In re Guardianship of Eliza W.

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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
In re Guardianship of Eliza W.,
a minor child.
Susan W., appellee, v.
Tara W., appellant.
___ N.W.2d ___
Filed February 7, 2020. No. S-18-1141.
1. Guardians and Conservators: Judgments: Appeal and Error.
Appeals of matters arising under the Nebraska Probate Code, Neb. Rev.
Stat. §§ 30-2201 through 30-2902 (Reissue 2016 & Cum. Supp. 2018),
are reviewed for error on the record. When reviewing a judgment for
errors on the record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable.
2. Judgments: Appeal and Error. An appellate court, in reviewing a
judgment for errors on the record, will not substitute its factual find-
ings for those of the lower court where competent evidence supports
those findings.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
4. Statutes: Intent. When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language, understood
in context.
5. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
6. Statutes: Legislature: Intent. While policy statements or statutory
preambles may be used, if needed, for assisting in interpreting the
legislative intent for the specific act of which the statement is a part,
it is generally recognized that such a provision cannot restrict or
expand the meaning of the operative portions of a statute if they are
unambiguous.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
7. ____: ____: ____. Statutory policy statements and preambles cannot be
used to arrive at an interpretation that would give words and phrases
of the operative text itself a meaning that they cannot bear. Courts are
bound to respect not only the purposes a legislative body has selected,
but also the means it has deemed appropriate, and prescribed, for the
pursuit of those purposes. It is a mistake to assume that anything that
furthers a statute’s primary purpose is the law and that anything that
does not perfectly do so is not.
8. Statutes. When a statute specifically provides for exceptions, items not
excluded are covered by the statute.
Appeal from the County Court for Douglas County: Marcela
A. Keim, Judge. Reversed and remanded with directions.
Jonathan Seagrass, of Legal Aid of Nebraska, for appellant.
Ashley L. Albertsen, Melissa M. Oestmann, and Jacob A.
Acers, of Smith, Slusky, Pohren & Rogers, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
The federal Indian Child Welfare Act (ICWA) and the
Nebraska Indian Child Welfare Act (NICWA) provide specific
procedures and requirements that apply in certain proceed-
ings involving the custody and adoption of and termination of
parental rights to Native American children. This case requires
us to decide whether those procedures and requirements apply
in a case in which a maternal grandmother sought to establish
a guardianship for an Indian child over the objection of her
daughter, the child’s mother. After interpreting the relevant
statutory language, we conclude that the guardianship proceed-
ing at issue was governed by ICWA and NICWA. In addi-
tion, we find that the grandmother did not make the showing
required by ICWA and NICWA. We therefore reverse the order
of the county court establishing the guardianship and remand
the cause with directions to vacate the guardianship, dismiss
the petition, and return custody to the child’s mother.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
BACKGROUND
Petition for Guardianship.
This case began when Susan W. filed a petition asking the
Douglas County Court to appoint her as temporary and perma-
nent guardian for her granddaughter, Eliza W. In the petition,
Susan alleged that Eliza had lived with Susan and her husband,
Jay W., since Eliza’s birth; that Eliza’s mother, Tara W., only
intermittently resided at Susan and Jay’s home; that neither
Tara nor Eliza’s father was able to meet Eliza’s financial,
physical, and emotional needs; that Susan and Jay provided the
primary financial, physical, and emotional support for Eliza;
and that the appointment of a guardian was in the best interests
of Eliza and necessary to protect and care for her. Eliza was 4
years old at the time Susan filed the petition.
On the same day Susan filed the petition for guardianship,
she filed an ex parte application requesting that the county
court immediately appoint her as temporary guardian until a
hearing could be held on the matter. The court granted Susan’s
application and appointed her as temporary guardian and con-
servator for Eliza.
Susan later filed an amended petition. The amended petition
contained many of the same allegations as the original, but
also included an assertion that Jay “is a registered member of
the Muscogee Creek Indian Nation” and that Eliza “is subject
to [ICWA].”
At her first appearance in a hearing in this matter, Tara,
representing herself, objected to the appointment of Susan
as guardian.
Requests for Appointed Counsel.
Tara requested on several occasions that she be appointed
counsel. Tara initially filed a form document used to request
appointed counsel in custodial sanction cases. On that form
document, Tara asserted that she was entitled to appointed
counsel under a provision of NICWA, Neb. Rev. Stat.
§ 43-1505(2) (Reissue 2016), that she had no forms of income,
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304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
and that she received public assistance in the form of food
stamps and Medicaid.
Tara later submitted a letter to the court in which she
requested appointment of counsel under § 43-1505(2).
Documents indicating that Tara was a citizen of the Muscogee
(Creek) Nation and that she was eligible to receive food stamps
and Medicaid were attached to the letter.
Tara again requested that she be appointed counsel at a hear-
ing prior to trial. She again asserted an entitlement to counsel
under § 43-1505(2) on the grounds that Susan’s petition was a
“removal, placement, or termination proceeding” for purposes
of that statutory provision and that Tara was indigent.
A discussion between the court and Tara regarding her
entitlement to counsel under § 43-1505(2) followed. The
court expressed skepticism about whether Tara was entitled to
appointed counsel under § 43-1505(2) in a guardianship pro-
ceeding. The court also suggested that Tara had not followed
the proper procedure for requesting appointed counsel. The
court did not expressly rule on Tara’s requests for counsel, and
Tara continued to represent herself at all proceedings in the
county court.
Trial on Petition for Guardianship.
At the trial on Susan’s petition, Susan testified that Eliza
had lived her entire life in Susan and Jay’s home. She testified
that although Tara also lived there and provided Eliza with
some care, Tara had on prior occasions left the home without
notice, leaving Susan to care for Eliza. Susan testified that she
and Jay were Eliza’s primary caregivers and that Tara func-
tioned more like a babysitter for Eliza. Susan also testified to
her belief that Tara previously had problems with substance
abuse and that she exposed Eliza to individuals with crimi-
nal backgrounds.
Jay also testified and generally agreed with Susan’s testi-
mony. In addition, he testified that he was of Native American
descent and that through his lineage, Eliza was a member of
the Muscogee (Creek) Nation Tribe.
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304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
Susan called a physician to testify. He testified that he was
friends with Susan and Jay and had served as their family phy-
sician. He also testified that his daughter had served as Eliza’s
babysitter. Much of the physician’s testimony was based on
his observations of members of Eliza’s family outside of a
­physician-patient relationship. Although he testified that based
on his observations, Susan was Eliza’s primary caregiver, he
testified that he had observed Tara and Eliza together and
believed they had a good relationship, loved each other, and
interacted well. When asked whether he would have any con-
cerns if the court did not appoint Susan as guardian, he testi-
fied that he believed Susan and Jay were providing Eliza with
the proper physical and emotional support and that he did not
“know that Tara would be able to do that.”
Tara testified in her own behalf. She testified that when
Eliza was born, Tara was working full time and was Eliza’s
primary caregiver. She testified that she was diagnosed with
viral meningitis in November 2016 and that she continued to
suffer from associated headaches at the time of trial. She tes-
tified that after her medical condition began to improve, she
enrolled in college, and that she, Susan, and Jay began to share
duties caring for Eliza. Tara testified that her relationship with
her parents began to sour in 2018. At that point, she decided
that she and Eliza should move out of her parents’ home. Tara
then lived with Eliza at the home of a friend, Mark Keller, for a
time. She also informed her parents she was considering mov-
ing to Oklahoma with Eliza.
Tara also called Keller as a witness. Keller testified that Tara
and Eliza had lived at his home with his four children. Keller
testified that he did not believe there was any reason Eliza
would be harmed while staying at his home. Keller admitted
on cross-examination that he had previously been convicted of
felony drug possession charges.
In closing argument, Tara argued that Susan had not made
the showing necessary for the appointment of a guardianship
under ICWA and NICWA. In particular, she emphasized that
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304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
ICWA and NICWA required expert testimony proving Tara’s
continued custody of Eliza was likely to result in serious emo-
tional or physical damage to Eliza and that no such testimony
had been provided.
Appointment of Guardian.
At the conclusion of the evidence at trial, the county court
stated on the record that it had found a sufficient basis for the
appointment of Susan as Eliza’s guardian. It stated that the
evidence showed that Tara was not a “fit and proper person
to care for Eliza; that she is unable, at this time, to provide a
safe and secure environment for her.” In what was presumably
a reference to Tara’s arguments regarding the applicability of
ICWA and NICWA, the court also stated that the request for a
guardianship was “not a removal proceeding” or “a foster care
placement proceeding.” The court later entered a written order,
which did not mention ICWA or NICWA, appointing Susan as
guardian for Eliza.
Tara timely appealed.
ASSIGNMENTS OF ERROR
Tara assigns, condensed and restated, that the district court
erred (1) by failing to apply ICWA and NICWA to the
guardianship proceeding and (2) by concluding that Tara
was unfit to care for Eliza or that she had forfeited her right
to custody.
STANDARD OF REVIEW
[1,2] Appeals of matters arising under the Nebraska Probate
Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue
2016 & Cum. Supp. 2018), are reviewed for error on the
record. In re Guardianship of K.R., ante p. 1, 932 N.W.2d 737
(2019). When reviewing a judgment for errors 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. Id. An appellate court, in review-
ing a judgment for errors on the record, will not substitute its
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
factual findings for those of the lower court where competent
evidence supports those findings. Id.
[3] Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
Griffith v. Nebraska Dept. of Corr. Servs., ante p. 287, 934
N.W.2d 169 (2019).
ANALYSIS
Tara argues that the county court did not comply with ICWA
and NICWA when it appointed Susan as guardian for Eliza.
The parties dispute, however, whether ICWA and NICWA
apply in these circumstances. We therefore begin our analysis
with that question.
Do ICWA and NICWA Apply?
We have previously described ICWA and NICWA as gener-
ally providing “heightened protection to the rights of Indian
parents, tribes, and children in proceedings involving custody,
termination, and adoption.” In re Adoption of Kenten H., 272
Neb. 846, 853, 725 N.W.2d 548, 554 (2007). Tara argues, as
she argued in the county court, that the protections of ICWA
and NICWA apply to a “foster care placement” and that the
guardianship proceeding at issue here meets the definition of
“foster care placement” under 25 U.S.C. § 1903(1)(i) (2012)
and Neb. Rev. Stat. § 43-1503(3)(a) (Reissue 2016). Susan dis-
agrees that the guardianship proceeding qualifies as a “foster
care placement.”
[4,5] To decide the parties’ dispute, we must turn to the
language of ICWA and NICWA, particularly those statutes’
definitions of “foster care placement.” As we often say, the
starting point and focus of the inquiry when interpreting a
statute is the meaning of the statutory language, understood
in context. See State v. Garcia, 301 Neb. 912, 920 N.W.2d
708 (2018). Our analysis must begin with the text, because
statutory language is to be given its plain and ordinary mean-
ing, and an appellate court will not resort to interpretation
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304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. State v. Wal, 302 Neb. 308, 923
N.W.2d 367 (2019).
ICWA and NICWA’s definitions of “foster care placement”
are substantially the same. NICWA defines “foster care place-
ment” as follows:
[A]ny action removing an Indian child from his or her
parent or Indian custodian for temporary or emergency
placement in a foster home or institution or the home of
a guardian or conservator where the parent or Indian cus-
todian cannot have the child returned upon demand, but
where parental rights have not been terminated.
§ 43-1503(3)(a). ICWA’s definition is nearly the same, except
that it contains no reference to emergency placement. 25
U.S.C. § 1903(1)(i).
An application of our familiar principles of statutory inter-
pretation suggests that the guardianship proceeding initiated by
Susan falls within the definitions of “foster care placement” in
ICWA and NICWA. The definitions include four straightfor-
ward elements: (1) an action removing an Indian child from his
or her parent or Indian custodian, (2) temporary placement (or
emergency placement in NICWA) in a foster home or institu-
tion or the home of a guardian or conservator, (3) the parent or
Indian custodian cannot have the child returned upon demand,
and (4) parental rights are not terminated, each of which appear
to be present here. The object of the guardianship proceeding
was to remove custody of Eliza from her parent, Tara, and
place custody with Susan, who would serve as guardian. In
addition, our law recognizes guardianships as temporary cus-
tody arrangements, the creation of which does not terminate
parental rights, but which cannot be terminated without court
approval. See In re Guardianship of D.J., 268 Neb. 239, 682
N.W.2d 238 (2004); § 30-2616.
Based on similar reasoning, courts from a number of other
jurisdictions have interpreted ICWA’s definition of “foster care
placement” to include guardianship proceedings. See, e.g.,
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304 Nebraska Reports
IN RE GUARDIANSHIP OF ELIZA W.
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Matter of Guardianship of Q.G.M., 808 P.2d 684 (Okla. 1991);
Empson-Laviolette v. Crago, 280 Mich. App. 620, 760 N.W.2d
793 (2008); In re Custody of A.K.H., 502 N.W.2d 790 (Minn.
App. 1993).
The only argument Susan makes based on the statutory
definition of “foster care placement” goes to the evidence of
one element, rather than the definition itself. Susan claims
that there was no demonstration that Eliza is an “Indian child”
for purposes of ICWA and NICWA. This argument is some-
what puzzling since Susan alleged in her amended petition
that Eliza is subject to ICWA, her counsel conceded at trial
that Eliza was “an Indian child” under ICWA and NICWA,
and Jay testified that Eliza is a member of the Muscogee
(Creek) Nation Tribe. Moreover, at trial, Susan offered and
the court received into evidence a letter from the Muscogee
(Creek) Nation stating that Eliza was a tribal citizen or eli-
gible for enrollment through Tara. This evidence shows that
Eliza qualifies as an “Indian child.” Both ICWA and NICWA
define the term as “any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” 25 U.S.C. § 1903(4);
§ 43-1503(8).
Rather than focusing on the statutory definition of “foster
care placement,” Susan primarily points to other provisions
of ICWA and NICWA and contends that those other provi-
sions should lead us to conclude that a “foster care placement”
occurs only when proceedings are initiated by the government.
We address these other statutory provisions below, but, as we
will explain, we are not persuaded by Susan’s arguments.
First, Susan points to broad statements of policy in both
ICWA and NICWA. In particular, she refers us to 25 U.S.C.
§ 1902 (2012), which provides in part:
[I]t is the policy of this Nation to protect the best inter-
ests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment
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IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
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 culture.
In addition, she directs us to Neb. Rev. Stat. § 43-1502
(Reissue 2016), in which the Nebraska Legislature stated that
the purpose of NICWA “is to clarify state policies and proce-
dures regarding the implementation by the State of Nebraska
of [ICWA].”
Susan contends that these provisions show that in passing
ICWA and NICWA, Congress and our Legislature were con-
cerned with situations in which government actors took actions
to remove Indian children from their families and placed them
in homes lacking an appreciation for Native American culture.
Susan contends that this purpose is not served in this case,
because the government is not a party to the guardianship pro-
ceeding. Although Susan does not cite the case, she is asking
us to follow the same approach taken by the Montana Supreme
Court in Application of Bertelson, 189 Mont. 524, 617 P.2d
121 (1980). In that case, the court relied on the language in 25
U.S.C. § 1902 and concluded that ICWA should not apply to
an intrafamily custody dispute. As we will explain, however,
we believe the approach taken by the Application of Bertelson
court places too much weight on 25 U.S.C. § 1902.
[6] As noted above, 25 U.S.C. § 1902 of ICWA is a policy
statement. While this court has previously held that policy
statements or statutory preambles may be used, “if needed, for
assisting in interpreting the legislative intent for the specific act
of which the statement is a part,” State v. Buckman, 267 Neb.
505, 516, 675 N.W.2d 372, 381 (2004), it is generally recog-
nized that such a provision cannot restrict or expand the mean-
ing of the operative portions of a statute if they are unambigu-
ous. See, generally, 2A Norman J. Singer & Shambie Singer,
Statutes and Statutory Construction, § 47:4 (7th ed. 2014).
No less an authority than the U.S. Supreme Court recently
articulated this understanding. The Court rejected an argument
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IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
based on statutory statements of purpose, explaining that such
provisions, “by their nature ‘cannot override [a statute’s] opera-
tive language.’” Sturgeon v. Frost, ___ U.S. ___, 139 S. Ct.
1066, 1086, 203 L. Ed. 2d 453 (2019), quoting Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 220 (2012).
[7] We find sound the view that statutory policy statements
and preambles cannot be used to arrive at an interpretation that
would “give words and phrases of the [operative] text itself
a meaning that they cannot bear.” Scalia & Garner, supra at
218. After all, courts are bound to respect not only the pur-
poses a legislative body “has selected, but [also] the means
it has deemed appropriate, and prescribed, for the pursuit of
those purposes.” MCI Telecommunications Corp. v. American
Telephone & Telegraph Co., 512 U.S. 218, 231 n.4, 114 S. Ct.
2223, 129 L. Ed. 2d 182 (1994). It is thus a mistake to assume
that anything that furthers a statute’s primary purpose is the
law and that anything that does not perfectly do so is not. See,
Henson v. Santander Consumer USA Inc., ___ U.S. ___, 137
S. Ct. 1718, 198 L. Ed. 2d 177 (2017); Scalia & Garner, supra
at 219.
Here, we find that Susan is asking us to use the policy
statement in 25 U.S.C. § 1902 to give “foster care place-
ment” a meaning that the text defining the phrase cannot bear.
As we have already indicated, Susan can point to nothing
in the definition of “foster care placement” suggesting it is
limited to proceedings initiated by a state actor. In fact, the
language expressly indicates otherwise—the phrase is defined
to include “any action” in which the four elements discussed
above are present, not just some. See, 25 U.S.C. § 1903(1)(i);
§ 43-1502(3)(a); In re Interest of Powers, 242 Neb. 19, 23, 493
N.W.2d 166, 169 (1992) (“in popular parlance, the word ‘any’
usually means all or every”).
[8] Susan’s preferred interpretation also fails to account
for the fact that ICWA and NICWA expressly create a simi-
lar, but narrower, exception than the one she asks us to infer.
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IN RE GUARDIANSHIP OF ELIZA W.
Cite as 304 Neb. 995
ICWA and NICWA exclude from their scope, “an award, in
a divorce proceeding, of custody to one of the parents.” 25
U.S.C. § 1903(1); § 43-1503(3). In other words, both Congress
and the Nebraska Legislature specifically excluded one type of
exclusively intrafamily custody dispute from the protections
of ICWA and NICWA. One of our rules of statutory inter-
pretation provides that when a statute specifically provides
for exceptions, items not excluded are covered by the stat-
ute. Castonguay v. Retelsdorf, 291 Neb. 220, 865 N.W.2d 91
(2015). Susan’s preferred interpretation obviously runs counter
to this canon, because she asks us to find that all intrafamily
custody disputes are not covered by ICWA and NICWA when
Congress and our Legislature excluded only some.
Moreover, if, as Susan asserts, ICWA and NICWA apply
only to actions initiated by the government, the statutory exclu-
sion for awards of custody in divorce proceedings would serve
no purpose. This, too, runs counter to our rules of statutory
interpretation. We strive, if possible, to give effect to all parts
of a statute such that no sentence, clause, or word is rendered
meaningless. See State v. Clemens, 300 Neb. 601, 915 N.W.2d
550 (2018). Several courts have pointed to ICWA’s exclusion of
custody awards in divorce proceedings as a reason for not fol-
lowing the Montana Supreme Court’s approach in Application
of Bertelson, 189 Mont. 524, 617 P.2d 121 (1980). See, e.g.,
In re Custody of A.K.H., 502 N.W.2d 790 (Minn. App. 1993);
Matter of Guardianship of Q.G.M., 808 P.2d 684 (Okla. 1991).
See, also, A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982) (reject-
ing argument based on Application of Bertelson as contrary to
the express provisions of ICWA).
Neither are we persuaded by Susan’s argument that we
should conclude that the protections of ICWA and NICWA do
not apply to proceedings initiated by parties other than the gov-
ernment, based on NICWA’s “active efforts” provision. NICWA
requires parties seeking to effect a foster care placement of or
termination of parental rights to an Indian child to prove that
they used “active efforts” to “provide remedial services and
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IN RE GUARDIANSHIP OF ELIZA W.
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rehabilitative programs designed to prevent the breakup of
the Indian family or unite the parent or Indian custodian with
the Indian child and that these efforts have proved unsuccess-
ful.” § 43-1505(4). Elsewhere, NICWA provides that “[a]ctive
efforts shall mean and include, but not be limited to” several
specific measures. § 43-1503(1).
Susan describes the “active efforts” measures codified in
§ 43-1503(1) as a “colossal undertaking and expenditure of
resources” and contends it is clear this standard was not
intended to apply to private individuals initiating guardianship
proceedings. Brief for appellee at 17. Susan’s argument fails to
account for our rejection of the notion that the measures listed
in § 43-1503(1)(a) to (h) form a “checklist” in which the initi-
ating party is required to show compliance with each item. See
In re Adoption of Micah H., 301 Neb. 437, 450, 918 N.W.2d
834, 846 (2018). And, in any event, Susan fails to identify any
statutory text that supports her argument regarding legisla-
tive intention.
For all these reasons, we are not persuaded by Susan’s
arguments that the guardianship proceeding she initiated does
not qualify as a “foster care placement” under ICWA and
NICWA.
Did County Court Comply
With ICWA and NICWA?
Our conclusion that this guardianship proceeding qualified
as a “foster care placement” for purposes of ICWA and NICWA
does not resolve the parties’ disagreements. Tara asserts that
the guardianship proceeding failed to comply with ICWA and
NICWA in a number of ways. She contends that she was denied
a right to appointed counsel which she possessed under ICWA
and NICWA, that Susan failed to comply with notice require-
ments of ICWA and NICWA, that Susan failed to demonstrate
the “active efforts” required by ICWA and NICWA, and that
Susan failed to meet the heightened standard of proof required
by ICWA and NICWA. To this, Susan offers an alternative
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IN RE GUARDIANSHIP OF ELIZA W.
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argument: that even if the county court erroneously concluded
that the guardianship proceeding was not a “foster care place-
ment,” it nonetheless complied with ICWA and NICWA in all
respects. As we will explain, we again disagree.
At first glance, it may appear that the county court clearly
erred by not granting Tara’s requests for appointed counsel.
ICWA and NICWA provide that “[i]n any case in which the
court determines indigency, the parent or Indian custodian
shall have the right to court-appointed counsel in any removal,
placement, or termination proceeding.” 25 U.S.C. § 1912(b)
(2012); § 43-1505(2). This language appears to grant Tara a
right to court-appointed counsel in the guardianship proceeding
if she was indigent. It is not clear, however, whether the county
court declined to appoint counsel based on a determination that
ICWA and NICWA did not apply or because it found that Tara
used an incorrect procedure or failed to adequately demon-
strate indigency. In the end, we find it unnecessary to sort out
this question and many other ICWA and NICWA compliance
arguments raised by Tara, because we find that Susan failed
to meet the heightened standard of proof imposed by ICWA
and NICWA.
NICWA provides that a court may not order foster care
placement “in the absence of a determination by the court, sup-
ported 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.” § 43-1505(5).
ICWA contains a provision that is substantially the same. See
25 U.S.C. § 1912(e). ICWA and NICWA thus not only impose
a heightened standard of proof for “foster care placements,”
they also require that the person seeking the placement meet
that standard with expert testimony. Tara focuses her argument
on the expert testimony requirement, contending that no quali-
fied expert witness testified at trial.
Susan concedes that none of the witnesses she called as part
of her case provided the expert testimony required by ICWA
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and NICWA. She maintains, however, that the expert witness
requirement was met through testimony provided by Tara. We
disagree and find that Tara neither qualified as an expert nor
provided expert testimony.
This court has previously relied on guidelines promulgated
by the federal Bureau of Indian Affairs to determine whether a
witness qualifies as an expert under ICWA. See In re Interest
of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), over-
ruled on other grounds, In re Interest of Zylena R. & Adrionna
R., 284 Neb. 834, 825 N.W.2d 173 (2012). Those guidelines
recognized the following categories of individuals as likely to
meet the requirements 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.”
239 Neb. at 824, 479 N.W.2d at 111, quoting Guidelines
for State Courts; Indian Child Custody Proceedings, 44 Fed.
Reg. 67,854, 67,593 (1979) (not codified). NICWA includes a
definition of “qualified expert witness” that is similar to these
guidelines. See § 43-1503(15).
More recently, the Bureau of Indian Affairs issued formal
regulations and new guidelines discussing the implementation
of ICWA. With respect to the expert witness requirement, the
formal regulations provide as follows:
A qualified expert witness must be qualified to testify
regarding whether the child’s continued custody by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child and should be
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qualified to testify as to the prevailing social and cultural
standards of the Indian child’s Tribe.
25 C.F.R. § 23.122(a) (2019).
The accompanying new guidelines indicate that there may
be some cases in which expert testimony from an individual
with knowledge of tribal culture is not required. They provide,
in part:
The rule does not, however, strictly limit who may serve
as a qualified expert witness to only those individuals
who have particular Tribal social and cultural knowledge.
The rule recognizes that there may be certain circum-
stances where a qualified expert witness need not have
specific knowledge of the prevailing social and cultural
standards of the Indian child’s Tribe in order to meet
the statutory standard. For example, a leading expert on
issues regarding sexual abuse of children may not need to
know about specific Tribal social and cultural standards
in order to testify as a qualified expert witness regarding
whether return of a child to a parent who has a history
of sexually abusing the child is likely to result in serious
emotional or physical damage to the child. Thus, while
a qualified expert witness should normally be required
to have knowledge of Tribal social and cultural stan-
dards, that may not be necessary if such knowledge is
plainly irrelevant to the particular circumstances at issue
in the proceeding.
U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines
for Implementing the Indian Child Welfare Act G.2 at 54
(Dec. 2016).
Susan argues that Tara qualified as an expert witness based
on her prior attendance at a Native American college, her
ability to speak Cherokee, and the fact that she is pursuing a
bachelor’s degree that will include two “subconcentrations,”
one of which is in Native American studies. Susan also asserts
in her brief that Tara testified to serving as president of the
“Native Indian Centered Education” program of Omaha Public
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Schools. Brief for appellee at 25. This assertion, however,
misstates the record. Tara testified to serving as president of
a parental advisory board affiliated with another educational
program. There is no indication in the record this educational
program was similarly focused on Native American children.
We harbor serious doubts that the record shows that Tara
was qualified to testify regarding prevailing social and cultural
standards of Eliza’s tribe. The record shows only that Tara was
a member of the tribe, spoke Cherokee, and had pursued some
Native American studies, the scope of which was unclear.
There is no indication that she was recognized by a tribal
community as knowledgeable of Indian customs and childrear-
ing practices or that she had experience in the delivery of
child and family services to Indians. When presented with a
similar record, the Nebraska Court of Appeals concluded that
a child’s mother was not a qualified expert under NICWA. See
In re Interest of Ramon N., 18 Neb. Ct. App. 574, 789 N.W.2d
272 (2010).
But even if Tara was qualified to testify regarding prevail-
ing social and cultural standards of Eliza’s tribe, there is no
indication in the record that she was qualified to provide
expert testimony regarding whether her continued custody
of Eliza was likely to result in serious emotional or physical
damage to Eliza. The recent formal regulations make clear an
expert “must be qualified” to present such testimony. 25 C.F.R.
§ 23.122(a) (emphasis supplied). In addition, even if Tara was
qualified to provide such testimony, we do not believe she
actually did so. In support of her argument that Tara provided
the required expert testimony, Susan directs us to portions of
Tara’s testimony and contends they show that Tara does not
consider Eliza’s best interests and that it was in Eliza’s best
interests to remain in Susan’s care. In that testimony, however,
Tara was explaining why she made certain decisions concern-
ing Eliza. Regardless of whether Tara’s explanations were
compelling, this factual testimony cannot be fairly construed
as an expert opinion as to whether her continued custody of
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Eliza would likely result in serious emotional or physical dam-
age to Eliza.
From all appearances, both Susan’s trial counsel and the
county court assumed that this was not a “foster care place-
ment” and that therefore Susan need only show that Tara
was an unfit parent in order to be appointed as guardian. As
we have explained, however, that assumption was incorrect.
This was a “foster care placement” for purposes of ICWA and
NICWA, and Congress and our Legislature have made a policy
decision that courts cannot order such a placement based on
an ordinary showing of parental unfitness alone. Because there
was an absence of the expert testimony required by ICWA
and NICWA, the county court erred by appointing Susan as
Eliza’s guardian.
Disposition.
Having determined that Susan did not make the required
showing under ICWA and NICWA, all that remains is the
disposition of this appeal. Tara suggests that Neb. Rev.
Stat. § 43-1512 (Reissue 2016) is determinative. Section
43-1512 states:
When any petitioner in an Indian child custody pro-
ceeding before a state court has improperly removed the
child from custody of the parent or Indian custodian or
has improperly retained custody after a visit or other tem-
porary relinquishment of custody, the court shall decline
jurisdiction over such petition and shall forthwith return
the child to his or her parent or Indian custodian unless
returning the child to his or her parent or custodian
would subject the child to a substantial and immediate
danger or threat of such danger.
ICWA contains a nearly identical provision. See 25 U.S.C.
§ 1920 (2012).
Tara contends that the county court improperly removed
Eliza from the custody of Tara and that, therefore, § 43-1512
applies and requires us to reverse the order and remand the
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cause to the county court for a determination of whether return-
ing Eliza to Tara would subject Eliza to substantial and imme-
diate danger or a threat of such danger. We disagree that this
provision applies here.
The language in § 43-1512 expressly applies when “any peti-
tioner” improperly removes an Indian child from the custody
of his or her parent or improperly retains custody of the child.
(Emphasis supplied.) See, also, 25 U.S.C. § 1920 (same). The
provision gives no indication that it also applies where a court
order brings about the removal of a child and the petitioner
merely follows that order. Indeed, it would be more than a stretch
to call such a removal “improper.” We are not the only court to
have read this language to apply only when parties remove or
retain custody of the child extralegally. See, e.g., D.E.D. v. State,
704 P.2d 774, 782 (Alaska 1985) (concluding 25 U.S.C. § 1920
“‘is aimed at those persons who improperly secure or improp-
erly retain custody of the child without the consent of the parent
or Indian custodian and without the sanction of law’” (emphasis
omitted), quoting Indian Child Welfare Act of 1978, Pub. L. No.
95-608, § 110, 92 Stat. 3069).
Here, Susan did not improperly remove or retain custody of
Eliza extralegally; rather, a county court order removed Eliza
from Tara’s custody. Consequently, we conclude that § 43-1512
does not apply.
Because ICWA and NICWA do not set forth specific rules
governing our disposition in this case, we believe it appropri-
ate to dispose of the case as we would an ordinary guardian-
ship proceeding in which a petitioner failed to meet his or
her burden of proving the right to custody of a child. We thus
reverse, and remand with directions to vacate the guardianship,
dismiss the petition, and return Eliza to Tara’s custody. See,
e.g., In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d
238 (2004) (reversing, and remanding with directions to termi-
nate guardianship and return child to custody of mother where
grandparents failed to prove child’s mother forfeited parental
rights); In re Interest of Tyler W., No. A-11-1097, 2012 WL
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5328645 (Neb. App. Oct. 30, 2012) (selected for posting to
court website) (reversing, and remanding with instructions to
dismiss guardianship action where petitioner failed to prove
mother was unfit or forfeited right to custody of child). See,
also, In re Interest of Borius H. et al., 251 Neb. 397, 558
N.W.2d 31 (1997) (explaining that because State did not meet
burden to allow for continued detention of juvenile, appellate
courts lacked authority to order continued detention).
CONCLUSION
The record does not contain the expert testimony required
by ICWA and NICWA, and therefore the county court’s deci-
sion to appoint Susan as guardian was not supported by
competent evidence. Because of the failure of proof, we must
reverse, and remand with directions to vacate the guardianship
and dismiss the petition.
Reversed and remanded with directions.