In re Adoption of Micah H. , 295 Neb. 213 ( 2016 )

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www.nebraska.gov/apps-courts-epub/
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IN RE ADOPTION OF MICAH H.
Cite as 295 Neb. 213
In re A doption of Micah H., a minor child.
Daniel H. and Linda H., appellants,
v. Tyler R., appellee.
___ N.W.2d ___
Filed December 2, 2016. No. S-15-1080.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings.
3. Statutes: Appeal and Error. To the extent an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach
an independent conclusion irrespective of the determination made by the
court below.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction over an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
6. Judgments: Final Orders: Words and Phrases. A judgment is the
final determination of the rights of the parties in an action.
7. ____: ____: ____. A final judgment is one that disposes of the case
either by dismissing it before a hearing is had upon the merits, or after
trial by rendition of judgment for the plaintiff or defendant.
8. Indian Child Welfare Act: Federal Acts: Child Custody. The applica-
bility of the federal Indian Child Welfare Act of 1978 and the Nebraska
Indian Child Welfare Act to a child custody proceeding turns not on the
Indian status of the person who invoked the acts but on the status of the
child involved in the proceeding.
9. Indian Child Welfare Act: Federal Acts: Parental Rights. To the
extent that the Nebraska Indian Child Welfare Act provides a higher
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standard of protection to the rights of the parent or Indian custodian of
an Indian child under the federal Indian Child Welfare Act of 1978, the
Nebraska Indian Child Welfare Act controls.
10. Indian Child Welfare Act: Parental Rights: Parent and Child.
“Active efforts” must be made to unite the Indian child with both bio-
logical parents, regardless of whether they are Indian.
Appeal from the County Court for Saunders County: Patrick
R. McDermott, Judge. Reversed and remanded.
John H. Sohl for appellants.
Jennifer D. Joakim for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
I. NATURE OF CASE
This case presents the issue of whether the “active efforts”
and “serious emotional or physical damage” elements of the
federal Indian Child Welfare Act of 1978 (ICWA)1 and the
Nebraska Indian Child Welfare Act (NICWA)2 apply to provide
increased protection to the parental rights of a non-Indian,
noncustodial parent of an “Indian child.”
II. FACTS
Daniel H. and Linda H., the maternal grandparents and
guardians of Micah H., a minor child, appeal the order of
the Saunders County Court denying their petition to adopt
Micah. In their petition, Daniel and Linda alleged, among
other things, that the child’s mother (their daughter), Allison
H., had consented to the adoption; that the father, Tyler R., had
abandoned Micah; and that terminating Allison’s and Tyler’s
parental rights was in Micah’s best interests. In Tyler’s answer,
he alleged that Micah was an “Indian Child” pursuant to
1
25 U.S.C. §§ 1901 to 1963 (2012).
2
Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2016).
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ICWA and NICWA. Because neither party disputed that Micah
met the “Indian child” definition under both acts, the county
court applied those acts, which provide heightened protection
to the rights of parents and tribes in proceedings involving
custody, termination of parental rights, and adoption of Indian
children.3 After a hearing on Daniel and Linda’s petition, the
county court found that it was compelled to deny the petition,
because it was “unable to find beyond a reasonable doubt that
[Tyler] has abandoned the child.”
1. Background
Micah’s mother, Allison, was placed with Daniel and Linda
when she was 4 years old. Allison is a member of the Oglala
Sioux Tribe. Daniel and Linda are not members of an Indian
tribe, but they took measures to help Allison understand her
Indian heritage. At the hearing on the petition, Linda testi-
fied that the family kept Native American artifacts in their
home, read Native American books and literature to Allison,
and took her to powwows and reservations. Linda also testi-
fied that in her practice as a nurse, she underwent training to
become “trans-culturally certified,” with a focus on Native
American culture.
When Allison was 17 years old, she first met Tyler. She had
run away from home with a friend, and the two of them went
to Tyler’s mother’s house. Allison testified that Tyler’s mother
provided Allison with alcohol and that Tyler provided her
with marijuana, which they smoked in the basement. Allison
testified that Tyler’s mother was aware that the marijuana was
being used. At some point that night, Tyler and Allison had
sexual intercourse. As a result of that sexual contact, Micah
was born in September 2007. After his birth, Allison and
Micah lived in Daniel and Linda’s home.
In June 2008, when Micah was 9 months old, the State ini-
tiated an action against Tyler to establish paternity and child
3
See In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).
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support. Prior to that time, Tyler was not aware of Micah’s
existence. On July 2, 2010, the county court entered a decree
of paternity, custody, and child support. The decree granted
Allison full legal and physical custody. It ordered Tyler to pay
child support of $100 per month beginning August 1, 2010.
The decree also awarded Tyler parenting time. Supervised visi-
tation was to occur every other weekend, 1 to 2 weeks in the
summer, and on alternating holidays.
(a) Tyler’s Visitation
Linda testified that Tyler’s first visit with Micah occurred
at her home in November 2008. She testified that until the
county court awarded Tyler parenting time in 2010, Tyler vis-
ited “more than once a year,” but not always more than once a
month. After Tyler was awarded parenting time, he saw Micah
every other week to every 3 weeks. Under the decree, Tyler’s
visits with Micah were to be supervised by his mother or
another suitable person approved by Allison.
Tyler’s mother testified that the visits between Tyler and
Micah were “great.” She stated that she observed a loving
relationship between them and that Micah appeared to enjoy
himself and look up to Tyler. Tyler also testified about his
parenting time, naming various activities that he and Micah
enjoyed together. According to Tyler, at some point, Daniel and
Linda started denying him visits for no reason.
Linda testified that the face-to-face visits ceased on May 8,
2011, for two reasons. There were concerns, first, that Tyler’s
visits were not being supervised as ordered, and second, that
inappropriate sexual behavior displayed by Micah was attrib-
utable to Tyler. At some point, Allison’s attorney wrote Tyler a
letter stating that Allison was restricting Tyler’s parenting time
because of Micah’s inappropriate behaviors.
On the issue of whether Tyler’s visits were being supervised,
Linda testified that sometime in February 2011, Tyler came
to Daniel and Linda’s house to pick Micah up for a visit, and
his mother was not with him. When Allison saw that Tyler’s
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mother was not present, she told him that he could not take
Micah. Linda testified that she had also suspected that the
visits were sometimes unsupervised because Micah would talk
about “being with Daddy Tyler downstairs” and going “up
to the big house where [Tyler’s mother] was.” Tyler and his
mother denied that the visits were ever unsupervised.
As for Micah’s inappropriate sexual behavior, Linda stated
she had observed that “when Micah would hug or kiss, he
would say things like, ew-w, baby, baby and rub against.”
Allison testified that Micah “took Buzz and Woody [dolls rep-
resenting characters from a children’s movie] and talked about
Buzz kissing his penis.”
Daniel also testified about some of Micah’s questionable
behavior. Daniel testified that he was supervising Micah’s bath
one night. Because Micah is uncircumcised, Daniel reminded
Micah that he needed to pull the foreskin back to clean him-
self. Daniel testified that Micah said, “oh, this is how guys
make white stuff come out of their penis,” and that Micah then
started making a lot of movement on his penis. When Daniel
asked Micah how he found out about that, Micah said, “from
Daddy Tyler,” and “from movies.” At that time, Micah was 3
or 4 years old.
Tyler’s testimony supports Linda’s claim that Tyler’s last
face-to-face visit was May 8, 2011. He testified that prior to
his incarceration in February 2012, he did not have face-to-face
contact with Micah for what “could have been” a year or more.
Linda testified that to her knowledge, Tyler did not request
visitation with Micah after that time. Tyler, however, claims
that at some point, he filed a contempt action in county court
to allow visitation, and that the matter was pending.
Tyler testified that while in prison, he wrote numerous let-
ters to Micah addressed to Daniel and Linda’s residence and
that he sometimes received a response. Tyler’s mother testified
that Tyler had sent cards, drawings, and puzzles for Micah to
her residence.
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(b) Child Support
Tyler was unable to pay the full monthly child support obli-
gation after he was imprisoned in February 2012 for motor
vehicle homicide. While in prison, Tyler requested that the
State withhold his prison income to satisfy his child support
obligation. However, Tyler’s request was denied because his
income was too low to qualify for withholding. The amount
was also insufficient to cover the full child support obliga-
tion. Tyler testified that he then sent his prison income to his
mother, who supplemented the income with her own funds, to
pay the child support obligation on Tyler’s behalf. The county
court found that it was “the paternal grandmother, not the
father, who pays the child support for the child.” Tyler’s child
support payment history reflects that between July 1, 2008,
and May 26, 2015, $7,517.20 had been paid and that Tyler
owed $816.12.
(c) Daniel and Linda Appointed
as Micah’s Guardians
Allison has struggled with addiction since she was 15 years
old. While she was in Daniel and Linda’s custody and control,
they sought counseling for her. Allison also received alcohol
and drug counseling and treatment prior to the hearing on
Daniel and Linda’s petition. Although Allison had been sober
for 7 months prior to the hearing, she relinquished her rights
at the hearing. When asked why she wanted to do that, Allison
stated, “Because I have struggled with alcohol on and off for
the last 11 years of my life.”
The evidence shows that Micah has spent the majority of his
life residing with Daniel and Linda. Linda testified that Micah
resided with her and Daniel from his birth in September 2007
to October 2008. From October 2008 to January 2009, Micah
lived with Allison in an apartment, but had almost daily con-
tact with Daniel and Linda. After that, Allison and Micah lived
with Tyler at his mother’s residence for 7 to 10 days before
moving back to Daniel and Linda’s house. After that, Allison
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and Micah moved back with Daniel and Linda and lived there
until February 2011, at least “most of that time.” The evidence
does not reflect where Micah lived from February to October
2011, but from November 2011 to the time of the hearing in
June 2015, Micah resided with Daniel and Linda again. At that
time, Allison had asked Daniel and Linda to care for Micah
because she was struggling with addiction.
In March 2012, Daniel and Linda took action to become
joint guardians of Micah, and in April, they were appointed.
(d) Tyler’s Mother’s Visitation
After the guardianship commenced in 2012, Daniel and
Linda offered Tyler’s mother visitation with Micah. Tyler’s
mother testified that while Micah was visiting her, she would
call Tyler in prison and allow the two to talk. She testified that
these telephonic visits ceased when Linda told her that Micah
was not allowed to speak to Tyler.
Linda testified that after visits with Tyler’s mother, Micah
began to exhibit some anxious behavior that caused her con-
cern. She said Micah would cry, tug on his clothing, and make
some unusual and rapid hand movements under his chin. She
said Micah would ask her and Daniel if he had to “go to that
jail place to visit Daddy Tyler.” In response to these behav-
iors, Daniel and Linda obtained a mental health evaluation for
Micah with a child psychologist. Tyler’s mother testified that
she had not taken Micah to visit Tyler in prison.
In late 2013, after Tyler’s mother filed for grandparent visi-
tation, Daniel and Linda stopped allowing Micah to visit her at
her house.
2. Hearing on A doption Petition
On September 10, 2014, Daniel and Linda filed a complaint
for termination of parental rights and a petition to adopt Micah
in Saunders County Court. Daniel and Linda served a copy
of their complaint on Allison, Tyler, and the president of the
Oglala Sioux Tribe, as required by the notice provisions of
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ICWA and NICWA.4 Allison consented to the adoption, and
the tribe did not intervene.
However, on October 24, 2014, Tyler filed an answer and
objection to the petition for adoption. In his answer, Tyler
alleged that Micah is an “Indian Child” pursuant to ICWA
and NICWA and that Daniel and Linda had failed to plead or
otherwise satisfy the requirements of those acts. Those require-
ments will be discussed at length within the analysis section of
this opinion.
The hearing on Daniel and Linda’s petition was held on
June 4, 2015. Among other things, evidence related to Tyler’s
fitness as a parent was introduced, including evidence of
Tyler’s history of drug and alcohol abuse and Tyler’s criminal
record. Allison testified that Tyler had used alcohol, mari-
juana, and cocaine in her presence; that he had used illegal
substances in her presence during the 7 to 10 days that
she and Micah resided with Tyler; and that Tyler had been
involved in drug deals involving marijuana and cocaine.
Allison also testified that Tyler had confided in her that he
had once given cocaine to a female at a party who later died
from a drug overdose.
Tyler has had numerous drug-related and alcohol-related
charges and convictions. In 2006, he was convicted of being
a minor in possession. In 2008, he was convicted of driv-
ing under the influence (DUI) and of two separate charges
of being a minor in possession. In 2010, he was convicted
of driving under suspension, possession of marijuana (more
than an ounce but less than a pound), and attempted assault
on a police office. He was also charged with DUI, which was
later amended to willful reckless driving. In 2012, Tyler was
again charged with DUI, but that charge was later amended
to motor vehicle homicide. As a result of his 2012 conviction,
Tyler was incarcerated in the Nebraska State Penitentiary,
where he continues to serve his sentence. Tyler will not
4
See 25 U.S.C. § 1912(a) and § 43-1505(1).
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be eligible for parole until 2019, when Micah will be 12
years old.
Tyler testified that while in prison, he has attended an
Alcoholics Anonymous program, “Asatrú” religious programs,
and language programs. At the time of the hearing, Tyler was
employed in the prison’s kitchen and earned approximately $87
per month.
After the hearing, the county court denied Daniel and
Linda’s petition. Applying ICWA, the court concluded, “By
nearly any other standard[,] the court would not hesitate to
grant adoption but under the unique requirements of ICWA
and the burden of proof beyond a reasonable doubt that Court
is compelled to deny the petition.” The county court found,
“While [Tyler] is certainly not a fit parent at this time, the
court is unable to find beyond a reasonable doubt that he has
abandoned the child.”
Daniel and Linda now appeal.
III. ASSIGNMENTS OF ERROR
Daniel and Linda assign (1) that the county court erred
in finding that ICWA applied at the request of Tyler, a non-
Indian, and (2) that the county court erred in applying a higher
burden of proof to the abandonment element and finding
that Daniel and Linda failed to show that Tyler had aban-
doned Micah.
IV. STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.5
[2] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings.6
[3] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
5
In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).
6
In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).
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independent conclusion irrespective of the determination made
by the court below.7
V. ANALYSIS
1. Jurisdiction
[4-7] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.8 For an appellate court to
acquire jurisdiction over an appeal, there must be a final order
or final judgment entered by the court from which the appeal
is taken.9 A judgment is the final determination of the rights of
the parties in an action.10 We have said that a final judgment
is one that disposes of the case either by dismissing it before
a hearing is had upon the merits, or after trial by rendition of
judgment for the plaintiff or defendant.11 Conversely, every
direction of a court or judge, made or entered in writing and
not included in a judgment, is an order.12 The final judgment in
proceedings under an adoption petition is an order granting or
denying adoption.13 Here, unlike in In re Adoption of Madysen
S. et al.,14 the county judge, even though the hearing had been
bifurcated, denied the entire adoption petition filed by Daniel
and Linda. Therefore, we have jurisdiction to proceed.
2. A pplicability of ICWA
and NICWA
Generally stated, the substantive portions of ICWA and
the corresponding provisions of NICWA provide heightened
7
Id.
8
In re Adoption of Madysen S. et al., supra note 5.
9
Id.
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
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protection to the rights of parents and tribes in proceedings
involving custody, termination of parental rights, and adop-
tion of Indian children.15 ICWA was enacted by Congress
in 1978
to protect the best interests of Indian children and to pro-
mote the stability and security of Indian tribes and fami-
lies 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 cul-
ture, and by providing for assistance to Indian tribes in
the operation of child and family service programs.16
In 1985, NICWA was enacted “to clarify state policies and pro-
cedures regarding the implementation by the State of Nebraska
of [ICWA].”17
In the present case, Daniel and Linda argue that the county
court erred in finding that ICWA applied when invoked by a
non-Indian father; they argue that “[o]nly an Indian Tribe or
parental Indian member of an Indian family may invoke those
statutory protections.”18 Daniel and Linda do not offer any
authority directly supporting these assertions, but argue that
the purpose of ICWA is not served by applying it to protect the
rights of a non-Indian father.
[8] We note that the plain language of ICWA and NICWA
does not provide for any exclusion when raised by a non-
Indian parent. In fact, under NICWA, “[p]arent means any
biological parent or parents of an Indian child or any Indian
person who has lawfully adopted an Indian child, including
adoptions under tribal law or custom.”19 Rather, the applicabil-
ity of ICWA and NICWA to an adoption proceeding turns not
15
See In re Adoption of Kenten H., supra note 3.
16
25 U.S.C. § 1902.
17
§ 43-1502.
18
Brief for appellants at 9.
19
§ 43-1503(14).
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on the Indian status of the person who invoked the acts but on
whether an “Indian child” is involved.20 Here, there was no
dispute that Micah meets the statutory definition of an “Indian
child.” Accordingly, the county court correctly found that
ICWA and NICWA applied, but it did not determine whether
certain provisions of ICWA and NICWA applied to Tyler.
Although we find that ICWA and NICWA apply to this
adoption proceeding, this is not to say that every provision of
ICWA and NICWA applies to a non-Indian parent. As we shall
discuss later, certain provisions of ICWA or NICWA may not
be applicable to a non-Indian parent.
3. A bandonment
In its application of NICWA, the county court found that
it was compelled to deny the adoption petition, because “the
court [was] unable to find beyond a reasonable doubt that
[Tyler] has abandoned the child.” However, NICWA does not
require the “beyond a reasonable doubt” standard for the aban-
donment element.
For a court to grant an adoption petition, Neb. Rev. Stat.
§ 43-104(1) (Reissue 2016) requires that, unless the adoption
falls within one of the exceptions set forth in § 43-104(2), the
biological parents of the child must execute written consent
to the adoption. Here, Tyler has not consented, but Daniel
and Linda seek to establish an exception, i.e., that under
§ 43-104(2)(b), Tyler has “abandoned the child for at least six
months next preceding the filing of the adoption petition.”
In addition to the requirements under the adoption statutes,
NICWA adds two elements to adoption proceedings involving
Indian children. One of those elements requires a determination
20
See §§ 43-1504 and 43-1505. See, also, In re Adoption of Kenten H.,
supra note 3, 272 Neb. at 853, 725 N.W.2d at 554 (“[a]pplicability of
these protective statutes depends on whether the proceedings involve an
‘Indian child’”); In re Interest of J.L.M. et al., 234 Neb. 381, 396, 451
N.W.2d 377, 387 (1990) (“[f]or 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”).
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to be made “beyond a reasonable doubt.”21 However, abandon-
ment in adoption proceedings need only be proved by clear and
convincing evidence.22 Only the “serious emotional or physical
damage” element imposed by NICWA must be proved beyond
a reasonable doubt.23
Because the county court applied the incorrect burden of
proof to the abandonment element, we must remand the cause
for further proceedings and for a redetermination applying the
correct standard. However, we first discuss the two additional
elements imposed by NICWA, because issues involving those
elements may recur on remand. An appellate court may, at its
discretion, discuss issues unnecessary to the disposition of
an appeal where those issues are likely to recur during fur-
ther proceedings.24
4. Active Efforts
First, § 43-1505(4) and its federal counterpart, 25 U.S.C.
§ 1912(d), set forth an “active efforts” element. We discuss
both federal and state statutes. The federal statute provides:
Any party seeking to effect a foster care placement of,
or termination of parental rights to, an Indian child under
State law shall satisfy the court that active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.25
This statute was interpreted by the U.S. Supreme Court in
Adoptive Couple v. Baby Girl.26 In Baby Girl, the adoptive
21
See § 43-1505(6).
22
See In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272
(1987).
23
See In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).
24
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
25
25 U.S.C. § 1912(d).
26
Adoptive Couple v. Baby Girl, ___ U.S. ___, 133 S. Ct. 2552, 186 L. Ed.
2d 729 (2013).
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p­arents of a young Indian girl petitioned the U.S. Supreme
Court for certiorari after a South Carolina court interpreted
provisions of the federal act to require that the girl be removed
from her adoptive parents’ care and placed with her biologi-
cal father. Her father, a member of the Cherokee Nation, had
previously attempted to relinquish custody, and the child had
never met him. The U.S. Supreme Court reversed, interpreting
the “active efforts” provision of ICWA to apply “only in cases
where an Indian family’s ‘breakup’ would be precipitated by
the termination of the parent’s rights.”27 Because the Indian
father in Baby Girl had never had custody of (or even met)
the Indian child, the court determined that there was no Indian
family to break up.28 Therefore, the court concluded that the
“‘active efforts’” element did not apply to the termination of
the Indian father’s parental rights.29
[9] Applying the U.S. Supreme Court’s interpretation of the
“active efforts” element, the “breakup” of an Indian family
would not be precipitated by the termination of Tyler’s parental
rights, because Tyler has never been part of an “Indian fam-
ily” to break up. Thus, ICWA’s “active efforts” element and
the corresponding part of NICWA’s “active efforts” element
are not applicable. However, this does not end our discussion
of whether NICWA’s “active efforts” provision applies to the
termination of Tyler’s parental rights, because the Legislature
amended NICWA after Baby Girl.30 To the extent that NICWA
provides a higher standard of protection to the rights of the
parent or Indian custodian of an Indian child under ICWA,
NICWA controls.31
The amended version of § 43-1505(4) provides, in rel-
evant part:
27
Id., 133 S. Ct. at 2562.
28
Id.
29
Id.
30
See 25 U.S.C. § 1921 and § 43-1503(1).
31
25 U.S.C. § 1921.
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Any party seeking to effect a foster care placement
of, or termination of parental rights to, an Indian child
under state law shall satisfy the court that active efforts
have been made to provide remedial services and reha-
bilitative programs designed to prevent the breakup of
the Indian family or unite the parent or Indian custo-
dian with the Indian child and that these efforts have
proved unsuccessful.
(Emphasis supplied.)
[10] The Nebraska statute is almost identical to the federal
statute, except it adds that “active efforts” must be made “to
unite the parent . . . with the Indian child.”32 Again, pursuant
to NICWA, “[p]arent means any biological parent or parents
of an Indian child or any Indian person who has lawfully
adopted an Indian child, including adoptions under tribal law
or custom.”33 As a result, “active efforts” must be made to
unite the Indian child with both biological parents, regard-
less of whether they are Indian. But the amended version of
§ 43-1505(4) also provides: “Prior to the court ordering . . . the
termination of parental rights, the court shall make a determi-
nation . . . that the party seeking placement or termination has
demonstrated that attempts were made to provide active efforts
to the extent possible under the circumstances.” (Emphasis
supplied.) Therefore, the county court should review active
efforts in light of the particular circumstance presented in
this case.
Here, the county judge did not make any findings on the
issue of “active efforts.” In fact, the court found that Daniel
and Linda were not required to show active efforts had been
made to unite Tyler and Micah. Therefore, on remand, the
court must reopen the record, and, in addition to applying
the correct standard to the issue of abandonment, determine
whether “active efforts” have been made or whether attempts
32
See § 43-1505(4).
33
§ 43-1503(14).
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Cite as 295 Neb. 213
were made to provide active efforts to the extent possible under
the circumstances.34
5. Serious Emotional or
Physical Damage
We now discuss the second additional element that ICWA
and NICWA impose on parties seeking to terminate the paren-
tal rights of an Indian child, i.e., the “serious emotional or
physical damage” element. The federal statute, 25 U.S.C.
§ 1912(f), provides:
No termination of parental rights may be ordered in
such proceeding in the absence of a determination, sup-
ported 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.
Similarly, § 43-1505(6) provides:
The court shall not order termination of parental rights
under this section in the absence of a determination, sup-
ported 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.
In Baby Girl, the U.S. Supreme Court held that the “‘seri-
ous emotional or physical damage’” element does not apply
to parents who never had custody of the Indian child, reason-
ing that the words “‘continued custody’” within the statute
refer to custody that the parent already has (or at least had at
some point in the past).35 Because the Indian father in Baby
Girl never had custody of the Indian child, the Supreme Court
determined that the “‘serious emotional or physical damage’”
34
See § 43-1505(4).
35
Adoptive Couple v. Baby Girl, supra note 26, 133 S. Ct. at 2560.
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element did not apply to him.36 In the present case, Daniel and
Linda argue that because Tyler never had custody of Micah,
Daniel and Linda need not prove the “serious emotional or
physical damage” element.
On the other hand, Tyler argues that Baby Girl is limited to
the particular facts of that case, which involved a father who
did not have any contact with the child prior to the termina-
tion proceedings. Tyler argues that this case is distinguish-
able from Baby Girl, because he has visitation rights and
“has paid his child support regularly, even while in custody
at the State Penitentiary.”37 Indeed, Tyler does have visita-
tion rights, but even assuming that the rule from Baby Girl is
limited to the facts presented in that case, having the right of
parenting time does little to distinguish this case from Baby
Girl if the parent fails to exercise that right. Thus, we need
to further examine Tyler’s rights in the context of his actual
parenting time.
The evidence supports that prior to his incarceration, Tyler
did not have any contact with Micah for approximately 1 year.
Since the birth of Micah in 2007, Tyler has lived with Micah
for a mere 7 to 10 days. Tyler’s visits with Micah were, by
court order, to be supervised, and the record does not reflect
that Tyler ever sought unsupervised or increased visitation.
Further, Tyler never had custody, and there is no evidence that
Tyler ever sought custody. Moreover, even if Tyler’s rights are
not terminated in this proceeding, Tyler will not be eligible to
obtain custody of Micah until at least 2019, when he is eligible
for parole and Micah is 12 years old. Micah should not be in
limbo for years to come.38
Micah has two loving family members who have essentially
raised him from birth, and there is no evidence that this situ-
ation is not in his best interests. The law provides procedural
36
See id.
37
Brief for appellee at 13.
38
See In re Interest of Levey, 211 Neb. 66, 317 N.W.2d 760 (1982).
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safeguards to protect parental rights to the utmost,39 but the
parent must, in return, make reasonable efforts to be a parent.
Unfortunately, as the county judge noted, Tyler’s record of
fatherhood is minimal. Further, we agree with the county court
that “it is the paternal grandmother, not the father, who pays
the child support for the child.”
After reviewing the evidence, we conclude that this case is
not distinguishable from Baby Girl. Therefore, because Tyler
never had custody of Micah, the “serious emotional or physi-
cal damage” element does not apply to him. Accordingly, on
remand, the county court need not consider whether Daniel and
Linda satisfied this element.
VI. CONCLUSION
The county court erred in applying the “beyond a reason-
able doubt” standard to the abandonment element and also in
finding that Daniel and Linda were not required to show active
efforts had been made to unite Tyler and Micah. We therefore
reverse, and remand with directions to allow the parties to sub-
mit additional evidence in further proceedings consistent with
this opinion.
R eversed and remanded.
39
See In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672
(2003).