SUMMARY: Termination of parental rights was improper because the tribe was not initially given proper notice of the termination proceedings as required under ICWA, only notice of the adjudication proceedings, nor was it provided with notice of the amended pleadings at least 10 days prior to trial.
Mario Jr., DOB 11/04, Esperanza V, DOB 8/06, and Nery V., DOB 10/08, are the children of Mario Sr. and Ida. Mario Sr. and Ida were divorced on July 22, 2009, but began living together again in July 2010. They have a substantial history with the juvenile court system, which includes a prior termination as to Ida and two removals of some of the children in this proceeding. In March 2008, Ida relinquished her parental rights to Mario Jr. and Esperanza, and the children were returned to Mario Sr.’s custody. Once Ida began living with Mario Sr. again, she became the children’s primary caregiver. In November 2010, DHHS removed the children from the home due to Ida’s caregiving abilities, her admitted urge to use drugs again, and Esperanza and Nery testing positive for methamphetamine exposure. On December 3, 2010, notice was sent to the Rosebud Sioux Tribe and a signed return receipt received on December 7th. On December 8, 2010, the State filed a petition to terminate the parents’ rights to the children pursuant to 43-292(2). On February 4, 2011, the Rosebud Sioux Tribe filed a notice of intervention and noted all three children were eligible for enrollment. On August 16, 2011, Ida filed a motion to withdraw the relinquishments she entered in 2008 and alleged the State failed to provide proper notice to the tribe or comply with ICWA findings. Those motions were taken under advisement and the termination hearing was held from August 2011 through January 2012. During trial, the State added ICWA allegations of active efforts and serious emotional or physical damage to the petition. There was a certificate of service for an item sent to the tribe on January 9, 2012, but it was unclear whether it was notice of the amended pleadings. On June 25, 2012, the court overruled the motions and terminated parental rights, finding both that active efforts were made and that continued custody would likely result in serious emotional or physical damage. Both parents appealed.
The Nebraska Court of Appeals affirmed the court’s denial of Ida’s motion to withdraw the relinquishments but vacated the terminations of parental rights. As to Ida’s relinquishments, although ICWA requires relinquishments to be in writing signed before a court, its terms are only applicable prospectively from the time the Indian child’s status is established on the record. Further, ICWA provisions as to withdrawal of a relinquishment don’t apply to relinquishments signed before ICWA become applicable; therefore, ICWA requirements do not apply in the 2008 relinquishment. While there is no evidence that DHHS accepted the relinquishment in writing as required by N.R.S. 106.01, the Court reasoned that three years between relinquishment and attempted revocation is unreasonable (citing the Nebraska Supreme Court opinion that held a revocation of a relinquishment within a reasonable time after its execution and before the agency has accepted full responsibility is effective, Kellie v. Lutheran Family & Social Service, 208 Neb. 767, 771-2, 305 N.W.2d 874, 876-7 (1981)(emphasis added)). The Court of Appeals concluded by stating “in the circumstances before us, the requirement that a revocation of relinquishment must be done in a reasonable time trumps the requirement that DHHS must accept the relinquishment before there is a valid relinquishment”, 20 Neb. App. 798, 817, and noted that the trial court should direct DHHS to accept the relinquishments.
As to the terminations of parental rights and notice to the tribe, the Court of Appeals found that no notice was given to the tribe as to the termination proceedings, only the adjudication proceedings, and that since the tribe filed its notice of intervention in February 2011 the original motion had been amended twice to conform to ICWA. There was no notice sent to the tribe at the time the pleadings were amended and although there was certificate of service to the tribe on January 9, 2012, there is no evidence that establishes that it was notice of the amended pleadings. In any event though, the Court noted the termination trial had already started in August 2011 so notification in January 2012, even if it were made 10 days before the next trial hearing date, would not comply with ICWA. The Court ended the opinion by noting the juvenile should have addressed the mother’s motions to comply with ICWA at the beginning of trial and that the State should have amended the pleadings before trial began.