In re Adoption of Kenten H.

Page 548

725 N.W.2d 548

272 Neb. 846

In re ADOPTION OF KENTEN H Meaghan H., appellant, v. Mark J. and Sheryl J., appellees.

No. S-06-204.

Supreme Court of Nebraska.

January 5, 2007.

COPYRIGHT MATERIAL OMITTED

Patricia A. Knapp, Lincoln, for appellant.

Susan K. Sapp and Stanton N. Beeder, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellees.

Jon Bruning, Attorney General, and B. Gail Steen, Special Assistant Attorney General, for amicus curiae Nebraska Department of Health and Human Services.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Meaghan H., the biological mother of Kenten H., petitioned the county court for Lancaster County to vacate the adoption of Kenten pursuant to the Nebraska Indian Child Welfare Act (NICWA), Neb.Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2004). The matter was assigned to the separate juvenile court of Lancaster County, which had entered the decree of adoption, and that court granted a motion to dismiss for failure to state a claim filed by the adoptive parents, Mark J. and Sheryl J. Meaghan filed this timely appeal.

BACKGROUND

In considering the motion to dismiss, the separate juvenile court took judicial notice of documents filed in earlier juvenile court proceedings and the adoption proceeding, which proceedings disclose the following facts: Kenten was born prematurely on August 16, 2002. On November 14, the State of Nebraska filed a petition in the separate juvenile court seeking to adjudicate Kenten and three of his siblings as minor children within the meaning of Neb.Rev.Stat. § 43-247(3) (Cum.Supp. 2002) due to the fault or habits of their parents, Meaghan and Kent H. At that time, Kenten was still hospitalized in Lincoln, Nebraska. On the same date, Kenten was placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS). On January 8, 2003, he was released from the hospital and placed in foster care.

An adjudication hearing was scheduled, and on March 19, 2003, a deputy county attorney gave notice of the hearing to the Iowa Tribe of Kansas and Nebraska (the Iowa Tribe). In an affidavit accompanying the notice, the deputy county attorney affirmatively stated that Kenten and his siblings "are a member [sic] of or may be eligible for membership" in the Iowa Tribe. The notice was given pursuant to NICWA and the federal Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2000). A petition to terminate the parental rights of both parents as to Kenten was filed on April 8. Notice of a hearing on the adjudication and termination was given to the Iowa Tribe. The notice included a statement that Kenten was "a member of or may be eligible for membership in" the Iowa Tribe.

On June 24, 2003, the court determined that Kenten was a child as defined by § 43-247(3)(a) due to the fault or habits of Kent. The adjudication as to Meaghan was continued. On August 20, the court found that Kenten was a child as defined by § 43-247(3)(a) by reason of the fault or habits of Meaghan. On the same date, the court granted the State's motion for leave to withdraw the petition to terminate the parental rights of Kent and Meaghan as to Kenten.

Meanwhile, on August 19, 2003, the adoptive parents, who at that time were the foster parents, filed a petition seeking to adopt Kenten. The petition was filed in the county court for Lancaster County and transferred to the separate juvenile court, which had concurrent jurisdiction pursuant to Neb.Rev.Stat. § 43-102 (Reissue 2004) by virtue of its prior adjudication. Attached to the petition was an "Affidavit of Identification of Father" in which Kent was identified as the biological father and his tribal affiliation was listed as "UTE." In the petition, the adoptive parents alleged that the county attorney's office had notified "the Ute tribe" of the pending adoption, but never received a response. The adoptive parents further alleged that "neither Meaghan [nor] Kent . . . is a registered member of any Indian tribe and the minor child [Kenten] is not an `Indian child' as defined in Neb.Rev. Stat. § 43-1503(4)." Also, attached to the petition was a "Relinquishment of Child by Parent" purportedly signed by Meaghan on June 20, 2003, stating that she voluntarily relinquished to DHHS "all right to and custody of and power and control over" Kenten so that DHHS became his legal guardian. The relinquishment further provided that Meaghan authorized DHHS to place Kenten in a suitable family home and "consent to and procure" his adoption. An identical relinquishment signed by Kent was also attached to the petition.

In its decree of adoption entered on September 30, 2003, the separate juvenile court specifically found that all of the allegations in the petition were true. Eight days after the entry of the decree, the Iowa Tribe filed an "Entry of Appearance & Notice of Intervention to Monitor." This document recites that Kenten is enrolled in the tribe and assigned an enrollment number. This is the only filing by any tribe appearing in the record.

On August 24, 2005, Meaghan filed a petition to vacate the adoption pursuant to NICWA. The petition was filed in the county court for Lancaster County and assigned to the separate juvenile court. In the petition, Meaghan alleged that she was Kenten's biological mother and an enrolled member of the Iowa Tribe, that Kenten was eligible for enrollment through her family and was enrolled as a member of the tribe on June 25, 2003, and that he was therefore an "Indian child" for purposes of NICWA and ICWA. Meaghan further alleged that she was hospitalized and "under the influence of morphine and other mind-altering medications" when she signed the relinquishment on June 20 and that while she was in this condition, a DHHS caseworker told her that her only hope of keeping any of her children was to voluntarily relinquish her rights to Kenten. Meaghan alleged that the relinquishment was obtained through "fraud, threats, coercion, and duress" and in violation of certain DHHS regulations and provisions of NICWA. Meaghan attached to her petition a "Withdrawal of Parental Consent to Adoption" purportedly signed by her on August 24, 2005, stating that she was withdrawing her consent to Kenten's adoption "on the grounds that my consent was obtained through fraud and duress and in violation of the provisions of the federal and Nebraska Indian Child Welfare Acts."

After initially filing an answer to the petition, the adoptive parents filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b) (rev.2003) on October 20, 2005. In this motion, the adoptive parents alleged that the petition to vacate was not timely pursued, that there was a defect of the parties because DHHS was not joined, that Meaghan had waived and is estopped from asserting parental rights to Kenten, and that Meaghan had made no claims of fraud or duress until 26 months after executing the relinquishment. No evidence was received at a hearing on the motion, but at the request of the adoptive parents and without objection by Meaghan, the court took judicial notice of its file in the earlier proceedings. On January 18, 2006, the juvenile court entered an order dismissing Meaghan's petition to vacate, concluding that the showing that Kenten was an "Indian child" to whom NICWA applied came too late and that thus, Meaghan was not entitled to invoke NICWA's provisions as a basis for vacating the adoption. The court acknowledged that notice as required by NICWA had been given to the Iowa Tribe during the juvenile proceedings, but found that this was only because there was an indication that the case may involve an Indian child under NICWA. The court concluded that notwithstanding the notice, until it had knowledge from the tribe that Kenten was a child subject to NICWA or other evidence that Kenten was enrolled as a member of a tribe, Kenten was not an "Indian child" subject to NICWA. In this respect, the juvenile court specifically determined that at the time of the initial juvenile abuse and neglect proceeding and later in the adoption proceeding, it had "no knowledge or evidence" that the case involved NICWA. The court concluded that the Iowa Tribe's appearance and notice was filed too late in the adoption proceeding to trigger the provisions of NICWA, and it therefore granted the motion to dismiss.

Meaghan filed this timely appeal, which we moved to our docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995). Kent is not a party to these proceedings.

ASSIGNMENT OF ERROR

Meaghan assigns that the juvenile court erred in dismissing her petition to vacate the adoption.

STANDARD OF REVIEW

The trial court's grant of a motion to dismiss for failure to state a claim under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev.2003) is reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Moglia v. McNeil Co., 270 Neb. 241, 700 N.W.2d 608 (2005).

When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Young v. Midwest Fam. Mut. Ins. Co., 272 Neb. 385, 722 N.W.2d 13 (2006); Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006).

ANALYSIS

PROCEDURAL MATTERS

The motion to dismiss does not specify which of the defenses enumerated in rule 12(b) are asserted. From the narrative content of the motion, we construe it as asserting the defenses of failure to state a claim upon which relief can be granted, pursuant to rule 12(b)(6), and failure to join a necessary party, pursuant to rule 12(b)(7). Rule 12(b) provides that a motion asserting any of the enumerated defenses "shall be made before pleading if further...