S-18-1141 In re Guardianship of Witty
Douglas County Court, Judge Marcela A. Keim
Attorneys: Jonathan Seagrass (Legal Aid of Nebraska, for Appellant, Mother); Ashley A. Albertsen, Melissa M. Oestmann, Jacob A. Acers (Smith, Slusky, Pohren & Rogers LLP, for Appellee)
Civil: Guardianship; NICWA (Nebraska Indian Child Welfare Act); ICWA (Indian Child Welfare Act)
Proceedings below: The trial court determined that NICWA (Nebraska Indian Child Welfare Act) and ICWA (Indian Child Welfare Act) applied to this case; that this case was not a foster care placement pursuant to NICWA and ICWA; that it would not appoint an attorney to represent the child’s mother; that sufficient notice was made under NICWA and ICWA; that proof of “active efforts” was not required; and that proof by clear and convincing evidence that continued custody of the child by the mother is likely to result in serious emotional or physical damage to the child was not required.
Issues: Whether the trial court erred 1) by failing to correctly apply NICWA and ICWA to this guardianship proceeding; 2) in appointing the guardian because the amended petition failed to sufficiently plead the standard of proof required by NICWA and ICWA; and 3) in appointing the guardian because insufficient evidence was presented that the mother was unfit to care for the child and that the mother has forfeited her right to custody of the child.
Facts: The minor child was born in 2014. The minor child and her mother lived with her parents (the minor child’s grandparents). The child’s mother had resided with the grandparents for several years due to a history of health concerns, including headaches and viral meningitis. In the months prior to seeking a guardianship over the minor child, the grandparents had noticed changes in the mother’s behavior that caused concerns regarding her ability to serve as a fit, proper, and suitable parent and may be placing the minor child in harm’s way. Approximately once per a week, the child’s mother will go to sleep for a period between twelve (12) and up to thirty-six (36) hours while the child is in the mother’s care. The mother is unable to be awoken during these times that she is sleeping. She will also leave the home for periods between twenty-four (24) and thirty-six (36) hours, without warning and without notification of when she will return.
The mother also suffers from paranoia, believing that people are following her. At trial, the grandparents testified that they had frequently found weapons hidden within reach of where the mother spends her time that would be accessible to the minor child. The mother has a history of substance abuse issues. She has also been unable to maintain stable employment.
Based on all of the evidence presented, the court issued an order granting guardianship of the minor child to the grandparents. The specific findings made by the Trial Court were that notice was proper, that the mother is not a fit and proper parent of the minor child, and that the grandparents are proper guardians.
Both sides have submitted written briefs to the Supreme Court. After hearing arguments from both sides at an oral argument before the Supreme Court, the Court will submit the case for disposition, and will issue an opinion in the coming months.