In re Interest of Enrique P., et al.

Printer-friendly versionPrinter-friendly versionPDF versionPDF version

In re Interest of Enrique P., et al.

Caselaw No.
14 Neb. App. 453
Filed on
Tuesday, January 31, 2006

SUMMARY: In cases where invalidation of previous court orders is sought due to a violation of the ICWA notice provision to the tribe, “it would be unreasonable to impose a time limitation of the § 1914 procedure upon the party claiming lack of notice.” However, this case did not involve a lack of notice to the tribe, and therefore a time limitation may apply. Generally, failing to file a timely appeal will prevent review of the argued error; however, the court did not decide whether that rule would apply to petitions for invalidation under § 43-1507 or U.S.C. § 1914, because it determined any error committed in this case was harmless error.

The mother appealed from an order terminating her parental rights. The Court of Appeals addressed two issues. First, whether the Court of Appeals had jurisdiction to hear the appeal and second, whether the juvenile court erred in denying the mother’s petition to invalidate previous court orders and denying the motion to transfer.

For the Court of Appeals to have jurisdiction over the appeal, the appeal must be taken from a final order. In this case, both the denial of the petition to invalidate previous orders and the denial of the motion to transfer were final orders under the second category. Thus, jurisdiction was proper.

The mother claimed that the juvenile court was wrong to deny her petition to “invalidate previous court orders” because those orders failed to comply with ICWA, pursuant to § 43-1507. Specifically she argued that the adjudication, dispositional and subsequent review orders violated ICWA because before foster care placement can be sought, the State must show that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” and that before placement the State must show that “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” The State countered that mother could not attack the orders because she failed to file a timely appeal. The court noted that § 43-1507 did not contain “any language which specifies a time limit” for filing a petition to invalidate.

After an extensive review of case law concerning ICWA from other jurisdictions, the Court concluded that “in cases where invalidation is sought for lack of notice, it would be unreasonable to impose a time limitation of the § 1914 procedure upon the party claiming lack of notice. In the present case, there is no claim that the appropriate notice was not given to the tribe” or the mother. The mother was notified that ICWA applied, and the” tribe intervened and sought transfer.”

In this case, the Court did not decide whether her failure to file a timely appeal would have precluded her appeal on the failures under ICWA, because the Court concluded from the facts in the record that any error committed by the juvenile court was harmless error.It was harmless error because the evidence on the record would have been sufficient to “support the ICWA findings.”

At the adjudication, the mother admitted all the relevant allegations in the petition, therefore the court did not have to review the evidence at the adjudication. The evidence presented at the termination hearing was sufficient to show that active efforts had been made to provide services to keep the family together and that those efforts were unsuccessful. Further, although the mother did not contest the out of home placement, the evidence would have been sufficient to show harm to the child if he remained in the home. Therefore, the juvenile court was not wrong to deny the mother’s petition to invalidate the previous court orders.