In re Adoption of Micah H. ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/26/2018 10:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
In re A doption of Micah H., a minor child.
Daniel H. and Linda H., appellees,
v. Tyler R., appellant.
___ N.W.2d ___
Filed October 26, 2018. No. S-18-146.
1. Jurisdiction: Juvenile Courts: Appeal and Error. A jurisdictional
issue that does not involve a factual dispute presents a question of law.
An appellate court reviews juvenile cases de novo on the record and
reaches its conclusions independently of the juvenile court’s findings.
2. 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.
3. Adoption: Appeal and Error. Appeals in adoption proceedings are
reviewed by an appellate court for error appearing on the record.
4. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
5. Adoption. The matter of adoption is statutory, and the manner of proce-
dure and terms are all specifically prescribed and must be followed.
6. Adoption: Parent and Child: Parental Rights. Consent of a biological
parent to the termination of his or her parental rights is the foundation of
our adoption statutes, and an adoption without such consent must come
clearly within the exceptions contained in the statutes.
7. Adoption: Parent and Child. A determination regarding parental con-
sent, a finding under Neb. Rev. Stat. § 43-104(2) (Reissue 2016), or
a determination regarding substitute consent does not end the court’s
inquiry as to whether the petition for adoption should be approved.
8. Adoption. Upon a hearing in an adoption proceeding, if the statutory
requirements are otherwise satisfied, the court may decree an adoption
after finding that such adoption is in the best interests of the child.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
9. Due Process: Parent and Child. An established familial relationship is
a liberty interest entitled to substantial due process protection.
10. Constitutional Law: Parent and Child. Concerning a parent-child rela-
tionship, the mere existence of a biological link does not merit equiva-
lent constitutional protection.
11. ____: ____. The constitutional protection given to the familial relation-
ship stems from the emotional attachments that derive from the intimacy
of daily association.
12. Constitutional Law: Parent and Child: Adoption: Notice. When a
biological father has not taken the opportunity to form a relationship
with his child, the constitution does not afford him an absolute right to
notice and an opportunity to be heard before the child may be adopted.
13. Indian Child Welfare Act: Parental Rights. The Nebraska Indian
Child Welfare Act provides a higher standard of protection to the rights
of the parent or Indian custodian of an Indian child than does the
Indian Child Welfare Act; therefore, the Nebraska Indian Child Welfare
Act controls.
14. ____: ____. Under the Nebraska Indian Child Welfare Act, there
is no precise formula for active efforts; the active efforts standard
requires a case-by-case analysis and should be judged by the individual
circumstances.
15. ____: ____. Under the Nebraska Indian Child Welfare Act, active efforts
are required even if the parent is incarcerated, but may include programs
offered by the Department of Correctional Services.
16. ____: ____. Under the Nebraska Indian Child Welfare Act, a parent’s
demonstrated lack of willingness to participate in treatment may be con-
sidered in determining whether the state has taken active efforts.
17. Adoption: Abandonment: Time. Consent for an adoption is not
required when a parent has abandoned the child for at least 6 months
next preceding the filing of the adoption petition.
18. Abandonment: Evidence: Proof. In order for a court to find that
abandonment has occurred, the petitioning party bears the burden of
proving by clear and convincing evidence that the parent abandoned
the child.
19. Abandonment: Proof. To constitute abandonment, it must appear that
there has been, by the parents, a giving up or total desertion of the minor
child. There must be shown an absolute relinquishment of the custody
and control of the minor and thus the laying aside by the parents of all
care for the minor.
20. Abandonment: Words and Phrases. Abandonment may be found
where there is willful or intentional conduct on the part of the par-
ent which evinces a settled purpose to forgo all parental duties and
relinquish all parental claims to the child, or a willful neglect and
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
refusal to perform the natural and legal obligations of parental care
and support.
21. Abandonment: Evidence. The conduct constituting abandonment must
appear by clear and convincing evidence to be willful, intentional, or
voluntary, without just cause or excuse.
22. Adoption. Adoption statutes will be construed strictly in favor of the
rights of the natural parents in controversies involving termination of the
relation of the parent and child.
23. Abandonment: Evidence: Appeal and Error. The various definitions
of abandonment do not require an appellate court to view the statutory
period defined in Neb. Rev. Stat. § 43-104(2)(b) (Reissue 2016) in a
vacuum. One may consider the evidence of a parent’s conduct, either
before or after the statutory period, because this evidence is relevant to
a determination of whether the purpose and intent of that parent was to
abandon his or her child or children.
24. Parental Rights: Abandonment. In considering the issue of abandon-
ment, parental incarceration may be considered as a basis for termina-
tion of parental rights.
25. ____: ____. Consideration of parental abandonment is not to say that
criminal conduct or imprisonment alone necessarily justifies an order of
permanent deprivation.
26. ____: ____. In a parental termination proceeding, a court may con-
sider a parent’s inability to perform his or her parental obligations
because of imprisonment and the nature of the crime committed, which
considerations are relevant to the issue of parental fitness and child
welfare, as is the parent’s conduct prior to and during the period of
incarceration.
27. Indian Child Welfare Act: Intent. The policy behind the Indian Child
Welfare Act was to further the nation’s interest in protecting the best
interests of Indian children and to promote the stability and security of
Indian tribes and families by establishing minimum federal standards.
28. Constitutional Law: Parental Rights. It is a well-established maxim of
constitutional law that the Due Process Clause of the 14th Amendment
protects the fundamental right of parents to make decisions concerning
the care, custody, and control of their children.
29. Adoption: Parental Rights: Abandonment: Final Orders. Despite a
finding of abandonment, a parent retains parental rights until the final
judgment denying or granting the petition for adoption, and the parent
may still participate in the proceedings to present evidence that adop-
tion is not in the child’s best interests.
30. Adoption: Parental Rights. If the court finds that adoption is not in the
child’s best interests, then the rights of the parent, who was deemed to
have abandoned the child, are returned to the status quo.
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IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
31. Adoption: Abandonment. Abandonment, for purposes of adoption,
is not always determined in proceedings separate from the underlying
adoption, because nothing in the adoption statutes absolutely requires
bifurcated proceedings.
Appeal from the County Court for Saunders County: Patrick
R. McDermott, Judge. Affirmed in part, and in part vacated
and remanded with directions.
Jennifer D. Joakim for appellant.
Michael J. Novotny, of Fredericks, Peebles & Morgan,
L.L.P., for appellees.
Evelyn N. Babcock and George T. Babcock, of Law Offices
of Evelyn N. Babcock, for amici curiae Evelyn N. Babcock and
George T. Babcock.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
This is an adoption case we first visited in In re Adoption of
Micah H.,1 where we concluded that the county court applied
the wrong standard of proof in determining abandonment. We
further concluded that the active efforts requirement of the
Nebraska Indian Child Welfare Act (NICWA) 2 applied to cases
involving the termination of parental rights over Indian chil-
dren, even when the parent is not of Native American descent.
We remanded the cause to the county court.
On remand, the county court, applying the correct stan-
dard of clear and convincing evidence, found that (1) the
petitioning grandparents, Linda H. and Daniel H., had made
active efforts to provide remedial and rehabilitative programs
designed to “unite the parent . . . with the Indian child,” under
1
In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).
2
Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
§ 43-1505(4), and (2) Linda and Daniel presented clear and
convincing evidence that Tyler R., the biological father, had
abandoned Micah H., the child in question. Tyler appeals. This
case presents issues regarding the interpretation of the relevant
adoption statutes, as well as NICWA, and whether Tyler aban-
doned Micah. We affirm in part, vacate the adoption decree,
and remand the cause to the county court with directions.
BACKGROUND
Micah is the 10-year-old biological child of Tyler and
Allison H. Allison is a member of the Oglala Sioux Tribe. As
such, Micah is an “Indian child” pursuant to the federal Indian
Child Welfare Act of 1978 (ICWA) 3 and NICWA.
For the majority of Micah’s life, he has resided with his
legal guardians, Linda and Daniel, who are Allison’s adoptive
parents and do not share Allison’s Native American heritage.
Linda and Daniel sought to become Micah’s guardians in
March 2012, due to Allison’s concerns regarding her abil-
ity to maintain sobriety. In April, the Saunders County Court
appointed Linda and Daniel as Micah’s guardians.
According to the record, Tyler also struggles with drug and
alcohol addiction. He has been incarcerated since February
2012 for an alcohol-related motor vehicle homicide and has
a projected release date of August 2019, at the earliest. Prior
to his 2012 incarceration, Tyler had numerous encounters
with the criminal justice system, many of those drug or alco-
hol related.
In January 2014, Micah was taken to see a psychologist
for an evaluation. The psychologist’s report concluded that
“[g]iven obvious stressors (i.e.; [Allison’s] and [Tyler’s] sub-
stance abuse, [Tyler’s] incarceration, alternate placement [with
Linda and Daniel], and [grandparent] visitations [with Tyler’s
mother]) and Micah’s symptoms of anxiety, including stutter-
ing, nightmares, and general worry, a diagnosis of Adjustment
Disorder with Anxiety appears appropriate.”
3
25 U.S.C. §§ 1901 to 1963 (2012).
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
Linda and Daniel filed a petition for adoption and termina-
tion of parental rights in Saunders County Court. During the
course of the adoption proceedings, Allison voluntarily relin-
quished all parental rights to, and custody of, Micah, asking
that Micah be permitted to be adopted by Linda and Daniel.
Tyler objected to Linda and Daniel’s petitioned adoption. Linda
and Daniel also served a copy of the complaint on the presi-
dent of the Oglala Sioux Tribe, as required by § 43-1505(1),
and the tribe declined to intervene.
In 2015, the Saunders County Court denied Linda and
Daniel’s petition. Linda and Daniel appealed, assigning as error
that (1) the county court erred in finding that ICWA applied
at the request of Tyler, a non-Indian, and (2) the county court
erred in applying a higher burden of proof to the abandonment
element under Neb. Rev. Stat. § 43-104(2) (Reissue 2016) by
requiring that Linda and Daniel demonstrate abandonment
“beyond a reasonable doubt.”
On appeal, we determined that the county court erred in
applying the “‘beyond a reasonable doubt’” standard to the
abandonment element and also in finding that Linda and
Daniel were not required to show that active efforts had been
made, under NICWA, to unite Tyler and Micah.4 We noted
that the appropriate standard concerning abandonment under
§ 43-104(2) is “clear and convincing evidence” of abandon-
ment.5 Further, we explained that under NICWA, Linda and
Daniel were required to show active efforts to unite Tyler and
Micah or that attempts to provide active efforts had been made
to the extent possible under the circumstances. We remanded
the cause to the county court for further proceedings.6
On remand, the county court found in favor of Linda and
Daniel. Specifically, the county court concluded that Linda and
4
In re Adoption of Micah H., supra note 1, 295 Neb. at 225, 887 N.W.2d
at 868.
5
Id.
6
Id.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
Daniel had demonstrated active efforts to unite Micah with
Tyler by contacting the tribe in an attempt to establish services,
as well as directing Tyler to the same treatment programs that
they had used for Allison. The county court also found that
Tyler had abandoned Micah.
Although the county court found there was evidence that
Tyler had engaged in some treatment programs, it noted that
Tyler continued to use drugs and alcohol, leading to his convic-
tion for motor vehicle homicide. The county court also found
there was no evidence that Tyler even attempted to acquaint
himself with the history, cultural norms, and practices of the
tribe, or any customs that have bearing on the parent-child
relationship.
Linda and Daniel testified that as far as they were aware,
prior to his incarceration, Tyler maintained a residence in his
mother’s basement and had the means to acquire transporta-
tion. Prior to 2011, Linda and Daniel assisted in providing
for visitation as well as instruction regarding the appropriate
interactions with and care for a toddler. Linda indicated that
she had conversations with Tyler concerning scheduling visits
and obtaining help with drug and alcohol addiction, and even
assisted with the parenting plan provided by the court.
Daniel noted that after Micah began demonstrating inappro-
priate behaviors, Allison retained the services of an attorney in
order to send Tyler a letter expressing her concern and request-
ing assurances with regard to the monitoring of Tyler’s visita-
tion with Micah. The letter was dated May 16, 2011. Daniel
indicated that after Tyler’s receipt of the letter, he discontinued
his visitations with Micah. Daniel further indicated that he had
supported Tyler’s visitations with Micah until Micah began
exhibiting concerning behaviors.
Tyler indicated that since his incarceration, he had
obtained a certificate from every level of the “Designated
Dad Program.” The record indicates that Tyler attended one
Alcoholics Anonymous meeting for the stated purposes of
“[s]upport[ing] others there.” However, Tyler testified that
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
Linda and Daniel never spoke with him about rehabilita-
tion services and that he did not believe that he required any
alcohol rehabilitation services. This was despite the fact that
Tyler had a lengthy criminal history involving alcohol and
drug possession.
Tyler admitted that he had not had any face-to-face contact
with Micah since about 2011, or for over a year prior to his
incarceration. Despite Tyler’s incarceration, he has continued
to send letters to Micah. Tyler has attempted to utilize money
he earned during his incarceration to pay the child support he
owes. However, due to the minimal earnings, the State rejected
Tyler’s request to direct funds to the Department of Health
and Human Services. The record demonstrates that Tyler’s
mother pays the child support and that Tyler assists when he
is able. Despite claims that Linda and Daniel have prevented
Micah from visiting Tyler, the court below noted that no for-
mal request had been made by Tyler to have Micah visit him
in prison.
During the course of the adoption proceedings, and while
discussing preliminary matters, the court observed that it was
aware that “these kinds of cases” have two procedural stages.
But the court indicated that the guardian ad litem had been
informed that he may be called to testify at the completion
of the proceedings regarding abandonment and Micah’s best
interests, rather than the usual procedure of holding a hearing
on the matter at a later date. In fact, the guardian ad litem did
testify and was cross-examined regarding Micah’s best inter-
ests at that same hearing.
At the conclusion of the trial, the county court judge noted
that he was “not turning this case over to some other judge to
read the record and come to a conclusion. I am the one that’s
heard all the live evidence.” The judge further stated that “[i]t
would be unfair to a colleague and really unfair to all of the lit-
igants because . . . those observations are important in the con-
text of the whole case.” (Emphasis supplied.) The county court
then found that Tyler had abandoned Micah and terminated
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
Tyler’s parental rights, further finding that adoption by Linda
and Daniel was in Micah’s best interests. Accordingly, a decree
granting the adoption was entered.
Tyler appeals.
ASSIGNMENTS OF ERROR
Tyler assigns that the trial court erred in (1) finding that
Linda and Daniel had used active efforts to provide reme-
dial services and rehabilitative programs designed to prevent
the breakup of an Indian family or to unite the parent or
Indian custodian with the Indian child within the meaning of
NICWA, (2) finding by clear and convincing evidence that
Tyler abandoned Micah under § 43-104(2), (3) finding that
the adoption was in the best interests of the child, (4) granting
the decree without notice and an opportunity to be heard at a
further hearing on the best interests of Micah after terminating
Tyler’s parental rights, and (5) not adhering to statutory adop-
tion requirements.
STANDARD OF REVIEW
[1-4] A jurisdictional issue that does not involve a fac-
tual dispute presents a question of law.7 An appellate court
reviews juvenile cases de novo on the record and reaches its
conclusions independently of the juvenile court’s findings.8
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.9 Appeals in adoption proceedings
are reviewed by an appellate court for error appearing on the
record.10 When reviewing a judgment for errors appearing on
the record, the inquiry is whether the decision conforms to
7
In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).
8
In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).
9
Id.
10
Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014).
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IN RE ADOPTION OF MICAH H.
Cite as 301 Neb. 437
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.11
ANALYSIS
Relevant Legal Principles.
[5,6] In Nebraska, the matter of adoption is statutory, and
the manner of procedure and terms are all specifically pre-
scribed and must be followed.12 Consent of a biological parent
to the termination of his or her parental rights is the founda-
tion of our adoption statutes, and an adoption without such
consent must come clearly within the exceptions contained in
the statutes.13 As relevant to this case, § 43-104(2) provides
that “[c]onsent shall not be required of any parent who . . . has
abandoned the child for at least six months next preceding the
filing of the adoption petition . . . .”
[7,8] A determination regarding parental consent, a find-
ing under § 43-104(2), or a determination regarding substitute
consent does not end the court’s inquiry as to whether the peti-
tion for adoption should be approved.14 Upon a hearing, if the
statutory requirements are otherwise satisfied, the court may
decree an adoption after finding that such adoption is in the
best interests of the child.15
[9-12] The U.S. Supreme Court has long recognized that
state intervention in a parent-child relationship is subject to
constitutional oversight.16 The Court has held that an estab-
lished familial relationship is a liberty interest entitled to
substantial due process protection, but made clear that “the
mere existence of a biological link does not merit equivalent
11
Id.
12
In re Adoption of Madysen S. et al., supra note 7.
13
Id.
14
Id.
15
Id. (citing Neb. Rev. Stat. § 43-109(1) (Reissue 2016)).
16
See Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed.
1070 (1925). See, also, Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625,
67 L. Ed. 1042 (1923).
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IN RE ADOPTION OF MICAH H.
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constitutional protection.”17 The Court explained that the con-
stitutional protection given to the familial relationship stems
from the emotional attachments that derive from the intimacy
of daily association.18 Thus, when a biological father has not
taken the opportunity to form a relationship with his child,
the constitution does not afford him an absolute right to
notice and opportunity to be heard before the child may be
adopted.19 However, adoption cases become even more com-
plex when the adoption involves a child of Native American
descent.
In cases involving Indian children under ICWA or under
NICWA, certain additional safeguards provide heightened
protection to the rights of parents and tribes in proceedings
involving custody, termination of parental rights, and adoption
of Indian children.20 These additional safeguards are provided
to protect “the essential tribal relations and best interests
of an Indian child by promoting practices consistent with
[ICWA].”21
The purpose behind ICWA is
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.22
17
Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 77 L. Ed. 2d 614
(1983).
18
Id.
19
See In re Adoption of Baby Girl H., 262 Neb.775, 635 N.W.2d 256 (2001),
disapproved on other grounds, Carlos H. v. Lindsay M., 283 Neb. 1004,
815 N.W.2d 168 (2012).
20
In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).
21
See § 43-1502.
22
25 U.S.C. § 1902.
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NICWA was enacted by the Nebraska Legislature in 1985 “to
clarify state policies and procedures regarding the implementa-
tion by the State of Nebraska of [ICWA].”23
As this court has previously noted, the applicability of
ICWA and NICWA to an adoption proceeding turns not on
the Indian status of the person who invoked the acts, but on
whether an “Indian child” is involved.24 As we have previ-
ously noted, there is no dispute that Micah is an “Indian child”
under NICWA.25 But, as stated in In re Adoption of Micah H.,
this does not mean that every provision of ICWA and NICWA
applies to a non-Indian parent.26 And U.S. Supreme Court prec-
edent has limited the applicability of ICWA to certain cases
based on specific facts as discussed below.27
As noted, ICWA and NICWA set forth an “active efforts”
element. The federal statute provides in part:
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 and that these efforts have proved
unsuccessful.28
This statute was interpreted by the U.S. Supreme Court in
Adoptive Couple v. Baby Girl.29 In Baby Girl, the adoptive
parents of a young Indian girl petitioned the U.S. Supreme
Court for certiorari after the South Carolina Supreme Court
23
§ 43-1502.
24
See §§ 43-1504 and 43-1505. See, also, In re Adoption of Kenten H., supra
note 20.
25
See In re Adoption of Micah H., supra note 1.
26
Id.
27
Adoptive Couple v. Baby Girl, 570 U.S. 637, 133 S. Ct. 2552, 186 L. Ed.
2d 729 (2013).
28
25 U.S.C. § 1912(d).
29
Adoptive Couple v. Baby Girl, supra note 27.
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interpreted provisions of ICWA to require that the child be
removed from her adoptive parents’ care and placed with
her biological father. The child’s biological father, a member
of the Cherokee Nation, had previously attempted to relin-
quish custody of the child that had never met him. The U.S.
Supreme Court reversed, interpreting the “active efforts” pro-
vision of ICWA to apply “only in cases where an Indian fam-
ily’s ‘breakup’ would be precipitated by the termination of the
parent’s rights.”30 Because the Indian father in Baby Girl never
had custody of the Indian child, the court concluded that the
“active efforts” element did not apply to the termination of the
Indian father’s parental rights.31
[13] NICWA provides a higher standard of protection to the
rights of the parent or Indian custodian of an Indian child than
does ICWA; therefore, NICWA controls.32
NICWA provides in part:
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 rehabilita-
tive programs designed to prevent the breakup of the
Indian family or unite the parent or Indian custodian
with the Indian child and these efforts have proved
unsuccessful.33
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.”34 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
30
Id., 570 U.S. at 651.
31
Id.
32
See § 43-1513 and 25 U.S.C. § 1921.
33
§ 43-1505(4) (as amended by 2015 Neb. Laws, L.B. 566) (emphasis
supplied).
34
See § 43-1505(4) and 25 U.S.C. § 1912(d).
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child, including adoptions under tribal law or custom.”35 As
a result, we determined that “active efforts” must be made to
unite an Indian child with both biological parents, regardless
of whether they are of Native American descent.36 As such, in
this case, the county court was directed to determine whether
attempts were made to provide active efforts to the extent pos-
sible under the circumstances.37 We review that determination
de novo.
Active Efforts.
In his first assignment of error, Tyler argues that the evi-
dence adduced at trial failed to establish by clear and convinc-
ing evidence that Linda and Daniel had used “active efforts” to
unite Tyler and Micah. We disagree.
The crux of Tyler’s contention is his assertion, made with-
out authority, that § 43-1503(1)(a) to (h) is a checklist, with a
requirement that Linda and Daniel comply with each subsec-
tion. This is a question of statutory interpretation, which this
court reviews de novo.
[14] There is no precise formula for active efforts; the active
efforts standard requires a case-by-case analysis38 and should
be judged by the individual circumstances.39 We have observed
that efforts made under § 43-1503 should generally be “‘cultur-
ally relevant.’”40
In In re Interest of Walter W.,41 we found that the State
demonstrated by clear and convincing evidence that it had
35
See § 43-1503(14).
36
In re Adoption of Micah H., supra note 1.
37
See § 43-1505(4).
38
See In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2014). See,
also, § 43-1505(4); Judiciary Committee Hearing, L.B. 566, 104th Leg.,
1st Sess. 4 (Feb. 26, 2015).
39
See In re Adoption of Micah H., supra note 1. See, also, § 43-1503(1)(a).
40
See In re Interest of Walter W., supra note 38, 274 Neb. at 865, 744
N.W.2d at 61.
41
See In re Interest of Walter W., supra note 38.
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made active efforts to provide remedial services and reha-
bilitative programs to prevent the breakup of the Indian fam-
ily. In that case, we noted that the State’s efforts consisted
of providing transportation, foster care and medical care for
the child, vouchers for rent, clothing, bills, and drug test-
ing. Additionally, the case manager provided the mother with
information regarding both inpatient and outpatient chemical
dependency programs and encouraged her to apply. Further,
the case manager followed up on the mother’s progress—or
lack thereof, as was the case.
[15,16] In Philip J. v. State,42 the Alaska Supreme Court
noted that active efforts are required even if the parent is
incarcerated, but may include programs offered by the Alaska
Department of Corrections. However, the court stated that
“‘a parent’s demonstrated lack of willingness to participate in
treatment may be considered in determining whether the state
has taken active efforts’” and noted that the court had excused
“‘further active efforts once the parent expresses an unwilling-
ness to participate.’”43
In this case, Tyler was counseled by Linda concerning his
drug and alcohol problems. The record shows that Linda sug-
gested multiple treatment programs in which Tyler could seek
rehabilitation for his addiction. However, Linda and Daniel had
no control with regard to forcing Tyler to seek treatment.
The record demonstrates that Linda and Daniel discussed
proper parenting techniques and interactions with small chil-
dren. Further, Linda and Daniel assisted with scheduling visita-
tion and the implementation of a parenting plan. Tyler demon-
strated no need for housing, financial support, or transportation
to unite with Micah. Despite Tyler’s numerous criminal con-
victions involving drugs and alcohol, Tyler maintained that he
does not suffer from drug or alcohol addiction.
With the exception of completing parenting classes while
in prison, Tyler has not sought to actively participate in drug
42
Philip J. v. State, 314 P.3d 518 (Alaska 2013). See 25 U.S.C. § 1912(d).
43
Philip J. v. State, supra note 42, 314 P.3d at 528.
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and alcohol treatment or support programs. In fact, Tyler has
attended only one Alcoholics Anonymous meeting while in
prison, at the invitation of another, and suggested to the court
below that his presence at the meeting was for the purpose of
supporting others in the program.
Based on the specific facts and circumstances of this case,
we find that Linda and Daniel undertook active efforts to pro-
vide remedial services and rehabilitative programs designed to
unite Tyler and Micah.
Abandonment.
In his second assignment of error, Tyler argues that there
was not clear and convincing evidence that he had aban-
doned Micah.
[17] Generally, for a court to grant an adoption petition,
§ 43-104(1) requires that the biological parents of the child
must execute written consent to the adoption. However, under
§ 43-104(2)(b), consent is not required when a parent has
“abandoned the child for at least six months next preceding the
filing of the adoption petition.”
[18-20] In order for a court to find that abandonment has
occurred, the petitioning party bears the burden of proving by
clear and convincing evidence that the parent abandoned the
child.44 In In re Adoption of Simonton,45 this court defined the
word “abandoned” when used in the context of adoption pro-
ceedings. To constitute abandonment, it must appear that there
has been, by the parents, a giving up or total desertion of the
minor child.46 In other words, there must be shown an absolute
relinquishment of the custody and control of the minor and
thus the laying aside by the parents of all care for the minor.47
44
See In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272
(1987).
45
In re Adoption of Simonton, 211 Neb. 777, 320 N.W.2d 449 (1982).
46
Id.
47
In re Application of S.R.S. and M.B.S., supra note 44 (quoting In re
Adoption of Christofferson, 89 S.D. 287, 232 N.W.2d 832 (1975)).
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We have further noted that abandonment may be found where
there is willful or intentional conduct on the part of the parent
which evinces a settled purpose to forgo all parental duties and
relinquish all parental claims to the child, or a willful neglect
and refusal to perform the natural and legal obligations of
parental care and support.48
[21,22] The conduct constituting abandonment as defined
above must appear by clear and convincing evidence to be
willful, intentional, or voluntary, without just cause or excuse.49
As a general rule, adoption statutes will be construed strictly
in favor of the rights of the natural parents in controversies
involving termination of the relation of the parent and child.
This is especially true in those cases where it is claimed that
owing to the willful abandonment of the child, the consent of
the parent to the adoption is not required.50
[23] Pursuant to § 43-104(2)(b), the critical period of time
during which abandonment must be shown is the 6 months
immediately preceding the filing of the adoption petition.
However, various definitions of abandonment do not require us
to view this statutory period in a vacuum. One may consider
the evidence of a parent’s conduct, either before or after the
statutory period, because this evidence is relevant to a determi-
nation of whether the purpose and intent of that parent was to
abandon his or her child or children.51
[24-26] In considering the issue of abandonment, we
have held that parental incarceration may be considered as a
basis for termination of parental rights under Neb. Rev. Stat.
§ 43-292(1) (Reissue 2016).52 Further, nothing in Nebraska
law prevents us from applying this consideration in cases
under § 43-1501. Of course, this is not to say that criminal
48
Id. (quoting In re Cardo, 41 N.C. App. 503, 255 S.E.2d 440 (1979)).
49
In re Application of S.R.S. and M.B.S., supra note 44.
50
In re Adoption of Simonton, supra note 45.
51
Id.
52
See In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).
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conduct or imprisonment alone necessarily justifies an order
of permanent deprivation.53 But we can, in a parental termina-
tion proceeding, consider “‘“a parent’s inability to perform
his parental obligations because of imprisonment [and] the
nature of the crime committed[, which considerations] are . . .
relevant to the issue of parental fitness and child welfare, as
[is] the parent’s conduct prior to . . . and during the period of
incarceration.” . . .’”54 Additionally, we have often stated that
although incarceration itself may be involuntary, the criminal
conduct causing the incarceration is voluntary.55
In In Interest of L.V.,56 the father spent much of his child’s
life bouncing in and out of the prison system. We held that
although the father sent his child cards, letters, gifts, small
amounts of money, a framed photograph, and a painting he had
made while in prison, that was not sufficient to overcome the
conclusion that he had abandoned his child.
In In re Interest of M.L.B.,57 we upheld the termination of
a mother’s parental rights based on her years of incarceration,
lack of monetary support, lack of gainful employment when
not incarcerated, and overall lack of cooperation with services
intended to assist her in maintaining custody of her child. The
termination was upheld even though the mother demonstrated
an interest by sending gifts to the child.
In this case, the evidence demonstrates that since the birth
of Micah in 2007, Tyler has lived with Micah for a mere 7
53
See id. See, also, In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753
(1999).
54
In re Interest of L.V., supra note 52, 240 Neb. at 420, 482 N.W.2d at 260-
61. See, also, In Interest of M.L.K., 804 S.W.2d 398 (Mo. App. 1991); In
re Juvenile Appeal (84-6), 2 Conn. App. 705, 483 A.2d 1101 (1984); In re
Pawling, 101 Wash. 2d 392, 679 P.2d 916 (1984); Matter of Adoption of
Doe, 99 N.M. 278, 657 P.2d 134 (N.M. App. 1982); In re Brannon, 340
So. 2d 654 (La. App. 1976); In re Welfare of Staat, 287 Minn. 501, 178
N.W.2d 709 (1970).
55
See In re Interest of Kalie W., supra note 53.
56
In re Interest of L.V., supra note 52.
57
In re Interest of M.L.B., 221 Neb. 396, 337 N.W.2d 521 (1985).
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to 10 days. While Tyler did sometimes have visitation with
Micah, those visits were by court order and were supervised.
There is no indication from the record that Tyler ever sought
unsupervised or increased visitation. Moreover, Tyler never
had custody of Micah and there is no evidence that Tyler ever
sought custody. Finally, the record demonstrates that the last
face-to-face contact between Tyler and Micah was May 8,
2011. Tyler never requested that Micah visit the prison where
he has resided since 2012, and will remain until 2019 at which
time he will be eligible for parole.
As stated above, the court can look beyond the 6 months
immediately preceding Linda and Daniel’s filing in order to
determine whether Tyler had abandoned Micah. In consider-
ing Tyler’s actions prior to his incarceration, it is clear that he
had ceased visiting Micah in May 2011. Tyler has never paid
child support and instead relied on the generosity of his mother
in order to meet his obligations. In addition, Tyler began cor-
responding with Micah only upon Tyler’s incarceration. Tyler
refuses to acknowledge or seek treatment for his substance
abuse problems, despite the fact that treatment is available to
him in prison.
The trial court concluded that “[w]hen [Tyler] was at liberty
he . . . never sought to enforce any visitation with [Micah].
During that period he deliberately withheld from [Micah] nor-
mal parental care . . . associated with [a] normal parent-child
relationship.”
We observe the evidence at trial indicated that Tyler had
sent letters, drawings, and puzzles to Micah, thus making some
attempt to maintain contact with him. However, as this court
has noted, where there has been a protracted period of totally
unjustified failure to exercise parental functions, an isolated
contact or expression of interest does not necessarily negate
the inference that a person no longer wishes to act in the role
of parent to a child.58
58
In re Adoption of Simonton, supra note 45. See, also, Matter of Thomas F.
L., 87 Misc. 2d 744, 386 N.Y.S.2d 726 (1976).
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These facts, coupled with the fact that Tyler will remain
incarcerated for the next 1 to 3 years, gives significant
weight to a finding of abandonment under our precedent.59
As we have stated, “‘“[W]e will not gamble with [a] child’s
future; [a child] cannot be made to await uncertain parental
maturity.”’”60
There is no merit to Tyler’s second assignment of error.
Micah’s Best Interests.
In his third assignment of error, Tyler contends that the
court erred in finding that adoption by Linda and Daniel was in
Micah’s best interests.
[27] The policy behind ICWA was to further the nation’s
interest in protecting the best interests of Indian children
and to promote the stability and security of Indian tribes
and families by establishing minimum federal standards.61
In determining the best interests of the child, NICWA at
§ 43-1503 states:
(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, cul-
tural, and social relationship with the Indian child’s tribe
or tribes and tribal community.
59
See, generally, In Interest of L.V., supra note 52.
60
See In re Interest of M.L.B., supra note 57, 221 Neb. at 397, 337 N.W.2d
at 522.
61
See 25 U.S.C. § 1902.
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Here, in complying with NICWA, Linda and Daniel served the
Oglala Sioux Tribe with notice of their petition. The tribe sub-
sequently declined to intervene in the matter.
As noted in the record, Tyler is a non-Indian. The only evi-
dence of Tyler’s efforts to promote Micah’s Native American
heritage is his own testimony that he has taken Micah to
tribal events. Conversely, Linda and Daniel raised Allison, a
member of the Oglala Sioux Tribe, since the age of 4. Linda
and Daniel raised Allison to know of her Native American
heritage, to be familiar with Native American artifacts, and to
read about Native American culture using books that are kept
in their home.
The record demonstrates that Linda and Daniel have made
efforts to expose Micah to his Native American heritage
through reading books, attending tribal events, and keeping
Native American artifacts in the home. Additionally, Allison, a
member of the Oglala Sioux Tribe, continues to interact with
Micah at Linda and Daniel’s home.
It appears clear from the record that Linda and Daniel took
measures to facilitate and encourage appropriate interactions
between Tyler and Micah. Linda and Daniel used active efforts
to provide and promote appropriate visitation by assisting in
the implementation of a parenting plan. Upon noticing cer-
tain anxious and inappropriate behaviors displayed by Micah,
Linda and Daniel, along with Allison, sought professional
assistance in addition to clarification of the parenting plan and
visitation to ensure a safe environment.
Micah has lived with Linda and Daniel for the majority
of his life, and they have been his only source of stabil-
ity. The guardian ad litem independently testified that in his
opinion, based upon his own independent investigation, the
adoption of Micah by Linda and Daniel was in Micah’s best
interests.
Based on the foregoing, we agree that adoption by Linda
and Daniel is in Micah’s best interests. We accordingly find
Tyler’s third assignment of error to be without merit.
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Tyler’s Due Process Rights.
In his fourth assignment of error, Tyler argues that the trial
court failed to allow him to participate in the adoption pro-
ceeding, specifically concerning the determination of the best
interests of Micah. Tyler bases his argument on the proposi-
tion that despite a finding of abandonment, a parent retains
parental rights until the final judgment concerning the petition
for adoption.
[28] It is a well-established maxim of constitutional law
that “the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.”62
[29-31] Tyler properly contends that in In re Adoption of
Madysen S. et al.,63 we held that parental rights are not termi-
nated by an order deciding the limited issue of abandonment.
Despite a finding of abandonment, the parent retains parental
rights until the final judgment denying or granting the peti-
tion for adoption, and the parent may still participate in the
proceedings to present evidence that adoption is not in the
child’s best interests.64 Ultimately, if the county court finds that
adoption is not in the child’s best interests, then the rights of
the parent, who was deemed to have abandoned the child, are
returned to the status quo.65 However, we have also stated that
abandonment, for purposes of adoption, is not always deter-
mined in proceedings separate from the underlying adoption,
because nothing in the adoption statutes absolutely requires
bifurcated proceedings.66
Here, Tyler challenges that his understanding was that the
hearing was bifurcated. Tyler fails to provide any evidence in
62
See Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000).
63
In re Adoption of Madysen S. et al., supra note 7.
64
Id.
65
Id.
66
Id.
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the record that bifurcation was requested or ordered. In dis-
cussing preliminary matters, the court stated that it was aware
that “these kinds of cases” have two procedural stages, and
then indicated that the guardian ad litem had been warned that
he may be called when the court reached the end of the case
“for his comments on the adoption portion of it.” Further, at
the conclusion of the trial, the lower court judge was quite
clear in stating, “I am not turning this case over to some other
judge to read the record and come to a conclusion. I am the one
that’s heard all the live evidence.” The judge further stated that
“[i]t would be unfair to a colleague and really unfair to all of
the litigants because . . . those observations are important in the
context of the whole case.” (Emphasis supplied.) Counsel made
no objection at this point, despite being given the opportunity
to do so.
Notwithstanding this apparent claim of unfair surprise, Tyler
was not prejudiced, because he was given a full and fair oppor-
tunity to call witnesses at the hearing and was able to cross-
examine witnesses, specifically the guardian ad litem. While
Tyler now argues that he was not aware that the hearing was
not bifurcated, that fact was stated at the hearing and Tyler did
not object, otherwise seek to offer additional evidence, or ask
for a continuance.
We therefore find Tyler’s fourth assignment of error to be
without merit.
Noncompliance With Statutory Requirements.
Tyler’s final assignment of error is that the trial court erred
in not strictly adhering to the requirements of Neb. Rev. Stat.
§§ 43-107 to 43-109 (Reissue 2016).
Section 43-107(b)(i) provides that “[f]or adoption place-
ments occurring on or after January 1, 1994, a preplacement
adoptive home study shall be filed with the court prior to the
hearing [on the petition for adoption].” Additionally, anyone
seeking to adopt a child in the State of Nebraska must sub-
mit to a criminal history check conducted by the Nebraska
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State Patrol. And § 43-108 holds that “[t]he minor child to
be adopted, unless such child is over fourteen years of age,
and the person or persons desiring to adopt the child must
appear in person before the judge at the time of hearing . . . .”
(Emphasis supplied.)
Finally, § 43-109(1) states in relevant part that the child
must reside with the petitioners for at least 6 months preceding
the adoption hearing. The statute further provides that “[n]o
decree of adoption shall be entered unless . . . (b) the medi-
cal histories required by subsection (2) of section 43-107 have
been made a part of the court record, [and] (c) the court record
includes an affidavit or affidavits signed by the relinquishing
biological parent . . . .”67
We turn first to § 43-107. Linda and Daniel argue that the
trial court waived the home study pursuant to their discretion
under § 43-107(b)(ii), noting that Micah has resided with them
for the majority of his life and, further, that Linda and Daniel
are his current legal guardians. This argument misinterprets
the plain meaning of § 43-107(b)(ii), which states:
An adoptive home study shall not be required when the
petitioner is a stepparent of the adoptee unless required
by the court. An adoptive home study may be waived
by the court upon a showing of good cause by the peti-
tioner when the petitioner is a biological grandparent
or a step-grandparent who is married to the biological
grandparent at the time of the adoption if both are adopt-
ing the child.
(Emphasis supplied.)
The Legislature, in enacting § 43-107(b)(ii), limited the
courts’ discretion to a clearly defined list of petitioners which
includes biological grandparents, but is silent as to adoptive
grandparents. We note that the Legislature defined “grandpar-
ent” in Neb. Rev. Stat. § 43-1801 (Reissue 2016) to include
both biological and adoptive grandparents, but limited its
67
See § 43-109(1).
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definition of grandparent to § 43-1801 and Neb. Rev. Stat.
§§ 43-1802 and 43-1803 (Reissue 2016). Therefore, we must
conclude that the Legislature intentionally excluded adoptive
grandparents from the waiver permitted under § 43-107(b)(ii).
Linda and Daniel contend that the trial court relied on the
criminal history check done when Linda and Daniel became
Micah’s legal guardians in 2012 and that in so relying, Linda
and Daniel had complied with § 43-107. The record indicates
that during the guardianship proceedings, the criminal history
check was waived pursuant to Neb. Rev. Stat. § 30-2602.02
(Reissue 2016), but does not provide any information concern-
ing the required criminal history check.
We next address § 43-108, which requires Micah’s pres-
ence at the time of the adoption hearing. Micah was present
during some of the proceedings below; however, it does not
appear from the record that Micah was present at the adop-
tion hearing.
Finally, Linda and Daniel counter that the information
required under § 43-109 was met by the fact that Micah has
resided with them for more than 6 months preceding the adop-
tion petition and that the medical records were provided in the
May 12, 2015, adoption proceeding. But the medical records
do not appear to be included in the record as argued by Linda
and Daniel.
As to § 43-109(c), a document relinquishing her parental
rights was signed by Allison and the county court judge on
June 3, 2015. The document appears in the record and operates
as a valid and effective relinquishment of all parental rights.
Based on the above discussion, we find that Tyler’s fifth
assignment of error has merit, as the county court failed to
strictly comply with the statutory requirements.
CONCLUSION
The county court did not err in finding by clear and con-
vincing evidence that Linda and Daniel made active efforts
to reunite Micah with Tyler, in finding that Tyler abandoned
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Micah for at least 6 months prior to his incarceration, and in
finding that adoption was in Micah’s best interests. But the
county court erred when it failed to comply with §§ 43-107 to
43-109 when granting the adoption.
We therefore affirm the county court’s finding of active
efforts, abandonment, and best interests of the child. However,
we vacate the decree of adoption and remand the cause to
the county court. On remand, the county court shall provide
Linda and Daniel the opportunity to comply with §§ 43-107
to 43-109. The county court shall make the ultimate determi-
nation of compliance with §§ 43-107 to 43-109 and proceed
accordingly. If the county court proceeds to enter a decree of
adoption, the county court shall be bound by this court’s deter-
minations in regard to active efforts, abandonment, and best
interests of the child factors already litigated.
A ffirmed in part, and in part vacated
and remanded with directions.