Sunday, January 15, 2006

Nebraska Supreme Court rejects terminated parents' claims that allowing the State to terminate parental rights by "clear and convincing" evidence unlawfully discriminates against them when Nebraska requires the criminal "proof beyond a reasonable doubt" standard when considering the parental rights of IndiansIn re Interest of Jagger L., S-05-153, 270 Neb. 828 In re Interest of Phoenix L., S-05-536, S-05-537, 270 Neb. 870. In these companion termination of parental rights cases, the mother (Phoenix L) argued that since parents of Indian children are entitled to proof beyond a reasonable doubt before losing their children, parents of non-Indians suffer unlawful discrimination under the Equal Protection Clause because their standard of proof is "clear and convincing." Sonya argues that because the burden of proof required to terminate parental rights to non-Indian children under § 43-279.01(3), to which she was subject, is a lesser standard of proof than that required to terminate parental rights to Indian children under the NICWA, § 43-1505(6), parents subject to § 43-279.01(3) are discriminated against on the basis of race. We conclude that Sonya has failed to establish § 43-279.01(3) violates equal protection guarantees and further conclude that the juvenile court did not err when it rejected Sonya's constitutional challenge to § 43-279.01(3). Congress enacted the Indian Child Welfare Act of 1978 (ICWA)to protect the best interests of Indian children and to promote 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.25 U.S.C. § 1902 (2000) § 43-1502, states: The purpose of the [NICWA] is to clarify state policies and procedures regarding the implementation by the State of Nebraska of the federal Indian Child Welfare Act, 25 U.S.C. 1901 et seq. It shall be the policy of this state to cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of the [ICWA] are enforced. The difference in the statutes implicated in this case between the parents of non-Indian as distinguished from Indian children is attributable not to race but is attributable to and is an incident of the historical sovereignty of Indian tribes. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832) Morton v. Mancari 417 U.S. 535, 554, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974) Nebraska legislation that differentiates between the parents of Indian and non-Indian children relative to the burden of proof for termination of parental rights is not due to racial discrimination. Given the United States' history in dealing with Indians and the U.S. Supreme Court's decisions with regard to legislation pertaining thereto, we conclude as a matter of law that the lower standard of proof under § 43-279.01(3) for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the NICWA, does not violate the equal protection rights of parents of non-Indian children. In the fathers case (Jagger L) the Supreme Court found clear and convincing proof that the children were properly under court jurisdiction; that the child had been in out of home placement for at least 15 months out of the past 22 and that their best interests required termination of parental rights, notwithstanding the fathers minimal efforts to support them.

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