In re Interest of Nery v.

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 959
Cite as 22 Neb. Ct. App. 959
is not supported by competent evidence. We therefore reverse
that portion of the district court’s order affirming this finding,
with directions to the district court to remand the cause to the
county court with directions to reverse and vacate that portion
of the order.
Affirmed in part, and in part reversed
and remanded with directions.
In re I nterest of
Nery V. et al.,
children under18 years of age.
State of Nebraska, appellee, v. Mario V., Sr.,
and I da V., appellees, and Rosebud Sioux
Tribe, intervenor-appellant.
___ N.W.2d ___
Filed June 9, 2015. No. A-14-654.
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. ____: ____. An appellate court reviews questions of law independently of the
juvenile court’s conclusions.
3. Indian Child Welfare Act. The substantive portions of the Indian Child Welfare
Act and the corresponding portions of the Nebraska Indian Child Welfare Act
provide heightened protection to the rights of Indian parents, tribes, and children
in proceedings involving custody, termination, and adoption.
4. Juvenile Courts: Evidence: Proof. 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.
Appeal from the County Court for Hall County: Philip M.
Martin, Jr., Judge. Affirmed.
Lloyd E. Guy III for intervenor-appellant.
Megan Alexander, Deputy Hall County Attorney, for appel-
lee State of Nebraska.
Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz,
guardian ad litem.
Decisions of the Nebraska Court of Appeals
960 22 NEBRASKA APPELLATE REPORTS
Moore, Chief Judge, and Inbody and Pirtle, Judges.
Inbody, Judge.
INTRODUCTION
The Rosebud Sioux Tribe (Tribe), an intervenor in this case,
appeals the order of the county court for Hall County, sit-
ting as a separate juvenile court, denying the Tribe’s motion
for a change of placement of three minor children, Mario V.
(Mario Jr.), Esperanza V., and Nery V. For the reasons that fol-
low, we affirm the order of the trial court finding that the State
met its burden of proof in showing that there was good cause
to deviate from the placement requirements of the Nebraska
Indian Child Welfare Act (NICWA).
STATEMENT OF FACTS
Background Information.
Mario Jr., Esperanza, and Nery were removed from their
parents’ care in November 2010. At the time of the children’s
removal, their biological mother, Ida V., requested that the
children be placed with Tara L. and Terry L., which request
was granted without objection from any party. Ida has ties to
the Rosebud Sioux Tribe and requested placement with Tara
and Terry even though they are not Native American. The
Tribe intervened in this case in January 2011, and the Tribe has
been aware during the pendency of the case that the children
are placed in a non-Native American foster home.
In October 2013, the Tribe filed a motion to change the
placement of all three children, asserting that Ida no longer
consented to a non-Native American placement and requesting
that the children be placed with their maternal aunt, Brianna C.,
who is an enrolled member of the Tribe. Thereafter, Ida filed
with the trial court a “Withdrawal of Consent to Placement in
Non-Indian Home.” The Nebraska Department of Health and
Human Services (DHHS) filed an objection to the change of
placement for the reasons that the children had been placed
with Tara and Terry for 3 years; that Brianna had been previ-
ously suggested for placement, but that on three separate occa-
sions, home studies were completed, none of which recom-
mended placement with her; that the Tribe had been involved
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 961
Cite as 22 Neb. Ct. App. 959
in the case since 2010 and had failed to inquire about place-
ment; and that a new placement would traumatize the children
and was not in their best interests.
Hearing on Motion to
Change Placement.
The hearing on the motion to change placement was held
over several days from January through May 2014. The Tribe
adduced testimony from several witnesses. Brianna testified
that she was the children’s aunt and also an enrolled mem-
ber of the Tribe. At that time, Brianna was 27 years old;
lived in Kearney, Nebraska, with her 5-year-old daughter;
and was employed by a sports medicine clinic as a “CNA,
med aide.” Brianna also has a pharmacy technician’s license
and has received her certification to volunteer as a court-
appointed special advocate. Brianna testified about the impor-
tance of being such an advocate and her involvement with
that work, but later testified that she had worked on only one
case and did not know if she had been terminated from the
advocate program, since she had moved from Grand Island,
Nebraska, to Kearney without giving notice. Brianna testified
that she had been employed at seven different places in the
last 7 years. Brianna’s current home has three bedrooms and
two bathrooms.
Brianna explained that on three separate occasions, DHHS
had completed home studies at her residence, and that she had
been denied authorization as a placement each time. Brianna
has not seen any of Ida’s children since they were first taken
from Ida’s home and had only recently attempted to have
visitation with them in November 2013. Brianna testified that
her involvement with the Tribe included having her federal
identification card from the Lakota Sioux Tribe and taking
her daughter to a Tribe powwow in 2013. Other than those
two instances, Brianna testified she had very little involve-
ment with the Tribe, limited to talking to her daughter about
her ancestors and buying a compact disc of “Indian music” to
listen to.
The Tribe adduced testimony from Lorna Turgeon. Turgeon
testified that she is an enrolled member of the Rosebud
Decisions of the Nebraska Court of Appeals
962 22 NEBRASKA APPELLATE REPORTS
Sioux Tribe; she obtained her undergraduate degree from
Metropolitan State University in St. Paul, Minnesota; and she
obtained master of social work and master of public admin-
istration degrees from the University of Nebraska at Omaha.
Turgeon testified that she had more than 20 years of experi-
ence in working with children and was certified as an expert
in Indian child welfare. Turgeon testified about the importance
of the extended family in the Indian culture.
Turgeon became involved in this particular case in September
2013. A home study commissioned by the Tribe was completed
in October 2013 and is based upon interviews with Brianna.
Turgeon testified that the recommendation of that home study
was for placement of the three children with Brianna. The
recommendation was based on aspects of the home study
including child safety, nurturance, Brianna’s being able to
provide for the children financially and being able to create a
safe and loving home for them, and the fact that the children
“would retain their cultural identity and sense of belonging
within their culture and their family.” However, Turgeon testi-
fied that in compiling the home study, she did not meet with
the children’s foster parents, did not know how much contact
with Native American culture the children had been exposed
to in their lives, and did not know what, if anything, the fos-
ter parents have done to help the children retain any Native
American culture. Turgeon had also not reviewed any of the
DHHS case files for the family, including the home studies
DHHS completed.
The Tribe’s home study explains that in the Lakota family
structure, a biological mother’s sister is considered the chil-
dren’s “other mother.” The home study indicates that prior
to the children’s being removed, Brianna was involved in the
children’s lives. The home study indicates that Brianna was
aware of the trauma continued moving causes the children
and that she could be “therapeutic” for the children by mak-
ing the children feel secure. The home study indicates that
Brianna supports contact with the children’s parents and that
she feels that she can control Ida when she gets mad or upset.
The Tribe’s home study indicates that Brianna is very involved
in her Native American culture and mentions several times
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 963
Cite as 22 Neb. Ct. App. 959
that Brianna is also very involved as a court-appointed special
advocate volunteer.
The Tribe’s home study included a home safety checklist
indicating the process involved in the study. The checklist
includes whether the worker involved in the study contacted
a minimum of three references, completed “[g]enograms” and
“[e]co [m]aps,” investigated Brianna’s transportation, and veri-
fied her driver’s license and whether Brianna met housing
requirements. The checklist indicates that Brianna had no auto-
mobile insurance and that no screening for abuse and neglect
or criminal background check had been completed. Turgeon
acknowledged that the minor children were happy in their cur-
rent foster placement and admitted that it was possible that the
children could live in a home that was neither Hispanic nor
Native American but still retain the culture of one or both of
those cultural identities.
Sherri Eveleth, a DHHS Indian child welfare program spe-
cialist, testified as an expert witness for the State and explained
that she had been involved with this family and case since
2008. Eveleth testified that several attempts had been made
with the family to place the children with family members,
but that many of the family members lost contact or inter-
est. Eveleth testified that the Tribe intervened in the case in
January 2011, upon her request after finding out about the
children’s eligibility as enrolled members of the Tribe. Eveleth
contacted the Tribe’s caseworker, Shirley Bad Wound, about
the children via telephone and in person. Eveleth testified that
she specifically talked with Bad Wound about placement of the
children with Native American families but was told that there
were no families available for placement in the area or on the
Rosebud Sioux reservation. Eveleth testified that placement of
the children with Brianna would result in serious emotional
harm to the children. Eveleth testified that Brianna did not act
to protect the children despite knowing the children were in
the care of Ida, who was actively using methamphetamine, and
that Brianna’s courtroom testimony indicated she was capable
of being very hostile.
Christina Ledesma, the ongoing DHHS case manager, was
assigned to the case from November 2010 to September 2012.
Decisions of the Nebraska Court of Appeals
964 22 NEBRASKA APPELLATE REPORTS
During that time, the children remained in the same place-
ment with Tara and Terry. Ledesma testified that several home
studies were completed for family members who expressed
an interest in placement of the children with them, includ-
ing Brianna. Ledesma testified that several of the interested
family members lost touch with DHHS or did not complete
the placement information. Ledesma testified that in 2008,
Brianna had a home study which did not recommend place-
ment of the children with her. A second home study was com-
pleted in 2011, which also did not recommend placement of
the children with Brianna. Ledesma explained that all of the
children were high-needs children with mental health diag-
noses and trust issues. DHHS was concerned with Brianna’s
employment stability and her ability to be a single parent to
not only her own daughter, but also to the three minor chil-
dren at issue. There was also concern that Brianna would not
be able to stand up to Ida and set healthy boundaries for the
children. Ledesma testified that the Tribe was aware that the
children were placed in a non-Native American home and
did not make any objection to said placement for several
years. Ledesma further testified that the caseworker for the
Tribe, Bad Wound, did not have any placement options for
the children.
The current DHHS caseworker, Marjorie L. Creason, testi-
fied that she was assigned to this case in 2012. Creason testi-
fied that Mario Jr., prior to his current placement, had been
placed in six or seven homes and that Esperanza had been in
three different foster home placements. Creason testified that
she meets with the children during her monthly visits and team
meetings and that they are all excelling in school and involved
in several activities. Creason testified that the children are
very social and have bonded with Tara and Terry. Creason
testified that based on the home studies, she would not feel
comfortable about placing the children with Brianna, and that
due to the amount of time they have been placed with Tara
and Terry, a change in placement was not in the children’s
best interests.
In 2011, Joan Ramsey, a licensed professional counselor,
was hired by DHHS to conduct a home study of Brianna.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 965
Cite as 22 Neb. Ct. App. 959
Ramsey testified that in completing home studies, she looks at
the individuals’ family of origin, relationships with their own
parents and siblings, mental health history, substance abuse
issues, contacts with the law, social problems, financial and
employment history, relationship with their biological chil-
dren, and parenting style and the effect on foster children in
the home.
In 2011, Brianna was living with her daughter in a small one-
bedroom apartment, in a neighborhood where there were safety
concerns. Brianna was employed as a “CNA” working from
2 to 10 p.m. and planned on placing the children in daycare
during those hours. Ramsey was concerned because Brianna
believed she could adequately parent all four children on her
own while working full time and also considering attending
school. Ramsey was also concerned because of Brianna’s insta-
bility with frequently changing jobs, which also raised finan-
cial concerns. Ramsey testified that Brianna was not financially
self-sufficient and had no health insurance. Ramsey was also
concerned with Brianna’s ability to set boundaries with Ida. On
the positive side, Ramsey testified that all of Brianna’s refer-
ences indicated that Brianna loved children, was a good parent
to her own daughter, and loved Ida’s children as well. Ramsey
did not recommend that the children be placed with Brianna
based upon the home study.
In 2013, Ramsey completed the third home study for
Brianna. At that time, Brianna had moved to Kearney and
was living in a larger trailer home, with three bedrooms,
two bathrooms, and a small yard. Brianna indicated that at
her new employment, she worked three 12-hour shifts over
each weekend and would place the children in daycare during
that time. Ramsey testified that Brianna’s financial position
had improved but that she was still concerned Brianna was
unrealistic about parenting the children. Ramsey testified that
two of the three children are high needs with diagnoses of
dysthymic disorder and reactive attachment disorder, the lat-
ter of which requires routine, structure, and very little change
for a child. Ramsey also testified that any deviation could
result in stress and emotional issues for the children. Ramsey
testified that Brianna had not done any research or planning
Decisions of the Nebraska Court of Appeals
966 22 NEBRASKA APPELLATE REPORTS
and did not have any support for the transition of the chil-
dren. Further, Ramsey had difficulty keeping in contact with
Brianna, which raised concern in that Brianna would need
to keep in constant contact with schools, therapists, doctors,
and caseworkers.
Ramsey testified that similarly to her conclusions in 2011,
she did not recommend placement of the children with Brianna.
Ramsey emphasized that the children had been in placement
with Tara and Terry for a significant amount of time and were
very bonded with that family. Ramsey, after speaking with
caseworkers and therapists, was concerned that any movement
of the children would cause significant harm and set the chil-
dren back in their development.
The children’s foster mother, Tara, testified that she first
had contact with the children’s biological family in 2008,
when Mario Jr. and Esperanza were placed with her and her
husband, Terry, for approximately 9 months. Tara lost track of
the children until 2010, when she saw them at a local restau-
rant. At that time, Tara kept in touch with the family and had
many conversations with Ida. Tara testified that in November
2010, Ida called her and was very upset because the State had
taken the children into custody. Ida asked Tara if she would
go to DHHS and get the children. Tara testified she and Terry
decided to take placement of the children and have had them
since that time.
Tara testified that when the children first came to live
with them, the children were exhibiting behavioral issues and
started therapy. Tara testified that therapy had addressed those
issues and that the issues no longer existed. All three children
are attending school and doing very well. Tara explained that
she has continually taken steps with the children to expose
them to Native American culture by taking them to powwows,
to visit the Rosebud Indian reservation, and to the Crazy Horse
monument in South Dakota and by frequently checking out
books on the subject from the library. Tara testified that the
children are settled in their home and are all bonded with her
and Terry.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 967
Cite as 22 Neb. Ct. App. 959
Trial Court’s Order.
On June 18, 2014, the trial court overruled the Tribe’s
motion to change placement, finding the State had met its bur-
den of proof in showing that there was good cause to deviate
from the placement requirements of the federal Indian Child
Welfare Act (ICWA) and that the best interests of the children
indicate that a change of placement was not appropriate. The
court noted that the children had been placed in their current
foster placement for more than 3 years and that the placement
initially was made at Ida’s request. Further, the court noted
that DHHS initiated multiple home studies on Brianna, none
of which led to her being approved as a placement, and that
the evidence indicated that some of the concerns raised over
Brianna’s ability to be a proper placement for the children
had not been alleviated over time; and, more importantly, that
the best interests of the children would be adversely affected
by their being moved. The court also noted the evidence
indicated that DHHS exercised due diligence in trying to
find alternative family placements, but that these placements
were rejected by the family members who were contacted
and that DHHS was advised by the Tribe there were no tribal
placements available. It is from this order that the Tribe
has appealed.
ASSIGNMENTS OF ERROR
The Tribe contends that the trial court erred (1) in hold-
ing that the State had met its burden of proof that good cause
existed to deviate from the placement preferences and (2) in
finding that DHHS had exercised due diligence in trying to
accomplish compliance with the ICWA.
STANDARD OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. In re Interest of Elizabeth S., 282
Neb. 1015, 809 N.W.2d 495 (2012). An appellate court reviews
questions of law independently of the juvenile court’s conclu-
sions. Id.
Decisions of the Nebraska Court of Appeals
968 22 NEBRASKA APPELLATE REPORTS
ANALYSIS
Denial of Tribe’s Motion
to Change Placement.
The Tribe contends that the trial court abused its discretion
when it determined that a change of placement of the three
minor children would not be in the best interests of the children
because they had been in the same placement for 3 years and
when it relied upon testimony from DHHS’ qualified expert
witness, Eveleth, in holding that such a change would be likely
to cause serious emotional damage to the children. The Tribe
also argues that the trial court erred when it ignored the testi-
mony of Turgeon and the Tribe’s home study, which found that
placement with Brianna would be appropriate.
The NICWA’s Neb. Rev. Stat. § 43-1508(2) (Reissue 2008),
which is the equivalent to the ICWA’s 25 U.S.C. § 1915(b)
(2012), provides:
Any child accepted for foster care or preadoptive place-
ment shall be placed in the least restrictive setting which
most approximates a family and in which his or her spe-
cial needs, if any, may be met. The child shall also be
placed within reasonable proximity to his or her home,
taking into account any special needs of the child. In any
foster care or preadoptive placement, a preference shall
be given, in the absence of good cause to the contrary, to
a placement with:
(a) A member of the Indian child’s extended family;
(b) A foster home licensed, approved, or specified by
the Indian child’s tribe;
(c) An Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or
(d) An institution for children approved by an Indian
tribe or operated by an Indian organization which has a
program suitable to meet the Indian child’s needs.
(Emphasis supplied.)
In the case of In re Interest of Bird Head, 213 Neb. 741,
331 N.W.2d 785 (1983), the Nebraska Supreme Court con-
sidered whether good cause had been shown to deviate from
the placement preferences specified in the ICWA. In that case,
the Indian child’s mother was deceased and the father was
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 969
Cite as 22 Neb. Ct. App. 959
unknown. The trial court terminated the parental rights of any
potential father, ordered that the child’s custody remain with
DHHS and that the child be placed for adoption, and continued
temporary custody with the child’s foster parents pending fur-
ther disposition by DHHS. The child’s maternal aunt appealed,
alleging, among other things, that the court erred in failing to
follow the placement preferences outlined in the ICWA or to
make any findings of good cause for not doing so. The record
in that case showed that there were several possible placements
for the child which had statutory preference over placement
with the current foster parents, who had no statutory claim
of preference. Although the evidence showed that the foster
parents were fit and proper persons to have custody, the lower
court made no finding to that effect; nor did it make a finding
about the fitness of the foster parents as compared to that of
the statutorily preferred individuals.
On appeal, the Nebraska Supreme Court noted that the
ICWA did not strictly require placement with a statutorily
preferred person or agency, but, rather, required only that the
statutory preferences be followed in the absence of good cause
to the contrary. The court observed that the only direct finding
made by the lower court was that the child’s aunt was unfit
to have custody of the child, a finding that was supported by
the evidence. However, the court observed that the evidence
was uncertain and that no finding had been made below as to
good cause for failing to follow the statutory preferences with
respect to the other preferred individuals or agencies. The
court observed that the ICWA “does not change the cardinal
rule that the best interests of the child are paramount, although
it may alter its focus.” In re Interest of Bird Head, 213 Neb.
at 750, 331 N.W.2d at 791. The court further stated that the
legislative history of the ICWA showed that its “good cause”
provision was intended to provide state courts with flexibility
in determining the placement of Indian children. The court
held that under the ICWA, factual support must exist in the
trial record for the purpose of appropriate appellate review as
to good cause for failure to comply with statutory child place-
ment preference directives. See In re Interest of Bird Head,
supra. Because the record lacked any findings by the lower
Decisions of the Nebraska Court of Appeals
970 22 NEBRASKA APPELLATE REPORTS
court as to what good cause was shown for deviation from the
placement preferences with respect to persons other than the
child’s aunt, the court remanded the cause for consideration of
whether good cause existed not to place the child with other
family or tribal members. Id.
Neither the ICWA nor the NICWA defines what constitutes
good cause for deviating from the statutory placement prefer-
ences; however, the Bureau of Indian Affairs has published
nonbinding guidelines for determining whether good cause
exists. We have previously looked to such guidelines for refer-
ence in NICWA cases concerning issues other than those pres-
ent in this case. See, generally, In re Interest of Enrique P. et
al., 19 Neb. Ct. App. 778, 813 N.W.2d 513 (2012); In re Interest
of Melaya F. & Melysse F., 19 Neb. Ct. App. 235, 810 N.W.2d
429 (2011); In re Interest of Ramon N., 18 Neb. Ct. App. 574, 789
N.W.2d 272 (2010). The Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594 (Nov.
26, 1979) (not codified), state, under subdivision (a) of para-
graph F.3, “Good Cause To Modify Preferences,” that for
purposes of foster care or preadoptive or adoptive placement,
a determination of good cause not to follow the order of pref-
erence in the ICWA shall be based on one or more of the fol-
lowing considerations:
(i) The request of the biological parents or the child
when the child is of sufficient age.
(ii) The extraordinary physical or emotional needs
of the child as established by testimony of a qualified
expert witness.
(iii) The unavailability of suitable families for place-
ment after a diligent search has been completed for fami-
lies meeting the preference criteria.
Those guidelines further state that the burden of establish-
ing the existence of good cause not to follow the statutory
preferences is on the party urging that the preferences not
be followed. The commentary section following the above
guidelines states that paragraph (iii) of the guidelines quoted
above recommends that a diligent attempt to find a suitable
family meeting the preference criteria be made before consid-
eration of a nonpreference placement is considered. A diligent
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 971
Cite as 22 Neb. Ct. App. 959
attempt to find a suitable family includes, at a minimum,
contact with the child’s tribal social service program, a search
of all county or state listings of available Indian homes, and
contact with nationally known Indian programs with available
placement resources. Id. at 67,595.
In this case, the trial court’s order found that the State had
met its burden of proof by showing good cause to deviate from
the placement requirements of the ICWA. The court found that
even though Brianna met the requirements of being a member
of the child’s extended family and of her home’s being a foster
home approved by the Tribe, the best interests of the children
indicated that a change of placement was not appropriate and
would adversely affect the children. The court found that the
children had been placed in their current foster home for more
than 3 years, which placement was made at Ida’s request. The
court further found that while Brianna had made some steps
toward being an appropriate placement, there still remained
concerns about her ability which had not been alleviated.
Clearly, the trial court’s determination as to good cause was
based on the appropriate determinations.
Upon our de novo review of the record, we conclude that
the record supports the finding that the State has shown good
cause to deviate from the statutory preferences of the ICWA.
The record indicates that at the inception of this case, Ida
requested that the children be placed with Tara and Terry.
Over the next 3 years, DHHS made attempts to find a suitable
family by maintaining contact with the Tribe and contact-
ing family members. The record indicates that DHHS was
continually informed by the Tribe that there were no Native
American homes available for placement in the area or on the
reservation. Throughout the proceedings, family members indi-
cated that they might be interested in placement, but most lost
interest and contact with DHHS. Brianna was the only family
member who maintained an interest in placement, but was
continually found by DHHS to be unsuitable for placement.
Furthermore, the testimony from the experts for both the State
and the Tribe, the caseworkers, and various other witnesses
clearly indicates that a change in placement at this time would
be emotionally detrimental and would adversely affect the
Decisions of the Nebraska Court of Appeals
972 22 NEBRASKA APPELLATE REPORTS
children, who are flourishing in their current placement, where
they have been for over 3 years. The children are thriving at
school and are active and social, and the need for any therapy
to address behavioral issues had completely ceased.
The ICWA does not require strict placement, only that
statutory preferences be allowed in the absence of good cause
to the contrary. Further, the ICWA does not change the long-
standing precedent that the best interests of the children are
paramount. Good cause has been shown, and the denial of
placement with Brianna at this time is in the best interests of
the children.
Due Diligence in Finding Placement.
The Tribe next assigns that the trial court erred in finding
that DHHS had exercised due diligence in compliance with
the ICWA, because it did nothing more than complete three
home studies of Brianna and was hostile in denying visita-
tion between the children and relatives. The Tribe argues that
DHHS did not make active efforts to prevent the breakup of the
Native American family.
[3,4] Generally stated, the substantive portions of the ICWA
and the corresponding portions of the NICWA provide height-
ened 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, 725
N.W.2d 548 (2007). Included in this heightened protection is
the active efforts reunification standard found in Neb. Rev.
Stat. § 43-1505(4) (Reissue 2008):
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.
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
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 973
Cite as 22 Neb. Ct. App. 959
be ‘culturally 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). In adjudica-
tion cases, the standard of proof for the active efforts element
in § 43-1505(4) is proof by a preponderance of the evidence.
In re Interest of Mischa S., 22 Neb. Ct. App. 105, 847 N.W.2d
749 (2014).
Based upon the record before this court, the procedural
posture of this case is unique. The case was previously before
the court on appeal regarding the voluntary relinquishment and
termination of both parents’ rights. See In re Interest of Nery
V. et al., 20 Neb. Ct. App. 798, 832 N.W.2d 909 (2013). In that
case, we affirmed Ida’s voluntary relinquishment of her rights
to Mario Jr. and Esperanza, remanded the cause for further
proceedings to be conducted after proper notice was given to
the Tribe, and vacated the order terminating the rights of the
biological father, Mario V., Sr., to all three children. Id.
The present case on appeal deals not with termination of
any parental rights, but with a change in placement. Initial
placement of the children was done in 2010, with the consent
of Ida and with no objection from the Tribe until 2013. Thus,
the case is still in the adjudication stages and the State must
prove active efforts not by the clear and convincing standard of
termination cases, but by a preponderance of the evidence. See
In re Interest of Mischa S., supra.
The Tribe asserts that this case is akin to In re Interest of
Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983). We dis-
agree and find the current circumstances distinguishable. We
have addressed In re Interest of Bird Head in great detail in the
previous section of our analysis and will not set out that infor-
mation as duplicative. It is clear that the record in In re Interest
of Bird Head completely lacked any findings by the juvenile
court, including as to what efforts had been made by DHHS
and whether the children’s current placement met any of the
statutory claims of preference. The decision was reversed and
the cause remanded for further proceedings because the place-
ment was not supported by good cause, not because DHHS had
not exercised due diligence.
Decisions of the Nebraska Court of Appeals
974 22 NEBRASKA APPELLATE REPORTS
In the present case, the trial court found that DHHS had
exercised due diligence in trying to find alternative family
placements but, until recently, was rejected by family members
and had been continually advised by the Tribe that no tribal
placements were available. It was not until October 2013 that
the Tribe indicated it had appropriate placement options for the
children and that Ida indicated she no longer wished to have
the children placed with Tara and Terry after initially request-
ing that they be placed there in 2010.
The NICWA expert for DHHS, Eveleth, testified that in this
case, family was first considered for placement of the children.
At one point, the children were placed with a family member,
and also, several family members such as a maternal great
aunt and a grandmother had been considered for placement but
eventually indicated to DHHS that they were not interested or
lost contact with DHHS completely. The first caseworker on
the case, Ledesma, contacted several family members regarding
placement, including one who did not complete a home study,
one who was denied after a home study, and one who declined
to be considered for placement of the children. Ledesma and
Eveleth also maintained contact with Bad Wound, the Tribe’s
ICWA expert, about the children via telephone and in-person
contacts. Eveleth testified that she specifically talked with Bad
Wound about placement with Native American families but
was informed that there were no families available for place-
ment in the area or on the Rosebud Sioux reservation. Eveleth
also testified that she was told that the Tribe had no family
or tribal services available for the family. DHHS sought out a
therapist who had experience with Native American heritage
and had actually provided services on the Rosebud Sioux res-
ervation. DHHS also attempted to form a cultural plan, but was
informed by the Tribe that it was too early for the formation of
a cultural plan.
Eveleth testified that there had been repeated contact with
Bad Wound which had been documented and that the appro-
priate notices had been sent to the Tribe. Eveleth explained
that initially, the children were not eligible for membership
in the Tribe during the children’s first contact with DHHS,
but DHHS continued to contact the Tribe thereafter and the
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 975
Cite as 22 Neb. Ct. App. 959
children were eventually eligible. The record shows that Tara
and Terry are fostering the children’s Native American culture
by taking them to powwows, visiting the Rosebud Indian res-
ervation, taking a trip to the Crazy Horse monument in South
Dakota, and frequently checking out books on the subject from
the library. These, based upon Brianna’s testimony, are signifi-
cantly more efforts than she provides her biological daughter.
Brianna testified that she has her federal identification card
from the Lakota Sioux Tribe and that she took her daughter
to a Tribe powwow in 2013. Other than those two instances,
Brianna testified she had very little involvement with the Tribe,
limited to talking to her daughter about her ancestors and buy-
ing a compact disc of “Indian music” to listen to. Therefore,
the record supports by a preponderance of the evidence that
DHHS made active efforts in this case.
However, we shall not go without mentioning that the
record has presented concern that these active efforts may
not survive a test under the clear and convincing standard in
possible future proceedings, given that the record indicates
that Brianna and other family members have requested visi-
tation with the children and had been denied and given that
there is no evidence of services offered by DHHS in light of
those relationships. As the case continues to proceed, DHHS
should be mindful of its heightened obligation to foster Native
American relationships.
CONCLUSION
In conclusion, we find that good cause exists for a devia-
tion from statutory placement preferences under the ICWA and
that the trial court did not err by denying the Tribe’s motion to
change placement. Further, the record supports a showing by a
preponderance of the evidence that active efforts were made by
DHHS to prevent the breakup of the Native American family.
Therefore, we affirm the order of the trial court.
Affirmed.