Tuesday, March 14, 2006

Nebraska court of appeals (J. Moore) reverses neglect adjudications for indian children where the state failed to plead specifically that State had taken "active measures" to prevent breakup of Indian family, per 43-1505(4) RRs Neb In re Interest of Dakota L. et al., 14 Neb. App. 559 Filed March 14, 2006. No. A-05-385. In action for taking juvenile court jurisdiction over children who were members of Macy Indian Tribe but currently resided in Douglas County the Court adjudicated the children as neglected juveniles. The States initial petition did not plead specific allegations however that the Indian child welfare act (25 U.S.C. § 1911(a) (2000) federal ICWA; Neb. Rev. Stat. § 43-1504(1) (Reissue 2004) Nebraska ICWA) requires that the State had taken "active measures" to keep the Indian family intact. The State did file an amended petition that contained the necessary language from 43-1505(4) but the court proceeded with the original defective petition. Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. neither original nor amdned petition made these allegations. Further 43-1505(5) requires that any foster care placement order requires the court determine by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. "In an action for adjudication of Indian children, it is necessary to plead facts under the ICWA. In this case, while the State did file an amended petition including allegations required under the ICWA, the court did not adjudicate the children under the amended petition. It was error for the court to proceed on the adjudication under the original petition, which did not allege facts under the ICWA. "we reverse the order of adjudication and remand the cause to the juvenile court for an adjudication under an appropriate amended petition, with directions to the court to make specific findings as required by § 43-1505." In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 (2001)

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