SUMMARY: A court order ceasing the search for relative placements in an ICWA case was in error because there was insufficient evidence in the record that good cause existed to avoid placement preferences.
The children, Enrique P., DOB 6/93, Carina P., DOB 12/95, Christian P., DOB 11/99, and Christianna P., DOB 12/01, have been involved in the child welfare system since 2003. Their mother died in 2007 and the fathers have not been located despite efforts. The children are Indian children under ICWA and the Omaha Tribe was given leave to intervene in 2004, as was the maternal grandmother, Darlene. The children have been in multiple placements, together and separate, since 2003 and for several years the permanency objective has been adoption. Currently, Enrique and Christian are placed with foster parents willing to provide permanency, Carina’s foster mother is willing to provide permanency, and Christianna’s current foster placement will not provide permanency but will provide foster placement as long as needed. The GAL requested an early permanency review hearing due to lack of progress toward permanency. At the hearing on June 16, 2011, several exhibits were received including a DHHS court report, Foster Care Review Board (FCRB) report and GAL report. All of the reports, and statements made at the hearing, recommended continued placement in the current settings with a timely move to adoption. However, the FCRB report also noted that DHHS was continuing to look for relatives to take all four siblings (although the DHHS report stated the purpose was for relative connections) and recommended that such efforts cease, something that was opposed at the hearing by Darlene and the county attorney. At the end of the hearing, the court ordered DHHS to stop looking for relative placements for all children except Christianna. The written order entered on June 29, 2011, did not include language on relative placement search so a nunc pro tunc order was entered that stated all efforts to place the children with relatives was to end immediately. Darlene appealed on that basis that the court did not follow the placement preferences under ICWA because no party requested the order and there was no good cause finding.
The Nebraska Court of Appeals reversed and remanded the court’s order. It first noted that the cessation of the search for relatives was a deviation from the ICWA placement preferences that required a finding of good cause. After assuming, without deciding, that the court’s statements at the hearing that the relative search was “hurting things” and impairing “the ability to provide for the kids emotionally and psychologically” constituted a finding of good cause, the Nebraska Court of Appeals looked to the record and concluded that it did not support such a finding. There was no record of what efforts had been made for searching for relatives, why the children had not been placed with Darlene and whether the current placements met the preferred placements. The Court of Appeals also noted that the expansiveness of the order to cease all searches ignored the individualized needs of each child and the claimed intent of DHHS to create relative connections for the children.