In re Interest of Walter W.

• Decision Date: 18 January 2008
• Docket Number: No. S-07-393.,S-07-393.
• Citation: 744 N.W.2d 55,274 Neb. 859
• Parties: IN RE INTEREST OF WALTER W., a Child Under 18 Years of Age. State of Nebraska, Appellee, v. Martina A., Appellant.
• Court: Nebraska Supreme Court

744 N.W.2d 55

274 Neb. 859

IN RE INTEREST OF WALTER W., a Child Under 18 Years of Age.

State of Nebraska, Appellee, v. Martina A., Appellant.

No. S-07-393.

Supreme Court of Nebraska.

January 18, 2008.

Marian G. Heaney, of Legal Aid of Nebraska, for appellant.

Regina T. Makaitis, Special Prosecutor, for appellee.

Sarah Helvey and Jennifer A. Carter for amicus curiae Nebraska Appleseed Center for Law in the Public Interest.

Mark C. Tilden, of Native American Rights Fund, and Marian G. Heaney, of Legal Aid of Nebraska, for amid curiae Yankton Sioux Tribe of South Dakota et al.

Shannon Smith, of Indian Child Welfare Law Center, and Padraic I. McCoy and Mandi L. Hill, of Faegre & Benson, L.L.P., for milieus curiae Indian Child Welfare Law Center.

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

CONNOLLY, J.

Martina A. appeals the separate juvenile court's order terminating her parental rights to her son, Walter W. He is an Indian child, so the Indian. Child Welfare Act (ICWA) applies, The juvenile court initially terminated Martina's parental rights in September 2005. The Nebraska Court of Appeals vacated the termination order in July 2006 because the State had failed to give the Yankton Sioux Tribe proper notice before the termination hearing. After retrial in January and February 2007, the juvenile court again terminated Martina's parental rights. Martina appeals, arguing the State failed to meet its burden under ICWA.

ICWA requires the State to prove that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family."¹ The main issues are whether the State (1) must prove the "active efforts" element beyond a reasonable doubt or by clear and convincing evidence and (2) met its burden in proving this element. We affirm because we conclude the State met its burden of proving, by clear and convincing evidence, that the Department of Health and Human Services (the Department) made active efforts to provide remedial services and rehabilitative programs.

I, PROCEDURAL BACKGROUND

Martina gave birth to Walter on January 2, 2003. The following day, the State filed a supplemental petition. It alleged Martina placed him in a situation injurious to his health or morals. The petition alleged she was unable to provide safe, stable, and independent housing for herself and her child and that her use of alcohol or controlled substances placed Walter at risk for harm. At the time, Martina had five other children who were under the juvenile court's jurisdiction because of Martina's faults or habits. The juvenile court placed Walter in the Department's temporary custody. Evidence later showed that Walter tested positive for amphetamine at birth.

In January 2003, Martina informed the court that she was an enrolled member of the Yankton Sioux Tribe and that Walter's father was an enrolled member of the Omaha Tribe. Later that month, after a continued detention hearing, the court ordered that Walter would remain in the Department's temporary custody. In May, the court found that Martina was an enrolled member of the Yankton Sioux Tribe and that Walter was eligible for enrollment. The court ordered that ICWA and its Nebraska counterpart, the Nebraska Indian Child Welfare Act (NICWA), would apply in all future proceedings. In November, the Yankton Sioux Tribe filed a notice to intervene. According to the parties, the court never heard or granted the tribe's motion.

In April 2004, the court declared Walter a child within the meaning of Neb.Rev. Stat. § 43-247(3)(a) (Cum.Supp.2002). After a disposition and permanency planning hearing in July, the court ordered that Martina (1) complete an inpatient chemical dependency treatment program, (2) participate in outpatient chemical dependency treatment until admitted for inpatient treatment, (3) maintain safe and adequate housing and a legal source of income, and (4) complete psychological and psychiatric evaluations.

On December 9, 2004, the State moved for termination of Martina's parental rights. The court heard the motion in June 2005 and terminated Martina's parental rights in September. Martina appealed. The Court of Appeals determined the termination hearing was invalid because the State had failed to give proper notice to the Yankton Sioux Tribe as required under ICWA.² The court vacated the termination order and remanded the cause to the juvenile court for further proceedings following proper notice to the Yankton Sioux Tribe.³

After receiving the mandate, the juvenile court ordered another hearing on the motion to terminate parental rights. The special prosecutor notified the Yankton Sioux and Omaha Tribes. The court held the hearing on January 31 and February 1, 2007. The Yankton Sioux Tribe did not appear. The court terminated Martina's parental rights in March.

II. ASSIGNMENTS OF ERROR

Martina assigns, restated, that the juvenile court erred in terminating her parental rights because the State failed to meet its burden of proof. In her second assignment of error, Martina asserts that the Court of Appeals' dismissal in an unrelated case precluded her from appealing the adjudication in this case.

III. STANDARD OF REVIEW

We review juvenile cases de novo on the record, and we reach our conclusions independently of the juvenile court's findings.⁴

IV. ANALYSIS

To terminate parental rights, the State must prove by clear and convincing evidence that one or more of the statutory grounds listed in Neb.Rev.Stat. § 43-292 (Reissue 2004) have been satisfied and that termination is in the child's best interests.⁵ NICWA, however, adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. First, § 43-1505(4) provides an "active efforts" element:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law, shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

Section 43-1505(4) is identical to its federal counterpart, 25 U.S.C.1912(d). Second, Nebraska's § 43-1505(6) provides a "serious emotional or physical damage" element:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.

Section 43-1505(6) is identical to 25 U.S.C. § 1912(f).

1. THE STATE MET ITS BURDEN OF PROVING ACTIVE EFFORTS

Martina contends the State failed to prove that the Department made active efforts as required under ICWA.

(a) The "Active Efforts" Element Must Be Proved by Clear and Convincing Evidence

Before deciding whether the State met its burden in proving active efforts, we must first determine the standard of proof for this element. The language in § 43-1505(4) does not impose any particular standard of proof for the active efforts element. Section 43-1505(6), however, expressly requires the State to prove beyond a reasonable doubt that the child is likely to suffer serious emotional or physical harm if the parent retains custody.

Martina contends that the proper standard for the active efforts element is proof beyond a reasonable doubt. The State urges us not to adopt the "beyond a reasonable doubt" standard.

Martina directs our attention to In re Interest of Phoenix L.⁶ In that case, the mother argued that, a Nebraska Juvenile Code section violated equal protection. She argued that the statute only required clear and convincing evidence to terminate parental rights in a case involving non-Indian children but that § 43-1505(6) of NICWA required proof beyond a reasonable doubt. We concluded that "the lower standard of proof under § 43-279.01(3) for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the NICWA, does not violate the equal protection rights of parents of non-Indian children."⁷ In discussing the "beyond a reasonable doubt" standard, we cited only the "serious emotional and physical damage" element under § 43-1505(6) for terminating parental rights. And we did not mention the active efforts element or its standard of proof; that issue was not before the court. We decline to read In re Interest of Phoenix L. as requiring proof beyond a reasonable doubt for all elements of an ICWA case.

Other jurisdictions are split on what standard should apply. For instance, the South Dakota Supreme Court assumed the burden to prove the serious emotional and physical damage element—beyond a reasonable doubt—would apply to prove the active efforts element.⁸ Other courts have declined to apply the "beyond a reasonable doubt" standard to the active efforts element.⁹ We join this latter group.

Congress did not intend in 25 U.S.C. § 1912 to create a wholesale substitution of state juvenile proceedings for Indian children. Instead, in § 1912, Congress created additional elements that must be satisfied for some actions but did not require a uniform standard of proof for the separate elements. As discussed, Congress imposed a "beyond a reasonable doubt" standard for the "serious emotional of physical damage" element in parental rights termination cases under § 1912(f). Congress also imposed a "clear and convincing" standard of proof for the "serious emotional or physical damage" element in foster care placements under § 1912(e). The specified standards of proof in subsections § 1912(e) and (f) illustrate that if Congress had intended to impose a heightened standard of proof for the active efforts element in § 1912(d), it would have done so. Because it...