SUMMARY: The proper burden of proof for the adjudication of an Indian child is by a preponderance of the evidence, not clear and convincing.
Emma, DOB approx. 1994, was placed in foster care on May 20, 2009, based on her allegations of physical abuse by her father, Geneo. On May 15, 2009, Emma alleged that Geneo became enraged with her for her relationship with her boyfriend and hit her on the right side of the head, made her stand in a corner of the kitchen and threatened her. Family members were present in the house but did not witness the incident. Similar allegations by Emma’s sisters have been made in the past against Geneo. Police arrived at the home but Emma did not allege anything at that time and police did not notice any redness or bruising. On May 18th, Emma left the home and filed an abuse report. Police and CPS responded but did not notice any bruising or marks. However, Emma was taken into protective custody. After the incident, a caseworker spoke with Geneo who told her that he had done “nothing to her worse than had been done to him in prison.” Geneo had also become verbally abusive with the caseworker on several occasions. After an adjudication hearing on August 20 and September 29, 2009, the juvenile court found Emma to be within the meaning of N.R.S. 43-247(3)(a) by clear and convincing evidence and found active efforts had been made. Geneo appealed.
The Nebraska Court of Appeals affirmed the adjudication but reversed the juvenile court’s findings that active efforts were made and expert testimony provided. The Court of Appeals first found that although the burden of clear and convincing evidence for adjudication had been made in dicta of appellate decisions, there was nothing in the Nebraska ICWA requiring the heightened burden of proof for adjudication, only when “seeking to effect a foster care placement of, or termination of parental rights, to an Indian child.” It therefore concluded that the burden of proof at adjudication for ICWA cases is by a preponderance of the evidence. It also affirmed the adjudication by noting that the juvenile court believed Emma’s testimony and the evidence offered was sufficient for adjudication. Finally, the Court of Appeals found that although the court noted in its Protective Custody order that active efforts were provided, “including a pretreatment assessment, visitation for [Venessa], counseling services, and a comprehensive family assessment,” there was no actual evidence submitted regarding active efforts nor was there expert testimony given as required by ICWA. The Court of Appeals gave directions to return Emma to Geneo’s home unless a hearing is held to remove her from the home in compliance with ICWA.