Linda H. v. Tyler R. (In re Micah H.)

301 Neb. 437

918 N.W.2d 834

IN RE ADOPTION OF MICAH H., a Minor Child.

Daniel H. and Linda H., Appellees

v.Tyler R., Appellant.

No. S-18-146.

Supreme Court of Nebraska.

Filed October 26, 2018.

Jennifer D. Joakim, Valparaison, for appellant.

Michael J. Novotny, of Fredericks, Peebles & Morgan, L.L.P., for appellees.

Evelyn N. Babcock and George T. Babcock, of Law Offices of Evelyn N. Babcock, Omaha, for amici curiae Evelyn N. Babcock and George T. Babcock.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

This is an adoption case we first visited in In re Adoption of Micah H .,¹ where we concluded that the county court applied the wrong standard of proof in determining abandonment. We further concluded that the active efforts requirement of the Nebraska Indian Child Welfare Act (NICWA)² applied to cases involving the termination of parental rights over Indian children, even when the parent is not of Native American descent. We remanded the cause to the county court.

On remand, the county court, applying the correct standard of clear and convincing evidence, found that (1) the petitioning grandparents, Linda H. and Daniel H., had made active efforts to provide remedial and rehabilitative programs designed to "unite the parent ... with the Indian child," under § 43-1505(4), and (2) Linda and Daniel presented clear and convincing evidence that Tyler R., the biological father, had abandoned Micah H., the child in question. Tyler appeals. This case presents issues regarding the interpretation of the relevant adoption statutes, as well as NICWA, and whether Tyler abandoned Micah. We affirm in part, vacate the adoption decree, and remand the cause to the county court with directions.

BACKGROUND

Micah is the 10-year-old biological child of Tyler and Allison H. Allison is a member of the Oglala Sioux Tribe. As such, Micah is an "Indian child" pursuant to the federal Indian Child Welfare Act of 1978 (ICWA)³ and NICWA.

For the majority of Micah’s life, he has resided with his legal guardians, Linda and Daniel, who are Allison’s adoptive parents and do not share Allison’s Native American heritage. Linda and Daniel sought to become Micah’s guardians in March 2012, due to Allison’s concerns regarding her ability to maintain sobriety. In April, the Saunders County Court appointed Linda and Daniel as Micah’s guardians.

According to the record, Tyler also struggles with drug and alcohol addiction. He has been incarcerated since February 2012 for an alcohol-related motor vehicle homicide and has a projected release date of August 2019, at the earliest. Prior to his 2012 incarceration, Tyler had numerous encounters with the criminal justice system, many of those drug or alcohol related.

In January 2014, Micah was taken to see a psychologist for an evaluation. The psychologist’s report concluded that "[g]iven obvious stressors (i.e.; [Allison’s] and [Tyler’s] substance abuse, [Tyler’s] incarceration, alternate placement [with Linda and Daniel], and [grandparent] visitations [with Tyler’s mother] ) and Micah’s symptoms of anxiety, including stuttering, nightmares, and general worry, a diagnosis of Adjustment Disorder with Anxiety appears appropriate."

Linda and Daniel filed a petition for adoption and termination of parental rights in Saunders County Court. During the course of the adoption proceedings, Allison voluntarily relinquished all parental rights to, and custody of, Micah, asking that Micah be permitted to be adopted by Linda and Daniel. Tyler objected to Linda and Daniel’s petitioned adoption. Linda and Daniel also served a copy of the complaint on the president of the Oglala Sioux Tribe, as required by § 43-1505(1), and the tribe declined to intervene.

In 2015, the Saunders County Court denied Linda and Daniel’s petition. Linda and Daniel appealed, assigning as error that (1) the county court erred in finding that ICWA applied at the request of Tyler, a non-Indian, and (2) the county court erred in applying a higher burden of proof to the abandonment element under Neb. Rev. Stat. § 43-104(2) (Reissue 2016) by requiring that Linda and Daniel demonstrate abandonment "beyond a reasonable doubt."

On appeal, we determined that the county court erred in applying the " ‘beyond a reasonable doubt’ " standard to the abandonment element and also in finding that Linda and Daniel were not required to show that active efforts had been made, under NICWA, to unite Tyler and Micah.⁴ We noted that the appropriate standard concerning abandonment under § 43-104(2) is "clear and convincing evidence" of abandonment.⁵ Further, we explained that under NICWA, Linda and Daniel were required to show active efforts to unite Tyler and Micah or that attempts to provide active efforts had been made to the extent possible under the circumstances. We remanded the cause to the county court for further proceedings.⁶

On remand, the county court found in favor of Linda and Daniel. Specifically, the county court concluded that Linda and Daniel had demonstrated active efforts to unite Micah with Tyler by contacting the tribe in an attempt to establish services, as well as directing Tyler to the same treatment programs that they had used for Allison. The county court also found that Tyler had abandoned Micah.

Although the county court found there was evidence that Tyler had engaged in some treatment programs, it noted that Tyler continued to use drugs and alcohol, leading to his conviction for motor vehicle homicide. The county court also found there was no evidence that Tyler even attempted to acquaint himself with the history, cultural norms, and practices of the tribe, or any customs that have bearing on the parent-child relationship.

Linda and Daniel testified that as far as they were aware, prior to his incarceration, Tyler maintained a residence in his mother’s basement and had the means to acquire transportation. Prior to 2011, Linda and Daniel assisted in providing for visitation as well as instruction regarding the appropriate interactions with and care for a toddler. Linda indicated that she had conversations with Tyler concerning scheduling visits and obtaining help with drug and alcohol addiction, and even assisted with the parenting plan provided by the court.

Daniel noted that after Micah began demonstrating inappropriate behaviors, Allison retained the services of an attorney in order to send Tyler a letter expressing her concern and requesting assurances with regard to the monitoring of Tyler’s visitation with Micah. The letter was dated May 16, 2011. Daniel indicated that after Tyler’s receipt of the letter, he discontinued his visitations with Micah. Daniel further indicated that he had supported Tyler’s visitations with Micah until Micah began exhibiting concerning behaviors.

Tyler indicated that since his incarceration, he had obtained a certificate from every level of the "Designated Dad Program." The record indicates that Tyler attended one Alcoholics Anonymous meeting for the stated purposes of "[s]upport[ing] others there." However, Tyler testified that Linda and Daniel never spoke with him about rehabilitation services and that he did not believe that he required any alcohol rehabilitation services. This was despite the fact that Tyler had a lengthy criminal history involving alcohol and drug possession.

Tyler admitted that he had not had any face-to-face contact with Micah since about 2011, or for over a year prior to his incarceration. Despite Tyler’s incarceration, he has continued to send letters to Micah. Tyler has attempted to utilize money he earned during his incarceration to pay the child support he owes. However, due to the minimal earnings, the State rejected Tyler’s request to direct funds to the Department of Health and Human Services. The record demonstrates that Tyler’s mother pays the child support and that Tyler assists when he is able. Despite claims that Linda and Daniel have prevented Micah from visiting Tyler, the court below noted that no formal request had been made by Tyler to have Micah visit him in prison.

During the course of the adoption proceedings, and while discussing preliminary matters, the court observed that it was aware that "these kinds of cases" have two procedural stages. But the court indicated that the guardian ad litem had been informed that he may be called to testify at the completion of the proceedings regarding abandonment and Micah’s best interests, rather than the usual procedure of holding a hearing on the matter at a later date. In fact, the guardian ad litem did testify and was cross-examined regarding Micah’s best interests at that same hearing.

At the conclusion of the trial, the county court judge noted that he was "not turning this case over to some other judge to read the record and come to a conclusion. I am the one that’s heard all the live evidence." The judge further stated that "[i]t would be unfair to a colleague and really unfair to all of the litigants because ... those observations are important in the context of the whole case ." (Emphasis supplied.) The county court then found that Tyler had abandoned Micah and terminated Tyler’s parental rights, further finding that adoption by Linda and Daniel was in Micah’s best interests. Accordingly, a decree granting the adoption was entered.

Tyler appeals.

ASSIGNMENTS OF ERROR

Tyler assigns that the trial court erred in (1) finding that Linda and Daniel had used active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family or to unite the parent or Indian custodian with the Indian child within the meaning of NICWA, (2) finding by clear and convincing evidence that Tyler abandoned Micah under § 43-104(2), (3) finding that the adoption was in the best interests of the child, (4) granting the decree without notice and an opportunity to be heard at a further hearing on the best interests of Micah after terminating Tyler’s parental rights,...