State v. Maria C. (In re Interest of Betty Z.)

• Decision Date: 23 March 2021
• Docket Number: No. A-20-509.,A-20-509.
• Parties: IN RE INTEREST OF BETTY Z., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE, v. MARIA C., APPELLANT, AND CARLOS Z., APPELLEE AND CROSS-APPELLANT.
• Court: Nebraska Court of Appeals

IN RE INTEREST OF BETTY Z., A CHILD UNDER 18 YEARS OF AGE.STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE, v. MARIA C., APPELLANT, AND CARLOS Z., APPELLEE AND CROSS-APPELLANT.

No. A-20-509.

NEBRASKA COURT OF APPEALS

March 23, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the County Court for Cheyenne County: RANDIN R. ROLAND, Judge. Affirmed.

Robert S. Harvoy for appellant.

Jonathon T. Stellar, Special Acting Cheyenne County Attorney, for appellee State of Nebraska.

Katie Samples Dean, of Samples Dean Law, L.L.C., for appellee Carlos Z.

Audrey M. Elliott, guardian ad litem.

Moore, Riedmann, and Bishop, Judges.

Moore, Judge.

I. INTRODUCTION

Maria C. appeals and Carlos Z. cross-appeals from the decision of the county court for Cheyenne County, sitting as a juvenile court, terminating their parental rights to Betty Z. For the following reasons, we affirm.

II. BACKGROUND

Maria C. and Carlos Z. are the natural parents of Betty, born in May 2018. They were not married at the time of Betty's birth, but they married during the pendency of this case. Carlos is registered with the Fort Peck Assiniboine Sioux Tribe (the tribe) located in Poplar, Montana. Betty is eligible for enrollment as an associate member in that tribe. On June 1, 2018, the State of Nebraska filed a petition alleging that Betty Z. came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) for the reason that Maria tested positive and Betty tested "non-negative" for methamphetamine after being born. An ex parte order for temporary custody was granted the same day, placing Betty in the temporary custody of the Nebraska Department of Health and Human Services (DHHS). A hearing was held on June 4, 2018, and the court continued temporary custody in DHHS with placement in foster care. On July 6, the court ordered that Betty be returned to her parents' home, subject to 40 hours per week of family support with "drop ins"; and daily drug testing for Maria and a hair follicle test.

On July 13, 2018, the State filed a notice pursuant to the Nebraska Indian Child Welfare Act (NICWA), and the Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings. The notice contained Betty's name, along with her tribal affiliation of "Sioux" and Carlos' tribal enrollment number. The notice advised the tribe of its right to intervene in the proceeding. The certificate of service shows that the notice was served by registered mail, return receipt requested, to the Office of Tribal Service, the Fort Peck Assiniboine & Sioux Tribes, and the parents.

On July 16, 2018, the State filed a first amended petition which alleged that Betty was a child within the meaning of § 43-247(3)(a) for the reason that Maria and Betty are in a situation dangerous to the life or limb of Betty in that Betty's hair tested positive for methamphetamine. On the same day, the court adjudicated Betty on the amended petition following Maria's no contest answer to the amended allegations. The court ordered that Betty would remain in the home, supervised by DHHS, and authorized drug patches for the parents in lieu of daily testing.

A disposition hearing was held on August 13, 2018, at which various exhibits were received, including emails regarding an Amber Alert for Betty dated July 18 and 19, information from the tribe concerning Betty's eligibility to be an associate member, and drug test lab results for Maria. In an order entered the same day, the court adopted DHHS' case plan, ordered that Betty be placed in foster care under the supervision of DHHS, ordered the parents to obtain substance abuse and parenting capacity evaluations (to be paid for by DHHS), and ordered an expedited "ICPC" to Arizona for the maternal grandmother's home be done by DHHS. The case plan required Maria and Carlos to address their substance abuse problems by agreeing to not use any illegal substances, follow the recommendations of a substance abuse evaluation, and comply with court-ordered drug testing. The permanency plan was reunification.

A review hearing was held on October 22, 2018, which continued Betty's out-of-home placement, required the parents to obtain hair follicle testing and drug patches, and provided for supervised visitation. The permanency goal was reunification with an alternative goal of adoption. In an order dated November 29, the court stated that it had inquired as to whether any party believes an Indian child is involved in the proceedings and directed the county attorney/DHHS to give notice pursuant to NICWA to the Fort Peck Assiniboine & Sioux tribe. At a review hearing heldon January 24, 2019, the court ordered the parents to sign releases for UA results to DHHS and ordered DHHS to continue the "sweat patches." On April 25, the court ordered an "Early Development Network" evaluation for Betty, required both parents to provide DHHS with a list of current prescribed medication and complete all previously ordered evaluations as soon as possible, and referred the case for a "Child Welfare Conference" at a mediation center. On July 25, the court appointed an educational surrogate for Betty upon the motion of Betty's guardian ad litem (GAL), which motion alleged that the parents had been uncooperative with setting up services for Betty. A review hearing was held on August 22, at which the court continued the case to September 26 for "First Appearance -- First Reading on TPR Petition."

Maria filed an application to terminate the court's jurisdiction on September 10, 2019, alleging that the Indian Child Welfare Act (ICWA) and NICWA had been violated, and Carlos joined in the motion. On September 17, the State and guardian ad litem (GAL) filed a complaint to terminate both parent's parental rights. The complaint alleged that Betty is not a child subject to ICWA. The complaint was nevertheless served on the tribe by registered mail, and served on both Maria and Carlos by personal service. On the same day, the State filed another NICWA notice, which indicated that it was sent by registered mail, return receipt requested, to the Office of Tribal Services, the tribe, and the parents. On September 19, the State and GAL filed an objection to the motion to terminate jurisdiction and a request to dismiss the motion.

The State and GAL filed an amended complaint to terminate parental rights on December 9, 2019. This complaint again alleged that Betty is not a child subject to ICWA. This complaint was served electronically to the parents through their attorneys and was sent to the tribe by regular first class mail.

Trial on the complaint to terminate and on the parents' motion to terminate jurisdiction began on December 20, 2019. Both Maria and Carlos moved for a continuance of the trial, which the court denied. The trial was held over several dates between December 2019 and June 2020.

On January 7, 2020, after the first day and before the second day of trial, the State and GAL filed a Second Amended Complaint to Terminate Parental Rights. The complaint alleged that termination was appropriate under Neb. Rev. Stat. § 43-292(2) (Reissue 2016) (parents substantially and continuously neglected Betty), § 43-292(3) (parents have neglected to provide Betty with necessary subsistence, education, or other necessary care), § 43-292(4) (parents are unfit by reason of habitual use of narcotic drugs), § 43-292(6) (reasonable efforts to preserve and reunify the family have failed to correct the conditions leading to adjudication), and § 43-292(7) (Betty has been in an out-of-home placement for 15 or more months of the most recent 22 months). The complaint also alleged that Betty is not a child subject to ICWA, but pled in the alternative, that if the court were to find Betty is a child under ICWA; then active efforts had been made to provide remedial services and rehabilitative programs, although unsuccessfully, to prevent the breakup of the Indian family, and that continued custody of the child by the parents or Indian custodian is likely to result in serious emotional and physical damage to the child pursuant to Neb. Rev. Stat. § 43-1504 (Reissue 2016). The complaint alleged that it is in Betty's best interests that her parents' parental rights be terminated. Finally, the complaint alleged that notice of the original termination motion and amended complaint to terminate parental rights was sent to the tribe without any court intervention or filing. The second amended complaint was sent to the parents' attorneys by email, fax, and first class mail and sent to the tribe by registered mail. A separateCertificate of Service filed by the GAL indicates the complaint was sent to the tribe by regular mail. The following evidence was heard at trial.

On the first day of trial on December 20, 2019, Maria was allowed to call witnesses out of order for scheduling reasons. Maria called three tribal members to testify to matters relating to Indian tribes, culture, and children; John and James Schrimpscher, members of the Fort Peck Assiniboine Sioux Tribe; and Anthony Padilla, a member of the Apache tribe. After these witnesses were asked questions relating to Indian matters, the GAL objected on relevance, arguing that such testimony was not relevant because the operative complaint to terminate parental rights alleged that ICWA was not applicable to this case. The court sustained that objection. In an offer of proof, John testified that it is important for a Native American child to be raised in a Native American family because of the history and traditions. James, in an offer of proof, testified to the importance of a Native American child being with a Native American family to learn the spiritual customs, and that it was important for Betty to not break up the family. Padilla testified, prior to any objection, about the general...