CASES DETERMINED

IN THE

NEBRASKA COURT OF APPEALS

(1)

In re Interest of Shayla H. et al.

children under 18 years of age

State of Nebraska, appellee, v

David H., appella

___ 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 construed 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.
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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 affirmative 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 remedial measures.

10. Juvenile Courts: Parent and Child. Similar to other areas of law, reasonableness of a rehabilitative plan for a parent depends on the circumstances in a particular 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 p

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, Judg
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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 children, 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 reasonable 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 daughters 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 children 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. 
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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 intervention 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 inappropriate 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 discipline. 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 services 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 successfully 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 providers noted that David and Danielle had improved their abilities 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 specialist for DHHS, was the only witness to testify at the hearing, 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 
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Tanya. When Tanya misbehaved at school, she would be separated 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 working 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 possible eating disorder and that Tanya had exhibited a tendency 

to run away from home after having visited with her biological 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, contending that many of the provisions were not related to the reason 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.
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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 therapeutic 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 medical, dental, and vision examinations and other specialist 

appointments as necessary and recommended by medical providers.

h. . . . schedule an appointment for Shania’s speech and 

language evaluation, as recommended . . . in her psychological 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.
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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 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. 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 parental rights to an Indian child.

We begin our analysis of this issue by noting that the purpose of ICWA, enacted in 1978, is

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families 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 culture, 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 
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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 substantive 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 rehabilitative 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 reasonable 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. 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 specifically 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 
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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 compliance 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 ruling 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 proceeding to determine whether a child is in need of assistance 
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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) provides an Indian tribe with the right to intervene in any state 

court proceeding “for the foster care placement of, or termination of parental rights to, an Indian child.” Further, Neb. 

Rev. Stat. § 43-1503(1) (Reissue 2008) provides the following 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 conservator 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 position. In that case, the Supreme Court confronted a situation 

where an Indian child’s biological father, a registered member 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 nonIndian South Carolina couple began adoption proceedings. Id.

When the biological father was apprised of the adoption, he 
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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 biological 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, quoting 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 specifically held that ICWA’s active efforts requirement “applies only 

in cases where an Indian family’s ‘breakup’ would be precipitated 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 interprets the decision to signify that ICWA’s active efforts requirement 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). 
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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 children throughout their lives. The children have been in his custody 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 involuntary 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 prevent 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 involuntary 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 termination of parental rights is sought. Finally, the amici contend 

that the State’s statutory interpretation would lead to an absurd 
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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 juvenile 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 involuntary 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. App. 

867, 774 N.W.2d 416 (2009), this court tacitly recognized 

that active efforts under ICWA are to be provided throughout 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. 
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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 throughout 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. App. at 881, 774 N.W.2d at 427.

In reaching the conclusion that active efforts should be provided 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 custody 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 proceedings consistent with this opinion.

Additional Assignments of Error 

Concerning Disposition Order.

[4] David also challenges certain provisions in the disposition 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 further proceedings. In re Interest of Laurance S., 274 Neb. 620, 

742 N.W.2d 484 (2007).
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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 construed to accomplish its purpose of serving the best interests 

of the juveniles who fall within it. In re Interest of T.T., 18 

Neb. 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 prescribe a reasonable program for parental rehabilitation to correct 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 conducted 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, eliminate, 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 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 remedial measures. Similar to other areas 

of law, reasonableness of a rehabilitative plan for a parent 
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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 jurisdiction, 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 correcting 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 adjudication. 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 discipline are material to ameliorate the underlying reason for the 
Decisions of the Nebraska Court of A

IN RE INTEREST OF SHAYLA H. ET AL. 17

Cite as 22 Neb. 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 
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18 22 NEBRASKA APPELLATE REPORTS

the entirety of this time, the family has worked with the family therapist, Crayne. During therapy with Crayne, the family 

has formed a bond with her and she became a valuable support. 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 presented 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 specifically 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 revers

remanded for further proceeding