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Cite as 295 Neb. 213

In re Adoption of Micah H., a 

Daniel H. and Linda H., ap

v. Tyler R., appelle

___ N.W.2d ___

Filed December 2, 2016. No. S-15-1080.

1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

2. 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.

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. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction over an appeal, there must be a final order or final 

judgment entered by the court from which the appeal is taken.

6. Judgments: Final Orders: Words and Phrases. A judgment is the 

final determination of the rights of the parties in an action.

7. ____: ____: ____. A final judgment is one that disposes of the case 

either by dismissing it before a hearing is had upon the merits, or after 

trial by rendition of judgment for the plaintiff or defendant.

8. Indian Child Welfare Act: Federal Acts: Child Custody. The applicability of the federal Indian Child Welfare Act of 1978 and the Nebraska 

Indian Child Welfare Act to a child custody proceeding turns not on the 

Indian status of the person who invoked the acts but on the status of the 

child involved in the proceeding.

9. Indian Child Welfare Act: Federal Acts: Parental Rights. To the 

extent that the Nebraska Indian Child Welfare Act provides a higher 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/02/2016 09:10 AM CST
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standard of protection to the rights of the parent or Indian custodian of 

an Indian child under the federal Indian Child Welfare Act of 1978, the 

Nebraska Indian Child Welfare Act controls.

10. Indian Child Welfare Act: Parental Rights: Parent and Child. 

“Active efforts” must be made to unite the Indian child with both biological parents, regardless of whether they are Indian.

Appeal from the County Court for Saunders County: Patr

R. McDermott, Judge. Reversed and reman

John H. Sohl for appellants.

Jennifer D. Joakim for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cass

Kelch, and Funke,

Kelch, 

I. NATURE OF CASE

This case presents the issue of whether the “active efforts” 

and “serious emotional or physical damage” elements of the 

federal Indian Child Welfare Act of 1978 (ICWA)1 and the 

Nebraska Indian Child Welfare Act (NICWA)2 apply to provide 

increased protection to the parental rights of a non-Indian, 

noncustodial parent of an “Indian child.”

II. FACTS

Daniel H. and Linda H., the maternal grandparents and 

guardians of Micah H., a minor child, appeal the order of 

the Saunders County Court denying their petition to adopt 

Micah. In their petition, Daniel and Linda alleged, among 

other things, that the child’s mother (their daughter), Allison 

H., had consented to the adoption; that the father, Tyler R., had 

abandoned Micah; and that terminating Allison’s and Tyler’s 

parental rights was in Micah’s best interests. In Tyler’s answer, 

he alleged that Micah was an “Indian Child” pursuant to 

1 25 U.S.C. §§ 1901 to 1963 (2012).

2 Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2016).
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ICWA and NICWA. Because neither party disputed that Micah 

met the “Indian child” definition under both acts, the county 

court applied those acts, which provide heightened protection 

to the rights of parents and tribes in proceedings involving 

custody, termination of parental rights, and adoption of Indian 

children.3 After a hearing on Daniel and Linda’s petition, the 

county court found that it was compelled to deny the petition, 

because it was “unable to find beyond a reasonable doubt that 

[Tyler] has abandoned the child.”

1. Backgro

Micah’s mother, Allison, was placed with Daniel and Linda 

when she was 4 years old. Allison is a member of the Oglala 

Sioux Tribe. Daniel and Linda are not members of an Indian 

tribe, but they took measures to help Allison understand her 

Indian heritage. At the hearing on the petition, Linda testified that the family kept Native American artifacts in their 

home, read Native American books and literature to Allison, 

and took her to powwows and reservations. Linda also testified that in her practice as a nurse, she underwent training to 

become “trans-culturally certified,” with a focus on Native 

American culture.

When Allison was 17 years old, she first met Tyler. She had 

run away from home with a friend, and the two of them went 

to Tyler’s mother’s house. Allison testified that Tyler’s mother 

provided Allison with alcohol and that Tyler provided her 

with marijuana, which they smoked in the basement. Allison 

testified that Tyler’s mother was aware that the marijuana was 

being used. At some point that night, Tyler and Allison had 

sexual intercourse. As a result of that sexual contact, Micah 

was born in September 2007. After his birth, Allison and 

Micah lived in Daniel and Linda’s home.

In June 2008, when Micah was 9 months old, the State initiated an action against Tyler to establish paternity and child 

3 See In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).
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support. Prior to that time, Tyler was not aware of Micah’s 

existence. On July 2, 2010, the county court entered a decree 

of paternity, custody, and child support. The decree granted 

Allison full legal and physical custody. It ordered Tyler to pay 

child support of $100 per month beginning August 1, 2010. 

The decree also awarded Tyler parenting time. Supervised visitation was to occur every other weekend, 1 to 2 weeks in the 

summer, and on alternating holidays.

(a) Tyler’s Visitation

Linda testified that Tyler’s first visit with Micah occurred 

at her home in November 2008. She testified that until the 

county court awarded Tyler parenting time in 2010, Tyler visited “more than once a year,” but not always more than once a 

month. After Tyler was awarded parenting time, he saw Micah 

every other week to every 3 weeks. Under the decree, Tyler’s 

visits with Micah were to be supervised by his mother or 

another suitable person approved by Allison.

Tyler’s mother testified that the visits between Tyler and 

Micah were “great.” She stated that she observed a loving 

relationship between them and that Micah appeared to enjoy 

himself and look up to Tyler. Tyler also testified about his 

parenting time, naming various activities that he and Micah 

enjoyed together. According to Tyler, at some point, Daniel and 

Linda started denying him visits for no reason.

Linda testified that the face-to-face visits ceased on May 8, 

2011, for two reasons. There were concerns, first, that Tyler’s 

visits were not being supervised as ordered, and second, that 

inappropriate sexual behavior displayed by Micah was attributable to Tyler. At some point, Allison’s attorney wrote Tyler a 

letter stating that Allison was restricting Tyler’s parenting time 

because of Micah’s inappropriate behaviors.

On the issue of whether Tyler’s visits were being supervised, 

Linda testified that sometime in February 2011, Tyler came 

to Daniel and Linda’s house to pick Micah up for a visit, and 

his mother was not with him. When Allison saw that Tyler’s 
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mother was not present, she told him that he could not take 

Micah. Linda testified that she had also suspected that the 

visits were sometimes unsupervised because Micah would talk 

about “being with Daddy Tyler downstairs” and going “up 

to the big house where [Tyler’s mother] was.” Tyler and his 

mother denied that the visits were ever unsupervised.

As for Micah’s inappropriate sexual behavior, Linda stated 

she had observed that “when Micah would hug or kiss, he 

would say things like, ew-w, baby, baby and rub against.” 

Allison testified that Micah “took Buzz and Woody [dolls representing characters from a children’s movie] and talked about 

Buzz kissing his penis.”

Daniel also testified about some of Micah’s questionable 

behavior. Daniel testified that he was supervising Micah’s bath 

one night. Because Micah is uncircumcised, Daniel reminded 

Micah that he needed to pull the foreskin back to clean himself. Daniel testified that Micah said, “oh, this is how guys 

make white stuff come out of their penis,” and that Micah then 

started making a lot of movement on his penis. When Daniel 

asked Micah how he found out about that, Micah said, “from 

Daddy Tyler,” and “from movies.” At that time, Micah was 3 

or 4 years old.

Tyler’s testimony supports Linda’s claim that Tyler’s last 

face-to-face visit was May 8, 2011. He testified that prior to 

his incarceration in February 2012, he did not have face-to-face 

contact with Micah for what “could have been” a year or more. 

Linda testified that to her knowledge, Tyler did not request 

visitation with Micah after that time. Tyler, however, claims 

that at some point, he filed a contempt action in county court 

to allow visitation, and that the matter was pending.

Tyler testified that while in prison, he wrote numerous letters to Micah addressed to Daniel and Linda’s residence and 

that he sometimes received a response. Tyler’s mother testified 

that Tyler had sent cards, drawings, and puzzles for Micah to 

her residence.
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(b) Child Support

Tyler was unable to pay the full monthly child support obligation after he was imprisoned in February 2012 for motor 

vehicle homicide. While in prison, Tyler requested that the 

State withhold his prison income to satisfy his child support 

obligation. However, Tyler’s request was denied because his 

income was too low to qualify for withholding. The amount 

was also insufficient to cover the full child support obligation. Tyler testified that he then sent his prison income to his 

mother, who supplemented the income with her own funds, to 

pay the child support obligation on Tyler’s behalf. The county 

court found that it was “the paternal grandmother, not the 

father, who pays the child support for the child.” Tyler’s child 

support payment history reflects that between July 1, 2008, 

and May 26, 2015, $7,517.20 had been paid and that Tyler 

owed $816.12.

(c) Daniel and Linda Appointed 

as Micah’s Guardians

Allison has struggled with addiction since she was 15 years 

old. While she was in Daniel and Linda’s custody and control, 

they sought counseling for her. Allison also received alcohol 

and drug counseling and treatment prior to the hearing on 

Daniel and Linda’s petition. Although Allison had been sober 

for 7 months prior to the hearing, she relinquished her rights 

at the hearing. When asked why she wanted to do that, Allison 

stated, “Because I have struggled with alcohol on and off for 

the last 11 years of my life.”

The evidence shows that Micah has spent the majority of his 

life residing with Daniel and Linda. Linda testified that Micah 

resided with her and Daniel from his birth in September 2007 

to October 2008. From October 2008 to January 2009, Micah 

lived with Allison in an apartment, but had almost daily contact with Daniel and Linda. After that, Allison and Micah lived 

with Tyler at his mother’s residence for 7 to 10 days before 

moving back to Daniel and Linda’s house. After that, Allison 
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and Micah moved back with Daniel and Linda and lived there 

until February 2011, at least “most of that time.” The evidence 

does not reflect where Micah lived from February to October 

2011, but from November 2011 to the time of the hearing in 

June 2015, Micah resided with Daniel and Linda again. At that 

time, Allison had asked Daniel and Linda to care for Micah 

because she was struggling with addiction.

In March 2012, Daniel and Linda took action to become 

joint guardians of Micah, and in April, they were appointed.

(d) Tyler’s Mother’s Visitation

After the guardianship commenced in 2012, Daniel and 

Linda offered Tyler’s mother visitation with Micah. Tyler’s 

mother testified that while Micah was visiting her, she would 

call Tyler in prison and allow the two to talk. She testified that 

these telephonic visits ceased when Linda told her that Micah 

was not allowed to speak to Tyler.

Linda testified that after visits with Tyler’s mother, Micah 

began to exhibit some anxious behavior that caused her concern. She said Micah would cry, tug on his clothing, and make 

some unusual and rapid hand movements under his chin. She 

said Micah would ask her and Daniel if he had to “go to that 

jail place to visit Daddy Tyler.” In response to these behaviors, Daniel and Linda obtained a mental health evaluation for 

Micah with a child psychologist. Tyler’s mother testified that 

she had not taken Micah to visit Tyler in prison.

In late 2013, after Tyler’s mother filed for grandparent visitation, Daniel and Linda stopped allowing Micah to visit her at 

her house.

2. Hearing on Adopti

On September 10, 2014, Daniel and Linda filed a complaint 

for termination of parental rights and a petition to adopt Micah 

in Saunders County Court. Daniel and Linda served a copy 

of their complaint on Allison, Tyler, and the president of the 

Oglala Sioux Tribe, as required by the notice provisions of 
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ICWA and NICWA.4 Allison consented to the adoption, and 

the tribe did not intervene.

However, on October 24, 2014, Tyler filed an answer and 

objection to the petition for adoption. In his answer, Tyler 

alleged that Micah is an “Indian Child” pursuant to ICWA 

and NICWA and that Daniel and Linda had failed to plead or 

otherwise satisfy the requirements of those acts. Those requirements will be discussed at length within the analysis section of 

this opinion.

The hearing on Daniel and Linda’s petition was held on 

June 4, 2015. Among other things, evidence related to Tyler’s 

fitness as a parent was introduced, including evidence of 

Tyler’s history of drug and alcohol abuse and Tyler’s criminal 

record. Allison testified that Tyler had used alcohol, marijuana, and cocaine in her presence; that he had used illegal 

substances in her presence during the 7 to 10 days that 

she and Micah resided with Tyler; and that Tyler had been 

involved in drug deals involving marijuana and cocaine. 

Allison also testified that Tyler had confided in her that he 

had once given cocaine to a female at a party who later died 

from a drug overdose.

Tyler has had numerous drug-related and alcohol-related 

charges and convictions. In 2006, he was convicted of being 

a minor in possession. In 2008, he was convicted of driving under the influence (DUI) and of two separate charges 

of being a minor in possession. In 2010, he was convicted 

of driving under suspension, possession of marijuana (more 

than an ounce but less than a pound), and attempted assault 

on a police office. He was also charged with DUI, which was 

later amended to willful reckless driving. In 2012, Tyler was 

again charged with DUI, but that charge was later amended 

to motor vehicle homicide. As a result of his 2012 conviction, 

Tyler was incarcerated in the Nebraska State Penitentiary, 

where he continues to serve his sentence. Tyler will not 

4 See 25 U.S.C. § 1912(a) and § 43-1505(1).
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be eligible for parole until 2019, when Micah will be 12 

years old.

Tyler testified that while in prison, he has attended an 

Alcoholics Anonymous program, “Asatrú” religious programs, 

and language programs. At the time of the hearing, Tyler was 

employed in the prison’s kitchen and earned approximately $87 

per month.

After the hearing, the county court denied Daniel and 

Linda’s petition. Applying ICWA, the court concluded, “By 

nearly any other standard[,] the court would not hesitate to 

grant adoption but under the unique requirements of ICWA 

and the burden of proof beyond a reasonable doubt that Court 

is compelled to deny the petition.” The county court found, 

“While [Tyler] is certainly not a fit parent at this time, the 

court is unable to find beyond a reasonable doubt that he has 

abandoned the child.”

Daniel and Linda now appeal.

III. ASSIGNMENTS OF ERROR

Daniel and Linda assign (1) that the county court erred 

in finding that ICWA applied at the request of Tyler, a nonIndian, and (2) that the county court erred in applying a higher 

burden of proof to the abandonment element and finding 

that Daniel and Linda failed to show that Tyler had abandoned Micah.

IV. STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law.5

[2] An appellate court reviews juvenile cases de novo on the 

record and reaches its conclusions independently of the juvenile court’s findings.6

[3] To the extent an appeal calls for statutory interpretation 

or presents questions of law, an appellate court must reach an 

5 In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

6 In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).
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independent conclusion irrespective of the determination made 

by the court below.7

V. ANALYSIS

1. Jurisdi

[4-7] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.8 For an appellate court to 

acquire jurisdiction over an appeal, there must be a final order 

or final judgment entered by the court from which the appeal 

is taken.9 A judgment is the final determination of the rights of 

the parties in an action.10 We have said that a final judgment 

is one that disposes of the case either by dismissing it before 

a hearing is had upon the merits, or after trial by rendition of 

judgment for the plaintiff or defendant.11 Conversely, every 

direction of a court or judge, made or entered in writing and 

not included in a judgment, is an order.12 The final judgment in 

proceedings under an adoption petition is an order granting or 

denying adoption.13 Here, unlike in In re Adoption of Madysen 

S. et al.,

14 the county judge, even though the hearing had been 

bifurcated, denied the entire adoption petition filed by Daniel 

and Linda. Therefore, we have jurisdiction to proceed.

2. Applicability o

and NIC

Generally stated, the substantive portions of ICWA and 

the corresponding provisions of NICWA provide heightened 

7 Id.

8 In re Adoption of Madysen S. et al., supra note 5.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.
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protection to the rights of parents and tribes in proceedings 

involving custody, termination of parental rights, and adoption of Indian children.15 ICWA was enacted by Congress 

in 1978

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.16

In 1985, NICWA was enacted “to clarify state policies and procedures regarding the implementation by the State of Nebraska 

of [ICWA].”17

In the present case, Daniel and Linda argue that the county 

court erred in finding that ICWA applied when invoked by a 

non-Indian father; they argue that “[o]nly an Indian Tribe or 

parental Indian member of an Indian family may invoke those 

statutory protections.”18 Daniel and Linda do not offer any 

authority directly supporting these assertions, but argue that 

the purpose of ICWA is not served by applying it to protect the 

rights of a non-Indian father.

[8] We note that the plain language of ICWA and NICWA 

does not provide for any exclusion when raised by a nonIndian parent. In fact, under NICWA, “[p]arent means any 

biological parent or parents of an Indian child or any Indian 

person who has lawfully adopted an Indian child, including 

adoptions under tribal law or custom.”19 Rather, the applicability of ICWA and NICWA to an adoption proceeding turns not 

15 See In re Adoption of Kenten H., supra note 3.

16 25 U.S.C. § 1902.

17 § 43-1502.

18 Brief for appellants at 9.

19 § 43-1503(14).
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on the Indian status of the person who invoked the acts but on 

whether an “Indian child” is involved.20 Here, there was no 

dispute that Micah meets the statutory definition of an “Indian 

child.” Accordingly, the county court correctly found that 

ICWA and NICWA applied, but it did not determine whether 

certain provisions of ICWA and NICWA applied to Tyler.

Although we find that ICWA and NICWA apply to this 

adoption proceeding, this is not to say that every provision of 

ICWA and NICWA applies to a non-Indian parent. As we shall 

discuss later, certain provisions of ICWA or NICWA may not 

be applicable to a non-Indian parent.

3. Abandon

In its application of NICWA, the county court found that 

it was compelled to deny the adoption petition, because “the 

court [was] unable to find beyond a reasonable doubt that 

[Tyler] has abandoned the child.” However, NICWA does not 

require the “beyond a reasonable doubt” standard for the abandonment element.

For a court to grant an adoption petition, Neb. Rev. Stat. 

§ 43-104(1) (Reissue 2016) requires that, unless the adoption 

falls within one of the exceptions set forth in § 43-104(2), the 

biological parents of the child must execute written consent 

to the adoption. Here, Tyler has not consented, but Daniel 

and Linda seek to establish an exception, i.e., that under 

§ 43-104(2)(b), Tyler has “abandoned the child for at least six 

months next preceding the filing of the adoption petition.”

In addition to the requirements under the adoption statutes, 

NICWA adds two elements to adoption proceedings involving 

Indian children. One of those elements requires a determination 

20 See §§ 43-1504 and 43-1505. See, also, In re Adoption of Kenten H.,

supra note 3, 272 Neb. at 853, 725 N.W.2d at 554 (“[a]pplicability of 

these protective statutes depends on whether the proceedings involve an 

‘Indian child’”); In re Interest of J.L.M. et al., 234 Neb. 381, 396, 451 

N.W.2d 377, 387 (1990) (“[f]or application of the Indian Child Welfare 

Act to proceedings for termination of parental rights, the proceedings must 

involve an Indian child within the purview of the act”).
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to be made “beyond a reasonable doubt.”21 However, abandonment in adoption proceedings need only be proved by clear and 

convincing evidence.22 Only the “serious emotional or physical 

damage” element imposed by NICWA must be proved beyond 

a reasonable doubt.23

Because the county court applied the incorrect burden of 

proof to the abandonment element, we must remand the cause 

for further proceedings and for a redetermination applying the 

correct standard. However, we first discuss the two additional 

elements imposed by NICWA, because issues involving those 

elements may recur on remand. 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.24

4. Active Eff

First, § 43-1505(4) and its federal counterpart, 25 U.S.C. 

§ 1912(d), set forth an “active efforts” element. We discuss 

both federal and state statutes. The federal statute provides:

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.25

This statute was interpreted by the U.S. Supreme Court in 

Adoptive Couple v. Baby Girl.

26 In Baby Girl, the adoptive 

21 See § 43-1505(6).

22 See In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 

(1987).

23 See In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).

24 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 

178 (2012).

25 25 U.S.C. § 1912(d).

26 Adoptive Couple v. Baby Girl, ___ U.S. ___, 133 S. Ct. 2552, 186 L. Ed. 

2d 729 (2013).
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parents of a young Indian girl petitioned the U.S. Supreme 

Court for certiorari after a South Carolina court interpreted 

provisions of the federal act to require that the girl be removed 

from her adoptive parents’ care and placed with her biological father. Her father, a member of the Cherokee Nation, had 

previously attempted to relinquish custody, and the child had 

never met him. The U.S. Supreme Court reversed, interpreting 

the “active efforts” provision of ICWA to apply “only in cases 

where an Indian family’s ‘breakup’ would be precipitated by 

the termination of the parent’s rights.”27 Because the Indian 

father in Baby Girl had never had custody of (or even met) 

the Indian child, the court determined that there was no Indian 

family to break up.28 Therefore, the court concluded that the 

“‘active efforts’” element did not apply to the termination of 

the Indian father’s parental rights.29

[9] Applying the U.S. Supreme Court’s interpretation of the 

“active efforts” element, the “breakup” of an Indian family 

would not be precipitated by the termination of Tyler’s parental 

rights, because Tyler has never been part of an “Indian family” to break up. Thus, ICWA’s “active efforts” element and 

the corresponding part of NICWA’s “active efforts” element 

are not applicable. However, this does not end our discussion 

of whether NICWA’s “active efforts” provision applies to the 

termination of Tyler’s parental rights, because the Legislature 

amended NICWA after Baby Girl.

30 To the extent that NICWA 

provides a higher standard of protection to the rights of the 

parent or Indian custodian of an Indian child under ICWA, 

NICWA controls.31

The amended version of § 43-1505(4) provides, in relevant part:

27 Id., 133 S. Ct. at 2562.

28 Id.

29 Id.

30 See 25 U.S.C. § 1921 and § 43-1503(1).

31 25 U.S.C. § 1921.
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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 or unite the parent or Indian custodian with the Indian child and that these efforts have 

proved unsuccessful.

(Emphasis supplied.)

[10] The Nebraska statute is almost identical to the federal 

statute, except it adds that “active efforts” must be made “to 

unite the parent . . . with the Indian child.”32 Again, pursuant 

to NICWA, “[p]arent means any biological parent or parents 

of an Indian child or any Indian person who has lawfully 

adopted an Indian child, including adoptions under tribal law 

or custom.”33 As a result, “active efforts” must be made to 

unite the Indian child with both biological parents, regardless of whether they are Indian. But the amended version of 

§ 43-1505(4) also provides: “Prior to the court ordering . . . the 

termination of parental rights, the court shall make a determination . . . that the party seeking placement or termination has 

demonstrated that attempts were made to provide active efforts 

to the extent possible under the circumstances.” (Emphasis 

supplied.) Therefore, the county court should review active 

efforts in light of the particular circumstance presented in 

this case.

Here, the county judge did not make any findings on the 

issue of “active efforts.” In fact, the court found that Daniel 

and Linda were not required to show active efforts had been 

made to unite Tyler and Micah. Therefore, on remand, the 

court must reopen the record, and, in addition to applying 

the correct standard to the issue of abandonment, determine 

whether “active efforts” have been made or whether attempts 

32 See § 43-1505(4).

33 § 43-1503(14).
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were made to provide active efforts to the extent possible under 

the circumstances.34

5. Serious Emotion

Physical Da

We now discuss the second additional element that ICWA 

and NICWA impose on parties seeking to terminate the parental rights of an Indian child, i.e., the “serious emotional or 

physical damage” element. The federal statute, 25 U.S.C. 

§ 1912(f), provides:

No termination of parental rights may be ordered in 

such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, 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. 

Similarly, § 43-1505(6) provides:

The court shall not order termination of parental rights 

under this section in the absence of a determination, supported by evidence beyond a reasonable doubt, 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.

In Baby Girl, the U.S. Supreme Court held that the “‘serious emotional or physical damage’” element does not apply 

to parents who never had custody of the Indian child, reasoning that the words “‘continued custody’” within the statute 

refer to custody that the parent already has (or at least had at 

some point in the past).35 Because the Indian father in Baby 

Girl never had custody of the Indian child, the Supreme Court 

determined that the “‘serious emotional or physical damage’” 

34 See § 43-1505(4).

35 Adoptive Couple v. Baby Girl, supra note 26, 133 S. Ct. at 2560.
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element did not apply to him.36 In the present case, Daniel and 

Linda argue that because Tyler never had custody of Micah, 

Daniel and Linda need not prove the “serious emotional or 

physical damage” element.

On the other hand, Tyler argues that Baby Girl is limited to 

the particular facts of that case, which involved a father who 

did not have any contact with the child prior to the termination proceedings. Tyler argues that this case is distinguishable from Baby Girl, because he has visitation rights and 

“has paid his child support regularly, even while in custody 

at the State Penitentiary.”37 Indeed, Tyler does have visitation rights, but even assuming that the rule from Baby Girl is 

limited to the facts presented in that case, having the right of 

parenting time does little to distinguish this case from Baby 

Girl if the parent fails to exercise that right. Thus, we need 

to further examine Tyler’s rights in the context of his actual 

parenting time.

The evidence supports that prior to his incarceration, Tyler 

did not have any contact with Micah for approximately 1 year. 

Since the birth of Micah in 2007, Tyler has lived with Micah 

for a mere 7 to 10 days. Tyler’s visits with Micah were, by 

court order, to be supervised, and the record does not reflect 

that Tyler ever sought unsupervised or increased visitation. 

Further, Tyler never had custody, and there is no evidence that 

Tyler ever sought custody. Moreover, even if Tyler’s rights are 

not terminated in this proceeding, Tyler will not be eligible to 

obtain custody of Micah until at least 2019, when he is eligible 

for parole and Micah is 12 years old. Micah should not be in 

limbo for years to come.38

Micah has two loving family members who have essentially 

raised him from birth, and there is no evidence that this situation is not in his best interests. The law provides procedural 

36 See id.

37 Brief for appellee at 13.

38 See In re Interest of Levey, 211 Neb. 66, 317 N.W.2d 760 (1982).
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safeguards to protect parental rights to the utmost,39 but the 

parent must, in return, make reasonable efforts to be a parent. 

Unfortunately, as the county judge noted, Tyler’s record of 

fatherhood is minimal. Further, we agree with the county court 

that “it is the paternal grandmother, not the father, who pays 

the child support for the child.”

After reviewing the evidence, we conclude that this case is 

not distinguishable from Baby Girl. Therefore, because Tyler 

never had custody of Micah, the “serious emotional or physical damage” element does not apply to him. Accordingly, on 

remand, the county court need not consider whether Daniel and 

Linda satisfied this element.

VI. CONCLUSION

The county court erred in applying the “beyond a reasonable doubt” standard to the abandonment element and also in 

finding that Daniel and Linda were not required to show active 

efforts had been made to unite Tyler and Micah. We therefore 

reverse, and remand with directions to allow the parties to submit additional evidence in further proceedings consistent with 

this opinion.

Reversed and remand

39 See In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 

(2003).