State v. Cheyenne M. (In re Ricardo T.)

999 N.W.2d 562

315 Neb. 718

IN RE Interest of RICARDO T. et al., children under 18 years of age.

State of Nebraska, appellant,

v.Cheyenne M. and Julian T., appellees,andOglala Sioux Tribe, intervenor-appellee.

Nos. S-23-234, S-23-236,

S-23-237, S-23-238.

Supreme Court of Nebraska.

Filed January 12, 2024

Syllabus by the Court

₇₁₈1. Indian Child Welfare Act: Federal Acts. The Indian Child Welfare Act is intended to protect the best interests of Indian children and promote the stability and security of Indian tribes and families by establishing minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.

2. Indian Child Welfare Act: Federal Acts: Legislature: Public Policy. In adopting the Nebraska Indian Child Welfare Act, the Legislature declared that it was the policy of this state to cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced.

3. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision.

4. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

5. Jurisdiction: Final Orders: Appeal and Error. When an appellate court is without jurisdiction to act, the appeal must be dismissed. For an appellate court to acquire jurisdiction of an appeal, there must be a final order or judgment entered by the court from which the appeal is taken; ₇₁₉conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.

6. Judgments: Appeal and Error. Conditional orders are not appealable.

7. Judgments: Jurisdiction: Appeal and Error. Orders that specify that a trial court will or will not exercise its jurisdiction based on future action or inaction by a party are conditional and therefore not appealable.

8. Judgments. If an order looks to the future in an attempt to judge the unknown, it is a conditional order.

Petitions for further review from the Court of Appeals, Pirtle, Chief Judge, and Moore and Welch, Judges, on appeal thereto from the County Court for Madison County, Ross A. Stoffer, Judge. Judgment of Court of Appeals affirmed.

Nathaniel T. Eckstrom, Deputy Madison County Attorney, for appellant.

Nathan J. Stratton, of Stratton, DeLay, Doele, Carlson & Buettner, P.C., L.L.O., for appellee Julian T.

Melissa A. Wentling, Adams County Public Defender, for appellee Cheyenne M.

Dana L. Hanna, of Hanna Law Office, P.C., for intervenor-appellee.

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

Funke, J.

I. INTRODUCTION

This consolidated appeal presents the question of whether a juvenile court’s order granting a request to transfer cases to the jurisdiction of a tribal court under the federal Indian Child Welfare Act (ICWA)¹ and the Nebraska Indian Child Welfare Act (NICWA)² was a final, appealable order. Given ₇₂₀the order’s language and the statutory framework governing the transfer to tribal courts, we find that the order was conditional and not appealable. We therefore affirm the Nebraska Court of Appeals’ summary dismissal of the State’s appeals of the order for lack of jurisdiction.

II. BACKGROUND

1. Legal Background

Congress enacted ICWA in 1978 with the stated intent of

protect[ing] the best interests of Indian children and … promot[ing] the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.³

NICWA was enacted by the Nebraska Legislature in 1985 to clarify state policies and procedures regarding Nebraska’s implementation of ICWA.⁴ With NICWA, the Legislature declared that it is the policy of this state to "cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of [ICWA] are enforced."⁵

As relevant to this consolidated appeal, ICWA and NICWA include provisions regarding the transfer of cases from a state juvenile court to a tribal court. As set forth in § 43-1504(2), the specific provision at issue prescribes as follows:

In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of ₇₂₁the Indian child’s tribe, thecourt, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the primary tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe, except that such transfer shall be subject to declination by the tribal court of the primary tribe.⁶

The comparable provision of federal law, 25 U.S.C. § 1911(b) of ICWA, includes nearly identical language.⁷ Because NICWA implements ICWA in Nebraska and the relevant language of both acts is largely the same, for the sake of consistency, we generally refer to the applicable provisions of NICWA in our analysis, regardless of the parties’ usage.

2. Factual and Procedural Background

Beginning in 2018 and continuing into 2022, the State initiated proceedings in the county court for Madison County, Nebraska, sitting as a juvenile court, under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) to adjudicate five children, who are all siblings, in four related cases. Those children are Ricardo T., Jovanni T., Mirella T., Leticia T., and Reina T. Each child is an "Indian child" as defined by NICWA.⁸ As each case was a child custody proceeding involving the potential termination of parental rights, the Oglala Sioux Tribe (the Tribe) moved to intervene in each case under the authority of ICWA.⁹ The Tribe’s motions were granted by the juvenile court.

₇₂₂In 2022, the State filed supplemental petitions to terminate the parental rights of Cheyenne M. and Julian T., the natural parents of all five children. Thereafter, in January 2023, after the juvenile court had heard multiple days of trial on the supplemental petitions to terminate parental rights, the Tribe moved to transfer each case to the jurisdiction of the Oglala Sioux Tribe Children’s Court (tribal court) in Pine Ridge, South Dakota, under 25 U.S.C. § 1911(b) of ICWA, and by implication, § 43-1504(2) of NICWA. The children’s parents then jointly filed a motion to transfer jurisdiction of each case to the tribal court as well. The State objected to the motion to transfer, arguing that because the motion was not filed until several days after the termination trial began, there was good cause to deny it.

The parties discussed the motion to transfer at a hearing on January 10, 2023. The State first pointed to 25 C.F.R. § 23.116 (2022), a federal regulation promulgated by the Bureau of Indian Affairs to implement ICWA. That regulation, 25 C.F.R. § 23.116, provides: "Upon receipt of a transfer petition, the State court must ensure that the Tribal court is promptly notified in writing of the transfer petition. This notification may request a timely response regarding whether the Tribal court wishes to decline the transfer."

The State expressed to the juvenile court that because the Tribe and the children’s parents had previously petitioned for the transfer to the tribal court, this federal regulation required the juvenile court to contact the tribal court to inquire if the tribal court would accept the transfer. The Tribe did not disagree with the State’s description of 25 C.F.R. § 23.116 but said that the tribal court had a standing order not to decide whether to accept a transfer until after the juvenile court entered a conditional order granting the motion to transfer. According to the Tribe, if the juvenile court were to grant the motion, it would be dependent on the timely acceptance by the tribal court. Thereafter, the State agreed that if the ₇₂₃juvenile court transferred the matter, the tribal court was entitled to decide whether to accept or decline the transfer.

On February 20, 2023, the juvenile court entered an order granting the motion to transfer the cases to the tribal court after finding that the "advanced stage" of a case no longer qualified as good cause to deny a transfer under the ICWA guidelines published by the Bureau of Indian Affairs.¹⁰ The order concluded by stating:

[T]he Motions to Transfer are granted. The Court further requests that the Tribe file a written indication with the Court in regard to its acceptance or declination of the transfer. A status hearing is also set for March 28, 2023 at 9:30 a.m. unless the Tribe’s acceptance of the transfer has been filed prior to that date and time.

The State then filed notices in each case of its intent to appeal the order transferring jurisdiction to the tribal court. At the time the State filed notices of its intent to appeal, neither the Tribe nor the tribal court had filed a written indication with the juvenile court regarding its acceptance or declination of the transfer.

The Tribe and the children’s parents moved for summary dismissal of the State’s appeal for lack of subject matter jurisdiction, arguing that the transfer order was not final and appealable, but, rather, was a conditional order that granted the motion to transfer jurisdiction to the tribal court, subject to the juvenile court’s receipt of an order from the tribal court accepting jurisdiction. The State objected to the motions for summary dismissal, arguing that the juvenile court’s order was final and appealable.

The Court of Appeals...