In re Interest of Tavian B. , 292 Neb. 804 ( 2016 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/courts/epub/
    02/19/2016 09:22 AM CST
    - 804 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    In   re I nterest of     Tavian B.,    a child
    under   18   years of age.
    State        of   Nebraska, appellee, v. Joseph B.,
    appellant, and    Oglala Sioux Tribe,
    intervenor-appellee.
    ___ N.W.2d ___
    Filed February 19, 2016.   No. S-15-129.
    1.	 Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial
    of a transfer to tribal court under the Indian Child Welfare Act is
    reviewed for an abuse of discretion.
    2.	 Constitutional Law: Due Process: Appeal and Error. Procedural due
    process is a question of law, which is reviewed independently of the
    lower court’s ruling.
    3.	 Judges: Words and Phrases: Appeal and Error. A judicial abuse of
    discretion exists when a judge, within the effective limits of authorized
    judicial power, elects to act or refrain from action, which results in a
    decision which is untenable and unfairly deprives a litigant of a substan-
    tial right or a just result in matters submitted for disposition.
    4.	 Indian Child Welfare Act: Jurisdiction: Good Cause: Proof. At a
    hearing on a motion to transfer a proceeding to tribal court, the party
    opposing the transfer has the burden of establishing that good cause not
    to transfer exists.
    5.	 Indian Child Welfare Act: Intent. The Indian Child Welfare Act
    is intended to promote the stability and security of Indian tribes and
    families by establishing minimum federal standards for the removal of
    Indian children from their families and the placement of such children
    in adoptive homes or institutions which will reflect the unique values of
    Indian culture.
    Appeal from the Separate Juvenile Court of Lancaster
    County: R eggie L. Ryder, Judge. Reversed and remanded with
    directions.
    - 805 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
    for appellant.
    Joe Kelly, Lancaster County Attorney, and Lory Pasold for
    appellee.
    Heavican, C.J., Wright, Connolly, McCormack, Miller-
    Lerman, Cassel, and Stacy, JJ.
    Wright, J.
    NATURE OF CASE
    Tavian B. was found to be a child who lacks proper parental
    care by reason of the fault or habits of his parents and to be in
    a situation dangerous to life or limb or injurious to his health
    or morals. See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008).
    Approximately 16 months later, the State of Nebraska moved
    to terminate the parental rights of both parents. The father then
    filed a motion to transfer jurisdiction to the Oglala Sioux Tribal
    Juvenile Court (tribal court) pursuant to the federal Indian
    Child Welfare Act of 1978 (ICWA). See 25 U.S.C. § 1901 et
    seq. (2012).
    Prior to the juvenile court’s ruling on the father’s motion to
    transfer, the State withdrew its motion to terminate parental
    rights. The court found that good cause existed to deny the
    request to transfer jurisdiction to the tribal court, because the
    proceedings were in “an advanced stage.” The father appeals
    the juvenile court’s order overruling his motion to transfer.
    For the reasons stated below, we reverse the judgment of the
    juvenile court and remand the cause with directions.
    SCOPE OF REVIEW
    [1] A denial of a transfer to tribal court under ICWA is
    reviewed for an abuse of discretion. In re Interest of Zylena R.
    & Adrionna R., 
    284 Neb. 834
    , 
    825 N.W.2d 173
     (2012).
    [2] Procedural due process is a question of law, which is
    reviewed independently of the lower court’s ruling. See In re
    Interest of Landon H., 
    287 Neb. 105
    , 
    841 N.W.2d 369
     (2013).
    - 806 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    FACTS
    On May 16, 2013, the State filed a petition in the separate
    juvenile court of Lancaster County. It alleged that Tavian
    was a child who lacked proper parental care by reason of the
    faults or habits of his parents, Joseph B. (Appellant) and Tera
    B., and that he was in a situation dangerous to life or limb
    or injurious to his health or morals. See § 43-247(3)(a). On
    July 3, the juvenile court placed Tavian in the custody of the
    Department of Health and Human Services. Pursuant to ICWA,
    an “Affidavit and Notice” of the proceedings was delivered by
    registered mail to the Oglala Sioux Tribe (Tribe) and received
    on August 19.
    On October 29, 2014, the State moved to terminate the
    parental rights of Appellant and Tera. Until that time, the
    goal of the proceedings in the juvenile court and the place-
    ment with the Department of Health and Human Services
    was reunification with the parents. Both parents denied the
    allegations in the motion on November 14. The Tribe received
    notice of the motion for termination of parental rights on
    November 21.
    At a December 12, 2014, review hearing, Appellant testified
    that he had “just been accepted” and enrolled as a member of
    the Tribe, but had not received documentation from the Tribe
    verifying his enrollment. Immediately after the hearing, the
    Tribe moved to intervene, alleging that Tavian was an Indian
    child as defined by ICWA. Appellant orally moved to transfer
    the case to tribal court. The Tribe had not moved to transfer
    jurisdiction, but the tribal court had filed an order accepting
    jurisdiction. The juvenile court overruled Appellant’s motion to
    transfer the case, because neither Appellant nor the Tribe had
    provided documentation verifying tribal enrollment or other
    evidence showing that ICWA applied to the case.
    On December 16, 2014, Appellant filed a subsequent motion
    to transfer jurisdiction to the tribal court. At a hearing on
    January 6, 2015, certificates of tribal enrollment for Appellant
    and Tavian were received by the juvenile court. After the court
    - 807 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    found that the provisions of ICWA applied to the case, the
    State requested and was given leave to withdraw its motion to
    terminate parental rights. The matter was continued for further
    hearing until 2 days later.
    On January 7, 2015, the State filed an objection to the trans-
    fer, stating:
    COMES NOW, [a] Deputy County Attorney for
    Lancaster County, Nebraska, and objects to the transfer of
    the proceedings in this case to the [tribal court] because
    good cause exists to deny such transfer pursuant to Neb.
    Rev. Stat. [§] 43-1504(2).
    The State further requests the Court [set] this matter
    for hearing to determine whether good cause exists.
    Relying on In re Interest of Zylena R. & Adrionna R., 
    284 Neb. 834
    , 
    825 N.W.2d 173
     (2012), the juvenile court con-
    cluded that good cause existed to overrule the motion because
    the proceedings were at an advanced stage. Appellant appeals
    the overruling of his motion to transfer jurisdiction to the
    tribal court.
    ASSIGNMENTS OF ERROR
    Appellant assigns, summarized and consolidated, that the
    juvenile court erred in finding good cause to deny his motion
    to transfer based on the advanced stage of the proceeding.
    Appellant also claims that his due process rights were violated
    by the court’s making findings based on matters outside the
    scope of the record and not providing Appellant an opportunity
    to dispute and rebut such evidence.
    ANALYSIS
    [3] The issue is whether the juvenile court abused its discre-
    tion in denying Appellant’s motion to transfer the proceeding
    to tribal court. A judicial abuse of discretion exists when a
    judge, within the effective limits of authorized judicial power,
    elects to act or refrain from action, which results in a deci-
    sion which is untenable and unfairly deprives a litigant of
    a substantial right or a just result in matters submitted for
    - 808 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    ­disposition. See In re Interest of L.V., 
    240 Neb. 404
    , 
    482 N.W.2d 250
     (1992).
    We apply ICWA to the case at bar. Neb. Rev. Stat.
    § 43-1504(2) (Reissue 2008) governs motions to transfer juris-
    diction to tribal courts under ICWA. At the time this case com-
    menced, § 43-1504 provided:
    (2) 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 reserva-
    tion 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, except that such
    transfer shall be subject to declination by the tribal court
    of such tribe.
    (Emphasis supplied.)
    [4] At a hearing on a motion to transfer a proceeding to
    tribal court, the party opposing the transfer has the burden of
    establishing that good cause not to transfer exists. In re Interest
    of Zylena R. & Adrionna R., supra. In In re Interest of Zylena
    R. & Adrionna R., we held that a proceeding for termination
    of parental rights should be regarded as a separate and distinct
    proceeding from foster care placement. In the case at bar,
    the Tribe accepted jurisdiction and neither parent objected to
    the transfer. Thus, absent the State’s showing of good cause,
    the juvenile court was required to transfer the proceeding to
    tribal court.
    The juvenile court found that the State had met its burden
    of showing good cause because the proceeding was at an
    advanced stage. It reasoned that usually, the date for deter-
    mining whether the case was at an advanced stage would be
    the date of the filing of a motion to terminate parental rights.
    Because the State withdrew its motion for termination of paren-
    tal rights on January 6, 2015, the court concluded that May 16,
    2013, was the date of the State’s petition for adjudication.
    - 809 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    Using May 16, 2013, as the starting date, it concluded that the
    proceeding was at an advanced stage.
    The juvenile court expressed concern that an Indian parent
    could play “an ICWA trump card at the eleventh hour” to trans-
    fer the case to tribal court. But we point out that the State’s
    dismissal of its motion to terminate parental rights to avoid a
    transfer leaves an Indian child suspended in uncertainty. If the
    State sought a termination of parental rights, the party seek-
    ing transfer could file a new motion to transfer and the State
    could again dismiss the termination proceeding. The juvenile
    court’s conclusion that the matter was in an advanced stage
    stemmed from the State’s voluntary dismissal of the termina-
    tion proceeding.
    Good cause to overrule Appellant’s motion to transfer to
    tribal court is not defined in ICWA. But the guidelines pub-
    lished by the Bureau of Indian Affairs (BIA guidelines) pro-
    vide a basis for determining what constitutes good cause to
    deny motions to transfer. Previously, this court and other
    courts have looked to the BIA guidelines in making such
    determinations. See, In re Interest of Zylena R. & Adrionna
    R., 
    284 Neb. 834
    , 
    825 N.W.2d 173
     (2012); In re Interest of
    C.W. et al., 
    239 Neb. 817
    , 
    479 N.W.2d 105
     (1992), overruled
    on other grounds, In re Interest of Zylena R. & Adrionna R.,
    supra. See, also, People ex rel. T.I., 
    707 N.W.2d 826
     (S.D.
    2005); In re Adoption of S.W., 
    41 P.3d 1003
     (Okla. Civ. App.
    2001); In re A.P., 
    25 Kan. App. 2d 268
    , 
    961 P.2d 706
     (1998).
    The BIA guidelines provide guidance to state courts and child
    welfare agencies implementing ICWA and promote compliance
    with ICWA’s stated goals by providing a framework and best
    practices for compliance.
    At the time of the juvenile court ruling, the BIA guide-
    lines provided that good cause not to transfer may exist if
    the proceeding was “at an advanced stage” when the petition
    to transfer was received and the petitioner failed to “file the
    petition promptly” after receiving notice. See Guidelines for
    State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
    - 810 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    67,584, 67,591, C.3(b)(i) (Nov. 26, 1979) (not codified). While
    this appeal was pending, the BIA guidelines were amended.
    They now provide that in determining whether good cause
    exists to deny a motion to transfer to tribal court, the state
    court may not consider whether the case is at an advanced
    stage. See Guidelines for State Courts and Agencies in Indian
    Child Custody Proceedings, 80 Fed. Reg. 10,149 and 10,156
    (Feb. 25, 2015) (not codified). This amendment compels us
    to reconsider our prior adherence to the advanced stage of the
    proceedings as a basis for good cause, and on which the juve-
    nile court relied in denying the transfer.
    The BIA guidelines state that there may be valid rea-
    sons for waiting to transfer a proceeding until it reaches an
    advanced stage. A tribe might decline to intervene during
    foster care placement proceedings when the goal is reuni-
    fication with the parents, whereas the tribe would likely be
    much more concerned with removal of Indian children in
    termination proceedings. The BIA guidelines note that denial
    of motions to transfer because a proceeding is at an advanced
    stage undermines the presumption of tribal jurisdiction over
    proceedings involving Indian children not residing or domi-
    ciled on the reservation. We note that ICWA seeks to pro-
    tect not only the rights of the Indian child as an Indian, but
    also the rights of Indian communities and tribes in retaining
    Indian children.
    In our consideration of whether good cause existed to over-
    rule the motion to transfer, we find the amended BIA guide-
    lines persuasive and instructive. The BIA guidelines were
    amended during this appeal, and we find them applicable to the
    case at bar. We hold that a determination that the proceeding
    is at an advanced stage is no longer a valid basis for finding
    good cause to deny a motion to transfer jurisdiction to a tribal
    court. We conclude that the overruling of the motion to transfer
    denied Appellant a just result.
    Also before this court is the State’s argument that the best
    interests of the child should be a basis for determining good
    - 811 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    cause to deny a transfer to tribal court. It urges us to reconsider
    our holding In re Interest of Zylena R. & Adrionna R., supra,
    that the best interests of an Indian child may not be considered
    when determining whether good cause exists to deny transfer
    to a tribal court. It argues that courts in at least nine states
    have addressed the issue in favor of best interests, finding it
    a relevant consideration in assessing good cause. These courts
    have found that where ICWA left the meaning of “good cause”
    unexplained, its purpose and legislative history suggest the rel-
    evance of the child’s best interests. Id.
    The State directs our attention to a recent decision by the
    U.S. Supreme Court in Adoptive Couple v. Baby Girl, ___
    U.S. ___, 
    133 S. Ct. 2552
    , 
    186 L. Ed. 2d 729
     (2013). The
    Court stated:
    [ICWA] was enacted to help preserve the cultural iden-
    tity and heritage of Indian tribes, but under the [South
    Carolina] Supreme Court’s reading, [ICWA] would put
    certain vulnerable children at a great disadvantage solely
    because an ancestor—even a remote one—was an Indian.
    As the State Supreme Court read [25 U.S.C.] §§ 1912(d)
    and (f), a biological Indian father could abandon his child
    in utero and refuse any support for the birth mother—per-
    haps contributing to the mother’s decision to put the child
    up for adoption—and then could play his ICWA trump
    card at the eleventh hour to override the mother’s deci-
    sion and the child’s best interests.
    Adoptive Couple, 133 S. Ct. at 2565 (emphasis supplied).
    We decline the State’s invitation to change our holding in
    In re Interest of Zylena R. & Adrionna R., 
    284 Neb. 834
    , 
    825 N.W.2d 173
     (2012), for several reasons. First, we note that
    the amended BIA guidelines expressly provide that it is inap-
    propriate for state courts to conduct an independent analysis of
    the best interests of the Indian child in determining placement
    preferences. While this preclusion of a best interests analysis
    did not specifically refer to transfers of cases to tribal courts,
    the BIA guidelines further state that whenever a parent or tribe
    - 812 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    seeks to transfer the case to tribal court, it is presumptively in
    the best interests of the Indian child to transfer the case to the
    jurisdiction of the Indian tribe.
    Second, we find that the context of the U.S. Supreme
    Court’s statement in Adoptive Couple v. Baby Girl, supra, did
    not indicate that the Court intended to impose the best interests
    standard on motions to transfer.
    [5] Third, allowing the state court to determine the best
    interests of the Indian child undermines the purpose of ICWA.
    ICWA is intended to promote the stability and security of
    Indian tribes and families by establishing minimum federal
    standards for the removal of Indian children from their families
    and the placement of such children in adoptive homes or insti-
    tutions which will reflect the unique values of Indian culture.
    In In re Interest of Zylena R. & Adrionna R., 284 Neb. at 852,
    825 N.W.2d at 186 (quoting Mississippi Choctaw Indian Band
    v. Holyfield, 
    490 U.S. 30
    , 
    109 S. Ct. 1597
    , 
    104 L. Ed. 2d 29
    (1989)), we stated:
    Permitting a state court to deny a motion to transfer
    based upon its perception of the best interests of the child
    negates the concept of “presumptively tribal jurisdiction”
    over Indian children who do not reside on a reserva-
    tion and undermines the federal policy established by
    ICWA of ensuring that “Indian child welfare determina-
    tions are not based on ‘a white, middle-class standard
    which, in many cases, forecloses placement with [an]
    Indian family.’”
    Finally, preclusion of a separate best interests analysis by
    state courts does not suggest that the best interests of the
    child are ignored altogether. To the contrary, the best interests
    of the Indian child are considered regardless of which court
    decides the matter. We discussed this point in In re Interest
    of Zylena R. & Adrionna R., 284 Neb. at 852, 825 N.W.2d at
    186, stating:
    The reality is that both a juvenile court applying Nebraska
    law and a tribal court proceeding under ICWA must act in
    - 813 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    the best interests of an Indian child over whom they have
    jurisdiction. The question before a state court consider-
    ing a motion to transfer to tribal court is simply which
    tribunal should make that decision. . . . Stated another
    way, recognizing best interests as “good cause” for deny-
    ing transfer permits state courts to decide that it is not in
    the best interests of Indian children to have a tribal court
    determine what is in their best interests. By enacting
    ICWA, Congress clearly stated otherwise.
    For the above reasons, we decline to reconsider our holding
    in In re Interest of Zylena R. & Adrionna R., supra, that the
    best interests of the Indian child is not a basis for good cause
    to deny a transfer of the case to tribal court. Because we have
    determined that the State did not show good cause to deny
    Appellant’s motion to transfer, we need not review Appellant’s
    claim that the juvenile court and the State violated his due
    proc­ess rights in denying his motion.
    Because the State did not meet its burden of establish-
    ing good cause to deny transfer to tribal court, the juvenile
    court abused its discretion in denying Appellant’s motion
    to transfer.
    CONCLUSION
    For the reasons stated above, we reverse the judgment of
    the juvenile court that overruled Appellant’s motion to transfer
    the proceeding to tribal court and we remand the cause with
    directions to transfer the matter to tribal court.
    R eversed and remanded with directions.
    Stacy, J., concurring in part, and in part dissenting.
    We held in In re Interest of Zylena R. & Adrionna R.1
    that the advanced stage of an Indian child custody pro-
    ceeding could be good cause to deny a motion to transfer
    1
    In re Interest of Zylena R. & Adrionna R., 
    284 Neb. 834
    , 
    825 N.W.2d 173
    (2012).
    - 814 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    to tribal court. Our holding was based in part on nonbind-
    ing guidelines published in 1979 by the Bureau of Indian
    Affairs (BIA).2 Based on this precedent, the State argued
    below that the proceeding was at an advanced stage, and the
    juvenile court found this was good cause to deny the motion
    to transfer.
    Today, in reliance on significant changes made in 2015 to
    the 1979 version of the guidelines (1979 BIA guidelines),3 we
    now conclude courts may no longer rely upon a determina-
    tion that a case is at an advanced stage as good cause to deny
    a motion to transfer to tribal court. While I concur that the
    mere advanced stage of the proceeding cannot constitute good
    cause to deny a transfer to tribal court, I write separately to
    clarify why we rely on the amended guidelines (2015 BIA
    guidelines) and to set out what I think is the proper standard
    of review under the circumstances. And because I respect-
    fully disagree with the majority on the appropriate disposi-
    tion of this case, I write separately to explain why I think the
    proper disposition would be to vacate the order and remand
    the cause for further proceedings applying the new law we
    announce today.
    ROLE OF BIA’S GUIDELINES
    The majority finds the 2015 BIA guidelines are “persuasive
    and instructive” on what constitutes good cause, and, on the
    facts of this case, I agree. But because the BIA’s guidelines are
    nonbinding4 and do not have the force of federal regulations,
    it is appropriate to explain why we find the guidelines instruc-
    tive, and clarify why we are, in this case, relying on the 2105
    BIA guidelines to change established law.
    2
    Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.
    Reg. 67,584 to 67,595 (Nov. 26, 1979) (not codified).
    3
    Guidelines for State Courts and Agencies in Indian Child Custody
    Proceedings, 80 Fed. Reg. 10,146 to 10,159 (Feb. 25, 2015) (not codified).
    4
    See, e.g., In re Interest of Zylena R. & Adrionna R., supra note 1.
    - 815 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    As the majority recognizes, the BIA’s guidelines are designed
    to promote compliance with the stated goals of the federal
    Indian Child Welfare Act of 1978 (ICWA)5 and are intended
    to provide a framework of best practices for state agencies and
    courts.6 But the advisory guidelines are simply the Department
    of the Interior’s interpretation of certain provisions of ICWA.7
    In other words, the guidelines are interpretive rather than legis-
    lative, and we are under no obligation to follow the guidelines
    if we conclude they are not in accord with the language or
    intent of ICWA on a particular point.8
    The guidelines were first published in 1979 and were not
    amended until 2015. The 2015 BIA guidelines, which became
    effective February 25, 2015, attempt to respond to national
    developments in ICWA jurisprudence.9 While the 2015 BIA
    guidelines are instructive, it is important to emphasize that
    this court does not change its jurisprudence simply because an
    executive agency has made amendments to nonbinding guide-
    lines. Rather, this court should determine whether to follow the
    2015 BIA guidelines on a particular issue only after carefully
    considering them and judicially determining they are in accord
    with both ICWA and the Nebraska Indian Child Welfare Act
    (NICWA)10 on that issue.
    On the issue of the advanced stage of the proceedings, I
    note there is no language in ICWA or NICWA which expressly
    or impliedly limits the timeframe for making a motion to
    transfer to a tribal court. And it is significant that with the
    enactment of 2015 Neb. Laws, L.B. 566, the Legislature
    5
    See 25 U.S.C. § 1901 et seq. (2012).
    6
    See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,146-147, summary.
    7
    See 1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,584, introduction.
    8
    Id. (noting states “are free to act contrary to what the Department [of the
    Interior] has said if they are convinced that the Department’s guidelines
    are not required by the statute itself”).
    9
    See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,146, summary.
    10
    Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008 & Supp. 2015).
    - 816 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    amended NICWA in several respects, one of which was to
    expressly recognize that Indian tribes have a “continuing
    and compelling” governmental interest in an Indian child.11
    Particularly given the Legislature’s strong language, I think
    it is apparent that denying a transfer merely because the pro-
    ceedings are at an advanced stage when the motion is made
    would frustrate the purpose underlying ICWA and NICWA,
    and would undermine the presumption of tribal jurisdiction
    inherent in ICWA.12 But I leave for another day the question
    of whether the advanced stage of proceedings, if coupled with
    other compelling circumstances properly considered under
    ICWA and NICWA, can constitute good cause for denying
    a transfer.
    Because the 2015 BIA guidelines’ interpretation is more
    consistent with the language and intent of ICWA and NICWA
    on the advanced stage issue than was our precedent to the
    contrary, I agree that the mere advanced stage of the proceed-
    ing cannot provide good cause to deny a motion to transfer to
    tribal court. And because the advanced stage of the proceeding
    was the sole basis for the juvenile court’s denial of the trans-
    fer to tribal court, I agree the juvenile court’s decision cannot
    be upheld.
    STANDARD OF REVIEW AND
    APPROPRIATE DISPOSITION
    At the time the motion to transfer was tried and decided,
    settled Nebraska law recognized the advanced stage of the
    proceeding as a ground for a finding of good cause to deny
    transfer.13 Nevertheless, the majority finds the juvenile court
    abused its discretion by finding the proceedings were at an
    advanced stage and there was good cause to deny the transfer.
    In essence, the majority finds the juvenile court abused its
    11
    See § 43-1502 (Supp. 2015).
    12
    See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,149.
    13
    See In re Interest of Zylena R. & Adrionna R., supra note 1.
    - 817 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    discretion by failing to anticipate we would make a change in
    the substantive law. I think this analysis is imprecise and unfair
    to the trial court.
    I have great difficulty with the conclusion that the juvenile
    court abused its discretion by applying settled law to the mat-
    ter before it. Because we have resolved this appeal based on
    principles of statutory interpretation, rather than by an analysis
    of the court’s factual findings, I respectfully suggest the more
    appropriate standard of review would be that which we apply
    when reviewing questions of law. When reviewing questions
    of law, an appellate court has an obligation to resolve the
    questions independently of the conclusion reached by the trial
    court.14 We have applied this standard of review quite recently
    in a case where we were called upon to consider the mean-
    ing of the phrase “‘for good cause shown,’” a phrase which
    appeared in a statute but was undefined by the Legislature.15
    There, we determined under the circumstances that our first
    task was to independently determine the meaning of “good
    cause shown” and, after we defined the term in light of the
    entire statutory scheme, we then reviewed the trial court’s fac-
    tual findings for clear error.16
    Here, were we to use the standard of review we typically
    apply when reviewing questions of law, I think the disposition
    of this case would be quite different. Rather than reversing the
    juvenile court’s order for an abuse of discretion and remand-
    ing the cause with directions to grant the transfer, we instead
    would vacate the juvenile court’s order denying the transfer
    and remand the cause for further proceedings under the new
    rule announced today.
    Vacating and remanding for further proceedings would give
    the parties, and the trial court, the opportunity to apply the law
    14
    Pettit v. Nebraska Dept. of Corr. Servs., 
    291 Neb. 513
    , 
    867 N.W.2d 553
    (2015).
    15
    Id. at 518, 867 N.W.2d at 557.
    16
    Pettit, supra note 14.
    - 818 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    we have announced today to the specific facts of this case. I
    think simply remanding the cause with directions to grant the
    motion to transfer after announcing a significant substantive
    change in the law unfairly limits the proceedings on an issue of
    critical importance to the parties.
    ISSUES ON REMAND: QUANTUM OF
    PROOF, GOOD CAUSE, AND
    BEST INTERESTS
    Because I think the proper disposition would be to vacate,
    and remand for further proceedings, I take this opportunity to
    address several aspects of our ICWA/NICWA jurisprudence
    likely to arise on remand.17
    Quantum of Proof
    We have been clear that the party opposing a motion to
    transfer has the burden of proving good cause not to transfer,18
    but we have never specified the quantum of proof which
    must be met. Adopting a quantum of proof would provide a
    clear and consistent standard against which to determine when
    good cause has been proved. I would join the consensus of
    jurisdictions that have required good cause under ICWA to be
    proved by clear and convincing evidence.19 I note this height-
    ened quantum of proof is expressly relied upon elsewhere in
    NICWA when referencing good cause20 and is consistent with
    17
    See, In re Interest of Laurance S., 
    274 Neb. 620
    , 
    742 N.W.2d 484
     (2007);
    Papillion Rural Fire Prot. Dist. v. City of Bellevue, 
    274 Neb. 214
    , 
    739 N.W.2d 162
     (2007).
    18
    In re Interest of Zylena R. & Adrionna R., supra note 1.
    19
    See, e.g., Thompson v. Dept. of Family Services, 
    62 Va. App. 350
    , 
    747 S.E.2d 838
     (2013); People in Interest of J.L.P., 
    870 P.2d 1252
     (Colo. App.
    1994); Matter of Adoption of T.R.M., 
    525 N.E.2d 298
     (Ind. 1988); In re
    A.P., 
    25 Kan. App. 2d 268
    , 
    961 P.2d 706
     (1998); Matter of M.E.M., 
    195 Mont. 329
    , 
    635 P.2d 1313
     (1981).
    20
    See § 43-1508(4) (Supp. 2015).
    - 819 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    the statutory preference for tribal jurisdiction under ICWA
    and NICWA.21
    Good Cause
    By choosing not to statutorily define “good cause” in the
    context of transfers under ICWA and NICWA, Congress and
    the Nebraska Legislature have left to state courts the pri-
    mary responsibility for interpreting the term. This is not a
    simple task.
    In the past, we have been called upon to interpret the
    undefined phrase “good cause” in statutory contexts outside
    ICWA, and we have recognized the complicated nature of such
    an exercise.22 We have defined good cause, in the context of
    a statute dealing with probate, as “a logical reason or legal
    ground, based on fact or law” and emphasized that the mean-
    ing of good cause is to be determined “in light of all of the
    surrounding circumstances.”23 In the context of a criminal case
    considering an extension of time to prepare a bill of exceptions
    for good cause shown, we defined good cause as the interven-
    tion of something beyond the control of the litigant.24 We also
    have cited to Webster’s Third New International Dictionary
    to define good cause as “‘a cause or reason sufficient in law;
    one that is based on equity or justice or that would motivate a
    reasonable man under all the circumstances.’”25 Most recently,
    21
    See 25 U.S.C. § 1911(b) (“the court, in the absence of good cause to the
    contrary, shall transfer such proceeding to the jurisdiction of the tribe”).
    Accord § 43-1504 (Supp. 2015).
    22
    Pettit, supra note 14, 291 Neb. at 519, 867 N.W.2d at 558 (recognizing
    it is more complicated than it may seem to define good cause, because it
    “surely depends upon the factual circumstances”).
    23
    In re Estate of Christensen, 
    221 Neb. 872
    , 874-75, 
    381 N.W.2d 163
    , 165
    (1986).
    24
    Bryant v. State, 
    153 Neb. 490
    , 
    45 N.W.2d 169
     (1950).
    25
    In re Estate of Christensen, supra note 23, 221 Neb. at 874, 381 N.W.2d
    at 165 (emphasis omitted); DeVries v. Rix, 
    203 Neb. 392
    , 
    279 N.W.2d 89
    (1979).
    - 820 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    we examined the entirety of the relevant statute in determining
    the meaning of the phrase “good cause.”26
    Based on the foregoing, I would hold that good cause to
    deny a transfer under ICWA and NICWA means a compelling
    reason, based in law or fact, which is not contrary to the pro-
    visions or purposes of ICWA and NICWA and is sufficient to
    overcome the strong presumption of tribal jurisdiction. And I
    think having a general definition of good cause in the context
    of transfers would assist litigants and courts in analyzing fac-
    tual situations not otherwise addressed in BIA’s guidelines.
    Historically, when interpreting good cause under ICWA, we
    have relied primarily on BIA’s guidelines, rather than applying
    more traditional rules of statutory construction. But continued
    reliance on BIA’s guidelines is problematic, because the 2015
    BIA guidelines do not undertake to define good cause, and
    instead focus exclusively on identifying that which is not good
    cause. This has not always been the case.
    Under the 1979 BIA guidelines, good cause to deny a trans-
    fer was recognized under four specific scenarios: (1) the pro-
    ceeding was at an advanced stage when the motion to transfer
    was filed; (2) the Indian child was over 12 years of age and
    objected to the transfer; (3) the evidence necessary to decide
    the case could not be adequately presented in the tribal court
    without undue hardship to the parties or the witnesses; or (4)
    the parents of a child over 5 years of age are not available,
    and the child has had little or no contact with the child’s tribe
    or members of the child’s tribe.27 The 1979 BIA guidelines
    specifically noted that the third scenario, undue hardship, was
    included because 25 U.S.C. § 1911(b) of ICWA was “‘intended
    to permit a State court to apply a modified doctrine of forum
    non conveniens, in appropriate cases, to [e]nsure that the rights
    26
    Pettit, supra note 14.
    27
    1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,591, C.3(b)(i)
    through (iv).
    - 821 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    of the child as an Indian, the Indian parents or custodian, and
    the tribe are fully protected.’”28
    For reasons which are not clear, the 2015 BIA guidelines
    omit all four of the good cause factors identified in the 1979
    BIA guidelines, and instead list only those things the BIA has
    determined courts may not consider in determining whether
    good cause exists.29 As for what may still constitute good cause
    under ICWA, the 2015 BIA guidelines merely recite that good
    cause may be found if “the State court otherwise determines
    that good cause exists.”30
    The 2015 BIA guidelines explain why some of the 1979
    good cause factors were omitted (including the factor regard-
    ing advanced proceedings)31 but are silent regarding why
    two of the 1979 factors (the factor addressing the preference
    of an Indian child over age 12, and the factor addressing
    undue hardship) were omitted from the 2015 BIA guidelines.
    Because there was no explanation given for omitting these
    factors, it is not possible to judicially determine whether
    the BIA’s rationale for omitting these factors is in accord
    with ICWA and NICWA. But certainly, the lack of guidance
    from the Department of the Interior on this issue should not
    preclude state courts from considering whether these remain
    viable factors when determining good cause under ICWA and
    NICWA. And something must constitute good cause to deny
    a transfer to tribal court, because both ICWA and NICWA
    expressly authorize it:
    In any State court proceeding for the foster care place-
    ment 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
    28
    Id., 67,591, C.3, commentary.
    29
    2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,156, C.3(c).
    30
    See id., 10,149.
    31
    See id.
    - 822 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    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.32
    Statutory language is to be given its plain and ordinary mean-
    ing, and an appellate court’s duty in discerning the meaning
    of a statute is to determine and give effect to the purpose and
    intent of the Legislature.33 Recognizing this, we must look
    beyond the notable silence of the 2015 BIA guidelines in order
    to determine and give effect to the good cause language in
    ICWA and NICWA.
    In determining whether there is good cause to deny a
    transfer, I think it remains appropriate for courts to consider
    whether the evidence necessary to decide the case could be
    adequately presented in the tribal court without undue hardship
    to the parties or the witnesses. I note the 1979 BIA guidelines
    addressed this specifically:
    Consideration of whether or not the case can be prop-
    erly tried in tribal court without hardship to the parties or
    witnesses was included [as a good cause factor] on the
    strength of the section-by-section analysis in the House
    Report on [ICWA], which stated with respect to the
    § 1911(b), “The subsection is intended to permit a State
    court to apply a modified doctrine of forum non con­
    veniens, in appropriate cases, to [e]nsure that the rights
    of the child as an Indian, the Indian parents or custodian,
    and the tribe are fully protected.” Where a child is in fact
    living in a dangerous situation, he or she should not be
    forced to remain there simply because the witnesses can-
    not afford to travel long distances to court.34
    32
    25 U.S.C. § 1911(b). Accord § 43-1504(2).
    33
    Pettit, supra note 14; Village of Hallam v. L.G. Barcus & Sons, 
    281 Neb. 516
    , 
    798 N.W.2d 109
     (2011).
    34
    1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,591, C.3, commentary.
    - 823 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    The 1979 BIA guidelines went on to observe that “[a]ppli-
    cation of this criterion will tend to limit transfers to cases
    involving Indian children who do not live very far from the
    reservation.”35 It was suggested that problems with an incon-
    venient forum might be alleviated by “having the court come
    to the witnesses” or requiring the “tribal court meet in the city
    where the family lived.”36
    I find persuasive the rationale provided in the comments to
    the 1979 BIA guidelines that the undue burden factor is actu-
    ally a modified forum non conveniens analysis, and I note that
    prior to the 2015 BIA guidelines, Nebraska recognized this
    as a valid factor in the good cause analysis.37 I see no prin-
    cipled basis under the operative statutes or our jurisprudence
    to depart from that precedent. When determining whether
    the doctrine of forum non conveniens should be invoked, we
    have said the trial court should consider practical factors that
    make trial of the case easy, expeditious, and inexpensive, such
    as the relative ease of access to sources of proof, the cost of
    obtaining attendance of witnesses, and the ability to secure
    attendance of witnesses through the compulsory process.38
    Particular factors to consider in ICWA and NICWA cases may
    include whether alternative methods of participation, such as
    by telephone or videoconferencing, are available.39 I note the
    juvenile court in this case made specific reference in its order
    to the fact that the tribal court was more than 430 miles from
    Lincoln, Nebraska.
    35
    Id.
    36
    Id.
    37
    See In re Interest of Leslie S. et al., 
    17 Neb. Ct. App. 828
    , 
    770 N.W.2d 678
    (2009).
    38
    See In re Interest of C.W. et al., 
    239 Neb. 817
    , 
    479 N.W.2d 105
     (1992),
    overruled on other grounds, In re Interest of Zylena R. & Adrionna R.,
    supra note 1.
    39
    See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,156, C.1(d). See,
    also, In re Spears, 
    309 Mich. App. 658
    , 
    872 N.W.2d 852
     (2015).
    - 824 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    By specifically mentioning forum non conveniens, I do
    not mean to suggest it is the only “good cause” factor which
    remains viable in the wake of the 2015 BIA guidelines. I note
    that when the Legislature amended NICWA in 2015, it added
    both a definition and a standard of proof for “good cause” in
    the context of placement preferences for Indian children:
    Good cause to deviate from the placement preferences
    in subsections (1) through (3) of this section includes:
    (a) The request of the biological parents or the Indian
    child when the Indian child is at least twelve years of
    age; (b) the extraordinary physical or emotional needs of
    the Indian child as established by testimony of a quali-
    fied expert witness; or (c) the unavailability of suitable
    families for placement after a diligent search has been
    completed for families meeting the preference criteria.
    The burden of establishing the existence of good cause to
    deviate from the placement preferences and order shall be
    by clear and convincing evidence on the party urging that
    the preferences not be followed.40
    This new definition of good cause appears instructive on
    the related task of determining good cause to deny a trans-
    fer request and illustrates several possible factors support-
    ing a good cause finding which the Legislature has con-
    cluded are not contrary to the provisions or purpose of ICWA
    and NICWA.
    Finally, because “best interests” is addressed in the major-
    ity opinion, I write separately to suggest that recent legislative
    amendments to NICWA undermine our holding in In re Interest
    of Zylena R. & Adrionna R.,41 that state courts may not con-
    sider the best interests of an Indian child in deciding whether
    there is good cause to deny a transfer to tribal court.
    L.B. 566 made significant amendments to NICWA, includ-
    ing expanding the stated purpose of NICWA to recognize the
    40
    § 43-1508(4).
    41
    In re Interest of Zylena R. & Adrionna R., supra note 1.
    - 825 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    state’s commitment to “protecting the essential tribal relations
    and best interests of an Indian child by promoting practices
    consistent with [ICWA]”42 and adding a new definition of
    “best interests of the Indian child”:
    (2) Best interests of the Indian child shall include:
    (a) Using practices in compliance with [ICWA],
    [NICWA], and other applicable laws that are designed to
    prevent the Indian child’s voluntary or involuntary out-of-
    home placement; and
    (b) Whenever an out-of-home placement is necessary,
    placing the child, to the greatest extent possible, in a fos-
    ter home, adoptive placement, or other type of custodial
    placement that reflects the unique values of the Indian
    child’s tribal culture and is best able to assist the child
    in establishing, developing, and maintaining a political,
    cultural, and social relationship with the Indian child’s
    tribe or tribes and tribal community.43
    It is significant that the Nebraska Legislature undertook to
    define “best interests of the Indian child” under NICWA and
    that it did so in a manner which does not prohibit consideration
    of best interests altogether, but, rather, narrows the traditional
    concept of best interests to reconcile it with the important
    policy goals and procedural protections afforded by ICWA
    and NICWA.
    As such, on the issue of whether some inquiry into an
    Indian child’s best interests is permitted when determining
    whether there is good cause to deny a transfer, I read the recent
    amendments to NICWA as indicating that consideration of
    best interests need not be categorically excluded, but must be
    narrowly applied in a manner that is consistent with the provi-
    sions and promotes the goals of ICWA and NICWA. Because
    I think these recent legislative amendments to NICWA compel
    us to reconsider the breadth of our holding in In re Interest of
    42
    § 43-1502.
    43
    § 43-1503(2) (Supp. 2015).
    - 826 -
    Nebraska A dvance Sheets
    292 Nebraska R eports
    IN RE INTEREST OF TAVIAN B.
    Cite as 
    292 Neb. 804
    Zylena R. & Adrionna R., I cannot agree with the majority’s
    broad statement that “the best interests of the Indian child is
    not a basis for good cause to deny a transfer of the case to
    tribal court.”
    In summary, I agree with the majority that the mere advanced
    stage of the proceeding should no longer be good cause to deny
    a motion to transfer to tribal court. But because we announce
    a significant change in the law today, I respectfully disagree
    with the majority’s disposition of this case, and suggest the
    better disposition would be to vacate, and remand for further
    proceedings, and in doing so, I would provide further guidance
    on the applicable standard of review, the appropriate quantum
    of proof, and the proper parameters of good cause to deny a
    transfer under ICWA and NICWA. For these reasons, I both
    concur and dissent in the opinion of the court.
    Heavican, C.J., and Cassel, J., join in this concurrence
    and dissent.
    

Document Info

Docket Number: S-15-129

Citation Numbers: 292 Neb. 804, 874 N.W.2d 456

Filed Date: 2/19/2016

Precedential Status: Precedential

Modified Date: 6/18/2018

Cited By (26)

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

In re Interest of Steven S. , 299 Neb. 447 ( 2018 )

View All Citing Opinions »