Decisions of the Nebraska Court of Appeals

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In re Interest of Nery V. et al., 

children under 18 years of age.

State of Nebraska, appellee, v. Mario V., Sr., 

appellant, Ida 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, Ida 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 interpretation 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 withdrawal 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 relinquishment 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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Cite as 20 Neb. App. 798

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 revocation 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 relinquishment of parental rights is not done in a reasonable time after the relinquishment, 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 proceedings 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.
Decisions of the Nebraska Court of Appeals

800 20 NEBRASKA APPELLATE REPORTS

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 conducted 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

IN RE INTEREST OF NERY V. ET AL. 801

Cite as 20 Neb. 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, violating 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 parental home 6 months later.

In December 2006, Mario Jr. and Esperanza were removed 

from the parental home because of reports of domestic violence 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 discussed 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 weekends, 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 primary 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 methamphetamine. 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:

• 03/13/2008 Ida signed her relinquishments of her parental

rights to Mario Jr. and Esperanza (JV06-470).

• 11/01/2010 The State filed its petition alleging that Mario Jr.,

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).

• 12/03/2010 NICWA notice was sent to the Rosebud Sioux

Tribe regarding the State’s § 43-247(3)(a) petition and the 

order for immediate custody (JV10-505).

• 12/07/2010 The return receipt for the NICWA notice was

signed (JV10-505).

• 12/08/2010 The State filed its petition for termination of

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).

• 02/04/2011 The Rosebud Sioux Tribe filed its “Notice of

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).

• 07/22/2011 Ida filed notice of her intent to withdraw her

voluntary relinquishment of her parental rights (JV06-470).

• 08/16/2011 Ida filed her withdrawal of her voluntary relinquishment of her parental rights (JV06-470); she also filed 

motions to dismiss the State’s motion for termination, alleging the State failed to provide proper notice to the tribe and 

failed to state a proper cause of action (JV10-505).

• 08/22/2011 The juvenile court took Ida’s withdrawal of her

relinquishments (JV06-470) and her pretrial motions to dismiss (JV10-505) under advisement and proceeded with the 

first day of the termination proceedings (JV10-505).

• 08/23/2011 Second day of the termination proceedings

(JV10-505).
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IN RE INTEREST OF NERY V. ET AL. 803

Cite as 20 Neb. App. 798

• 09/06/2011 Third day of the termination proceedings

(JV10-505).

• 09/13/2011 Fourth day of the termination proceedings; the

State filed an amended petition for termination of Mario 

Sr.’s and Ida’s parental rights, adding an allegation of “active 

efforts” (JV10-505).

• 10/21/2011 The State filed another amended petition for termination 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).

• 11/22/2011 Fifth day of the termination proceedings

(JV10-505).

• 01/31/2012 Sixth and final day of the termination proceedings (JV10-505).

• 06/25/2012 The juvenile court filed an order wherein it

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, alleging 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 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].”

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 complete” 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 termination 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 relinquishments 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 relinquishments under advisement. We note that case No. JV10-505 was 

ongoing at the time Ida filed her withdrawal of her relinquishments. And the proceedings on August 22 were held in conjunction 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 relinquishment of her parental rights.
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF NERY V. ET AL. 805

Cite as 20 Neb. 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 juvenile court filed an ex parte custody order finding, “[Mario Sr.] 

is not providing care—delegated to [Ida] who previously relinquished her rights to older two children. She is unable to provide 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 allegations,” followed by a handwritten notation that is not legible. 

The juvenile court again granted temporary custody and placement 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) petition 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 termination 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 protection.” 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 authorized 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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IN RE INTEREST OF NERY V. ET AL. 807

Cite as 20 Neb. 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 termination proceedings, as will be noted below. No representative 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 posttermination 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 insufficient 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 insufficient notice.

Regarding Ida’s August 2011 motion to dismiss for insufficient pleadings—asserting that the State failed to state a proper 

cause of action in that it failed to articulate an essential element, 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 concerning 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 serious 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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Cite as 20 Neb. App. 798

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 termination 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) proceeding 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 statutorily required elements for terminating parental rights under 

NICWA, (6) denying Mario Sr.’s request for posttermination 

visitation, and (7) allowing and considering evidence regarding the foster parents’ desire and ability to provide permanency 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 termination 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) allowing 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 adjudicative 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 parental 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 parental 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 relinquishments 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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Cite as 20 Neb. App. 798

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 following 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 consent shall not be valid unless executed in writing and 

recorded before a judge of a court of competent jurisdiction 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 parent 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 understood. . . .

. . . .

(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 erroneously 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 status 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 prospectively 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 withdrawal 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 suggestion, 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 
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF NERY V. ET AL. 813

Cite as 20 Neb. App. 798

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 relevant part:

When a child shall have been relinquished by written 

instrument . . . to [DHHS] or to a licensed child placement agency and the agency has, in writing, accepted 

full responsibility for the child, the person so relinquishing 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 adjudicated 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 placement 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 relinquishment of parental rights must occur within a “reasonable 

time” after the relinquishment.

In Kellie, supra, the mother sought to revoke her relinquishment prior to the agency’s written acceptance of relinquishment. On November 18, 1978, the mother signed a 

relinquishment and consent to adoption regarding her 5-yearold daughter, and the child was delivered to a licensed child 

placement agency and later placed with a prospective adoptive 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 commenced. 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 
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF NERY V. ET AL. 815

Cite as 20 Neb. 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 placement 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 compliance 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 relinquishment and its acceptance. We disagree. Arrangements for 

prompt and strict compliance with the statute can obviously be made by proper administrative procedures.

A duly executed revocation of a relinquishment and 

consent to adoption delivered to a licensed child placement 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 relinquishment and consent. Basic principles of offer and acceptance, 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 revocation 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
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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 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.

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 relinquishment 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 separate 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. 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 written 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 relinquishment 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 relinquishment. 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 insufficient 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 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. . . . No . . . 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 [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 “parent, 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 regarding 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, insofar 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 children,” 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

IN RE INTEREST OF NERY V. ET AL. 819

Cite as 20 Neb. 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 properly 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 authorized 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 comply 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. 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 language 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 juvenile 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 
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF NERY V. ET AL. 821

Cite as 20 Neb. 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 accomplished 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 proceedings 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 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.” 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 
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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 termination 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 serious 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. 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

IN RE INTEREST OF NERY V. ET AL. 823

Cite as 20 Neb. 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 discussed 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 termination 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 terminate parental rights to comply with NICWA prior to the commencement 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 proceedings 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 proceedings to be conducted following provision of proper notice 

to the Rosebud Sioux Tribe. Such further proceedings are limited to Nery in case No. A-12-662, because Ida’s relinquishments 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 relinquishment “within a reasonable time” without requiring the placement 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 relinquishment 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. 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 relinquishment 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 relinquishments, 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.