In re Interest of Lawrence H.

in re interest of lAwrence h., Also known As fAren h.,
A child under 18 yeArs of Age .
stAte of nebrAskA, Appellee , v . idA h. And
J ose o., AppellAnts , And omAhA tribe
of nebrAskA, intervenor -Appellee .
743 N.W.2d 91
Filed December 11, 2007. 	No. A-07-592.
1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the
Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings. In
reviewing questions of law arising in such proceedings, an appellate court reaches
a conclusion independent of the lower court’s ruling.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve
a factual dispute is determined by an appellate court as a matter of law.
3. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a trans-
fer to tribal court is reviewed for an abuse of discretion.
4. 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, but the selected option results in a decision which is
untenable and unfairly deprives a litigant of a substantial right or a just result in
matters submitted for disposition through a judicial system.
5. 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.
6. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
7. Indian Child Welfare Act: Parental Rights: Jurisdiction: Domicile. 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 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.
8. Indian Child Welfare Act: Parental Rights: Interventions. In proceedings to
terminate parental rights to an Indian child, the child’s tribe shall have the right to
intervene at any point in the proceeding.
9. Indian Child Welfare Act: Jurisdiction: Child Custody: Parental Rights.
Under the Indian Child Welfare Act, if the tribe or either parent of the Indian
child petitions for transfer of the proceeding to the tribal court, the state court
cannot proceed with the placement of an Indian child living outside a reservation
246 	16 NEBRASkA APPELLATE REPORTS
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without first determining whether jurisdiction of the matter should be transferred
to the tribe.
10. Indian Child Welfare Act: Jurisdiction. That a state court may take jurisdiction
under the Indian Child Welfare Act does not necessarily mean that it should do so, as
the court should consider the rights of the child, the rights of the tribe, and the con-
flict of law principles, and should balance the interests of the state and the tribe.
11. Indian Child Welfare Act: Evidence: Records: Good Cause: Appeal and Error.
Under the Indian Child Welfare Act, factual support must exist in the trial record
for the purposes of appropriate appellate review as to good cause for failure to
comply with statutory child placement preference directives.
12. Trial: Attorneys at Law: Evidence. An attorney’s assertions at trial are not to be
treated as evidence.
13. Records: Appeal and Error. It is incumbent upon the party appealing to present a
record which supports the errors assigned; absent such a record, as a general rule,
the decision of the lower court is to be affirmed.
14. Records: Pleadings: Appeal and Error. When a transcript, containing the
pleadings and order in question, is sufficient to present the issue for appellate
disposition, a bill of exceptions is unnecessary to preserve an alleged error of law
regarding the proceedings under review.
Appeal from the Separate Juvenile Court of Douglas County:
christopher kelly, Judge. Vacated and dismissed in part, and
in part reversed and remanded with directions.
Brian S. Munnelly, Brian J. Muench, and Judith A. Zitek
for appellants.
Donald W. kleine, Douglas County Attorney, Renee L.
Mathias, and Joshua Yambor, Senior Certified Law Student,
for appellee.
Owen L. Farnham, of Anderson & Bressman Law Firm, P.C.,
L.L.O., guardian ad litem.
inbody, Chief Judge, and irwin and moore, Judges.
inbody, Chief Judge.
INTRODUCTION
Ida H. and Jose O. appeal the order of the separate juvenile
court of Douglas County that terminated their parental rights to
their son Lawrence H., also known as Faren H. (Faren). Because
we conclude that the juvenile court erred in deferring its rul-
ing on the motion to transfer of the Omaha Tribe of Nebraska
IN RE INTEREST OF LAWRENCE H. 	247
Cite as 16 Neb. App. 246

(Omaha Tribe), we reverse the juvenile court’s denial of the
motion to transfer, vacate and dismiss the order terminating
parental rights, and remand the cause with directions to transfer
the matter to tribal court.
STATEMENT OF FACTS
On June 7, 2005, the State filed a petition alleging, inter alia,
that Faren, born June 2, 2005, was a registered member of and/or
eligible for enrollment in the Omaha Tribe and came within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2004), being
a child who lacked proper parental care due to the faults or hab-
its of his parents, Ida and Jose. The State alleged that statutory
grounds for termination of both parents’ parental rights existed
under Neb. Rev. Stat. § 43-292(2) and (4) (Reissue 2004) and
that termination would be in Faren’s best interests. The State
prayed for termination of Ida’s and Jose’s parental rights.
On June 14, 2005, the State filed a notice informing the
Indian Child Welfare Act (ICWA) specialist for the Omaha
Tribe of the petition and of the fact that Faren may be eligible
for membership in the Omaha Tribe, thus invoking rights under
the ICWA. See 25 U.S.C. § 1901 et seq. (2000) and Neb. Rev.
Stat. § 43-1501 et seq. (Reissue 2004).
On August 8, 2005, on behalf of the Omaha Tribe, the tribal
prosecutor filed a motion for intervention and a motion to
transfer the case to Omaha Tribal Court. A hearing was held on
the motions on August 9, and in an order entered on the same
day, the juvenile court continued the hearing on the motions for
intervention and transfer to September 16 and stated that “this
matter shall be set for an Adjudication hearing and scheduled
for one day in approximately two months.”
On September 16, 2005, Faren’s guardian ad litem filed an
objection to transfer to tribal court, alleging that good cause
existed to deny the Omaha Tribe’s motion to transfer and that a
transfer would be contrary to Faren’s best interests.
At the September 16, 2005, hearing, the juvenile court received
evidence that Ida was a member of the Omaha Tribe and that
Faren was eligible for enrollment in the Omaha Tribe. Ida and
Jose did not object to the transfer. Counsel for the State admitted
that while the State did not believe transfer would be in Faren’s
248 	16 NEBRASkA APPELLATE REPORTS

best interests, it did not have any evidence showing good cause
not to transfer. Faren’s guardian ad litem agreed that transferring
the matter to tribal court would be contrary to Faren’s best inter-
ests because the juvenile court had already adjudicated siblings
of Faren’s and because the juvenile court could offer “better
services.” The guardian ad litem later clarified that he did not
mean to state that the tribal court was incompetent.
The tribal prosecutor responded that the tribal court had
access to the same services as the juvenile court and that
Faren’s siblings’ cases were a matter of record. The tribal pros-
ecutor confirmed that most of the witnesses would be in Omaha
and acknowledged that the tribal court was “out in the middle of
nowhere,” about 75 miles from the juvenile court’s location, but
stated that the tribal court had means of securing appearances
and that the distance would not be “that much of a burden.”
The tribal prosecutor stated that adequate services were avail-
able in the tribal court, including medical services that Faren
received through the Department of Health and Human Services
(DHHS), and continued:
Your Honor, if I may, if there’s further information that
you would like in an evidentiary hearing later, I don’t
believe the child’s welfare is prejudiced either way by,
you know, the Court taking its time to consider its ruling.
I don’t think the child’s welfare is prejudiced either way,
so I don’t know that it’s incumbent that we have a ruling
right now.
Faren’s guardian ad litem argued that Faren’s placement was
in Bellevue, Nebraska, and that requiring his medical providers
and other service providers to travel to tribal court was an undue
hardship that would not occur if the case were to remain in the
juvenile court. The tribal prosecutor admitted that Bellevue was
86 miles from the tribal court. The juvenile court stated that it
would take the matter under advisement.
Following the September 16, 2005, hearing, the juvenile court
entered an order granting the motion for intervention. The juve-
nile court further found that “the Omaha Tribe’s Notice of Intent
to Transfer was objected to by the child’s Guardian ad Litem
and was taken under advisement by the Court.” The juvenile
court set the adjudication hearing for October 6.
IN RE INTEREST OF LAWRENCE H. 	249
Cite as 16 Neb. App. 246

The juvenile court proceeded with the adjudication hearing on
October 6, 2005. Near the outset of the hearing, the following
colloquy took place:
[Ida’s counsel]: I don’t think the Court can go forward
with adjudication until we have the ruling on [the motion
to transfer].
THE COURT: You have authority for that?
[Ida’s counsel]: No, I don’t.
THE COURT: I intend to take up the matter under
advisement following the adjudication of the case.
[Ida’s counsel]: But if it’s transferred, Your Honor, you
wouldn’t hear the adjudication. That’s what the Tribe is
asking is that they be allowed to adjudicate this case, not
the District of Douglas County.
THE COURT: The Tribe is party to these proceedings,
and they can argue it on their own, I think. The transfer can
be taken up at any stage of the proceedings, and I’ve taken
it under advisement, and we have parties prepared to go
forward here. We have witnesses here. We have the matter
which allegedly — a situation which allegedly took place
or occurred here in this jurisdiction, and I intend to take the
matter up following the adjudication of the matter.
Ida’s counsel and guardian ad litem also expressed concerns
that Ida could be denied her right to appeal the transfer issue.
The tribal prosecutor stated, “The Tribe’s position is certainly
intervening. The Tribe would request that the transfer motion
be heard first just — it’s an issue of sovereignty on whether or
not the Court adjudicates.” The juvenile court concluded that
none of the parties had produced legal authority and proceeded
with the adjudication. The adjudication hearing was continued
to November 17 and 18.
On November 15, 2005, Ida and Jose filed a notice of appeal
to this court, appealing the juvenile court’s “denial of the Motion
to Transfer to Tribal Court filed August 8, 2005 entered by this
Court’s failure to timely rule on said Motion.”
At the November 17, 2005, adjudication hearing, Jose’s
counsel argued that because of the pending appeal, the juvenile
court did not have jurisdiction to order an evaluation and ser-
vices on behalf of Faren and that “[t]his belongs in the tribal
250 	16 NEBRASkA APPELLATE REPORTS

court.” The tribal prosecutor declined to object to services being
provided to Faren. The juvenile court determined that it had
jurisdiction to act on behalf of Faren’s well-being and sched-
uled the matter for a “continued adjudication check.”
The juvenile court conducted adjudication check hearings on
February 23 and May 30, 2006. Following each of the hearings,
the juvenile court entered an order finding that “this matter
continues to pend on appeal in the Nebraska Court of Appeals.”
The juvenile court ordered the matter to be set for a continued
adjudication hearing.
On June 13, 2006, this court dismissed the appeal for lack
of jurisdiction because the juvenile court had not denied the
motion to transfer and there was no final order from which to
appeal. See In re Interest of Lawrence H., No. A-05-1409, 2006
WL 1596519 (Neb. App. June 13, 2006) (not designated for
permanent publication).
On August 21, 2006, the juvenile court conducted a continued
adjudication hearing. Before the juvenile court heard testimony,
Jose’s counsel requested a ruling on the transfer issue or an
“indication as to when a ruling will take place.” The juvenile
court declined to rule, stating:
I declined to rule during the course of trial previously, and
that was essentially because we’re in the middle of trial,
and I’m not going to move a case to another jurisdiction
— to the Indian Nation essentially in the middle of trial
and certainly not when we have a situation where witnesses
are being called who are local and who need to be, I think,
reasonably able to attend the proceedings, and I don’t want
to impose hardship on any of the parties.
. . . .
. . . I’m just saying that [the tribal prosecutor] was not
asking for a ruling on [the motion for transfer] until the
parties raised it at the adjudication hearing.
So, anyhow, I’m not going to rule on it now. I’m going
to — I’d indicate to the parties that I would intend, as I
have intended all along, to rule on the matter either at the
conclusion of the adjudication hearing or if the matter pro-
ceeds to disposition, no later than the disposition portion
of the hearing.
IN RE INTEREST OF LAWRENCE H. 	251
Cite as 16 Neb. App. 246

The juvenile court proceeded with the adjudication hearing and
heard testimony and received exhibits.
The juvenile court continued conducting adjudication hear-
ings from November 30, 2006, until the last adjudication hearing
on January 16, 2007.
On April 30, 2007, the juvenile court entered an order ter-
minating Ida’s and Jose’s parental rights to Faren. The juve-
nile court specifically found that there was clear and con-
vincing evidence that Faren was a child within the meaning
of § 43-247(3)(a), that Faren came within the meaning of
§ 43-292(2) and (4) beyond a reasonable doubt, and that active
but unsuccessful efforts to rehabilitate Ida and Jose had been
undertaken. The juvenile court ordered that Faren remain in
the custody of DHHS for adoptive planning and placement and
authorized DHHS to consent to legal adoption. The juvenile
court ordered DHHS to inform the juvenile court if adoption
were finalized, at which time jurisdiction of the juvenile court
would terminate. Finally, the juvenile court stated, “IT IS
FURTHER ORDERED that the Indian Child Welfare Act issue
involving transfer of this action to the Omaha Tribe of Nebraska
shall be set for continued hearing and scheduled for one-half
hour on May 3, 2007 at 3:15 p.m.”
As scheduled, on May 3, 2007, the juvenile court conducted
an additional hearing on the transfer issue. Counsel for the
State, Omaha Tribe Indian Child Welfare, Ida, and Jose were all
present, as well as guardians ad litem for Faren, Ida, and Jose.
Upon an earlier motion by the tribal prosecutor, the juvenile
court continued the hearing to May 29. The juvenile court noted
that there would probably be an appeal of the termination order
and stated, “My intention is to provide the parties with all pos-
sible appealable issues to have them ripe for a hearing at one
time, and that’s why I did call the short notice hearing.”
The bill of exceptions for the May 29, 2007, hearing was not
made a part of the record on appeal by the parties.
On May 29, 2007, following the May 29 hearing, the juvenile
court rendered an order denying the Omaha Tribe’s motion for
transfer on the basis of the doctrine of forum non conveniens.
On May 29 in the juvenile court, Ida and Jose filed their notice
252 	16 NEBRASkA APPELLATE REPORTS

of appeal of the April 30, 2007, order that terminated their
parental rights.
ASSIGNMENTS OF ERROR
Ida and Jose contend that the juvenile court erred in denying
transfer to the tribal court. Ida and Jose also allege several errors
pertaining to the termination proceedings and findings.
STANDARD OF REVIEW
[1,2] Cases arising under the Nebraska Juvenile Code are
reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the trial court’s
findings. In reviewing questions of law arising in such proceed-
ings, an appellate court reaches a conclusion independent of the
lower court’s ruling. In re Interest of Destiny S., 263 Neb. 255,
639 N.W.2d 400 (2002). A jurisdictional question which does
not involve a factual dispute is determined by an appellate court
as a matter of law. In re Interest of Anthony R. et al., 264 Neb.
699, 651 N.W.2d 231 (2002).
[3,4] A denial of a transfer to tribal court is reviewed for an
abuse of discretion. See In re Interest of Brittany C. et al., 13
Neb. App. 411, 693 N.W.2d 592 (2005). A judicial abuse of dis-
cretion exists when a judge, within the effective limits of autho-
rized judicial power, elects to act or refrain from action, but
the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result
in matters submitted for disposition through a judicial system.
In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).
ANALYSIS
Appellate Jurisdiction.
[5,6] We first address the State’s contention that this court
lacks jurisdiction because the juvenile court did not rule on the
motion to transfer before this appeal was filed. 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.
In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d
583 (2006). For an appellate court to acquire jurisdiction of an
IN RE INTEREST OF LAWRENCE H. 	253
Cite as 16 Neb. App. 246

appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is
without jurisdiction to entertain appeals from nonfinal orders.
In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d
231 (2002). Having reviewed the record, including the supple-
mental transcript consisting of the juvenile court’s order denying
the motion for transfer, we conclude that Ida and Jose timely
appealed a final, appealable order and that we have jurisdiction
to address this appeal.
Denial of Transfer to Tribal Court.
Ida and Jose assert that the juvenile court erred in denying the
motion to transfer the proceedings to tribal court. As recounted
above, the motion to transfer was filed early in the proceedings,
but the juvenile court deferred ruling on the motion until after
ordering termination of Ida’s and Jose’s parental rights.
[7-9] Neb. Rev. Stat. § 43-1504(2) (Reissue 2004) provides:
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 the Indian
child’s tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdic-
tion 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 sub-
ject to declination by the tribal court of such tribe.
In proceedings to terminate parental rights to an Indian child,
the child’s tribe shall have the right to intervene at any point
in the proceeding. See § 43-1404(3). Presumably, the tribe may
also file a motion to transfer at any point in the proceedings.
However, under the ICWA, if the tribe or either parent of the
Indian child petitions for transfer of the proceeding to the tribal
court, the state court cannot proceed with the placement of an
Indian child living outside a reservation without first determin-
ing whether jurisdiction of the matter should be transferred
to the tribe. In re Interest of C.W. et al., 239 Neb. 817, 479
N.W.2d 105 (1992) (citing 25 U.S.C. § 1911(b) (2000), which
mirrors § 43-1504(2)).
254 	16 NEBRASkA APPELLATE REPORTS

[10] In In re Interest of Brittany C. et al., 13 Neb. App.
411, 423, 693 N.W.2d 592, 602-03 (2005), we observed the
following: “That a state court may take jurisdiction does not
necessarily mean that it should do so, as the court should
consider the rights of the child, the rights of the tribe, and
the conflict of law principles, and should balance the interests
of the state and the tribe.” Citing In re Interest of C.W. et al.,
supra. On this basis, we determined that the denial of a transfer
to tribal court is reviewed for an abuse of discretion.
In In re Interest of Brittany C. et al., supra, we determined
that an order denying requests to transfer jurisdiction to a tribal
court affected a substantial right in a special proceeding. In so
doing, we stated:
[T]he request to transfer jurisdiction in the instant case is
not merely a step or a proceeding within the overall action.
If the request were granted, the pending proceedings would
stop and these matters would be transferred to another
forum. While a tribal court in some respects may resemble
a judicial forum based on Anglo-Saxon judicial traditions,
it may differ in other respects consistent with the tribal
court’s Native American traditions. . . .
Further, 	in 	adopting 	the 	[Nebraska] 	ICWA, 	the
Legislature determined that Nebraska public policy should
“‘cooperate fully with Indian tribes in Nebraska in order to
ensure that the intent and provisions of the federal [ICWA]
are enforced.’” Neb. Rev. Stat. § 43-1502 (Reissue 2004).
In the federal act, Congress recognized the special rela-
tionship between the United States and the Indian tribes
and the federal responsibility to Indian people; Congress
found, inter alia, that (1) there is no resource that is more
vital to the continued existence and integrity of Indian
tribes than their children; (2) the United States has a direct
interest, as trustee, in protecting Indian children who are
members of or are eligible for membership in an Indian
tribe; (3) an alarmingly high percentage of Indian families
are broken up by the removal, often unwarranted, of their
children from them by nontribal public and private agen-
cies; (4) an alarmingly high percentage of such children
are placed in non-Indian foster and adoptive homes and
IN RE INTEREST OF LAWRENCE H. 	255
Cite as 16 Neb. App. 246

institutions; and (5) the states, exercising their recognized
jurisdiction over Indian child custody proceedings through
administrative and judicial bodies, have often failed to
recognize the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian
communities and families. 25 U.S.C. § 1901 (2000). These
findings emphasize Congress’ determination that a tribal
court may provide the parent and the child with significant
advantages inherent in the recognition and implementation
of Native American customs and traditions.
In re Interest of Brittany C. et al., 13 Neb. App. at 421, 693
N.W.2d at 601-02.
[11-14] In the instant case, the juvenile court based its denial
of the motion for transfer on the doctrine of forum non con-
veniens, a valid basis for good cause to deny transfer. See, e.g.,
In re Interest of Brittany C. et al., supra; In re Interest of C.W.
et al., supra. However, under the ICWA, factual support must
exist in the trial record for the purposes of appropriate appel-
late review as to good cause for failure to comply with statu-
tory child placement preference directives. See In re Interest of
Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983). There is no
evidence in the record before us that the juvenile court heard
sworn testimony regarding good cause, and we cannot rely on
the assertions of counsel to evaluate the juvenile court’s find-
ing. See City of Lincoln v. MJM, Inc., 9 Neb. App. 715, 618
N.W.2d 710 (2000) (attorney’s assertions at trial are not to be
treated as evidence). The bill of exceptions from the May 29,
2007, hearing on the motion to transfer is not before us, and
although the resultant order indicates that the juvenile court
heard arguments from the parties, there was no indication that
the juvenile court heard any evidence to support its findings. We
recognize that it is incumbent upon the party appealing to pre-
sent a record which supports the errors assigned; absent such a
record, as a general rule, the decision of the lower court is to be
affirmed. In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518
(1991). However, when a transcript, containing the pleadings
and order in question, is sufficient to present the issue for appel-
late disposition, a bill of exceptions is unnecessary to preserve
an alleged error of law regarding the proceedings under review.
256 	16 NEBRASkA APPELLATE REPORTS

Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191 (2003). In this
case, we are most concerned with the juvenile court’s delay in
denying the motion to transfer, and the record before us, even
without the bill of exceptions of the final hearing, is sufficient
to present that issue.
Section 43-1504(2) requires transfer to tribal court absent a
showing of good cause. Regardless of what evidence may have
been presented at the May 29, 2007, hearing, the juvenile court
commenced with trial without any evidence of good cause.
The juvenile court deliberately delayed ruling on the motion
to transfer for almost 22 months, until after it had conducted
complete termination proceedings and after it had entered an
order terminating Ida’s and Jose’s parental rights. In so doing,
the juvenile court contravened the Nebraska Supreme Court’s
interpretation of the ICWA and the ICWA’s underlying intent
and conducted termination proceedings that, without a showing
of good cause, rightly belonged in the tribal court.
We conclude that the juvenile court’s refusal to rule on the
motion to transfer before proceeding with termination proceed-
ings was erroneous and an abuse of discretion. Therefore, we
reverse the juvenile court’s denial of the motion to transfer,
vacate and dismiss the order terminating parental rights, and
remand, with directions to transfer the matter to tribal court.
vAcAted And dismissed in pArt , And in pArt
reversed And remAnded with directions .
IN RE INTEREST OF LAWRENCE H. 	257
Cite as 16 Neb. App. 246