SUMMARY: Juvenile court abused its discretion in denying a motion to transfer to tribal court in a termination of parental rights proceeding where the Nebraska Indian Child Welfare Act applied because the termination proceeding is separate from the foster care placement proceedings for the “late stage” analysis and juvenile court jurisdiction over a child’s sibling did not create an undue burden for good cause to deny the transfer.
The State of Nebraska removed Jayden and Dayten from Yolanda’s care on December 2, 2010. A petition was filed December 3, 2010 alleging the children lacked proper parental care. The children were adjudicated on January 4, 2011. The juvenile court determined the same day that the provisions of the Nebraska Indian Child Welfare Act applied. The State filed a motion to terminate Yolanda’s parental rights on April 6, 2012. At the termination hearing on December 7 and 10, 2012, the State dismissed its petition as to Jayden. The juvenile court dismissed the State’s petition as to Dayten because the State failed to include allegations consistent with NICWA. The State filed a new motion to terminate Yolanda’s parental rights on January 2, 2013. On January 16, 2013, Yolanda filed the first motion in the case to transfer the proceedings to tribal court; the State filed an objection to the motion on February 12, 2013. At the hearing on the motion on February 14, 2013, there was evidence that the department had never been in contact with the tribe and did not know whether the tribe would accept transfer. In addition, Dayten had been placed in a non-Native American home because there was no Native American foster home available. The juvenile court overruled Yolanda’s motion to transfer to tribal court because it was at a late stage of the proceeding and good cause not to transfer existed because the juvenile court retained jurisdiction over Jayden.
The Nebraska Court of Appeals overruled the juvenile court’s denial of the motion to transfer. Though the first motion to transfer was filed more than two years after the initial petition, termination proceedings are treated as separate from foster care placement proceedings in the late stage analysis. The second motion to terminate parental rights was a separate proceeding from the first motion to terminate parental rights because a separate trial with new evidence was needed. In addition, there was no good cause to deny transfer even though the juvenile court had jurisdiction over Dayten’s brother because there was only one other child involved, Jayden’s case would not affect the termination of parental rights proceedings, and there was no evidence in the record that transfer to tribal court would unduly burden witnesses or parties to the case. The Court of Appeals reversed and remanded to the juvenile court with directions to sustain the motion to transfer to tribal court.