SUMMARY: In termination of parental rights cases involving NICWA, the “serious emotional and physical damage” element is the only element that has the higher burden of “beyond a reasonable doubt” as required by statute; all other elements, including active efforts and the best interests standard, need only be proven by clear and convincing evidence.
Martina is the mother of Walter W., born on 1/2/03 and removed from the mother in part due to testing positive for amphetamines at birth. He was placed with a non-relative foster family. Walter W. was found to be an Indian Child under ICWA and was adjudicated under N.R.S. 43-247(3)(a). The mother was ordered to complete chemical dependency and out-patient treatment among other things. DHHS had no contact from Martina from June 2003 to March 2004. Once DHHS located Martina, the case manager gave Martina information about drug treatment facilities he had compiled, faxed information to some of these facilities and encouraged Martina to contact them. She did not, but may have had difficulty getting accepted into one or more facilities. The case manager also referred her to a psychologist for an evaluation.
The case manager assisted Martina with locating shelter after losing her housing in August 2004, and offered bus transportation to the Housing Authority. Martina was evicted from a shelter in October 2004 due to intoxication. DHHS also provided vouchers for rent, clothing, electricity and drug testing. During Walter’s time in foster care, the visitation provider canceled or missed several visits. A cultural plan was not developed but the case manager discussed cultural issues with the foster mother. The first termination of parental rights trials was held in June 2005, and Martina’s parental rights were terminated. The decision was vacated and remanded based on the court’s failure to properly notify a tribe. During the second trial in January and February 2007, the juvenile court again terminated Martina’s parental rights. This appeal follows.
The Nebraska Indian Child Welfare Act (NICWA) provides that in terminations of parental rights two additional elements must be proven in addition to the statutory grounds of N.R.S. 43-292 and the best interests standard: (1) that “active efforts have been made to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family and that these efforts have proved unsuccessful” and (2) that there exists evidence supporting beyond a reasonable doubt “including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” N.R.S. 43-1505(4) and (6).
The mother contended that the “beyond a reasonable doubt” standard of proof should apply to the “active efforts” element. The Nebraska Supreme Court disagreed, reasoning that that higher standard was not designated in the statute as it was for the “serious emotional or physical damage” element and that if Congress had intended to impose a stricter burden of proof it would have done so.
The Nebraska Supreme Court also rejected the mother’s challenge that DHHS had failed to make active efforts. The Court did note the statute’s “vague goals” and failure to “give us guidance” in its determination of whether active efforts were made, but held that active efforts “requires more than the reasonable efforts standard” and that some efforts “should be culturally relevant.” Although the Court acknowledged that DHHS could have considered more of the child’s heritage in its plan and taken more progressive action in some of its efforts, it found that by clear and convincing evidence DHHS made active efforts. The Court also held that by evidence beyond a reasonable doubt returning the child to the mother’s care would be likely to result in serious emotional or physical damage.
Finally, the Court held the best interests determination must be by a clear and convincing standard of proof on the same reasoning as it had for active efforts. Although the Court referred to a beyond a reasonable doubt standard of proof in In re Interest of C.W., 239 Neb. 817, 479 N.W.2d 105, 115, as to best interests, in Walter W. it disapproved of that text and noted that the best interests element need not require the testimony of a qualified expert witness. Considering the facts, the Court concluded that there existed evidence proving by a clear and convincing standard that termination would be in the child’s best interests. The Court upheld the termination of parental rights.