in the separate juvenile court of Douglas County alleging that Shannon's four children, Enrique P. (born June 29, 1993), Carina P. (born December 11, 1995), Christian P. (born November 5, 1999), and Christianna P. (born December 20, 2001), were children within the purview of Neb. Rev.Stat. § 43-247(3)(a) (Cum.Supp.2002). The petition alleged that the four children lacked proper parental care by reason of the faults or habits of Shannon. The petition stated that Shannon was currently incarcerated, making her unable to care for the children; that the family relative who had been caring for the children was unable to care for the children any longer; and that due to the facts alleged above, the children were at risk for harm.
In addition to the petition, the State also filed a motion for temporary custody that same day. The motion for temporary custody was based on an "Affidavit for Removal of Minor Child(ren) From Parent or Custodial Home" made by an Omaha, Nebraska, police officer. The affidavit stated that the officer had received a radio call to go to a particular address and check on the well-being of four children. When the officer arrived, she spoke with the above-mentioned relative, who stated that Shannon was in jail and that the relative could no longer care for Shannon's four children. The officer then placed the children in temporary foster care. An order placing the children's immediate custody with the Nebraska Department of Health and Human Services (DHHS) was also entered on June 11, 2003. The children have remained in the custody of DHHS throughout the case.
A detention hearing was held on June 18, 2003; Shannon was advised of her rights, an attorney was appointed to represent her, and the matter was continued. On June 25, the State filed an amended petition, which alleged that one child was a registered member of the Omaha Tribe and that the other three children were eligible for enrollment with the Omaha Tribe. The petition also included new allegations against Shannon—that her use of alcohol or controlled substances placed the children at risk of harm and that Shannon did not have safe, stable, and independent housing to provide to the children. The continued detention hearing was held on June 26. Shannon did not appear, but was represented by counsel. The continued detention proceedings are not included in the bill of exceptions, however, and thus, it is not clear whether Shannon objected to the children's continued detention. An order granting continued detention with DHHS was entered on that day.
An adjudication hearing on the amended petition was held on September 22, 2003. Shannon admitted to several of the allegations in the petition, including that one of her children was a member of the Omaha Tribe and that the others were eligible for enrollment. Shannon also admitted her use of alcohol or controlled substances; that she did not have safe, stable, and independent housing to provide to her children; and that her children were at risk for harm due to the facts alleged.
Before accepting the admission, the court informed Shannon of her right to a trial and stated, "If the Court makes a finding prior to your admission, that these are Indian children, at trial, the burden of proof would be by clear and convincing evidence, which is a higher standard than [in] typical cases." Documents from the Omaha Tribe regarding the four children's tribal enrollment status were admitted into evidence (indicating that not one but two of the children were enrolled members), a factual basis for filing the amended petition was given, and the court accepted Shannon's admission. The court then made a verbal finding that the ICWA was applicable "from this point forward" and stated that notice of the hearing would be provided to the Omaha Tribe. Shannon's attorney requested that the court order random urine analysis for Shannon and that it order Shannon to complete a psychological evaluation prior to the disposition hearing. The court so ordered on September 23, 2003, adjudicating the children under § 43-247(3)(a) by a preponderance of the evidence, based on the admission plea. Shannon did not appeal the adjudication order.
On September 25, 2003, the court entered a nunc pro tunc order, stating that the adjudication order had omitted the following: "On motion of the parties and based on the evidence before the Court, this Court finds that the [ICWA], both Federal and State, is applicable to these proceedings, AND IT IS SO ORDERED."
A "disposition and permanency planning hearing" was held on November 13, 2003. Although the record does not contain the actual notice provided to the Omaha Tribe, the tribe appeared through counsel at this hearing, thereby implying that the tribe received notice. The DHHS case plan and court report were discussed during the hearing and adopted. In addition, the court made another specific verbal finding that the ICWA would be applicable to the proceedings. In its order, the court reiterated that the ICWA was applicable to the proceedings and stated that "reasonable efforts have been made to return the minor children to the parental home and to finalize permanency," thereafter reciting the efforts. The court also found that it would be contrary to the health, safety, and welfare of the children for them to be returned home and that it was in their best interests and welfare to remain in the temporary custody of DHHS. Shannon did not object to the continued custody of the children with DHHS. Shannon did not appeal from the disposition order.
On February 12, 2004, the Omaha Tribe filed a notice of intervention and a notice of intent to transfer the matter to the Omaha Tribal Court. A "review and permanency planning hearing" was also held that day. The case plan and court report were discussed. The court noted that "some additional pleadings have been filed by the Omaha Tribe, and they have been scheduled for hearing at a later date." In its order, entered February 12, the court again found that "reasonable efforts have been made to return the minor children to the parental home and to finalize permanency." The court also found again that it was contrary to the health, safety, and welfare of the children for them to be returned home and that it was in their best interests and welfare to remain in the temporary custody of DHHS.
The Omaha Tribe's motion to intervene and notice of intent to transfer were heard on March 2, 2004. The court treated the notice of intent to transfer as a motion to transfer. No party objected to the motion to intervene, and it was sustained. The motion to transfer was next addressed. Shannon's attorney did not object to the transfer, but the State, the children's guardian ad litem, and DHHS noted their concerns with the transfer. The motion to transfer was denied. No appeal was taken from the order denying the transfer.
After this, a series of "review and permanency planning" hearings occurred, on May 5, August 2, and November 15, 2004. Likewise, the court orders from these hearings stated that "reasonable efforts" at reunification had been made and that it was contrary to the health, safety, and welfare of the children for them to be returned home and in their best interests to stay in the temporary custody of DHHS. Shannon did not object to the continued custody of the children with DHHS at these review hearings. At the May 5 review hearing, Shannon objected to a recommendation that visitation with her children take place only in "therapeutic," not merely "supervised," settings and asked that the visits remain supervised. Shannon did not appear for the August 2 review hearing, and Shannon's counsel made no comments at that hearing beyond requesting a continuance and assenting to the introduction of a report, because she had not had an opportunity to review the recommendations with Shannon. The continuance was denied. Shannon did not appear at the November 15 review hearing either, and Shannon's attorney again made no comments, except to request a continuance, which was denied, and to object to a concurrent plan of reunification and adoption after assenting to the introduction of another report. The court adopted DHHS' recommendations at each hearing. Shannon did not appeal any of the review orders.
On April 12, 2005, Shannon's attorney filed a petition to invalidate a number of the juvenile court's previous orders in the case, under Neb.Rev.Stat. § 43-1507 (Reissue 2004), and a motion to dismiss. The petition and motion were based on an alleged lack of compliance with the ICWA. The orders the petition sought to invalidate included those from the adjudication, the disposition, and the four subsequent review and permanency planning hearings. The petition stated that it was error for the court to adjudicate the children by a "preponderance of the evidence," rather than by "`clear and convincing evidence'" (emphasis omitted) as required under Neb. Rev.Stat. § 43-1505(5) (Reissue ...
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