In re Interest of Nery v.

Decisions of the Nebraska Court of Appeals
798 20 NEBRASKA APPELLATE REPORTS
In re I nterest of
Nery V. et al.,
children under18 years of age.
State of Nebraska, appellee, v. Mario V., Sr.,
appellant, I da V., appellee, and Rosebud
Sioux Tribe, intervenor-appellee.
In re Interest of Esperanza V. and Mario V., Jr.,
children under 18 years of age.
State of Nebraska, appellee, v. Mario V., Sr.,
appellee, I da V., appellant, and Rosebud
Sioux Tribe, intervenor-appellee.
___ N.W.2d ___
Filed May 28, 2013. Nos. A-12-629, A-12-662.
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. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may give weight to the fact that the lower court observed the witnesses and
accepted one version of the facts over the other.
3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
4. Indian Child Welfare Act: Proof. Under Nebraska law, a party to a proceeding
who seeks to invoke a provision of the Nebraska Indian Child Welfare Act has the
burden to show that the act applies in the proceeding.
5. Indian Child Welfare Act: Time. To determine whether the Nebraska Indian
Child Welfare Act applies, the critical issue is not whether the child is an “Indian
child,” but, rather, when his or her status was established in the proceedings.
6. Indian Child Welfare Act: Federal Acts: Time. The provisions of the federal
Indian Child Welfare Act and the Nebraska Indian Child Welfare Act apply
prospectively from the date the Indian child’s status as such is established on
the record.
7. Indian Child Welfare Act: Parental Rights. The provisions relating to the with-
drawal of a relinquishment provided for in Neb. Rev. Stat. § 43-1506 (Reissue
2008) of the Nebraska Indian Child Welfare Act do not apply to a relinquishment
signed prior to the applicability of the act.
8. Parental Rights: Adoption. Pursuant to Neb. Rev. Stat. § 43-106.01 (Reissue
2008), the rights of the relinquishing parent are terminated when the Nebraska
Department of Health and Human Services, or a licensed child placement agency,
accepts responsibility for the child in writing.
9. Parental Rights: Adoption: Time. A duly executed revocation of a relinquish-
ment and consent to adoption delivered to a licensed child placement agency
within a reasonable time after execution of the relinquishment and before the
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agency has, in writing, accepted full responsibility for the child, as required by
statute, is effective to invalidate the original relinquishment and consent.
10. Parental Rights. There are four requirements for a valid and effective revocation
of a relinquishment of parental rights: (1) There must be a duly executed revoca-
tion of a relinquishment, (2) the revocation must be delivered to a licensed child
placement agency or the Nebraska Department of Health and Human Services,
(3) delivery of the revocation must be within a reasonable time after execution
of the relinquishment, and (4) delivery of the revocation must occur before the
agency has, in writing, accepted full responsibility for the child.
11. Parental Rights: Time. When a parent’s attempted revocation of his or her relin-
quishment of parental rights is not done in a reasonable time after the relinquish-
ment, the relinquishment becomes irrevocable.
12. Indian Child Welfare Act: Parental Rights: Interventions: Notice. Pursuant
to Neb. Rev. Stat. § 43-1505(1) (Reissue 2008), in any involuntary proceeding
in a state court, when the court knows or has reason to know that an Indian
child is involved, the party seeking termination of parental rights to an Indian
child shall notify the Indian child’s tribe, by certified or registered mail with
return receipt requested, of the pending proceedings and of the tribe’s right
of intervention.
13. Indian Child Welfare Act: Parental Rights: Notice: Time. Pursuant to Neb.
Rev. Stat. § 43-1505(1) (Reissue 2008), no termination of parental rights proceed-
ings shall be held until at least 10 days after receipt of notice by the tribe or the
Secretary of the Interior.
14. Indian Child Welfare Act: Parental Rights: Notice. If an Indian child’s tribe
was not given proper notice of proceedings resulting in termination of parental
rights to the child, the termination proceedings conducted were invalid and the
order of termination must be vacated.
15. Indian Child Welfare Act: Parental Rights: Pleadings. The Nebraska Indian
Child Welfare Act requires the State, in proceedings to terminate parental rights,
to plead (1) active efforts by the State to prevent the breakup of the family and
(2) that continued custody by the parent or Indian custodian is likely to result in
serious emotional or physical harm.
16. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it.
Appeal from the County Court for Hall County: Philip M.
Martin, Jr., Judge. Judgment in No. A-12-629 vacated, and
cause remanded for further proceedings. Judgment in No.
A-12-662 affirmed in part and in part vacated, and cause
remanded for further proceedings.
Matthew C. Boyle, of Lauritsen, Brownell, Brostrom &
Stehlik, for Mario V., Sr.
Janice I. Reeves, of Truell, Murray & Associates, for Ida V.
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Sarah N. Johnson, Deputy Hall County Attorney, and Jay B.
Judds, of Nebraska Department of Health and Human Services,
for State of Nebraska.
Susan M. Koenig, guardian ad litem for children.
Sievers, Pirtle, and Riedmann, Judges.
Sievers, Judge.
The county court for Hall County, sitting as a juvenile
court, terminated the parental rights of Mario V., Sr. (Mario
Sr.), and Ida V. to their minor children. Mario Sr. appeals in
case No. A-12-629, and Ida appeals in case No. A-12-662. We
initially determine that the relinquishments that Ida executed
some 3 years before these proceedings are valid and that her
attempted revocation of such is of no force and effect. But,
because there is no evidence that the Rosebud Sioux Tribe
was given proper notice of these termination of parental rights
proceedings as required by the Nebraska Indian Child Welfare
Act (NICWA), we find that the termination proceedings con-
ducted were invalid and thus that the order of termination in
both cases must be vacated. We therefore remand the causes
to the juvenile court for further proceedings consistent with
our opinion.
FACTUAL BACKGROUND
This appeal involves three children: Mario V., Jr. (Mario Jr.),
born in November 2004; Esperanza V., born in August 2006;
and Nery V., born in October 2008. All three children are the
biological children of Mario Sr. and Ida. Mario Sr. and Ida
were married on December 23, 2004, and divorced on July 22,
2009. However, Mario Sr. and Ida began living together again
in July 2010.
Mario Sr. and Ida have been involved in a number of
juvenile court proceedings over the years, and we briefly
summarize their encounters with the juvenile system. In
October 2004, Ida had rights to another child, her firstborn
son, terminated by order of a juvenile court. Mario Sr. was
not this child’s biological father. Mario Jr. was born less
Decisions of the Nebraska Court of Appeals
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Cite as 20 Neb. Ct. App. 798
than 2 months after Ida’s parental rights to her firstborn son
were terminated.
In October 2005, Mario Jr. was removed from the parental
home because Ida tested positive for methamphetamine, vio-
lating her probation. Mario Jr. was not placed with Mario Sr.
because Mario Sr. then had a pending assault charge wherein
Ida was the alleged victim. Mario Jr. was returned to the paren-
tal home 6 months later.
In December 2006, Mario Jr. and Esperanza were removed
from the parental home because of reports of domestic vio-
lence between Mario Sr. and Ida and of drug use by Ida. Ida
relinquished her parental rights to Mario Jr. and Esperanza in
March 2008, and we note that she was pregnant with Nery at
the time. Mario Sr. and Ida separated, and Mario Sr. planned
to divorce Ida. Mario Jr. and Esperanza were returned to the
custody of Mario Sr. The procedural background of the 2006
juvenile proceedings, case No. JV06-470, will be further dis-
cussed below.
Although Mario Sr. and Ida had divorced in July 2009,
they began living together again in July 2010. Because Mario
Sr. worked out of town and was only home on the week-
ends, Ida was the primary caregiver for Mario Jr., Esperanza,
and Nery.
In November 2010, Mario Jr., Esperanza, and Nery were
removed from the parental home after a 1-month investigation
by the Nebraska Department of Health and Human Services
(DHHS). DHHS was concerned about Ida’s being the pri-
mary caregiver because of her previous relinquishments of
Mario Jr. and Esperanza. DHHS was also concerned because
Ida admitted feeling overwhelmed, Ida had made statements
about wanting Mario Jr. and Esperanza back in foster care,
and Ida admitted the urge to use drugs again. Additionally,
Ida’s brother, who had an extensive criminal history, had been
living in the family home. Around the time of this removal,
Esperanza and Nery tested positive for exposure to metham-
phetamine. The November 2010 removal gave rise to juvenile
case No. JV10-505, wherein Mario Sr.’s and Ida’s parental
rights were terminated. The procedural background of cases
Nos. JV06-470 and JV10-505 will be discussed below.
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PROCEDURAL BACKGROUND
To put all of the procedural background together in “one
place,” before attempting a narrative account of the procedure,
we set forth the following timeline of significant dates and
events, with the hope that such allows the reader to follow the
progression of the cases more easily, and we note the lower
court case number for clarity:
•  3/13/2008  Ida signed her relinquishments of her parental
0
rights to Mario Jr. and Esperanza (JV06-470).
•  1/01/2010  The State filed its petition alleging that Mario Jr.,
1
Esperanza, and Nery were within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2008); temporary custody was
granted to DHHS (JV10-505).
•  2/03/2010  NICWA notice was sent to the Rosebud Sioux
1
Tribe regarding the State’s § 43-247(3)(a) petition and the
order for immediate custody (JV10-505).
•  2/07/2010  The return receipt for the NICWA notice was
1
signed (JV10-505).
•  2/08/2010  The State filed its petition for termination of
1
Mario Sr.’s and Ida’s parental rights to Mario Jr., Esperanza,
and Nery pursuant to Neb. Rev. Stat. § 43-292(2) (Cum.
Supp. 2012) (JV10-505).
•  2/04/2011  The Rosebud Sioux Tribe filed its “Notice of
0
Intervention” invoking its right to intervene in the child
custody proceedings and noting that all three children were
“enrollable” members of the tribe (JV10-505).
•  7/22/2011  Ida filed notice of her intent to withdraw her
0
voluntary relinquishment of her parental rights (JV06-470).
•  8/16/2011  Ida filed her withdrawal of her voluntary relin-
0
quishment of her parental rights (JV06-470); she also filed
motions to dismiss the State’s motion for termination, alleg-
ing the State failed to provide proper notice to the tribe and
failed to state a proper cause of action (JV10-505).
•  8/22/2011  The juvenile court took Ida’s withdrawal of her
0
relinquishments (JV06-470) and her pretrial motions to dis-
miss (JV10-505) under advisement and proceeded with the
first day of the termination proceedings (JV10-505).
•  8/23/2011  Second day of the termination proceedings
0
(JV10-505).
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 803
Cite as 20 Neb. Ct. App. 798
•  9/06/2011  Third day of the termination proceedings
0
(JV10-505).
•  9/13/2011  Fourth day of the termination proceedings; the
0
State filed an amended petition for termination of Mario
Sr.’s and Ida’s parental rights, adding an allegation of “active
efforts” (JV10-505).
•  0/21/2011  The State filed another amended petition for ter-
1
mination of Mario Sr.’s and Ida’s parental rights, adding an
allegation of “serious emotional or physical damage” if such
rights are not terminated (JV10-505).
•  1/22/2011  Fifth day of the termination proceedings
1
(JV10-505).
•  1/31/2012  Sixth and final day of the termination proceed-
0
ings (JV10-505).
•  6/25/2012  The juvenile court filed an order wherein it
0
denied Ida’s request to withdraw her relinquishments of Mario
Jr. and Esperanza (JV06-470 and JV10-505), overruled Ida’s
motions to dismiss for improper notice to the tribe and failure
to state a proper cause of action (JV10-505), terminated Ida’s
parental rights to Nery (JV10-505), and terminated Mario
Sr.’s parental rights to all three children (JV10-505).
Case No. JV06-470.
The State filed a petition on December 18, 2006, alleg-
ing that Mario Jr. and Esperanza were within the meaning of
§ 43-247(3)(a) by reason of the faults or habits of their “parent,
guardian, or custodian.” At the bottom of the petition, under
“Name & Address of Parent/Custodian,” it listed Mario Sr. and
Ida at different addresses in Grand Island, Nebraska. The State
alleged that on December 11, the children (1) lacked “proper
parental care by reason of the fault or habits of his or her par-
ent, guardian, or custodian” and (2) were “in a situation or
engage[d] in an occupation dangerous to life or limb or injuri-
ous to the health or morals of such juvenile[s].”
A disposition and permanency hearing as to Ida only was
held on February 15, 2007 (the proceedings of which do not
appear in our record). We do have an order titled “Disposition/
Permanency Hearing,” written in checklist form, that states
that continued placement of the children in a parental residence
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is not appropriate because “rehabilitation goals [are] not com-
plete” and “father” is allegedly residing with “mother.” Thus,
the children were placed in the care and custody of DHHS.
The case and visitation plan dated February 12, 2007, was
approved. The disposition regarding Mario Sr. was set for
March 19.
On January 10, 2008, the State filed a motion for termina-
tion of Mario Sr.’s and Ida’s parental rights to Mario Jr. and
Esperanza pursuant to § 43-292(1), (4), and (6). The State
alleged that the parents had abandoned the juveniles for 6
months or more immediately prior to the filing of the petition;
that “[t]he parents are unfit by reason of debauchery, habitual
use of intoxicating liquor or narcotic drugs, or repeated lewd
and lascivious behavior which conduct is found by the court
to be seriously detrimental to the health, morals, or well-being
of the juvenile[s]”; and that reasonable efforts to preserve and
reunify the family had failed to correct the conditions leading
to the adjudication.
Ida voluntarily relinquished her parental rights to Mario
Jr. and Esperanza on March 13, 2008. Her signed relin-
quishments were not filed with the juvenile court, but are
in our record. In an order filed on June 17, 2009, the court
dismissed the allegations against Mario Sr. and dismissed
the case.
On July 22, 2011, Ida filed notice, in case No. JV06-470,
of her intent to withdraw her voluntary relinquishment of her
parental rights to Mario Jr. and Esperanza, even though that
case had been dismissed in 2009. And on August 16, 2011,
Ida filed her withdrawal of her voluntary relinquishment of
her parental rights. A hearing on Ida’s request to withdraw her
relinquishments was held on August 22. In an order filed that
same day, the court took Ida’s withdrawal of her relinquish-
ments under advisement. We note that case No. JV10-505 was
ongoing at the time Ida filed her withdrawal of her relinquish-
ments. And the proceedings on August 22 were held in con-
junction with those of case No. JV10-505. In an order filed on
June 25, 2012, in both cases Nos. JV06-470 and JV10-505, the
juvenile court denied Ida’s request to withdraw the relinquish-
ment of her parental rights.
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Cite as 20 Neb. Ct. App. 798
Case No. JV10-505.
The State filed a petition on November 1, 2010, alleging that
Mario Jr., Esperanza, and Nery were within the meaning of
§ 43-247(3)(a) by reason of the faults or habits of their “parent,
guardian, or custodian.” At the bottom of the petition, under
“Name & Address of Parent/Custodian,” it listed Mario Sr. and
Ida both at the same address in Grand Island. The State alleged
that on October 26, the children (1) lacked “proper parental
care by reason of the fault or habits of [their] parent, guardian,
or custodian” and (2) were “in a situation or engage[d] in an
occupation dangerous to life or limb or injurious to the health
or morals of such juvenile[s].” Also on November 1, the juve-
nile court filed an ex parte custody order finding, “[Mario Sr.]
is not providing care—delegated to [Ida] who previously relin-
quished her rights to older two children. She is unable to pro-
vide care for children due to mental health and/or drug issues.”
The juvenile court granted temporary custody and placement of
the children to DHHS.
An “Initial/Detention” hearing was held on December 2,
2010 (no transcription of this hearing appears in our record),
and the order resulting from such hearing recites that Mario
Sr. and Ida were present with their respective counsel. The
court’s order, entitled “Initial/Detention Hearing” and written
in checklist form, has a checkmark by “Parent(s) deny allega-
tions,” followed by a handwritten notation that is not legible.
The juvenile court again granted temporary custody and place-
ment of the children to DHHS. The preadjudication hearing
was set for January 3, 2011, and the adjudication hearing was
set for March 3. The order indicates that the proceedings for
Ida were with respect to Nery only.
A NICWA notice was sent to the Rosebud Sioux Tribe on
December 3, 2010, regarding the State’s § 43-247(3)(a) peti-
tion and the juvenile court’s order for immediate custody. A
return receipt was signed on December 7.
On December 8, 2010, the State filed a motion for ter-
mination of Mario Sr.’s and Ida’s parental rights to Mario
Jr., Esperanza, and Nery pursuant to § 43-292(2). The State
alleged that the parents had “substantially and continuously or
repeatedly neglected and refused to give the juvenile[s] or a
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sibling of the juvenile[s] necessary parental care and protec-
tion.” We note that the State’s motion seeks to terminate Ida’s
parental rights to all three children but does not account for
the fact that Ida had already relinquished her parental rights to
Mario Jr. and Esperanza, and we note that the State’s amended
termination motions were pled this way as well.
In a “Notice of Intervention” dated January 31, 2011, but not
filed until February 4, the Rosebud Sioux Tribe “invoke[d]” its
right to intervene in the child custody proceedings, noting that
all three children were “enrollable” members of the tribe. The
juvenile court “grant[ed]” the Rosebud Sioux Tribe’s notice of
intervention. The juvenile court ordered:
[C]opies of all future motions and pleadings are to be
served upon the Rosebud Sioux Tribe as a party herein.
Opportunity to examine all relevant documents filed
with the Court upon which a decision may be based
must be afforded to the Rosebud Sioux Tribe’s autho-
rized representatives pursuant to 25 U.S.C., Section
1912(c).
On August 16, 2011, Ida filed a motion to dismiss the State’s
motion to terminate parental rights, alleging that the State
failed to provide proper notice to the Indian children’s tribe.
In a separate motion to dismiss filed that same day, Ida alleged
that the State failed to state a proper cause of action in that
it failed to allege an essential element of NICWA (that active
efforts have been made to prevent the breakup of the Indian
family, but that such have proved unsuccessful) to sustain a
finding and order for termination. Ida also filed a motion to
have the children immediately returned to the parental home,
alleging that removal of the Indian children was not proper
because the applicable statute required clear and convincing
evidence, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child. A hearing on Ida’s motions was held on
August 22. In an order titled “Motion,” file stamped on both
August 22 and November 22, the court stated that all three
motions were “under advisement.” The court proceeded with
the termination hearing on August 22.
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Cite as 20 Neb. Ct. App. 798
The termination proceedings were spread over a substantial
period of time, as hearings were held on August 22 and 23,
September 6 and 13, and November 22, 2011, and January
31, 2012. Pleadings were filed during the course of the ter-
mination proceedings, as will be noted below. No representa-
tive of the Rosebud Sioux Tribe was in attendance at any of
these hearings.
On September 13, 2011, the fourth day of the termination
proceedings, the State filed an amended motion for termination
of Mario Sr.’s and Ida’s parental rights to Mario Jr., Esperanza,
and Nery. In addition to alleging grounds for termination
under § 43-292(2), the State alleged that “active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the family and
that these efforts have been unsuccessful.” See Neb. Rev. Stat.
§ 43-1505(4) (Reissue 2008) (of NICWA).
On October 21, 2011, the State again filed an amended
motion for termination of Mario Sr.’s and Ida’s parental rights
to Mario Jr., Esperanza, and Nery. In addition to alleging
grounds for termination under § 43-292(2) and “active efforts”
under § 43-1505(4), the State alleged that continued custody by
the parents is likely to result in serious emotional or physical
damage to the children. See § 43-1505(6) (of NICWA). The
final 2 days of the termination proceedings were held after this
amended motion was filed.
On November 22, 2011, Mario Sr. filed a motion for post-
termination visitation with all three children during appeal, in
the event the court entered an order terminating Mario Sr.’s
parental rights. Ida filed a similar motion regarding Nery on
April 19, 2012. The motions were considered and ruled on
prior to the juvenile court’s determination of whether parental
rights should in fact be terminated. In an order filed on June
1, the juvenile court overruled Mario Sr.’s and Ida’s motions
for posttermination visitation. The juvenile court stated that
“[v]isitation, if any, provided after an order of termination
of parental rights in this case would be in the sole discretion
of [DHHS].”
The juvenile court filed its dispositive order on June 25,
2012. The juvenile court stated, “The Court, at this time, has
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contemporaneously entered an order in [case No.] JV06-470
denying the request of Ida . . . to withdraw her relinquishments
of her parental rights” to Mario Jr. and Esperanza dated March
13, 2008. Thus, the juvenile court proceeded to consider the
motion to terminate the parental rights of Mario Sr. to all three
children and the parental rights of Ida to Nery, first dealing
with several pretrial motions from August 2011.
Regarding Ida’s August 2011 motion to dismiss for insuf-
ficient notice to the Indian children’s tribe, the juvenile court
found that the tribe did receive notice and, in fact, intervened in
the case, but apparently chose not to participate. Accordingly,
the juvenile court overruled Ida’s motion to dismiss for insuf-
ficient notice.
Regarding Ida’s August 2011 motion to dismiss for insuffi-
cient pleadings—asserting that the State failed to state a proper
cause of action in that it failed to articulate an essential ele-
ment, i.e., “active efforts” in accordance with § 43-1505(4)—
the juvenile court stated, “It is acknowledged that the pleadings
at the time they were initially filed were legally insufficient
based on later developments and knowledge obtained concern-
ing the enrollment of the children in the Rosebud Sioux Tribe.”
However, the court found that once it was determined that the
children were entitled to enrollment, the State filed an amended
petition which cured any defects in the prior pleading. The
juvenile court stated that the matter would proceed under the
requirements of NICWA and overruled Ida’s motion to dismiss
based on improper pleadings.
The juvenile court found that grounds for termination of
Mario Sr.’s rights to Mario Jr., Esperanza, and Nery existed
under § 43-292(2). The juvenile court found that grounds
existed to terminate Ida’s rights to Nery under § 43-292(2).
The juvenile court found that active efforts, pursuant to
§ 43-1505(4), had been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
Indian family, but that said efforts had proved unsuccessful.
The juvenile court also found that continuing the custody of
the children by Mario Sr. and Ida would likely result in seri-
ous emotional or physical damage to the children and that it
was in the children’s best interests that Mario Sr.’s and Ida’s
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parental rights be terminated. The juvenile court terminated
Mario Sr.’s parental rights to all three children and Ida’s
parental rights to Nery after finding that grounds for termina-
tion existed and that such was in the children’s best interests.
Mario Sr. appeals in case No. A-12-629, and Ida appeals in
case No. A-12-662.
ASSIGNMENTS OF ERROR
In case No. A-12-629, Mario Sr. assigns that the juvenile
court erred by (1) failing to rule on pretrial motions for over
10 months, (2) allowing the State to file and proceed on a
second amended motion to terminate parental rights, (3) pro-
ceeding with the termination proceedings when insufficient
notice was provided to the Indian tribe, (4) failing to properly
apply the rules of evidence to an adjudicative hearing and
improperly admitting evidence prejudicial to Mario Sr., (5)
finding that the State satisfied its burden to prove all statu-
torily required elements for terminating parental rights under
NICWA, (6) denying Mario Sr.’s request for posttermination
visitation, and (7) allowing and considering evidence regard-
ing the foster parents’ desire and ability to provide perma-
nency for the children.
In case No. A-12-662, Ida assigns that the juvenile court
erred by (1) denying Ida’s withdrawal of her relinquishment
of her parental rights to Mario Jr. and Esperanza, (2) failing
to rule on pretrial motions for over 10 months, (3) allowing
the State to file and proceed on a second amended motion
to terminate parental rights, (4) proceeding with the termina-
tion proceedings when insufficient notice was provided to the
Indian tribe, (5) proceeding with the termination proceedings
when insufficient notice was provided to Ida, (6) finding that
the State satisfied its burden to prove all statutorily required
elements for terminating parental rights under NICWA, (7)
denying Ida’s request for posttermination visitation, (8) allow-
ing and considering evidence regarding the foster parents’
desire and ability to provide permanency for the children, and
(9) failing to properly apply the rules of evidence to an adju-
dicative hearing and improperly admitting evidence prejudicial
to Ida.
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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 Kendra M. et al., 283
Neb. 1014, 814 N.W.2d 747 (2012). When the evidence is in
conflict, however, an appellate court may give weight to the
fact that the lower court observed the witnesses and accepted
one version of the facts over the other. Id.
[3] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. Id.
ANALYSIS
Ida’s Withdrawal of Her Relinquishments
of Her Parental Rights to Mario Jr.
and Esperanza.
On March 13, 2008, during the pendency of case No.
JV06-470, Ida signed separate “Relinquishment of Child by
Parent” documents for both Mario Jr. and Esperanza wherein
Ida voluntarily relinquished her parental rights to Mario Jr.
and Esperanza. Neither the relinquishment documents nor an
acceptance by DHHS was filed with the court, although the
relinquishments are part of the evidence before us. In an order
filed on June 17, 2009, the court dismissed the allegations
against Mario Sr. and dismissed that case.
More than 3 years after she signed the relinquishments, and
more than 2 years after case No. JV06-470 was dismissed, Ida
sought to withdraw her voluntary relinquishments of her paren-
tal rights to Mario Jr. and Esperanza. On July 22, 2011, while
case No. JV10-505 was ongoing, Ida filed her notice of her
intent to withdraw her voluntary relinquishments of her paren-
tal rights to Mario Jr. and Esperanza in case No. JV06-470.
And on August 16, Ida filed her withdrawal of her voluntary
relinquishments of her parental rights. In an order dated August
22, 2011, the court took Ida’s attempted revocation of her relin-
quishments under advisement. In an order filed on June 25,
2012, the juvenile court denied Ida’s request to withdraw the
relinquishments of her parental rights.
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Ida argues that the juvenile court erred in denying her
request to withdraw her relinquishments of her parental
rights. In support of her argument, Ida cites to the follow-
ing NICWA provisions found in Neb. Rev. Stat. § 43-1506
(Reissue 2008):
(1) When any parent or Indian custodian voluntarily
consents to . . . termination of parental rights, such con-
sent shall not be valid unless executed in writing and
recorded before a judge of a court of competent jurisdic-
tion and accompanied by the presiding judge’s certificate
that the terms and consequences of the consent were fully
explained in detail and were fully understood by the par-
ent or Indian custodian. The court shall also certify that
either the parent or Indian custodian fully understood
the explanation in English or that it was interpreted into
a language that the parent or Indian custodian under-
stood. . . .
....
(3) In any voluntary proceedings for termination of
parental rights to, or adoptive placement of, an Indian
child, the consent of the parent may be withdrawn for any
reason at any time prior to the entry of a final decree of
termination or adoption, as the case may be, and the child
shall be returned to the parent.
Ida argues that the right to withdraw her relinquishments of
Mario Jr. and Esperanza found in § 43-1506(3) was errone-
ously denied.
[4-7] “Under Nebraska law, a party to a proceeding who
seeks to invoke a provision of NICWA has the burden to
show that the act applies in the proceeding.” In re Adoption of
Kenten H., 272 Neb. 846, 853, 725 N.W.2d 548, 554 (2007).
And the critical issue is not whether the child is an “Indian
child,” but, rather, when his or her status was established
in the proceedings. See id. The provisions of the federal
Indian Child Welfare Act and NICWA apply prospectively
from the date the Indian child’s status as such is established
on the record. See id. In the instant case, the children’s sta-
tus as Indian children was established on the record when
the Rosebud Sioux Tribe filed its “Notice of Intervention”
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812 20 NEBRASKA APPELLATE REPORTS
on February 4, 2011, stating that Mario Jr., Esperanza, and
Nery were “enrollable” members of the tribe. Thus, NICWA
applies prospectively from that date. Accordingly, NICWA
was not applicable to Mario Jr. and Esperanza when Ida
signed her relinquishments of her parental rights to Mario
Jr. and Esperanza on March 13, 2008. And as stated in In re
Adoption of Kenten H., “[b]ecause NICWA applies only pro-
spectively from the date it is established on the record, [the
biological mother] may not now argue that her consent to [the
child’s] relinquishment is invalid because it was not obtained
pursuant to the substantive provisions of § 43-1506(1).” 272
Neb. at 855, 725 N.W.2d at 555. And we now conclude that
it necessarily follows from the holding in In re Adoption of
Kenten H., supra, that the provisions relating to the with-
drawal of a relinquishment provided for in § 43-1506 do not
apply to a relinquishment signed prior to the applicability of
NICWA, which is the situation we have here.
But Ida argues that even if NICWA did not apply at the time
the relinquishments were signed, there was no acceptance of
the relinquishment by DHHS. Ida’s signed relinquishments
were not filed with the court in case No. JV06-470; nor was
any acceptance filed by DHHS. The only mention of either
the relinquishments or their acceptance in the transcript in
case No. JV06-470 is Ida’s prior counsel’s “Motion to Be
Excused” filed on March 25, 2008, wherein counsel asked
to be excused from an April 7 hearing because “biological
mother, Ida . . . has relinquished her parental rights, and
[DHHS] has accepted the relinquishment.” The juvenile court
granted counsel’s motion to be excused from that hearing.
While the State suggested at oral argument that we use the
contents of this withdrawal motion as evidence of DHHS’
acceptance, the document is not in evidence, is not under oath,
and is obviously hearsay. Accordingly, we reject that sugges-
tion, although it is not insignificant for the policy reasons we
later discuss that DHHS and the court acted for several years
as though there was an acceptance. It was not until August
23, 2011, the second day of the termination proceedings in
case No. JV10-505, that the relinquishments were offered
and received into evidence by the court. However, no written
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acceptances of such by DHHS were ever offered or received
into evidence. And, there was no testimony that DHHS signed
any such acceptances.
[8] The rights of the relinquishing parent are terminated
when DHHS, or a licensed child placement agency, accepts
responsibility for the child in writing. See, Neb. Rev. Stat.
§ 43-106.01 (Reissue 2008); Gomez v. Savage, 254 Neb.
836, 580 N.W.2d 523 (1998). Section 43-106.01 states in rel-
evant part:
When a child shall have been relinquished by written
instrument . . . to [DHHS] or to a licensed child place-
ment agency and the agency has, in writing, accepted
full responsibility for the child, the person so relinquish-
ing shall be relieved of all parental duties toward and all
responsibilities for such child and have no rights over
such child.
See, also, In re Interest of Cornelius K., 280 Neb. 291, 785
N.W.2d 849 (2010) (fact that relinquishment has not been
accepted by DHHS means that mother’s parental rights have
not been legally extinguished pursuant to § 43-106.01); In re
Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010)
(juvenile court may order DHHS to accept relinquishment of
parental rights in circumstance where child has been adjudi-
cated pursuant to § 43-247(3)(a) and permanency objective
of adoption has been determined). Therefore, it is clear that
§ 43-106.01 applies to DHHS as well as private child place-
ment agencies. In the instant case, there is no evidence of
a written acceptance by DHHS of Ida’s relinquishments of
Mario Jr. and Esperanza. We cannot simply assume that DHHS
executed written acceptances of Ida’s relinquishments and that
they are tucked away in a file cabinet somewhere. That said,
there is no authority involving a factual situation where there
was an attempted revocation 3 years after the relinquishments,
and the record fails to show whether DHHS ever accepted the
relinquishments. Accordingly, we face a unique situation and a
difficult issue of first impression.
That said, we know of no statute or case law authority
that would prevent the execution of acceptance at the present
time. The foregoing observation stems from Kellie v. Lutheran
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814 20 NEBRASKA APPELLATE REPORTS
Family & Social Service, 208 Neb. 767, 772, 305 N.W.2d 874,
877 (1981), which established that the revocation of a relin-
quishment of parental rights must occur within a “reasonable
time” after the relinquishment.
In Kellie, supra, the mother sought to revoke her relin-
quishment prior to the agency’s written acceptance of relin-
quishment. On November 18, 1978, the mother signed a
relinquishment and consent to adoption regarding her 5-year-
old daughter, and the child was delivered to a licensed child
placement agency and later placed with a prospective adop-
tive family. Three days after signing the relinquishment, the
mother contacted her social worker and told him that she
had made a mistake and wanted her daughter back. The
social worker advised the mother that she could not get her
daughter back. The mother called the social worker again
on Thanksgiving Day and went to his office twice thereafter
trying to obtain her daughter’s return. On December 26, the
mother telephoned the prospective adoptive parents asking
them to voluntarily return her daughter, but they refused. On
December 27, the mother personally delivered a written and
notarized revocation of relinquishment to the child placement
agency. On January 2, 1979, both natural parents of the child
filed suit to regain custody of their daughter. The acceptance
of the relinquishment was not signed by the child placement
agency until January 12, 1979, approximately 2 weeks after
the relinquishment had been revoked by the mother and more
than a week after the parents’ court action had been com-
menced. The district court denied the natural parents’ petition
for a writ of habeas corpus.
[9,10] On appeal, the Nebraska Supreme Court stated that
§ 43-106.01 was the critical section of the Nebraska adoption
statutes. The child placement agency took the position that the
statutory requirement of written acceptance is only a technical
requirement and that it accepted in fact when it accepted the
child at the time the relinquishment was signed. The Supreme
Court said:
Courts have traditionally required substantial if not
strict compliance with all statutory requirements with
respect to the formalities of execution of a parent’s
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Cite as 20 Neb. Ct. App. 798
consent to adoption or relinquishment of parental rights.
A consent or relinquishment which fails to meet statutory
requirements cannot be given legal effect. See 2 Am. Jur.
Adoption § 43 (1962). In this state we have followed the
rule that strict compliance with the adoption statutes is
required. . . .
This court has noted that a licensed child place-
ment agency is required to accept responsibility for the
child, in writing, under § 43-106.01. See Kane v. United
Catholic Social Services, 187 Neb. 467, 191 N.W.2d
824 (1971).
The respondent contends that to require strict compli-
ance with the statute will place an undue burden upon a
licensed child placement agency and create uncertainty
during the time period between execution of a relinquish-
ment and its acceptance. We disagree. Arrangements for
prompt and strict compliance with the statute can obvi-
ously be made by proper administrative procedures.
A duly executed revocation of a relinquishment and
consent to adoption delivered to a licensed child place-
ment agency within a reasonable time after execution of
the relinquishment and before the agency has, in writing,
accepted full responsibility for the child, as required by
statute, is effective to invalidate the original relinquish-
ment and consent. Basic principles of offer and accept­
ance, as well as the statute, dictate that result. In the
present case [the mother] attempted to revoke within 3
days after execution of the relinquishment, continued her
efforts repeatedly, and delivered the duly executed revo-
cation less than 6 weeks after the original relinquishment
was signed. Under the circumstances here [the revocation
of relinquishment] was within a reasonable time.
Kellie v. Lutheran Family & Social Service, 208 Neb. 767,
771-72, 305 N.W.2d 874, 876-77 (1981) (emphasis supplied).
Justice White in his concurrence asserted that the majority
opinion injected by judicial action “a separate ‘reasonable
time’ requirement for revocation.” Id. at 774, 305 N.W.2d at
878 (White, J., concurring; Krivosha, C.J., and Clinton, J.,
join). Nonetheless, in our view, the majority opinion in Kellie
Decisions of the Nebraska Court of Appeals
816 20 NEBRASKA APPELLATE REPORTS
actually imposes four requirements for a valid and effective
revocation of a relinquishment: (1) There must be a duly
executed revocation of a relinquishment, (2) the revocation
must be delivered to the licensed child placement agency (or
DHHS), (3) delivery of the revocation must be within a rea-
sonable time after execution of the relinquishment, and (4)
delivery of the revocation must occur before the agency has, in
writing, accepted full responsibility for the child.
We focus on the third requirement of the four prerequisites
for a valid revocation of a relinquishment of parental rights
which under Kellie, supra, is simply that the revocation must
be done within a reasonable time of the relinquishment. We
hold that 3 years between relinquishment and the attempted
revocation is simply, as a matter of law, an unreasonable
time. To hold otherwise would result in relinquished children
being suspended in “legal limbo” while a parent took years to
decide whether they really meant what they said in the relin-
quishment document. And, to hold otherwise would clearly
place undue hardship on adoption and placement agencies,
to say nothing about what it would mean for people willing
to adopt these children. Accordingly, we hold as a matter of
law that Ida’s attempted revocation of the relinquishments of
Mario Jr. and Esperanza 3 years after the fact does not and
cannot satisfy the requirement that a revocation be delivered
in a “reasonable time” after the relinquishment. And therefore,
the third of the four conditions for a valid revocation of Ida’s
relinquishment cannot ever be satisfied.
The timeframe for revocation in the instant case is clearly
vastly different from that in Kellie, supra. In Kellie, the mother
attempted to regain her child within 3 days after executing
the relinquishment of her parental rights, continued her efforts
repeatedly, and delivered a duly executed revocation less than
6 weeks after the relinquishment was signed.
[11] However, we are not done with the requirements laid
down in Kellie v. Lutheran Family & Social Service, 208
Neb. 767, 305 N.W.2d 874 (1981), which we take as sepa-
rate and distinct in the sense that the failure to satisfy one
of the requirements means that an attempted revocation of
a relinquishment is invalid and fails. In the course of the
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 817
Cite as 20 Neb. Ct. App. 798
proceedings here, the State’s counsel represented that there had
been acceptance in writing by DHHS, but such was never put
in evidence by the State, as it obviously should have been—if
it existed. We cannot know, nor can we assume, that such writ-
ten acceptance exists. But, when we bear in mind the Kellie
court’s rubric that a relinquishment is essentially a matter of
contract, i.e., offer and acceptance, we conclude that because
Ida’s attempted revocation was not as a matter of law done
in a reasonable time after the relinquishment, the relinquish-
ment has become irrevocable for the policy reasons outlined
above. Thus, if such has not already been accepted, it can still
be accepted. For the policy reasons we have articulated, we
are, in effect, saying that in the circumstances before us, the
requirement that a revocation of relinquishment must be done
in a reasonable time trumps the requirement that DHHS must
accept the relinquishment before there is a valid relinquish-
ment. Upon the remand that we outline below, the trial court
should direct DHHS to accept the relinquishments, if it has not
previously done so. See In re Interest of Gabriela H., 280 Neb.
284, 785 N.W.2d 843 (2010). Thus, we reject Ida’s assignment
of error that the juvenile court erred in not giving effect to
her attempted revocation of her relinquishment of Mario Jr.
and Esperanza.
Notice to Tribe.
[12,13] Mario Sr. and Ida argue that the juvenile court erred
in proceeding with the termination proceedings when insuffi-
cient notice was provided to the Rosebud Sioux Tribe. Section
43-1505(1) states:
In any involuntary proceeding in a state court, when the
court knows or has reason to know that an Indian child
is involved, the party seeking . . . termination of paren-
tal rights to[] an Indian child shall notify . . . the Indian
child’s tribe, by certified or registered mail with return
receipt requested, of the pending proceedings and of [the
tribe’s] right of intervention. . . . No . . . termination of
parental rights proceedings shall be held until at least ten
days after receipt of notice by the parent or Indian custo-
dian and the tribe or the [S]ecretary [of the Interior].
Decisions of the Nebraska Court of Appeals
818 20 NEBRASKA APPELLATE REPORTS
There is no evidence that the Rosebud Sioux Tribe was ever
given notice of the termination of parental rights proceedings
as required by § 43-1505(1). The record shows that notice
was given to the tribe only with respect to the adjudication
proceedings.
The State filed a petition on November 1, 2010, alleging
that Mario Jr., Esperanza, and Nery were within the meaning
of § 43-247(3)(a) by reason of the faults or habits of their “par-
ent, guardian, or custodian.” That same day, the juvenile court
entered an ex parte custody order granting temporary custody
and placement of the children to DHHS. A NICWA notice
was sent to the Rosebud Sioux Tribe on December 3 regard-
ing the State’s § 43-247(3)(a) petition and the juvenile court’s
order for immediate custody. A return receipt was signed on
December 7. This was the only NICWA notice, via certified
mail or otherwise, that the Rosebud Sioux Tribe received, inso-
far as the record before us reveals.
The State filed its motion to terminate Mario Sr.’s and
Ida’s parental rights on December 8, 2010. The termination
proceedings included hearings held on August 22 and 23,
plus September 6 and 13, 2011. Also on September 13, the
State filed its first amended motion—adding an allegation that
“active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup
of the family and that these efforts have been unsuccessful,”
a required NICWA element pursuant to § 43-1505(4). The
State filed its second amended motion on October 21, adding
language that “[c]ontinued custody by the parents is likely
to result in serious emotional or physical damage to the chil-
dren,” a required NICWA element pursuant to § 43-1505(6).
The shortcomings in the pleadings, and subsequent remedial
steps to correct such, are before us via assignments of error
from both Mario Sr. and Ida. We note the obvious fact that
only the October 21 amended motion contains the proper
pleadings for a NICWA case involving potential termination
of parental rights. The termination hearings proceeded on
November 22, 2011, and January 31, 2012, both of which
occurred after the State’s pleadings were corrected to allege
that the NICWA requirements had been satisfied. In the end,
Decisions of the Nebraska Court of Appeals
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Cite as 20 Neb. Ct. App. 798
we find that we need not address the assignments of error
aimed at the pleading issues in order to resolve the appeal. See
In re Trust Created by Hansen, 281 Neb. 693, 798 N.W.2d 398
(2011) (appellate court is not obligated to engage in analysis
that is not needed to adjudicate controversy before it).
There is no evidence that the Rosebud Sioux Tribe was prop-
erly notified of the original motion to terminate parental rights,
filed on December 8, 2010, which came after the tribe was
given NICWA notice only of the § 43-247(3)(a) adjudication
petition but before the tribe filed its “Notice of Intervention.”
Since the tribe filed its notice of intervention in February 2011,
the termination motion has been amended twice to conform
to the elements necessary for a termination under NICWA,
yet there is no showing in the record that the tribe was given
notice of these amended pleadings. And as stated previously in
our opinion, the juvenile court ordered:
[C]opies of all future motions and pleadings are to be
served upon the Rosebud Sioux Tribe as a party herein.
Opportunity to examine all relevant documents filed
with the Court upon which a decision may be based
must be afforded to the Rosebud Sioux Tribe’s autho-
rized representatives pursuant to 25 U.S.C., Section
1912(c).
Even though the original termination motion was not a
“future” motion or pleading, the Rosebud Sioux Tribe should
have been notified, by “certified or registered mail with return
receipt requested, of the pending proceedings” in order to com-
ply with § 43-1505(1). But there is no evidence in our record
that the tribe was notified of the original motion to terminate
parental rights, as required by § 43-1505(1).
[14] At the time the termination proceedings began, the
original motion for termination of parental rights was the
operative motion and the tribe had not been provided notice of
such proceedings as required by § 43-1505(1). In In re Interest
of Walter W., 14 Neb. Ct. App. 891, 900-901, 719 N.W.2d 304,
311-12 (2006), we said:
[T]he [tribe’s] representative . . . stated that the tribe
intervened because it wanted to be informed of the
progress of the case, and the tribe did not waive notice
Decisions of the Nebraska Court of Appeals
820 20 NEBRASKA APPELLATE REPORTS
of future proceedings in this case. Since the plain lan-
guage of the statute provides that “[n]o . . . termination
of parental rights proceedings shall be held until at least
ten days after receipt of notice by the parent or Indian
custodian and the tribe or the secretary,” [§ 43-1505(1)],
we determine that the termination hearing conducted in
this case was invalid, and thus, the order of termination
must be vacated. We therefore remand this cause to the
juvenile court for further proceedings to be conducted
following provision of proper notice to the Yankton
Sioux Tribe.
Similarly, because the Rosebud Sioux Tribe was not given
proper notice, the termination proceedings conducted in the
instant case were invalid, and thus, the order of termination
must be vacated. We therefore remand the causes to the juve-
nile court for further proceedings to be conducted following
provision of proper notice to the Rosebud Sioux Tribe.
Moreover, there were numerous notification failures by
the State. Despite the court’s order that “copies of all future
motions and pleadings are to be served upon the Rosebud
Sioux Tribe as a party herein,” the amended motions filed
on September 13 and October 21, 2011, do not contain a
certificate of service showing to which parties, if any, the
pleadings were sent or any indication that they were sent,
whether it was via regular mail or certified mail with return
receipt requested. The amended motions simply contain the
following notation, which we quote, following the signature
of State’s counsel: “cc: Consulate of Mexico[,] Ogallala Sioux
Tribe.” Thus, to the extent that such is considered service, it is
service on the wrong tribe. And therefore, we must conclude
that notice was not provided to the Rosebud Sioux Tribe of
the amended motions to terminate parental rights, which were
filed midtrial.
The State argues that after the Rosebud Sioux Tribe filed
its notice of intervention, the court sent notices to the tribe
of all further hearing dates, but the record does not verify
that assertion.
The State also argues that notice of the second amended
motion to terminate was sent to the Rosebud Sioux Tribe by
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Cite as 20 Neb. Ct. App. 798
registered mail more than 10 days prior to the next hearing
date on the motion, January 31, 2012. Exhibit 29 is a signed
return receipt stamped with a date of January 9, 2011, for an
“Article Addressed to: Rosebud Sioux Tribe[,] Attn: Shirley
J. Bad Wound.” At the termination hearing held on January
31, 2012, the State offered the return receipt into evidence
and counsel said, “[F]or some reason it has a stamp on it that
says January 29th, which is when they got it, but it says 2011,
so apparently they didn’t turn — somebody forgot the year
or something.” The State “concedes that notice by registered
mail on the second Amended Motion to Terminate was accom-
plished late. . . . The notice was still sent by registered mail ten
days prior to the next hearing date on the motion, January 31,
2012.” Briefs for appellee State in cases Nos. A-12-629 and
A-12-662 at 19. Thus, the State concedes that the date stamp
on exhibit 29 has the wrong year, which should actually be
2012, not 2011.
That said, there is still no proof of what was sent to the
Rosebud Sioux Tribe on January 9, 2012. Exhibit 29 is merely
evidence that the State sent “something” to the Rosebud
Sioux Tribe prior to the last day of the termination proceed-
ings held on January 31, but there is no evidence as to what
was sent. While the State refers to exhibit 29 as the notice of
the amended motion, there is no evidence in the record that
such statement is correct. Exhibit 29 is only a return receipt
from the Rosebud Sioux Tribe, and there is no indication as
to what was actually sent to and received by the tribe. While
it could have been the amended termination motion, “could
have” does not satisfy the State’s burden to prove proper
notice to the tribe under NICWA. Furthermore, § 43-1505(1)
states that “[n]o . . . termination of parental rights proceed-
ings shall be held until at least ten days after receipt of notice
by the parent or Indian custodian and the tribe or the secre-
tary.” The termination proceedings began on August 22, 2011.
Thus, the State’s argument that late notice was “harmless
error” because the amended motion was sent “ten days prior
to the next hearing date on the motion, January 31, 2012,”
is without merit and contrary to law, given that a number of
hearings on the termination of parental rights had already
Decisions of the Nebraska Court of Appeals
822 20 NEBRASKA APPELLATE REPORTS
occurred. See briefs for appellee State in cases Nos. A-12-629
and A-12-662 at 19.
Were Pleadings Sufficient for
Purposes of NICWA?
Although the failure to give proper notice to the Rosebud
Sioux Tribe means that the termination decision of the trial
court in each case must be vacated, and the causes remanded,
there are assignments of error dealing with the adequacy of
the pleadings that we briefly address. In a NICWA case, there
are strict pleading requirements to which prosecutors and
courts must adhere. On December 8, 2010, the State filed its
motion to terminate Mario Sr.’s and Ida’s parental rights to
Mario Jr., Esperanza, and Nery pursuant to § 43-292(2), but
this termination motion did not include any allegations under
NICWA. And this was the operative motion when the termina-
tion proceedings began on August 22, 2011, and continued on
the next day and then proceeded on September 6 and 13. But
on September 13, the State filed its first amended motion that
alleged grounds for termination under § 43-292(2) and alleged
that “active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of
the family and that these efforts have been unsuccessful”—
a required NICWA element pursuant to § 43-1505(4). But
the State did not include all required NICWA elements in
its termination motion until October 21, when it alleged that
“[c]ontinued custody by the parents is likely to result in seri-
ous emotional or physical damage to the children.” This is a
necessary NICWA element under § 43-1505(6) that is part of
the State’s burden of proof.
Argument on Ida’s pretrial motion going to the pleading
deficiency was heard on August 22, 2011, prior to the court’s
proceeding with the termination hearing, and Mario Sr. joined
in Ida’s motion at that time. The court inexplicably did not
resolve these well-taken motions prior to proceeding with the
termination hearing.
[15] In In re Interest of Sabrienia B., 9 Neb. Ct. App. 888, 621
N.W.2d 836 (2001), we held that NICWA requires the State
to plead (1) active efforts by the State to prevent the breakup
Decisions of the Nebraska Court of Appeals
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Cite as 20 Neb. Ct. App. 798
of the family and (2) that continued custody by the parent
or Indian custodian is likely to result in serious emotional
or physical harm. We found the State’s failure to include the
applicable NICWA elements in its motion was not remedied
by the facts that the applicability of NICWA had been dis-
cussed in court and that the juvenile court specifically found
that the State had proved the relevant NICWA requirements.
Accordingly, we found that the demurrer filed by the mother
should have been granted. However, we found that the State
could, by amendment, cure the defects of the motion for ter-
mination of parental rights and that the State must be given
the opportunity to amend. We therefore vacate, and remand for
further proceedings.
[16] In these cases, there was no reason we can discern
why the State could not have amended its motion to termi-
nate parental rights to comply with NICWA prior to the com-
mencement of the termination hearing on August 22, 2011.
The children’s status as Indian children was established by
the Rosebud Sioux Tribe’s “Notice of Intervention” filed on
February 4 of that year. Given our holding in In re Interest of
Sabrienia B., supra, amendment of the State’s motion would
be appropriate. We can envision no reason to delay ruling on a
motion raising the adequacy of the allegations under NICWA,
but given the other issues which are dispositive of this appeal,
we need not go any further with this pleading issue, other than
to emphasize the importance of proper pleading in a NICWA
case. And we take this approach and do not discuss the other
assignments of error that are not necessary to dispose of these
appeals. See In re Trust Created by Hansen, 281 Neb. 693,
798 N.W.2d 398 (2011) (appellate court is not obligated to
engage in analysis that is not needed to adjudicate controversy
before it).
CONCLUSION
For the reasons stated above, in case No. A-12-662, we find
that Ida’s relinquishments of her parental rights to Mario Jr.
and Esperanza are valid and effective. Accordingly, we affirm
the juvenile court’s decision to deny Ida’s request to revoke
such relinquishments. However, because there is no evidence
Decisions of the Nebraska Court of Appeals
824 20 NEBRASKA APPELLATE REPORTS
that the Rosebud Sioux Tribe was given proper notice of the
termination of parental rights proceedings as required by
§ 43-1505(1) of NICWA, we find that the termination proceed-
ings conducted in the instant cases were invalid, and thus, the
orders of termination must be vacated. We therefore remand
the cause in each case to the juvenile court for further pro-
ceedings to be conducted following provision of proper notice
to the Rosebud Sioux Tribe. Such further proceedings are lim-
ited to Nery in case No. A-12-662, because Ida’s relinquish-
ments as to Mario Jr. and Esperanza mean that her parental
rights as to those two children are already finally terminated.
In case No. A-12-629, we vacate the order terminating Mario
Sr.’s rights as to all three children—Mario Jr., Esperanza, and
Nery. Thus, the causes are remanded for further proceedings
to this extent.
Judgment in No. A-12-629 vacated, and cause
remanded for further proceedings.
Judgment in No. A-12-662 affirmed in part
and in part vacated, and cause remanded
for further proceedings.
Riedmann, Judge, concurring.
I concur with the result, but write separately because I do
not agree that Ida should be required to revoke her relinquish-
ment “within a reasonable time” without requiring the place-
ment agency to sign the acceptance of revocation within a
reasonable time as well. The majority would hold that 3 years
is too long for Ida to file a revocation of relinquishment, but
would allow DHHS to sign a valid acceptance of revocation 6
years after it was provided to it. In Kellie v. Lutheran Family
& Social Service, 208 Neb. 767, 305 N.W.2d 874 (1981), the
Nebraska Supreme Court recognized that a signed relinquish-
ment is not a mere formality, and it required strict compliance
with the statute. The court specifically rejected the contention
that to require strict compliance would place an undue burden
on a licensed child placement agency or create uncertainty
during the period between execution of a relinquishment
and its acceptance. The court stated that “[a]rrangements for
prompt and strict compliance with the statute can obviously
be made by proper administrative procedures.” Id. at 772,
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF NERY V. ET AL. 825
Cite as 20 Neb. Ct. App. 798
305 N.W.2d at 877. To suggest that the State can sign an
acceptance of revocation 6 years after it has been provided to
it does not comport with “prompt and strict compliance with
the statute.”
If parents are required to revoke their relinquishments
within a reasonable time, so, too, should the placement agency
be required to accept the relinquishment within a reasonable
time. Under the facts of this case, however, I agree that Ida is
precluded from revoking her relinquishment at this late date.
Although it does not appear from our record that Ida’s relin-
quishment documents were filed with the court, copies of the
documents are included in the record. On June 17, 2009, upon
the representation of Ida’s prior counsel that Ida had signed
relinquishments and that DHHS had accepted the relinquish-
ments, the court dismissed allegations against Mario Sr. and
dismissed case No. JV06-470. Thereafter, DHHS, Ida, and the
court acted for several years as though an acceptance existed.
Under these facts, I concur that the policy reasons expressed
by the majority require the result ultimately reached.