In re Interest of Jayden D. & Dayten J.

Decisions of the Nebraska Court of Appeals
666 21 NEBRASKA APPELLATE REPORTS
code, we determine that the juvenile court maintains the author-
ity to create visitation arrangements within the context of a
guardianship, so long as those arrangements are in the best
interests of the juvenile. In this case, the juvenile court was
operating under the misconception that it was without author-
ity to order visitation. Because we determine that the juvenile
court does have the authority to order visitation between the
mother and the affected juvenile, we reverse in part, and
remand to the juvenile court for a determination of May Lynn’s
visitation rights.
VI. CONCLUSION
We determine that the juvenile court properly issued the
letters of guardianship, and therefore, we affirm that portion
of the juvenile court’s decision. The juvenile court erred, how-
ever, in determining that it lacked authority to award visitation
rights in a guardianship proceeding. Accordingly, we reverse
in part, and remand to the juvenile court for a determination of
May Lynn’s visitation rights.
Affirmed in part, and in part reversed
and remanded with directions.
Pirtle, Judge, participating on briefs.
In re I nterest of Jayden D. and Dayten J.,
children under 18 years of age.
State of Nebraska, appellee, v.
Yolanda W.,
formerly known as Yolanda O., appellant.
___ N.W.2d ___
Filed January 14, 2014. No. A-13-193.
1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a trans-
fer to tribal court under the Indian Child Welfare Act is reviewed for an abuse
of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JAYDEN D. & DAYTEN J. 667
Cite as 21 Neb. App. 6663. Indian Child Welfare Act: Jurisdiction: Proof. The party opposing a transfer of
jurisdiction to the tribal courts has the burden of establishing that good cause not
to transfer the matter exists.
4. Indian Child Welfare Act: Words and Phrases. Under the definitional sections
of the Indian Child Welfare Act and the Nebraska Indian Child Welfare Act, the
term “child custody proceeding” includes foster care placement, termination of
parental rights, preadoptive placement, and adoptive placement.
5. Indian Child Welfare Act. A foster placement proceeding and a subsequent
termination of parental rights proceeding involving an Indian child are separate
and distinct under the Indian Child Welfare Act and the Nebraska Indian Child
Welfare Act.
6. Indian Child Welfare Act: Child Custody: Jurisdiction. The courts of this
state should not apply the “best interests of the child” standard in deciding
whether good cause exists to deny motions to transfer child custody proceedings
to tribal court.
7. Indian Child Welfare Act: Jurisdiction. Regarding the Indian Child Welfare
Act, in determining whether the doctrine of forum non conveniens should be
invoked, the trial court should consider practical factors that make trial of the
case easy, expeditious, and inexpensive, such as the relative ease of access to
sources of proof, the cost of obtaining attendance of witnesses, and the ability to
secure attendance of witnesses through compulsory process.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Reversed and remanded with
directions.
Patrick T. Carraher, of Legal Aid of Nebraska, for appellant.
Joe Kelly, Lancaster County Attorney, and Maureen E.
Lamski for appellee.
Moore, Pirtle, and Bishop, Judges.
Moore, Judge.
INTRODUCTION
Yolanda W., formerly known as Yolanda O., appeals from
the decision of the separate juvenile court of Lancaster County,
which denied her motion to transfer the termination of parental
rights proceeding in this juvenile case to tribal court. Because
we find that the State failed to establish good cause to deny the
transfer, we conclude that the juvenile court abused its discre-
tion in denying the motion to transfer. Accordingly, we reverse
the order of the juvenile court and remand the cause to the
Decisions of the Nebraska Court of Appeals
668 21 NEBRASKA APPELLATE REPORTS
juvenile court with directions to sustain the motion to transfer
to the tribal court.
BACKGROUND
Yolanda is the mother of Jayden D. and Dayten J. Because
neither child’s father is involved in this appeal, we discuss the
issues only as they relate to Yolanda, Jayden, and Dayten. The
children were removed from Yolanda’s care on December 2,
2010, when they were placed in the temporary legal custody
of the Nebraska Department of Health and Human Services
(the Department). The children have remained in placements
outside the family home since that time.
On December 3, 2010, the State filed a petition in the juve-
nile court, alleging that Jayden and Dayten were persons as
defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) in
that they lacked proper parental care by reason of the fault or
habits of their mother, Yolanda.
The children were apparently adjudicated on January 4,
2011, although the adjudication order is not included in our
record on appeal. On that date, the juvenile court also found
that the provisions of the Nebraska Indian Child Welfare
Act (NICWA) apply to this case. On April 15, following a
dispositional hearing, the court found that expert testimony
had been provided as required under NICWA and found clear
and convincing evidence that being under Yolanda’s care
was likely to result in serious emotional or physical damage
to the children. The court also found that active efforts had
been made in the form of case management, service coordi-
nation, pretreatment assessment, supervised visits, intensive
outpatient treatment, transportation, clothing, medication con-
sultation, and monthly team meetings to eliminate out-of-
home placement.
The record shows that on April 6, 2012, the State filed a
motion seeking to terminate Yolanda’s parental rights to both
children, although our record does not include a copy of that
motion or any filings that may have been made after it and
prior to the termination hearing. A formal hearing was held
on the termination motion on December 7 and 10. The record
shows that no motion to transfer the case was made prior to
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JAYDEN D. & DAYTEN J. 669
Cite as 21 Neb. App. 666that time, either by Yolanda or by the Oglala Sioux Tribe (the
Tribe). At the hearing, the State apparently moved to dismiss
the termination allegations relating to Jayden and the matter
was submitted only on the allegations relating to Dayten.
On December 12, 2012, the juvenile court entered an order
dismissing the motion to terminate Yolanda’s parental rights.
The order indicated that Dayten’s father had relinquished
his parental rights on December 10. The court recited sev-
eral findings regarding Yolanda, including that she had made
minimal progress, had been inconsistent in family therapy and
visitation, had attempted to commit suicide in her home and
was discovered by Dayten, had “great instability” in her per-
sonal life, and had been homeless and without means of sup-
port during periods of the preceding year. However, because
the motion for termination did not include allegations that
conformed to NICWA, the court found that dismissal was
required due to the State’s failure to state facts sufficient to
constitute a cause of action for termination of parental rights
under NICWA. The court noted, however, that had the case
not been governed by NICWA, the outcome would likely have
been different.
On January 2, 2013, the State filed a second motion, seek-
ing to terminate Yolanda’s parental rights only with respect
to Dayten. The State alleged that grounds for termination
existed under Neb. Rev. Stat. § 43-292(2), (4), (6), and (7)
(Cum. Supp. 2012). The State also alleged that termination of
Yolanda’s parental rights was in Dayten’s best interests and
included the required NICWA allegations.
An affidavit and notice filed January 8, 2013; an order
dated January 4, 2013; and a copy of the second termination
motion were sent to the Tribe. The record shows that the Tribe
received the notice on January 23.
On January 16, 2013, Yolanda filed a motion seeking to
transfer the proceedings with respect to Dayten to tribal court.
Among other things, she alleged that Dayten was eligible for
membership in the Tribe and that she was unaware of any
facts supporting good cause not to transfer. The State filed an
objection to Yolanda’s motion on February 12, alleging that
the motion failed to state the tribal court would accept the
Decisions of the Nebraska Court of Appeals
670 21 NEBRASKA APPELLATE REPORTS
case, that the case was at an advanced state of the termination
proceeding, that the transfer was not in Dayten’s best interests,
that the tribal court was an inconvenient forum, and that good
cause existed not to transfer the case.
On February 14, 2013, the juvenile court heard Yolanda’s
motion to transfer. The court received into evidence a vol-
untary consent to temporary foster care placement signed by
Yolanda in January 2011, which Yolanda offered in order to
show tribal affiliation. The consent form shows that Yolanda
is an enrolled member of the Tribe, but the portion of the
form relating to Dayten’s enrollment in or eligibility for
tribal membership was left blank. The Department caseworker
assigned to the case testified that she had not ever had any
contact with the Tribe in connection with this case and was
not aware of whether the Tribe would accept a transfer. She
was also not aware of whether the Department had had any
such contact.
According to the caseworker, before Dayten’s initial place-
ment, the Department looked for a Native American home, but
there were none available. Since his removal from Yolanda’s
home, Dayten has been in at least three different foster homes,
none of which have been Native American foster homes. The
caseworker also testified about Dayten’s behavioral issues,
which have sometimes made it difficult to find placement for
him. The current foster family had not indicated a willingness
to adopt, but as far as the caseworker knew, Dayten was doing
“okay” in his current placement.
On March 4, 2013, the juvenile court entered an order over-
ruling the motion to transfer. The court found that good cause
had been shown to deny the motion to transfer the proceedings
as to Dayten because the court would continue to exercise
jurisdiction over Jayden. The court also found that the motion
to transfer was filed at a late stage of the proceeding in that the
case had been pending for over 2 years and a formal hearing
had already been held on the first motion for termination that
was filed nearly a year before. Yolanda subsequently perfected
her appeal to this court.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JAYDEN D. & DAYTEN J. 671
Cite as 21 Neb. App. 666ASSIGNMENT OF ERROR
Yolanda asserts that the juvenile court erred in denying her
motion to transfer the termination of parental rights proceed-
ing in this juvenile case to tribal court.
STANDARD OF REVIEW
[1,2] A denial of a transfer to tribal court under the federal
Indian Child Welfare Act (ICWA) is reviewed for an abuse
of discretion. In re Interest of Zylena R. & Adrionna R., 284
Neb. 834, 825 N.W.2d 173 (2012), cert. denied sub nom.
Nebraska v. Elise M., ___ U.S. ___, 134 S. Ct. 65, ___ L.
Ed. 2d ___ (2013). A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition. In re Interest
of Samantha L. & Jasmine L., 284 Neb. 856, 824 N.W.2d
691 (2012).
ANALYSIS
Yolanda asserts that the juvenile court erred in denying her
motion to transfer the termination of parental rights proceeding
in this juvenile case to tribal court.
[3] NICWA provides in Neb. Rev. Stat. § 43-1504(2)
(Reissue 2008):
In any state court proceeding for the foster care place-
ment of, or termination of parental rights to, an Indian
child not domiciled or residing within the reservation of
the Indian child’s tribe, the court, in the absence of good
cause to the contrary, shall transfer such proceeding to
the jurisdiction of the tribe, absent objection by either
parent, upon the petition of either parent or the Indian
custodian or the Indian child’s tribe, except that such
transfer shall be subject to declination by the tribal court
of such tribe.
See, also, 25 U.S.C. § 1911 (2006) (corresponding ICWA pro-
vision regarding transfer of proceedings). The party opposing
a transfer of jurisdiction to the tribal courts has the burden of
establishing that good cause not to transfer the matter exists.
In re Interest of Zylena R. & Adrionna R., supra. Because the
Decisions of the Nebraska Court of Appeals
672 21 NEBRASKA APPELLATE REPORTS
State opposed Yolanda’s motion to transfer, it bore the burden
of establishing good cause in this case.
Neither ICWA nor NICWA defines “good cause,” but the
Bureau of Indian Affairs has published nonbinding guide-
lines (BIA Guidelines) for determining whether good cause
exists. The appellate courts of this state have looked to the
BIA Guidelines in the past in determining good cause. See, In
re Interest of Zylena R. & Adrionna R., supra; In re Interest
of Melaya F. & Melysse F., 19 Neb. App. 235, 810 N.W.2d
429 (2011).
Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979) (not
codified), states in part:
C.3. Determination of Good Cause to the Contrary
(a) Good cause not to transfer the proceeding exists
if the Indian child’s tribe does not have a tribal court as
defined by [ICWA] to which the case can be transferred.
(b) Good cause not to transfer the proceeding may exist
if any of the following circumstances exists:
(i) The proceeding was at an advanced stage when the
petition to transfer was received and the petitioner did
not file the petition promptly after receiving notice of
the hearing.
(ii) The Indian child is over twelve years of age and
objects to the transfer.
(iii) The evidence necessary to decide the case could
not be adequately presented in the tribal court without
undue hardship to the parties or the witnesses.
(iv) The parents of a child over five years of age are
not available and the child has had little or no contact
with the child’s tribe or members of the child’s tribe.
(c) Socio-economic conditions and the perceived ade-
quacy of tribal or Bureau of Indian Affairs social services
or judicial systems may not be considered in a determina-
tion that good cause exists.
With respect to the timeliness of transfer requests, the com-
mentary to the BIA Guidelines states:
Although [ICWA] does not explicitly require transfer
petitions to be timely, it does authorize the court to refuse
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JAYDEN D. & DAYTEN J. 673
Cite as 21 Neb. App. 666to transfer a case for good cause. When a party who
could have petitioned earlier waits until the case is almost
complete to ask that it be transferred to another court and
retried, good cause exists to deny the request.
44 Fed. Reg., supra, 67,590, C.1, commentary. The commen-
tary further states, “Application of th[e] criterion” in subsec-
tion (b)(iii) of the guidelines, quoted above, “will tend to limit
transfers to cases involving Indian children who do not live
very far from the reservation.” 44 Fed. Reg., supra, 67,591,
C.3, commentary.
[4,5] The Nebraska Supreme Court recently considered
whether there was good cause not to transfer a case to tribal
court in In re Interest of Zylena R. & Adrionna R., 284 Neb.
834, 825 N.W.2d 173 (2012), cert. denied sub nom. Nebraska
v. Elise M., ___ U.S. ___, 134 S. Ct. 65, ___ L. Ed. 2d ___
(2013). The court in In re Interest of Zylena R. & Adrionna
R. first considered what constitutes a “proceeding” for pur-
poses of ICWA and NICWA in order to determine whether the
proceeding in that case was at such an advanced stage as to
justify denial of the motion to transfer. The court determined
that “[u]nder the definitional sections of ICWA and NICWA,
the term ‘child custody proceeding’ includes foster care place-
ment, termination of parental rights, preadoptive placement,
and adoptive placement.” 284 Neb. at 845, 825 N.W.2d at 181.
The court concluded:
ICWA and NICWA contemplate four different types of
child custody proceedings, two of which must be trans-
ferred from a state court to a tribal court upon proper
motion in the absence of good cause to the contrary. Thus
when the BIA Guidelines state that good cause may exist
when “[t]he proceeding was at an advanced stage” at the
time a petition to transfer is received, they can only be
referring to one of the two proceedings subject to transfer:
foster care placement or termination of parental rights.
The State’s argument that a foster care placement pro-
ceeding and a termination of parental rights proceeding
are a single “proceeding” for purposes of the “advanced
stage” analysis is inconsistent with the plain language
of ICWA and NICWA, which defines them as separate
Decisions of the Nebraska Court of Appeals
674 21 NEBRASKA APPELLATE REPORTS
proceedings. The fact that Nebraska law permits both
objectives to be pursued sequentially in a single-docketed
case is entirely irrelevant to the question of whether they
are separate “proceedings” under the plain statutory lan-
guage of ICWA and NICWA.
284 Neb. at 846, 825 N.W.2d at 182. The court held that a
foster placement proceeding and a subsequent termination of
parental rights proceeding involving an Indian child are sepa-
rate and distinct under ICWA and NICWA, disapproving prior
Nebraska case law, specifically In re Interest of C.W. et al.,
239 Neb. 817, 479 N.W.2d 105 (1992), to the extent it could
be read as holding that such proceedings are not separate and
distinct. In In re Interest of Zylena R. & Adrionna R., the tribe
requested transfer less than a month after the State filed its ter-
mination motions and prior to the parents’ pleas and any sub-
stantive hearing on the termination. Accordingly, the Supreme
Court found it clear that the case was not at an advanced stage
of the termination proceeding.
[6] The court in In re Interest of Zylena R. & Adrionna R.
also held that the courts of this state should not apply the “best
interests of the child” standard in deciding whether good cause
exists to deny motions to transfer child custody proceedings
to tribal court, further overruling In re Interest of C.W. et al.,
supra, in this regard.
The initial adjudication petition in this case was filed in
December 2010. The first motion for termination of parental
rights was filed in April 2012. In December 2012, a 2-day
formal termination hearing was held. This termination motion
was dismissed for failure to include NICWA allegations. On
January 2, 2013, the State filed the second termination motion,
which included NICWA allegations, and Yolanda filed her
motion to transfer on January 16. In overruling Yolanda’s
motion, the court found that good cause had been shown to
deny Yolanda’s motion to transfer, in part because it was filed
at an advanced stage of the proceeding. The court observed
that the case had been pending for over 2 years and that a
formal hearing had already been held on the first termination
motion. The court also relied on the fact that Yolanda’s motion
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JAYDEN D. & DAYTEN J. 675
Cite as 21 Neb. App. 666to transfer was filed nearly a year after the State filed the first
termination motion.
The Nebraska Supreme Court’s decision in In re Interest
of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173(2012), cert. denied sub nom. Nebraska v. Elise M., ___ U.S.
___, 134 S. Ct. 65, ___ L. Ed. 2d ___ (2013), makes it clear
that foster care placement proceedings and termination of
parental rights proceedings are separate proceedings for pur-
poses of “advanced stage” analysis. Thus, the amount of time
between the initial adjudication petition and Yolanda’s motion
to transfer is not relevant. Here, Yolanda’s motion to transfer
was filed very shortly after the current termination motion was
filed, and as such, this termination proceeding cannot be said
to be at an advanced stage. We recognize that this case presents
a somewhat unique procedural posture in that a previous termi-
nation proceeding was completed but was ultimately dismissed
because of a pleading deficiency. Yolanda did not seek to trans-
fer the previous termination proceeding despite the prior court
acknowledgment that NICWA applied to this case. In its oral
findings made at the conclusion of the hearing, the juvenile
court acknowledged the holding in In re Interest of Zylena R.
& Adrionna R., but essentially found that this case was still at
an advanced stage because it was a second termination motion
within the same case, filed nearly a year after the first termi-
nation motion, and was therefore not a new proceeding. The
court also noted that the second termination motion included
basically the same allegations as the first termination motion,
with the addition of the NICWA allegations.
We disagree with the juvenile court’s determination that
the second termination motion is not a new proceeding.
To the contrary, the first termination motion was dismissed
and a new trial will need to be held on the second termina-
tion motion. Additional evidence will likely be necessary
at the second termination trial in order to attempt to prove
the NICWA allegations. Under the dictates of In re Interest
of Zylena R. & Adrionna R., supra, the second termination
motion is a separate and distinct proceeding, and as such,
Yolanda’s motion to transfer was not made at an advanced
Decisions of the Nebraska Court of Appeals
676 21 NEBRASKA APPELLATE REPORTS
stage. Accordingly, the juvenile court abused its discretion in
finding otherwise.
The juvenile court also denied the motion to transfer the
termination proceeding involving Dayten because the court
still had continuing jurisdiction over Jayden. This is essentially
a forum non conveniens matter, which may be a valid basis
for good cause to deny transfer. See, In re Interest of Leslie S.
et al., 17 Neb. App. 828, 770 N.W.2d 678 (2009), abrogated
on other grounds, In re Interest of Zylena R. & Adrionna R.,
supra; In re Interest of Brittany C. et al., 13 Neb. App. 411,
693 N.W.2d 592 (2005). The consideration of forum non
conveniens essentially involves the question of whether pre-
sentation of the matter in the tribal court would be an undue
hardship to the parties or witnesses under the BIA Guidelines
noted above.
In In re Interest of Leslie S. et al., supra, the State filed a
petition, alleging that the mother’s six children were within
the meaning of § 43-247(3)(a). The mother and all six chil-
dren were enrolled members of the Omaha Tribe of Nebraska.
The father of the youngest two children was also a tribe mem-
ber. After the original juvenile petition was filed, there were
several additional petitions filed in juvenile court involving
some of the children. A delinquency case was filed involv-
ing one child. A truancy case involving a second child was
filed. That child also had a child of her own, who was not
eligible for tribal membership but who had been made a ward
of the State in another juvenile case. The tribe filed an initial
motion to transfer to tribal court, which was denied based on
the mother’s objection. Subsequently, the tribe filed a second
motion to transfer and the father of the youngest two children
also filed a motion to transfer. The juvenile court found good
cause to deny the transfer based on the facts that a previous
motion had been denied, that the case was at an advanced
stage, that the court had jurisdiction over multiple cases
involving several of the children, and that the transfer would
not be in the children’s best interests. The father appealed in
this case predating In re Interest of Zylena R. & Adrionna R.,
284 Neb. 834, 825 N.W.2d 173 (2012), cert. denied sub nom.
Nebraska v. Elise M., ___ U.S. ___, 134 S. Ct. 65, ___ L. Ed.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JAYDEN D. & DAYTEN J. 677
Cite as 21 Neb. App. 6662d ___ (2013), and this court affirmed, relying on the fact that
the father had not filed his motion until more than 2 years
after the filing of the original juvenile court petition. We also
relied on the fact that several other cases involving some of
the children would remain in the juvenile court.
While it is true in this case that if Dayten’s case were
transferred to tribal court, the juvenile court would presum-
ably retain jurisdiction over Jayden’s case, we find that this
case is nevertheless distinguishable from In re Interest of
Leslie S. et al., which involved numerous children and pro-
ceedings. Further, the motion in In re Interest of Leslie S. et
al. was denied for the additional reason that it was filed at
an advanced stage. Here, the proceeding sought to be trans-
ferred is for termination of parental rights as to Dayten only,
which does not affect, and is not affected by, the remaining
case regarding Jayden. We note that the State initially sought
termination of Yolanda’s parental rights as to both children
but that during the hearing on that motion, the State appar-
ently moved to dismiss the termination allegations relating
to Jayden. A bill of exceptions from that hearing was not
included in our record on appeal, so it is unclear why the
State chose not to proceed with termination as to Jayden at
that time or why Jayden was not included in the second ter-
mination motion. Having already found that the motion to
transfer Dayten’s case was not at an advanced stage of the
second termination proceeding, we also conclude that the fact
that Jayden’s case remains in the juvenile court is not a suf-
ficient reason to deny the transfer. Under the circumstances
of this case, the juvenile court abused its discretion in finding
that its retention of jurisdiction over Jayden’s case supported
a finding of good cause to deny transfer of Dayten’s termina-
tion proceeding.
[7] As to additional factors that might support invoking the
doctrine of forum non conveniens, the record is devoid of any
such evidence. Prior case law has noted:
In determining whether the doctrine of forum non
conveniens should be invoked, the trial court should
consider practical factors that make trial of the case easy,
expeditious, and inexpensive, such as the relative ease of
Decisions of the Nebraska Court of Appeals
678 21 NEBRASKA APPELLATE REPORTS
access to sources of proof, the cost of obtaining attend­
ance of witnesses, and the ability to secure attendance of
witnesses through compulsory process.
In re Interest of C.W. et al., 239 Neb. 817, 828, 479 N.W.2d
105, 113 (1992), disapproved and overruled on other grounds,
In re Interest of Zylena R. & Adrionna R., supra. Accord, In
re Interest of Melaya F. & Melysse F., 19 Neb. App. 235, 810
N.W.2d 429 (2011); In re Interest of Brittany C. et al., 13 Neb.
App. 411, 693 N.W.2d 592 (2005).
For example, in In re Interest of Brittany C. et al., there
was evidence at the hearing on the motion to transfer that
neither the mother nor her children were living on the reserva-
tion. There was evidence that the mother had lived in Scotts
Bluff County since 1984 and that the children had lived in the
area for most of their lives. There was testimony about which
witnesses would be needed to present the case, as well as tes-
timony that it took about 2 hours to travel between the loca-
tion of the parties and witnesses and the location of the tribal
court. Although the evidence was unclear, there was some
evidence about the process used to call witnesses to appear in
tribal court.
In this case, no such evidence was presented. A review of
the transcript shows that the Tribe is located in South Dakota
and that at least at the time the juvenile petition was filed,
Yolanda and the children resided in the Lincoln, Nebraska,
area. There was no evidence presented at the hearing on the
motion to transfer regarding the current location of Yolanda
and the children, what witnesses might be called in the termi-
nation proceeding, where those witnesses were located, where
the tribal court was located, or the ease with which evidence
might be presented in the tribal court. We find that the juvenile
court abused its discretion in determining that transferring the
termination proceeding involving Dayten to the tribal court
would result in a forum non conveniens.
The State had the burden of establishing good cause not
to transfer the proceedings regarding Dayten to tribal court,
and it failed to do so. The juvenile court abused its discre-
tion in finding otherwise. Accordingly, we reverse the order
of the juvenile court and remand the cause to the juvenile
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JAYDEN D. & DAYTEN J. 679
Cite as 21 Neb. App. 666court with directions to sustain the motion to transfer to the
tribal court.
CONCLUSION
Because the State did not meet its burden of establishing
good cause to deny transfer to tribal court, the juvenile court
abused its discretion in denying Yolanda’s motion to transfer.
We reverse the order of the juvenile court and remand the
cause with directions to sustain the motion to transfer.
R eversed and remanded with directions.