In re Interest of Tavian B.

Caselaw Number
No. S-15-129
Filed On

SUMMARY: Joseph B. appeals from an order of the Separate Juvenile Court of Lancaster County. The Supreme Court reverses and remands with instructions.
Tavian B. was found to be a child within the meeting of Neb. Rev. Stat. § 43-2417(3)(a). Sixteen months later the state moved to terminate the parental rights of both of his parents. At that time, the father filed a motion to have the case transferred to the jurisdiction of the Oglala Sioux Tribal Court pursuant to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq.
Prior to the Court ruling on the motion, the state withdrew the TPR petition. The Court then found that there was good cause to not transfer the case because it was at an “advanced stage.” The father now appeals this ruling.
Under ICWA, a denial of a motion to transfer is reviewed for abuse of discretion. In re Interest of Zylena R. & Adrionna R., 284 Neb. 834 (2012). Procedural due process is a question of law and so reviewed independently. See In re Interest of Landon H., 287 Neb. 105 (2013).

Tavian’s case came before the Court on May 16, 2013 with the filing of a neglect petition. On July 3, he was placed in the care and custody of DHHS and pursuant to ICWA, a notice went to the Oglala Sioux Tribe. They received the notice on August 19th. The goal remained reunification until October 29, 2014, when the state filed a motion to TPR. The Tribe received notice of the TPR filing on November 21st. A Review Hearing was held on December 12, 2014 and the father testified that he had just enrolled as a member of the Tribe. Immediately after the hearing the Tribe moved to intervene alleging that Tavian was an Indian child under ICWA. The father moved to have the case transferred to the Tribal Court and the Tribal Court filed an order accepting jurisdiction. The Juvenile Court overruled the motion to transfer because no one provided documentation verifying Tribal enrollment or other evidence that ICWA applied.

On December 16, 2015, the father filed a motion to transfer jurisdiction and a hearing was held on January 6, 2015 where certificates of Tribal enrollment were received into evidence. The Court found that ICWA applied and the state withdrew its motion to TPR. The hearing on the transfer was continued on January 7, 2015. The State objected and argued that good cause existed to not transfer. The Court found that good cause existed not to transfer because of the advanced stage of the case.

The Supreme Court first determines whether there was an abuse of discretion by the Court in denying the motion to transfer. The Supreme Court has to decide whether, “…the Judge, within the effective limits of authorized judicial power, elects to act of refrain from action, which results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition.” pg. 807-8 See In re Interest of L.V., 240 Neb. 404 (1992).

The Supreme Court applies ICWA to this case. Transfers shall occur in the absence of good cause. Neb. Rev. Stat. § 43-1504(2). The party opposing the transfer has the burden of showing good cause. Normally a court uses the date of the filing of the motion for TPR to determine whether the case is at an advanced stage. Since the state withdrew that motion, the Court uses the date of the adjudication on the neglect petition, May 16, 2013 instead. The Juvenile Court expressed concern that an Indian parent could play “an ICWA trump card at the eleventh hour.” The Court’s decision not to transfer the case for good cause was based on the state’s dismissal of the TPR filing.

Good cause is not defined in ICWA, but it is in the Guidelines published by the Bureau of Indian Affairs (BIA). At the time of the Juvenile Court’s ruling, the Guidelines allowed for denials of transfers if the case was at an advanced stage. But, while the appeal was pending, the BIA issued new Guidelines that do not allow a denial of transfer based on the advanced stage of the case. The BIA explains in the Guidelines that a Tribe may have a good reason to not transfer a case until it reaches an advanced stage including that they would likely be more concerned with a termination proceeding that a case where reunification is the goal. The Court notes that ICWA is intended to not protect only the Indian child, but also the rights of Tribes.

The Supreme Court finds the new BIA Guidelines persuasive and instructive and that they apply to this appeal.

The State also argued that the best interests of the child should be considered as a factor in whether or not to transfer a case, relying on Adoptive Couple v. Baby Girl 133 S. Ct. 2552 (2013). The Supreme Court finds that the BIA Guidelines expressly state it is inappropriate to conduct an independent analysis of the best interest of the Indian child. It is presumptively in the best interests of the Indian child to transfer a case to Tribal Court. It also finds that allowing the state court to determine best interests of the Indian child undermines ICWA. The Court upholds its prior decision on this issue found in In re Interest of Zylena R. & Adrionna R., 284 Neb. 834 (2012).


The Court finds that the Juvenile Court abused its discretion in denying the motion to transfer so does not reach the issue of procedural due process. It reverses and remands with direction to transfer the case to Tribal Court.