Interest of J.L.M., In re
| Decision Date | 09 February 1990 |
| Docket Number | No. 89-341,89-341 |
| Citation | 234 Neb. 381,451 N.W.2d 377 |
| Parties | In re Interest of J.L.M., D.M.M., D.J.M., J.J.M., and M.J.M., Children under 18 Years of Age. STATE of Nebraska, Appellee, v. K.M., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Appeal and Error: Words and Phrases. In appellate procedure, a "remand" is an appellate court's order returning a proceeding to the court from which the appeal originated for some further action in accordance with the remanding order.
2. Trial: Appeal and Error. At a hearing or trial after remand from an appellate court, the parties stand in the same position as if there had been no prior disposition of the question, issue, or matter for which a remanded proceeding has been ordered.
3. Courts: Judgments: Appeal and Error. As a result of an order for remand and mandate from an appellate court, a trial court is obligated to adhere to the mandate and render judgment within the mandate's purview.
4. Indian Child Welfare Act: Proof. A party to a proceeding who seeks to invoke a provision of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (1982), has the burden to show that the act applies in the proceedings.
5. Indian Child Welfare Act: Parental Rights. For application of the Indian Child Welfare Act to proceedings for termination of parental rights, the proceedings must involve an Indian child within the purview of the act.
6. Parental Rights. A juvenile's best interests are the primary considerations in determining whether parental rights should be terminated as authorized by the Nebraska Juvenile Code.
7. Parental Rights: Abandonment: Words and Phrases. "Abandonment," for the purpose of Neb.Rev.Stat. § 43-292(1) (Reissue 1988), is a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and opportunity for displaying parental affection for the child.
8. Parental Rights: Abandonment. If a parent voluntarily, but unreasonably or unjustifiably, departs from the state of residence of the parent's child or children, such departure may constitute parental abandonment of the child or children and cannot be used as an excuse for noncompliance with a court-ordered plan for parental rehabilitation.
9. Parental Rights. A parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation presents an independent reason justifying termination of parental rights.
10. Parental Rights: Proof. Termination of parental rights under the Nebraska Juvenile Code requires evidence which is clear and convincing.
Gregory M. Thomas and Clark J. VanSkiver, of Sodoro, Daly & Sodoro, Omaha, for appellant.
Ronald L. Staskiewicz, Douglas County Atty., and Elizabeth G. Crnkovich, for appellee.
Pursuant to the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 et seq. (Reissue 1988), the separate juvenile court of Douglas County terminated parental rights of K.M. in her five children because she failed to comply with a court-ordered rehabilitation program to correct conditions which led to the adjudication that K.M.'s children were juveniles within the meaning of § 43-247(3)(a) of the Nebraska Juvenile Code, and because she abandoned her children for a period in excess of 6 months immediately prior to filing of the termination petition.
K.M. appeals and among her assignments of error raises questions of first impression concerning the U.S. Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (1982) (ICWA) and the Nebraska Indian Child Welfare Act, Neb.Rev.Stat. §§ 43-1501 et seq. (Reissue 1988) (NICWA).
In 1978, Congress passed the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq., which embodies specific congressional findings:
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
25 U.S.C. § 1901.
ICWA contains an express congressional delcaration of policy:
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
25 U.S.C. § 1902.
Under ICWA, " 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). " 'Indian tribe' means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village...." 25 U.S.C. § 1903(8).
ICWA also provides:
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
25 U.S.C. § 1911(b).
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the 25 U.S.C. § 1911(c).
Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.
Regarding evidence and the burden of persuasion ICWA states:
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.
25 U.S.C. § 1912(f).
Pursuant to authority delegated by the Secretary of the Interior of the United States, the Bureau of Indian Affairs promulgated "Guidelines for State Courts; Indian Child Custody Proceedings," 44 Fed.Reg. 67584 to 67595 (1979) (Guidelines).
As noted in the Guidelines, through ICWA Congress has expressed a preference for keeping Indian families together, granting deference to tribal judgment on custody matters and child placement with Indian families when Indian children have been removed from their homes. In subpart (2) of the "Policy" section of the Guidelines, there is the following provision:
In any child custody proceeding where applicable state or other federal law provides a higher standard of protection to the rights of the parent or Indian custodian than the protection accorded under the Indian Child Welfare Act, the state court shall apply the state or other federal law, provided that application of that law does not infringe any right accorded by the Indian Child Welfare Act to an Indian tribe or child.
The Guidelines further provide:
(a) When a state court has reason to believe a child in a custody proceeding is an Indian, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe....
(b)(i) The determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.
....
(c) Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include ...
(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child.
Id. The "commentary" for the foregoing excerpt from the Guidelines states: Id.
Section 43-1502 of the Nebraska Indian Child Welfare Act, enacted in 1985, expresses the purpose of the state act:
The purpose of the Nebraska Indian Child Welfare Act is to clarify state policies and procedures regarding the implementation by the State of Nebraska of the Federal Indian Child Welfare Act, 25 U.S.C. 1901 et seq. It shall be the policy of the state to cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of the Federal Indian Child Welfare Act are enforced.
Sections 43-1503(4) (definitions for NICWA) and 43-1504(2) (jurisdiction and transfer of proceedings to a tribal ...
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