State v. Angaline L. (In re Interest of Mercedes L.)

26 Neb.App. 737

923 N.W.2d 751

IN RE INTEREST OF MERCEDES L. et al., Children Under 18 Years of Age.

State of Nebraska, Appellee,

v.Angaline L., Appellant,andOglala Sioux Tribe and Winnebago Tribe of Nebraska, Intervenors-Appellees.

Nos. A-17-1281 through A-17-1286.

Court of Appeals of Nebraska.

Filed January 15, 2019

I. INTRODUCTION

Angaline L. appeals the orders of the county court for Platte County which approved a change in the permanency objective for Angaline and each of her six minor children from reunification to guardianship. Upon our review, we find the court did not err in ordering a change in the permanency objective. For the reasons that follow, we affirm, but we hold that the court’s orders of December 12, 2017, appointing a guardian for each of the children are void for lack of subject matter jurisdiction and vacate those orders.

II. BACKGROUND

In each of these six related cases, consolidated on appeal, Angaline, the mother of the six juveniles involved, appeals from the November 13, 2017, orders of the county court that changed the permanency objective to guardianship. The orders adopted and approved the case plan/court report dated June 13, 2017.

The initial juvenile petitions were filed in July 2015. The petitions alleged that Mercedes L., born in 2000; Makario L., born in 2001; and Geovanny L., born in 2004, had been removed from Angaline’s care on three prior occasions and that Ricardo H., born in 2007; Xavier H., born in 2009; and Savannah L., born in 2011, had been removed from Angaline’s care on two prior occasions. The petitions further alleged:

That the reason[s] the children were not safe in Angaline’s care in 2012 and 2014 were that Angaline was suspected to be abusing methamphetamine as well as prescription drugs; that Angaline was not taking proper care of her children, especially Xavier and Geovanny, who have special medical needs; that Angaline was not ensuring the children were receiving a proper education by attending school on a regular basis and that Angaline allowed her mother ... to provide care for her children while under the influence of methamphetamine.

The petitions also alleged that Angaline’s children "had been in the Oglala Sioux Tribal Court’s jurisdiction and custody and that due to Angaline’s lack of cooperation with services the Tribal Court ... terminated their involvement with Angaline and her children."

The children remained in Angaline’s care until August 2015, when she was sentenced to a term of incarceration on charges of child abuse and neglect. The children were placed in two separate foster homes.

Amended petitions were filed on November 23, 2015, to add allegations regarding Angaline’s incarceration. A "Notification of Termination of Tribal Jurisdiction" was filed for each child on December 7, and they included the tribal court order vacating jurisdiction filed on June 18. The tribal court order stated that, due to Angaline’s lack of compliance, the Oglala Sioux Tribe vacated jurisdiction over the minor children and returned jurisdiction to "the State where they can better assist the family."

At a hearing on December 9, 2015, the guardian ad litem presented evidence from a designated federal Indian Child Welfare Act (ICWA) specialist, who is a member of the Oglala Sioux Tribe. He was qualified as an expert witness regarding ICWA and testified without objection from Angaline. The ICWA specialist stated, based on his knowledge of the cases and Angaline’s current situation, "I believe at this time that the children would be at risk of harm and further neglect" if returned to Angaline’s home. He testified that sibling visits and visits with Angaline at the prison, if allowed by the prison, would be considered active efforts. He also testified that a search for suitable families available for placement had been made based upon the information Angaline had provided to the tribe.

The court found, based upon the ICWA specialist’s testimony, that there had been a diligent search for placement with relatives and that the State had shown by clear and convincing evidence there was good cause to deviate from the placement preference. The court found that active and ongoing efforts for reunification included case management, family support services, foster and kinship placement, a foster care specialist, and clothing vouchers. The court "specifically" found that the Department of Health and Human Services (DHHS) "is making active efforts."

The children were adjudicated as children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015). The journal entry and orders of December 9, 2015, reflect an agreement that, should Angaline plead no contest to the amended petitions, the State and the guardian ad litem would not file for termination of parental rights on the basis of out-of-home placement within 10 months of Angaline’s sentencing date, as long as Angaline remained eligible for parole on October 5, 2016.

The Winnebago Tribe of Nebraska filed a notice of intervention on December 17, 2015, with regard to Makario. The tribe remained a party to this case, but expressed no desire to transfer jurisdiction. The tribe requested updates from DHHS, and court reports were sent to its office.

At a hearing on February 22, 2016, the court received a case plan/court report prepared on January 25 as exhibit 1. Exhibit 1 contains a recommended permanency objective of reunification. The court adopted the case plan/court report and ordered the parties to comply with the case plan.

At a hearing on July 18, 2016, the court received a case plan/court report prepared on July 11 as exhibit 2. Exhibit 2 contains a recommended permanency objective of reunification, and the plan was adopted. The court specifically found that DHHS "is making active efforts to reach the permanency objective previously ordered by the Court." Active and reasonable efforts included case management, foster and kinship placement, foster care support, family support services, supervised visitation, and therapeutic services.

At a hearing on January 9, 2017, the court received a case plan/court report prepared on December 29, 2016, as exhibit 3. Exhibit 3 contains a recommended permanency objective of reunification with a concurrent plan for guardianship. The court accepted and approved exhibit 3 and specifically found that DHHS "is making active efforts to reach the permanency objective previously ordered by the Court and all parties are ordered to comply with the case plan/court report."

At a hearing on April 10, 2017, the court found that "[a]ctive efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family; those efforts, at this time, have been unsuccessful." Active efforts included home visits, family assessments, case management, family support services, parenting time, therapy, and Medicaid. The guardian ad litem stated that she had seen improvement in Angaline’s attitude. She offered an opinion that "a guardianship would be good as long as there’s continued relationship with the children, but the kids are old enough that they want to be around their mom and I think that’s important."

On June 22, 2017, the Oglala Sioux Tribe filed a motion to transfer jurisdiction and dismiss and a motion to intervene. The court set a hearing on the motions for July 11. At the hearing on July 11, the attorney representing the tribe requested time to confer with the tribe and determine what it’s position was on the motion to transfer jurisdiction, in light of the evidence that "the children were not in favor of a transfer." The hearing was continued to August 8, at which time the tribe withdrew the motion to transfer jurisdiction.

At the August 8, 2017, hearing, the court received the June 13 case plan/court report as exhibit 4. Exhibit 4 contains a recommended change in the permanency objective from reunification with a concurrent plan for guardianship to a recommendation of guardianship. Angaline objected to the change in the permanency objective. The court ordered placement to continue with DHHS and found that reasonable and active efforts included case management, family team meetings, home visits, Medicaid, family support, drug testing, parenting time, safety planning, referrals to providers for evaluation, and "contact with the tribe." The court found that DHHS has made reasonable efforts toward the permanency goal.

On August 10, 2017, the guardian ad litem filed petitions for appointment of a permanent guardian for each child. The court set a hearing to take up the petitions for appointment and Angaline’s objection to the change in the permanency objective.

Hearings took place on October 24, October 31, and November 8, 2017. An email from a representative of the Oglala Sioux Tribe was offered and received as exhibit 5. The email granted permission for the State to make the affirmation on the record that the tribe supported the State’s plan for guardianship.

Lynda McCullough, a child and family services specialist with DHHS, is the case manager for Angaline and the minor children. She testified that the children have continuously been in the custody of DHHS since April 2015. At the time of the hearing, all of the children resided with the same foster family. Three of the children have been placed with the current foster family since 2015, and the other three have been placed with the current family since 2016. She testified that it is the recommendation of DHHS that the children achieve "permanency of guardianship" with the foster family.

McCullough testified that there have been some problems reported to her with regard to Angaline. On one occasion, Angaline told Ricardo to cancel plans to attend a friend’s birthday party, because she planned to have a birthday party for Ricardo. Angaline "did not produce the party [as] promised," and the foster family reported that he had been "crushed." He was disappointed that he had missed his friend’s birthday party and...