SUMMARY: Termination of parental rights was proper because the father continually failed to deal with his ongoing issues with alcohol abuse and the mother failed to understand and seek proper treatment for her mental health disorder, and neither made acceptable progress in improving their parenting skills and relationships with the children. The person testifying as an ICWA qualified expert witness was sufficient based on her extensive background and continued involvement with a tribe and Native American families and extensive knowledge of social and cultural standards in tribal child-rearing practices. There was sufficient evidence that serious emotional or physical damage to the children as required under ICWA would occur if the children were returned home because the father had significant alcohol issues that he failed to address and made little progress in improving his parenting skills.
Erika, DOB 2007, and Tyler, DOB 2008, are the children of Edward and Tonya. The family became involved with DHHS in February 2009 due to Edward’s alcohol use, Tonya’s failure to take bipolar disorder medication and frequent domestic disputes. The parents voluntarily agreed to family support services, which included full-time daycare, supervision of Tonya with the children, life skills teaching and family team meetings. These efforts were unsuccessful and the children were removed from the home and a petition was filed on April 28, 2009, alleging the children to be within the meaning of N.R.S. 43-247(3)(a) due to domestic violence and Edward’s alcohol use. The petition also alleged that ICWA applied. Two tribes were notified and the Rosebud Tribe filed a notice of intervention on March 25, 2010, but took no further action.
Tonya was ordered to take her medication, participate in outpatient counseling, and participate in community support services so that she could put the children’s needs first, improve her parenting skills and maintain impulse control. Edward was ordered to participate in substance dependency treatment, attend AA, and participate in outpatient counseling and family support services. Both parents were ordered to attend family and couples’ counseling. Over several months, the parents were offered family support workers, counseling, visitation, gas and food vouchers, transportation and budget education. Edward made minimal use of visitation and Tonya had cancelled several visits; both appeared inattentive and disinterested during visits. Tonya refused to do a mental status evaluation and stopped taking medication due to a pregnancy. Edward did not complete an outpatient program and did not attend AA meetings. Both parents had also missed several family support meetings. The State filed a motion to terminate the parental rights of Edward and Tonya on March 24, 2010. At a hearing on April 20, 2010, the permanency goal was changed from reunification to adoption. Trial was held on August 20, 2010. Cassandra Whipple-Benitez, a tribal member familiar with customs and culture of the tribe and liaison of the Circle of Pride youth group for Native American youth testified that active efforts had been provided to the family, that the cultural plan was appropriate and that substantial physical or emotional harm would likely result if the children were returned to the parents. At the end of trial, the court held that there was sufficient evidence to terminate parental rights of both parents, entering the order on September 20, 2010. Both parents appealed.
The Nebraska Court of Appeals upheld the terminations of parental rights. It first found that statutory grounds under 43-292(2) of substantial and continuous neglect was met because despite the multitude of services offered to the parents, the parents did not consistently use those services; they did not consistently attend visitation, complete evaluations and attend treatment, or attend family support meetings. The record established that the parents did not adequately address the issues that led to the children being removed from the home and showed that the parents were unable to provide necessary parental care and protection. The Court of Appeals also found that Whipple-Benitez was a qualified expert witness as defined under ICWA because she was a member in good standing with the tribe, is a professional in the community, previously worked with the Chadron Native American Center as a community liaison, and currently works with the Circle of Pride youth group for Native American youth and with Speak Out providing family classes for Native American families. The Court of Appeals also found that there was sufficient evidence showing reunification would likely cause “serious emotional or physical damage” to the children given the prolonged removal from the parental home and the minimal progress the parents have made in resolving their issues.