Martina A. appeals the separate juvenile court's order terminating her parental rights to her son, Walter W. He is an Indian child, so the Indian. Child Welfare Act (ICWA) applies, The juvenile court initially terminated Martina's parental rights in September 2005. The Nebraska Court of Appeals vacated the termination order in July 2006 because the State had failed to give the Yankton Sioux Tribe proper notice before the termination hearing. After retrial in January and February 2007, the juvenile court again terminated Martina's parental rights. Martina appeals, arguing the State failed to meet its burden under ICWA.
ICWA requires the State to prove that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family."
I, PROCEDURAL BACKGROUND
Martina gave birth to Walter on January 2, 2003. The following day, the State filed a supplemental petition. It alleged Martina placed him in a situation injurious to his health or morals. The petition alleged she was unable to provide safe, stable, and independent housing for herself and her child and that her use of alcohol or controlled substances placed Walter at risk for harm. At the time, Martina had five other children who were under the juvenile court's jurisdiction because of Martina's faults or habits. The juvenile court placed Walter in the Department's temporary custody. Evidence later showed that Walter tested positive for amphetamine at birth.
In January 2003, Martina informed the court that she was an enrolled member of the Yankton Sioux Tribe and that Walter's father was an enrolled member of the Omaha Tribe. Later that month, after a continued detention hearing, the court ordered that Walter would remain in the Department's temporary custody. In May, the court found that Martina was an enrolled member of the Yankton Sioux Tribe and that Walter was eligible for enrollment. The court ordered that ICWA and its Nebraska counterpart, the Nebraska Indian Child Welfare Act (NICWA), would apply in all future proceedings. In November, the Yankton Sioux Tribe filed a notice to intervene. According to the parties, the court never heard or granted the tribe's motion.
In April 2004, the court declared Walter a child within the meaning of Neb.Rev. Stat. § 43-247(3)(a) (Cum.Supp.2002). After
On December 9, 2004, the State moved for termination of Martina's parental rights. The court heard the motion in June 2005 and terminated Martina's parental rights in September. Martina appealed. The Court of Appeals determined the termination hearing was invalid because the State had failed to give proper notice to the Yankton Sioux Tribe as required under ICWA.
After receiving the mandate, the juvenile court ordered another hearing on the motion to terminate parental rights. The special prosecutor notified the Yankton Sioux and Omaha Tribes. The court held the hearing on January 31 and February 1, 2007. The Yankton Sioux Tribe did not appear. The court terminated Martina's parental rights in March.
II. ASSIGNMENTS OF ERROR
Martina assigns, restated, that the juvenile court erred in terminating her parental rights because the State failed to meet its burden of proof. In her second assignment of error, Martina asserts that the Court of Appeals' dismissal in an unrelated case precluded her from appealing the adjudication in this case.
III. STANDARD OF REVIEW
We review juvenile cases de novo on the record, and we reach our conclusions independently of the juvenile court's findings.
To terminate parental rights, the State must prove by clear and convincing evidence that one or more of the statutory grounds listed in Neb.Rev.Stat. § 43-292 (Reissue 2004) have been satisfied and that termination is in the child's best interests.
Section 43-1505(4) is identical to its federal counterpart, 25 U.S.C.1912(d). Second, Nebraska's § 43-1505(6) provides a "serious emotional or physical damage" element:
Section 43-1505(6) is identical to 25 U.S.C. § 1912(f).
1. THE STATE MET ITS BURDEN OF PROVING ACTIVE EFFORTS
Martina contends the State failed to prove that the Department made active efforts as required under ICWA.
(a) The "Active Efforts" Element Must Be Proved by Clear and Convincing Evidence
Before deciding whether the State met its burden in proving active efforts, we must first determine the standard of proof for this element. The language in § 43-1505(4) does not impose any particular standard of proof for the active efforts element. Section 43-1505(6), however, expressly requires the State to prove beyond a reasonable doubt that the child is likely to suffer serious emotional or physical harm if the parent retains custody.
Martina contends that the proper standard for the active efforts element is proof beyond a reasonable doubt. The State urges us not to adopt the "beyond a reasonable doubt" standard.
Martina directs our attention to In re Interest of Phoenix L.
Other jurisdictions are split on what standard should apply. For instance, the South Dakota Supreme Court assumed the burden to prove the serious emotional and physical damage element—beyond a reasonable doubt—would apply to prove the active efforts element.
Congress did not intend in 25 U.S.C. § 1912 to create a wholesale substitution of state juvenile proceedings for Indian children. Instead, in § 1912, Congress created additional elements that must be satisfied for some actions but did not require a uniform standard of proof for the separate elements. As discussed, Congress imposed a "beyond a reasonable doubt" standard for the "serious emotional of physical damage" element in parental
(b) THE STATE PRODUCED SUFFICIENT EVIDENCE To FIND THE DEPARTMENT MADE ACTIVE EFFORTS
Martina contends the Department failed to make active efforts to provide remedial services and rehabilitative programs. Section 43-1505(4) is imprecise. The section provides that a party seeking to terminate parental rights to an. Indian child "shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." This language sets out praiseworthy but vague goals for the courts to enforce. It fails to give us guidance in determining whether the Department's efforts were sufficient to meet ICWA's mandates.
We do know, however, that the "active efforts" standard requires more than the "reasonable efforts" standard that applies in non-ICWA cases.
Martina asserts that the Department's efforts consisted largely of "`encouragement and referrals,'"
We begin by noting that the Department was unable to contact Martina from June 2003 until March 2004 because her whereabouts were unknown. It would have been impossible for the Department to provide services during that time.
After the Department regained contact with Martina, it tried to provide remedial services and rehabilitative programs. For instance, the case manager contacted inpatient chemical dependency treatment programs to verify the types of programs and program admittance requirements. The case manager gave Martina information about the programs and encouraged her to apply for programs she had not already considered. The case, manager faxed necessary records to the programs at Martina's request. The record reflects that Martina told the case manager she was contacting one program weekly to gain admittance. Yet, when the case manager contacted the program, he was told Martina had not contacted the program in almost 2 months.
The case manager also encouraged Martina to attend an outpatient chemical dependency treatment program and gave her
For housing, the case manager reviewed a list of homeless shelters with Martina in August 2004 after she moved out of an apartment she was sharing with a roommate. He provided a telephone at the state office building so she could secure a bed at a shelter. In September, he gave Martina a letter addressed to the Omaha Housing Authority stating she was in need of housing to comply with her case plan. After Martina told him she intended to apply for assistance through the Omaha Housing Authority, he offered bus tickets for transportation to the Omaha Housing Authority office. Martina stayed at the Siena/Francis House shelter until October, when she was asked to leave the shelter because she was intoxicated. The case manager again reviewed a list of homeless shelters with Martina.
Besides these efforts, the Department provided Martina vouchers for rent, clothing, an electric bill, and drug testing; bus tickets for transportation to Alcoholics Anonymous and Narcotics Anonymous appointments and to other services; and visitation with Walter, transportation of Walter for visitation, and foster care and medical care for Walter.
Martina points out some areas where the Department's efforts may have fallen short. First, Martina called a Department protection and safety administrator to testify at the second termination trial. When given a series of hypotheticals, this witness provided testimony suggesting that, from a Department policy standpoint, the case manager's efforts in some areas may not have constituted active efforts. Martina also points out that the agency the Department hired to provide visitation services missed or canceled multiple visits during, a 5-month period in 2004. She also argues that she had trouble gaining admission to inpatient treatment programs. So, she argues that the case manager should have explored other services throughout Nebraska and Iowa or that he should have returned to the court to seek an amended case plan. And, she argues the Department should have tried to place Walter with relatives and should have created a written cultural plan for him that addressed his specific heritage. Although the case manager did not create a written cultural plan, he did discuss a cultural plan with the foster mother. We acknowledge, however, that the Department could have created a plan that better incorporated specific elements of Walter's heritage.
Although the Department could have taken more progressive actions in some of its efforts, we are satisfied that considering the entire record, the Department made active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family. We conclude the State proved by clear and convincing evidence that the Department made active efforts.
2. THE STATE MET ITS BURDEN IN PROVING WALTER WOULD LIKELY SUFFER HARM IF RETURNED TO MARTINA
As explained above, § 43-1505(6) requires a "determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child." Martina argues that testimony by the State's expert failed to support, beyond a reasonable doubt, a finding that
At the disposition hearing in July 2004, Dr. Kevin Cahill, a clinical psychologist, testified about whether the return of Walter to Martina at that time would result in serious emotional or physical damage to Walter. The parties stipulated to Cahill's qualifications as an expert under ICWA. An exhibit at the second termination hearing included his July 2004 testimony.
Cahill identified concerns that could affect Martina's ability to provide competent parenting for. Walter. He stated that depression was an ongoing problem for Martina and that depressed parents are at a "very high risk" for neglecting their children.
He also expressed concern because a January 2002 evaluation showed narcissistic traits. He explained that for a narcissistic individual, "the needs of one's self always come first and everything else is secondary." He explained one of the primary minimal competencies an effective parent must have is the ability to "relegate the importance of one's own needs to the primacy of the child's needs."
Cahill further noted that Martina had been identified with an intermittent explosive disorder. He testified that "an individual with an intermittent explosive disorder is likely to simply blow up in rage and anger at intervals, sometimes with very little provocation or in response to a provocation that seems completely out of proportion to the level of response." He explained that such tendencies conflict with another minimal competency for parenting—the ability to withstand the frustrations of parenting without becoming overly reactive.
Cahill also testified at the first trial to terminate Martina's parental rights, and this testimony was included in an exhibit at the second trial. To prepare for the trial, Cahill reviewed a psychological evaluation from another psychologist dated December 2004. He stated the report increased his concerns about Martina's mental health. The other psychologist had made some additional diagnoses that had not previously been made. The other psychologist diagnosed Martina as dependent on methamphetamine, having an impulse control disorder, possible posttraumatic stress disorder, and a history of bipolar disorder. He also diagnosed her with antisocial personality disorder. Cahill explained that personality disorders are typically lifelong, even though the patient can mitigate the intensity of some symptoms. Later in his testimony, Cahill opined that Martina would not make enough progress to provide permanency for Walter. He also opined that the return of Walter to Martina would result in "serious psychological and potentially physical damage."
On cross-examination, Martina's counsel challenged Cahill's reliance on the December 2004 psychological report because the report contained a test that could be skewed for members of different ethnicities, including Native Americans. For instance, Native Americans typically score higher on the scale that measures antisocial personality disorder. Cahill acknowledged the report did not expressly state that the authoring psychologist used a correction scale or information regarding the Native American population to interpret the results of the test.
Martina now contends that Cahill's testimony failed to show beyond a reasonable doubt that Walter's return to Martina would likely result in serious emotional or physical harm, She argues the testimony failed to support the "beyond a reasonable doubt" standard in part because of Cahill's reliance on the December 2004 report.
After considering Martina's contentions and reviewing the record, including Cahill's testimony, we conclude the State proved beyond a reasonable doubt that returning Walter to Martina is "likely to result in serious emotional or physical damage" to Walter. Setting aside Martina's history of drug use, we note a likelihood that Martina's mental health issues could cause harm to Walter.
3. THE STATE PROVED THAT TERMINATING MARTINA'S PARENTAL RIGHTS WAS IN WALTER'S BEST INTERESTS
Martina contends that the State's expert testimony was "insufficient to establish, beyond a reasonable doubt, that termination was in [Walter's] best interests."
As explained above, the best interests element is imposed by state law and generally requires proof by clear and convincing evidence. We decline to extend the heightened standard in § 43-1505(6) to all elements of an ICWA parental rights termination case. Just as we did not apply the heightened standard to the active efforts element, we will not apply the heightened, standard to the state law elements under § 43-292 for terminating parental rights. As noted by the Utah Court of Appeals, "ICWA does not preempt any state law grounds for termination of parental rights or impose a single burden of proof on all supporting findings in termination proceedings in which it applies."
When a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the child's best interests require termination of parental rights.
In addition to the missed urinalysis screenings, the record shows that Martina has not acquired the responsibility needed to parent a child. For instance, in October 2004—2 weeks before Martina delivered her next child—she was asked to leave the shelter where she wag staying because she was intoxicated. In June 2006, she called the case manager seeking advice on how to keep custody of any other children she might have. She told the case manager she was living with a man she had previously lived with and wondered if that would affect her ability to keep custody of any other children. This man was about 20 years old and a former ward of the State. Martina had reported in 2004 that she asked him to leave her home because he admitted to sexually abusing another child when he was 12 years old. Viewed through the lens of life's experiences, these two examples illustrate that Martina does not appreciate the responsibilities of parenting.
The record also shows that the director of ICWA affairs for the Yankton Sioux Tribe attended a foster care review board meeting in October 2004. A report created after the meeting stated, in part: "[The director] indicated that permanency for Walter is of utmost importance. He indicated that the tribe would not object to termination of [Martina's] rights, as [the tribe] would like Walter to be adopted." Similarly, Cahill opined that based on Martina's diagnoses and her history, she cannot provide permanency for Walter.
When the court first terminated Martina's parental rights in September 2005, Walter had spent his entire life, 2½ years, in foster care. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.
4. WE Do NOT REACH THE MERITS OP MARTINA'S SECOND ASSIGNMENT OF ERROR
As her second assignment of error, Martina argues that the court, erred at the adjudication stage because she claims ICWA requires a finding of active efforts at adjudication and the court did not make such a finding. We have stated that a proceeding before a juvenile court is a "special proceeding" for appellate purposes.
Martina, however, argues "[t]his issue cannot be dismissed as a collateral attack on a final order from which [she] failed to perfect an appeal."
We conclude that in termination of parental rights cases, the standard of proof for the "active efforts" element in § 43-1505(4) is proof by clear and convincing evidence. We determine that the State proved by clear and convincing evidence that the Department made active efforts. We also conclude that the State met its burden in proving the "serious emotional or physical damage" element and that terminating Martina's parental rights is in Walter's best interests. Because Martina failed to appeal the adjudication order, we do not reach the merits of her second assignment of error.