NE Code § 43-1505 (2021)
2021 Nebraska Revised Statutes|Chapter 43 - Infants and Juveniles|43-1505 - Foster care placement; termination of parental rights; procedures; rights.

43-1505.  Foster care placement; termination of parental rights; procedures; rights.(1) 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 the foster care placement of, or termination of parental rights to, an Indian child shall send a notice conforming to the requirements of 25 C.F.R. 23.11 to the parents, the Indian custodian, and the Indian child's tribe or tribes, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe or tribes cannot be determined, such notice shall be given to the secretary in like manner, who may provide the requisite notice to the parent or Indian custodian and the tribe or tribes. No foster care placement or 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 tribes or the secretary. The parent or Indian custodian or the tribe or tribes shall, upon request, be granted up to twenty additional days to prepare for such proceeding.(2) In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interests of the Indian child. When state law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the secretary upon appointment of counsel and request from the secretary, upon certification of the presiding judge, payment of reasonable attorney's fees out of funds which may be appropriated.(3) Each party to a foster care placement or termination of parental rights proceeding under state law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.(4) 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. Any written evidence showing that active efforts have been made shall be admissible in a proceeding under the Nebraska Indian Child Welfare Act. Prior to the court ordering placement of the child in foster care or the termination of parental rights, the court shall make a determination that active efforts have been provided or that the party seeking placement or termination has demonstrated that attempts were made to provide active efforts to the extent possible under the circumstances.(5) The court shall not order foster care placement under this section in the absence of a determination by the court, supported by 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.(6) The court shall not order termination of parental rights under this section in the absence of a determination by the court, 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.Source   Laws 1985, LB 255, § 5;   Laws 1987, LB 93, § 11;  Laws 2015, LB566, § 8.  Annotations  1. Burden of proof 2. Active efforts 3. Termination of parental rights 4. Miscellaneous 1. Burden of proof The "beyond a reasonable doubt" standard in subsection (6) of this section does not extend to the best interests element in section 43-292. Instead, the State must prove by clear and convincing evidence that terminating parental rights is in the child's best interests; this need not include testimony of a qualified expert witness. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). The lower standard of proof under subsection (3) of section 43-279.01 for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the Nebraska Indian Child Welfare Act does not violate the equal protection rights of parents of non-Indian children. In re Interest of Phoenix L. et al., 270 Neb. 870, 708 N.W.2d 786 (2006). In adjudication cases, the standard of proof for the active efforts element in subsection (4) of this section is proof by a preponderance of the evidence. In re Interest of Mischa S., 22 Neb. App. 105, 847 N.W.2d 749 (2014) Under this section, a determination to terminate parental rights must be supported by evidence beyond a reasonable doubt, which is proof so convincing that one would rely and act upon it without hesitation in the more serious and important transactions of life. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003). 2. Active efforts At any point in an involuntary juvenile proceeding involving Indian children at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard of the Indian Child Welfare Act of 1978 and the Nebraska Indian Child Welfare Act applies in place of the reasonable efforts standard applicable in cases involving non-Indian children. In re Interest of Shayla H. et al., 289 Neb. 473, 855 N.W.2d 774 (2014). A judicial determination in an adjudication order that the State satisfied the active efforts requirement contained in subsection (4) of this section affects the substantial right of parents to raise their children, and is therefore a final, appealable order. In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011). The "active efforts" standard in subsection (4) of this section requires more than the "reasonable efforts" standard that applies in cases not involving the Indian Child Welfare Act. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008); In re Interest of Shayla H. et al., 22 Neb. App. 1, 846 N.W.2d 668 (2014). The "active efforts" standard in subsection (4) of this section requires proof by clear and convincing evidence in parental rights termination cases. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). There is no precise formula for the "active efforts" standard in subsection (4) of this section; instead, the standard requires a case-by-case analysis. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). In a foster care placement determination involving an Indian child, the failure to make findings under subsection (4) of this section is harmless error where a de novo review indicates that evidence supports these findings. In re Interest of Mischa S., 22 Neb. App. 105, 847 N.W.2d 749 (2014). Pursuant to subsection (4) of this section, although the State should make active efforts in a termination of parental rights proceeding under the Indian Child Welfare Act, if further efforts would be futile, the requirement of active efforts is satisfied. In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416 (2009). Pursuant to subsection (4) of this section, in a termination of parental rights proceeding under the Indian Child Welfare Act, the notion of culturally relevant active efforts applies to the parents, to the children, and to the family. In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416 (2009). Pursuant to subsection (4) of this section, the Indian Child Welfare Act's requirement of "active efforts" requires more than the "reasonable efforts" standard applicable in non-Indian Child Welfare Act cases and at least some efforts should be culturally relevant. In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416 (2009). Pursuant to subsection (4) of this section, in a foster care placement determination involving an Indian child, the failure to make an "active efforts" finding is harmless error where a de novo review indicates that clear and convincing evidence supports this finding. In re Interest of Enrique P. et al., 14 Neb. App. 453, 709 N.W.2d 676 (2006). Under this section, the State shall provide evidence 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. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003). 3. Termination of parental rights The stated purposes of the Indian Child Welfare Act are best served by allowing parents to raise, in their direct appeal from a termination of parental rights, the issue of the State's failure to notify the child's Indian tribe of the termination of parental rights proceedings as required by subsection (1) of this section. In re Interest of Walter W., 14 Neb. App. 891, 719 N.W.2d 304 (2006). Under this section, qualified expert testimony is required in a parental rights termination case on the issue of whether serious harm to the Indian child is likely to occur if the child is not removed from the home. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003). This section provides specific statutory requirements for proving a case for termination of parental rights in a juvenile court action involving an Indian child, and the petition for termination of parental rights must include sufficient allegations of the requirements of section 43-292 as well as this section to survive a demurrer. In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 (2001). 4. Miscellaneous In addition to the requirements under the adoption statutes, the Nebraska Indian Child Welfare Act adds two elements to adoption proceedings involving Indian children. First, subsection (4) of this section sets forth an "active efforts" element. Second, subsection (6) of this section sets forth a "serious emotional or physical damage" element. In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016). Subsection (6) of this section requires that the qualified expert's opinion must support the ultimate finding of the court, i.e., that continued custody by the parent will likely result in serious emotional or physical damage to the child. In re Interest of Audrey T., 26 Neb. App 822, 924 N.W.2d 72 (2019). 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. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013). An Indian child's parent does not qualify as an expert witness under the Nebraska Indian Child Welfare Act based solely on the parent's membership in the Indian tribe and status as the child's parent. In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010). A father's motion to dismiss the State's temporary custody petition due to the lack of Indian Child Welfare Act allegations by the State could be made during the course of closing arguments. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009). Evidence that serious emotional harm or physical damage to an Indian child is likely to occur if the child is not removed from the home must be established by qualified expert testimony provided by a professional person having substantial education and experience in the area of his or her specialty, pursuant to the Indian Child Welfare Act. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009). Evidence was insufficient to establish that a caseworker was sufficiently qualified to testify as an expert witness under the requirements of the Indian Child Welfare Act in an action seeking to adjudicate Indian children, where the caseworker had neither substantial experience in the delivery of child and family services to Indians or extensive knowledge of social and cultural standards in childrearing practices within the tribe, nor was she a professional person with substantial education and experience in the area of her specialty. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009). The State was required to allege facts with regard to Indian Child Welfare Act requirements that set forth guidelines for courts to follow in involuntary proceedings, although the court knew that an Indian child was involved in the State's petition and motion for temporary custody of children and made Indian Child Welfare Act findings. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009). An adjudication petition involving an Indian child must include sufficient allegations of the requirements of this section. In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006). This section provides specific statutory requirements with which notice to an Indian child's tribe of state proceedings involving a foster care placement of an Indian child must comply. In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006). Pursuant to subsection (5) of this section, in a foster care placement determination involving an Indian child, the failure to make a finding, supported by the testimony of a qualified expert, that the continued custody of the child by the parent was likely to result in serious emotional or physical damage to the child is harmless error where a de novo review indicates that the evidence supports this finding of harm. In re Interest of Enrique P. et al., 14 Neb. App. 453, 709 N.W.2d 676 (2006).