SUMMARY: When a motion to transfer to juvenile court is filed, subsequent hearings cannot be held absent a finding of good cause.
A 3(a) petition was filed alleging that the child was a member of an Indian tribe and that parental rights should be terminated pursuant to N.R.S. 43-292(2) and (4). One week later, the State filed a notice to the ICWA specialist of the Omaha tribe that the child may be eligible for membership. Two months later, the tribal prosecutor of the Omaha Tribe file a motion for intervention and a motion for transfer of the case to the Omaha Tribal Court. A hearing was subsequently held but continued to a later date. The guardian ad litem then filed an objection of transfer to tribal court alleging good cause existed. The hearing on the motions was held, which included evidence that the child was eligible for enrollment and that the parents did not object to the transfer. The guardian ad litem stated that transfer was not in the children’s best interests because the court had already adjudicated siblings and that this court could offer better services. The court entered an order approving the motion for intervention but took the issue of transfer under advisement. The children were then adjudicated by the court under the objection of the mother’s counsel. The parents appealed the court’s denial to rule on the motion to transfer. The appellate court dismissed the appeal for lack of jurisdiction because of a lack of final order. The father’s counsel again requested the court to rule on the motion to transfer but the court denied the request. Several months later, the court terminated the parents’ parental rights and subsequently set a hearing date on the motion to transfer. Following the hearing, the court denied transfer based on the doctrine of forum non conveniens.
The Nebraska Court of Appeals noted that once a motion to transfer is filed by the tribe or either parent, “the state court cannot proceed with the placement of an Indian child…without first determining whether jurisdiction of the matter should be transferred to the tribe.” No evidence was submitted as part of the record that showed a finding of good cause that the case should not be transferred. Regardless, the court cannot continue to trial absent evidence of good cause to preclude transfer to tribal court. The appellate court ruled that the court’s continuation with termination proceedings while refusing to rule on the motion to transfer was in error and remanded the case with directions to transfer the matter to tribal court.