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Nebraska A dvance Sheets
292 Nebraska R eports
IN RE INTEREST OF TAVIAN B.
Cite as 292 Neb. 804
In re I nterest of Tavian B., a child
under 18 years of age.
State of Nebraska, appellee, v. Joseph B.,
appellant, and Oglala Sioux Tribe,
intervenor-appellee.
___ N.W.2d ___
Filed February 19, 2016. No. S-15-129.
1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial
of a transfer to tribal court under the Indian Child Welfare Act is
reviewed for an abuse of discretion.
2. Constitutional Law: Due Process: Appeal and Error. Procedural due
process is a question of law, which is reviewed independently of the
lower court’s ruling.
3. Judges: Words and Phrases: Appeal and Error. A judicial abuse of
discretion exists when a judge, within the effective limits of authorized
judicial power, elects to act or refrain from action, which results in a
decision which is untenable and unfairly deprives a litigant of a substan-
tial right or a just result in matters submitted for disposition.
4. Indian Child Welfare Act: Jurisdiction: Good Cause: Proof. At a
hearing on a motion to transfer a proceeding to tribal court, the party
opposing the transfer has the burden of establishing that good cause not
to transfer exists.
5. Indian Child Welfare Act: Intent. The Indian Child Welfare Act
is intended to 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 adoptive homes or institutions which will reflect the unique values of
Indian culture.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Reversed and remanded with
directions.
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IN RE INTEREST OF TAVIAN B.
Cite as 292 Neb. 804
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Joe Kelly, Lancaster County Attorney, and Lory Pasold for
appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Wright, J.
NATURE OF CASE
Tavian B. was found to be a child who lacks proper parental
care by reason of the fault or habits of his parents and to be in
a situation dangerous to life or limb or injurious to his health
or morals. See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008).
Approximately 16 months later, the State of Nebraska moved
to terminate the parental rights of both parents. The father then
filed a motion to transfer jurisdiction to the Oglala Sioux Tribal
Juvenile Court (tribal court) pursuant to the federal Indian
Child Welfare Act of 1978 (ICWA). See 25 U.S.C. § 1901 et
seq. (2012).
Prior to the juvenile court’s ruling on the father’s motion to
transfer, the State withdrew its motion to terminate parental
rights. The court found that good cause existed to deny the
request to transfer jurisdiction to the tribal court, because the
proceedings were in “an advanced stage.” The father appeals
the juvenile court’s order overruling his motion to transfer.
For the reasons stated below, we reverse the judgment of the
juvenile court and remand the cause with directions.
SCOPE OF REVIEW
[1] A denial of a transfer to tribal court under ICWA is
reviewed for an abuse of discretion. In re Interest of Zylena R.
& Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012).
[2] Procedural due process is a question of law, which is
reviewed independently of the lower court’s ruling. See In re
Interest of Landon H., 287 Neb. 105, 841 N.W.2d 369 (2013).
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IN RE INTEREST OF TAVIAN B.
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FACTS
On May 16, 2013, the State filed a petition in the separate
juvenile court of Lancaster County. It alleged that Tavian
was a child who lacked proper parental care by reason of the
faults or habits of his parents, Joseph B. (Appellant) and Tera
B., and that he was in a situation dangerous to life or limb
or injurious to his health or morals. See § 43-247(3)(a). On
July 3, the juvenile court placed Tavian in the custody of the
Department of Health and Human Services. Pursuant to ICWA,
an “Affidavit and Notice” of the proceedings was delivered by
registered mail to the Oglala Sioux Tribe (Tribe) and received
on August 19.
On October 29, 2014, the State moved to terminate the
parental rights of Appellant and Tera. Until that time, the
goal of the proceedings in the juvenile court and the place-
ment with the Department of Health and Human Services
was reunification with the parents. Both parents denied the
allegations in the motion on November 14. The Tribe received
notice of the motion for termination of parental rights on
November 21.
At a December 12, 2014, review hearing, Appellant testified
that he had “just been accepted” and enrolled as a member of
the Tribe, but had not received documentation from the Tribe
verifying his enrollment. Immediately after the hearing, the
Tribe moved to intervene, alleging that Tavian was an Indian
child as defined by ICWA. Appellant orally moved to transfer
the case to tribal court. The Tribe had not moved to transfer
jurisdiction, but the tribal court had filed an order accepting
jurisdiction. The juvenile court overruled Appellant’s motion to
transfer the case, because neither Appellant nor the Tribe had
provided documentation verifying tribal enrollment or other
evidence showing that ICWA applied to the case.
On December 16, 2014, Appellant filed a subsequent motion
to transfer jurisdiction to the tribal court. At a hearing on
January 6, 2015, certificates of tribal enrollment for Appellant
and Tavian were received by the juvenile court. After the court
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IN RE INTEREST OF TAVIAN B.
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found that the provisions of ICWA applied to the case, the
State requested and was given leave to withdraw its motion to
terminate parental rights. The matter was continued for further
hearing until 2 days later.
On January 7, 2015, the State filed an objection to the trans-
fer, stating:
COMES NOW, [a] Deputy County Attorney for
Lancaster County, Nebraska, and objects to the transfer of
the proceedings in this case to the [tribal court] because
good cause exists to deny such transfer pursuant to Neb.
Rev. Stat. [§] 43-1504(2).
The State further requests the Court [set] this matter
for hearing to determine whether good cause exists.
Relying on In re Interest of Zylena R. & Adrionna R., 284
Neb. 834, 825 N.W.2d 173 (2012), the juvenile court con-
cluded that good cause existed to overrule the motion because
the proceedings were at an advanced stage. Appellant appeals
the overruling of his motion to transfer jurisdiction to the
tribal court.
ASSIGNMENTS OF ERROR
Appellant assigns, summarized and consolidated, that the
juvenile court erred in finding good cause to deny his motion
to transfer based on the advanced stage of the proceeding.
Appellant also claims that his due process rights were violated
by the court’s making findings based on matters outside the
scope of the record and not providing Appellant an opportunity
to dispute and rebut such evidence.
ANALYSIS
[3] The issue is whether the juvenile court abused its discre-
tion in denying Appellant’s motion to transfer the proceeding
to tribal court. A judicial abuse of discretion exists when a
judge, within the effective limits of authorized judicial power,
elects to act or refrain from action, which results in a deci-
sion which is untenable and unfairly deprives a litigant of
a substantial right or a just result in matters submitted for
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IN RE INTEREST OF TAVIAN B.
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disposition. See In re Interest of L.V., 240 Neb. 404, 482
N.W.2d 250 (1992).
We apply ICWA to the case at bar. Neb. Rev. Stat.
§ 43-1504(2) (Reissue 2008) governs motions to transfer juris-
diction to tribal courts under ICWA. At the time this case com-
menced, § 43-1504 provided:
(2) 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 reserva-
tion of the Indian child’s tribe, the court, in the absence of
good cause to the contrary, shall transfer such proceeding
to the jurisdiction of the 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 such tribe.
(Emphasis supplied.)
[4] At a hearing on a motion to transfer a proceeding to
tribal court, the party opposing the transfer has the burden of
establishing that good cause not to transfer exists. In re Interest
of Zylena R. & Adrionna R., supra. In In re Interest of Zylena
R. & Adrionna R., we held that a proceeding for termination
of parental rights should be regarded as a separate and distinct
proceeding from foster care placement. In the case at bar,
the Tribe accepted jurisdiction and neither parent objected to
the transfer. Thus, absent the State’s showing of good cause,
the juvenile court was required to transfer the proceeding to
tribal court.
The juvenile court found that the State had met its burden
of showing good cause because the proceeding was at an
advanced stage. It reasoned that usually, the date for deter-
mining whether the case was at an advanced stage would be
the date of the filing of a motion to terminate parental rights.
Because the State withdrew its motion for termination of paren-
tal rights on January 6, 2015, the court concluded that May 16,
2013, was the date of the State’s petition for adjudication.
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IN RE INTEREST OF TAVIAN B.
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Using May 16, 2013, as the starting date, it concluded that the
proceeding was at an advanced stage.
The juvenile court expressed concern that an Indian parent
could play “an ICWA trump card at the eleventh hour” to trans-
fer the case to tribal court. But we point out that the State’s
dismissal of its motion to terminate parental rights to avoid a
transfer leaves an Indian child suspended in uncertainty. If the
State sought a termination of parental rights, the party seek-
ing transfer could file a new motion to transfer and the State
could again dismiss the termination proceeding. The juvenile
court’s conclusion that the matter was in an advanced stage
stemmed from the State’s voluntary dismissal of the termina-
tion proceeding.
Good cause to overrule Appellant’s motion to transfer to
tribal court is not defined in ICWA. But the guidelines pub-
lished by the Bureau of Indian Affairs (BIA guidelines) pro-
vide a basis for determining what constitutes good cause to
deny motions to transfer. Previously, this court and other
courts have looked to the BIA guidelines in making such
determinations. See, In re Interest of Zylena R. & Adrionna
R., 284 Neb. 834, 825 N.W.2d 173 (2012); In re Interest of
C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), overruled
on other grounds, In re Interest of Zylena R. & Adrionna R.,
supra. See, also, People ex rel. T.I., 707 N.W.2d 826 (S.D.
2005); In re Adoption of S.W., 41 P.3d 1003 (Okla. Civ. App.
2001); In re A.P., 25 Kan. App. 2d 268, 961 P.2d 706 (1998).
The BIA guidelines provide guidance to state courts and child
welfare agencies implementing ICWA and promote compliance
with ICWA’s stated goals by providing a framework and best
practices for compliance.
At the time of the juvenile court ruling, the BIA guide-
lines provided that good cause not to transfer may exist if
the proceeding was “at an advanced stage” when the petition
to transfer was received and the petitioner failed to “file the
petition promptly” after receiving notice. See Guidelines for
State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
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67,584, 67,591, C.3(b)(i) (Nov. 26, 1979) (not codified). While
this appeal was pending, the BIA guidelines were amended.
They now provide that in determining whether good cause
exists to deny a motion to transfer to tribal court, the state
court may not consider whether the case is at an advanced
stage. See Guidelines for State Courts and Agencies in Indian
Child Custody Proceedings, 80 Fed. Reg. 10,149 and 10,156
(Feb. 25, 2015) (not codified). This amendment compels us
to reconsider our prior adherence to the advanced stage of the
proceedings as a basis for good cause, and on which the juve-
nile court relied in denying the transfer.
The BIA guidelines state that there may be valid rea-
sons for waiting to transfer a proceeding until it reaches an
advanced stage. A tribe might decline to intervene during
foster care placement proceedings when the goal is reuni-
fication with the parents, whereas the tribe would likely be
much more concerned with removal of Indian children in
termination proceedings. The BIA guidelines note that denial
of motions to transfer because a proceeding is at an advanced
stage undermines the presumption of tribal jurisdiction over
proceedings involving Indian children not residing or domi-
ciled on the reservation. We note that ICWA seeks to pro-
tect not only the rights of the Indian child as an Indian, but
also the rights of Indian communities and tribes in retaining
Indian children.
In our consideration of whether good cause existed to over-
rule the motion to transfer, we find the amended BIA guide-
lines persuasive and instructive. The BIA guidelines were
amended during this appeal, and we find them applicable to the
case at bar. We hold that a determination that the proceeding
is at an advanced stage is no longer a valid basis for finding
good cause to deny a motion to transfer jurisdiction to a tribal
court. We conclude that the overruling of the motion to transfer
denied Appellant a just result.
Also before this court is the State’s argument that the best
interests of the child should be a basis for determining good
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cause to deny a transfer to tribal court. It urges us to reconsider
our holding In re Interest of Zylena R. & Adrionna R., supra,
that the best interests of an Indian child may not be considered
when determining whether good cause exists to deny transfer
to a tribal court. It argues that courts in at least nine states
have addressed the issue in favor of best interests, finding it
a relevant consideration in assessing good cause. These courts
have found that where ICWA left the meaning of “good cause”
unexplained, its purpose and legislative history suggest the rel-
evance of the child’s best interests. Id.
The State directs our attention to a recent decision by the
U.S. Supreme Court in Adoptive Couple v. Baby Girl, ___
U.S. ___, 133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013). The
Court stated:
[ICWA] was enacted to help preserve the cultural iden-
tity and heritage of Indian tribes, but under the [South
Carolina] Supreme Court’s reading, [ICWA] would put
certain vulnerable children at a great disadvantage solely
because an ancestor—even a remote one—was an Indian.
As the State Supreme Court read [25 U.S.C.] §§ 1912(d)
and (f), a biological Indian father could abandon his child
in utero and refuse any support for the birth mother—per-
haps contributing to the mother’s decision to put the child
up for adoption—and then could play his ICWA trump
card at the eleventh hour to override the mother’s deci-
sion and the child’s best interests.
Adoptive Couple, 133 S. Ct. at 2565 (emphasis supplied).
We decline the State’s invitation to change our holding in
In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825
N.W.2d 173 (2012), for several reasons. First, we note that
the amended BIA guidelines expressly provide that it is inap-
propriate for state courts to conduct an independent analysis of
the best interests of the Indian child in determining placement
preferences. While this preclusion of a best interests analysis
did not specifically refer to transfers of cases to tribal courts,
the BIA guidelines further state that whenever a parent or tribe
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IN RE INTEREST OF TAVIAN B.
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seeks to transfer the case to tribal court, it is presumptively in
the best interests of the Indian child to transfer the case to the
jurisdiction of the Indian tribe.
Second, we find that the context of the U.S. Supreme
Court’s statement in Adoptive Couple v. Baby Girl, supra, did
not indicate that the Court intended to impose the best interests
standard on motions to transfer.
[5] Third, allowing the state court to determine the best
interests of the Indian child undermines the purpose of ICWA.
ICWA is intended to 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 adoptive homes or insti-
tutions which will reflect the unique values of Indian culture.
In In re Interest of Zylena R. & Adrionna R., 284 Neb. at 852,
825 N.W.2d at 186 (quoting Mississippi Choctaw Indian Band
v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29
(1989)), we stated:
Permitting a state court to deny a motion to transfer
based upon its perception of the best interests of the child
negates the concept of “presumptively tribal jurisdiction”
over Indian children who do not reside on a reserva-
tion and undermines the federal policy established by
ICWA of ensuring that “Indian child welfare determina-
tions are not based on ‘a white, middle-class standard
which, in many cases, forecloses placement with [an]
Indian family.’”
Finally, preclusion of a separate best interests analysis by
state courts does not suggest that the best interests of the
child are ignored altogether. To the contrary, the best interests
of the Indian child are considered regardless of which court
decides the matter. We discussed this point in In re Interest
of Zylena R. & Adrionna R., 284 Neb. at 852, 825 N.W.2d at
186, stating:
The reality is that both a juvenile court applying Nebraska
law and a tribal court proceeding under ICWA must act in
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the best interests of an Indian child over whom they have
jurisdiction. The question before a state court consider-
ing a motion to transfer to tribal court is simply which
tribunal should make that decision. . . . Stated another
way, recognizing best interests as “good cause” for deny-
ing transfer permits state courts to decide that it is not in
the best interests of Indian children to have a tribal court
determine what is in their best interests. By enacting
ICWA, Congress clearly stated otherwise.
For the above reasons, we decline to reconsider our holding
in In re Interest of Zylena R. & Adrionna R., supra, that the
best interests of the Indian child is not a basis for good cause
to deny a transfer of the case to tribal court. Because we have
determined that the State did not show good cause to deny
Appellant’s motion to transfer, we need not review Appellant’s
claim that the juvenile court and the State violated his due
process rights in denying his motion.
Because the State did not meet its burden of establish-
ing good cause to deny transfer to tribal court, the juvenile
court abused its discretion in denying Appellant’s motion
to transfer.
CONCLUSION
For the reasons stated above, we reverse the judgment of
the juvenile court that overruled Appellant’s motion to transfer
the proceeding to tribal court and we remand the cause with
directions to transfer the matter to tribal court.
R eversed and remanded with directions.
Stacy, J., concurring in part, and in part dissenting.
We held in In re Interest of Zylena R. & Adrionna R.1
that the advanced stage of an Indian child custody pro-
ceeding could be good cause to deny a motion to transfer
1
In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173
(2012).
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to tribal court. Our holding was based in part on nonbind-
ing guidelines published in 1979 by the Bureau of Indian
Affairs (BIA).2 Based on this precedent, the State argued
below that the proceeding was at an advanced stage, and the
juvenile court found this was good cause to deny the motion
to transfer.
Today, in reliance on significant changes made in 2015 to
the 1979 version of the guidelines (1979 BIA guidelines),3 we
now conclude courts may no longer rely upon a determina-
tion that a case is at an advanced stage as good cause to deny
a motion to transfer to tribal court. While I concur that the
mere advanced stage of the proceeding cannot constitute good
cause to deny a transfer to tribal court, I write separately to
clarify why we rely on the amended guidelines (2015 BIA
guidelines) and to set out what I think is the proper standard
of review under the circumstances. And because I respect-
fully disagree with the majority on the appropriate disposi-
tion of this case, I write separately to explain why I think the
proper disposition would be to vacate the order and remand
the cause for further proceedings applying the new law we
announce today.
ROLE OF BIA’S GUIDELINES
The majority finds the 2015 BIA guidelines are “persuasive
and instructive” on what constitutes good cause, and, on the
facts of this case, I agree. But because the BIA’s guidelines are
nonbinding4 and do not have the force of federal regulations,
it is appropriate to explain why we find the guidelines instruc-
tive, and clarify why we are, in this case, relying on the 2105
BIA guidelines to change established law.
2
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.
Reg. 67,584 to 67,595 (Nov. 26, 1979) (not codified).
3
Guidelines for State Courts and Agencies in Indian Child Custody
Proceedings, 80 Fed. Reg. 10,146 to 10,159 (Feb. 25, 2015) (not codified).
4
See, e.g., In re Interest of Zylena R. & Adrionna R., supra note 1.
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As the majority recognizes, the BIA’s guidelines are designed
to promote compliance with the stated goals of the federal
Indian Child Welfare Act of 1978 (ICWA)5 and are intended
to provide a framework of best practices for state agencies and
courts.6 But the advisory guidelines are simply the Department
of the Interior’s interpretation of certain provisions of ICWA.7
In other words, the guidelines are interpretive rather than legis-
lative, and we are under no obligation to follow the guidelines
if we conclude they are not in accord with the language or
intent of ICWA on a particular point.8
The guidelines were first published in 1979 and were not
amended until 2015. The 2015 BIA guidelines, which became
effective February 25, 2015, attempt to respond to national
developments in ICWA jurisprudence.9 While the 2015 BIA
guidelines are instructive, it is important to emphasize that
this court does not change its jurisprudence simply because an
executive agency has made amendments to nonbinding guide-
lines. Rather, this court should determine whether to follow the
2015 BIA guidelines on a particular issue only after carefully
considering them and judicially determining they are in accord
with both ICWA and the Nebraska Indian Child Welfare Act
(NICWA)10 on that issue.
On the issue of the advanced stage of the proceedings, I
note there is no language in ICWA or NICWA which expressly
or impliedly limits the timeframe for making a motion to
transfer to a tribal court. And it is significant that with the
enactment of 2015 Neb. Laws, L.B. 566, the Legislature
5
See 25 U.S.C. § 1901 et seq. (2012).
6
See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,146-147, summary.
7
See 1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,584, introduction.
8
Id. (noting states “are free to act contrary to what the Department [of the
Interior] has said if they are convinced that the Department’s guidelines
are not required by the statute itself”).
9
See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,146, summary.
10
Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008 & Supp. 2015).
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amended NICWA in several respects, one of which was to
expressly recognize that Indian tribes have a “continuing
and compelling” governmental interest in an Indian child.11
Particularly given the Legislature’s strong language, I think
it is apparent that denying a transfer merely because the pro-
ceedings are at an advanced stage when the motion is made
would frustrate the purpose underlying ICWA and NICWA,
and would undermine the presumption of tribal jurisdiction
inherent in ICWA.12 But I leave for another day the question
of whether the advanced stage of proceedings, if coupled with
other compelling circumstances properly considered under
ICWA and NICWA, can constitute good cause for denying
a transfer.
Because the 2015 BIA guidelines’ interpretation is more
consistent with the language and intent of ICWA and NICWA
on the advanced stage issue than was our precedent to the
contrary, I agree that the mere advanced stage of the proceed-
ing cannot provide good cause to deny a motion to transfer to
tribal court. And because the advanced stage of the proceeding
was the sole basis for the juvenile court’s denial of the trans-
fer to tribal court, I agree the juvenile court’s decision cannot
be upheld.
STANDARD OF REVIEW AND
APPROPRIATE DISPOSITION
At the time the motion to transfer was tried and decided,
settled Nebraska law recognized the advanced stage of the
proceeding as a ground for a finding of good cause to deny
transfer.13 Nevertheless, the majority finds the juvenile court
abused its discretion by finding the proceedings were at an
advanced stage and there was good cause to deny the transfer.
In essence, the majority finds the juvenile court abused its
11
See § 43-1502 (Supp. 2015).
12
See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,149.
13
See In re Interest of Zylena R. & Adrionna R., supra note 1.
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discretion by failing to anticipate we would make a change in
the substantive law. I think this analysis is imprecise and unfair
to the trial court.
I have great difficulty with the conclusion that the juvenile
court abused its discretion by applying settled law to the mat-
ter before it. Because we have resolved this appeal based on
principles of statutory interpretation, rather than by an analysis
of the court’s factual findings, I respectfully suggest the more
appropriate standard of review would be that which we apply
when reviewing questions of law. When reviewing questions
of law, an appellate court has an obligation to resolve the
questions independently of the conclusion reached by the trial
court.14 We have applied this standard of review quite recently
in a case where we were called upon to consider the mean-
ing of the phrase “‘for good cause shown,’” a phrase which
appeared in a statute but was undefined by the Legislature.15
There, we determined under the circumstances that our first
task was to independently determine the meaning of “good
cause shown” and, after we defined the term in light of the
entire statutory scheme, we then reviewed the trial court’s fac-
tual findings for clear error.16
Here, were we to use the standard of review we typically
apply when reviewing questions of law, I think the disposition
of this case would be quite different. Rather than reversing the
juvenile court’s order for an abuse of discretion and remand-
ing the cause with directions to grant the transfer, we instead
would vacate the juvenile court’s order denying the transfer
and remand the cause for further proceedings under the new
rule announced today.
Vacating and remanding for further proceedings would give
the parties, and the trial court, the opportunity to apply the law
14
Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb. 513, 867 N.W.2d 553
(2015).
15
Id. at 518, 867 N.W.2d at 557.
16
Pettit, supra note 14.
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we have announced today to the specific facts of this case. I
think simply remanding the cause with directions to grant the
motion to transfer after announcing a significant substantive
change in the law unfairly limits the proceedings on an issue of
critical importance to the parties.
ISSUES ON REMAND: QUANTUM OF
PROOF, GOOD CAUSE, AND
BEST INTERESTS
Because I think the proper disposition would be to vacate,
and remand for further proceedings, I take this opportunity to
address several aspects of our ICWA/NICWA jurisprudence
likely to arise on remand.17
Quantum of Proof
We have been clear that the party opposing a motion to
transfer has the burden of proving good cause not to transfer,18
but we have never specified the quantum of proof which
must be met. Adopting a quantum of proof would provide a
clear and consistent standard against which to determine when
good cause has been proved. I would join the consensus of
jurisdictions that have required good cause under ICWA to be
proved by clear and convincing evidence.19 I note this height-
ened quantum of proof is expressly relied upon elsewhere in
NICWA when referencing good cause20 and is consistent with
17
See, In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007);
Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739
N.W.2d 162 (2007).
18
In re Interest of Zylena R. & Adrionna R., supra note 1.
19
See, e.g., Thompson v. Dept. of Family Services, 62 Va. App. 350, 747
S.E.2d 838 (2013); People in Interest of J.L.P., 870 P.2d 1252 (Colo. App.
1994); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); In re
A.P., 25 Kan. App. 2d 268, 961 P.2d 706 (1998); Matter of M.E.M., 195
Mont. 329, 635 P.2d 1313 (1981).
20
See § 43-1508(4) (Supp. 2015).
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the statutory preference for tribal jurisdiction under ICWA
and NICWA.21
Good Cause
By choosing not to statutorily define “good cause” in the
context of transfers under ICWA and NICWA, Congress and
the Nebraska Legislature have left to state courts the pri-
mary responsibility for interpreting the term. This is not a
simple task.
In the past, we have been called upon to interpret the
undefined phrase “good cause” in statutory contexts outside
ICWA, and we have recognized the complicated nature of such
an exercise.22 We have defined good cause, in the context of
a statute dealing with probate, as “a logical reason or legal
ground, based on fact or law” and emphasized that the mean-
ing of good cause is to be determined “in light of all of the
surrounding circumstances.”23 In the context of a criminal case
considering an extension of time to prepare a bill of exceptions
for good cause shown, we defined good cause as the interven-
tion of something beyond the control of the litigant.24 We also
have cited to Webster’s Third New International Dictionary
to define good cause as “‘a cause or reason sufficient in law;
one that is based on equity or justice or that would motivate a
reasonable man under all the circumstances.’”25 Most recently,
21
See 25 U.S.C. § 1911(b) (“the court, in the absence of good cause to the
contrary, shall transfer such proceeding to the jurisdiction of the tribe”).
Accord § 43-1504 (Supp. 2015).
22
Pettit, supra note 14, 291 Neb. at 519, 867 N.W.2d at 558 (recognizing
it is more complicated than it may seem to define good cause, because it
“surely depends upon the factual circumstances”).
23
In re Estate of Christensen, 221 Neb. 872, 874-75, 381 N.W.2d 163, 165
(1986).
24
Bryant v. State, 153 Neb. 490, 45 N.W.2d 169 (1950).
25
In re Estate of Christensen, supra note 23, 221 Neb. at 874, 381 N.W.2d
at 165 (emphasis omitted); DeVries v. Rix, 203 Neb. 392, 279 N.W.2d 89
(1979).
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we examined the entirety of the relevant statute in determining
the meaning of the phrase “good cause.”26
Based on the foregoing, I would hold that good cause to
deny a transfer under ICWA and NICWA means a compelling
reason, based in law or fact, which is not contrary to the pro-
visions or purposes of ICWA and NICWA and is sufficient to
overcome the strong presumption of tribal jurisdiction. And I
think having a general definition of good cause in the context
of transfers would assist litigants and courts in analyzing fac-
tual situations not otherwise addressed in BIA’s guidelines.
Historically, when interpreting good cause under ICWA, we
have relied primarily on BIA’s guidelines, rather than applying
more traditional rules of statutory construction. But continued
reliance on BIA’s guidelines is problematic, because the 2015
BIA guidelines do not undertake to define good cause, and
instead focus exclusively on identifying that which is not good
cause. This has not always been the case.
Under the 1979 BIA guidelines, good cause to deny a trans-
fer was recognized under four specific scenarios: (1) the pro-
ceeding was at an advanced stage when the motion to transfer
was filed; (2) the Indian child was over 12 years of age and
objected to the transfer; (3) the evidence necessary to decide
the case could not be adequately presented in the tribal court
without undue hardship to the parties or the witnesses; or (4)
the parents of a child over 5 years of age are not available,
and the child has had little or no contact with the child’s tribe
or members of the child’s tribe.27 The 1979 BIA guidelines
specifically noted that the third scenario, undue hardship, was
included because 25 U.S.C. § 1911(b) of ICWA was “‘intended
to permit a State court to apply a modified doctrine of forum
non conveniens, in appropriate cases, to [e]nsure that the rights
26
Pettit, supra note 14.
27
1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,591, C.3(b)(i)
through (iv).
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of the child as an Indian, the Indian parents or custodian, and
the tribe are fully protected.’”28
For reasons which are not clear, the 2015 BIA guidelines
omit all four of the good cause factors identified in the 1979
BIA guidelines, and instead list only those things the BIA has
determined courts may not consider in determining whether
good cause exists.29 As for what may still constitute good cause
under ICWA, the 2015 BIA guidelines merely recite that good
cause may be found if “the State court otherwise determines
that good cause exists.”30
The 2015 BIA guidelines explain why some of the 1979
good cause factors were omitted (including the factor regard-
ing advanced proceedings)31 but are silent regarding why
two of the 1979 factors (the factor addressing the preference
of an Indian child over age 12, and the factor addressing
undue hardship) were omitted from the 2015 BIA guidelines.
Because there was no explanation given for omitting these
factors, it is not possible to judicially determine whether
the BIA’s rationale for omitting these factors is in accord
with ICWA and NICWA. But certainly, the lack of guidance
from the Department of the Interior on this issue should not
preclude state courts from considering whether these remain
viable factors when determining good cause under ICWA and
NICWA. And something must constitute good cause to deny
a transfer to tribal court, because both ICWA and NICWA
expressly authorize it:
In any State court proceeding for the foster care place-
ment of, or termination of parental rights to, an Indian
child not domiciled or residing within the reservation of
the Indian child’s tribe, the court, in the absence of good
cause to the contrary, shall transfer such proceeding to
28
Id., 67,591, C.3, commentary.
29
2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,156, C.3(c).
30
See id., 10,149.
31
See id.
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the jurisdiction of the tribe, absent objection by either
parent, upon the petition of either parent or the Indian
custodian or the Indian child’s tribe: Provided, That such
transfer shall be subject to declination by the tribal court
of such tribe.32
Statutory language is to be given its plain and ordinary mean-
ing, and an appellate court’s duty in discerning the meaning
of a statute is to determine and give effect to the purpose and
intent of the Legislature.33 Recognizing this, we must look
beyond the notable silence of the 2015 BIA guidelines in order
to determine and give effect to the good cause language in
ICWA and NICWA.
In determining whether there is good cause to deny a
transfer, I think it remains appropriate for courts to consider
whether the evidence necessary to decide the case could be
adequately presented in the tribal court without undue hardship
to the parties or the witnesses. I note the 1979 BIA guidelines
addressed this specifically:
Consideration of whether or not the case can be prop-
erly tried in tribal court without hardship to the parties or
witnesses was included [as a good cause factor] on the
strength of the section-by-section analysis in the House
Report on [ICWA], which stated with respect to the
§ 1911(b), “The subsection is intended to permit a State
court to apply a modified doctrine of forum non con
veniens, in appropriate cases, to [e]nsure that the rights
of the child as an Indian, the Indian parents or custodian,
and the tribe are fully protected.” Where a child is in fact
living in a dangerous situation, he or she should not be
forced to remain there simply because the witnesses can-
not afford to travel long distances to court.34
32
25 U.S.C. § 1911(b). Accord § 43-1504(2).
33
Pettit, supra note 14; Village of Hallam v. L.G. Barcus & Sons, 281 Neb.
516, 798 N.W.2d 109 (2011).
34
1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,591, C.3, commentary.
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The 1979 BIA guidelines went on to observe that “[a]ppli-
cation of this criterion will tend to limit transfers to cases
involving Indian children who do not live very far from the
reservation.”35 It was suggested that problems with an incon-
venient forum might be alleviated by “having the court come
to the witnesses” or requiring the “tribal court meet in the city
where the family lived.”36
I find persuasive the rationale provided in the comments to
the 1979 BIA guidelines that the undue burden factor is actu-
ally a modified forum non conveniens analysis, and I note that
prior to the 2015 BIA guidelines, Nebraska recognized this
as a valid factor in the good cause analysis.37 I see no prin-
cipled basis under the operative statutes or our jurisprudence
to depart from that precedent. When determining whether
the doctrine of forum non conveniens should be invoked, we
have said the trial court should consider practical factors that
make trial of the case easy, expeditious, and inexpensive, such
as the relative ease of access to sources of proof, the cost of
obtaining attendance of witnesses, and the ability to secure
attendance of witnesses through the compulsory process.38
Particular factors to consider in ICWA and NICWA cases may
include whether alternative methods of participation, such as
by telephone or videoconferencing, are available.39 I note the
juvenile court in this case made specific reference in its order
to the fact that the tribal court was more than 430 miles from
Lincoln, Nebraska.
35
Id.
36
Id.
37
See In re Interest of Leslie S. et al., 17 Neb. App. 828, 770 N.W.2d 678
(2009).
38
See In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992),
overruled on other grounds, In re Interest of Zylena R. & Adrionna R.,
supra note 1.
39
See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,156, C.1(d). See,
also, In re Spears, 309 Mich. App. 658, 872 N.W.2d 852 (2015).
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By specifically mentioning forum non conveniens, I do
not mean to suggest it is the only “good cause” factor which
remains viable in the wake of the 2015 BIA guidelines. I note
that when the Legislature amended NICWA in 2015, it added
both a definition and a standard of proof for “good cause” in
the context of placement preferences for Indian children:
Good cause to deviate from the placement preferences
in subsections (1) through (3) of this section includes:
(a) The request of the biological parents or the Indian
child when the Indian child is at least twelve years of
age; (b) the extraordinary physical or emotional needs of
the Indian child as established by testimony of a quali-
fied expert witness; or (c) the unavailability of suitable
families for placement after a diligent search has been
completed for families meeting the preference criteria.
The burden of establishing the existence of good cause to
deviate from the placement preferences and order shall be
by clear and convincing evidence on the party urging that
the preferences not be followed.40
This new definition of good cause appears instructive on
the related task of determining good cause to deny a trans-
fer request and illustrates several possible factors support-
ing a good cause finding which the Legislature has con-
cluded are not contrary to the provisions or purpose of ICWA
and NICWA.
Finally, because “best interests” is addressed in the major-
ity opinion, I write separately to suggest that recent legislative
amendments to NICWA undermine our holding in In re Interest
of Zylena R. & Adrionna R.,41 that state courts may not con-
sider the best interests of an Indian child in deciding whether
there is good cause to deny a transfer to tribal court.
L.B. 566 made significant amendments to NICWA, includ-
ing expanding the stated purpose of NICWA to recognize the
40
§ 43-1508(4).
41
In re Interest of Zylena R. & Adrionna R., supra note 1.
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state’s commitment to “protecting the essential tribal relations
and best interests of an Indian child by promoting practices
consistent with [ICWA]”42 and adding a new definition of
“best interests of the Indian child”:
(2) Best interests of the Indian child shall include:
(a) Using practices in compliance with [ICWA],
[NICWA], and other applicable laws that are designed to
prevent the Indian child’s voluntary or involuntary out-of-
home placement; and
(b) Whenever an out-of-home placement is necessary,
placing the child, to the greatest extent possible, in a fos-
ter home, adoptive placement, or other type of custodial
placement that reflects the unique values of the Indian
child’s tribal culture and is best able to assist the child
in establishing, developing, and maintaining a political,
cultural, and social relationship with the Indian child’s
tribe or tribes and tribal community.43
It is significant that the Nebraska Legislature undertook to
define “best interests of the Indian child” under NICWA and
that it did so in a manner which does not prohibit consideration
of best interests altogether, but, rather, narrows the traditional
concept of best interests to reconcile it with the important
policy goals and procedural protections afforded by ICWA
and NICWA.
As such, on the issue of whether some inquiry into an
Indian child’s best interests is permitted when determining
whether there is good cause to deny a transfer, I read the recent
amendments to NICWA as indicating that consideration of
best interests need not be categorically excluded, but must be
narrowly applied in a manner that is consistent with the provi-
sions and promotes the goals of ICWA and NICWA. Because
I think these recent legislative amendments to NICWA compel
us to reconsider the breadth of our holding in In re Interest of
42
§ 43-1502.
43
§ 43-1503(2) (Supp. 2015).
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Zylena R. & Adrionna R., I cannot agree with the majority’s
broad statement that “the best interests of the Indian child is
not a basis for good cause to deny a transfer of the case to
tribal court.”
In summary, I agree with the majority that the mere advanced
stage of the proceeding should no longer be good cause to deny
a motion to transfer to tribal court. But because we announce
a significant change in the law today, I respectfully disagree
with the majority’s disposition of this case, and suggest the
better disposition would be to vacate, and remand for further
proceedings, and in doing so, I would provide further guidance
on the applicable standard of review, the appropriate quantum
of proof, and the proper parameters of good cause to deny a
transfer under ICWA and NICWA. For these reasons, I both
concur and dissent in the opinion of the court.
Heavican, C.J., and Cassel, J., join in this concurrence
and dissent.