SUMMARY: In an ICWA case, active efforts should include direct guidance rather than passive referrals. The active efforts need only be culturally relevant if the conditions that led to out-of-home placement have some cultural basis. Evidence that termination is in the children’s best interests does not need to include testimony given by a qualified expert witness as defined under ICWA.
The children, Alicia F. (DOB 10/95), Louis S. (DOB 9/99), Chad S. Jr. (DOB 10/01), Unique S. (DOB 10/02), Heaven S. (DOB 9/03), Henry S. (DOB 1/05), and Charlotte S. (DOB 10/06), were removed (except Charlotte) from the parents’ home on October 18, 2005, due to filthy living conditions and hygiene and evidence of drug use. Notice was sent to the Omaha tribe on October 24, 2005, that the children were Indian children under ICWA, and the children were adjudicated under 43-247(3)(a) on February 23, 2006. Prior to September 2006, the father was federally incarcerated, which led to a 7 to 12 year sentence. The children were returned to the mother’s home in November 2006 but were back in foster care in May 2007 due to a drug relapse. On June 25, 2008, the mother requested transfer to the tribal court but the court denied for good cause due to the length of time the case has been open in its court. In June 2008, the State filed motions to terminate parental rights of both parents under 43-292(1), (2), (6) and/or (7). The Court terminated the both parents’ parental rights on January 9, 2009. The mother and father appealed.
The Nebraska Court of Appeals affirmed the terminations. It held that denial of the motion to transfer was proper based on the length of time the case had been in juvenile court and because the tribe had not intervened. It also found grounds to terminate under 43-292(6) due to the condition of the home and inability of the parents to maintain a home, the drug relapses of the mother, and the inconsistency of visits and therapy. In considering whether active efforts were made to provide services to prevent breakup of the Indian family, which is required prior to termination under 43-1505(4), the court interpreted the ruling in In re Interest of Walter W., 274 Neb. at 865, 744 N.W.2d at 61, that some efforts be “culturally relevant” as only applying to conditions leading to out-of-home placement that are culturally based and that the culturally relevant efforts be likely to assist in preventing the breakup of the Indian family. The Nebraska Court of Appeals further noted that active efforts should be more than passively pointing the parents in the right direction and should instead include steps to actively assist them. The Court of Appeals concluded that active efforts had been made in this case, including financial and home maintenance assistance, evaluations, transportation, tutoring and therapy, and that active efforts would have been futile regarding the father.
Addressing the requirement under 43-1505(6) regarding Indian children, the Court of Appeals concluded that based on the father’s incarceration, lack of contact with the children and unwillingness to admit drug use and complete treatment, reunification would be likely to result in serious emotional or physical harm to the children. It also concluded that due to the mother’s inability to complete several treatments and drug court, maintain housing, consistently attend visitation and therapy, reunification would likely result in serious emotional or physical harm to the children. The qualified expert witness who provided testimony was sufficient qualified to do so, and 43-1505(6) does not require that the qualified expert witness provide testimony as to all elements of the case, only the serious emotional or physical damage element.