Summary: In an opinion written by Judge Irwin, the Court of Appeals affirmed the Scottsbluff County Juvenile Court decision, which terminated the parental rights of Nathaniel V. over his son Eyllan J. The Nebraska Indian Child Welfare Act (NICWA) applied to the case and at issue was whether: the State showed clear and convincing evidence that the father substantially and continuously or repeatedly neglected and refused to give Ellyan necessary parental care and protection; it was proven beyond a reasonable doubt that return of custody to the father would result in serious and emotional harm to Eyllan; and whether there was clear and convincing evidence that termination was in Eyllan’s best interests. The Court of Appeals found the father’s arguments without merit and terminated his parental rights.
Eyllan J. was born in January 2013 and immediately removed from the custody of his parents due to methamphetamine use by the parents. Additionally the petition alleged that the father was currently incarcerated and NICWA applied to the case. The Court of Appeals notes that it was not clear whether Eyllan was ever adjudicated to be within the meaning of 43-247(3)(a) as to the father, but no due process arguments were raised, nor addressed by the Court of Appeals. The State filed a TPR December 19, 2013 pursuant to 43-292(1),(2),(4) and (6) as to the father, the biological mother relinquished her parental rights. The lower court found there was: clear and convincing evidence as to 43-292(2),(4),(6); clear and convincing evidence that it was in Eyllan’s best interests that his father’s rights be terminated; evidence beyond a reasonable doubt active efforts were satisfied; and evidence beyond a reasonable doubt return to the father would result in serious and emotional harm to Eyllan. As the father only designed error as to the lower court’s findings under 43-292(2), the “serious emotional and physical damage” requirement under NICWA, and the best interests finding, those are the only issues the Court of Appeals considered.The Court of Appeals found that due to the father’s drug use history and frequent periods of incarceration he was unable to perform his parental obligations and satisfied the evidentiary requirement for 43-292(2). The Court of Appeals also found that the State’s NICWA expert satisfied NICWA requirments as she was a school psychologist who specialized in and previously exclusively worked with Native American families. Finally, the Court of Appeals found that despite the father’s completion of intensive outpatient treatment, recent completion of a GED program, completion of a parenting class and release from prison it was in Eyllan’s best interests to terminate Nathaniel’s rights due to his history of incarceration and drug use, lack of contact with his son and the 14 months that Eyllan was in out of home care.