Interest of C.W., In re

• Decision Date: 17 January 1992
• Docket Number: No. 90-157,90-157
• Parties: In re Interest of C.W., M.W., K.W., and J.W., children under 18 years of age. STATE of Nebraska, Appellee and Cross-Appellant, v. D.W., Appellant and Cross-Appellee, Rosebud Sioux Tribe, Appellee and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 105

479 N.W.2d 105

239 Neb. 817

In re Interest of C.W., M.W., K.W., and J.W., children under 18 years of age.

STATE of Nebraska, Appellee and Cross-Appellant, v. D.W., Appellant and Cross-Appellee, Rosebud Sioux Tribe, Appellee and Cross-Appellee.

No. 90-157.

Supreme Court of Nebraska.

Jan. 17, 1992.

Syllabus by the Court

1. Actions: Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter.

2. Parental Rights: Trial: Evidence: Appeal and Error. The improper admission of evidence by the trial court in a parental rights termination proceeding does not, in and of itself, constitute reversible error, for, as long as an appellant properly objected at trial, this court will not consider any such evidence in its de novo review of the record.

3. Indian Child Welfare Act: Expert Witnesses: Parental Rights. Pursuant to the Indian Child Welfare Act, qualified expert testimony is required in a parental rights termination case on the issue of whether serious harm to the Indian child is likely to occur if the child is not removed from the home.

4. Trial: Expert Witnesses: Appeal and Error. A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert, and unless the court's finding is clearly erroneous, such a determination will not be disturbed on appeal.

5. Indian Child Welfare Act: Courts: Jurisdiction. The Indian Child Welfare Act does not divest state courts of their jurisdiction over children of Indian descent living off the reservation.

6. Indian Child Welfare Act: Courts: Jurisdiction: Good Cause. State courts may exercise jurisdiction concurrently with the tribal courts in regard to those Indian children who do not reside and are not domiciled on their tribe's reservation; however, a state court must refer the matter to a tribal court unless good cause is shown for the retention of state court jurisdiction.

7. Indian Child Welfare Act: Courts: Jurisdiction. That a state court may take jurisdiction under the Indian Child Welfare Act does not necessarily mean that it should do so, as the court should consider the rights of the child, the rights of the tribe, and the conflict of law principles, and should balance the interests of the state and the tribe.

8. Indian Child Welfare Act: Evidence: Records: Good Cause: Appeal and Error. Under the Indian Child Welfare Act, factual support must exist in the trial record for the purposes of appropriate appellate review as to good cause for failure to comply with statutory child placement preference directives.

9. Indian Child Welfare Act: Jurisdiction. Regarding the Indian Child Welfare Act, in determining whether the doctrine of forum non conveniens should be invoked the trial court should consider practical factors that make trial of the case easy, expeditious, and inexpensive, such as relative ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the ability to secure attendance of witnesses through compulsory process.

10. Indian Child Welfare Act. The Indian Child Welfare Act does not change the cardinal rule that the best interests of the child are paramount, although it may alter its focus.

11. Indian Child Welfare Act: Jurisdiction. The best interests of the child standard is applicable to a decision over whether to transfer the jurisdiction of a child custody proceeding to a tribal court.

12. Indian Child Welfare Act: Courts: Jurisdiction: Good Cause. Good cause exists for the denial of transfer of the proceeding from a state to a tribal court, for Indian Child Welfare Act purposes, based on the delay of a tribe in expressing intent to intervene, the fact that a state court forum provides better opportunity for production of valuable evidence, and the consideration that transfer of the proceeding to the tribal court would not be in the child's best interests.

13. Trial: Guardians Ad Litem: Parental Rights. Guardians ad litem have not been restricted in their presentation of evidence or participation at trial, and there is no reason why a guardian ad litem for a child in a termination proceeding should be restricted.

14. Appeal and Error. Consideration of a case will be limited to errors assigned and discussed.

15. Trial: Proof: Appeal and Error. A party who challenges a trial court, asserting that the court abused its discretion with regard to sanctions imposed for discovery violations, must show that the ruling of the court was clearly untenable, depriving the litigant of a substantial right and denying a just result in the matter submitted for disposition.

16. Indian Child Welfare Act: Good Cause. Regarding the Indian Child Welfare Act, it is patently clear that Congress envisioned situations in which the child's best interests may override a tribal or family interest. The preferences for placement expressed by the act are to be followed absent good cause to the contrary.

Sandra Hernandez Frantz, Lincoln, for appellant and cross-appellee.

Gary E. Lacey, Lancaster County Atty., and Alicia B. Henderson, Lincoln, for appellee and cross-appellant State.

Kevin Ruser, Grand Island, for appellee and cross-appellee Rosebud Sioux Tribe.

Susan Jacobs, guardian ad litem.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

WHITE, Justice.

A series of petitions alleged separately that each of the four children involved in this case lacked proper parental care by reason of the fault and habits of their mother, D.W., appellant. All four of the children had been born out of wedlock and had been under the jurisdiction of the juvenile court for years prior to the commencement of the termination proceeding that is the subject of this action.

The Rosebud Sioux Tribe was notified of the first petition, of which M.W. was the subject, by registered mail, return receipt requested. The tribe received notice 20 days before adjudication, but informed the Lancaster County Attorney in writing over 1 month after M.W.'s adjudication as a neglected child that the Rosebud Sioux Tribe would not accept jurisdiction of the case, citing noneligibility of both the mother and M.W. for enrollment. The Rosebud Sioux Tribe suggested that the mother and M.W. might possibly be members of the Oglala Sioux Tribe and subsequently notified by letter the Oglala Sioux Tribe, informing it of the proceedings regarding M.W.

A second petition was filed in juvenile court, this one concerning C.W., and a copy thereof was sent to the Rosebud Sioux Tribe. The Rosebud Sioux Tribe again declined to intervene, but later posited that the mother was eligible and should she decide to enroll herself in the tribe, then the tribe should be sent notice.

The Oglala Sioux Tribe filed its notice of intervention and petition for transfer for both M.W. and C.W. The juvenile court transferred the case; however, upon appellant's objection to the transfer, the transfer was set aside, and C.W. was also adjudicated as a neglected child.

Later, a third petition was filed in the interest of K.W., and in light of the previous responses from the Rosebud Sioux Tribe indicating its position on the matter, notice was sent only to the Oglala Sioux Tribe.

Two weeks after K.W.'s adjudication as neglected, the juvenile court was informed that the Oglala Sioux Tribe would decline to intervene in the case because the mother was not on the official records as the daughter of a member of the tribe and was therefore not eligible for enrollment in the Oglala Sioux Tribe.

The mother's fourth child was the subject of the fourth petition to be filed, which took place in Adams County Court, as J.W. had been born in an Adams County hospital. J.W. was adjudicated a neglected child and her case was transferred to Lancaster County for disposition. After each adjudication concerning the four children, dispositional and review hearings were held on a regular basis.

A supplemental petition requested termination of the mother's parental rights on the grounds of abandonment, neglect, and her habitual use of intoxicating liquor and narcotics. No personal service of the supplemental petition was made on the mother and ineffective service was made on the Oglala Sioux and Rosebud Sioux Tribes.

Additionally, the appellant was given a substantial quantity of discovery material 7 days before trial, and another stack of discovery material at 7 p.m. the evening before trial, alleged by the mother in her brief to have been purposed to set the appellant at a tactical disadvantage.

The case was dismissed due to the insufficient notice to the tribe, but the State refiled, sending proper notice to the tribe. Shortly before trial the Rosebud Sioux Tribe filed a petition for transfer of jurisdiction to the tribal court, which the court sustained. Three days later the State filed its motion for new trial and vacation of the juvenile court's order of transfer of jurisdiction, which was ultimately sustained. That same day the Rosebud Sioux Tribe filed an order accepting the transfer of jurisdiction.

The trial on the termination of parental rights proceeded. The court terminated the mother's parental rights, stating that she was unfit by reason of abuse of intoxicating liquor and drugs, and that reasonable efforts to correct the problems had failed. The court further terminated the parental rights of the respective putative fathers of the children and ordered that the matter be transferred to the Rosebud Sioux Tribe for the dispositional phase of the proceeding. The juvenile court stayed transfer of the children pending appeal.

Appellant alleges what we have summarized as 11 assignments of error, in which she claims that the juvenile court erred in that it (1) terminated her parental rights in violation of the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. (1988) (hereinafter the...