SUMMARY: In a motion to transfer to tribal court, the court must consider whether the “advanced stage” of the proceedings is good cause not to transfer based on the date of filing the TPR petition, not from the beginning of the abuse/neglect proceedings. Best interests cannot be a consideration in transfer to tribal court.
The State filed a 3a petition as to Zylena, DOB 6/07, on June 20, 2008. On July 9, the State mailed a copy of the petition and notice to the Omaha Tribal Council. On July 16, the tribe responded that Zylena was not eligible for enrollment. The State filed another 3a petition on May 1, 2009, as to Zylena and Adrionna, DOB 12/08, and the children were adjudicated on May 12. However, notice was not sent to the tribe until October 2010 when a DHHS employee recognized the mistake. DHHS did not receive a response. On February 7, 2011, the State filed motions in both cases to terminate parental rights. The tribe filed a notice of intervention on February 14, 2011, and a notice of intent to transfer on February 22, 2011, in the latter case, and similar documents on the earlier case on March 1. At the transfer hearing, the State and guardian ad litem objected to the transfer and a tribal representative stated they had made an error in assessing the children’s eligibility. Evidence was presented as to what the case plan of the tribal court would be, its similarity to the DHHS case plan, and the tribe’s position on TPR. On June 30, 2011, the juvenile court denied the motions to transfer to tribal court on the basis of good cause due to the cases being at an advanced stage of the proceedings. The case was appealed. The Court of Appeals affirmed the juvenile court order, agreeing the case was at an advanced stage and finding that denying transfer was in the children’s best interest. The mother appealed to the Supreme Court.
The Supreme Court reversed the Court of Appeals decision and remanded with instructions for the juvenile court to sustain the motions to transfer to tribal court. The Supreme Court considered the statutory language of ICWA and NICWA under 1911(b) and 43-1504(2), respectively, that stated transfer should occur in “any state court proceeding for the foster care placement of, or termination of parental rights to….unless good cause to the contrary” and concluded that the statutes’ listing of both proceedings – the foster care proceeding and the termination of parental rights proceeding – in this way defines them as separate proceedings, noting that the ability of the court to consider both proceedings in a single-docketed case is irrelevant to the issue of whether they are separate proceedings. The Supreme Court then disapproved any portion of In re Interest of C.W., 239 Neb. 817, 479 N.W.2d 105 (1992) that would suggest a foster care placement proceeding and TPR proceeding are not separate and distinct. The Supreme Court also clarified that the Court of Appeals reliance on In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983), as to best interests was misplaced because Bird Head was focusing on placement preference, not transfer to tribal court, but acknowledged it had allowed best interests to be a factor in transfer. However, it referenced several other states’ holdings that best interests should not be a factor in a threshold determination of jurisdiction before concluding that best interests cannot be a factor in a state court’s consideration of a motion to transfer to tribal court and overruling In re Interest of C.W. to that extent.