SUMMARY: Refusal to invalidate an adjudication order that was not ICWA compliant was proper because ICWA provisions apply prospectively from the formal identification of the child as Indian, because there was no basis for collateral attack and because Neb. Rev. Stat. 43-1507 does not apply where there is no denial of substantive protections of ICWA. Being a member of a tribe and the mother of the child are not sufficient facts to establish that the person is a qualified expert under ICWA.
A petition under Neb. Rev. Stat. 43-247(3)(b) was filed on July 27, 2009, pertaining to 16-year-old Ramon based on violation of curfew and running away. On August 14, 2009, the court after testimony ordered Ramon to be placed into custody. Ramon was adjudicated on September 4, 2009, and the court indicated a continuance on October 8 in order for the State to provide notice to the Oglala Sioux Tribe. The State filed an ICWA notice on October 9 and sent notice to the tribe via registered mail on October 14. On February 16, 2010, a DHHS court report was received that stated the mother indicated Ramon was an enrolled member of the tribe. The court then found reasonable efforts were made to reunify. On February 18, 2010, Ramon filed a petition to invalidate the proceedings because the petition to adjudicate did not plead facts under ICWA and no expert testimony was provided regarding Ramon’s out-of-home placement. On March 5, 2010, the court overruled the petition but found ICWA to apply effective March 5 and found that expert testimony regarding placement was provided in the form of Ramon’s mother. Ramon appealed.
The Nebraska Court of Appeals was affirmed in part and reversed in part. The Court of Appeals first addressed the allegation that the adjudication was invalid because proper ICWA allegations weren’t made in the petition. Ramon did not appeal the adjudication order, which is a final, appealable order, and such order is no subject to collateral attack because the attack was not grounded in the court’s lack of jurisdiction. The Court noted that the sufficiency of the petition is not the test of jurisdiction; rather, it must be shown that the court does not have the authority to grant the relief or that the facts are not sufficient. The Court also found that 43-1507 under ICWA did not provide a basis to invalidate in this case because there was no allegation of violations of the substantive protections of ICWA. Furthermore, ICWA provisions apply prospectively from the date Indian child status was established on the record. The Court of Appeals thus concluded that the absence of ICWA allegations in the petition did not support invalidating the adjudication.
The Court of Appeals did reverse and remand the case on the basis that proper qualified expert testimony under ICWA was not provided regarding the continued custody of Ramon out of the home and active efforts were not shown to be provided. It held that the evidence did not rise to the level of active efforts, which requires more than reasonable efforts and should be culturally relevant. The Court also held that the mother’s testimony cannot be considered qualified expert testimony under ICWA since the only qualifications she held were being a member of the tribe and being the child’s mother. There was no indication that she was knowledgeable in tribal customs or childrearing practices or has substantial experience in delivery of services to Indian families.