In re Interest of Mischa S. ( 2014 )

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 105
Cite as 22 Neb. Ct. App. 105
In re I nterest of
Mischa S., a child
18 years of age.
under
State of Nebraska, appellee, v. Deanna R.
and Chris S., appellants.
___ N.W.2d ___
Filed June 24, 2014. No. A-13-265.
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. Moot Question. A case becomes moot when the issues initially presented in
litigation cease to exist or the litigants lack a legally cognizable interest in the
litigation’s outcome.
3. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
4. Moot Question: Appeal and Error. Under the public interest exception to the
mootness doctrine, an appellate court may review an otherwise moot case if it
involves a matter affecting the public interest or when other rights or liabilities
may be affected by its determination.
5. ____: ____. When determining whether a case involves a matter of public inter-
est, an appellate court considers (1) the public or private nature of the question
presented, (2) the desirability of an authoritative adjudication for future guidance
of public officials, and (3) the likelihood of future recurrence of the same or a
similar problem.
6. Constitutional Law: Courts: Jurisdiction: Statutes. The Nebraska Court of
Appeals cannot determine the constitutionality of a statute, yet when necessary
to a decision in the case before it, the court does have jurisdiction to determine
whether a constitutional question has been properly raised.
7. Juvenile Courts: Evidence: Proof. Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2008) requires that the State prove the allegations set forth in the adjudication
petition by a preponderance of the evidence in cases involving both non-Indian
and Indian children.
8. ____: ____: ____. In adjudication cases, the standard of proof for the active
efforts element in Neb. Rev. Stat. § 43-1505(4) (Reissue 2008) is proof by a
preponderance of the evidence.
9. Indian Child Welfare Act: Evidence: Appeal and Error. In a foster care place-
ment determination involving an Indian child, the failure to make findings under
Neb. Rev. Stat. § 43-1505(4) (Reissue 2008) is harmless error where a de novo
review indicates that evidence supports these findings.
10. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Decisions of the Nebraska Court of Appeals
106 22 NEBRASKA APPELLATE REPORTS
Appeal from the County Court for Buffalo County: Graten
D. Beavers, Judge. Reversed and remanded for further
proceedings.
Mitchel L. Greenwall, of Greenwall, Bruner & Frank,
L.L.C., for appellants.
Mandi J. Amy, Deputy Buffalo County Attorney, for
appellee.
Mindy L. Lester, of Ross, Schroeder & George, L.L.C.,
guardian ad litem.
Inbody, Chief Judge, and Moore and Pirtle, Judges.
Moore, Judge.
INTRODUCTION
Deanna R. and Chris S. appeal from the order of the county
court for Buffalo County, sitting as a juvenile court, which
ordered the removal of their daughter Mischa S. from the
family home. Because we find that the juvenile court erred in
finding that serious emotional damage would result if Mischa
is not removed from the home, we reverse, and remand for
further proceedings.
PROCEDURAL BACKGROUND
Deanna and Chris are the parents of Mischa, born in 1998,
and six additional younger children. Deanna is a member of the
Oglala Sioux Tribe. She has not enrolled her children, but does
know how to do this, and she has indicated that her children
will qualify for affiliation. Deanna reports that the family has
never lived on the reservation, that she was raised Catholic,
and that they periodically visit the reservation.
On January 3, 2012, the State filed a petition in the juvenile
court, alleging that Mischa was a child under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008) by reason of her parents’ hav-
ing allowed her and her siblings to have excessive absences
and tardies at school over the previous 4 years, jeopardizing
Mischa’s education and well-being.
The parents entered a no contest admission to the petition,
and Mischa was adjudicated on May 8, 2012. She was allowed
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 107
Cite as 22 Neb. Ct. App. 105
to remain at home with her parents under the supervision of
the Nebraska Department of Health and Human Services (the
Department). The permanency plan has been family preserva-
tion. On November 27, the case plan was modified to provide
counseling for Mischa.
On January 24, 2013, the guardian ad litem (GAL) filed
a motion to remove Mischa from her home due to continued
school absences and a failure to participate in counseling as
ordered by the court. A hearing was held on February 1, but
because there was some question as to whether the tribe had
been given proper notice, the hearing on the GAL’s motion
was continued until February 25, the date of a previously
scheduled review hearing. In a journal entry following the
February 1 hearing, the juvenile court found that Mischa
had continued to incur absences from school and specifically
ordered Deanna and Chris to take Mischa to school. The court
noted that it had advised Deanna and Chris that they would
be subject to actions for contempt if Mischa missed any addi-
tional school between February 1 and the hearing scheduled
for February 25. The court also noted that Deanna and Chris
had advised the court that they were considering an alterna-
tive education program for Mischa. The court found that
they could continue to pursue alternatives, but that Mischa
must attend school until an alternative education plan was
created and such plan was determined to be in her best inter-
ests. On February 5, the GAL refiled her motion to remove
Mischa from the home and notice was provided to all neces-
sary parties.
On February 25, 2013, the juvenile court held a review
hearing and heard the GAL’s motion to remove Mischa from
the family home. The court heard testimony from witnesses
and received into evidence various exhibits, including a case
plan and progress report dated February 15, a written report
from the GAL, and documentation from the school concerning
Mischa’s absences and tardies.
Melissa Herrmann, the dean of students at the high school
where Mischa is a freshman, testified concerning Mischa’s
school attendance. Mischa missed school from the third day of
the school year through Halloween 2012. After she returned,
Decisions of the Nebraska Court of Appeals
108 22 NEBRASKA APPELLATE REPORTS
her attendance improved, and Mischa attended school approx-
imately 2 or 3 days a week for a couple of weeks. In that
time, she was able to salvage some of her credits, earning a
credit in her geography class and her “foods” class. Around
Thanksgiving or early December, her attendance began to
drop again. Mischa’s attendance did improve somewhat
after February 1, 2013. On the first day of school after the
February 1 hearing, she missed over half of the day. Between
February 1 and 25, Mischa was tardy eight times and absent
three times.
As of February 25, 2013, Mischa had missed each of her
classes between 60 and 80 times and was significantly behind
in her credits for the school year. During this time, her family
requested homework for her only twice and Mischa never once
returned any homework to the attendance office. Herrmann
testified that to stay on track for graduation, a student needed
70 to 80 credits at the end of the freshman year and should
have 35 to 40 credits at the end of the first semester. As of
the February 25 hearing, Mischa had only 11 credits and was
failing all of her classes for the third-quarter term. Herrmann
testified that unless Mischa was able to bring up her grades,
she would end the third quarter with only 11 credits, when she
should have about 60 by that point. Herrmann testified that
unless Mischa participated in some extensive summer school-
ing and online courses to supplement normal coursework, it
would be virtually impossible for her to graduate in 4 years at
that point in time.
The school has engaged in efforts to get Mischa to attend,
including attempting to rearrange her class schedule, offer-
ing alternative education, and even considering the possibil-
ity of attending school for half days rather than full days.
Herrmann testified that “whenever the school has made an
attempt to make a concession or to try to get her to come so
that we can keep her on track, it always seems to be some-
thing else that comes up that prevents her.” Excuses given for
Mischa’s absences have included things such as car troubles,
oversleeping, medical appointments, broken glasses, not hav-
ing the right book or colored pencils for her art class, and
not liking her algebra classroom due to a lack of windows.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 109
Cite as 22 Neb. Ct. App. 105
Herrmann testified that it had been extremely difficult to
identify and meet Mischa’s needs because the school was
being provided with lots of different reasons for her lack of
attend­ nce. Herrmann had spoken with Mischa the morning of
a
the February 25, 2013, hearing about the family’s application
to do home schooling. Mischa informed Herrmann that she
thought Deanna had filed the paperwork to begin home school-
ing. Herrmann had also spoken with Mischa’s guidance coun-
selor, who confirmed Mischa’s impression, but also expressed
concern about whether Deanna had an acceptable curriculum
to follow for home schooling.
Herrmann has an undergraduate degree in “7-12 educa-
tion,” has taken college counseling courses, and has a mas-
ter’s degree in educational administration. Her duties at the
school include everything from disciplining students and mon-
itoring attendance to evaluating teachers. Herrmann testified
regarding whether her education and training had given her
the knowledge and experience to identify students struggling
emotionally in school. Herrmann testified that a large por-
tion of her day is spent identifying students who are at risk
because of things such as attendance or inability to succeed in
school for whatever reason. Part of her job as an administra-
tor is to work with those students and their parents, teachers,
and counselors as a team to ensure successful graduation from
high school.
Collin Baer, a caseworker with the Department, was assigned
to the case in November 2012. Baer has provided regular
case management and family support services. He has been
employed by the Department as a children and family services
specialist since July 2012.
Baer testified that family support providers had been going
into the home to help the family get ready for school in the
morning, keeping track of activities, and then working directly
with the schools to keep track of performance and attendance.
Family support providers had been going to the home four
times a week since the beginning of December 2012 to help
with morning routines. Baer noted that there had been some
improvement with attendance and tardiness issues correspond-
ing with the provision of family support services. However,
Decisions of the Nebraska Court of Appeals
110 22 NEBRASKA APPELLATE REPORTS
Baer testified that there had been issues with Mischa “getting
from the car to the school.” Since the beginning of February
2013, the family support worker had been meeting Mischa and
Deanna at the school to make sure that Mischa actually arrived,
got out of the car, and went into the school. The Department
added this service after attendance issues began recurring in
January 2013. When the motion for removal was first filed,
Baer met with both Mischa and Deanna to discuss what was
preventing Mischa from being motivated to go to school. Even
when he met privately with Mischa, she provided nothing to
indicate what was going on. Baer doubted Mischa would be at
school very much, if at all, absent the services being provided
by the Department.
Mischa was ordered to attend counseling in November 2012.
She went to one appointment that fall and then did not engage
in counseling again until late January 2013, at which point
the motion for removal had already been filed. At the time of
the hearing, the Department had been working with Mischa’s
counselor, keeping in touch with respect to attendance at coun-
seling sessions and progress made in counseling. For a few
weeks prior to the February 25 hearing, family support provid-
ers had been responsible for transporting Mischa to counseling
on Monday afternoons directly after school. As of the date of
the hearing, Mischa had attended two counseling sessions with
her current counselor.
As part of Baer’s training with the Department, he was
trained in ways to determine whether children are abused or
neglected and to watch for indicators of emotional and physical
well-being. Although his training does not give him “expertise
in the field,” it allows him to identify when referral to coun-
selors and other experts is necessary. Baer testified that he was
not qualified to diagnose, which was why he referred Mischa
for counseling.
Baer testified that the Department had made active efforts
to prevent Mischa’s removal from the home. Baer testified that
removal was in Mischa’s best interests, not for safety reasons,
but because the Department was struggling to come up with
other ways to address the issue and actually get Mischa to
school. Baer testified that he did not feel that Mischa would
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 111
Cite as 22 Neb. Ct. App. 105
suffer serious physical harm if she remained in the family
home, but he did not know whether Mischa would suffer seri-
ous emotional damage or other damage if allowed to stay in
the home. Baer indicated that the only benefit in removing
Mischa would be to ensure that she gets to school and that her
educational needs are being met.
In her report, the GAL observed that the family provided a
new excuse for Mischa’s lack of attendance each time it was
discussed. She reported that at the February 1, 2013, hearing,
Deanna asserted that Mischa was struggling in school due to
“cultural” issues as well as “mental health problems.” The
GAL expressed her belief that these reasons were “largely
excuses as well.” The GAL stated:
I have spoken with these children on numerous occasions,
Mischa and [her sister] in particular are adamant that they
like their schools and have friends there that they don’t
want to leave. They have never, on any occasion, cited
difficulty fitting in culturally, even when directly asked
about such matters. Teachers and counselors report that
[they] have seen no signs of bullying, or the like, toward
any of the . . . children [in the family]. I do not believe
there is a genuine culture issue with this family.
With respect to home schooling for Mischa, the GAL reported
that Deanna intended to do so only until the end of the school
year and that Mischa wanted to finish the current year at home
and return to school the following year.
After the GAL finished presenting evidence in support of the
motion, Deanna and Chris’ attorney asked the court to dismiss
the motion and the juvenile court denied the request.
On February 26, 2013, the juvenile court ordered Mischa
to be placed into foster care and the case plan was modified
to allow for liberal visitation of Mischa with her family. In
reaching this decision, the court noted the parents’ argument
that Neb. Rev. Stat. § 43-1505(5) (Reissue 2008) provides
that foster care placement may not be ordered in the absence
of a determination by clear and convincing evidence includ-
ing testimony of qualified expert witnesses that continued
custody by the parent or Indian custodian is likely to result
in serious emotional and physical damage to the child. The
Decisions of the Nebraska Court of Appeals
112 22 NEBRASKA APPELLATE REPORTS
court found that serious emotional damage would result to
Mischa as a result of insufficient education. The court found,
however, that even in the absence of such proof, the statute
is unconstitutional as applied in this case, stating that “Indian
children are entitled to no less educational opportunity than
other children and accordingly, as applied in this particular
case, such statute is unconstitutional to the extent that it would
deny Mischa educational opportunity even in the absence of
serious emotional and physical damage . . . .” The order was
silent on whether active efforts had been provided to prevent
the breakup of this family. Deanna and Chris subsequently
perfected their appeal to this court.
ASSIGNMENTS OF ERROR
Deanna and Chris assert, renumbered, that the juvenile court
erred in (1) finding that there was sufficient expert witness
testimony presented under § 43-1505(5), (2) determining that
§ 43-1505(5) was unconstitutional as applied in this matter,
(3) failing to find that active efforts had been made under
§ 43-1505(4), and (4) denying their motion to dismiss at the
close of evidence.
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. In re Interest of Danaisha W., 287 Neb.
27, 840 N.W.2d 533 (2013).
ANALYSIS
Mootness.
[2-5] Before turning our attention to the merits of Deanna
and Chris’ arguments, we must first address the contention in
the joint brief from the State and the GAL that the issue of
Mischa’s removal from the family home is moot. The State
and the GAL assert that Mischa was returned to her home
on May 10, 2013, and that thus, the appeal from the removal
order is moot. A case becomes moot when the issues initially
presented in litigation cease to exist or the litigants lack a
legally cognizable interest in the litigation’s outcome. In re
Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 113
Cite as 22 Neb. Ct. App. 105
Although mootness does not prevent appellate jurisdiction, it
is a justiciability doctrine that can prevent courts from exercis-
ing jurisdiction. Id. Under the public interest exception to the
mootness doctrine, an appellate court may review an otherwise
moot case if it involves a matter affecting the public interest or
when other rights or liabilities may be affected by its determi-
nation. Id. When determining whether a case involves a matter
of public interest, an appellate court considers (1) the public or
private nature of the question presented, (2) the desirability of
an authoritative adjudication for future guidance of public offi-
cials, and (3) the likelihood of future recurrence of the same or
a similar problem. Id.
There is no evidence in the record that Mischa has been
returned to her home, and even if she has, the application of
the Indian Child Welfare Act (ICWA) will continue to be an
issue in any further proceedings. As long as Mischa remains
under the jurisdiction of the juvenile court, the requirement of
findings under § 43-1505 regarding serious emotional or physi-
cal damage and the Department’s provision of active efforts
to prevent the breakup of the Indian family may recur in the
future in this case. In addition, guidance on the determination
of what constitutes as qualified expert witness testimony and
the burden of proving active efforts in ICWA cases would be
helpful and causes these issues to be matters of public inter-
est. Thus, we conclude that even if the issues in this appeal
are moot, which we need not decide, they should be reviewed.
Accordingly, we proceed to address Deanna and Chris’ assign-
ments of error.
Expert Testimony.
Deanna and Chris assert that the juvenile court erred in find-
ing that there was sufficient expert witness testimony presented
under § 43-1505(5). Section 43-1505(5) provides:
No foster care placement may be ordered in such proceed-
ing in the absence of a determination, supported by clear
and convincing evidence, including testimony of qualified
expert witnesses, that the continued custody of the child
by the parent or Indian custodian is likely to result in seri-
ous emotional or physical damage to the child.
Decisions of the Nebraska Court of Appeals
114 22 NEBRASKA APPELLATE REPORTS
The Nebraska Supreme Court has recognized the existence
of guidelines to assist courts in determining whether a witness
qualifies as an expert with respect to ICWA. In In re Interest of
C.W. et al., 239 Neb. 817, 824, 479 N.W.2d 105, 111 (1992),
overruled on other grounds, In re Interest of Zylena R., 284
Neb. 834, 825 N.W.2d 173 (2012), the court noted that the
Bureau of Indian Affairs had set forth the following guidelines
under which expert witnesses will most likely meet the require-
ments of ICWA:
“(i) A member of the Indian child’s tribe who is rec-
ognized by the tribal community as knowledgeable in
tribal customs as they pertain to family organization and
childrearing practices.
“(ii) A lay expert witness having substantial experience
in the delivery of child and family services to Indians,
and extensive knowledge of prevailing social and cul-
tural standards in childrearing practices within the Indian
child’s tribe.
“(iii) A professional person having substantial educa-
tion and experience in the area of his or her specialty.”
Deanna and Chris argue that Baer was not a qualified
expert under ICWA. Clearly, there was no evidence that he
was a member of the tribe or that he had substantial experi-
ence in the delivery of child and family services to Indians.
Baer had less than a year of experience in his position with the
Department, and there was no testimony about his educational
background or any experience he may have had involving
Indian children and families. Although Baer was trained in
ways to recognize signs of abuse and neglect, including indi-
cators of emotional and physical well-being, he was admit-
tedly not qualified to determine whether serious emotional
damage would result if a child is allowed to remain in the
family home. See In re Interest of Shayla H. et al., 17 Neb.
App. 436, 764 N.W.2d 119 (2009) (Department caseworker
with 11 years of experience deemed not qualified expert wit-
ness for purposes of ICWA). Even if Baer were qualified as
an expert witness, he testified that he did not believe there
was a risk of physical harm to Mischa and that he did not
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 115
Cite as 22 Neb. Ct. App. 105
know whether Mischa would suffer emotional damage if left
in the home.
Likewise, while Herrmann had substantial education in the
area of her specialty of education and administration, she did
not establish that she has substantial education and experience
which qualifies her to recognize serious emotional damage in
a child. Herrmann testified that Mischa is at risk of failing at
school due to her attendance problems, but Herrmann did not
testify that Mischa will suffer serious emotional damage if she
remains in the family home.
Because there was not clear and convincing evidence,
including testimony of qualified expert witnesses that con-
tinued custody of Mischa by her parents is likely to result in
serious emotional damage, the juvenile court erred in finding
evidence of emotional damage.
Constitutionality of § 43-1505(5).
[6] Deanna and Chris assert that the juvenile court erred in
determining that § 43-1505(5) was unconstitutional as applied
in this matter. The Nebraska Court of Appeals cannot deter-
mine the constitutionality of a statute, yet when necessary to a
decision in the case before it, the court does have jurisdiction
to determine whether a constitutional question has been prop-
erly raised. Clark v. Tyrrell, 16 Neb. Ct. App. 692, 750 N.W.2d 364
(2008). The question in this case is whether the juvenile court
had authority, sua sponte, to determine that § 43-1505(5) was
unconstitutional in this case.
In Sarpy Cty. Farm Bureau v. Learning Community, 283
Neb. 212, 808 N.W.2d 598 (2012), taxpayers sought a dec-
laration that a levy made and distributed pursuant to certain
statutes was unconstitutional. The trial court made this determi-
nation, and although not requested to do so, it also determined
that certain other statutes were unconstitutional. On appeal, the
Nebraska Supreme Court considered whether the trial court
erred in making this sua sponte determination. The Supreme
Court stated:
The constitutionality of these statutes was not raised in
the complaint. A pleading serves to guide the parties and
Decisions of the Nebraska Court of Appeals
116 22 NEBRASKA APPELLATE REPORTS
the court in the conduct of cases, and thus the issues in
a given case are limited to those which are pled. A sua
sponte determination by a court of a question not raised
by the parties may violate due process.
Sarpy Cty. Farm Bureau v. Learning Community, 283 Neb.
at 221, 808 N.W.2d at 607. The Supreme Court held that the
trial court’s sua sponte determination was void and limited
its analysis to the constitutionality of the statutes raised in
the pleadings.
We likewise conclude that the juvenile court was without
authority to determine that § 43-1505(5) was unconstitutional
as applied in this matter. The constitutionality of § 43-1505(5)
was not raised in the GAL’s motion or in any other plead-
ing, nor was it presented to the court during the course of the
removal hearing. The juvenile court’s sua sponte determination
that § 43-1505(5) was unconstitutional as applied in this case
was void.
Active Efforts.
Deanna and Chris also assert that the juvenile court erred
in failing to find that active efforts had been made under
§ 43-1505(4). Section 43-1505(4) 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.
Referring to the Nebraska Administrative Code, the Nebraska
Supreme Court has stated: “[T]he ‘active efforts’ standard
requires more than the ‘reasonable efforts’ standard that applies
in non-ICWA cases. And at least some efforts should be ‘cul-
turally relevant.’ Even with these guidelines, there is no precise
formula for ‘active efforts.’ Instead, the standard requires a
case-by-case analysis.” In re Interest of Walter W., 274 Neb.
859, 865, 744 N.W.2d 55, 61 (2008).
[7,8] Before addressing the merits of Deanna and Chris’
argument, we first discuss the standard of proof for active
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 117
Cite as 22 Neb. Ct. App. 105
efforts in ICWA adjudication cases. Section 43-247(3)(a)
requires that the State prove the allegations set forth in the
adjudication petition by a preponderance of the evidence in
cases involving both non-Indian and Indian children. In re
Interest of Emma J., 18 Neb. Ct. App. 389, 782 N.W.2d 330
(2010). With respect to the requirements found in § 43-1505
for adjudicating Indian children, § 43-1505(5) requires that
no foster care placement may be ordered without “clear and
convincing” evidence of “serious emotional or physical dam-
age.” In contrast, § 43-1505(4) does not contain a particular
standard for proving active efforts. In In re Interest of Walter
W., supra, the Nebraska Supreme Court declined to impose
a higher standard for active efforts in ICWA termination of
parental rights cases than that required under Neb. Rev. Stat.
§ 43-292 (Reissue 2008). The Supreme Court discussed the
federal ICWA statute, stating:
Congress did not intend in 25 U.S.C. § 1912 to cre-
ate a wholesale substitution of state juvenile proceed-
ings for Indian children. Instead, in § 1912, Congress
created additional elements that must be satisfied for
some actions but did not require a uniform standard of
proof for the separate elements. As discussed, Congress
imposed a “beyond a reasonable doubt” standard for
the “serious emotional or physical damage” element
in parental rights termination cases under § 1912(f).
Congress also imposed a “clear and convincing” standard
of proof for the “serious emotional or physical damage”
element in foster care placements under § 1912(e). The
specified standards of proof in subsections § 1912(e) and
(f) illustrate that if Congress had intended to impose a
heightened standard of proof for the active efforts ele-
ment in § 1912(d), it would have done so. Because it did
not impose a heightened standard of proof, we decline
to interpret § 1912(d)—and its Nebraska counterpart,
§ 43-1505(4)—as requiring the State to prove active
efforts beyond a reasonable doubt. Instead, we conclude
that the element requires proof by clear and convinc-
ing evidence in parental rights termination cases—the
Decisions of the Nebraska Court of Appeals
118 22 NEBRASKA APPELLATE REPORTS
standard required for terminating parental rights under
Nebraska law.
In re Interest of Walter W., 274 Neb. at 864-65, 744 N.W.2d at
60-61. We apply that same reasoning here and likewise decline
to impose a higher standard for the active efforts element in
adjudication cases. We conclude that in adjudication cases, the
standard of proof for the active efforts element in § 43-1505(4)
is proof by a preponderance of the evidence.
[9] The order of removal entered by the juvenile court did
not include an express finding that active efforts have been
made to prevent the breakup of this family. However, the
court’s failure to make such an express finding is not fatal. In a
foster care placement determination involving an Indian child,
the failure to make findings under § 43-1505(4) is harmless
error where a de novo review indicates that evidence supports
these findings. See In re Interest of Enrique P. et al., 14 Neb.
App. 453, 709 N.W.2d 676 (2006).
In our de novo review of the record concerning the active
efforts requirement, we note that Baer testified that the
Department had made active efforts to prevent removal in this
case, which efforts included helping the family get ready in the
morning, meeting Mischa and Deanna at school, and escorting
Mischa into the school if needed. The school was also working
with the family to improve Mischa’s attendance. In addition,
the Department had set up counseling for Mischa to attempt
to resolve the school problem. Baer testified that there was
nothing else that could be done at that point except removal
of Mischa from the home to attempt to correct the attendance
and education problems. We agree that these efforts had been
unsuccessful to resolve the education problems at the time of
the hearing. On the other hand, there was evidence that the
family was looking into home schooling for Mischa, which
option had not been thoroughly explored at the time of the
removal hearing.
We conclude there was a preponderance of evidence that
the Department had made active efforts to provide remedial
services to the family to ensure school attendance by Mischa
but that such efforts had proved unsuccessful as of the time of
the hearing.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MISCHA S. 119
Cite as 22 Neb. Ct. App. 105
Motion to Dismiss.
[10] Deanna and Chris assert that the juvenile court erred
in denying their motion to dismiss at the close of evidence.
Because we are reversing the order of removal by the juvenile
court due to insufficient evidence of serious emotional dam-
age, we need not address this assignment of error. An appellate
court is not obligated to engage in an analysis that is not neces-
sary to adjudicate the case and controversy before it. Carey v.
City of Hastings, 287 Neb. 1, 840 N.W.2d 868 (2013).
CONCLUSION
The juvenile court’s sua sponte determination that
§ 43-1505(5) was unconstitutional as applied in this case
was void. The court’s failure to make an express finding
with respect to active efforts is not fatal because in our de
novo review, we find a preponderance of evidence that the
Department had made active efforts which had proved unsuc-
cessful as of the time of the hearing. However, the juvenile
court erred in finding evidence of emotional damage under
§ 43-1505(5). Accordingly, we reverse, and remand for fur-
ther proceedings.
R eversed and remanded for
further proceedings.