In re Interest of Shayla H.

CASES DETERMINED
IN THE
NEBRASKA COURT OF APPEALS
In re I nterest of
Shayla H. et al.,
children under 18 years of age.
State of Nebraska, appellee, v.
David H., appellant.
___ N.W.2d ___
Filed May 20, 2014. No. A-13-643.
1. Juvenile Courts: Evidence: Appeal and Error. Cases arising under the
Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court will consider and
give weight to the fact that the lower court observed the witnesses and accepted
one version of the facts over another.
2. Indian Child Welfare Act: Parental Rights. 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.
3. Indian Child Welfare Act: Parental Rights: Proof. The active efforts standard
contained in Neb. Rev. Stat. § 43-1505 (Reissue 2008) requires more than the
reasonable efforts standard that applies in cases not involving the Indian Child
Welfare Act.
4. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
5. Juvenile Courts: Minors. The Nebraska Juvenile Code must be liberally con-
strued to accomplish its purpose of serving the best interests of the juveniles who
fall within it.
6. Juvenile Courts. The juvenile court has broad discretion as to the disposition of
those who fall within its jurisdiction.
7. Juvenile Courts: Parental Rights. A juvenile court has the discretionary power
to prescribe a reasonable program for parental rehabilitation to correct the
conditions underlying the adjudication that a child is within the Nebraska
Juvenile Code.
(1)
Decisions of the Nebraska Court of Appeals
2 22 NEBRASKA APPELLATE REPORTS
8. ____: ____. While there is no requirement that the juvenile court must institute
a plan for rehabilitation of a parent, the rehabilitation plan must be conducted
under the direction of the juvenile court and must be reasonably related to the
plan’s objective of reuniting parent with child.
9. Juvenile Courts: Appeal and Error. In analyzing the reasonableness of a
plan offered by a juvenile court, the Nebraska Supreme Court has noted that
the following question should be addressed: Does a provision in the plan tend
to correct, eliminate, or ameliorate the situation or condition on which the
adjudication has been obtained under the Nebraska Juvenile Code? An affirm­
ative answer to the preceding question provides the materiality necessary in a
rehabilitative plan for a parent involved in proceedings within a juvenile court’s
jurisdiction. Otherwise, a court-ordered plan, ostensibly rehabilitative of the
conditions leading to an adjudication under the Nebraska Juvenile Code, is
nothing more than a plan for the sake of a plan, devoid of corrective and reme-
dial measures.
10. Juvenile Courts: Parent and Child. Similar to other areas of law, reasonable-
ness of a rehabilitative plan for a parent depends on the circumstances in a par-
ticular case and, therefore, is examined on a case-by-case basis.
Appeal from the Separate Juvenile Court of Lancaster
County: Linda S. Porter, Judge. Affirmed in part, and in part
reversed and remanded for further proceedings.
Patrick T. Carraher, of Legal Aid of Nebraska, for appellant.
Ashley Bohnet, Deputy Lancaster County Attorney, and
Nikki Blazey, Senior Certified Law Student, for appellee.
Rosalynd Koob, of Heidman Law Firm, L.L.P., for amici
curiae Winnebago Tribe of Nebraska and Omaha Tribe of
Nebraska.
Brad S. Jolly, of Brad S. Jolly & Associates, L.L.C., for
amicus curiae Ponca Tribe of Nebraska.
Jennifer Bear Eagle, of Fredericks, Peebles & Morgan,
L.L.P., for amicus curiae Santee Sioux Nation.
Robert McEwen and Sarah Helvey, of Nebraska Appleseed
Center for Law in the Public Interest, for amicus curiae
Nebraska Appleseed Center for Law in the Public Interest.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 3
Cite as 22 Neb. Ct. App. 1
Moore, Judge.
Following a dispositional hearing, the separate juvenile
court of Lancaster County found that reasonable efforts had
been made to return to David H. legal custody of his three chil-
dren, but that returning the children’s legal custody to David
at that time would be contrary to their welfare. David was
ordered to follow numerous provisions in a rehabilitation plan.
David appeals, assigning error to the court’s use of the reason-
able efforts standard in place of the active efforts standard of
the Indian Child Welfare Act (ICWA) in the disposition order.
He also argues that the plan’s provisions were not materially
related to the underlying adjudication and that the court erred
in permitting a change in the family therapist. For the reasons
set out in our opinion below, we affirm in part, and in part
reverse and remand for further proceedings.
FACTUAL BACKGROUND
David is the father of three minor children: Shayla H.,
born in August 2001; Shania H., born in August 2003; and
Tanya H., born in September 2004. He and his three daugh-
ters live together with his girlfriend, Danielle R., and her
three children. Through David, his daughters are eligible for
enrollment with the Rosebud Sioux Tribe. At the time of this
case, the record shows that Shania and Tanya had become
enrolled members of the tribe, while Shayla remained eligible
for enrollment.
On January 17, 2013, the Department of Health and Human
Services (DHHS) received an intake after Shayla was observed
at school with a “dark purple hand-print bruise” on her right
cheek. When describing the cause of her injuries, Shayla
stated that Danielle had held her down and slapped her. The
next day, DHHS took custody of David’s and Danielle’s chil-
dren and removed them from the home. On January 22, the
State filed a petition alleging that all six children, David’s and
Danielle’s, lacked proper care by reason of Danielle’s faults
or habits.
By January 29, 2013, all of the children had returned home
except for Shayla. Following a hearing on the State’s motion
for temporary custody, Shayla returned home on March 9.
Decisions of the Nebraska Court of Appeals
4 22 NEBRASKA APPELLATE REPORTS
All of the children have remained placed in the home since
their return.
The State first notified the Rosebud Sioux Tribe of these
juvenile court proceedings by way of an affidavit and notice
dated January 31, 2013. The tribe filed a notice of interven-
tion shortly thereafter. Following a hearing on April 2, the
court granted the tribe leave to intervene as a party in these
proceedings. The tribe did not appear at the adjudication or the
disposition hearing.
The juvenile court held an adjudication hearing on April 19,
2013. On May 31, the court issued an order finding that the
State had proved its allegations that Danielle had used inap-
propriate physical discipline on Shayla. Accordingly, the court
found that Shayla, Shania, and Tanya (David’s children) were
at risk of harm as a result of Danielle’s inappropriate disci-
pline. However, the court declined to exercise jurisdiction over
Danielle’s children. In making that decision, the court reasoned
that Danielle’s children were older than David’s and noted that
there was no evidence of Danielle’s having used inappropriate
discipline on her children.
David and Danielle have participated in a variety of serv­
ices since the initial intake in this case. Caseworkers have
entered their home on a daily basis to observe the family at
random times throughout the day. The family also success-
fully completed a unification services program which focused
on David’s and Danielle’s parenting without using physical
discipline. In the program’s discharge report, the service pro-
viders noted that David and Danielle had improved their abili-
ties in addressing negative behaviors and teaching alternative
positive behaviors. In addition to these programs, the family
also continued to receive family counseling from therapist
Laurie Crayne.
The first dispositional hearing in this case was held on July
11, 2013. Silvia Betta Cole, a children and family service spe-
cialist for DHHS, was the only witness to testify at the hear-
ing, and her lengthy court report was received in evidence.
Cole has been the case manager since February 2013. Cole
discussed David’s and Danielle’s use of a closet to discipline
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 5
Cite as 22 Neb. Ct. App. 1
Tanya. When Tanya misbehaved at school, she would be sepa-
rated from the class in an alternative learning environment
room until she corrected the behavior. To simulate this form of
discipline at home, David and Danielle cleared out a closet and
would have Tanya sit inside after misbehaving. While Tanya
was inside, the door remained open. Cole also testified that
allegations that Tanya was put into a closed closet were found
to be untrue after a police investigation.
During Cole’s testimony, she stated that DHHS wished to
change the family therapist because the family had been work-
ing with Crayne for almost 4 years and DHHS felt as though
the children had not made sufficient progress. In her opinion, a
new perspective in this case would be beneficial. At the time of
the hearing, she had identified a good candidate to become the
replacement family therapist. Cole opined that the case was not
at a stage where it could be closed, because the children had
ongoing behavioral issues. She noted that Shania had a pos-
sible eating disorder and that Tanya had exhibited a tendency
to run away from home after having visited with her biologi-
cal mother.
After Cole’s testimony, the State requested the court to adopt
the DHHS recommendations that were contained in Cole’s
report. David objected to those recommendations, contend-
ing that many of the provisions were not related to the rea-
son for the adjudication. He noted that the case would never
be closed if DHHS attempts to “fix every problem that was
not adjudicated.”
At the conclusion of this hearing, the court orally announced
that it was accepting the DHHS recommendation for a change
in the family therapist. In the written order that followed, the
court found that reasonable efforts had been made to return
legal custody to David. However, the court concluded that
returning the children’s legal custody to David at that time
would be contrary to their welfare. The court also made nine
specific orders related only to David. Specifically, the court
ordered David to
a. . . . cooperate with [DHHS] and service providers in
his home.
Decisions of the Nebraska Court of Appeals
6 22 NEBRASKA APPELLATE REPORTS
b. . . . cooperate with all drop-in services as arranged
by [DHHS] and allow access to [his] children and the
family home at all times.
c. . . . not discuss the children’s mother . . . or
their visitation with their mother, except in a therapeu-
tic setting.
d. . . . not use any form of physical discipline on any of
the minor children, except any restraint-based discipline
specifically approved by [DHHS, and] not place any of
the minor children in a closet as a form of discipline at
any time.
e. . . . provide the children access to necessary mental
health care, including medication checks as appropriate.
f. . . . cooperate with family therapy as arranged by
[DHHS].
g. . . . schedule and attend the children’s regular medi-
cal, dental, and vision examinations and other specialist
appointments as necessary and recommended by medi-
cal providers.
h. . . . schedule an appointment for Shania’s speech and
language evaluation, as recommended . . . in her psycho-
logical evaluation.
i. . . . ensure that the children have adequate adult
supervision at all times [when] they are in his care.
David appeals from this order. An amici curiae brief was filed
by Nebraska Appleseed Center for Law in the Public Interest
and the Nebraska ICWA Coalition, consisting of the Ponca
Tribe of Nebraska, Winnebago Tribe of Nebraska, Omaha
Tribe of Nebraska, and Santee Sioux Nation.
ASSIGNMENTS OF ERROR
David assigns, renumbered and restated, that the juvenile
court erred in (1) applying the reasonable efforts standard for
reunification instead of the ICWA standard of active efforts,
(2) ordering him to follow a dispositional plan that was not
material to the underlying reason for the adjudication, and (3)
ordering his family to change the family therapist.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 7
Cite as 22 Neb. Ct. App. 1
STANDARD OF REVIEW
[1] Cases arising under the Nebraska Juvenile Code are
reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the trial court’s
findings. However, when the evidence is in conflict, the appel-
late court will consider and give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over another. In re Interest of Rylee S., 285 Neb. 774,
829 N.W.2d 445 (2013).
ANALYSIS
Active Efforts Standard
of Reunification.
We first address David’s argument that the district court
erred when it found that the State had made reasonable efforts
to return the children’s legal custody to him. He contends that
ICWA applies to this case and that the active efforts standard
should be applied at all stages in the case. The State responds
that ICWA does not apply in cases, such as the present case,
when physical custody of the minor children remains with a
parent. Instead, the State argues that the ICWA active efforts
requirement applies in only select custody proceedings when
the State seeks a foster care placement or termination of paren-
tal rights to an Indian child.
We begin our analysis of this issue by noting that the pur-
pose of ICWA, enacted in 1978, is
to protect the best interests of Indian children and to pro-
mote the stability and security of Indian tribes and fami-
lies by the establishment of minimum Federal standards
for the removal of Indian children from their families
and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian cul-
ture, and by providing for assistance to Indian tribes in
the operation of child and family service programs.
25 U.S.C. § 1902 (2012).
[2] The Nebraska Indian Child Welfare Act (NICWA) was
enacted by the Nebraska Legislature in 1985 to “clarify state
policies and procedures regarding the implementation by the
Decisions of the Nebraska Court of Appeals
8 22 NEBRASKA APPELLATE REPORTS
State of Nebraska of [ICWA].” Neb. Rev. Stat. § 43-1502
(Reissue 2008). The Legislature declared that “[i]t shall be
the policy of the state to cooperate fully with Indian tribes in
Nebraska in order to ensure that the intent and provisions of
[ICWA] are enforced.” § 43-1502. Generally stated, the sub-
stantive portions of ICWA and the corresponding portions of
NICWA provide 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, 725 N.W.2d 548 (2007).
[3] 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.
Case law in this state has clearly established that the active
efforts standard in this section requires more than the reason-
able efforts standard that applies in cases not involving ICWA.
See, In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d
55 (2008); In re Interest of Ramon N., 18 Neb. Ct. App. 574, 789
N.W.2d 272 (2010). See, also, Neb. Rev. Stat. § 43-292(6)
(Cum. Supp. 2012).
The question presented to us in this case is whether ICWA’s
active efforts standard applies when the State, through DHHS,
has legal custody of the children, but the children are placed
in the parental home. Nebraska appellate courts have not spe-
cifically addressed this question. David argues that case law
from other jurisdictions should lead this court to conclude that
ICWA’s protections are applicable at all stages of a juvenile
court proceeding.
To support his claim, David directs our attention to In
re Jennifer A., 103 Cal. App. 4th 692, 127 Cal. Rptr. 2d 54
(2002), a decision from a California Court of Appeal. In that
case, a juvenile was adjudicated as a neglected child due to her
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 9
Cite as 22 Neb. Ct. App. 1
mother’s faults and removed from the custody of her mother.
Id. During a detention hearing, the superior court was allegedly
notified that both of the child’s parents were of Indian heritage.
Id. At trial, however, no evidence relating to notice to the tribes
was presented. After a subsequent disposition hearing, the
court awarded custody of the child to her father, who was not
married to the child’s mother. Id.
On appeal, the mother argued that the lower court did not
comply with ICWA’s notice requirements. In re Jennifer A.,
supra. She contended that the record did not contain any
proof that the tribes had been notified of the proceedings and
of their right to intervene in the proceedings. Id. The county
social services agency argued that any violation of the notice
requirements was harmless because the child was ultimately
placed in her father’s custody. The California appellate court
agreed with the mother, holding that because the county
social services agency was seeking foster care placement
in an involuntary proceeding, the county was obligated to
comply with the ICWA notice requirements. In re Jennifer
A., supra.
However, we note that a subsequent decision from the
California Court of Appeal noted that the holding in In re
Jennifer A. was limited to the specific facts presented in that
case. See In re Alexis H., 132 Cal. App. 4th 11, 33 Cal. Rptr.
3d 242 (2005). In so limiting In re Jennifer A., supra, the
California court noted that the statutory text limited ICWA’s
application to cases where Indian children were removed from
their family. See In re Alexis H., supra.
In its opinion in In re Jennifer A., supra, the court relied
on prior decisions from Oregon and Iowa. In State ex rel.
Juv. Dept. v. Cooke, 88 Or. App. 176, 744 P.2d 596 (1987),
the Oregon Court of Appeals held that there must be compli-
ance with ICWA throughout a juvenile proceeding, including
the adjudication stage, even though the actual court order did
not place the Indian child in foster care. The Oregon Court
of Appeals decision followed the Iowa Supreme Court’s rul-
ing in In re Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984).
In that case, the Iowa Supreme Court found that a proceed-
ing to determine whether a child is in need of assistance
Decisions of the Nebraska Court of Appeals
10 22 NEBRASKA APPELLATE REPORTS
due to parental unfitness could result in potential foster care
placement of the Indian child and, therefore, clearly fell
under ICWA.
David further argues that ICWA applies in this case because
DHHS has legal custody of his children. Thus, he concludes
that a removal of custody has occurred. David asserts that
while the State has custody of his children, they are merely
“placed” with him.
The State focuses on the text of NICWA to refute David’s
arguments. Neb. Rev. Stat. § 43-1504(3) (Reissue 2008) pro-
vides an Indian tribe with the right to intervene in any state
court proceeding “for the foster care placement of, or termi-
nation of parental rights to, an Indian child.” Further, Neb.
Rev. Stat. § 43-1503(1) (Reissue 2008) provides the follow-
ing definitions:
(1) Child custody proceedings shall mean and include:
(a) Foster care placement which shall mean any action
removing an Indian child from [his or her] parent or
Indian custodian for temporary placement in a foster
home or institution or the home of a guardian or conser-
vator where the parent or Indian custodian cannot have
the child returned upon demand, but where parental rights
have not been terminated;
(b) Termination of parental rights which shall mean
any action resulting in the termination of the parent-child
relationship.
Taking these two provisions together, the State contends that
ICWA is appropriately applied only when it seeks foster care
placement of children or termination of parental rights.
The State also highlights the U.S. Supreme Court’s recent
decision in Adoptive Couple v. Baby Girl, ___ U.S. ___, 133
S. Ct. 2552, 186 L. Ed. 2d 729 (2013), as support for its posi-
tion. In that case, the Supreme Court confronted a situation
where an Indian child’s biological father, a registered mem-
ber of the Cherokee Nation, had voluntarily relinquished his
parental rights to the child’s mother prior to the child’s birth.
The mother later placed the child up for adoption, and a non-
Indian South Carolina couple began adoption proceedings. Id.
When the biological father was apprised of the adoption, he
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 11
Cite as 22 Neb. Ct. App. 1
contested the proceedings, arguing that he believed he was
only relinquishing his rights to the child’s mother. Id. A South
Carolina family court awarded custody to the father, finding
that the adoptive couple had not carried the heightened burden
under 25 U.S.C. § 1912(f) (2012) of proving that the child
would suffer serious emotional or physical damage if the bio-
logical father was awarded custody. Adoptive Couple v. Baby
Girl, supra.
The South Carolina Supreme Court affirmed the family
court’s denial of the adoption. Id. The court found that the
biological father was a parent within the meaning of ICWA
and refused to terminate the biological father’s parental rights
for two reasons. First, the adoptive couple had not shown that
active efforts had been made to prevent the breakup of the
Indian family as required by 25 U.S.C. § 1912(d). Second, the
South Carolina Supreme Court concluded that the adoptive
couple had not shown that the biological father’s “‘custody of
[the child] would result in serious emotional or physical harm
to her beyond a reasonable doubt.’” 133 S. Ct. at 2559, quot-
ing Adoptive Couple v. Baby Girl, 398 S.C. 625, 731 S.E.2d
550 (2012).
The U.S. Supreme Court reversed the decision of the South
Carolina Supreme Court. In its opinion, the majority specifi-
cally held that ICWA’s active efforts requirement “applies only
in cases where an Indian family’s ‘breakup’ would be precipi-
tated by the termination of the parent’s rights.” 133 S. Ct. at
2562. The Court found that the active efforts requirement did
not apply in the case because there was no familial breakup
due to the fact that the father had abandoned the child prior
to birth.
Although it is not entirely clear from the U.S. Supreme
Court’s opinion how far this holding reaches, the State inter-
prets the decision to signify that ICWA’s active efforts require-
ment applies only to cases where the children are removed
from the home. However, we conclude that the markedly
different facts in this case do not lend to extending the U.S.
Supreme Court’s holding to the degree the State advocates.
See Adoptive Couple v. Baby Girl, ___ U.S. ___, 133 S. Ct.
2552, 186 L. Ed. 2d 729 (2013) (Breyer, J., concurring).
Decisions of the Nebraska Court of Appeals
12 22 NEBRASKA APPELLATE REPORTS
David, unlike the biological father in Adoptive Couple v. Baby
Girl, did not abandon or relinquish his rights to his children,
but, rather, he has been involved with and cared for his chil-
dren throughout their lives. The children have been in his cus-
tody or placement nearly all of their lives. The filing of this
involuntary proceeding did result in a “breakup” of the family
when the children were removed from David’s custody and
placed in the legal custody of DHHS.
The amici parties contend that ICWA, and specifically the
active efforts requirements, applies throughout an involun-
tary proceeding, even if the Indian children are placed in
their own home. The amici assert that the plain language of
§ 43-1505(4)—that “active efforts have been made to provide
remedial services and rehabilitative programs designed to pre-
vent the breakup of the Indian family”—logically indicates that
the provision applies to situations in which the family has not
yet been broken up. The amici argue that the State’s reliance
upon the definition of “child custody proceeding” as limited to
foster care placement fails to consider the entirety of ICWA,
but, rather, should be construed to apply to any involuntary
state court proceeding involving an Indian child. In support of
this argument, the amici note that in an involuntary juvenile
proceeding, temporary foster care placement could occur at
any time; that a child might be removed multiple times during
the pendency of an involuntary proceeding; and that an invol-
untary proceeding removes an Indian parent’s right to have
their child returned upon demand.
The amici further argue that the provision of active efforts,
and many of the other procedural protections of ICWA,
would be internally inconsistent if the State’s interpretation is
adopted. For example, the amici point to 25 U.S.C. § 1912(a)
and to Nebraska’s § 43-1505(1), which require notice to the
parent or Indian custodian and the Indian child’s tribe of their
right of intervention in any involuntary proceeding in a state
court, not specifically limiting the requirement to cases where
children have been placed in foster care or in which termina-
tion of parental rights is sought. Finally, the amici contend
that the State’s statutory interpretation would lead to an absurd
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 13
Cite as 22 Neb. Ct. App. 1
result in that ICWA, and its substantive protections, “would
essentially operate as a light switch that can be turned on and
off throughout the course of a juvenile proceeding filed under
state law.” Brief for amici curiae at 10.
In our de novo review, we conclude that the active efforts
requirement contained in ICWA should have been applied
to the disposition proceeding in this case and that the juve-
nile court erred in applying the reasonable efforts standard.
We decline to accept the State’s broad position that the
active efforts requirement does not apply when children are
placed in the parent’s home in the course of an involuntary
juvenile proceeding. In this case, the children were in fact
removed from the home at the commencement of the invol-
untary proceeding. Although the children were returned to the
home prior to the adjudication and disposition hearing, there
remains the possibility that removal could occur again, since
the case has not been dismissed and DHHS remains the legal
custodian of these children. See Neb. Rev. Stat. §§ 43-279.01,
43-285, and 43-297 (Reissue 2008 & Supp. 2013) (requiring
advisement that child’s placement could change at any time
in proceedings under Neb. Rev. Stat. § 43-247 (Supp. 2013)).
Further, should the case progress to one in which foster care
placement or termination of parental rights is sought, the
failure to show that active efforts have been made throughout
the duration of the case to prevent such an occurrence would
be problematic.
In the case of In re Interest of Louis S. et al., 17 Neb. Ct. App.
867, 774 N.W.2d 416 (2009), this court tacitly recognized
that active efforts under ICWA are to be provided through-
out a juvenile proceeding under § 43-247(3)(a). In that case,
the Indian children were removed from the parents’ care and
ultimately their parental rights were terminated. On appeal,
they challenged the court’s finding that active efforts had been
made to prevent the breakup of the family. In affirming this
finding, we outlined the numerous services that were provided
while the children were removed from the home. We further
noted the services that were provided when the children were
returned to the mother’s care for approximately 6 months.
Decisions of the Nebraska Court of Appeals
14 22 NEBRASKA APPELLATE REPORTS
Finally, we discussed the services that were provided when the
children were again placed in foster care. We concluded that
the mother was “clearly provided with active efforts through-
out this case,” without distinguishing between the efforts made
when the children were removed and the efforts made when the
children were placed with the mother. In re Interest of Louis S.
et al., 17 Neb. Ct. App. at 881, 774 N.W.2d at 427.
In reaching the conclusion that active efforts should be pro-
vided during periods that placement of the children is with the
parent or parents, we recognize that the active efforts required
may certainly be different from those required during a period
of removal from the home. As discussed by the Nebraska
Supreme Court in In re Interest of Walter W., 274 Neb. 859,
744 N.W.2d 55 (2008), the active efforts standard requires a
case-by-case analysis. See, e.g., In re Interest of Louis S. et
al., supra (where further rehabilitative efforts would be futile,
requirement of active efforts is satisfied); T.F. v. State, Dept.
of H & S Services, 26 P.3d 1089 (Alaska 2001); People ex
rel. D.G., 679 N.W.2d 497 (S.D. 2004); In re Cari B., 327 Ill.
App. 3d 743, 763 N.E.2d 917, 261 Ill. Dec. 668 (2002) (degree
of active efforts required to prevent Indian familial breakup
reduced by parent’s incarceration).
Because the juvenile court erred in applying the reasonable
efforts standard to its determination that returning legal cus-
tody to David would be contrary to their welfare, as opposed to
the active efforts requirement contained in ICWA, we reverse
the disposition order and remand the cause for further proceed-
ings consistent with this opinion.
Additional Assignments of Error
Concerning Disposition Order.
[4] David also challenges certain provisions in the disposi-
tion order as being an abuse of discretion and not material to
the adjudication. Because these issues are likely to recur upon
remand, we proceed to address them. An appellate court may,
at its discretion, discuss issues unnecessary to the disposition
of an appeal where those issues are likely to recur during fur-
ther proceedings. In re Interest of Laurance S., 274 Neb. 620,
742 N.W.2d 484 (2007).
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 15
Cite as 22 Neb. Ct. App. 1
Materiality of Disposition Plan.
David takes issue with the juvenile court’s rehabilitation
program’s provisions as they relate to him. He argues that he
was not the cause of the underlying adjudication and, therefore,
should not be included in the rehabilitation plan.
[5,6] The Nebraska Juvenile Code must be liberally con-
strued to accomplish its purpose of serving the best interests
of the juveniles who fall within it. In re Interest of T.T., 18
Neb. Ct. App. 176, 779 N.W.2d 602 (2009). The juvenile court
has broad discretion as to the disposition of those who fall
within its jurisdiction. Id. Juvenile courts have broad discretion
to accomplish the purpose of serving the best interests of the
children involved. Id.
[7,8] A juvenile court has the discretionary power to pre-
scribe a reasonable program for parental rehabilitation to cor-
rect the conditions underlying the adjudication that a child
is within the Nebraska Juvenile Code. In re Interest of Rylee
S., 285 Neb. 774, 829 N.W.2d 445 (2013). While there is no
requirement that the juvenile court must institute a plan for
rehabilitation of a parent, the rehabilitation plan must be con-
ducted under the direction of the juvenile court and must be
reasonably related to the plan’s objective of reuniting parent
with child. Id.
[9,10] In analyzing the reasonableness of a plan offered by a
juvenile court, the Nebraska Supreme Court has noted that the
following question should be addressed:
“Does a provision in the plan tend to correct, elimi-
nate, or ameliorate the situation or condition on which
the adjudication has been obtained under the Nebraska
Juvenile Code? An affirmative answer to the preceding
question provides the materiality necessary in a rehabili-
tative plan for a parent involved in proceedings within a
juvenile court’s jurisdiction. Otherwise, a court-ordered
plan, ostensibly rehabilitative of the conditions leading
to an adjudication under the Nebraska Juvenile Code, is
nothing more than a plan for the sake of a plan, devoid of
corrective and remedial measures. Similar to other areas
of law, reasonableness of a rehabilitative plan for a parent
Decisions of the Nebraska Court of Appeals
16 22 NEBRASKA APPELLATE REPORTS
depends on the circumstances in a particular case and,
therefore, is examined on a case-by-case basis.”
Id. at 779, 829 N.W.2d at 449, quoting In re Interest of J.S.,
A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987).
The material issue of this juvenile adjudication was
Danielle’s inappropriate discipline of Shayla. In fact, during
the disposition hearing, the juvenile court noted that its orders
were “going to be focused on the reason the Court took juris-
diction, which was the inappropriate discipline by [Danielle]
of Shayla.” Therefore, we must determine whether the court’s
nine-part rehabilitation plan related to David is reasonable
based on the circumstances of the case. After our de novo
review, we conclude that only certain provisions of this plan
are reasonable. We disapprove of the remaining provisions.
Because David and his children live together with Danielle
and her children, any juvenile court plan aimed at correct-
ing the underlying reason for the adjudication will inevitably
require some measure of cooperation from David. Therefore,
the rehabilitation plan provisions requiring David’s cooperation
with DHHS services are reasonable, because they allow DHHS
the opportunity to work at correcting the reason for the adju-
dication. Specifically, we approve the plan’s provisions that
require David to cooperate with
a. [DHHS] and service providers in his home.
b. . . . all drop-in services as arranged by [DHHS] and
allow access to [his] children and the family home at
all times.
....
f. . . . family therapy as arranged by [DHHS].
Additionally, we find provision d., that David not use any
unapproved form of physical discipline or place any child in
a closet, and provision i., that David ensure that the children
have adequate adult supervision at all times when they are in
his care, to be material to this case. Even though David was
not found to have used improper discipline on his children,
ensuring that the children have adequate adult supervision and
setting a proper example in the household regarding disci-
pline are material to ameliorate the underlying reason for the
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SHAYLA H. ET AL. 17
Cite as 22 Neb. Ct. App. 1
adjudication; namely, that inappropriate discipline had occurred
when he was not home supervising the children.
Although we agree with the above provisions of the court’s
plan, we find that the remaining provisions are not material.
The underlying reason for the adjudication was Danielle’s
inappropriate discipline of Shayla. The provisions that David
refrain from discussing the children’s mother (c.); provide the
children access to mental health care (e.); schedule and attend
his children’s medical, dental, and vision examinations (g.);
and schedule an appointment for Shania’s speech and language
evaluation (h.) are not material to the adjudication. Though
these provisions may be good practices for David to follow as
a father to three minor daughters, there is no evidence in the
record that David’s adherence to these provisions will correct
Danielle’s use of improper discipline.
To summarize, based on the circumstances of the present
case, we approve of the plan’s provisions requiring David
to cooperate with DHHS’ efforts in this case, restricting him
from using unapproved physical discipline on his children,
and requiring him to ensure the children have adequate adult
supervision. However, we find the remainder of the plan’s
provisions to be unreasonable, because they are immaterial to
the underlying reason for the adjudication. We therefore affirm
the provisions in the order which we find to be material and
reverse the provisions which we find to be immaterial to the
reason for the adjudication.
Change in Family Therapist.
A substantial portion of the short disposition hearing in this
case related to DHHS’ request to change the family therapist.
David opposed this change at the hearing and on appeal assigns
error to the change in the therapist. He argues that the juvenile
court should not have authority to “‘micro-manage’” this case
and claims that the evidence at the hearing did not support
such a change. Brief for appellant at 20. He also argues that
such a change was not material to the reason for adjudication
in this case.
David’s family has been involved with the juvenile court for
an extended period of time that began with a prior case. For
Decisions of the Nebraska Court of Appeals
18 22 NEBRASKA APPELLATE REPORTS
the entirety of this time, the family has worked with the fam-
ily therapist, Crayne. During therapy with Crayne, the family
has formed a bond with her and she became a valuable sup-
port. However, DHHS believed that the children still displayed
behavioral issues that had not been sufficiently addressed.
Thus, DHHS recommended a change in the therapist and the
juvenile court accepted this recommendation.
While the basis of the adjudication was a specific instance
of inappropriate discipline of Shayla by Danielle, the juvenile
court stated in the adjudication order:
Because of the significant behavioral challenges pre-
sented by Shayla and her sisters Shania and Tanya,
together with the fact that [Danielle], as their custodian, is
their primary adult caretaker in charge of their discipline
during their waking hours, the Court finds that all three
children are at risk of harm as a result of [Danielle’s]
inappropriate physical discipline of Shayla on the 16th of
January, 2013.
Thus, while the children’s behavioral issues were not specifi-
cally listed in the juvenile petition, such issues are related to
the reason for the adjudication. We find that the court’s order
requiring a change in the family therapist was reasonable
under the circumstances of this case. Having the children’s
behavioral issues addressed from a new perspective may allow
for the necessary progress to have this case reach a stage
where it can be closed. We conclude that the juvenile court
did not abuse its discretionary power in requiring the change
in the therapist.
CONCLUSION
The juvenile court erred in failing to apply the active
efforts standard set forth in ICWA to the disposition order.
Additionally, the juvenile court erred, as outlined above, when
it adopted certain provisions in its rehabilitation plan which are
not material to the underlying reasons for the adjudication. We
also conclude that the juvenile court did not err in permitting a
change in the family therapist.
Affirmed in part, and in part reversed and
remanded for further proceedings.