In re Interest of Justin O., Shawna O., Cody W., and Tyrell W.

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In re Interest of Justin O., Shawna O., Cody W., and Tyrell W.

Caselaw No.
Filed on
Friday, November 8, 2013

SUMMARY: Denial of motion to transfer to tribal court was proper when the mother waited over a year to move to transfer and an 11-year-old child objected to the transfer. 

The State of Nebraska filed a petition on June 21, 2011 alleging Susan and John placed Susan’s four children, Justin (DOB 11/24/2008), Shawna (DOB 12/12/2009), Tyrell (DOB 5/6/1997), and Cody (1/13/2001) at risk of harm due to a living situation that threatened their safety. John is the biological father of Justin and Shawna, but not Tyrell or Cody. The children were adjudicated on July 11, 2011 and guardianship was established with John’s grandmother. On October 11, 2012, Susan filed a petition to transfer jurisdiction to the Oglala Sioux tribal court in South Dakota. In addition, the tribe moved to intervene. At the hearing on November 19, 2012, the tribe was not present; therefore, the juvenile court dismissed the motion to intervene. The court found that Justin and Shawna were not Indian children within the Nebraska Indian Welfare Act, but that Cody and Tyrell were. Shawna admitted that she knew she could petition to transfer to tribal court but had waited over a year to do so. Evidence was introduced that 11 year old Cody was attending private school and enjoyed his school, friends, and activities. There was also testimony that a transfer would be detrimental to Cody’s mental health. Cody had lived near the reservation for five years after birth but had not returned there since moving. Tyrell was attending school in Norfolk at the time of the hearing. The court found good cause to deny transfer to the tribal court.

The Nebraska Court of Appeals affirmed the denial of transfer to tribal court. The Court of Appeals noted that the proceedings had already reached an advanced stage because the motion to transfer was not filed for more than a year after the proceedings begun. In addition, Cody objected to the transfer. The Bureau of Indian Affairs’ non-binding guidelines as to what constitutes good cause not to transfer includes a provision that good cause exists if a child 12 years or older objects to the transfer. At the time of the hearing, Cody was just a few weeks shy of turning 12. The court did not abuse its discretion in finding good cause not to transfer to tribal court.