In re Interest of Louis S.
| Decision Date | 01 September 2009 |
| Docket Number | No. A-09-105.,A-09-105. |
| Citation | 17 Neb. App. 867,774 N.W.2d 416 |
| Parties | In re INTEREST OF LOUIS S. et al., children under 18 years of age. State of Nebraska, Appellee and Cross-Appellee, v. Chad S., Sr., Appellant and Cross-Appellee, and Carmela F., Appellee and Cross-Appellant. |
| Court | Nebraska Court of Appeals |
Rex J. Moats, of Moats Law Firm, P.C., L.L.O., and Douglas D. Dexter, for appellant.
Donald W. Kleine, Douglas County Attorney, Jennifer Chrystal-Clark, and Sean Lavery, Senior Certified Law Student, for appellee State of Nebraska.
Anthony W. Liakos, of Govier & Milone, L.L.P., for appellee Carmela F.
Chad S., Sr. (Chad), appeals, and Carmela F. cross-appeals, from the decision of the separate juvenile court of Douglas County terminating their parental rights to their minor children in a case in which the Nebraska Indian Child Welfare Act (ICWA) is applicable. We affirm.
This case is governed by the Nebraska ICWA, Neb.Rev.Stat. §§ 43-1501 through 43-1516 (Reissue 2008), and involves seven children: Alicia E., born in October 1995; Louis S., born in September 1999; Chad S., Jr. (Chad Jr.), born in October 2001; Unique S., born in October 2002; Heaven S., born in September 2003; Henry S., born in January 2005; and Charlotte S., born in June 2006. Carmela is the biological mother of all seven children. Chad is the biological father of Louis, Chad Jr., Unique, Heaven, Henry, and Charlotte. The biological father of Alicia is not a party to this appeal, and thus his participation in this case will not be discussed further.
The six older children—Charlotte was not born yet—were removed from the home of Chad and Carmela on October 18, 2005, due to the living conditions in the home. At the time of removal, there was no running water in the home; the toilet was not working and was full of feces and urine; the children were dirty and wearing filthy, soiled clothing; and all of the children had severe head lice. A methamphetamine pipe was also found in the home. The children were placed in emergency protective custody. The State initially filed a petition with the juvenile court on October 20, alleging that the children were within the meaning of Neb.Rev. Stat. § 43-247(3)(a) (Reissue 2004). A motion for temporary custody was filed and granted that same day. The children have been in the custody of Nebraska's Department of Health and Human Services (DHHS) since that time.
The State filed an ICWA notice with the juvenile court on October 24, 2005, and such notice was also sent to the Omaha Tribe of Nebraska. The notice was for the purpose of determining whether the children were members of, or eligible for membership in, the Omaha Tribe, thereby making the ICWA applicable.
By an order filed by the juvenile court on February 23, 2006, the six older children were adjudicated to be within the meaning of § 43-247(3)(a) insofar as Chad and Carmela were concerned. Sometime between the children's initial removal from the home and September 19, 2006, Chad was arrested and incarcerated in a federal penal institution located in Colorado. We also note that the children were returned to Carmela's care for approximately 6 months from November 2006 to May 2007. In May 2007, the children, including Charlotte, were returned to foster care because Carmela had been evicted from her home and had an admitted drug relapse—the evidence shows that Carmela has a methamphetamine addiction. Numerous amended petitions, disposition orders, and a motion to terminate parental rights were filed between the time of removal on October 18, 2005, and a hearing on June 30, 2008. However, we will not discuss these pleadings and orders, because such are not necessary for resolution of this appeal.
On June 25, 2008, Carmela filed a motion to transfer the case to tribal court. A hearing was held on June 30. Chad did not object to the transfer. The State objected to the transfer, alleging that it did not get proper notice, and the guardian ad litem joined the State's objection. For the first time, evidence was presented that all seven children were members of, or eligible to be members of, the Omaha Tribe. The juvenile court found that the ICWA was applicable to the proceedings, but orally denied the transfer, stating that "there is good cause not to transfer this case because it's been a great many years that it is before this Court, and it would not be in the best interests of these children to transfer the matter." The State moved to dismiss certain supplemental petitions and its motion to terminate parental rights, because such pleadings did not conform to ICWA requirements. The juvenile court dismissed such without prejudice.
On June 30, 2008, the State filed a fourth supplemental petition, alleging that the youngest child, Charlotte, was a child within the meaning of § 43-247(3)(a) (Cum. Supp. 2006) as far as Chad was concerned, in that Chad was incarcerated and unable to care for Charlotte or provide Charlotte with stable and adequate housing. The petition also alleged that Chad's parental rights to Charlotte should be terminated pursuant to Neb.Rev.Stat. § 43-292(1) and (2) (Reissue 2008). The State specifically alleged that active efforts, pursuant to § 43-1505(4) of the ICWA, had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, but that said efforts had proved unsuccessful. The State also alleged that continuing the custody of Charlotte by Chad would likely result in serious emotional or physical damage to the child and that it was in Charlotte's best interests that Chad's parental rights be terminated.
A fifth supplemental petition regarding Alicia was also filed, but we will not discuss such, because it is not necessary to this opinion.
The State also filed a second motion for termination of parental rights, alleging that all seven children were enrolled, or eligible to be enrolled, in the Omaha Tribe. The State filed a motion to terminate Carmela's parental rights to all seven children under § 43-292(2) and (6). The State also sought to terminate her parental rights to Alicia, Louis, Chad Jr., Unique, Heaven, and Henry under § 43-292(7). The State filed a motion to terminate Chad's parental rights to Louis, Chad Jr., Unique, Heaven, and Henry under § 43-292(2), (6), and (7). (Charlotte was not named in this motion insofar as Chad was concerned, but she had previously been named in the fourth supplemental petition seeking termination of Chad's rights as to her.) The State also specifically alleged with regard to Chad and Carmela that active efforts, pursuant to § 43-1505(4) of the ICWA, had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, but that said efforts had proved unsuccessful. The State also alleged that continuing the custody of the children by Carmela and Chad would likely result in serious emotional or physical damage to the children and that it was in the children's best interests that Carmela's and Chad's parental rights be terminated.
The termination hearing was held on October 8 and 16 and November 5 and 6, 2008. Several witnesses testified, and such testimony will be discussed as necessary in our analysis.
The juvenile court filed its order on January 9, 2009. The juvenile court found that grounds for termination of Carmela's rights to Alicia, Louis, Chad Jr., Unique, Heaven, Henry, and Charlotte existed under § 43-292(2) and (6). The juvenile court also found that grounds existed to terminate Carmela's rights to all of the children except Charlotte under § 43-292(7). The juvenile court found that grounds for termination of Chad's rights to Louis, Chad Jr., Unique, Heaven, and Henry existed under § 43-292(2), (6), and (7). The juvenile court found that grounds existed to terminate Chad's rights to Charlotte under § 43-292(1) and (2). The juvenile court found that active efforts, pursuant to § 43-1505(4) of the ICWA, had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, but that said efforts had proved unsuccessful. The juvenile court also found that continuing the custody of the children by Carmela and Chad would likely result in serious emotional or physical damage to the children and that it was in the children's best interests that Carmela's and Chad's parental rights be terminated. The juvenile court terminated Chad's and Carmela's parental rights to the children after finding that grounds for termination existed and that such was in the children's best interests. Chad has timely appealed, and Carmela cross-appeals.
Chad alleges that the juvenile court erred in (1) finding that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, (2) admitting the opinion of an ICWA expert that continued custody of the children by Chad would likely result in serious emotional or physical damage to the children, and (3) terminating Chad's parental rights when there was insufficient evidence to prove that the continued custody of the children by Chad would likely result in serious emotional or physical damage to the children.
On cross-appeal, Carmela alleges that the juvenile court erred in (1) overruling her motion to transfer the proceeding to the jurisdiction of the Omaha Tribe of Nebraska; (2) finding that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, but that said efforts proved unsuccessful; (3) finding that the minor children came within the meaning of § 43-292(2) with respect to Carmela; (4) finding that the minor children came within the meaning of § 43-292(6) with respect to Carmela; (5) finding that termination of Carmela's parental rights was in the...
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