SUMMARY: There was good cause to deny transfer of the case to tribal court for being at an advanced stage where the motion was made one week after the petition to terminate parental rights was filed and two years after the children were placed with their current foster family.
Zylena and Adrionna are children of Elise and Francisco. Elise has Omaha Tribe blood quantum of 19/32 but the Tribe mistakenly recorded it as 15/32. Because of this error, in 2008 the children were documented as not being eligible for enrollment because their blood quantum did not reach the required 25% when in fact it did. On May 1, 2009, the State filed a 3a petition based on domestic violence between the parents. On May 29, 2009, the allegations were found to be true at an adjudication hearing and the children were placed with their current foster family. In October 2010, the DHHS worker sent a letter to the Omaha Tribe about potential eligibility of the children but heard no response. Over a period of two years, the parents continued to struggle with sobriety and the ability to parent. On February 7, 2011, the State filed a motion to terminate parental rights of both parents. On February 14, 2011, the Tribe filed a notice of intervention and, on February 22, 2011, an intent to transfer to the tribal court based on the children’s eligibility for enrollment. A hearing was held where there was testimony on the eligibility error, the parents’ ongoing struggles and the children’s thriving in the foster home. After the hearing, the court denied the transfer to tribal court on the basis of the proceedings being at an advanced stage and the tribe’s failure to promptly file its notice to transfer. The mother and the Tribe appealed.
The Nebraska Court of Appeals affirmed the denial to transfer. The Court of Appeals noted that the language in ICWA requiring “good cause to the contrary” has been defined by the Bureau of Indian Affairs as the proceeding being at an advanced stage when the transfer was received and the petitioner not filing the petition promptly after receiving notice. The Court of Appeals noted the parent’s failure to comply with court orders, the length of time the children have been out of home, and the delay in the tribe filing the motion which was caused by their enrollment error and found these sufficient as good cause to deny the transfer for the proceedings being at an advanced stage. The Court of Appeals also rejected the argument that the proceedings of termination of parental rights should be treated separately and that therefore the motion was filed at the beginning of the proceedings.