SUMMARY: Termination of parental rights in an ICWA case was proper where the mother refused mostly all services, some of which were culturally targeted.
Melaya, born in 2006, and Melysse, born in 2010, were removed from the home of the mother, Mindy, on December 12, 2010 after the mother was found unresponsive due to drugs or alcohol, the home was unsafe, and the children were without supervision. After the court denied a transfer to Yankton Sioux Tribal Court in January 2011, the case was appealed and the judgment affirmed in late 2011. On December 21, 2011, the children were adjudicated pursuant to N.R.S. 43-247(3)(a). Visits were offered on a regular basis but the mother missed most of them due to positive drug tests or refusal to take a drug test. The mother refused assistance with transportation and denied the caseworker a walk-through to be able to set up in-home visits. After visits were restricted to therapeutic, the mother was hostile to the therapist and visits were suspended. The mother refused many drug evaluations and resisted recommended residential treatment. She did eventually successfully complete a 28-day residential treatment but was unsuccessfully discharged from outpatient treatment at the Indian Center and tested positive on multiple occasions afterward. She refused to work with the caseworker in developing a cultural plan but the caseworker worked with the Native American foster parents in maintaining the children’s heritage. The mother often failed to return phone calls and was hostile to the caseworkers. She was given a parent partner, who she met with for a short time, but frequency in contact decreased. On June 1, 2012, the State filed a motion for termination of parental rights. Trial was held in August 2012, and the court terminated Mindy’s parental rights. Mindy appealed.
The Nebraska Court of Appeals affirmed the termination of parental rights. It found grounds to terminate existed because the children were out of home more than 15 of the past 22 months. The Court of Appeals then reviewed the evidence which established that the mother was offered a large number of services, many culturally focused, and the mother repeatedly refused the services. It noted Mindy made little efforts to maintain contact with the caseworkers or follow through with requests. As to the required finding of continued custody causing serious emotional or physical damage, the Court of Appeals relied on the therapist’s testimony about the mother’s interactions with the children, the children’s behaviors being eliminated since they stopped seeing the mother, and the mother’s failure to recognize how her actions affected the children. Finally, the Court of Appeals concluded that termination was in the children’s best interest because the mother failed to resolve her substance abuse and failed to engage in the many services offered to her.