|
(Cite
as: 17 Neb.App. 436, 764 N.W.2d
119) |
Court
of Appeals of Nebraska.
In
re INTEREST OF SHAYLA H. et al., children under 18 years of age.
State
of Nebraska, appellee,
v.
David
H., appellant.
No.
A-08-947.
March
10, 2009.
Patrick
T. Carraher, of Legal Aid of Nebraska, Lincoln, for appellant.
Jeremy
P. Lavene, Deputy Lancaster County Attorney, and Richard Grabow, Senior
Certified Law Student, for appellee.
CARLSON,
MOORE, and CASSEL, Judges.
MOORE,
Judge.
INTRODUCTION
David
H. appeals from an order of the separate juvenile court of Lancaster County,
adjudicating his minor children *437
as juveniles under Neb.Rev.Stat. ? 43-247(3)(a) (Reissue 2008) and placing the
children outside the family home. For the reasons set forth herein, we reverse,
and remand for further proceedings.
BACKGROUND
David
is the father of three minor children, Shayla H., born August 21, 2001; Shania
H., born August 1, 2003; and Tanya H., born September 26, 2004. Because the
mother of the children is not involved in the present appeal, we have limited
our recitation of the facts to only those applicable to David. Through David,
the children are eligible for enrollment with the Rosebud Sioux Tribe
(Tribe).
The
State filed a petition in the juvenile court on February 15, 2008, alleging that
the children were within the meaning of ? 43-247(3)(a) in that they lacked
proper parental care by reason of the faults or habits of David. The petition
included the following allegations: (1) that since November 2007, David had
failed to provide one or more of the children with proper medical care; (2) that
on one or more occasion since January 2007, David had been involved in physical
or verbal domestic confrontations with the children's mother occurring in the
presence of or vicinity of one or more of the children; and (3) that on one or
more occasion since November 2007, David had been under the influence of
methamphetamine while being the primary caregiver of one or more of the
children. The State alleged that because of these allegations, the children were
at risk of physical or emotional harm. The petition does not contain any
allegations under or references to the Nebraska Indian Child Welfare Act (ICWA),
Neb.Rev.Stat. ?? 43-1501 to 43-1516 (Reissue 2008).
**122
The State also filed a motion for ex parte temporary custody of the children. In
the motion, the State alleged that the case fell within the provisions of ?
43-247(3)(a) and that the children were in such conditions or surroundings that
their welfare and best interests required that their custody be immediately
assumed by the Department of Health and Human Services (Department) in order to
place the children in the safest and least restrictive placement pending a
hearing. In the *438
accompanying affidavit, Holly Leonard, a protection and safety worker with the
Department, set forth allegations of medical neglect, domestic violence, and
substance abuse. Neither the motion nor the affidavit contains any information
regarding the children's eligibility for enrollment with the Tribe or
allegations under the ICWA. An ex parte order was entered, and the children were
placed in foster care.
A
hearing on the State's motion for temporary custody was held on February 20,
2008, and was continued for 1 week upon the parties' request. At the February 27
temporary custody hearing, the juvenile court heard testimony from Leonard,
David, and the children's mother. The court received into evidence a copy of the
State's motion for ex parte temporary custody, with Leonard's affidavit, and a
copy of a letter from the Tribe indicating the children's eligibility for
enrollment. Leonard testified that the Department was recommending that custody
of the children be continued with the Department due to the lack of an
appropriate safety monitor to reside in the family home to ensure the safety of
the children. Leonard indicated that the Department was aware that David was
enrolled with the Tribe. Leonard did not know whether the Tribe had been
contacted about the pending juvenile case. Based on the evidence presented at
the hearing, the court continued the children's temporary custody with the
Department, but continued the hearing to allow for expert testimony relative to
the provisions of the ICWA and to allow for notice to the Tribe.
On
April 10, 2008, the matter came on for hearing for adjudication on the petition
and further hearing on the out-of-home placement of the children under the
applicable standards of the ICWA. The juvenile court informed David of the
nature of the proceedings, the possible dispositions, and his rights pursuant to
Neb.Rev.Stat. ? 43-279.01 (Reissue 2008). David waived a formal reading of the
petition and entered a denial to the allegations. During the placement portion
of the hearing, Linda Dohmen, the children's caseworker as of March 6,
testified. Dohmen has a bachelor's degree in human development and the family
and, at the time of the hearing, had been employed by the Department for close
to 11 years. In her job, Dohmen regularly assesses the safety and well-being
*439
of children, including the children in this case. To assist her in doing so,
Dohmen has received training through the Department. Initially, when Dohmen
began her employment, she received 17 weeks of training, and then each year, she
receives ?up to 24 hours of continuous training to fulfil[l] [her] duties with
the Department.? Dohmen testified that ?[a]ssessing children? is one of the
duties she continues to be trained on and that she recently received a 6-day
training on ?the new safety model? being used by the Department. Dohmen
testified that the safety model is ?a new way of identifying whether there [are]
any safety risks.? Dohmen was asked whether placing the children back with David
would likely result in serious emotional or physical damage. David's attorney
objected that Dohmen was not a qualified expert witness as required under the
ICWA for such an opinion. The court **123
overruled David's objection, and Dohmen testified that returning the children to
David's care would result in serious emotional or physical damage to the
children. The hearing was recessed due to a lack of time. The court continued
the placement hearing, set the matter for a formal contested hearing, and
ordered that its previous temporary orders remain in effect as modified
following the April 10 hearing.
David
filed a motion on April 11, 2008, seeking an order transferring the matter to
the jurisdiction of the Tribe.
On
May 2, 2008, the juvenile court considered and denied the motion to transfer
jurisdiction to the Tribe. The court also heard a motion by the State for
approval of placement change and received further evidence relative to the ICWA
standards in connection with out-of-home placement of the children. Dohmen
testified further in connection with that motion. Dohmen testified that in her
11 years with the Department, she has had the opportunity to work with families
with Native American heritage. Dohmen also testified that the Department
believed that there was a risk to the children of emotional or physical harm
such that they could not yet be allowed to return to the family home. The
hearing was recessed due to a lack of time.
The
continued placement hearing and an adjudication hearing were held on May 29,
2008. David entered his voluntary *440
appearance and waived service of summons of the amended petition on the record.
In connection with the adjudication portion of the hearing, the court heard
testimony from the children's grandmother, two police officers, Leonard and a
former Department employee, and the children's mother. Following the conclusion
of the mother's testimony, the hearing was recessed until July 2.
On
July 2, 2008, the adjudication hearing resumed with testimony from David and
Dohmen. In closing arguments in connection with the adjudication hearing,
David's attorney argued that the ICWA requirements as to expert testimony
applied both to temporary custody proceedings and to adjudication trials and
that the case should be dismissed due to the State's failure to present ICWA
expert testimony during the adjudication hearing. David's counsel also argued,
based on this court's ruling in In
re Interest of Dakota L. et al.,
14 Neb.App. 559, 712 N.W.2d 583 (2006), that the petition should be dismissed
because it did not include any ICWA allegations. Following the parties' closing
arguments with respect to adjudication, the court received evidence on the
placement issue. In connection with the placement portion of the July 2 hearing,
Dohmen testified, over David's objection, that it was the Department's position
that placing the children back with either parent was likely to result in
substantial emotional or physical harm to the children.
The
juvenile court entered an order on August 15, 2008, adjudicating the children as
juveniles under ? 43-247(3)(a). The court addressed David's argument that the
amended petition should be dismissed on the ground that it failed to include
allegations pleading the applicability of the ICWA. The court's analysis is as
follows:
It
is clear that the children ... are ?Indian children? for whom the provisions of
[the ICWA] are applicable. [Certain exhibits] clearly show that the children are
eligible for membership in the ... Tribe, thus triggering the heightened
evidentiary standards and substantive requirements for out of home placement of
Indian children under Neb.Rev.Stat. Section 43-1505(4) and (5). The notice
*441
requirements of the [ICWA] are also applicable and were complied with in this
case....
**124
The only authority the Court has been referred to in support of the position
that there is a ?pleading requirement? of ICWA applicability and standards, is
In
re Interest of Dakota
[L.
et al.],
... in which the appellate court found that the [juvenile court] erred when it
proceeded under a petition which lacked ICWA allegations. In that case, however,
the State had filed two petitions, the latter of which did include specific ICWA
allegations, and the Court proceeded to allow the petitioner to proceed under
the earlier petition over the objection of the parent, who requested additional
service and preparation time in which to defend against the subsequent petition.
The appellate court did not cite any specific authority for the proposition that
there are ?pleading? requirements under [the] ICWA which make it improper to
proceed on a petition that lacks them. Further, it is noteworthy in that case
that the Juvenile Court in its subsequent adjudication order did not make
specific factual findings as to the substantive requirements of [the]
ICWA.
There
is no language in [the ICWA] which requires a specific ?pleading? to be included
in a petition or proceeding brought in the interest of children who are covered
by the provisions of the [ICWA]. There are specific evidentiary requirements
needed to support a Court-ordered out of home placement and there are also
elevated standards of proof for proceedings seeking to place children in foster
care.... In this case it is clear that those evidentiary requirements and
elevated standards of proof apply insofar as the State has requested and is
continuing to request an out of home placement of these children.
Counsel
for [David] at no time moved to dismiss the petition or complained of its
alleged insufficiency in terms of pleading requirements under [the] ICWA, until
all of the evidence by all parties had been presented. Despite clear knowledge
that the provisions of [the] ICWA were applicable ... in this case, the issue
was never raised as *442
a defect in the petition that could easily have been corrected. Based upon
counsel's clear opportunity to raise the issue of an alleged defect in the
pleading at various opportunities prior to completion of the evidence, the lack
of any specific statutory pleading requirement under the [ICWA], as well as the
fact that the Court will clearly apply the evidentiary and burden of proof
requirements under the [ICWA] to the evidence presented, the Court overrules the
motion to dismiss the petition based solely upon the lack of ICWA allegations in
the petition. The Court does note that the Amended Petition clearly alleges that
the parents' actions or the situation place[s] the children at risk of physical
or emotional harm, which closely parallels the language of [? 43-]1505(5),
requiring the State to prove by clear and convincing evidence, including
testimony of qualified expert witnesses, that the continued custody of the child
by the parent ?is likely to result in serious emotional or physical damage to
the child.?
In
its August 15, 2008 order, the juvenile court found that the State failed to
prove the allegations of count I of the petition (medical neglect) as they
related to David and dismissed that count for failure of proof. The court
determined that the State proved the remaining counts of the petition (domestic
violence and drug use) by clear and convincing evidence as they related to
David.
The
juvenile court also made findings on the issue of out-of-home placement. The
court found that Dohmen's testimony, particularly when considered with the
evidence presented by the State at the formal **125
hearing as to the violent relationship between the parents over a period of
years and the use of methamphetamines by the parents as recently as 2008, was
sufficient to satisfy the elevated standards under the ICWA to warrant an
out-of-home placement of the children. The court observed that in In
re Interest of Devin W. et al.,
270 Neb. 640, 707 N.W.2d 758 (2005), the Nebraska Supreme Court noted that the
adjudicatory phase of juvenile proceedings is to determine whether a child falls
within the meaning of ? 43-247(3)(a) and that the dispositional phase is to
address *443
the child's placement, including the parental preference for placement. The
juvenile court found that, while the In
re Interest of Devin W. et al.
case did not involve Indian children, the placement standards under the ICWA
would be further addressed at the dispositional phase of the present
proceedings. The court determined that the State would be required to present
further evidence, including the expert testimony required under the ICWA, as
well as evidence of both reasonable and active efforts to reunify the family, if
continued out-of-home placement outside either parent's home is requested at
that time. The court determined, based on the evidence currently before it,
including the testimony of Dohmen and Leonard, as well as testimony presented
during the formal adjudication hearing, that reasonable and active efforts were
made by the State to prevent the children's removal from the parental home and
that to return them to either parent's care, at that time, would likely result
in serious emotional or physical harm to the children.
ASSIGNMENTS
OF ERROR
David
asserts that the juvenile court erred in (1) not following decisions from this
court regarding pleadings under the ICWA, (2) entering an order of adjudication
when the State failed to present expert testimony regarding standards set forth
in the ICWA, (3) adjudicating the children as juveniles under ? 43-247(3)(a),
and (4) removing the children from the family home and placing them in foster
care without expert testimony as required under the ICWA.
[1]
David also argues, but does not assign as error, that the juvenile court erred
in finding that a certain district court order was not relevant evidence in the
present case. Errors argued but not assigned will not be considered on appeal.
Vokal
v. Nebraska Acct. & Disclosure Comm.,
276 Neb. 988, 759 N.W.2d 75 (2009).
STANDARD
OF REVIEW
[2]
Juvenile cases are reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the juvenile court's findings.
In
re Interest of Taylor W.,
*444
276 Neb. 679, 757 N.W.2d 1 (2008); In
re Interest of Jagger L.,
270 Neb. 828, 708 N.W.2d 802 (2006). 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. In
re Interest of Jagger L., supra.
ANALYSIS
Pleadings.
[3]
David asserts that the juvenile court erred in not following decisions from this
court regarding pleadings under the ICWA. We treat this argument as one
assigning error to the juvenile court's failure to sustain David's motion to
dismiss the petition.
One
of the reasons the juvenile court gave for overruling David's motion to dismiss
the petition due to the lack of ICWA **126
allegations was his counsel's failure to raise the issue earlier in the
proceedings. David's motion was made during the course of closing arguments in
connection with the adjudication hearing. David's motion was purportedly a
motion for failure to state a cause of action under Neb. Ct. R. Pldg. ?
6-1112(b)(6), and we observe that ? 6-1112(b) allows for such a defense to be
made at trial. See, also, ? 6-1112(h)(2) (waiver or preservation of certain
defenses). Thus, to the extent that the court's denial was based upon the
motion's untimeliness, this was error.
David
argues that the petition and motions for temporary custody should have alleged
facts with regard to ? 43-1505, which sets forth guidelines for state courts to
follow in involuntary proceedings when the court knows or has reason to know
that an Indian child is involved. The following subsections of ? 43-1505 are
relevant to our analysis:
(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 and that these
efforts have proved unsuccessful.
*445
(5) No foster care placement may be ordered in [an involuntary] proceeding [in a
state court] in the absence of a determination, 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)
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.
This
court previously addressed ICWA pleading requirements in the context of a
termination of parental rights proceeding in In
re Interest of Sabrienia B.,
9 Neb.App. 888, 621 N.W.2d 836 (2001). In In
re Interest of Sabrienia B.,
the State failed to include ICWA language in its motion for termination,
although the parties had stipulated that the child was Indian and that the ICWA
would be applicable to any termination proceedings. The State's motion for
termination included language under the general termination statute, see
Neb.Rev.Stat. ? 43-292 (Reissue 2008), but it failed to include any specific
ICWA language under ? 43-1505(4) and (6). The mother in that case demurred to
the motion for termination, claiming that because the State's motion did not
include any ICWA language, the allegations in the motion did not ? ?articulate
an essential element to sustain a finding and Order of termination.? ? 9
Neb.App. at 890, 621 N.W.2d at 839. The juvenile court denied the demurrer and
terminated the mother's parental rights. The juvenile court concluded that the
State had proved the requirements of ? 43-1505(4) and (6), even though no ICWA
language appeared in the motion. The mother appealed, alleging, among other
things, that the juvenile court erred in finding that the State's motion stated
a cause of action.
[4]
On appeal, this court held that the ICWA's requirement of ?active efforts? is
separate and distinct from the ?reasonable efforts? provision of ? 43-292(6) and
therefore requires the *446
State to plead active efforts by the State to prevent the breakup of the family.
In
re Interest of **127
Sabrienia B., supra.
This court determined that the State's motion failed to state a cause of action
for termination of parental rights under the ICWA. We found the State's failure
to include the relevant ICWA language in its motion was not remedied by the
facts that the applicability of the ICWA had been discussed in court and that
the juvenile court specifically found that the State had proved the relevant
ICWA requirements. This court reversed the order of termination, granting the
State leave to amend its motion on remand.
This
court applied the rationale of In
re Interest of Sabrienia B.
to an adjudication proceeding in In
re Interest of Dakota L. et al.,
14 Neb.App. 559, 712 N.W.2d 583 (2006). In that case, the State filed a petition
alleging that the children were within the meaning of ? 43-247(3)(a) and also
filed a motion for temporary custody, requesting that temporary custody of the
children be placed with the Department. Neither the original petition nor the
motion for temporary custody included any allegations under the ICWA. The
juvenile court ordered that temporary custody be given to the Department, with
placement to exclude the mother's home. At a first appearance and
detention/
On
appeal to this court, the mother alleged, among other things, that the State's
petition failed to meet the pleading *447
requirements of the ICWA, infringing her due process rights. This court applied
the rationale of In
re Interest of Sabrienia B.,
9 Neb.App. 888, 621 N.W.2d 836 (2001), and concluded that in an action for
adjudication of Indian children, it is necessary to plead facts under the ICWA.
In
re Interest of Dakota L. et al., supra.
This court observed that although the State filed an amended petition including
allegations under the ICWA, the court did not adjudicate the children on that
petition. We determined that it was error for the court to proceed under the
original petition, which did not allege facts under the ICWA, despite the fact
that the mother had been served with the amended petition and had been notified
in court of the ICWA's applicability. We also concluded that the court erred in
proceeding on the original petition, which had been superseded by the amended
petition. Accordingly, we reversed the order of adjudication and remanded the
cause for an adjudication under an appropriate amended petition, with directions
to the court to make specific findings as required by ? 43-1505.
[5]
In the present case, neither the petition nor the motion for temporary custody
included any allegations under the ICWA. In the petition, the State asked the
court to make such orders concerning the care, custody, and control of the
children as it deemed proper, including liability for child support if the
children were placed outside the parental home. The motion **128
for temporary custody urged that the children's custody be immediately assumed
by the court in order to place the children in the safest and least restrictive
placement pending a hearing. Clearly, placement outside the family home was
contemplated by both the petition and the motion. We observe that the juvenile
court in this case did make ICWA findings in its August 15, 2008, order, unlike
the court in In
re Interest of Dakota L. et al.,
14 Neb.App. 559, 712 N.W.2d 583 (2006). Nonetheless, we conclude that
allegations under the ICWA were required in the petition and motion for
temporary custody. Therefore, we find that the juvenile court erred in failing
to sustain David's motion to dismiss made at the adjudication hearing. The
defects in the State's petition and motion appear capable of being cured by
amendment. We note that the record does not show that the State ever sought to
amend the petition and/
Expert
Testimony.
[6]
David asserts that the juvenile court erred in removing the children from the
family home and placing them in foster care without expert testimony as required
under the ICWA. Because issues regarding the expert testimony required under the
ICWA are likely to recur upon remand, we have reviewed this assignment of error.
An appellate court may, at its discretion, discuss issues unnecessary to the
disposition of an appeal where those issues are likely to recur during further
proceedings. Gavin
v. Rogers Tech. Servs.,
276 Neb. 437, 755 N.W.2d 47 (2008).
[7][8]
Pursuant to the ICWA, qualified expert testimony is required on the issue of
whether serious emotional harm or physical damage to the Indian child is likely
to occur if the child is not removed from the home before foster care placement
may be ordered. See ? 43-1505(5). A similar requirement is imposed by ?
43-1505(6) in the context of termination of parental rights proceedings. This
evidence 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. See In
re Interest of C.W. et al.,
239 Neb. 817, 479 N.W.2d 105 (1992).
The
Nebraska Supreme Court has previously addressed the qualifications of experts to
give testimony under ? 43-1505. In In
re Interest of C.W. et al.,
239 Neb. at 824, 479 N.W.2d at 111, the court noted the following guidelines set
forth by the Bureau of Indian Affairs under which expert witnesses will most
likely meet the requirements of the ICWA:
?(i)
A member of the Indian child's tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to family organization and
childrearing practices.
*449
?(ii) A lay expert witness having substantial experience in the delivery of
child and family services to Indians, and extensive knowledge of prevailing
social and cultural standards in childrearing practices within the Indian
child's tribe.
?(iii)
A professional person having substantial education and experience in the area of
his or her specialty.?
In
that case, the court reviewed case law from other jurisdictions finding that a
witness' background in Indian culture does not necessarily determine that
witness' qualifications as an expert under the ICWA. The court found no error in
the admission of the expert's opinion in that **129
particular case, where he possessed substantial education and experience in his
area of specialty, which was clinical psychology, and the court determined that
his lack of experience with the Indian way of life did not compromise or
undermine the value of his testimony. See, also, In
re Interest of Phoebe S. & Rebekah S.,
11 Neb.App. 919, 664 N.W.2d 470 (2003) (social work professor qualified to
testify as expert witness under ICWA, where professor had substantial education
and experience in area of child welfare, bonding, and attachment and in
sociological aspects of childhood, and was experienced and knowledgeable about
ICWA); C.E.H.
v. L.M.W.,
837 S.W.2d 947 (Mo.App.1992) (stating that phrase ?qualified expert witness? is
not defined by federal ICWA, but legislative history of federal ICWA reveals
that phrase is meant to apply to expertise beyond normal social worker's
qualifications), citing Matter
of Adoption of T.R.M.,
525 N.E.2d 298 (Ind.1988).
In
the present case, the only witness to provide testimony that returning the
children to David's care was likely to result in serious emotional or physical
damage to the children was Dohmen. Dohmen has a bachelor's degree in human
development, had been employed by the Department for close to 11 years, and
regularly assesses the safety and well-being of children in the course of her
employment. To assist her in her duties, Dohmen receives regular training
through the Department. Dohmen testified that in her 11 years with the
Department, she has had the opportunity to work with families with Native
American heritage. While we decline to address the *450
question of whether a Department caseworker can ever qualify as an expert
witness under ? 43-1505, we conclude in this case that this particular record
did not establish that Dohmen was sufficiently qualified to testify as an expert
witness under the requirements of the ICWA. The evidence does not support a
conclusion that Dohmen had either 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 does the
evidence support a conclusion that Dohmen was a professional person with
substantial education and experience in the area of her specialty. Accordingly,
the juvenile court erred in relying on her for the required expert testimony to
justify continued out-of-home placement under the ICWA.
David
also asserts that the juvenile court erred in entering an order of adjudication
when the State failed to present expert testimony regarding standards set forth
in the ICWA, noting that no such expert testimony was presented during the
adjudication portion of any of the hearings in this case. In addressing David's
assertion, we simply observe that while the plain language of ? 43-1505 requires
expert testimony for foster care placement of an Indian child, the plain
language of ? 43-247(3)(a) does not require expert testimony to establish that a
child is a juvenile as described in that section.
Because
of our resolution of the above assignments of error, we need not address David's
assertion that the juvenile court erred in adjudicating the children as
juveniles under ? 43-247(3)(a).
CONCLUSION
The
juvenile court erred in failing to sustain David's motion to dismiss made at the
adjudication hearing. Accordingly, we reverse the decision of the juvenile court
and remand the cause for further proceedings as indicated above.
REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS.