SUMMARY: In a case involving the Indian Child Welfare Act (ICWA), the State must amend its pleadings to reflect the standards required under ICWA regardless of whether the court nevertheless makes the required findings. A DHHS caseworker with 11 years of experience and history of working with Native American families was not an expert witness for ICWA purposes under 43-1505.
Shayla H. (DOB 8/21/01), Shania H. (8/1/03) and Tanya H. (9/26/04) are the children of David H. Through David, the children are eligible for enrollment with the Rosebud Sioux Tribe. On February 15, 2008, the State filed a petition and motion for temporary custody alleging the children came within the meaning of 43-247(3)(a) due to David’s failure to provide medical care, his involvement domestic confrontations with the mother and his use of methamphetamine while being the primary caregiver. The petition did not contain any reference to ICWA. A custody order was issued and the children were placed in foster care. At the first hearing, it was determined that the children were eligible for enrollment in the tribe. The court continued the hearing to allow for expert testimony pursuant to ICWA. At the adjudication hearing, the DHHS caseworker testified that returning the children to the father would result in serious emotional or physical damage. Additional evidence was heard, including the children’s grandmother, police officers, the initial caseworker, and the children’s mother, and on August 15, 2008, the court found that the State was not required to include ICWA language in its pleadings and adjudicated the children under 43-247(3)(a). The court made the required ICWA findings in its order, finding that active efforts were made to prevent removal and return them to the parent’s care and that keeping the children in the parental home would likely result in serious emotional or physical harm to the children. The father appealed, alleging, inter alia, that pleadings must include ICWA language and that the State failed to produce an expert witness required by ICWA.
The Court of Appeals reversed the adjudication. The Court of Appeals noted the finding in In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 (2001), where the Court held that pleadings in the petition to terminate parental rights had to include relevant ICWA language, and the application of this finding to an adjudication proceeding in In re Interest of Dakota L., 14 Neb. App. 559, 712 N.W.2d 583 (2006). In this case, the Court of Appeals held that even though the court made the proper findings under ICWA it was error to omit ICWA language in the petition and motion for temporary custody. The Court of Appeals noted that the omission could have been cured by amendment, but was not done in this case.
As to expert witness testimony required under ICWA as to whether serious emotion harm or physical damage would occur if the child were not removed from the home, the Court of Appeals held that the DHHS caseworker did not have the qualifications under 43-1505 to be considered an expert witness for these purposes but declined to address whether a DHHS caseworker could ever qualify as an expert witness.