In re Interest of Avery S. & Izabel S.

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In re Interest of Avery S. & Izabel S.

Caselaw No.
Filed on
Tuesday, April 22, 2014

SUMMARY: The State’s 3a petition and motion for temporary custody should have been dismissed for failure to set forth allegations under ICWA because the State knew or should have known that ICWA applied.

Avery, age 13, and Izabel, age 10, are the children of Katherine. On August 14, 2013, the State filed a petition under N.R.S. 43-247(3)(a) and motion for temporary custody due to the faults of Katherine. Katherine already was involved with the system as to her other 4 children, who were all in foster care. At the Protective Custody Hearing on August 28, 2013, Katherine testified that she was a member of the Chickasaw Nation Tribe, that Avery and Izabel are eligible for enrollment, and that the other 4 children are tribal members. Katherine’s counsel argued that the court could not enter a custody order because the pleadings were insufficient. However, the court found that ICWA applied to the case but entered an order placing Avery and Izabel in the custody of DHHS and ordered DHHS to notify the tribe. Katherine appealed.

The Nebraska Court of Appeals reversed and remanded. It noted that ICWA under N.R.S. 43-1505 sets forth requirements that need to be followed when the court knows or has reason to know an Indian child is involved. The Court of Appeals reviewed prior cases where the proper ICWA pleadings were not made. In In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 (2001), the Court of Appeals reversed the termination of parental rights because no ICWA language appeared in the motion, even though the court stated specifically that the State had proved the relevant ICWA requirements. In In re Interest of Dakota L., 14 Neb. App. 559, 712 N.W.2d 583 (2006), the Court of Appeals reversed an adjudication order that had proceeded pursuant to the original petition which lacked ICWA allegations instead of the amended petition. A similar issue occurred in In re Interest of Shayla H., 17 Neb. App. 436, 764 N.W.2d 119 (2009) where the court adjudicated the child and denied the parent’s motion to dismiss the petition and motion for failure to include ICWA allegations. The Court of Appeals found this to be a similar issue and noted that allegations under ICWA were required to be in the petition and motion for temporary custody. Because they were not and because it was known that ICWA was applicable, the court should not have entered an order placing the children in DHHS’ custody and should have dismissed the petition.