In re Interest of Shane L.

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In re Interest of Shane L.

Caselaw No.
Filed on
Tuesday, December 31, 2013

SUMMARY: Termination of parental rights was proper in an ICWA case where the children were out of home 39 months and had special needs that required a stable home, and the parents consistently failed to follow through on services despite being given much assistance. 

Shane, born in 2003, Lena, born in 2004, Hanna, born in 2007, and Jadys, born in 2008, are the children of Cameron and Amanda. Cameron is an enrolled member of the Oglala Sioux tribe and the children are eligible for enrollment. The children were removed from the home in August 2009 due to the parent’s intoxication, the filth of the home and the children’s untreated medical needs. The family had been involved in the system since 2006 and DHHS has received 33 allegations of abuse or neglect, 14 of which were substantiated. The children were placed with their grandmother until August 2011, when they were removed because 10-15 people were living in the home and the children had severe head lice. Hanna and Jadys were moved to their current foster home and Shane and Lena went there several months later. In September 2009, the State notified the Oglala Sioux Tribe of the proceedings and sent notices at each stage of the proceedings. On March 15, 2012, the Oglala Sioux Tribe moved to intervene and requested the case transfer to tribal court. The motion to intervene was granted but the court denied the request to transfer on July 1, 2012. On November 7, 2012, the State filed a motion to terminate parental rights. Evidence at trial established that both parents completed a drug assessment and Amanda completed a short-term residential program but was arrested 2 weeks later and admitted to drinking. Cameron entered the program but left after 3 days. DHHS paid for additional evaluations but no programs accepted the parents due to their past history and because Cameron was untruthful in his application. Amanda and Cameron continued to have issues with alcohol but mocked the idea of treatment. They couldn’t maintain housing or employment, despite assistance from a support worker, and continued to accrue law violations. All four children have fetal alcohol spectrum disorder and their therapist testified that they need a structured, non-chaotic environment. They were doing great in the foster home and wanted to stay there. On March 22, 2013, the court terminated parental rights. Amanda appealed and Cameron cross-appealed.

The Nebraska Court of Appeals affirmed the court’s order. Amanda and Cameron argued it was error to deny transfer to tribal court but the Court of Appeals found it did not have jurisdiction because the order wasn’t appealed within 30 days. Although not assigned as error, the Court of Appeals found that there was no plain error with respect to the statutory grounds for termination, active efforts or emotional or physical damage, and found the therapist was qualified to provide expert testimony. As to best interests, which the court clarified only required clear and convincing evidence in an ICWA case, the Court of Appeals noted that the children were out of home 39 months, that they are flourishing in their foster home, that the parents failed to make substantial progress and that they failed to address their alcohol abuse.