In re Interest of Shayla H. ( 2014 )

Nebraska Advance Sheets
IN RE INTEREST OF SHAYLA H. ET AL. 473
Cite as 289 Neb. 473
is granted; until such occurs, the attorney-client relationship
continues until the end of litigation.16 In this case, a review
of the record establishes that trial counsel had not withdrawn
and thus was still engaged as counsel during the critical
appeals period. As such, Payne’s claims are not procedurally
barred, and the district court erred in concluding otherwise.
We therefore reverse the judgment and remand the cause
with directions.
CONCLUSION
The decision of the district court dismissing Payne’s post-
conviction motion is reversed, and the cause is remanded
with directions.
R eversed and remanded with directions.
16
7A C.J.S. Attorney & Client § 270 (2004). See, also, Neb. Ct. R. § 6-1510.
In re I nterest of
Shayla H. et al.,
children under 18 years of age.
State of Nebraska, appellee, v.
David H., appellant.
___ N.W.2d ___
Filed November 14, 2014. No. S-13-643.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Indian Child Welfare Act: Parental Rights: Proof. At any point in an involun-
tary juvenile proceeding involving Indian children at which a party is required to
demonstrate its efforts to reunify or prevent the breakup of the family, the active
efforts standard of the Indian Child Welfare Act of 1978 and the Nebraska Indian
Child Welfare Act applies in place of the reasonable efforts standard applicable
in cases involving non-Indian children.
Petition for further review from the Court of Appeals,
Inbody, Chief Judge, and Moore and R iedmann, Judges, on
appeal thereto from the Separate Juvenile Court of Lancaster
County, Linda S. Porter, Judge. Judgment of Court of
Appeals affirmed.
Nebraska Advance Sheets
474 289 NEBRASKA REPORTS
Patrick T. Carraher, of Legal Aid of Nebraska, for appellant.
Ashley Bohnet, Deputy Lancaster County Attorney, and
Nikki Blazey, Senior Certified Law Student, for appellee.
Rosalynd Koob, of Heidman Law Firm, L.L.P., for amici
curiae Winnebago Tribe of Nebraska and Omaha Tribe of
Nebraska.
Brad S. Jolly, of Brad S. Jolly & Associates, L.L.C., for
amicus curiae Ponca Tribe of Nebraska.
Jennifer Bear Eagle, of Fredericks, Peebles & Morgan,
L.L.P., for amicus curiae Santee Sioux Nation.
Robert McEwen and Sarah Helvey, of Nebraska Appleseed
Center for Law in the Public Interest, for amicus curiae
Nebraska Appleseed Center for Law in the Public Interest.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
This case is before us on the State’s petition for fur-
ther review. The sole issue presented is whether the active
efforts standard of 25 U.S.C. § 1912(d) of the federal Indian
Child Welfare Act of 1978 (ICWA)1 and § 43-1505(4) of the
Nebraska Indian Child Welfare Act (NICWA)2 applies when
a juvenile court physically places an Indian child3 with his
or her parent but awards another entity legal custody of the
Indian child. The question is whether this disposition in an
involuntary juvenile proceeding is “seeking to effect a foster
care placement” within the meaning of ICWA/NICWA.4 Upon
further review, we agree with the Nebraska Court of Appeals5
1
25 U.S.C. §§ 1901 to 1963 (2012).
2
Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008 & Supp. 2013).
3
See, 25 U.S.C. § 1903(4); § 43-1503(4).
4
See, 25 U.S.C. §§ 1903(1)(i) and 1912(d); §§ 43-1503(1)(a) and
43-1505(4).
5
In re Interest of Shayla H. et al., 22 Neb. Ct. App. 1, 846 N.W.2d 668 (2014).
Nebraska Advance Sheets
IN RE INTEREST OF SHAYLA H. ET AL. 475
Cite as 289 Neb. 473
and hold that at any point in an involuntary juvenile proceed-
ing involving an Indian child at which a party is required to
demonstrate its efforts to reunify or prevent the breakup of
the family, the active efforts standard applies in place of the
reasonable efforts standard6 applicable in cases involving non-
Indian children.
FACTS
The underlying facts are detailed in the published opinion
of the Court of Appeals.7 For our purposes, it is sufficient
to note that David H. is the father of three minor children.
Through David, the children are eligible for enrollment with
the Rosebud Sioux Tribe and are thus “Indian child[ren]”
within the meaning of ICWA/NICWA.8 In May 2013, the
children were adjudicated as being within Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008) because they lacked proper
parental care by reason of the fault or habits of their custodian,
David’s live-in girlfriend.
The “Indian child” status of the children and the corre-
sponding possible application of ICWA/NICWA were properly
recognized very early in the proceedings. Specifically, the
petition to adjudicate, filed January 22, 2013, referenced the
substantive and procedural protections of ICWA. The Rosebud
Sioux Tribe was given notice of the adjudication proceedings
on January 31. And the provisions of ICWA/NICWA were
applied by the juvenile court when it was making preadjudica-
tion determinations with respect to the temporary custody of
the children.
At the first dispositional hearing, the juvenile court physi-
cally placed the children with David, but awarded the Nebraska
Department of Health and Human Services (DHHS) “legal
custody” “for placement, treatment, and care, subject to the
plan developed by” DHHS. In doing so, the court determined
that although reasonable efforts had been made to return legal
6
See Neb. Rev. Stat. §§ 43-283.01 (Cum. Supp. 2012) and 43-284 (Supp.
2013).
7
In re Interest of Shayla H. et al., supra note 5.
8
See, 25 U.S.C. § 1903(4); § 43-1503(4).
Nebraska Advance Sheets
476 289 NEBRASKA REPORTS
custody to David, it remained in the children’s best inter-
ests for David to have only physical custody, while DHHS
retained legal custody. David appealed from this disposition,
arguing that the juvenile court erred in analyzing whether
reasonable efforts had been made to return legal custody to
him, because under ICWA/NICWA, the heightened standard
of “active efforts” to preserve and reunify the Indian family
was applicable.
The Court of Appeals agreed with David, and held the juve-
nile court erred in not addressing at the dispositional hearing
whether active efforts, as required by ICWA/NICWA, had been
made to return the children’s legal custody to David. The State
petitioned for further review on this issue.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in impos-
ing a new requirement that the State must make “active efforts”
when “no party is seeking to effectuate the foster care place-
ment of the Indian Children and the children are placed with
their parent at home.”
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings.9
ANALYSIS
Mootness
After the opinion of the Court of Appeals was issued, and
while the State’s petition for further review was pending before
this court, the children’s guardian ad litem presented materi-
als to this court suggesting the issue was moot, because the
children were subsequently removed from David’s physical
custody. Assuming without deciding that such a removal could
render the issue before us moot, we conclude that the public
9
In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014); In
re Interest of Candice H., 284 Neb. 935, 824 N.W.2d 34 (2012).
Nebraska Advance Sheets
IN RE INTEREST OF SHAYLA H. ET AL. 477
Cite as 289 Neb. 473
interest exception to the mootness doctrine applies,10 and we
reach the merits of the issue presented.
Merits
The legal question before us is whether the State is “seek-
ing to effect a foster care placement”11 in an involuntary juve-
nile proceeding when the juvenile court physically places an
Indian child with his or her parent but awards legal custody to
DHHS. As the Court of Appeals aptly noted and analyzed,12
jurisprudence from California, Oregon, and Iowa supports a
finding that any involuntary juvenile proceeding addressing
whether a child is in need of assistance due to parental unfit-
ness could result in foster care placement and that it is most
consistent with the underlying purposes of ICWA to charac-
terize such a proceeding as one “seeking to effect a foster
care placement.” And, as the Court of Appeals reasoned, it
is logical to apply the active efforts standard to the present
disposition, because DHHS remained the legal custodian of
the children.
[2] Having reviewed all of the relevant law and facts, we
agree with the Court of Appeals that the active efforts standard
applied to the disposition here and that the juvenile court erred
in failing to apply it. We hold that at any point in an involun-
tary juvenile proceeding involving Indian children at which a
party is required to demonstrate its efforts to reunify or prevent
the breakup of the family, the active efforts standard of ICWA/
NICWA applies in place of the reasonable efforts standard
applicable in cases involving non-Indian children.
CONCLUSION
For the foregoing reasons, the decision of the Court of
Appeals is affirmed.
Affirmed.
10
See In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).
11
See, 25 U.S.C. § 1912(d); § 43-1505(4).
12
In re Interest of Shayla H. et al., supra note 5.